Elizabeth T.Rani vs The Secretary To Government
2021 Latest Caselaw 13208 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
                          TH
       THURSDAY, THE 24        DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                           WP(C) NO. 77 OF 2020
PETITIONER:

         ELIZABETH T.RANI
         AGED 39 YEARS
         D/O.THOMASKUTTY, 1ST YEAR POST BASIC BSC
         NURSING STUDENT, GOVERNMENT COLLEGE OF NURSING,
         THIRUVANANTHAPURAM, RESIDING AT VADAKKUTTU
         HOUSE,THALAVADY SOUTH, ALAPPUZHA, PIN-689572.

         BY ADVS.
         K.S.BHARATHAN
         SRI.ABEL ANTONY
         SMT.C.J.LIZY
         SRI.CHRISTINE MATHEW



RESPONDENT/S:

   1     THE SECRETARY TO GOVERNMENT,
         DEPARTMENT OF MEDICAL EDUCATION, SECRETARIAT,
         THIRUVANANTHAPURAM, PIN-691001.

   2     THE VICE CHANCELLOR,
         KERALA UNIVERSITY OF HEALTH SCIENCES, THRISSUR,
         PIN-680596.

   3     THE CONTROLLER OF EXAMINATIONS,
         KERALA UNIVERSITY OF HEALTH SCIENCES,THRISSUR,
         PIN-680596.

   4     THE CHIEF COMMISSIONER FOR PERSONS WITH
         DISABILITIES,
         MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT,
         GOVERNMENT OF INDIA, SHASTRI BHAVAN, C WING, DR
         RAJENDRA PRASAD ROAD, NEW DELHI-110011.

   5     THE PRINCIPAL,
         GOVERNMENT COLLEGE OF NURSING, MEDICAL
         COLLEGE.P.O., THIRUVANANTHAPURAM, PIN-695011.
 WP(C) NO. 77 OF 2020

                           -2-




   6     THE KERALA UNIVERSITY OF HEALTH SCIENCES,
         REPRESENTED BY ITS REGISTRAR, KERALA UNIVERSITY
         OF HEALTH SCIENCES, THRISSUR, PIN-680596.

        BY ADVS.
        SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
        HEALTH SCIENCES
        SRI.HARIDAS P.NAIR, CGC



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 77 OF 2020

                                   -3-


                             JUDGMENT

Petitioner is handicapped and falls within the

category of Rights of Persons with Disabilities Act, 2016

as per the Disability Assessment Certificate Ext.P3. The

certificate reveals that she is suffering from a

temporoperieto occipital AV malfunction and her

disability has been assessed to the extent of 40%.

2. It is appreciated that a person suffering from

such disability had come forward to undertake the

education and with that background in mind sought

admission in Govt. College of Nursing under 5 th

respondent in the year 2017 i.e., Post Basic B.Sc.

Nursing Course under Disability reservation. The

aforementioned course is of two years but required to be

completed within a period of four years. Petitioner sat

in the examination for the first year, Post Basic B.Sc.

Nursing held in October, 2018. Though she requested

the authorities to provide 20 minutes extra per hour in

the examination of three hours ie., total 60 minutes and WP(C) NO. 77 OF 2020

also assistance of a scribe, but was allowed extra 30

minutes only, without the assistance of scribe, the result

thereof, she failed in five subjects as per the result

declared in the month of January, 2019. It is not the end

of the matter as the person can always improve by

sitting the supplementary examination in order to be

eligible for admission in the second year. Since the

petitioner had failed almost in five subjects she could

not seek admission in the second year. Vide Ext.P7

dated 05.03.2019 an application was submitted by the

petitioner for providing moderation as she could not

complete the examination in the time slot awarded

owing to her handicap. The University in view of the

provisions of the Examination Manual, vide

communication dated 06.03.2019, rejected the

application for moderation.

3. Learned counsel appearing on behalf of the

petitioner submitted that the rejection Ext.P8 was

against the provisions of Chapter XIII of the WP(C) NO. 77 OF 2020

Examination Manual as the University did not provide

extra time and strictly adhered to the Manual as there is

no provision of moderation or examination. The next

supplementary examination was to be held in August,

2020 but owing to the Covid pandemic, University did

not hold and now it is scheduled for August, 2021. But

the problem which the petitioner would face is that she

had to complete two years course in a period of four

years which will expire in this year as she could not get

the admission in the 2nd year and thus prays that

University may be directed to consider extension of time

for the completion of the course owing to the exigencies

and the circumstances narrated above.

