Kerala High Court
Ginesh.P vs The Controller Of Examinations on 22 May, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WA NO. 204 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 16.6.2022 IN WP(C) NO.3018
OF 2013 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
GINESH.P.
AGED 45 YEARS, S/O.PARAMESWARAN NAMBOODIRI
PARIYARATHILLOM, NJEEZHOOR P.O., KOTTAYAM, PIN -
686612
BY ADVS.
FRANCO T.J.
G.SANTHOSH KUMAR (P).
RESPONDENTS/RESPONDENTS:
1 THE CONTROLLER OF EXAMINATIONS
MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS
P.O., KOTTAYAM, PIN - 686560
2 MAHATMA GANDHI UNIVERSITY, REP.BY ITS REGISTRAR
PRIYADARSINI HILLS P.O., KOTTAYAM, PIN - 686560
3 THE VICE CHANCELLOR
MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS P.O
KOTTAYAM, PIN - 686560
4 THOMAS VARKEY
(SELECTION GRADE ASSISTANT. C E'S SECTION,
MAHATMA GANDHI UNIVERSITY, KOTTAYAM) MANNUSSERIL
HOUSE, MANNANAM.P.O., KOTTAYAM, PIN - 686561.
BY ADV SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
12.04.2024, THE COURT ON 22.05.2024 DELIVERED THE
FOLLOWING:
WA 204/2023
2
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
W.A.No.204 of 2023
-------------------------------------
Dated this the 22nd day of May, 2024
JUDGMENT
Easwaran S., J.
A student of MBA Off-Campus conducted by the
Mahatma Gandhi University is before us in this intra-court
appeal since according to him the directions issued by the
learned Single Judge is non conclusive and may prolong the
agony for redressal of which he had approached this Court
in the writ petition.
2. The facts are rather disturbing due to certainly a
negligent act of the Mahatma Gandhi University, which has
nearly spoiled the career of a student. We are compelled to
say so because of certain unproven allegation of attempt to
commit malpractice by the appellant in the examination, and
even after a lapse of 12 years justice has not been rendered
to him.
3. The appellant/writ petitioner appeared for the
examination conducted in April, 2012 for the 1 st and 2nd
Semester of the MBA Course. On 19.5.2011, when the
appellant was attending examinations, the 4 th respondent
pretending to be an invigilator illegally entered into the
examination hall and changed the seats of the candidates,
including the petitioner, during the examination several
times. The petitioner alleges that there was a police
complaint lodged against the said action and in retaliation to
the said complaint, Ext.P4 report was given by the
invigilator stating that there was attempt to commit the
malpractice by scribbling down something on the desk.
Thereafter, yet another report was filed as under Ext.P5.
Under Ext.P5 report, the allegation changes slightly and it is
said that the appellant attempted to commit malpractice
during the examination and was asked to change the seat to
the front row and while changing the rows, he shouted at
the invigilators. The reports on malpractice were against
the petitioner, which according to him, were unauthorised
since the authors of the same were not authorised to file
such reports.
4. Based on Exts.P4 and P5, the respondent University
initiated proceedings against the appellant/petitioner and
Ext.P7 memo was served on him. After a protracted
proceeding, the petitioner was served with yet another
memo on 9.3.2012 under Ext.P11 requiring the petitioner to
show cause as to why the examinations shall not be
cancelled. The petitioner submitted the reasons for not
imposing the punishment and thereafter it appears that the
University by Ext.P13 resolution dated 23.1.2012, which was
obtained by the petitioner under the provisions of the Right
to Information Act, decided to cancel the examinations
undertaken by the petitioner for 1st and 2nd Semesters.
5. In the meantime, the refusal on the part of the
University to allow the petitioner to appear for the 3 rd and
4th Semester examinations compelled the petitioner to
approach this Court in WP(C) No.9285/2012 and by Ext.P14
interim order the petitioner was allowed to appear in the
examinations and participated in the same. Thereafter, by
Ext.P16 judgment dated 10.10.2012 in WP(C)
No.9285/2012, this Court directed the competent authority
of the University, namely the Vice Chancellor, to take a final
decision on the explanation submitted by the petitioner.
Ext.P17 is the hearing note/additional statement given by
the petitioner. Based on the said statement, the
respondent-University by Ext.P18 dated 28.11.2012
informed that the Vice Chancellor had examined his
explanation and ordered by Ext.P19 dated 13.11.2012 to
implement the punishment that was imposed by the
Syndicate. It is impugning Exts.P13, P18 and P19, the
appellant approached this Court by the aforesaid writ
petition.
6. The respondent University raised objections to the
reliefs sought for in the writ petition by filing a counter
affidavit. The decision to cancel the examinations and debar
the appellant/petitioner from appearing in any University
Examination was sought to be sustained on various grounds.
