Safna K.M vs University Of Kerala
2021 Latest Caselaw 18484 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR. JUSTICE AMIT RAWAL
 WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                      WP(C) NO. 17883 OF 2021
PETITIONER:

          SAFNA K.M.
          AGED 24 YEARS
          W/O. MUZAMMIL NAZ, EVERGREEN, KUNNICODE P.O.,
          KUNNICODE, KOLLAM-691 508.

          BY ADVS.
          KALEESWARAM RAJ
          VARUN C.VIJAY
          THULASI K. RAJ



RESPONDENT/S:

    1     UNIVERSITY OF KERALA
          REPRESENTED BY ITS REGISTRAR, UNIVERSITY OF KERALA
          SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695
          034.

    2     REGISRAR
          THE UNIVERSITY OF KERALA, UNIVERSITY OF KERALA
          SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695
          034.

    3     CONTROLLER OF EXAMINATIONS
          THE UNIVERSITY OF KERALA, UNIVERSITY OF KERALA
          SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695
          034.

    4     PRINCIPAL
          SANATANA DHARMA COLLEGE, KANYAKUMARI - PANVEL ROAD,
          SANATHANAPURAM P.O., ALAPPUZHA-688 003.
 WP(C) NO. 17883 OF 2021
                                        -2-



      5       CHIEF SUPERINTENDENT
              SANATANA DHARMA COLLEGE, KANYAKUMARI - PANVEL
              ROAD, SANATHANAPURAM P.O., ALAPPUZHA-688 003.

      6       MAHATMA GANDHI UNIVERSITY
              REPRESENTED BY ITS REGISTRAR, ADMINISTRATIVE
              BLOCK, PRIYADARSINI HILLS POST, UNIVERSITY CAMPUS
              ROAD, ATHIRAMPUZHA-686 560.

      7       THE REGISTRAR
              MAHATMA GANDHI UNIVERSITY, ADMINISTRATIVE BLOCK,
              PRIYADARSINI HILLS POST, UNIVERSITY CAMPUS ROAD,
              ATHIRAMPUZHA-686 560.

      8       PRINCIPAL
              ST.GREGORIOS COLLEGE, ULAMON PO, KOTTARAKARA,
              KOLLAM-691 531.

              BY ADV SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF
              KERALA




       THIS      WRIT       PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION       ON        08.09.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 17883 OF 2021
                                     -3-



                               JUDGMENT

Petitioner, student of 2018 batch of M.Com course in

St.Gregorios College, Kottarakara, Kollam, had completed all

the semesters except the 2nd semester, as during that period

she was pregnant. She had already sat in the supplementary

examination held between 19.06.2020 to 29.06.2020 and

Sandhana Dharma College, Alappuzha was the examination

centre. The results were published on 07.07.2021 but

petitioner was declared as failed in End Semester Assessment.

Marks obtained in the subject 'E-business and Cyber Laws'

were shown as blank as evident from Ext.P2. After having

undertaken enquiry it was found that, certain bundles of the

answer sheets submitted by the college to the University have

been misplaced. The only apprehension expressed is that,

petitioner has to take a further step in improving her

educational profile by taking admission in the B.Ed course, as

the last date was 6th September, 2021, which has now been

extended to 16.9.2021. In an identical matter, where the

answer sheet submitted by the college were lost, this Court in WP(C) NO. 17883 OF 2021

the judgment dated 04.10.2007 rendered in W.P.(C)

No.9696/2007 by taking into consideration the bye-laws and

the guidelines of the University of Kerala, directed to grant

average marks considering the previous papers, though as per

the regulations of the University in case of non retrievability of

the answersheet, the candidate is permitted to sit in the

another examination without charging the fees.

2. Learned counsel for the University submits that a

concerted effort has been made to retrieve the answer sheets,

but despite that it has not been available and in anticipation

thereof a meeting of the Syndicate is scheduled in coming

week, but is not averse in issuing direction keeping in view

the fact that the petitioner has to undertake admission in B.Ed

course and the last date for submission of the admission form

is expiring on 16th September, 2021.

