The Controller Of Examinations, ... vs Ashik Muhammed Ashraf Rawther
2021 Latest Caselaw 13338 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                 &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
       MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
                         WA NO. 796 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 4673/2021 OF HIGH COURT OF KERALA,
                             ERNAKULAM
APPELLANT/RESPONDENT:

          THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF KERALA
          THIRUVANANTHAPURAM-695 034.
          BY ADV SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA


RESPONDENT/PETITIONER:

          ASHIK MUHAMMED ASHRAF RAWTHER,
          AGED 29 YEARS
          S/O.ASHRAF, SREE NARAYANA GURU COLLEGE OF LEGAL
          STUDIES, KOLLAM, RESIDING AT SULEKHA MANZIL,
          ATHIKATTUKULANGARA P.O., NOORNADU, ALAPPUZHA-690 504.


          SRI.R.SUNIL KUMAR AND SMT.SALINI LAL FOR RESPONDENT.


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.796 OF 2021                           2




                                  JUDGMENT

SHAJI P.CHALY,J

Instant appeal is preferred by the respondent in W.P.(C) No.4673/2021,

challenging the judgment of the learned Single Judge dated 31.3.2021, by

which the learned Single Judge directed the appellant University to consider

Exhibit P4 representation of the petitioner in view of the observations contained

in the judgment by awarding the grace marks to the writ petitioner on the basis

of the order of the State Government bearing No.G.O.(MS)No.309/2011/H.Edn

dated 8.11.2011.

2. Basic material facts for the disposal of the appeal are as follows; the

writ petitioner was a student of 5 Year Integrated B.A.LL.B Course at Sree

Narayana Guru College of Legal Studies, Kollam. The course period was 2012-

2017. According to the writ petitioner, he was active in the National Service

Scheme (NSS) while pursuing his studies and he has served in the National

Service Scheme for two years and totally rendered a service of 240 hours,

which is evident from Exhibit P1 certificate issued by the authority concerned.

Case of the petitioner was that of those students, who participated and

provided service in the National Service Scheme, the University is providing 2%

grace marks for the B.A.LL.B examination, evident from various documents

produced by the petitioner. However, though petitioner has completed his

course in 2017, he did not pass in all the examinations and for a paper 50

marks is required out of 100 marks for a pass and out of 100 marks 20 marks

is for internal examination. Since the petitioner failed for the Environmental

Law paper, which is a 9th semester paper, he wrote the supplementary

examination in the year 2017. Since he failed in the same, he claimed 1%

grace marks in the year 2018 and the University has granted the marks

accordingly. The writ petitioner failed for the 7th semester Taxation Law paper

as well and he wrote supplementary examination in 2019 and secured 33

marks plus 10 marks for internal and there upon the request of the petitioner

was that he requires 1 mark more for getting moderation. Which thus means if

the petitioner gets 44 marks, then the University is bound to grant moderation

and so he can pass the examination. In the above backdrop, petitioner in 2019,

claimed for getting the balance 1% grace marks, for which he was eligible and

in order to get the benefit of the same, he has submitted Exhibit P4

representation, which was not considered by the University, which persuaded

the petitioner to approach the writ court by filing the writ petition in question.

3. The learned Single Judge after considering the issues and the

notification dated 8.11.2011 has found that petitioner is entitled to get 1%

grace mark since he has served the National Service Scheme and completed

240 hours of regular activities. It was taking into account the relevant

Government notifications that the directions were issued by the learned Single

Judge to the University to consider Exhibit P4 representation and award grace

mark as is sought for by the writ petitioner.

4. For convenience and brevity, the relevant portion of the judgment of

the learned Single Judge is extracted hereunder:

"4. I have heard the learned counsel for the parties and appraised the paper

book. The issuance of N.S.S certificate Ext.P1 has not been disputed. The

conditions for awarding the grace marks for N.S.S volunteer was mentioned vide

Government Order dated 8.11.2011, Ext.P5, which reads thus:

HIGHER EDUCATION (A) DEPARTMENT

G.O (MS) No. 309/2011/H.Edn. Dated,

Thiruvananthapuram: 08.11.2011

Read.1. G.O.(Ms)No. 43/2009/H.Edn dated: 27.05.2009.

2. G.O.(Ms)No.86/2011/H.Edn dated: 23.06.2011,

3. Letter No. SLC/107/11/NSS dated: 02.08.2011 from the State Liaison Officer, State Level NSS Cell.

ORDER

Government as per Government Order read 1 st above granted grace marks in +2/VHSE/Polytechnic/Engineering/ University Examinations to NSS Volunteers as detailed below:

NSS Volunteers who are having NSS certificates - 2%

NSS Volunteers who attended National Camps -3%

NSS Volunteers who attended Republic Day Camps -5%

2. Further as per Government Order read 2nd above, Government granted 6% grace marks in +2/VHSE/Polytechnic/Engineering /University WP(C).No.4673 OF 2021(H) 5 Examinations to NSS Volunteers nominated by State NSS Cell, Kerala and who participate in events at international levels.

