Ayyappadas S vs Kerala University Of Health ...
2021 Latest Caselaw 11048 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                      WP(C).No.8275 OF 2021(H)

PETITIONER:
              AYYAPPADAS S.
              AGED 25 YEARS
              S/O.SIVASANKARA PILLAI P.K., RESIDING AT PUNNAKKATTIL
              HOUSE, ASRAMAM ROAD, KALADY P.O., ERNAKULAM DT. PIN
              682 574
              REGISTER NO.140010030

              BY ADVS.
              SRI.B.S.SIVAJI
              SMT.DHANYA SREENIVASAN

RESPONDENTS:
       1     KERALA UNIVERSITY OF HEALTH SCIENCES
             MULANKUNNATHUKAVU, THRISSUR, PIN 680 596,
             REP.BY ITS REGISTRAR.

      2       THE GOVERNING COUNCIL
              KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE
              P.O., MULANKUNNATHUKAVU,
              THRISSUR DISTRICT PIN 680 596 REP.BY ITS CHAIRPERSON

      3       MALPRACTICES AND LAPSES ENQUIRY COMMITTEE
              KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE
              P.O., MULANKUNNATHUKAVU,
              THRISSUR DISTRICT PIN 680 596
              REP.BY ITS CHAIRMAN

      4       THE CONTROLLER OF EXAMINATIONS
              KERALA UNIVERSITY OF HEALTH
              SCIENCES,MULANKUNNATHUKAVU,
              THRISSUR DISTRICT PIN 680 596

      5       GOVERNMENT MEDICAL COLLEGE
              KANNUR, (FORMERLY KNOWN AS ACADEMY OF MEDICAL
              SCIENCES, PARIYARAM) MEDICAL COLLEGE P.O.,
              KANNUR DISTRICT, PIN 670 503

              R1-4 BY ADV. SHRI.P.SREEKUMAR

              SMT.NISHA BOSE-GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.8275 OF 2021(H)

                                        2




                                 JUDGMENT

Dated this the 7th day of April 2021

This writ petition is filed seeking the following reliefs:

i) To call for the records leading to Exhibit P2 and set aside the same by issuing a writ of certiorari, order or direction.

ii) To issue a writ of mandamus, order or direction directing the 1st respondent to publish the results of 3 rd MBBS Part-II Examinations October, 2020 Examination appeared by the petitioner.

2. Heard the learned counsel for the petitioner and the learned

Standing Counsel appearing for the respondents.

3. It is submitted that the petitioner was a student of the 5 th

respondent college for the MBBS course for the period 2015-20. A cell

phone was found in his possession while attending the third MBBS

Part II Examination in October 2020. The 3 rd respondent committee

had conducted an enquiry and submitted a recommendation as is

evident from Ext.P2 itself. The recommendation was to cancel the

particular examination of the third MBBS Part II Examination, October

2020 written by the candidate. However, without putting the

petitioner on notice and without accepting the recommendation of

the committee, the 2nd respondent has passed Ext.P2 order dated WP(C).No.8275 OF 2021(H)

03.03.2021 disqualifying the petitioner from appearing in the

University examination at the next chance that is the third MBBS Part

II, May 2021 and to cancel his appearance in the whole examination

that is the third year MBBS Part II Examination, October 2020 (all

subjects). It is submitted by the learned counsel for the petitioner that

he had only been found in possession of a mobile phone and there was

absolutely no allegation that he had used the mobile phone for any

illegal activities. It is submitted that this aspect had been considered

by the 3rd respondent while recommending the lesser penalty to the

petitioner which has not been considered by the 2 nd respondent while

passing Ext.P2 order.

4. The learned Standing Counsel, on instructions submits that

the regulations provided for the higher penalty alone and that is why

an order in the nature of Ext.P2 has been issued.

5. Having considered the contentions advanced on either side, I

find that the recommendation of the 3rd respondent was admittedly

only for cancellation of the particular examination. Before inflicting

the higher penalty of disqualifying the petitioner from appearing in

the University Examination at the next chance and cancelling his WP(C).No.8275 OF 2021(H)

appearance in the third year MBBS Part II Examination in all subjects,

apparently, the petitioner was not put on notice or heard. In the above

view of the matter, I am of the opinion that the issue requires a

reconsideration at the hands of the 2 nd respondent. This writ petition

is accordingly disposed of with the following directions:

Ext.P2 shall be treated as a show cause notice to the petitioner

with regard to the higher penalty imposed on him. The petitioner

shall be free to make a detailed representation in response to Ext.P2

within a week. The petitioner shall be heard by the Registrar of the

University and a report submitted before the Governing Council, who

shall consider the matter after considering the representation of the

petitioner and pass appropriate orders in the matter in the next

Governing Council and at any rate, within a period of six weeks from

the date of receipt of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C).No.8275 OF 2021(H)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REQUEST DATED 23/12/2020 SUBMITTED BEFORE THE CONTROLLER OF EXAMINATION OF 1ST RESPONDENT UNIVERSITY.

 EXHIBIT P2                TRUE COPY OF THE ORDER
                           U.O.NO.16/2021/EXAM GENERAL DATED
                           3/3/2021 ISSUED BY THE CONTROLLER OF
                           EXAMINATIONS OF 1ST RESPONDENT
                           UNIVERSITY.

 EXHIBIT P3                TRUE COPY OF THE RELEVANT PAGES OF
                           EXAMINATION MANUAL ISSUED BY THE 1ST
                           RESPONDENT UNIVERSITY.

 EXHIBIT P4                TRUE COPY OF THE REPRESENTATION DATED
                           7.3.2021 BEFORE THE VICE CHANCELLOR OF
                           THE 1ST RESPONDENT UNIVERSITY

 EXHIBIT P5                TRUE COPY OF THE PROCEEDINGS
                           NO.3109/2018/A1/EX GEN/KUHS DATED
                           23.3.2021