3. I have heard learned counsel for the parties and

appraised the paper book.

4. Clause 12(b) of the Revised Guidelines for

Revaluation of Answer books of University Examinations of WP(C) NO. 17883 OF 2021

Kerala University is extracted hereinbelow:-

"12 (b) In case, the answerbook is found to be irretrievable, the candidate will be given another opportunity to write the examination in the missing paper, in accordance with the same scheme and syllabus, without charging the Examination fee."

5. No doubt it reveals that the candidate in such

circumstances, is permitted to sit in the examination without

charging of the fees, but the said fact has not been

appreciated by this Court in the judgment in W.P.(C) No.

9696/2017. For the sake of brevity paragraphs 4, 5 and 6 of

the judgment reads thus:-

"4. From this it is evident that the University could not have been more negligent in the case of the petitioner. Paragraph 7 of the statement reveals that while carelessness has been accepted as one of the possibilities, without any basis it is concluded that the loss of answer scripts may be with the deliberate intention of helping the student. I asked the learned Standing Counsel for the University a specific question as to on what is the basis on which this conclusion has been arrived at and no satisfactory answer could be given. In these circumstances, I can only hold that the conclusion of the Committee which has been accepted by the University is nothing but perverse.

5. A reading of the statement further shows that it is on the aforesaid conclusion that the Committee did not accept the recommendation that average marks of the other written papers need not be given to the petitioner. I should also mention that the respondents are not disputing the case of the petitioner that this is a system of giving average marks in a situation like this. Since the basis on which the recommendation was not accepted is perverse, I WP(C) NO. 17883 OF 2021

should hold that the petitioner is entitled to be given average marks of the other papers for the lost paper also. Therefore, I direct the respondents that the petitioner shall be given the average marks of the other written papers, for the paper in Physics also. This, the respondent shall do as expeditiously as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.

6. At one stage of the hearing the learned counsel for the University suggested that a separate examination can be held for the petitioner. This was considered by me and I am of the view that this is an impractical suggestion. From the facts of the case it is evident that the petitioner had completed her course way back in 2002 and she had competed her course in 2004. She having settled down in her life and at this distance of time I do not think, it is fair to ask the petitioner to sit for the examination once again especially when all these have happened only on account of the fault and negligence on the part of the University."

6. Conceded position on record is that the petitioner

owing to medical condition could not undertake the 2 nd

semester at the scheduled time and after recovering from the

same, sat in the examination way back in June, 2020, but her

result as noticed above against a particular subject has been

shown as blank. Loss of the answer sheets have not been

denied by the University and in that background of the matter,

meeting has been scheduled for. This Court cannot remain as

a mute spectator as to whether the scheduled meeting would

culminate into some effective decision or not as by that time, WP(C) NO. 17883 OF 2021

the last date of submission of the application for B.Ed may

expire.

Thus, I dispose of the writ petition by issuing directions

to the Controller of Examinations of the University of Kerala to

ponder the task of awarding the average marks keeping in

view her record and result in the other examinations and

declare the result by 14th of September, 2021.

Sd/-

AMIT RAWAL JUDGE hmh WP(C) NO. 17883 OF 2021

APPENDIX OF WP(C) 17883/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ADMIT CARD OF THE PETITIONER.

Exhibit P2 TRUE COPY OF THE MARK LIST OF THE PETITIONER.

Exhibit P3 TRUE COPY OF THE STATEMENT AFFIXED TO THE CARDBOARD COVERING OR PRIMARY PACKET OF ANSWER BOOK OF THE PETITIONER SIGNED BY THE FIFTH RESPONDENT.

Exhibit P4 TRUE COPY OF THE E-MAIL SENT BY THE PETITIONER TO THE 3RD RESPONDENT.

Exhibit P5 TRUE COPY OF THE RESULT OF THE PETITIONER IN THE STATE ELIGIBILITY TEST CONDUCTED ON 10.1.2021.

Exhibit P6 TRUE COPY OF THE SCHEDULE OF THE ADMISSION PROGRAM TO B.ED THROUGH CAP ISSUED BY THE 6TH RESPONDENT UNIVERSITY.