Kerala High Court
Aneesha Remesh vs State Of Kerala on 4 July, 2011
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20065 of 2010(G)
1. ANEESHA REMESH,KUMALUTHARAYIL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR OF AYURVEDA MEDICAL
3. SANTHIGIRI INSTITUTE OF PARAMEDICAL
For Petitioner :SRI.B.GOPAKUMAR
For Respondent :SMT.K.K.CHANDRALEKHA
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/07/2011
O R D E R
(CR)
P.R. RAMACHANDRA MENON J.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.P (C) Nos . 20065 & 28528
of 2010
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated, this the 4th July , 2011
JUDGMENT
Whether the petitioners, who were permitted to continue their studies and participate in the examination, pursuant to the interim orders passed by this Court, are eligible to have their results declared, if they are otherwise not eligible even for being admitted for the course, is the primary point to be considered. The incidental question is, whether they are entitled for any equitable relief, even if, they are not strictly qualified, since the course is already over and nobody else is to be prejudiced as on date for not having admitted and permitted to pursue the studies.
2. Both the petitioners were aspirants to have admission to the 'Certificate Course - Ayurveda W.P. (C) No. 20065 & 28528 of 2010 : 2 : Nursing', conducted for the year 2009 - '10. The duration of the course is 300 working days and it includes 'practical'. The candidates belonging to the State of Kerala, who have passed the S.S.L.C. Examination or equivalent with minimum "50 % marks or equivalent grade" are eligible to apply.
3. Pursuant to Ext.P2 prospectus issued by the 3rd respondent, the petitioners, on the strength of Ext. P1 Certificate, declaring them eligible for higher studies, applied for the said course and secured admission. The course was commenced in August, 2009 and after about 9 months of study, the petitioners were prevented by 3rd respondent from pursuing further studies, stating that, the second respondent had given instructions to the College authorities to prevent the petitioners from attending the classes and that their admissions were liable to be cancelled, for the reason that they did W.P. (C) No. 20065 & 28528 of 2010 : 3 : not possess the required minimum of 50 % of marks. Branding the stand of the respondents as arbitrary, illegal and unjust, the petitioners approached this Court by filing the above writ petitions for immediate interference. It is contended that the petitioners are qualified to have admissions and to pursue the studies, and that, if a 'mean average' of the grades scored by the petitioners is taken, the percentage of the marks scored by them, would be more than 50 % as prescribed in Ext. P2 prospectus.
4. When the matter came up for consideration on 28.06.2010, the following interim order was passed in W.P.(C) No. 20065 of 2010 (almost similar order was passed in W.P(C) No. 28528 of 2010 as well).
"Admit.
The learned Government Pleader takes notice on behalf of the 1st respondent.
Issue notice by speed post to
respondents 2 and 3.
W.P. (C) No. 20065 & 28528 of 2010
: 4 :
There would be an interim order
directing the respondents to permit the petitioner to attend the classes in respect of the Certificate Course in Ayurveda Nursing in the 3rd respondent's college provisionally subject to final orders in the writ petition."
On the basis of the interim orders, petitioners continued their studies and completed the course by October, 2010. But they were not permitted to attend the examination scheduled originally in December 2010, which was subsequently extended to January 2011. The petitioners filed I.A. No. 675 of 2011 and 739 of 2011 respectively, in both the cases, for permitting them to participate in the examinations. The following interim order was passed in I.A. No. 675 of 2011 on 17.01.2011 in W.P. (C) No. 20065 of 2010:
"There will be a direction to the respondents to provisionally permit the W.P. (C) No. 20065 & 28528 of 2010 : 5 : petitioner to appear in the Government Ayurveda Nursing Examination, January 2011, accepting Ext. P3. It is made clear that, the results of the petitioner shall not be declared until otherwise ordered by this Court"
Similar order was passed in I.A. No. 739 of 2011 in other case as well.
5. Pursuant to the interim orders, the petitioners participated in the examination and were awaiting the results, which, however was not published in view of the specific bar put by this Court while passing the interim orders in the aforesaid I.As. This made the petitioners to file separate Interlocutory Applications (I.A. Nos. 6445 of 2011 and 6867 of 2011 respectively), for a direction to be given to the respondents to declare the results and to issue mark sheets, which was strongly opposed from the part of the Government, under which circumstances, the cases were adjourned W.P. (C) No. 20065 & 28528 of 2010 : 6 : and both the writ petitions were heard in detail.
