## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**THURSDAY, THE 5TH DAY OF DECEMBER 2013/14TH AGRAHAYANA, 1935**
**WP(C).No. 26567 of 2013 (U) ----------------------------**
## **PETITIONER:**
## **--------------------------**
**VISHNU V. MUTHALALI PARAMBU, 31, PAZHAVEEDU ALAPPUZHA.**
**BY ADVS.SRI.C.P.CHANDRASEKHARAN SRI.M.SHAJU PURUSHOTHAMAN SMT.APARNA C.MENON**
**RESPONDENT(S):**
**----------------------------**
**1. UNIVERSITY OF KERALA KARIAVATTOM, THIRUVANANTHAPURAM REPRESENTED BY THE REGISTRAR, PIN: 695 581.**
**2. INSTITUTE OF MANAGEMENT IN KERALA, UNIVESITY OF KERALA, KARIAVATTOM CAMPUZ THIRUVANANTHAPURAM 695 581 REPRESENTED BY THE PROFESSOR AND HEAD OF THE INSTITURE OF MANGEMENT.**
**3. ALL INDIA COUNCIL OF TECHNICAL EDUCATION, INDIRA GANDHI SPORTS COMPLEX, IP ESTATE NEW DELHI - 110 002.**
**R-R1 & 2 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. R BY SRI.S.KRISHNAMURTHY,SC, AICTE**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**WP(C).No. 26567 of 2013 (U) ----------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS -------------------------------------**
**EXT.P1: TRUE COPY OF THE RECEIPT DATED 7/8/2013.**
**EXT.P2: TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT.**
**EXT.P3: TRUE COPY OF THE MARK LIST OF B.COM.**
**EXT.P4: TRUE COPY OF THE CASTE CERTIFICATE IS ISSUED BY THE VILLAGE OFFICER, PAZHAVEEDU.**
**EXT.P5: TRUE COPY OF RELEVANT EXTRACT OF NORMS ELIGIBILITY FIXED BY AICTC FIXED FOR MBA.**
**EXT.P6 : TRUE COPY OF THE ORDER ISSUED BY THE REGISTRAR OF UNIVERSITY DT. 18.5.2011**
## **RESPONDENT(S)' EXHIBITS**
**---------------------------------------**
**EXT.R1(a): TRUE COPY OF THE UNDERTAKING FURNISHED BY THE PETITIONER EXT.R1(b): TRUE COPY OF THE MEMO DT 25.10.2013 EXT.R1(c): TRUE COPY OF THE ORDER NO Ac.a.III/1/2009/B DT 18.5.2011**
## **TRUE COPY**
## **P.A TO JUDGE**
**K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.26567 of 2013**
**- - - - - - - - - - - - - - - - - - - - - - - - - - - -**
## **Dated this the 5[th] day of December, 2013**
## **J U D G M E N T**
The petitioner was an undergraduate student who had sought for admission to the Master of Business Administration Course conducted by the 2[nd] respondent, affiliated to the 1[st] respondent. While the petitioner and other applicants were considered for admission, it is admitted that the petitioner had secured only 46% marks in the qualifying examination. When the University directed the petitioner to produce the mark list the petitioner submitted before the University that he had applied for revaluation and that he expects that he would get the qualifying marks on revaluation. Hence the petitioner was admitted to the course subject, to the result of the revaluation. As per Ext.R1(a) the petitioner also gave an undertaking that if he fails to get the qualifying marks, he would forfeit his admission. It is not disputed that the petitioner could not get the qualifying marks in revaluation.
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2. The petitioner obviously could not have continued in the course as per the undertaking, Ext.Rf1(a). The petitioner but approached this Court, challenging the prescription in the prospectus, and the requirement of 50% marks in Part III subjects, as violating the statutory prescription. Regulation made by the Academic Council prescribed 50% marks in aggregate in the degree examination as also 50% in Part III, as the eligibility criteria, was also challenged. The Regulation evidenced by Ext.P6 was also challenged by way of amendment. The amended writ petition has been filed, which is brought up, for consideration by this Court.
3. The learned counsel for the petitioner contends that the Kerala University First Statutes, in Chapter 23B prescribes the qualification for admission to the MBA course and the same speaks only of a pass in the Bachelor Degree examination. The present prescription in the prospectus produced as Ext.P1 is said to violate the Statute. The Academic Council also, according to the learned counsel, does not have the power to go against the statute. Though Section 25 confers certain powers on the Academic Council, by the words employed in Section 25 of the Kerala University Act, the
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powers conferred are subject to the Statute. The learned counsel for the petitioner also relies on a decision reported in
**M.J Varghese v. Director, Medical Education, Trivandrum (AIR 1988 Kerala 200)** wherein this Court had considered a similar issue and held that the prospectus cannot go against the statutory provisions, since the former is only in the nature of an administrative instruction.
4. The learned counsel for the University however, would contend that the Academic Council of the University has necessary power to frame regulation as provided for under Section 25 and Section 35 of the Kerala University Act, 1974, which would take Ext.P6 out of the mere description as an administrative instruction and place it in the realm of a statutory regulation.
