Shafeek S & Nishant Rajeev v. Mahatma Gandhi University & Controller of Examination

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942** ## **WA.No.1771 OF 2020** ## **AGAINST THE JUDGMENT IN WP(C) 16174/2020(V) OF HIGH COURT OF KERALA** ## **APPELLANTS:** **1 SHAFEEK.S AGED 27 YEARS S/O.SHERIF.M., MSN MANZIL, NARIKKAL MUKKU, PALACHIRA P.O., VARKALA, THIRUVANANTHAPURAM DISTRICT, PIN-695 143. 2 NISHANT RAJEEV, AGED 26 YEARS S/O.RAJEEV PANICKER, ARUNIMA, HOUSE NO.120, LANE NO.9, VINOBA NAGAR, KADAVANTHRA, ERNAKULAM DISTRICT, KOCHI-682 020.** **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS:** **1 MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, KOTTAYAM-686 560, REPRESENTED BY ITS REGISTRAR. 2 CONTROLLER OF EXAMINATION, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM-686 560.** **R1 BY ADV. SRI.ASOK M.CHERIAN SRI. JANARDHANA SHENOY K, REPRESENTING SRI. ASOK M CHERIAN STANDING COUNSEL FOR RESPONDENTS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1771 OF 2020 2 ## **JUDGMENT** ## **SHAJI P.CHALY,J** Petitioners in the writ petition have filed this appeal challenging the judgment of the learned single Judge in W.P.(C) 16174/2020 dated 20.11.2020, whereby the following reliefs sought for by the petitioners were declined: - (i) a writ of mandamus or any other writ, order or direction commanding the respondents to re-fix the minimum mark for re-doing the internal test as 40%, similar to that of the B.Tech course in Mahatma Gandhi University and other Universities in Kerala State and thereby permit the petitioners to re-do the internal test. - (ii) a writ of certiorari or any other writ, order or direction quashing Ext.P5 order and Ext.P6 notification in so far as it insist for 45% marks for the theory paper as a condition precedent for doing the internal assessment examination. - (iii) a writ of mandamus or any other writ, order or direction commanding the respondents to permit the petitioners who have secured pass mark of 40% for the University Examination to appear for their internal assessment examination (re-do of internal test) for their respective subjects and to improve their marks in the internal assessment test. 2. Facts in brief for the disposal of the writ petition as is discernible from the appeal memorandum are as follows; Appellants have joined for Five Year B.Arch Course in Holy Crescent College of Architecture, Aluva, affiliated to the 1[st] respondent University, in the years 2012 and 2013 and the course was completed during the years 2017 and WA.No.1771 OF 2020 3 2018, respectively. First appellant could not clear two subjects out of 55 papers i.e., Mathematics in the first semester and Structural Design in the 5[th] Semester; the 2[nd] appellant is yet to pass one paper out of 55 papers. As per Ext.P1 rules, regulations, schemes and syllabus of Mahatma Gandhi University - the 1[st] respondent, applicable to the B.Arch Course, a student must secure 35 marks out of 50 marks i.e., 70%, in the continuous assessment and a further minimum of 40 marks out of 100 marks i.e., 40% in the University examination and together comes to 75 marks out of 150 marks i.e., 50%. However, a student will pass a paper, if he/she secures 40% or above marks in the University examinations and 50% shall be secured out of the total marks of 150 i.e., continuous assessment marks plus University examination marks as above. 3. Insofar as the appellants are concerned, they have secured more than 40% marks in the University examinations even for the failed subjects but because of the very low internal assessment mark awarded by the college, they could not clear the aforesaid papers. From Ext.P4 order of the University dated 24.4.2018, it is clear that on the basis of the representation submitted by some of the aggrieved students, an expert committee was appointed and certain recommendations were made permitting the students of the college in question to re-do the internals. Consequently, evident from Ext.P5 order dated 7.9.2018, the Vice Chancellor approved the recommendations of the expert committee and the following orders were issued: WA.No.1771 OF 2020 4 “ ## **ORDER** As per the reference read 1[st] above, an option for re-doing the internal assessments of the failed theory papers has been given to B.Arch students (2011 Admission onwards), in the Committee was constituted for imparting recommendations regarding the internal re-do process. The Expert Committee, observed that if a student who gets a very low score in continuous assessments and repeatedly scores reasonably high marks in theory examinations might not be declared pass, such candidates having demonstrated improvement