6. Mr. B. Gopakumar, the learned counsel appearing for the petitioner in W.P.(C) No. 20065 of 2010 led the arguments, pointing out that, there was absolutely no fault on the part of the petitioners, who had responded to Ext. P2 prospectus, which stipulated only "50 % of the marks" in the qualifying examination as the eligibility condition for admission. Since there was no separate marks after 2005 with the advent of the 'grading system' (which provides 9 point scale), it was virtually impossible to ascertain the percentage correctly and as such, the 'mean average' of the grades scored had to be taken, which will work out to be nearly 53 % (much above the requisite minimum of 50 % to have obtained the admission); submits the learned counsel. It is stated that, on equitable consideration also, the petitioners' case deserves W.P. (C) No. 20065 & 28528 of 2010 : 7 : to be considered, as the course was for a total of 12 months (300 days), out of which 9 months were over, when they were informed that they were not eligible to continue the course. Further, nobody else was to be prejudiced because of the declaration of results of the petitioners, who are pursuing the studies, spending huge amounts. Reliance is also sought to be placed on the decision of this Court reported in 1991 (2) KLT 612 (Bobby Cyriac Vs. Principal) and those of the Apex Court in 1990 (3) SCC 23 (Sanatan Gauda Vs. Berhampur University and others) and 2000 (9) SCC 391 (State of U.P. and Others Vs. Dr. Reena Singhal), giving emphasis on the principle of 'Promissory estoppal'.
7. Mr. Aravind Kumar Babu, the learned Government Pleader, who appeared on behalf of the respondents 1 and 2 submits, with reference to the specific pleadings raised in the counter affidavit W.P. (C) No. 20065 & 28528 of 2010 : 8 : filed on behalf of the respondents 1 and 2 and the documents produced there with, that the petitioners were never eligible to get admission for the course, as the basic requirement was 50 % marks in the qualifying examination (SSLC) or equivalent (C+ grade), while the petitioners were only having eligibility to under go "plus 2 or equivalent course". In the case of the Scheduled Caste / Scheduled Tribe candidates, they are required only to have a pass in the SSLC (D+ grade). It is also stated that, admittedly after the year 2005, 'grading system' was brought into force, replacing the 'marks', which was very much known to the 3rd respondent institution as well and if there was any latches or mistakes on the part of the said respondent in giving the admissions, it cannot confer any right on the petitioners, as the eligibility is declared by the Government in crystal W.P. (C) No. 20065 & 28528 of 2010 : 9 :
- clear terms and let known to all. Reference is also made to Ext. R2 (b) 'Essentiality Certificate' given to the 3rd respondent institution in connection with the said course and also Ext. R2 (c) letter dated 02.07.2009 of the second respondent addressed to the third respondent and other similarly situated institutions. Paragraph 4 (1) of Ext. R2 (b) G.O dated 15.04.2008, which is relevant for the purpose of these cases reads as follows :
4. Issuance of this Essentiality Certificate is subject to the following conditions :
1. The admission shall be based on the marks in qualifying examinations. As the grading system is introduced, the grade equivalent to 50 % of Marks in SSLC Examination may be fixed as C + or value point 5.
As per Ext. R2(c), the Directorate had also alerted the institutions like 3rd respondent that the admission procedure for filling up the management W.P. (C) No. 20065 & 28528 of 2010 : 10 : seats alloted to the said institution for one year Ayurveda Paramedical Certificate Courses (Pharmacy / Nurses / Therapist) for 2009 -10 shall be based on the conditions stipulated therein. Condition No. 2, which is relevant for these cases reads as follows:
2. The admission shall be based on the marks in the qualifying examinations (50 % in SSLC or equivalent examination or C +or value point 5) In the light of Exts. R2(a), R2(b) and R2(c), it is contended on behalf of the respondents 1 and 2 that, the contents of 'Ext. P2 prospectus' of the third respondent institution do not have any relevance or significance at all, with regard to the eligibility for admission, as the 3rd respondent and such other similar institutions are always bound by the conditions prescribed in Exts. R2(a) Prospectus, Ext. R2 (b) Essentiality certificate and Ext. R2 (c) Conditions issued by the Government / Directorate.