3. The State Liaison Officer, State Level NSS Cell as per letter read 3rd above has brought to the attention of Government that some Universities and Directorates need more clarity in the matter of awarding grace marks to NSS Volunteers and has therefore, requested to issue a detailed Government Order incorporating the criteria and specific conditions that make an NSS Volunteer eligible to get grace marks.

4. Government have examined the matter in detail and are pleased to modify the Government Orders read 1 and 2 above as follows: Grace marks in +2/VHSE / Polytechnic/ Engineering / University Examinations will be granted to the NSS Volunteers as per the Government Orders read 1st and 2nd paper above by the Universities Directorates concerned subject to the conditions of eligibility and as per the percentage mentioned below:

1. NSS Volunteers having NSS Certificate - 2% grace marks The Volunteer should have completed 240 hours of Regular Activities and attended one Special Camp of seven days duration. The NSS Certificate should be issued by the University of Directorate and should be signed by the Vice Chancellor or Director and the NSS Programme Coordinator concerned.

2. NSS Volunteers who attended National Camps - 3% grace marks. The camps may be National Integration Camps, National Youth Festival, Mega Summer Camps, Adventure Camps, Pre RD Camps etc. and should be of at least five days duration.

3. NSS State Awardees and National Awardees - 3 % grace marks

4. NSS Volunteers who attended Republic Day Parade Camp - 5% grace marks. This Camp should be of a tleast one month duration.

5. NSS Volunteers nominated by State NSS Cell who have attended International Programmes - 6% grace marks.

6. An NSS Volunteer is eligible to claim grace marks only from anyone of the above five categories. WP(C).No.4673 OF 2021(H) 6

7. Universities or Directorates who conduct the examination are responsible for awarding grace marks to the NSS Volunteers

8. The grace marks should be awarded to the Volunteer only after completing two years of NSS activities.

9. The Volunteers should submit the application for grace marks well in advance as per the direction of the University/Directorate concerned.

5. The Government orders read 1 st and 2nd paper above stand modified to the above extent only. The aforementioned Government order has been accepted by the University of Kerala as per order dated 24.3.2012, Ext.P6. The same reads thus:

Granting weightage of marks to NSS certificate holders, volunteers who have attended National Camps and republic day camps - implementation of Government order - sanctioned - Orders issued.

Administration 'D.I' Section

No. Ad. DI. 1. 37.97. Grace marks: /09

Dated, Thiruvananthapuram, 21. 03. 20

Read 1.U.O of oven No: dated 19.09.2009

2.G. 0 No: (MS) No: 309/2011/H. Edn. tvpm dated 08. 11. 2011

3.Minutes of the meeting of the standing committee of the Syndicate on Students Services. (item no:2)

4. Minutes of the meeting of the Syndicate (item no: 7.85)

ORDER

As per paper read as (1) above, U .0 pertaining to award of grace marks to NSS certificate holders, volunteers who have attended National camps and republic day camps have been issued.

Vide G.O read as paper (2) above the Government of Kerala has issued modified orders for awarding gracemarks to NSS certificate holders, volunteers who have attended National camps and republic day camps.

The matter regarding implementation of the said G.O was considered by the standing committee of the Syndicate on Students Services, which vide paper read as (3) above recommended to implement the modified G.0. in the University, The Syndicate vide paper read as (1) above resolved to approve the above.

Sanction has been accorded by the Vice-Chancellor to implement the conditions stipulated in G.O MS no: 309/2011 B. Edn Term dated

08. 11. 2011.

The G. O read as paper (2) is appended.

In the absence of any material on record to rebut the aforementioned documents, I am of the view that the petitioner being a N.S.S volunteer having rendered 240 hours of service is entitled and eligible for awarding of the grace marks. Accordingly, the University is directed to consider representation of the petitioner Ext.P4 in view of the observation herein above by awarding the grace marks. Let this exercise be undertaken within a period of one month from the date of receipt of a certified copy of this judgment."

It is thus challenging the legality and correctness of the findings, the writ

appeal is preferred by the University.

5. Heard the learned counsel appearing on either side and perused the

pleadings and materials on record.