in the subject domain knowledge shall be given an opportunity to the do the continuous assessment marks, as this would enable them to acquire. B.Arch degree, the committee also evaluated the decisions adopted in other Universities in this matters assessed the implications in their pigmentation in M.G.University and submitted a detailed report on the B.Arch Internal Re-do examination. The main essence of the recommendation is as follows: 1. A chance for re-doing the continuous assessment shall be provided for all the subjects except Architectural Design, (I to VI), Basic Design and Architectural Thesis and Viva Voce for those candidates who have completed five years of B.Arch study but could not be declared pass by University due to low marks in their continuous assessment though they could obtain the minimum requirement of 45 percent marks in the respective University Theory Examinations/Vivavoce/Lab as the case may be. All the candidates who have obtained at least 45 percent marks or above in the university theory examination under Group II subjects as well as the subjects under Group I namely Architectural Graphics and Visual Arts but failed in the subject due to the shortfall in the continuous assessment (CA) marks are alone eligible to appear for re-do of their continuous assessment marks in that subject. Further, for the subjects Interior Design, Landscape Architecture, Computer Applications in Architecture I and II (lab) Working Drawings WA.No.1771 OF 2020 5 and Details, Documentation of Traditional Building, Workshop Practice and Dissertation for which University Theory examination are not there, if the student has not acquired a pass even after repeated attempts with the succeeding regular batches, but has acquired minimum 45 percent marks for external Viva voce/Lab, then the chance of re-doing is allowed so that the student gets the B.Arch degree. 2. No candidates would be permitted to re-do the continuous assessment marks if either they are declared pass in that particular subject or have already obtained 70 percent marks in continuous assessment process. Candidates who have obtained 70 percent marks in the continuous assessments need to obtain the minimum requirement of 40 percent marks in University theory examination to meet the passing criteria of 50 percentage in total for that subject.” 4. It is also apparent from Ext.P5 order that option for re-doing the internal assessment of the failed theory papers has been given to B.Arch students from 2011 admission onwards with the same fee structure as allowed to B.Tech students. The case of the appellants was that fixing of 45% marks in Ext.P5 order in the University theory examinations as an eligibility criteria to appear for re-doing the internal assessments in that subject is arbitrary and illegal. According to the appellants, though the opportunity for re-doing the continuous assessment was introduced for helping the students who have failed due to low marks in continuous assessment fixing 45 marks in the theory examination conducted by the University as minimum eligible criteria for availing the facility for re-doing the continuous assessment cannot be WA.No.1771 OF 2020 6 sustained under law in view of the decision taken by the University in the matter of B.Tech students and also the decision taken by the Kerala University and the Calicut University to fix the minimum marks at 40%. The said contention was raised basically for the reason that except the 1[st] respondent University, all the sister Universities have provided the opportunity for re-doing the continuous assessment on securing 40% minimum pass mark in the theory examination conducted by such Universities. 5. It was also the case of the appellants that, it was in the aforesaid circumstances that representation was submitted jointly by the students before the University requesting to re-fix and reduce the minimum eligibility criteria to 40% pass in the theory examination in order to qualify for re-doing the internal assessments. The appellants have also raised a contention that, as per the rules and regulations, the duration of the B.Arch course is 5 years and the students must complete the course within a period of 10 years from the date of commencement of the course, which is an undisputed aspect by the University. So also it was stated that the syllabus and curriculum have been completely changed and therefore, the appellants had no other option than to approach this Court by filing the writ petition. 