7. When the writ petition was taken up for final
hearing by the learned Single Judge, the University admitted
before the learned Single Judge that the answer scripts of
the petitioner relating to the 1st and 2nd Semester
examinations are not with them and the same were
destroyed. In these compelling circumstances, the learned
Single Judge ordered the writ petition without touching upon
the merits of the allegations raised against the petitioner
under Exts.P4 and P5 reports and under Ext.P13 and did not
deem it fit to consider the issuance of a writ of certiorari
against Exts.P18 and P19 decisions. However, the learned
Single Judge gave liberty to the petitioner to approach the
Registrar of the University with the originals of the mark lists
of the 3rd and 4th semester examinations and directed the
Registrar to decide the question as to how the petitioner's
case will have to be finalised, taking note of the peculiar
facts.
8. Aggrieved by the direction and the refusal on the
part of the learned Single Judge to consider the question as
to whether the facts pleaded in the writ petition warranted
issuance of a writ of certiorari against Exts.P18 and P19
decisions, the petitioner is before this Court in this appeal.
9. We have heard Sri.Franco T.J, learned counsel
appearing for the appellant, and also Sri.Surin George Ipe,
learned Standing Counsel appearing for the University.
10. Before dwelling upon the other issues raised in the
appeal, pertinently, even the learned Single Judge was
prima facie of the view that the punishment meted on the
appellant/petitioner was harsh and not justified. Therefore,
in this intra-court appeal, our consideration is confined to as
to whether the directions of the learned Single Judge could
be sustained or the appellant is entitled for an order as
prayed for in the writ petition.
11. By order dated 20.3.2024, we have directed the
learned Standing Counsel for the respondent University
requiring him to examine the matter and come out with a
possibility adopting a holistic approach, especially in the
light of the stand of the University that the answer scripts
have been destroyed. When the matter was taken up for
consideration on 27.3.2024, the learned Standing Counsel
for the University sought further time to get instructions and
accordingly, the matter was posted to 4.4.2024 and
thereafter it was listed to 9.4.2024, when the learned
Standing Counsel for the University sought further time and
accordingly, the appeal was listed for final consideration on
12.4.2024.
12. On 12.4.2024, when the matter was taken up for
final consideration, the learned Standing Counsel appearing
for the University reiterated that the direction of the learned
Single Judge cannot be complied with and there are practical
difficulties in deciding the issue. It is reiterated that the
University had resolved to cancel the examinations which
was affirmed by the Vice Chancellor and therefore no relief
could be given to the appellant.
13. The learned Standing Counsel for the University
also submitted before us that the appellant/petitioner is not
entitled to any relief, especially when the memo dated
9.3.2012 was not interfered by this Court in WP(C)
No.9285/2012.
14. On the other hand, the learned counsel appearing
for the appellant, Sri.Franco, T.J., made a fervent plea
before the Bench that the exercises now directed to be done
by the learned Single Judge cannot be sustained, especially
when the appellant had suffered for nearly 12 years, when
the writ petition was kept pending for consideration and in
the compelling circumstances where even the reports of the
invigilator, who reported the alleged malpractice, do not find
the petitioner guilty of such practices and also in view of the
fact that the appellant/petitioner was allowed to complete
the examinations, there was no justification on the part of
the learned Single Judge who had directed the appellant to
approach before the Registrar leaving liberty to the Registrar
to take a decision on the issue. He further submitted that
the act of the University in destroying the answer scripts,
especially when the dispute was pending before this Court,
was unwarranted and totally uncalled for and has resulted in
serious prejudice to the appellant. Therefore, prayed that
the writ appeal may be allowed modifying the judgment of
the learned single Judge and thereby granting reliefs sought
for in the writ petition.
15. We have considered the submissions raised across
the bar.
16. Before judging the action of the University on their
decision to cancel the examinations of 1 st and 2nd semester,
the most disturbing fact which compels us to take serious
note is the action of the University in destroying the answer
scripts, when the writ petition was kept pending. It may be
noticed that the appellant had specifically challenged the
report of enquiry and the decision to cancel the examination
undertaken. Principles governing the law relating to issuance
of writ of certiorari is explained in the decision of the Apex
Court in Ghaio Mal & Sons Vs State of Delhi [AIR 1959
SC 65]. It is now trite law that when a writ of certiorari is
sought for, the High Court can at any time call for the
records leading to the impugned orders and examine the
validity of the same to determine whether it withstands the
test of judicial review. Such being the position of law, the
action of the University in having caused destruction of the
answer scripts has seriously prejudiced the rights of the
petitioner, especially when for no fault of his, he is asked to
appear for the 1st and 2nd semester examinations again,
after a lapse of 12 years.
