Akhil Joshy vs Controller Of Examination
2024 Latest Caselaw 32542 Ker

Kerala High Court

Akhil Joshy vs Controller Of Examination on 11 November, 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

    MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946

                         WP(C) NO. 5307 OF 2024

PETITIONER/S:
           AKHIL JOSHY
           AGED 33 YEARS
           MBBS STUDENT, AMALA INSTITUTE OF MEDICAL SCIENCES,
           TRISSUR, RESIDING AT,MELIKKATTIL HOUSE, FORT ROAD,
           NORTH PARAVOOR, ERNAKULAM DISTRICT., PIN - 683513


            BY ADVS.
            P.M.SANEER
            SONAY JOHN


RESPONDENT/S:

    1       CONTROLLER OF EXAMINATION
            UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM
            DISTRICT., PIN - 673635

    2       VICE CHANCELLOR
            UNIVERSITY OF CALICUT THENHIPALAM,MALAPPURAM., PIN -
            673635

    3       THE PRINCIPAL,AMALA INSTITUTE OF MEDICAL SCIENCES
            AMALA NAGAR, THRISSUR., PIN - 680555

    4       THE VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH
            SCIENCES
            MEDICAL COLLEGE.P.O., THRISSUR., PIN - 680596


            BY ADVS.
            FOR R1 AND R2 BY SRI P.C.SASIDHARAN, STANDING COUNSEL
            FOR R4 BY SRI.P.SREEKUMAR, SR. COUNSEL,
            BENNY THOMAS.
            FOR R3 BY SRI.TONY GEORGE KANNANTHANAM



     THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
07.11.2024, THE COURT ON 11.11.2024        DELIVERED THE FOLLOWING:
                                                         2024:KER:82363

WP(C)No. 5307/2024                 2



                             JUDGMENT

This Writ Petition was filed by the petitioner who had joined

MBBS course in the 3rd respondent college in the year, 2008 and had

completed the course but could not clear all the examinations. One

important aspect to be noticed in the facts of this case is that when

the petitioner joined the MBBS course in the 3 rd respondent college,

the college was affiliated to the University of Calicut whereas in the

year, 2010, the Government of Kerala established a separate

University for health studies named the 'Kerala University of Health

Sciences.' Accordingly, the affiliation of all the colleges conducting

health related courses were shifted to the Kerala University of Health

Sciences, but the students who joined for MBBS prior to that were

continued in the old Universities for their examination, issuance of

certificates etc. The curriculum of the courses was continued as such.

2. Even though the petitioner availed several chances for

attending the examinations, ultimately, he succeeded in clearing all

the papers except one paper viz.General Medicine theory paper he lost

by 3 marks and in the practical of general medicine by 10 marks. Exhibit 2024:KER:82363

P6 is the results of the examinations published on 26.08.2023 which

is in respect of the last examination he attended and even though the

petitioner submitted an application for re-valuation as evidenced by

Ext.P7, the University did not publish the results of the re-valuation.

The Writ Petition was submitted in such circumstances seeking the

following reliefs:

"(i) To issue a writ of mandamus or other appropriate order or direction to direct the 1st and 2nd respondent University to publish the revaluation results of the petitioner applied as per Ext P7, in final year/3rd MBBS part II, without further delay or in a time frame fixed by this Hon'ble Court.

(ii) To issue a writ of mandamus or other appropriate order or direction directing the respondents to consider and dispose Ext P8 representation submitted by the petitioner in a time frame as fixed by this Hon'ble Court.

(iii) To issue a mandamus or other appropriate writ or direction, directing the respondents 1 to 3 to conduct the practical and theory examination for 3rd MBBS part II, after publication of the revaluation results of the petitioner if necessary without further delay.

(iv) Direct the 4th respondent to give adequate and necessary assistance to respondents 1 to 3 to conduct the 3rd professional MBBS part II examination of the petitioner, enabling the petitioner to write the examination if necessary.

(v) These Hon'ble Court may be pleased to direct the registry to dispense with the filing of translation of vernacular documents.

(vi) Grant such other reliefs as are just and proper in the nature of this case."

3. A counter affidavit has been submitted by the 1 st and 2nd

respondents wherein various chances availed by the petitioner for the

examinations conducted by the University were specifically

mentioned therein. It is pointed out that, even after availing all the 2024:KER:82363

said chances during the period extending to more than 14 years, he

could not clear all the papers. The allegation raised by the petitioner

in the writ petition regarding the delay in conducting the examination

were also denied by the University. More over, it is stated that,

re-valuation was conducted as applied vide Ext.P7 and in that

process also, there was no change in the marks and thus the

petitioner remains as failed in the paper for General

Medicine. However, it is specifically averred in the counter affidavit

that, the petitioner can apply for supplementary examination

for the papers of General Medicine as a whole (ie. Theory,

Practical and Viva voce) together as and when notified by the

University.

