Nihal Aboobacker vs The Director
2021 Latest Caselaw 3469 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                      WP(C).No.22349 OF 2020(P)


PETITIONERS:

      1        NIHAL ABOOBACKER
               AGED 17 YEARS
               S/O P.C.ABOOBACKER, REPRESENTED BY HIS NATURAL
               GUARDIAN MOTHER, SHARBINA P, W/O P.C.ABOOBACKER,
               MANAKUTH HOUSE, VALIYAPRAMBA, PULIKKAL, MALAPPURAM
               DISTRICT

      2        MITHUN A,
               S/O BABU A, ANDATHODATH HOUSE, MARAD, ARAKINAR,
               KOZHIKODE DISTRICT

               BY ADV. SRI.U.K.DEVIDAS

RESPONDENTS:

      1        THE DIRECTOR, NATIONAL INSTITUTE OF OPEN SCHOOLING
               A-24-25, INSTITUTIONAL AREA, SECTOR-62, NOIDA,
               UTHER PRADESH-201 309.

      2        THE REGIONAL DIRECTOR,
               REGIONAL OFFICE, NATIONAL INSTITUTE OF OPEN
               SCHOOLING, 6, KERALA STATE HOUSING BOARD BUILDING,
               PANAMBILLY NAGAR, ERNAKULAM-682 036.

      3        THE CO-ORDINATOR,
               KENDRIYA VIDYALAYA NO2, GOVINDAPURAM,
               KOZHIKODE-673 016.

      4        THE PRINCIPAL,
               KENDRIYA VIDYALAYA NO 2,
               GOVINDAPURAM, KOZHIKODE-673 016.

      5        THE DIRECTOR,
               BRILLIANCE ACADAMY, WAYANAD ROAD,
               ERANHIPALAM, EAST NADAKKAVE, KOZHIKODE-673 006.

               R1-2 BY ADV. SRI.T.K.VENUGOPALAN
               R3-4 BY ADV. SRI.K.I.MAYANKUTTY MATHER
               R3-4 BY ADV. SMT.UTHARA ASOKAN
 OTHER PRESENT:

             R1- SRI.DEVAN R, R2 & R3- SRI.VINEETH KOMALA
             CHANDRAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11-01-2021, THE COURT ON 1-02-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.22349/2020
                                         3


                         ANU SIVARAMAN, J.
                    = = = = = = = = = = = = = = =
                       W.P.(C).No.22349 of 2020
                   = = = = = = = = = = = = = = = =
                Dated this the 1st day of February, 2021
                                  JUDGMENT

1. The writ petition is filed with the following reliefs:-

"a) a writ of mandamus or any other appropriate writ, order or direction to the first and second respondents to consider Ext.P11 letter take appropriate decision forthwith after an opportunity of hearing to the petitioners.

b) a writ of mandamus or any other appropriate writ order or direction to the first and second respondent to issue pass certificate of Secondary and Senior secondary to the petitioners.

c) a writ of mandamus or any other appropriate writ order or direction to the first and second respondent to refund Rs.4,450/- to the first petitioner as evidenced by Ext.P12 receipt. "

2. Heard learned counsel for the petitioners as well as the

learned counsel appearing for the respondents.

3. The petitioners are studying in Secondary (10 class) and

Senior Secondary (Plus two) under the stream of National

Institute of Open Schooling (NIOS for short) respectively. The W.P.(C).No.22349/2020

first respondent had issued Ext.P3 notification and decided to

pass all the candidates studying in secondary and senior

secondary courses on the basis of submission of assignments

and projects due to the pandemic situation in the country.

Eventhough the petitioners submitted their assignments and

projects in the month of January 2020 itself, since the first and

second respondents did not award marks, 9 students failed.

The petitioners submitted several representations before

respondents 1 to 4. But they did not consider the grievances of

the petitioners. Hence, this writ petition.

4. A statement has been filed on behalf of respondents 3 and 4. It

is submitted that petitioners 1 and 2 had submitted their

assignments and project on 24.1.2020 and the same were

evaluated. The NIOS public examination notified for April-

May was postponed due to Covid 19 pandemic. It is stated in

paragraph 4 of the statement as follows:-

"4. In reply to paragraphs 7 and 8 of the Writ Petition, it is submitted that the marks of TMA was uploaded on the NIOS site by the Coordinator of the NIOS-KV No. 2, Calicut. But due to technical problem the marks of 26 students were not uploaded which was informed to dated the 2nd respondent - NIOS W.P.(C).No.22349/2020

