University Of Calicut vs Shine N.S
2021 Latest Caselaw 13868 Ker

W.A. No. 819/2021                   :1:

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                     &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

          TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943

                             WA NO. 819 OF 2021

    ORDER DATED 23.04.2021 IN WP(C) 2128/2020 OF HIGH COURT OF KERALA,

                                ERNAKULAM

APPELLANTS/RESPONDENT NOS. 1 & 2:

1           UNIVERSITY OF CALICUT, CALICUT UNIVERSITY, (P.O), THENJIPALAM,
            PIN - 673 635, REPRESENTED BY ITS REGISTRAR.

2           CONTROLLER OF EXAMINATIONS, CALICUT UNIVERSITY, CALICUT
            UNIVERSITY P.O., THENJIPALAM, PIN - 673 635.

            BY ADV SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY



RESPONDENTS/PETITIONER & RESPONDENT NO. 3:

1           SHINE N.S., S/O. SHYLA BEEVI N.,
            AGED 21 YEARS, SHAN MANZIL, KADAYIL VEEDU,
            RAVHUNANDHAPURAM, PALACHIRA P.O., VARKALA,
            THIRUVANANTHAPURAM DISTRICT.


2           FAROOK INSTITUTE OF MANAGEMENT STUDIES, KARAD ROAD,
            KOZHIKODE - 673 632, REPRESENTED BY ITS PRINCIPAL



            BY ADV B.SAINU




      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE

      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 819/2021                       :2:

                      Dated this the 6th day of July, 2021.
                                JUDGMENT

SHAJI P. CHALY, J.

This appeal is preferred by respondents 1 and 2 in the writ

petition challenging the interim order passed by the learned single

Judge in W.P.(C) No. 2128 of 2020 dated 23.04.2021, whereby the

following directions were issued:

" As per order dated 24.01.2020, this Court allowed the petitioner to appear for the examination. Now, the petitioner wants to know the result of his examinations. There can be a direction to publish the result of the petitioner subject to the final outcome of this writ petition. The interim order is only for the purpose of knowing the result of the petitioner.

Therefore, there will be a direction to the respondents to publish the result of the petitioner subject to the final orders to be passed in this writ petition. I make it clear that the above order is for the purpose of knowing the result of the petitioner for his future steps."

2. The writ petition was filed by the first respondent in the

appeal, who is pursuing his management studies in the second

respondent institution namely Farook Institute of Management Studies,

Kozhikode, apparently affiliated to the University of Calicut, the first

appellant herein.

3. The challenge in the writ petition is against Ext. P9 order

passed by the Registrar of University addressing the Principal of the

Farook Institute of Management Studies, Kozhikode dated 23.01.2020,

declining to condone the shortage of attendance of the writ petitioner,

being beyond the condonable limit and requesting the college to direct

the student to compensate the shortage of attendance of that

semester along with the next batch and appear for the University

examination of that semester.

4. The primary relief sought for in the writ petition is to quash

the said Ext. P9 order, and consequently sought for a direction to the

appellants/respondents 1 and 2 to allow the writ petitioner to appear

for the remaining examinations condoning the shortage of attendance

to the writ petitioner, since it has been sufficiently explained on valid

medical grounds and accordingly, the shortage will be within the

condonable limit.

5. The writ petitioner has sought for an interim relief seeking a

direction to the appellants to permit him to provisionally appear for the

remaining examinations as scheduled for third semester MBA course

and to direct the appellants to do whatever necessary for allowing him

to write remaining examinations, pending disposal of the writ petition.

6. Apparently, when the writ petition was admitted to the files,

an interim order was granted 24-01-2020 permitting the writ

petitioner to provisionally participate in the examination and

accordingly, the writ petitioner participated in the examination. It was,

thereafter, that the interim order impugned was passed by the learned

single Judge. It is, thus, challenging the legality and correctness of the

said interim order, this appeal is preferred.

7. It was predominantly contended by the learned counsel for

the appellants that the direction issued by the learned single Judge to

publish the result of an examination provisionally appeared by writ

petitioner is erroneous, faulty and unsustainable. It was also

contended that there was no separate petition filed by the writ

petitioner seeking to publish the results. However, the learned single

Judge has passed the interim order now impugned on the basis of an

oral submission made by the counsel for the writ petitioner. It was

further submitted that the University cannot publish the results of a

candidate, who is ineligible to appear for the examination.