17. It must be remembered that even in the report of
the Joint Registrar of the University, which is placed on
record as Ext.R1(c) along with the counter affidavit filed by
the University, there is no concrete evidence to establish
that the appellant/petitioner had committed the malpractice
during the examinations. We are compelled to take note that
no students who took part in the examination was examined
during the so called enquiry so as to establish the alleged
malpractice, based on which the examination of the
appellant was decided to be cancelled. The fact however
remains undisputed that the appellant/petitioner was
allowed to continue with the examination. Had the answer
scripts been available now, it would have been possible for
this Court to have issued appropriate directions to the
University safeguarding the interest of both parties. The
fact that the answer scripts were destroyed compels us to
take a view that the University was not justified in
approaching the whole issue against the petitioner.
Furthermore, by order dated 20.3.2024, when we had
already directed the University to take a holistic approach,
especially when the answer scripts have been destroyed, it
was incumbent upon the University to have taken a holistic
view as observed by us. Instead of approaching the issue as
required by us in the order read as above, the learned
Standing Counsel for the University reiterated the stand of
the University that the appellant/petitioner is not entitled to
any reliefs sought for and the only manner in which the
issue could be resolved is that the appellant/petitioner
should necessarily appear for 1st and 2nd semester
examinations afresh.
18. We are however constrained to take serious notice
of the parochial approach of the University, that too, after
causing destruction of the answer scripts when the writ
petition was pending consideration. We, therefore, hold that
that the University's action in causing destruction of the
answer scripts was totally unwarranted and uncalled for.
Having done so, necessarily the respondent University must
be held responsible for consequences following out of it.
19. In so far as the contention of the learned Standing
Counsel for the respondent University that the memo issued
to petitioner proposing to cancel the examination was not
interdicted by this Court in the earlier writ petition, we feel
that the said contention cannot be countenanced since by
Ext.P14 interim order, this Court had directed the University
to allow the petitioner to appear for 3rd and 4th Semester
examinations. Later, by Ext.P16 judgment, a learned Single
Judge of this Court directed the competent authority of the
University, namely the Vice Chancellor, to take a decision on
the explanation submitted by the petitioner within a period
of six weeks and depending upon the outcome, the result of
the petitioner was directed to be announced. It is thereafter
that the impugned orders in the writ petitions were passed.
Therefore, the stand of the University, that even the memo
debarring the appellant/petitioner from appearing for the
examinations was not interdicted by this Court in the earlier
round of writ petition, cannot be appreciated at all.
20. Yet another impelling circumstance, which we must
note is that the University is not before us in an appeal
against the judgment of the learned Single Judge. It is the
petitioner, who is before us in an appeal and therefore, the
University cannot be permitted to take a stand that the
appellant/petitioner should appear for the examinations
once more.
21. Having said so based on the compelling facts before
us, we cannot be oblivious of the fact that the appellant's
cause would be subjected to further exercise of discretion at
the hands of the Registrar, especially since the decision to
cancel the examination and the affirmation of the same by
the Vice Chancellor, not being interdicted by the learned
Single Judge. In view of the above, we are certain in our
view that the direction of the learned Single Judge
relegating the appellant/petitioner to agitate his cause
before the Registrar of the University without setting aside
the report of the enquiry and the consequential decision of
the Syndicate to cancel the examinations was not proper
and would not serve any purpose.
22. On the nature of finding on the reports qua the
punishment imposed against the appellant, we find that
even the learned Single Judge had found that punishment
was highly improper. Therefore, any consequential
directions to be issued by us would certainly depend upon
our finding on the proportionality of the decision of the
University to cancel the examination and debar the appellant
from appearing for the examination.
23. It is indisputable that the appellant was allowed to
appear for the 3rd and 4th semester examinations and had
cleared the examinations followed by issuance of mark
sheets. The appellant has come out successful in the said
examinations. Taking note of the fact that the answer
scripts of the 1st and 2nd semester examinations were
destroyed by the respondent university, we find that the
appellant is entitled to succeed. Resultantly, the writ appeal
is allowed. Exts.P13, P18 and P19 are set aside. In view of
the destruction of the answer scripts of the 1 st and 2nd
semester examinations by the University without any
authority of the law, we are of the view that the University
should declare the results of the 1 st and 2nd semester
examinations based on the result of the 3 rd and 4th semester
examinations of the appellant/petitioner. Therefore, we
direct the 2nd respondent to do the needful within a period of
three weeks from the date of receipt of a copy of this
judgment.
The writ appeal is ordered accordingly. No order as to
costs.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
jg
PETITIONER ANNEXURES
Annexure-A1 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER TO THE
REGISTRAR OF THE UNIVERSITY DATED
16.07.2022.
Annexure-A2 TRUE COPY OF THE NOTICE FROM THE
REGISTRAR OF THE UNIVERSITY TO THE
PETITIONER DATED 11.08.2022.
Annexure A3 TTRUE COPY OF THE 3RD SEMESTER M.B.A
DEGREE EXAMINATION MARKLIST OF THE
APPELLANT
Annexure A4 TRUE COPY OF THE 4TH SEMESTER M.B.A
DEGREE EXAMINATION MARKLIST OF THE
APPELLANT