Regional Office, Kochi telephonically and the hardcopy was sent through registered post [Registered Post No.RL895630173IN dated 17.3.2020] vide letter No.F.1765/KVK/2019-2020 /NIOS/892 dated 13.3.2020 (Ext.P8). Ext.P8 was also was forwarded by email on dated 13.3.2020 to [email protected]"

5. It is stated that Annexure R3(a) and R3(b) reminders had been

submitted on 9.6.2020 and 11.8.2020 by the 2 nd and 3rd

respondents before the 1st respondent pointing out that the

TMSA marks had been uploaded and that the same should be

considered. It is stated that after declaration of the results,

the petitioners submitted a representation dated 16.8.2020 to

the Coordinator, KV, which was forwarded to the Director of

Evaluation, NIOS vide Exhibit P9. It is stated that thereafter

Annexure R3(c) e.mail was also sent to the 1 st respondent. It

is contended that all that could be done by respondents 2 and

3 in the factual situation had been done.

6. A statement has been placed on record by the 1 st respondent

stating that the TMA was not uploaded as on 10 th July,2020

and that the result could not be processed due to that reason.

The TMA had been uploaded with a late fee and as such TMA W.P.(C).No.22349/2020

of the petitioners will be included in the result of March-April,

2020. The petitioners will have to reappear for the theory

examinations which have been notified by the NIOS.

7. Pursuant to an interim order dated 11.11.2020., a counter

affidavit has been placed on record by respondents 1 and 2. It

is stated that respondents 3 and 4 ought to have uploaded the

TMA on or before 31.3.2020. The students whose TMA had

not been uploaded by the study centres could have

approached the regional centres for rectification before the

results were declared. It is stated that the study centres were

given strict instructions to upload the TMA online only and

that no offline uploading requests shall be entertained.

Notifications dated 28.1.2020, 29.1.2020 and 6.3.2020 are

produced and marked as Exhibits R1(a) to R1(c) respectively.

It is stated at paragraphs 5 and 6 as follows:-

"5. The petitioners though admittedly submitted their TMA's on time to the 3rd and 4th respondents, the 3rd and 4th respondents failed to upload the marks of TMA's submitted by the petitioners in the online portal specified by the NIOS by 31st March, 2020, the last date of submission of the marks in TMA's awarded by the 3rd and 4th respondents. The petitioners also never W.P.(C).No.22349/2020

approached or submitted directly to the 2 nd respondent with in such prescribed period i.e. till 31 st March 2020 given for submission of TMA marks in case they were aware of non uploading of their marks by 3 rd and 4th respondents as provided in Exhibit R1(a) notification by NIOS. The petitioners ought to have approached the respondents 1 & 2 knowing the fully the failure of the respondent 3 & 4 to upload the TMA marks of the petitioners online as per the notification on status provided in their student portal regarding updation of TMA marks and the petitioners never choose to do so.

6. Exhibit P3 notification (Notification No.19/2020 dated 10 th July 2020) was issued as onetime measure to save and help the students who had registered for March/April 2020 examination which was canceled on the basis of their TMA marks. For this purpose 10th July 2020 (date of Exhibit P3 Notification) was taken as cutoff date for availing the benefit of Exhibit P3 notification. The petitioners were given ample time and opportunity till 10th July 2020 to correct any discrepancy in uploading TMA marks by study centres due to Covid-19 protocols or any governmental restrictions."

8. It is further submitted at paragraph 8 as follows:-

"8. The first petitioner again re-submitted his TMA directly to the 2nd respondent with late fee after the publication of results on 05/08/2020 pursuant to Exhibit P3 notification which was eventually evaluated and marks are awarded and his results on TMA are already uploaded against April 2020 examination. Both the petitioner's are now enrolled themselves for the January/February 2021 examination which is tentatively to be W.P.(C).No.22349/2020

conducted from January 14th onward and hence this writ petition has become infructuous. Exhibit P3 notification also provides that the students who are not satisfied with the results published based on Exhibit P3 notification can take up the ensuing examination and no prejudice caused to the petitioners."

9. Having considered the contentions advanced, I immediately

notice that the petitioners had admittedly completed their

projects and submitted them in time. The 3 rd and 4th

respondents had attempted the uploading of the TMA.

However, it appears that due to some technical problem, the

same could not be uploaded within the time provided.

However, it is also not in dispute that this aspect had been

brought to the notice of the 1st respondent by respondents 3

and 4 repeatedly by sending the hard copies of TMA as well as

by intimation through e-mail before the results were declared

as is clear from the documents produced by the respondents.