4. On the contrary, Mrs.Helen, learned counsel

appearing on behalf of the respondents supported the

impugned decision Ext.P8 on the premise that there is

no provision for moderation on examination. Petitioner

could have availed the supplementary examination in

August, 2020, as she had registered but not availed the WP(C) NO. 77 OF 2020

chance. It was also submitted that she was granted 30

minutes extra but not granted the provision of the scribe

as sought for. She further submitted that University is

not averse in permitting the petitioner to sit in

supplementary examination scheduled to be held in the

month of August, 2021.

5. I have heard learned counsel for the parties and

appraised the paper books.

6. The facts as noticed above are not in dispute.

The only point to be determined by this Court is whether

University adhered to the provisions of the Examination

Manual whereby there is a provision of providing an

extra 60 minutes to the person suffering from

permanent disability as referred above, i.e., 60 minutes

in all for the examinations of three years and the

assistance of a scribe. Chapter XIII of the Examination

Manual, 'Concessions to Physically Disabled Candidates'

reads as under:-

WP(C) NO. 77 OF 2020

Concessions to Physically Disabled Candidates

1. Candidates who come under provisions of Persons with Disabilities Act 1995 are eligible for compensatory time for writing the examination. Until revised, the compensatory time permissible shall be 20 minutes for each hour of examination.

2. A candidate with 40% disability, if recommended by the competent Medical Board can be allowed by the University to write the examination with the aid of a scribe.

3. The application in white paper for permission for compensatory time and for the assistance of a scribe should be forwarded to the CE through the Principal/Head of Institution. The application shall normally be filed 30 days before the commencement of the examination along with the certificate of disability and recommendation issued by competent Medical Board. Such application shall be accompanied by details of the proposed scribe duly recommended by the HOI/Principal of the institution concerned. The scribe shall not be a student for the same or higher course or one possessing qualification similar to or higher than the course in which the applicant is a student.

4. The authority to grant compensatory time/assistance of scribe is the Vice Chancellor.

7. Ext.P8 rejecting the request of the petitioner

requires to be extracted. The same reads thus: WP(C) NO. 77 OF 2020

"KERALA UNIVERSITY OF HEALTH SCIENCES

Abstract

KUHS- Board of Adjudication of Students Grievances - Elizabeth T.Rani, Govt. College of Nursing, Thiruvananthapuram - Implementation of GC Decision Orders issued ________________________________________________________ Office of the Dean - Student Affairs

U.O.No.78/2019 Dean SA Thrissur, Dated:06.03.2019 ________________________________________________________

Read: 1 Complaint of Elizabeth T.Rani, Govt. College of Nursing, Thiruvananthapuram,

2.Minutes of Board of Adjudication of Students Grievance held on 20.02.2019.

st

3.Dec.No.51.49 of 51 Meeting of Governing Council held on 01.03.2019 .

4.Order of Hon'ble Vice Chancellor dt.05/03/2019

ORDER Elizabeth T.Rani, Govt College of Nursing, Thiruvananthapuram with Reg. No.170070195 failed in the subjects Microbiology, Pychology, Maternal Health Nursing, Child Health Nursing and Advanced Medical & Surgical Nursing in the first year post Basic B.Sc Nursing Degree regular examinations (2017 Admission) conducted in October 2018. She got admission through PWD reservation. She stated that due to surgery of head, she was suffering from more than 40% eye disability during post Basic B.Sc Nursing course (2017-18) Sanction was accorded by the University with an additional time of 30 minutes for writing the first year post Basic B.Sc Nursing Degree regular examinations (2017 Admission) conducted in October 2018. She requested to conduct revaluation of the failed papers in the first year post Basic B.Sc Nursing Degree regular examinations (2017 Admission) conducted in October 2018. Accordingly, vide paper read (2) the Board of Adjudication has considered the case:

The Board of Adjudication of Students Grievances considered his issue in detail. University permitted her to write the first year post Basic B.Sc Nursing Degree regular examination (2017 Admission) conducted in October 2018 with an additional time of 30 minutes. But she failed in the subjects Microbiology, Psychology, Maternal Health Nursing, Child Health Nursing and Advanced Medical & Surgical Nursing in the first year post Basic B.Sc Nursing Degree regular examinations (2017 Admission) conducted in October 2018. She has WP(C) NO. 77 OF 2020

not raised any doubt regarding valuation. Since University is conducting two evaluations and taking the average, there is no provision for revaluation. Since she failed in more than one subject she is not eligible for grace marks as per University regulations. In the circumstances, the Board recommended that as per the existing norms of the University, the request of the candidate cannot be favourably considered.