W.P. (C) No. 20065 & 28528 of 2010 : 11 :
8. Pursuant to the directions given by the second respondent to produce the application forms and details of all students, who secured admissions for various courses under management quota, the Principals of such institutions, including the 3rd respondent, submitted the details as sought for, in respect of the 'management quota'. The scrutiny revealed that 13 students of the 3rd respondent institution lacked the basic eligibility condition as per Exts. R2 (a) and R2 (b). Accordingly, the second respondent, as per letter No. G3 / 1870 / 2010 / DAME dated 07.06.2010, informed the concerned Principals, including that of the 3rd respondent that, the concerned students including the petitioners were not liable to be continued in the course, as they did not possess the minimum requirement of " C+ grade", so as to constitute 50 % marks in the S.S.L.C. The plea of Equity is W.P. (C) No. 20065 & 28528 of 2010 : 12 : sought to be assailed, placing reliance on the decision rendered by the Apex Court in M.G. University Vs. Gis Jose (2008 (4) KLT 216) and also that of the Division Bench of this Court reported in 2010 (4) KLT 103 (shamin Sainudheen Vs. Medical Council of India).
9. Primary question to be considered is whether the petitioners were qualified to have secured admission to the course in question or in other words, did they possess 50% of marks in SSLC or the relevant grade equivalent. Admittedly, after the year 2005, with the introduction of 'grading system', 'marks' lost the significance and it is not possible to ascertain the position of the petitioners with reference to the marks. Ext. P1 certificate issued on completion of the SSLC shows that the petitioners obtained different grades in different subjects, however certifying that, the W.P. (C) No. 20065 & 28528 of 2010 : 13 : petitioners were eligible for higher studies. But then the question is whether, mere eligibility to pursue higher studies is enough, which admittedly is 'not'; as the petitioners themselves were aware that they had necessarily to obtain '50 %' or 'equivalent'. As such, what is the 'equivalent' is the next question.
10. There is a contention for the petitioners that, since the 'grading system' has replaced awarding of marks, it is difficult to assess '50 %' and as such, taking note of the different grades scored (for the different ranges of the marks), the 'mean average' has to be taken and if it be so, the petitioners are stated as having 53 % marks, taking them above the prescribed minimum of 50 %. This Court finds that such a 'fictional exercise' is not at all warranted, as the relevant provision is clear and categoric, in so far as Ext. R2 (a) prospectus W.P. (C) No. 20065 & 28528 of 2010 : 14 : stipulates in paragraph 1 itself that the eligibility for admission is a pass in SSLC or equivalent examination with 50 % marks (C+ grade) having eligibility to undergo 'plus 2'. In other words, scoring of '50 % marks' has been equated to securing a "C+" as given in Ext. R2(a) prospectus issued by the State. Position becomes more clear from paragraph 4 of Ext. R2(b) Essentiality certificate, which says that, as the 'grading system' is introduced, the grade equivalent to 50 % of the marks in SSLC examination may be fixed as "C+" or value point 5. This is still more discernible from Ext. R2(c) Conditions stipulated and conveyed (vide condition No.2). All concerned, including the 3rd respondent were specifically informed that the admission shall be based on 50 % marks in SSLC or equivalent examination or C+ or value point 5. Admittedly, both the petitioners do W.P. (C) No. 20065 & 28528 of 2010 : 15 : not have 'C+' in all subjects as evident from Ext. P1 certificate. Since 50 % of the marks in the SSLC has been equated to 'C+', the petitioners cannot be heard to say that they were having 50 % marks. The 'value point 5' mentioned in the relevant norms, is cited as the equivalent to 'C+' and in turn to 50 % marks, the petitioners cannot contend they are having 'value point 5' as well; for the obvious reason that they do not have 'C+' in all the subjects. As such, this Court cannot but hold that petitioners were not eligible to have had admission to the Certificate Course in question in the 3rd respondent institution, based on the marks awarded to them in the SSLC as borne by Ext. P1.