8. That apart, it was contended that the completion of the

course with necessary classroom study is a mandatory pre-condition

for appearing in the examination and in the case at hand, the

candidate is not having the minimum attendance required so as to

enable him to appear for the examination.

9. A specific contention is also raised in the appeal that

minimum attendance required for the examination is 75% of the

number of classes actually held for each course and the writ petitioner

has attended only 49 days out of 90 working days and therefore, he

has only 54% attendance. Therefore, it is contended that there is a

shortage of 18.5 days of attendance, which comes to 21%. Other

contentions are also raised.

10. We have heard the learned counsel for the appellants Sri.

P.C Sasidharan and the learned counsel appearing for the first

respondent Sri. Sainu B, and perused the pleadings and materials on

record.

11. The short question that emerges for consideration is

whether any interference is required to the impugned interim order

passed by the learned single Judge. From the record of proceedings, it

is clear that the primary relief sought for is to quash Ext. P9 order

passed by the University declining to condone the shortage of

attendance of the writ petitioner for the reason that the shortage of

attendance is beyond the condonable limits. The consequential prayer

sought for is to sit for the remaining examinations.

12. As we have pointed out above, the sole interim relief sought

for in the writ petition was to permit the writ petitioner to sit for the

remaining examinations and that interim order was granted by the

learned single Judge and accordingly, the writ petitioner participated in

the examinations.

13. The learned counsel for the Calicut University addressed

arguments on the basis of the submissions recorded above. The

learned counsel for the writ petitioner submitted that even though the

writ petition was filed in the year 2020, it was being protracted by the

University for the reasons best known to them. That apart, it was

submitted that having permitted the writ petitioner to participate in

the examination, no manner of prejudice is caused, if the result of the

examination is directed to be published. It was further contended that

even though a counter affidavit of the appellants/ respondents 1 and 2

is produced along with the appeal memorandum, it was not actually

filed before court and the writ petitioner is not served with a copy of

the same and that is done by the appellants only to mislead this Court.

14. We have evaluated the rival submissions made across the

Bar. As we have stated above, there was no petition filed by the writ

petitioner seeking to publish the result and the only interim relief

sought for in the writ petition was for participation in the examination.

Moreover, the primary question sought to be adjudicated before the

writ court is as to whether Ext. P9 order passed by the University

declining condonation of attendance was correct. In our considered

view, without first adjudicating that issue either at the interlocutory

stage, or final stage, the writ petitioner was not entitled to seek for a

relief of publishing the results, since such a relief, if granted, would

attain the characteristics of a final determination.

15. In fact, the interest of the writ petitioner was substantially

and materially protected, when he was permitted to participate in the

examination. If ultimately the order passed by the University which is

impugned in the writ petition is found to be illegal, the writ court may

interfere with the same and pass necessary orders. However, a mere

direction for participation in the examination will not enable the writ

petitioner to get results published, since the writ petitioner is entitled

to get the results published only if the order passed by the University

is found to be illegal or arbitrary, since the order impugned in the writ

petition is the sole circumstance that has created fetter to the

petitioner to participate in the examination.

16. In our considered opinion, without adjudging the primary

issue of illegality of Ext. P9 order passed by the University, if further

orders are granted, the writ petition would virtually become

inconsequential. It is also well settled in law that no interim orders can

be passed surpassing the interim relief sought, and having the effect

of granting the final relief. In that view of the matter, we are of the

firm opinion that the impugned order requires interference.

Accordingly, we set aside the interim order passed by the learned

single Judge dated 23.04.2021 impugned in the appeal. However, the

learned counsel for the writ petitioner submitted that unless the writ

petition is heard on an early basis, it would cause serious prejudice to

the writ petitioner. Having regard to the said submission, it is open for

the writ petitioner to seek an early hearing of the matter before the

learned single Judge pointing out the urgency in the matter.

17. We also make it clear that whatever observations and

findings contained above were made by us only to arrive at the right

conclusions and the same would not have any bearing to adjudicate

the writ petition on its own merits.

This appeal is allowed as above.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv