Akash Premachandran vs National Institute Of Open ...
2022 Latest Caselaw 4490 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 13TH DAY OF APRIL 2022/23RD CHAITHRA, 1944
                WP(C) NO. 26996 OF 2021
PETITIONER:

         AKASH PREMACHANDRAN
         AGED 19 YEARS
         S/O. PREMACHANDRAN, RESIDING AT THEKKINIYATH
         HOUSE, THANNIYAM, THRISSUR DISTRICT,
         KERALA-680 565.

         BY ADVS.
         SAMEER M NAIR
         T.S.SARATH
         M.KIRANLAL
         MANU RAMACHANDRAN
         R.RAJESH (VARKALA)


RESPONDENTS:

    1    NATIONAL INSTITUTE OF OPEN SCHOOLING
         REPRESENTED BY ITS CHAIRMAN, SITUATED AT A-
         24/25, INSTITUTIONAL AREA, SECTION-62, NOIDA
         DISTT. GAUTAM BUDH NAGAR,
         UTTAR PRADESH-201 309.

    2    REGIONAL DIRECTOR KOCHI
         NATIONAL INSTITUTE OF OPEN SCHOOLING, SITUATED
         AT 6TH FLOOR, KERALA STATE HOUSING BOARD
         BUILDING, ERNAKULAM, KERALA-682 036.

    3    HOLY GRACE ACADEMY
         REPRESENTED BY PRINCIPAL, SITUATED AT HOLY
         GRACE NAGAR, KURUVILASERY,
         P.O. VALIYAPARAMBU-680 732.

    4    UNIVERSITY OF CALICUT
         REPRESENTED BY REGISTRAR, SITUATED AT CALICUT
         UNIVERSITY P.O., MALAPPURAM-673 635.
 W.P.(C) No.26996/2021
                            :2:


    5     GOVERNMENT COLLEGE CHITTUR
          REPRESENTED BY PRINCIPAL, SITUATED AT CHITTUR
          COLLEGE POST PALAKAKD DISTRICT-678 104.

     THIS WRIT PETITION (CIVIL) HAVING COME UP        FOR
ADMISSION ON 13.04.2022, THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.26996/2021
                                       :3:




                           N. NAGARESH, J.

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                      W.P.(C) No.26996 of 2021

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                Dated this the 13th day of April, 2022