The stand of the respondents now is that the study centres had

been specifically instructed to upload the TMA only online and

that in the absence of the successful uploading of the TMA of

the petitioners by respondents 3 and 4, the benefit of Exhibit

P3 cannot be extended to the petitioners. W.P.(C).No.22349/2020

10.On an anxious consideration of the contentions advanced and

in view of the fact that the petitioners had undoubtedly

completed their projects and submitted them in time, I am of

the opinion that the refusal on the part of the 2 nd respondent

to take note of the TMA uploaded by respondents 3 and 4 and

to give the petitioners the benefit of Exhibit P3 was completely

unsustainable. The NIOS itself is admittedly a system of open

schooling which is contemplated to ease the academic burden

on students who are unable to complete with their peers in the

academic sphere due to various reasons. When a benefit had

been granted to the students on account of the pandemic and

an exemption from appearing in the theory examinations had

been granted and in view of the fact that the petitioners had

admittedly submitted their projects in time, the delay or short

fall on the part of respondents 3 and 4 to upload the TMA as

required cannot be pleaded by the 2nd respondent as a reason

to deny the benefit to the petitioners herein.

11.In the above view of the matter, I am of the opinion that the

prayers as sought for in the writ petition are liable to be

granted. There will, accordingly, be a direction to the W.P.(C).No.22349/2020

respondents to grant the petitioners the benefit of Exhibit P3

notification dated 10.7.2020. The 2 nd respondent shall

evaluate the performance of the petitioners on the basis of the

TMA uploaded by respondents 3 and 4, albeit belatedly. The

necessary shall be done within a period of two weeks from the

date of receipt of a copy of this judgment.

The writ petition is ordered accordingly.

sd/-

Anu Sivaraman, Judge

SJ/15/1/2021 W.P.(C).No.22349/2020

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE IDENTITY CARD OF THE FIRST PETITIONER ISSUED BY THE NATIONAL INSTITUTE OF OPEN SCHOOLING DATED NIL

EXHIBIT P1 (A) TRUE COPY OF THE IDENTITY CARD OF THE SECOND PETITIONER ISSUED BY THE NATIONAL INSTITUTE OF OPEN SCHOOLING DATED NIL

EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE REGISTER KEEPING IN THE OFFICE OF THE KENDRIYA VIDYALAYA DATED NIL

EXHIBIT P3 TRUE COPY OF THE NOTIFICATION NO 19/2020 DATED 10.7.2020

EXHIBIT P4 TRUE COPY OF MARKS CARD ISSUED BY THE FIRST PETITIONER DATED NIL

EXHIBIT P5 TRUE COPY OF MARKS CARD ISSUED BY THE FIRST RESPONDENT TO THE SECOND PETITIONER DATED NIL

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 17.8.2020 SUBMITTED BEFORE THE SECOND RESPONDENT BY THE FIRST PETITIONER

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BEFORE THE FIRST RESPONDENT

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 13.3.2020 ISSUED BY THE FOURTH RESPONDENT TO THE SECOND RESPONDENT

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 22.8.2020 FOURTH RESPONDENT TO SECOND RESPONDENT W.P.(C).No.22349/2020

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 24.9.2020 SUBMITTED BY THE FOURTH RESPONDENT TO THE SECOND RESPONDENT

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 24.9.2020 SENT TO THE SECOND RESPONDENT BY THE FOURTH RESPONDENT ALONG WITH EXT P10

EXHIBIT P12 TRUE COPY OF THE RECEIPT DATED 21.8.2020

RESPONDENTS' EXHIBITS ANNEXURE R3(A) TRUE COPY OF LETTER NO.F.1765/KV2 CLT/2019-

2020/NIOS/892 ISSUED BY 3RD/4TH RESPONDENT. ANNEXURE R3(B) TRUE COPY OF LETTER VIDE LETTER NO.F/NIOS/KV2 CLT/2020-2021 ISSUED BY THE 3RD/4TH A ANNEXURE R3(C) TRUE COPY OF THE EMAIL ISSUED BY THE 3RD/4TH RESPONDENT.

EXHIBIT R1(A) TRUE COPY OF THE NOTIFICATION BEARING NO.21-89/2019/NIOS/SSS/ADM DATED 28.1.2020 ISSUED BY THE NIOS EXHIBIT R1(B) TRUE COPY OF THE NOTIFICATION BEARING NO.F426-33/2017/NIOS/RC/SS/2422 DATED 29.01.2020 ISSUED BY THE NIOS EXHIBIT R1(C) TRUE COPY OF THE NOTIFICATION BEARING FNO.21-89/2019/NIOS/ADM DATED 6.03.2020 ISSUED BY THE NIOS

TRUE COPY

PS TO JUDGE