Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member Services -- Sign up today and get free trial for one month.
Kerala High Court
Ginesh.P vs The Controller Of Examinations on 22 May, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WA NO. 204 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 16.6.2022 IN WP(C) NO.3018
OF 2013 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
GINESH.P.
AGED 45 YEARS, S/O.PARAMESWARAN NAMBOODIRI
PARIYARATHILLOM, NJEEZHOOR P.O., KOTTAYAM, PIN -
686612
BY ADVS.
FRANCO T.J.
G.SANTHOSH KUMAR (P).
RESPONDENTS/RESPONDENTS:
1 THE CONTROLLER OF EXAMINATIONS
MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS
P.O., KOTTAYAM, PIN - 686560
2 MAHATMA GANDHI UNIVERSITY, REP.BY ITS REGISTRAR
PRIYADARSINI HILLS P.O., KOTTAYAM, PIN - 686560
3 THE VICE CHANCELLOR
MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS P.O
KOTTAYAM, PIN - 686560
4 THOMAS VARKEY
(SELECTION GRADE ASSISTANT. C E'S SECTION,
MAHATMA GANDHI UNIVERSITY, KOTTAYAM) MANNUSSERIL
HOUSE, MANNANAM.P.O., KOTTAYAM, PIN - 686561.
BY ADV SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
12.04.2024, THE COURT ON 22.05.2024 DELIVERED THE
FOLLOWING:
WA 204/2023
2
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
W.A.No.204 of 2023
-------------------------------------
Dated this the 22nd day of May, 2024
JUDGMENT
Easwaran S., J.
A student of MBA Off-Campus conducted by the Mahatma Gandhi University is before us in this intra-court appeal since according to him the directions issued by the learned Single Judge is non conclusive and may prolong the agony for redressal of which he had approached this Court in the writ petition.
2. The facts are rather disturbing due to certainly a negligent act of the Mahatma Gandhi University, which has nearly spoiled the career of a student. We are compelled to say so because of certain unproven allegation of attempt to commit malpractice by the appellant in the examination, and even after a lapse of 12 years justice has not been rendered to him.
WA 204/20233
3. The appellant/writ petitioner appeared for the examination conducted in April, 2012 for the 1 st and 2nd Semester of the MBA Course. On 19.5.2011, when the appellant was attending examinations, the 4 th respondent pretending to be an invigilator illegally entered into the examination hall and changed the seats of the candidates, including the petitioner, during the examination several times. The petitioner alleges that there was a police complaint lodged against the said action and in retaliation to the said complaint, Ext.P4 report was given by the invigilator stating that there was attempt to commit the malpractice by scribbling down something on the desk. Thereafter, yet another report was filed as under Ext.P5. Under Ext.P5 report, the allegation changes slightly and it is said that the appellant attempted to commit malpractice during the examination and was asked to change the seat to the front row and while changing the rows, he shouted at the invigilators. The reports on malpractice were against WA 204/2023 4 the petitioner, which according to him, were unauthorised since the authors of the same were not authorised to file such reports.
4. Based on Exts.P4 and P5, the respondent University initiated proceedings against the appellant/petitioner and Ext.P7 memo was served on him. After a protracted proceeding, the petitioner was served with yet another memo on 9.3.2012 under Ext.P11 requiring the petitioner to show cause as to why the examinations shall not be cancelled. The petitioner submitted the reasons for not imposing the punishment and thereafter it appears that the University by Ext.P13 resolution dated 23.1.2012, which was obtained by the petitioner under the provisions of the Right to Information Act, decided to cancel the examinations undertaken by the petitioner for 1st and 2nd Semesters.
5. In the meantime, the refusal on the part of the University to allow the petitioner to appear for the 3 rd and 4th Semester examinations compelled the petitioner to WA 204/2023 5 approach this Court in WP(C) No.9285/2012 and by Ext.P14 interim order the petitioner was allowed to appear in the examinations and participated in the same. Thereafter, by Ext.P16 judgment dated 10.10.2012 in WP(C) No.9285/2012, this Court directed the competent authority of the University, namely the Vice Chancellor, to take a final decision on the explanation submitted by the petitioner. Ext.P17 is the hearing note/additional statement given by the petitioner. Based on the said statement, the respondent-University by Ext.P18 dated 28.11.2012 informed that the Vice Chancellor had examined his explanation and ordered by Ext.P19 dated 13.11.2012 to implement the punishment that was imposed by the Syndicate. It is impugning Exts.P13, P18 and P19, the appellant approached this Court by the aforesaid writ petition.
6. The respondent University raised objections to the reliefs sought for in the writ petition by filing a counter WA 204/2023 6 affidavit. The decision to cancel the examinations and debar the appellant/petitioner from appearing in any University Examination was sought to be sustained on various grounds.