4. Heard Sri.Saneer P.M., the learned counsel for the

petitioner, Sri. P.C.Sasidharan, the learned Standing Counsel for the

1st and 2nd respondents and Sri.P. Sreekumar, the learned Senior

Counsel for the 4th respondent assisted by Adv. Sri. Benny Thomas.

5. Even though several contentions with regard to the delay

in conduct of the examination and the failure of the petitioner despite

availing several chances are raised by both parties, the fact remains 2024:KER:82363

that the petitioner is admittedly eligible to attend the supplementary

examination to be conducted by the University of Calicut as and when

notified. The University in the counter affidavit specifically recognized

his right. However, apparently, the difficulty that is highlighted by the

Calicut University in conducting the examination is that, as of now,

they do not have the required faculty or facility to conduct

examination and value the papers. This is because of the fact that

now the entire health related course were shifted to the 4 th

respondent-University which is created exclusively for conducting

such courses. The said creation of a separate University for health

science happened in the year, 2010 and since then, it was not

necessary for the Calicut University to maintain the infrastructure

required for conducting the health related courses apart from conduct

of the examination and issuing certificates.

6. Even though in the counter affidavit, they have admitted

that the petitioner is entitled to apply and attend supplementary

examination as and when notified by the University, they are not in a

position to specify any timeline within which such examination can be

conducted. Several opportunities were granted by this Court for 2024:KER:82363

conveying the said aspect.

7. During the course of hearing a suggestion was put to the

4th respondent as to whether they can conduct the examination of the

petitioner, since they have all the faculties and facilities for conducting

such examinations. Even though the same was not opposed by the

4th respondent, the 1st and 2nd respondents stoutly opposed the said

suggestion. It was contended by the learned counsel for the 1 st and

2nd respondents that, since the course was conducted by the 1 st and

2nd respondents University, they alone can conduct the examination

and the same will be conducted after issuing a notification in this

regard.

8. However, even while opposing the said suggestion the 1 st

and 2nd respondents are unable to specify any timeline within which

the examination can be conducted.

9. One of the objections raised by the 1 st and 2nd

respondents University was that the petitioner does not have any right

to seek for a direction to conduct examination by the 1 st and 2nd

respondents in view of the fact that, ample opportunities were already

granted to him.

2024:KER:82363

10. Even while considering the said contentions by the 1 st and

2nd respondents, the fact that, admittedly the petitioner has a right to

attend supplementary examination as conceded in the counter affidavit

of the 1st and 2nd respondents, cannot be ignored. It is also discernible

from the counter affidavits of the 1st and 2nd respondents that, they are

prepared to conduct supplementary examination. Therefore, it is only

proper that, an examination be conducted by the University of Calicut

either directly by them or through the 4 th respondent. One of the reliefs

sought by the petitioner in the writ petition is to direct the 4 th respondent

to give adequate and necessary assistance to respondents 1 to 3 to

conduct the 3rd professional MBBS part II examination of the petitioner,

enabling the petitioner to write the examination, if necessary. The fact

that, the 1st and 2nd respondents do not have necessary facility to

conduct the examination relating to the health related course is not

seriously disputed. The right of the petitioner to attend supplementary

examination to be conducted by the University is also not in dispute.

Therefore, I am of the view that, it is for this Court to mould the relief

to do justice to the parties by protecting the rights of the petitioner. In

Badrinath v. Government of Tamilnadu and Others[(2000)8 SCC

395], the powers of the High Court under Article 226 of the 2024:KER:82363

Constitution of India in the matter of moulding the reliefs to do justice

to the parties was discussed by specifically referring to the

observations made by the Hon'ble Supreme Court in Comptroller

and Auditor-General of India, Gian Prakash, New Delhi and

Another v. K.S.Jagannathan and Another [(1986) 2 SCC 879]. In

paragraph 88 of Badrinath's case (supra), it was observed by the

Hon'ble Supreme Court as follows:

