Kerala High Court
Akash Chandran vs The General Convener And Director on 7 December, 2018
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, Anil K. Narendran
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
FRIDAY,THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940
W.A.No. 2386 of 2018
AGAINST THE JUDGMENT IN WP(C) 39425/2018 DATED 4.12.2018 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
AKASH CHANDRAN, AGED 16 YEARS, (MINOR),
S/O. CHANDRASEKHARAN PILLAI, STUDYING AT STD. XI,
GOVT. VHS AND BHSS, KOTTARAKKARA P.O.,
RESIDING AT CHANDRA VILASAM, PUTHUSSERYKONAM, EZHUKON P.O.,
KOLLAM DISTRICT, REPRESENTED BY HIS FATHER
CHANDRASEKHARAN PILLAI, AGED 48 YEARS,
S/O. APPUKUTTAN PILLAI, RESIDING AT CHANDRA VILASAM,
PUTHUSSERYKONAM, EZHUKON P.O., KOLLAM DISTRICT,
AS NEXT FRIEND GUARDIAN.
BY ADVS. SRI.MANU RAMACHANDRAN,
SRI.M.KIRANLAL,
SRI.R.RAJESH (VARKALA) &
SRI.T.S.SARATH
RESPONDENTS/RESPONDENTS:
1 THE GENERAL CONVENER AND DIRECTOR -
- OF PUBLIC INSTRUCTIONS (GENERAL),
59TH KERALA SCHOOL KALOLSAVAM 2018-19
AT ALAPPUZHA, ALAPPUZHA DISTRICT- 688 001.
2 THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA
AND CONVENOR PROGRAMME COMMITTEE,
59TH KERALA SCHOOL KALOLSAVAM 2018-2019
AT ALAPPUZHA, ALAPPUZHA DISTRICT- 688 001.
3 THE APPEAL COMMITTEE, REVENUE DISTRICT KALOTHSAVAM,
KOLLAM REVENUE DISTRICT REPRESENTED BY
ITS CHAIRMAN/DEPUTY DIRECTOR OF EDUCATION,
KOLLAM DISTRICT-691 001
BY GOVT. PLEADER SRI. ARVINDA KUMAR BABU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.2386 of 2018
:-2-:
JUDGMENT
Hrishikesh Roy, CJ.
The appellant and his teammates of Government VHSS & BHSS, Kottarakkara, participated in the item 'Parichamuttu' for boys in Kollam Revenue District School Kalothsavam, 2018-19, at the Vimalahridya HSS, Kottarakkara and secured the 3 rd position belying their higher expectation. Thus aggrieved, they challenged the fairness of the assessment made by the Judges in the competition, by preferring an appeal before the Appeal Committee (3rd respondent).
2. The Appeal Committee, as can be seen from their order dated 28.11.2018 (Ext.P6), reviewed the video of the performance in the competition and concluded that the complainants did not perform as well, as the team which secured the first position. On this basis, the appeal was rejected by the Ext.P6 order.
3. The appellant then filed W.P.(C)No.39425/2018, where he raised the issue of slippery stage on which the competitions were conducted and also the faulty assessment made by the Judges. However, the learned Judge under the impugned judgment dated 4.12.2018, dismissed the writ petition by rejecting the contention that the appeal has not been considered in terms of the Kerala School Kalothsava Manual, 2018.
4. Sri.Manu Ramachandran as the learned counsel representing the appellant/ petitioner would point out that the dress of the team which secured the first position is much inferior to the dress worn by the petitioner's team. Moreover since the floor of the stage was slippery, this was a serious disadvantage for the petitioner.