7. When the writ petition was taken up for final hearing by the learned Single Judge, the University admitted before the learned Single Judge that the answer scripts of the petitioner relating to the 1st and 2nd Semester examinations are not with them and the same were destroyed. In these compelling circumstances, the learned Single Judge ordered the writ petition without touching upon the merits of the allegations raised against the petitioner under Exts.P4 and P5 reports and under Ext.P13 and did not deem it fit to consider the issuance of a writ of certiorari against Exts.P18 and P19 decisions. However, the learned Single Judge gave liberty to the petitioner to approach the Registrar of the University with the originals of the mark lists of the 3rd and 4th semester examinations and directed the Registrar to decide the question as to how the petitioner's WA 204/2023 7 case will have to be finalised, taking note of the peculiar facts.
8. Aggrieved by the direction and the refusal on the part of the learned Single Judge to consider the question as to whether the facts pleaded in the writ petition warranted issuance of a writ of certiorari against Exts.P18 and P19 decisions, the petitioner is before this Court in this appeal.
9. We have heard Sri.Franco T.J, learned counsel appearing for the appellant, and also Sri.Surin George Ipe, learned Standing Counsel appearing for the University.
10. Before dwelling upon the other issues raised in the appeal, pertinently, even the learned Single Judge was prima facie of the view that the punishment meted on the appellant/petitioner was harsh and not justified. Therefore, in this intra-court appeal, our consideration is confined to as to whether the directions of the learned Single Judge could be sustained or the appellant is entitled for an order as prayed for in the writ petition.
WA 204/20238
11. By order dated 20.3.2024, we have directed the learned Standing Counsel for the respondent University requiring him to examine the matter and come out with a possibility adopting a holistic approach, especially in the light of the stand of the University that the answer scripts have been destroyed. When the matter was taken up for consideration on 27.3.2024, the learned Standing Counsel for the University sought further time to get instructions and accordingly, the matter was posted to 4.4.2024 and thereafter it was listed to 9.4.2024, when the learned Standing Counsel for the University sought further time and accordingly, the appeal was listed for final consideration on 12.4.2024.
12. On 12.4.2024, when the matter was taken up for final consideration, the learned Standing Counsel appearing for the University reiterated that the direction of the learned Single Judge cannot be complied with and there are practical difficulties in deciding the issue. It is reiterated that the WA 204/2023 9 University had resolved to cancel the examinations which was affirmed by the Vice Chancellor and therefore no relief could be given to the appellant.
13. The learned Standing Counsel for the University also submitted before us that the appellant/petitioner is not entitled to any relief, especially when the memo dated 9.3.2012 was not interfered by this Court in WP(C) No.9285/2012.
14. On the other hand, the learned counsel appearing for the appellant, Sri.Franco, T.J., made a fervent plea before the Bench that the exercises now directed to be done by the learned Single Judge cannot be sustained, especially when the appellant had suffered for nearly 12 years, when the writ petition was kept pending for consideration and in the compelling circumstances where even the reports of the invigilator, who reported the alleged malpractice, do not find the petitioner guilty of such practices and also in view of the fact that the appellant/petitioner was allowed to complete WA 204/2023 10 the examinations, there was no justification on the part of the learned Single Judge who had directed the appellant to approach before the Registrar leaving liberty to the Registrar to take a decision on the issue. He further submitted that the act of the University in destroying the answer scripts, especially when the dispute was pending before this Court, was unwarranted and totally uncalled for and has resulted in serious prejudice to the appellant. Therefore, prayed that the writ appeal may be allowed modifying the judgment of the learned single Judge and thereby granting reliefs sought for in the writ petition.
15. We have considered the submissions raised across the bar.
16. Before judging the action of the University on their decision to cancel the examinations of 1 st and 2nd semester, the most disturbing fact which compels us to take serious note is the action of the University in destroying the answer scripts, when the writ petition was kept pending. It may be WA 204/2023 11 noticed that the appellant had specifically challenged the report of enquiry and the decision to cancel the examination undertaken. Principles governing the law relating to issuance of writ of certiorari is explained in the decision of the Apex Court in Ghaio Mal & Sons Vs State of Delhi [AIR 1959 SC 65]. It is now trite law that when a writ of certiorari is sought for, the High Court can at any time call for the records leading to the impugned orders and examine the validity of the same to determine whether it withstands the test of judicial review. Such being the position of law, the action of the University in having caused destruction of the answer scripts has seriously prejudiced the rights of the petitioner, especially when for no fault of his, he is asked to appear for the 1st and 2nd semester examinations again, after a lapse of 12 years.