"88. We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an Order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan [(1986) 2 SCC 679 : 1986 SCC (L&S) 345] such a power on the part of this Court was accepted by a three-Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarka Nath v. ITO [AIR 1966 SC 81 : (1965) 3 SCR 536] wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to "reach justice wherever found necessary" and "to mould the reliefs to meet peculiar and complicated requirements of this country". Justice Madon also referred to Rochester Corpn. v. R. [1858 EB & E 1024 : 27 LJ QB 434] ,R. v. Revising Barrister for the Borough of Hanley [(1912) 3 KB 518 : 81 LJ KB 1152], Padfield v. Minister of Agriculture Fisheries and Food [1968 AC 997 :

(1968) 1 All ER 694 : (1968) 2 WLR 924 (HL)] and to a passage from Halsbury's Laws of England, 4th Edn. Vol. 1, p. 59. Finally Madon, J.

observed: (SCC pp. 692-93, para 20).

"20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such 2024:KER:82363

discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."

We emphasise the words underlined in the above passage to the effect that the Court may in some rare situations itself pass on order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The same view was expressed by another three-Judge Bench in B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 :

(1996) 32 ATC 44] even regarding disciplinary cases. Verma, J. (as he then was) observed (at SCC p. 762, para 18) as follows:

"The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."(emphasis supplied)

The underlined words reiterate the powers of this Court in rare and exceptional cases."

After considering the peculiar facts and circumstances of this case,

particularly in view of the fact that, consequent to the creation of 4 th

respondent-Health University, the University of Calicut no longer has 2024:KER:82363

the faculty and facility to conduct health related courses, the

principles laid down by the Hon'ble Supreme Court in the above

referred judgments are to be applied in this case. The reliefs are to be

moulded in such a manner to protect the rights of the petitioner which

is admitted by the contesting respondents viz. 1 st and 2nd

respondents.

11. In such circumstances, this Writ Petition is disposed of

directing the 1st and 2nd respondents to take a decision on the conduct

of the examination by themselves within a period of one month from

the date of receipt of copy of this judgment and in case they have

opted to conduct examination by themselves, such examination

should be conducted within a period of two months from the date of

taking such a decision.

12. In case, the 1 st and 2nd respondents are not taking a

decision within the period of one month, they shall pass necessary

orders entrusting the 4th respondent to conduct examination by

providing necessary documents including the syllabus in this regard

and in such an event the examination shall be conducted by the 4 th

respondent- the Kerala University of Health Sciences within a period 2024:KER:82363

of three months from the date of receipt of copy of such documents.

After conducting the examination, the 4 th respondent shall forward the

results of the same to the Calicut University and thereupon the results

shall be published and the certificate be issued by them within a

period of one month from the date of receiving the results of the

examination.

With the above observations, this Writ Petition is disposed of.

Sd/-

ZIYAD RAHMAN A.A. JUDGE pkk 2024:KER:82363

APPENDIX OF WP(C) 5307/2024

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE MARKSHEET DTD 15-5-2012 FOR THE I PROFESSIONAL MBBS EXAMINATION, ISSUED BY THE UNIVERSITY .

Exhibit P2 A TRUE COPY OF THE MARKSHEET DTD 23/8/2012 AWARDED TO THE PETITIONER.

Exhibit P3 A TRUE COPY OF THE MARKSHEET AWARDED TO THE PETITIONER DTD 27-8-2014 FOR 2ND PROFESSIONAL MBBS EXAMINATION.

Exhibit P4 A TRUE COPY OF THE MARKSHEET ISSUED BY THE UNIVERSITY DTD 15-5-2020 TO PETITIONER IN MBBS THIRD PROFESSIONAL PART I.

Exhibit P5 A TRUE COPY OF THE NOTIFICATION NO 65978/EG-1-ASST-2/2016/PB DTD 18/8/2021, ISSUED BY UNIVERSITY CANCELLING THE EXAMINATION.

Exhibit P6 A TRUE COPY OF THE RESULTS PUBLISHED BY THE UNIVERSITY 26-8-2023 OF MBBS PART II PROFESSIONAL EXAMINATION.

Exhibit P7 THE PHOTOCOPY OF THE APPLICATION FOR REVALUATION AND THE CHALLAN RECEIPT DTD 8- 9-2023 ISSUED BY THE UNIVERSITY.

Exhibit P8 A TRUE COPY OF THE REPRESENTATION AND THE POSTAL RECEIPTS DTD 27-12-2023 ADDRESSED TO THE 1ST RESPONDENT.

Exhibit P9 A TRUE COPY OF THE REQUEST/ REPRESENTATION DATED 20.06.2024 SUBMITTED BY THE PETITIONER.