11. The next question is with regard to the claim for equitable relief. Going by the contents of Ext. P2 prospectus issued by the 3rd respondent institution, they have stipulated the eligibility W.P. (C) No. 20065 & 28528 of 2010 : 16 : only as "50 % marks", though the said prospectus was issued for the year 2009 - 10 i.e after replacement of 'marks' by the 'grading system' introduced in the year 2005. It is true, that there may not be any fault or misrepresentation on the part of the petitioners, who applied for the course and got admission in response to Ext. P2 and such admission was given by the 3rd respondent on the assumption that the petitioners were having 50 % or equivalent. But, what constitutes '50 %' has been clearly stipulated in Ext. R2(a) Prospectus issued by the Government, R2 (b) Essentiality Certificate and Ext. R2(c) Conditions. There is no case for the 3rd respondent institution that it was not aware of Exts. R2(a), R2(b) and R2(c) and it goes without saying, that the 3rd respondent is bound to effect admission in tune with the said proceedings and not according to their whims and fancies. If at all any W.P. (C) No. 20065 & 28528 of 2010 : 17 : mistake was there in Ext. P2 prospectus issued by the 3rd respondent institution (contrary to the contents of Exts. R2(a), R2 (b) and R2 (c)), whereby some defective admissions were effected including that of the petitioners, it cannot be attributed to the respondents 1 and 2 and no rights or interests flow down from such illegal exercise. If at all any loss has been resulted to the persons like the petitioners, it is for the 3rd respondent institution to compensate for the same. The third respondent has not virtually chosen to turn up before this Court as well, despite the completion of service of notice.
10. There is a case for the petitioners that they had undergone the course for 9 months (leaving back only 3 months), when they were prevented from attending the course; that they have been permitted to continue the course and participate in the examinations based on the interim orders passed by W.P. (C) No. 20065 & 28528 of 2010 : 18 : this Court; that the proceedings have to be taken to a logical conclusion by declaring the results and that no prejudice whatsoever will be caused to anybody in this regard at this stage, on such event. Prima facie, it may appears that, there is some force in the said contentions. But, similar course pursued by this Court on earlier occasions, enabling the ineligible persons to attend the class, to take part in the examinations and finally declaring the results, has been taken serious note of by the Supreme Court and the law has been declared in unequivocal terms as per decision rendered in 2008 (4) KLT 216 (cited supra),holding that, Equity cannot overrule the Rules and Regulations.
12. In the above case, the student, who was not having the required minimum of 55 % in the qualifying examination (but for 53.3 %) was admitted to M.Sc. Computer Science course, which was sought W.P. (C) No. 20065 & 28528 of 2010 : 19 : to be intercepted by the University, despite which, the student was permitted to continue the course and write the examinations by the institution; finally leading to withholding of results. The Writ Petition filed was dismissed by the Single Bench, which was set aside by the Division Bench, extending the relief on equity, however stating that it will not be a precedent. It was the said verdict of the Division Bench, that was subjected to challenge in the Supreme Court. The reason stated by the Division Bench for interference was specifically taken note of by the Apex Court as follows :
'The Division Bench "further in view of the inconsistency" chose to grant relief and further observed that this did not adversely affect the interest of others and that it was too late anybody to contend that by treating her admission in nullify, somebody would have gained anything.
W.P. (C) No. 20065 & 28528 of 2010 : 20 : The Division Bench also took the view that the student had not misrepresented regarding her marks and yet she was given the admission as a normal student. It was further observed by the Division Bench that a strict approach "disrobbing off the fruits of her efforts could have had harsh results." The Division Bench also agreed that such irregular admissions were likely to pave for foul play in the hands of unscrupulous college management, and yet further proceeded to grant relief to the student, in view of the fact that the student had taken the examinations of semesters Ist to IVth and had undergone the full course.
The Apex Court exclaimed that, the Court was at a loss to understand as to how such a course could have been taken and that misplaced sympathy could not have been taken in total breach of Rules. Paragraph 6 of the judgment rendered by the Apex W.P. (C) No. 20065 & 28528 of 2010 : 21 : Court in Regional Officer, CBSE Vs. Ku. Sheena Peethambaran & Ors.(2003 (7) SCC 719 was also quoted therein, which reads as follows "6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in th examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It resulted in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions ....".