6. The University had filed a statement basically contending that re-do of internal assessments was not permissible to B.Arch course and the appellants have joined the course knowing fully well that the facility to re-do was not WA.No.1771 OF 2020 7 available to them. However, on representations made by the students alone redo of internal assessments was permitted after securing a report from the expert committee constituted with subject experts. It was also pointed out that the eligibility criteria of 45% in the theory examination was fixed to ensure that the student, who opts for internal re-do has fairly good subject domain knowledge and failure in the paper was only due to insufficient internal marks as suggested by the expert committee. Therefore, according to the University, the University is vested with powers to fix higher standards and such standards are fixed with the object of promoting higher standards and excellence in higher education. It was also the case of the University that the mark lists produced by the appellants would show that consistently they scored lower marks in the subjects for which they are seeking internal re-do and has never attained the specified eligibility criteria fixed by the University even after repeated attempts. 7. The sum and substance of the contention advanced by the University is that since the action of the University fixing the minimum marks of 45% for the theory papers enabling the appellants to re-do the internal assessments is purely an academic matter within the absolute domain of the University and therefore, the learned single Judge was right in dismissing the writ petition. It is also relevant to note that appellants have produced additional documents, Annexures A1 to A6 in the appeal, in order to establish that the sister WA.No.1771 OF 2020 8 Universities in Kerala have only fixed 40% marks in the theory papers as eligibility for improvement of internal examinations. 8. We have heard learned counsel for the appellants Sri.Peeyus A. Kottam, Sri.Janardhana Shenoy.K. for the respondent University and perused the pleadings and materials on record. 9. Learned counsel for the appellants have addressed arguments relying upon the documents and additional documents which also include orders issued by the University of Calicut in the subject issue and submitted that the action of the Mahatma University in fixing 45% marks for theory papers as eligibility criteria for re-doing the internal assessments is totally arbitrary and illegal. 10. On the other hand Standing Counsel for the University submitted that it was the prerogative of the University to fix the criteria for re-doing the internals since there is no such provision under the University laws permitting the students to re-do the internals. The learned single Judge after considering the issues involved and taking into account the proposition of law laid by the Apex Court in **Bisveswaraya Technological University & another v. Krishnendu Halder & others** [(2011)4 SCC 606], held as follows: “8. I have considered the contentions advanced at considerable length. The case of the petitioners is that the fixing of a criteria that B.Arch students who want to attempt a re-do of WP(C).No.16174 OF 2020 7 their internal assessment marks should have a minimum of 45% marks in their University examinations is illegal and discriminatory. I have no hesitation to hold that the contention raised by the petitioners with regard to discrimination as WA.No.1771 OF 2020 9 against B.Arch students is completely untenable. The petitioners are B.Arch students of the 1st respondent University. It is admitted in the writ petition itself that there was no provision for re-do of the internal assessments when they joined the course. The re-do in respect of internal assessment marks for B.Tech was a later introduction. It is contended that the criteria for re-do of the internal assessment for B.Tech students requires only 40% marks. It is clear from Ext.P5 that the decision to allow a re-do of the internal assessment marks in B.Arch has been taken by the University considering the report of the expert committee specifically authorised for this purpose. The expert committee has opined that it is only in cases where the students have scored reasonably high marks in the University examinations and have failed only because of the shortfall of marks in the internal assessments that a re-do of the internal assessment is to be allowed. Ext.P2 mark sheets of the petitioners in the concerned subjects speak volumes about the marks obtained by the petitioners in the papers in question in the University examinations. In the above factual situation, I am of the opinion that this Court would not be justified in interfering with the decision of the University with regard to fixing of criteria for