5. On the above contention what needs to be observed is that a slippery stage will be equally disadvantageous to all participants. Insofar as the dismissal order of the Appeal Committee, we find that they had reviewed the video performance of the teams and on that basis concluded that the performance level of the petitioner's team was not upto W.A.No.2386 of 2018 :-3-:
the mark of the team which won the first position. As per the Kalothsava Manual, an appeal to the appeal Committee has to be submitted in the form prescribed in Appendix-II, wherein the appellant has to state the grounds of appeal. The petitioner has not chosen to produce a copy of the appeal, along with this writ petition. Though it was alleged in the writ petition that two out of three Judges who have evaluated the event were not expert in the item 'Parichamuttu', the basic facts in support of such contention is not pleaded in the writ petition. The materials placed on record would not show that such a contention was ever raised before the Appeal Committee. It can't also be overlooked here that the team which secured the top position is not arrayed in the court proceedings.
6. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534], the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not so pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
7. In Rhomy Chandra Mohan v. Gen. Convenor, Balakalotsavam and Yuvajanotsavam (1992 (1) KLJ 515) this Court, while dealing with the grievance of a student who had participated in the item 'Bharathanatyam' in the Trichur District Yuvajanotsavam, 1992 held that the award of marks and ranks in a contest in the nature of W.A.No.2386 of 2018 :-4-:
Yuvajanotsavam is primarily the duty and responsibility of the Judges who have been appointed to evaluate the merits or demerits of the various contestants. It is also a well- known fact that the ultimate difference between the top notchers in such contests is often marginal and little and the ranks go by very low differences in marks. But that is inevitable. The Judges who are experts react differently from different angles and they can have different perceptions on the level of the performance. It is not possible to have any absolute standards or absolute Judges who react alike in all situations. It is precisely because of this possibility, there is multiplicity of Judges for such contests, so that the individual predilections or tastes or ideas of one are offset by the sensitivities of the others. In the said decision this Court held further that the assessment of merit is ultimately a matter of objective assessment by a set of impartial Judges guided by relevant principles. It is not possible for this Court to sit in appeal over such awards in a proceeding under Article 226 of the Constitution. It is not within the province of this Court to re-assess the merits or demerits of candidates participating in competition made by competent judges appointed for the purpose. This Court can interfere only when there is a plain illegality or some mala fides or some perversity or some other grossly vitiating circumstance in the assessment of merit. Having sat on the fence and taken the chance of a decision with the Judges who had been appointed, it is not open to the petitioner to contest the very eligibility of the Judges when the decision goes against him. This Court will not, in exercise of the jurisdiction under Article 226 of the Constitution of India entertain such challenges, from a defeated candidate.
8. In Sweety v. State of Kerala (1994 (1) KLJ 47), following the law laid down in Rhomy Chandra Mohan's case (supra), this Court held that every college or school authorities have discretion to adopt any rule or procedure to regulate the curricular or extra - curricular activities of students in their institutions. The educational authorities have also power to frame rules or by-laws for their own guidance in cases where State level or District level W.A.No.2386 of 2018 :-5-:
functions or festivals are organised to promote extra - curricular activities among students. Under whatever name they are called, they are purely rules, intended to serve internal discipline among the students. The persons or authorities functioning under such rules shall have absolute freedom to control and check the affairs of the students participating in such extra - curricular activities. Of course this freedom is subject to inherent and inbuilt restrictions. In maintaining internal discipline among students who participate in such functions or festivals, the persons or authorities in charge may adopt different modes for the conduct of the affairs in an orderly manner. It was further held that such persons or authorities shall not be called upon to explain their conduct in the discharge of their functions in exercise of powers available to this Court under Article 226 of the Constitution. Of course the position is different if there is violation of fundamental rights of the students attending such festivals or functions by the action of such persons or authorities. In such extreme cases this Court will be justified if interference is made.
Having considered the pleadings and materials on record and in the light of the law laid down in the decisions discussed above, we are of the considered opinion that the Writ Appeal is devoid of merit and accordingly the same is dismissed.
Sd/-
HRISHIKESH ROY, CHIEF JUSTICE Sd/-
ANIL K.NARENDRAN, JUDGE ami/7.12.18 //True copy// P.A.to Judge