17. It must be remembered that even in the report of the Joint Registrar of the University, which is placed on record as Ext.R1(c) along with the counter affidavit filed by WA 204/2023 12 the University, there is no concrete evidence to establish that the appellant/petitioner had committed the malpractice during the examinations. We are compelled to take note that no students who took part in the examination was examined during the so called enquiry so as to establish the alleged malpractice, based on which the examination of the appellant was decided to be cancelled. The fact however remains undisputed that the appellant/petitioner was allowed to continue with the examination. Had the answer scripts been available now, it would have been possible for this Court to have issued appropriate directions to the University safeguarding the interest of both parties. The fact that the answer scripts were destroyed compels us to take a view that the University was not justified in approaching the whole issue against the petitioner. Furthermore, by order dated 20.3.2024, when we had already directed the University to take a holistic approach, especially when the answer scripts have been destroyed, it WA 204/2023 13 was incumbent upon the University to have taken a holistic view as observed by us. Instead of approaching the issue as required by us in the order read as above, the learned Standing Counsel for the University reiterated the stand of the University that the appellant/petitioner is not entitled to any reliefs sought for and the only manner in which the issue could be resolved is that the appellant/petitioner should necessarily appear for 1st and 2nd semester examinations afresh.
18. We are however constrained to take serious notice of the parochial approach of the University, that too, after causing destruction of the answer scripts when the writ petition was pending consideration. We, therefore, hold that that the University's action in causing destruction of the answer scripts was totally unwarranted and uncalled for. Having done so, necessarily the respondent University must be held responsible for consequences following out of it. WA 204/2023 14
19. In so far as the contention of the learned Standing Counsel for the respondent University that the memo issued to petitioner proposing to cancel the examination was not interdicted by this Court in the earlier writ petition, we feel that the said contention cannot be countenanced since by Ext.P14 interim order, this Court had directed the University to allow the petitioner to appear for 3rd and 4th Semester examinations. Later, by Ext.P16 judgment, a learned Single Judge of this Court directed the competent authority of the University, namely the Vice Chancellor, to take a decision on the explanation submitted by the petitioner within a period of six weeks and depending upon the outcome, the result of the petitioner was directed to be announced. It is thereafter that the impugned orders in the writ petitions were passed. Therefore, the stand of the University, that even the memo debarring the appellant/petitioner from appearing for the examinations was not interdicted by this Court in the earlier round of writ petition, cannot be appreciated at all. WA 204/2023 15
20. Yet another impelling circumstance, which we must note is that the University is not before us in an appeal against the judgment of the learned Single Judge. It is the petitioner, who is before us in an appeal and therefore, the University cannot be permitted to take a stand that the appellant/petitioner should appear for the examinations once more.
21. Having said so based on the compelling facts before us, we cannot be oblivious of the fact that the appellant's cause would be subjected to further exercise of discretion at the hands of the Registrar, especially since the decision to cancel the examination and the affirmation of the same by the Vice Chancellor, not being interdicted by the learned Single Judge. In view of the above, we are certain in our view that the direction of the learned Single Judge relegating the appellant/petitioner to agitate his cause before the Registrar of the University without setting aside the report of the enquiry and the consequential decision of WA 204/2023 16 the Syndicate to cancel the examinations was not proper and would not serve any purpose.
22. On the nature of finding on the reports qua the punishment imposed against the appellant, we find that even the learned Single Judge had found that punishment was highly improper. Therefore, any consequential directions to be issued by us would certainly depend upon our finding on the proportionality of the decision of the University to cancel the examination and debar the appellant from appearing for the examination.
23. It is indisputable that the appellant was allowed to appear for the 3rd and 4th semester examinations and had cleared the examinations followed by issuance of mark sheets. The appellant has come out successful in the said examinations. Taking note of the fact that the answer scripts of the 1st and 2nd semester examinations were destroyed by the respondent university, we find that the appellant is entitled to succeed. Resultantly, the writ appeal WA 204/2023 17 is allowed. Exts.P13, P18 and P19 are set aside. In view of the destruction of the answer scripts of the 1 st and 2nd semester examinations by the University without any authority of the law, we are of the view that the University should declare the results of the 1 st and 2nd semester examinations based on the result of the 3 rd and 4th semester examinations of the appellant/petitioner. Therefore, we direct the 2nd respondent to do the needful within a period of three weeks from the date of receipt of a copy of this judgment.
The writ appeal is ordered accordingly. No order as to costs.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE jg WA 204/2023 18 APPENDIX OF WA 204/2023 PETITIONER ANNEXURES Annexure-A1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE REGISTRAR OF THE UNIVERSITY DATED 16.07.2022.
Annexure-A2 TRUE COPY OF THE NOTICE FROM THE REGISTRAR OF THE UNIVERSITY TO THE PETITIONER DATED 11.08.2022.
Annexure A3 TTRUE COPY OF THE 3RD SEMESTER M.B.A
DEGREE EXAMINATION MARKLIST OF THE
APPELLANT
Annexure A4 TRUE COPY OF THE 4TH SEMESTER M.B.A
DEGREE EXAMINATION MARKLIST OF THE
APPELLANT