6.The paramount contention advanced by the University is that the

learned Single Judge has not considered the crucial aspect of non- entitlement

of grace marks of the petitioner since the candidate has not claimed grace

marks within one year, highlighted by the appellant University and therefore,

the judgment rendered by the learned Single Judge is bad. The University has

produced along with the writ appeal Annexure 1 order issued by the University

dated 5.9.2011 to buttress the said contention and invited our attention to the

conditions prescribed thereunder in the matter of award of grace marks to NSS

certificate holders and volunteers, who have attended National camps and

republic day camps. Clauses 4 to 9 were pointed out by the University, which

are as follows:

"4. Grace marks shall be awarded to the candidate on the basis of his/her performance in the respective academic year. The student shall claim the Grace Marks within one year after the end of the academic year (Eg. The claim for 2006-07 shall be made before 31st May 2008.)

5. Only regular bonafide students shall be eligible for Grace Marks.

6. Grace Marks shall be awarded for one additional chance including improvement/betterment and also to papers of the supplementary examinations in the next immediate chance only. This includes readmitted candidates also. (Grace Marks shall be awarded to eligible candidates at the supplementary Grace Marks to the supplementary examinations it shall be given only to the papers of the performing year of the candidate and at the same percentage applicable

there to in the performing year.

7. Grace Marks shall be given for the written examinations. But if the marks of a candidate are below the required minimum for a pass in internal/viva/practicals, Grace Marks can be redistributed to these to get only a pass.

8. The grace Marks shall be distributed to NSS certificate holders/Volunteers who have attended national Camps/Republic day camps in a manner most advantageous to the candidate.

/9. Grace Marks awarded can be redistributed enabling the candidate to get a pass in the examination in a part(s)/Paper(s) among the whole range examinations. "

7. The basic contention advanced by the learned Standing Counsel for

appellant is that since a clear cut method is prescribed under Annexure 1 order

dated 5.9.2011, the University is duty bound to follow the same and going by

the extracted provisions, it is clear that the writ petitioner was entitled to get

grace marks only on the succeeding year to the year the petitioner participated

in the National Service Scheme Programme enabling the writ petitioner to

secure the grace marks. However, learned counsel appearing for the writ

petitioner invited our attention to Exhibit P6 order of the University of Kerala

dated 24.3.2012, wherein it is clearly stated that sanction has been accorded

by the Vice Chancellor of the University to implement the conditions stipulated

in G.O.(MS) No.309/2011/H.Edn. dated 8.11.2011 relied upon by the learned

Single Judge in order to arrive at the conclusions and it was accordingly that

directions were issued.

8. On appreciation of the rival submissions, we are of the considered

opinion that the issue lies in a very narrow compass, i.e., whether to accept

Annexure 1 notification produced by the University in appeal or the notification

relied upon by the learned Single Judge. If the notification relied upon by the

University is accepted for the purpose, no doubt, petitioner is not entitled to

get the grace marks as claimed, since it was not claimed within one year and

has also not complied with the other material conditions of the notification

extracted above. Converging so, we proceed to sort out the issue. University

has issued a specific order dated 5.9.2011 produced as Annexure 1 along with

the writ appeal prescribing the manner in which the grace mark is to be

awarded to a certificate holder of NSS. However it is clear from Exhibit P6

order of the University dated 24. 03. 2012, that the University has adopted the

latter Government Order dated 8.11.2011 in the matter of award of grace

marks. In our view since the University itself has adopted the later Government

Order in awarding the grace marks, it cannot fall back to its order dated

5.9.2011 so as to cause disadvantage to the student. To put it better, grace

marks are awarded to such students not only for recognizing them for

achieving the honour but also for compensating them for detaching from the

educational pursuits for the purpose of practice and training, and participation

in various ceremonial functions ultimately leading to securing the certificate.

In the Government Order dated 8.11.2011, there is no embargo created in the

matter of award of grace marks to the eligible student in a later year other

than an year in which the student has participated in the NSS programme.

That apart the other conditions contained in Annexure 1 order of the University

is totally absent in the Government order relied upon by the learned Single

Judge , inuring to the complete advantage of the petitioner.

9. Taking into account the above aspects, we do not find any force in the

contentions advanced by learned Standing Counsel for the appellant University

relying upon the order of the University dated 5.9.2011 especially due to the

fact that since the University has adopted the latter Government Notification

dated 8.11.2011, the University cannot turn around and contend that it has to

still rely upon the order dated 5.9.2011 in the matter of awarding grace marks

to the NSS certificate holder, which in our view is a fallacious argument .

Taking into account the legal and factual circumstances deliberated above

we have no hesitation to hold that the appellant has not made out any case for

interference with the judgment of the learned Single Judge in an intra court

appeal filed under section 5 of Kerala High Court Act, 1958, there being no

jurisdictional error or other legal infirmities. Needless to say, writ appeal fails,

accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                  SHAJI P.CHALY

smv                                                   JUDGE