eligibility for a re-do of the internal assessment. It is well within the competence of the University under Section 24(2) of the M.G.University Act to fix such eligibility criteria. The Apex Court in **Bisveswaraya Technological University's** case has specifically considered the issue and has held that it is not for this Court to decide on academic matters and where the University takes a decision within its jurisdiction, this Court should stay its hands. In the above view of the matter, I am of the opinion that the contention raised by the petitioners with regard to discrimination or illegality in the matter of fixation of 45% marks in the University examinations as a criteria for enabling a re-do of the internal assessment cannot be accepted. The contentions are untenable. The writ petition fails and the same is accordingly dismissed. ” WA.No.1771 OF 2020 10 11. We have evaluated the rival submissions made across the Bar. According to us, it is curious to note that even though 40% marks was fixed for pass in the theory examination for the regular students as well as the students participating in the supplementary examinations, 45% marks is fixed for redoing the internal examinations. It is evident from Ext.P7 order of the University dated 3.11.2017 that, the University was aware of the fact that large number of students, who have completed four years of study, could not be declared pass by the University due to low marks in their internal assessments though they could obtain the minimum requirement of 40% marks in the University theory examinations. The University was also aware of the fact that if a student who had very low score in the internal assessments and repeatedly scored reasonably high marks in the University theory examination might not be declared pass. It is also relevant to state that the University has taken note of the fact that the other universities in Kerala too have tried to address the situation in different ways and the committee have also evaluated the above decisions adopted in the other universities in the subject issue and also assessed the implications in their implementation under the Mahatma Gandhi University. 12. It is also clear from the said order dated 3.11.2017 that the University was of the opinion that a chance for re-doing the internal assessments shall be provided for all subjects across all semesters and further that the candidates WA.No.1771 OF 2020 11 who obtained 40 marks or above in the University theory examination and failed in the subject due to the short fall in the internal assessment marks are alone eligible to re-do the internal assessments in that subject. However, after securing the report of the expert committee, the academic council has taken a decision to fix 40 marks as eligibility criteria for permitting internal assessments. 13. On an evaluation of Ext.P8 notification issued by the University of Kerala dated 20.12.2019 in regard to one time provision for improvement of sessional marks for B.Arch students, it is clear that the eligibility criteria is fixed at 40 marks in the University theory supplementary examination but failed in the subject due to low internal marks. It is also significant to note that as per Ext.P11 order of the University of Calicut, the Board of Studies in Architecture, in its meeting held on 11.11.2016, has resolved that request for internal revision of marks can be extended to B.Arch students after it has been put into practice for B.Tech students and further the Vice Chancellor after considering the resolution of the Academic Council and the resolution of the Syndicate has accorded sanction to the B.Arch students of 2004 regulations, who have completed B.Arch course will be given chance to improve their internal marks in the failed subjects, in the colleges they studied in all cases limiting the maximum internal marks to 70%. This is further fortified by Annexure A1 order of the University of Calciut dated 4.1.2017 in the matter of improvement of internal examinations of B.Tech students under 2000, 2004 and 2009 regulations. WA.No.1771 OF 2020 12 14. So also the University of Calicut has also issued an order dated 23.1.2020 enabling the B.Arch students who failed to secure 50% marks in subjects which have only internal marks to register for their internal only subjects, in any subsequent chances similar to theory examinations and Faculty of Engineering at its meeting held on 5.12.2019 approved the above decision of the Board. It was also submitted before us that the Mahatma Gandhi University has permitted the B.Tech students who have completed the course to re-do the internals on attaining 40% marks for the theory examination. 