13. A Division Bench of this Court had also occasion to consider the scope of plea on Equity in the case of the MBBS students, who were pursuing their studies in various Self-financing Medical Colleges without actually having the eligibility to W.P. (C) No. 20065 & 28528 of 2010 : 22 : get admissions. In the said case, reported in 2010 (4) KLT 103 (Shamin Sainudheen Vs. Medical Council of India), the concerned students were not having the separate minimum of 50 % marks for Physics, Chemistry and Biology in the competitive examination, besides the requisite minimum in the qualifying examination and they were not qualified as per the regulations issued by the Medical Council of India, which was mandatory. After considering the said plea at length, as discussed in paragraphs 13 to 15 and also referring to the decision of the Apex Court cited supra, and the one rendered in Medical Council of India Vs. Manas Ranjan Behera and Others (2010 (1) SCC 173), it was held that Equity cannot override the Statute and that the Constitutional power of the Writ Court under Article 226 of the Constitution of India, did not enable it to issue any direction contrary to the mandatory W.P. (C) No. 20065 & 28528 of 2010 : 23 : statutory regulations, which governed a particular fact situation and which formed part of the law of land.
14. This Court finds it difficult to make any distinction to the basic factual situation, to hold that the binding judicial precedents as mentioned above stand on a different pedestal. The law is now very clear to the effect that, Equity never prevails over the law, eventhough, nobody may be prejudiced at this stage for having not obtained admission to the concerned course. It may be possible for somebody to be prejudiced in the due course, if the candidature of the petitioners for any appointment to a particular post, based on the qualification to be obtained on regularizing the wrong admission given to the petitioners, bringing them on a common platform. The only circumstance under which petitioners were enabled to complete the W.P. (C) No. 20065 & 28528 of 2010 : 24 : course and write examinations was by virtue of the interim orders passed by this Court and not by virtue of their merit / eligibility. The very purpose of any 'interim order' is only to ensure that no opportunity is lost to the petitioners, if they are otherwise qualified and eligible, to be established in the due course. Now, since it has been held that the petitioners are not eligible to have had admitted, the interim orders cannot be of any significance. Similarly, the principle of 'Actus Curiae Neminum Gravabit' (Act of Court shall prejudice No man) is applicable to both the contesting parties alike. The fact that this Court happened to pass interim orders in favour of the petitioners, shall not tilt the balance in any manner, when it comes to the case of the respondents, who ultimately succeed in substantiating their stand.
W.P. (C) No. 20065 & 28528 of 2010 : 25 :
15. The reliance placed by the learned counsel for the petitioners on the decisions of the Apex Court reported in Santan Gauda Vs. Berhampur University (1990 (3) SCC 23) and 2000 (9) SCC 391 (State of U.P. and Others Vs. Dr. Reena Singhal) and that of this Court in 1991 (2) 612 (Bobby Cyriac Vs. Principal) is with reference to the principle of 'Promissory Estoppal'. The factual position in the above cases stands entirely on different facts and circumstances and there is absolutely no case for the petitioners that any such promise, (deemed or otherwise), was there from the part of the respondents 1 and 2, whose proceedings (Exts. R2(a), R2(b) and R2(c)) were very much categoric, stipulating a minimum of 50 % marks in SSLC or C+, making C+ as equivalent to 50 % marks, which admittedly is not possessed by either of the petitioners, as borne by Ext. P1 certificate. W.P. (C) No. 20065 & 28528 of 2010 : 26 : Further, there is no estoppal against law and as such, the reliance sought to be placed on the said decisions is wrong and misconceived and not sustainable.
16. This Court is always bound by the law declared by the Apex Court, more so, when it has been repeatedly alerted as to the course and proceedings pressed, as reflected from the very opening paragraph of the decision in 2008 (4) KLT 216 (cited supra), which reads as follows :
"2. It is once again, a judgment has come from the High Court in complete derogation of the observations of this Court against the compromising of the educational standards in the matter of admissions to a particular course by showing unnecessary sympathies. The Mahatma Gandhi University has come up against the judgment of the Division Bench of the Kerala High Court whereby the Division Bench allowing the appeal of a student, has directed the University to W.P. (C) No. 20065 & 28528 of 2010 : 27 : declare the withheld result of the student. The direction though was, of course, without creating precedence, as a special case.
This Court finds that, it is a matter of judicial discipline and this Court does not want to contribute more or perpetuate any mistake.
Both the writ petitions fail and they are dismissed accordingly.
However, the rights and liberties of the petitioners to recover the loss sustained and to claim compensation from the 3rd respondent institution, if found legal and sustainable are left open.
P. R. RAMACHANDRA MENON, JUDGE kmd