5. It is true that Chapter 23B of the First Statutes prescribes the qualification for admission to the post graduate degree in business administration as a pass in the bachelor degree examination; which can be taken as only a prescription of the minimum qualification required. It is for the Academic Council exercising power under Section 38 to decide on any matter relating to the admission of the students to various courses of study and to the examinations. As per Rule 38,
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definitely, subject to the provisions of the Act and Statutes, the Academic Council, has power to make regulations provided for of the matters detailed in Clause (a) to (f) of which Clause (a) and (b) are extracted hereunder:-
(a) the courses of studies and the conduct of examinations;
- (b)the admission of students to the various courses of study and to the examinations
6. The powers of the Academic Council as per Section 25, also relates to the prescription of qualification for admission to students to the various courses as is evident from a reading of clause 5 of Section 25. Such prescription obviously is made by way of Regulations framed under Section 38. True, the words employed in Section 25 and Section 38, makes the powers of the Academic Council, subject to the provisions of the Act and Statutes, which cannot be taken as statutory interdiction insofar as the Authorities under the Act and Statues, not being able to prescribe any further qualifications for admissions. What is provided for in the Statutes and the Act are general guidelines which would, in any event, be considered as minimum qualification criteria for
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admission to various courses. However, it is for the authorities under the Act, to decide the eligibility qualification criteria for admissions of candidates to the courses especially those coming within the bracket of higher education, so as to ensure merit and avoid the possibility of non-meritorious students gaining admission to professional courses. Section 25 and Section 38 confers such ancillary powers on the Academic Council, which has to be exercised in accordance with the provisions of the Act and Statutes.
7. **M.J Varghese v. Director, Medical Education, Trivandrum (AIR 1988 Kerala 200)** dealt
with the issue of a first rank holder, in the entrance examination conducted for admission to the MDS course, being not considered, for admission on the ground of his graduate degree being not equivalent to that of the Kerala University. The University refused to consider his application for want of equivalency and considered the 3[rd] rank holder for admission to the course. The petitioner therein, the first rank holder, relied on the prospectus, which according to him enabled the University to treat his graduate degree as an equivalent graduate degree. However, the Division Bench of this Court looking into the Statutes found that what was
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provided in the prospectus, diluted the criteria prescribed in the Statutes. This Court the prospectus being only an administrative instruction; the prescription in such administrative instruction cannot go against the provisions of the Statutes. In fact, the Division Bench noticed so in Paragraph 14 and 15 as hereunder:-
“14. But, contends counsel for Dr.Varghese
that the eligibility clause in the prospectus alone should apply and not the University Statutes. In other words, he submits that
when admission is made by the Government to colleges under their control, and the Government prescribes the qualifications for eligibility for admission, a candidate need have only those qualifications and nothing more. The Prospectus is thus not controlled by the University Statutes. It is difficult to accept this contention either on principle or on precedents. Out task is easier because the Supreme Court has already laid down the law on the subject.
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15. The prospectus issued by the Government for admission to any course of instruction, in any educational institution is only an administrative communication, not a statutory directive. Qualifications admission to the University Courses are prescribed by the University and its Statutes to maintain certain minimum standards. The Government cannot waive these minimum qualifications by administrative instructions...”
8. Hence it is clear that what was declared by this Court in the above cited decision following Supreme Court judgments, was that the administrative instruction cannot go against the clear provisions of the Statutes and that the same cannot result in diluting standards with respect to basic eligibility criteria. It was also noticed that the authorities had power to insist on higher standards, for the purpose of eligibility for admission to academic courses.
9. Ext.P6 Regulation definitely prescribed for a higher standard of eligibility for admission to MBA Course, which does not at all violate the prescription of minimum
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eligibility laid down in the Statue. In satisfying the prescription in Ext.P6, a candidate would also satisfy the minimum eligibility criteria of pass at the undergraduate level. The Regulation cannot be said to be violative of the provisions of the Statute. A prescription of lower eligibility criteria would be going against the provisions of the Statute, but not a prescription of a condition, which definitely comes within the meaning of a higher eligibility standard. The Academic Council by such prescription ensures the merit of the students admitted to the Course and secures a certain standard in the University which ultimately results in a certain quality being maintained by the professionals it moulds. It is also to be noticed that in the instant case Ext.P6 was not a mere administrative instruction as was the case in the above cited judgment. The prescription in the prospectus was based on a statutory regulation issued by the competent body of the University.
10. In such circumstance, the regulation issued by the University; Ext.P6, invoking powers under Section 38 of the Kerala University Act cannot at all be assailed and the challenge is rejected.
11. It is also to be noticed that the petitioner had
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applied as per the prospectus and had also undertaken to forfeit his admission, if the petitioner is found to have not secured the standard required by the prospectus, on revaluation. The petitioner failed in reaching the expected and prescribed standard when he turned around to challenge the prospectus. The petitioner having applied for as per the prospectus and having subjected to the conditions therein by an undertaking, cannot also turn around and challenge the same on his having rendered disqualified.
For all the above reasons the writ petition is found to be devoid of merit and the same is dismissed leaving the parties to suffer their costs.
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## **(K. VINOD CHANDRAN, JUDGE)**
jma
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