15. However, learned standing counsel for the University in that regard has submitted that the B.Tech course is not more conducted by the Mahatma Gandhi University since B.Teh course of all the Universities in Kerala are now under the A.P.J. Abdul Kalam Technological University. 16. In our view, after evaluating the sum and substance of the issues, we are of the considered opinion that, there is force in the contention advanced by the appellants in regard to the arbitrary exercise of power by the Academic Council of the University in fixing 45% minimum marks for the theory papers to qualify to re-do the internals. This we say because even from the earlier decisions of the University itself, it is clear that the intention of the University was to help out the students, who have completed the course and failed in certain subjects due to low marks in the internal assessments. It is also clear from Ext.P7 decision of the University that the University have noted the decision WA.No.1771 OF 2020 13 taken by the sister Universities in Kerala in the matter of re-doing of examinations, however, no reasons are assigned to deviate from the minimum mark criteria of 40% for theory papers in order to qualify for re-doing the internal assessments. 17. It is true, normally a report would be slow in interfering with the academic matters of the University but here in the case on hand having regard to the objective of the orders issued by the Mahatma Gandhi University and other universities in respect of the B.Arch students, we are of the view that, interference is required in Ext.P5 order of the University dated 7.9.2018 so far as the fixation of minimum marks of 45% in respect of the theory examinations etc. so also the Mahatma Gandhi University has permitted the B.Tech students, who have completed the course to re-do the internals on securing 40% marks in theory papers and we are also the view that similar treatment in respect of B.Arch students should have been extended and having failed to do so, it amounts to arbitrary exercise of power and also discriminatory to the students, who are substantially situated in similar circumstances. We are also the view that we would be justified in holding so in view of the fact that minimum pass mark for theory papers for regular students and students participating in the supplementary examinations after completing the course is only 40%, thus making the action of the University in fixing a different criteria by issuing a notification deviating from the rules and regulations fixed otherwise. We are also WA.No.1771 OF 2020 14 of the opinion that the similarly situated students are also entitled to get the benefit of this judgement. 18. Accordingly, we set aside the judgement of the learned single Judge, and allow the writ petition and thereby direct the 1[st] respondent University to substitute the 45% minimum marks fixed for theory papers to become eligible to re-do the internals by the appellants and others who have completed the course, in Ext.P5 order dated 7.9.2018 with 40% marks enabling the B.Arch students who have completed the course to re-do the internal assessments. Writ appeal is allowed to the above extent. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY** smv **JUDGE** WA.No.1771 OF 2020 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**THE PROCEEDINGS OF THE CALICUT UNIVERSITY**| |---|---| ||**BEARING NO.UO NO.6/2017/PB DATD 04.01.2017**| ||**PERTAINING TO THE FIXING OF MINIMUM**| ||**QUALIFICATION FOR AVAILING THE OPPORTUNITY**| ||**FOR DOING INTERNAL RE-DO FOR IMPROVEMENT OF**| ||**MARKS IN INTERNAL ASSESSMENT FOR B.TECH**| ||**STUDENTS.**| |**ANNEXURE A2**|**THE CIRCULAR ISSUED BY THE CALICUT**| ||**UNIVERSITY BEARING NO.UO**| ||**NO.10804/2017/ADMIN DATED 26.08.2017**| ||**PERTAINING TO THE ELIGIBILITY CRITERIA FOR**| ||**AVAILING THE OPPORTUNITY TO RE-DO INTERNAL**| ||**CA.**| |**ANNEXURE A3**|**TRUE COPY OF THE CIRCULAR ISSUED BY THE**| ||**UNIVERSITY OF CALICUT BEARING NO.UO**| ||**NO.888/2020/ADMN DATED 23.01.2020 MODIFYING**| ||**THE CONDITIONS FOR TO RE-DO INTERNAL**| ||**EXAMINATION.**| |**ANNEXURE A4**|**THE REPRESENTATION SUBMITTED BY THE**| ||**STUDENTS OF B.ARCH (2012-2017) BATCH OF**| ||**HOLY CRESCENT COLLEGE OF ARCHITECTURE**| ||**BEFORE THE VICE CHANCELLOR DATED 14.09.2018**| ||**FOR RE-CONSIDERING THE MINIMUM CRITERIA FOR**| ||**AVAILING THE OPPORTUNITY FOR REDOING**| ||**INTERNAL CA.**| |**ANNEXURE A5**|**TRUE COPY OF THE ORDER BEARING**| ||**NO.4604/AIV/1/2017/ACADEMIC DATED**| ||**27.07.2017.**| |**ANNEXURE A6**|**TRUE COPY OF THE ORDER BEARING**| ||**NO.4981/AIV/1/2018 ACADEMIC DATED**| ||**20.06.2018.**|