Shiroz Khan vs Kerala University Of Health ...
2021 Latest Caselaw 5196 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                       WP(C).No.28827 OF 2020(C)


PETITIONER:

               SHIROZ KHAN
               AGED 23 YEARS
               S/O. ADV. ABDULLA SHAFFI, RESIDING AT NGO QUARTERS,
               F5, NEAR COLLECTORATE, KOLLAM 691 013 AND MBBS
               STUDENT (2017 ADDITIONAL BATCH) AT AZEEZIA INSTITUTE
               OF MEDICAL SCIENCES AND RESEARCH, KOLLAM

               BY ADVS.
               SRI.NEBIL NIZAR
               SHRI.AJAY JAYACHANDRAN

RESPONDENTS:

      1        KERALA UNIVERSITY OF HEALTH SCIENCES
               MEDICAL COLLEGE P.O, THRISSUR DISTRICT.
               KERALA 680596, REPRESENTED BY THE REGISTRAR

      2        THE CHAIRMAN,
               BOARD FOR ADJUDICATION OF STUDENT'S GRIEVANCES,
               KERALA UNIVERSITY OF HEALTH SCIENCES,
               MEDICAL COLLEGE P.O, THRISSUR DISTRICT,
               KERALA 680 596

      3        AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH,
               DIAMOND HILL, MEEYANNOOR P.O, KOLLAM 691 537
               REPRESENTED BY ITS PRINCIPAL

               R1-2 BY SRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
               HEALTH SCIENCES
               R3 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.)
               R3 BY ADV. SRI.TONY GEORGE KANNANTHANAM

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28827 OF 2020

                                         2


                                    JUDGMENT

Dated this the 12th day of February 2021

This writ petition is filed seeking the following reliefs :-

"1) Issue a Writ of Mandamus commanding the 1 st Respondent to permit the Petitioner to apply for and sit for university examinations for Second Professional MBBS Degree January 2021 (2010 Scheme).

2) Declare that the Petitioner could not attend the classes due to suspension from the college and therefore the same needs to be condoned.

3) Declare that the Exhibit P-4 order was issued in violation of the Principles of Natural justice and therefore the same is unsustainable and is liable to be quashed.

4) Issue a Writ of Mandamus to 3 rd Respondent to allow the Petitioner to attend Online/physical classes of 2017 Additional Batch MBBS course and permit the Petitioner to attend the course work and mark his class attendance."

2. Heard the learned counsel for the petitioner quite in extenso.

Heard the senior counsel appearing for the Management as well as the

standing counsel appearing for the University.

3. The following are admitted facts. The petitioner had been

admitted in the 2017-2022 batch of MBBS in the 3 rd respondent

institution. He was placed under suspension on 04.02.2020, pending WP(C).No.28827 OF 2020

enquiry into certain allegations of misconduct on his part. Thereafter,

by Ext.P1, he was inflicted the punishment of suspension for a period

of 12 months from 04.03.2020. The petitioner had challenged the

imposition of the punishment of suspension by filing W.P.(C).

No.10286/2020. By Ext.P2 judgment, this Court had directed that the

suspension of the petitioner shall be limited to 9 months from

04.03.2020 and that he will be permitted to attend online or physical

classes from 04.12.2020.

4. It is submitted by the learned counsel for the petitioner that the

petitioner was not permitted to resume classes with his batchmates

and by Ext.P4, he was required to rejoin the course along with his

junior batch. It is further submitted that a request made to the 3 rd

respondent for attendance details was also not given to the petitioner

and he is not being permitted to appear for the examinations of 2 nd

year MBBS.

5. A detailed statement and additional statement has been placed

on record by the 3rd respondent. It is specifically stated therein that

the petitioner had been admitted in the 2017 batch, the classes of WP(C).No.28827 OF 2020

which started in September of that year and the 1 st year examinations

were conducted in October 2018. It is stated that the petitioner did not

appear for the regular examinations for want of attendance and

therefore he made the attendance shortage and appeared for the

supplementary examinations in April, 2019. It is stated that the 2 nd

year MBBS course consists of 3 semesters. Before completing the 2 nd

semester of the 2nd year MBBS, the petitioner was suspended pending

enquiry on 04.02.2020. Thereafter, Ext.P1 order was passed suspending

him for a period of one year from 04.03.2020. By Ext.P2 judgment, this

Court reduced the penalty to 9 months of suspension and the

petitioner was enabled to rejoin on 04.12.2020. It is stated that the 2 nd

year classes of petitioner's batch were over in October, 2020. However,

the University could not conduct the examinations in time due to

Covid-19 and the lock down. It is stated that since the petitioner was

admittedly under suspension for the period from 04.02.2020 to

04.12.2020, there was no purpose for issuing the attendance details to

him since admittedly, he would not have the attendance required to

sit for the examinations along with his batchmates. It is stated that the

petitioner would therefore have to attend classes of the 2 nd year MBBS WP(C).No.28827 OF 2020

along with his junior batch and that any treatment of the period of

suspension undergone by the petitioner as attendance is absolutely

beyond the competence of either the 3rd respondent or the University.

6. The learned standing counsel for the University would also

submit that since the 2nd year MBBS examination has a duration of 3

semesters and since the petitioner was admittedly under suspension

for 10 months of the entire period, the petitioner would be ineligible

to either continue with his batchmates in the 2nd year MBBS or to

write the examinations along with his batchmates.

7. I have considered the contentions advanced. The contention of

the petitioner, in short, is that the period of suspension undergone by

him should be ignored and he should be reckoned as having attended

classes during the entire 10 months period. It is only if such a course is

adopted that the petitioner would be eligible to write the examination

along with his batchmates. The factum of his suspension from

04.02.2020 to 04.12.2020 cannot be wished away either by the

petitioner himself or by the respondents or by this Court.

In the above view of the matter, the prayers raised in this writ WP(C).No.28827 OF 2020

petition cannot be granted. The petitioner obviously have to repeat

his 2nd year MBBS course and attempt the examinations with his junior

batch. The writ petition therefore fails and the same is, accordingly,

dismissed.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C).No.28827 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 COPY OF THE SUSPENSION LETTER DATED 04-03-

EXHIBIT P2 COPY OF THE HIGH COURT JUDGMENT IN WP(C) NO. 10286/2020 AND DATED 26-11-2020

EXHIBIT P3 COPY OF THE ORDER OF PRINCIPAL OF AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH, KOLLAM 03-12-2020

EXHIBIT P4 COPY OF THE ORDER OF PRINCIPAL OF AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH, KOLLAM DATED 07-12-2020

EXHIBIT P5 COPY OF THE SCREENSHOT DATED 09-12-2020 OF THE WHATSAPP GROUP FOR 2017 MBBS ADDITIONAL BATCH RUN BY AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH, KOLLAM

EXHIBIT P6 COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 08- 12-2020

EXHIBIT P7 COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT DATED 11- 12-2020

EXHIBIT P8 COPY OF THE EXAM NOTIFICATION DATED 16-12-

2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE NOTICE NO.AIMS/895/2020 DATED 21.12.2020 ISSUED BY THE 3RD RESPONDENT

RESPONDENT'S/S EXHIBITS: NIL