                            JUDGMENT

~~~~~~~~~

The petitioner, who has completed his Senior

Secondary Course from the National Institute of Open

Schooling, has filed this writ petition seeking to direct the first

and second respondents to consider Ext.P6 communication

and incorporate Physics subject's credit in Ext.P5 mark list

and to direct the fifth respondent to provisionally admit the

petitioner for BA History Course.

2. The petitioner appeared in the Higher Secondary

Examination conducted by the Board of Higher Secondary

Examination, Government of Kerala. The petitioner passed in

the subject Physics. In order to complete his Higher

Secondary qualification, the petitioner joined National W.P.(C) No.26996/2021

Institute of Open Schooling. The petitioner cleared all other

subjects. According to the petitioner, the scheme of NIOS

studies provided for Transfer of Credit (TOC) facility for

students.

3. Under the TOC, ex-secondary/senior secondary

students of other recognised Boards of School Education

who have passed in at least one subject, but have not

qualified in the course, may seek admission in the respective

course at NIOS and avail facility of Transfer of Credit

whereby marks of any two subjects passed from parent

Board or transferred to NIOS for certification. The petitioner

applied for transfer of credit in respect of his Physics paper,

which he passed from the Board of Higher Secondary

Examinations, Government of Kerala.

4. In the meanwhile, the petitioner was selected for

admission to Degree Course (BA History) under additional

sports quota seat. The petitioner required a mark list of

Higher Secondary Examination with Transfer of Credit given

to his Physics paper. The first respondent did not give the W.P.(C) No.26996/2021

Transfer of Credit sought for. It is in the said circumstances

that the petitioner has approached this Court seeking to

direct respondents 1 and 2 to incorporate Physics subject's

credit in his mark list and to direct the fifth respondent-

College to provisionally admit the petitioner for Degree

Course.

5. The learned counsel for the petitioner urged that

the petitioner has an unimpeachable right to education when

he has proven his qualification. By not incorporating his

Physics marks in his mark list, respondents 1 and 2 are

violating the bye-laws, rules, SOP and fundamental right of

the petitioner. The callous conduct of respondents 1 and 2 in

not effecting Transfer of Credit will ruin the academic and

sports career of the petitioner.

6. Respondents 1 and 2 contested the writ petition.

The respondents stated that the petitioner applied for

Transfer of Credit for two subjects which he had completed in

State Board syllabus. NIOS norms contained in Annexure-

R1(a) Prospectus for the year 2020-'21 makes it clear that W.P.(C) No.26996/2021

those learners who apply for Transfer of Credits for the

subjects with practical, should have passed those subjects

with 33% of marks in both theory part as well as the practical

part. The petitioner had not completed his Physical practical

with 33% and hence his application for TOC in Physics was

rejected.

7. I have heard the learned counsel for the petitioner,

the learned Standing Counsel representing respondents 1

and 2 as also the Standing Counsel for the fourth

respondent-University.

8. Annexure-R1(a) which is the Prospectus 2020-'21

provides for the conditions under which the facility of TOC

will be permissible. The relevant part of Annexure-R1(a)

reads as follows:

The facility of TOC will be permissible under the following conditions:

(i) The learner will have the option to get the credit transferred up to a maximum of two subjects from the Parent Board, provided these subjects are passed with at least 33% marks in the last five years (i.e., passed during 2016 or later).

(ii) The credits will be given only in those subjects which are included in NIOS Scheme of W.P.(C) No.26996/2021

Studies and the Scheme of Examination. TOC in the subjects having practicals at the Senior Secondary level will be allowed only when the learner has cleared (pass) in theory and practical separately.

(iii) The learner will have to give complete details of the TOC subjects, marks obtained, roll number etc. in the Admission Form.

(iv) While applying for Transfer of Credit (TOC), the learner is required to send parent board fail Marksheet within 10 days of online admission to the concerned Regional Centre of NIOS along with a copy of the Acknowledge Receipt/Copy of the online Admission Form. In case of delay in submission i.e. submission after 10 days, a late fee of Rs.500/- per subject of TOC will be charged through e-service.

(v) The learner will have to pay requisite fee for Transfer of Credit for the number of subjects in which TOC is required. Details of fee are given in Table 6A.

(vi) Detail Standard Operating Procedures (SOPs) have been issued separately and hosted on NIOS website. More details about TOC are given in SOPs.

From the said provisions in the Prospectus, it is evident that

the petitioner has a right to get Transfer of Credit in respect

of his Physics paper only if he has passed with at least 33%

marks and has cleared the theory paper and practical paper

separately. In the case of the petitioner, the petitioner did not

complete his Physics practical with 33% and hence he is not

entitled to get Transfer of Credit in respect of the said paper. W.P.(C) No.26996/2021

In the circumstances, the writ petition is devoid of

any merit. The writ petition is therefore dismissed.

Sd/-

N. NAGARESH, JUDGE aks/13.04.2022 W.P.(C) No.26996/2021

APPENDIX OF WP(C) 26996/2021

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF PETITIONER'S CERTIFICATE OF MERIT IN KERALA STATE SCHOOLS GAMES CHAMPIONSHIP AND KERALA STATE WRESTLING ASSOCIATION CHAMPIONSHIP.

Exhibit P2        A TRUE COPY OF THE CERTIFICATE ISSUED
                  BY    BOARD     OF     HIGHER      SECONDARY
                  EXAMINATION      DATED      15.7.2020     OF
                  PETITIONER.
Exhibit P3        A TRUE COPY OF THE ID CARD CUM HALL
                  TICKET    ISSUED    BY     IST    RESPONDENT
                  INSTITUTE.
Exhibit P4        A TRUE COPY OF THE CONDUCT CERTIFICATE
                  ISSUED TO PETITIONER BY GOVT. HSS
                  THATHAMANGALAM PALAKKAD.
Exhibit P5        A TRUE COPY OF THE MARKSHEET ISSUED BY
                  IST     RESPONDENT        TO      PETITIONER
                  DOWNLOADED AS 20.10.2021.
Exhibit P6        A TRUE COPY OF THE MAIL SERIES SEND BY
                  PETITIONER       THROUGH         FACILITATOR
                  REQUESTING TRANSFER OF CREDIT.
Exhibit P7        A   TRUE   COPY    OF    THE    RECEIPT   OF

MANDATORY FEE DATED 19.10.2021 ISSUED BY 4TH RESPONDENT.

Exhibit P8 A TRUE COPY OF THE LETTER DATED 18.10.2021 ISSUED BY 4TH RESPONDENT TO 5TH RESPONDENT CONVEYING ELIGIBILITY TO SPORTS QUOTA.

Exhibit P9        A TRUE COPY OF THE NOTIFICATION ISSUED
                  BY   4TH   RESPONDENT      OVER    ADMISSION
                  PROCEDURE DATED 27.10.2021.
Exhibit P10       A TRUE COPY OF REPRESENTATION MADE TO

5TH RESPONDENT BY PETITIONER AS ON 28.11.2021.

Exhibit P11 A TRUE COPY OF THE EMAIL SENT TO RECOGNIZED EMAIL ID OF 4TH RESPONDENT. P12 COPY OF PAGE 22 OF NOTIFICATION 2021 DT 21.12.20 W.P.(C) No.26996/2021

P13 COPY OF PAGE 23 OF NOTIFICATION 2021 DT 21.12.20 P14 COPY OF PAGE 22 OF MANUAL OF HIGHER SECONDARY EXAMINATION 2022 P15 COPY OF SCREEN SHOT OF ADMISSION STATUS OF PETITIONER DT 10.2.2022