As per paper read as (3) the above Minutes of Board of Adjudication st of Students Grievance was approved by 51 Governing Council held on 01.03.2019.

Sanction has, therefore, been accorded by the Hon'ble Vice Chancellor st vide paper read as (4) above to implement the above decision of 51 Governing Council held on 01.03.2019. Ordered are issued accordingly.

Sd/-

Pro Vice Chancellor Registrar(i/c) To:Controller of Examinations Copy to: 1.Elizabeth T.Rani, Govt.College of Nursing, Thiruvananthapuram

2.Exam Section

3.SF/FC"

8. On perusal of the same the University, in my

view, did not adhere to the provisions of the

Examination Manual but limited the extra time only to

the extent of 30 minutes, whereas the petitioner was

entitled to extra 60 minutes and assistance of the scribe.

It is not in dispute that supplementary examination to be

held in August, 2020 could not be held and therefore the

petitioner could not avail though she had registered for

sitting in supplementary examinations in the month of

August, 2019 but was sanguine of the fact that her WP(C) NO. 77 OF 2020

application Ext.P7 for moderation would be accepted. Be

that as if may, since in the absence of any provision in

the examination manual for moderation on examination

petitioner was not properly advised to avail the

supplementary examination. But that cannot be an

impediment for her to sit in the second year examination

by availing chance of the supplementary examinations,

which owing to the Covid-19 pandemic could not be held

in the month of August, 2020. Since the respondents

have expressed no aversion in permitting the petitioner

to sit in supplementary examination scheduled for

August, 2021, this Court accept the request of the

petitioner by issuing direction to the respondents to

provide extra time of 60 minutes and the assistance of

scribe to the petitioner so that she can answer the

questions in the scheduled supplementary examinations.

The apprehension expressed during the course of the

arguments in not declaring the result of 2 nd year in case

the petitioner clears the supplementary examinations WP(C) NO. 77 OF 2020

owing to the non completion of the course within the

period of four years is justified. The University in the

attenuating circumstances as referred to above i.e.,

Covid-19 pandemic and the fact that the petitioner was

actually not provided the assistance of a scribe and

extra time as strictly as per the Examination Manual,

shall consider the request of the petitioner for

completion of the 2nd year course in case she passes the

1st year by availing the chance of supplementary beyond

the period of four years. This order will not be

considered as a precedent but shall be construed only to

the person concerned.

Writ petition is disposed of in the aforementioned

terms.

Sd/-

AMIT RAWAL JUDGE

vv WP(C) NO. 77 OF 2020

APPENDIX OF WP(C) 77/2020

PETITIONER ANNEXURE

EXHIBIT P1 TRUE COPY OF THE ALLOTMENT MEMO DATED 23RD OF AUGUST, 2017.

EXHIBIT P2 TRUE COPY OF THE CASE SUMMARY AND DISCHARGE RECORD ISSUED FROM SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM DATED 28.3.2001.

EXHIBIT P3 TRUE COPY OF THE STANDING DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 14.10.2016 ISSUED BY THE SUPERINTENDENT, TALUK HEAD QUARTERS HOSPITAL, THIRUVALLA.

EXHIBIT P4 TRUE COPY OF THE PRESCRIPTION ISSUED BY THE CONSULTANT RADIOLOGIST IN THE SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM DATED 27.2.2019.

EXHIBIT P5 TRUE COPY OF ORDER BEARING NO.13254/2018/A3/EX-NURS/KUHS DATED 25.7.2018.

EXHIBIT P6 TRUE COPY OF THE EXAMINATION RESULT OF THE PETITIONER DOWNLOADED FROM THE WEB SITE OF 6TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION BEFORE THE 2ND RESPONDENT, DATED 5.3.2019.

EXHIBIT P8 TRUE COPY OF THE ORDER BEARING NO.U.O.NO.78/2019/DEAN SA DATED 6.3.2019.

WP(C) NO. 77 OF 2020

EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 25.5.2019.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO RESPONDENTS 1, 2 AND 4 DATED 18.11.2019.