Kerala High Court
Nanditha T.K vs Apj Abdul Kalam Technological ... on 14 August, 2017
Author: V Raja Vijayaraghavan
Bench: Navaniti Prasad Singh, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939
WA.No. 1730 of 2017 () IN WP(C).24324/2017
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AGAINST THE JUDGMENT IN WP(C) 24324/2017 of HIGH COURT OF KERALA
DATED 14-08-2017
APPELLANT/PETITIONER:
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NANDITHA T.K.
IIND YEAR STUDENT,
COLLEGE OF ARCHITECTURE,
THIRUVANANTHAPURAM,
PRESENTLY RESIDING AT "SHIVAM",
SURABHI NAGAR, NEAR RAILWAY STATION
PAYYANNUR,
KANNUR- 670 307
BY ADVS.SRI.KALEESWARAM RAJ
KUM.A.ARUNA
RESPONDENTS/RESPONDENTS:
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1.APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR,
CET CAMPUS,
THIRUVANANTHAPURAM- 34.
2.VICE CHANCELLOR
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
CET CAMPUS,
THIRUVANANTHAPURAM- 34.
3.REGISTRAR
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
CET CAMPUS,
THIRUVANANTHAPURAM- 34.
4.CONTROLLER OF EXAMINATION
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
CET CAMPUS,
THIRUVANANTHAPURAM- 34.
5.UNIVERSITY OF KERALA
REPRESENTED BY ITS REGISTRAR
THIRUVANANTHAPURAM.
6.CONTROLLER OF EXAMINATIONS
UNIVERSITY OF KERALA
THIRUVANANTHAPURAM
7. COLLEGE OF ARCHITECTURE
THIRUVANANTHAPURAM,
REPRESENTED BY ITS PRINCIPAL.
8.THE PRINCIPAL
COLLEGE OF ARCHITECTURE
THIRUVANANTHAPURAM.
R BY SRI.S.KRISHNAMOORTHY, SC, KTU
R BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-
08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VPS
"C.R."
NAVANITI PRASAD SINGH, C.J. &
RAJA VIJAYARAGHAVAN V., J.
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W.A. No.1730 OF 2017
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Dated this the 18th day of August, 2017
JUDGMENT
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Navaniti Prasad Singh, C.J.
1. In view of the projected urgency in the matter, upon special mentioning, we have agreed to hear this appeal for final disposal with the consent of the learned counsel for the appellant/petitioner, the learned standing counsel for the APJ Abdul Kalam Technological University (APJ University) and the learned standing counsel for the University of Kerala.
2. We have heard Sri.Kaleeswaram Raj, learned counsel for the appellant/petitioner, Sri.S.Krishnamoorthy, learned standing counsel for the APJ University, and Sri.Thomas Abraham, learned standing counsel for the University of Kerala at length. The parties agree that so far as respondent Nos.7 and 8 are concerned, they are proforma respondents and need not be noticed, as both the Universities are duly represented.
3. The present intra court appeal is against the judgment dated W.A. 1730/2017 2 14.8.2017 in W.P.(C) No.24324 of 2017 and analogous cases. The appellant is concerned only with her writ petition i.e., W.P.(C) No.24324 of 2017. The facts are not in dispute. The appellant was a student of College of Architecture, Thiruvananthapuram for the Bachelor of Architecture (B.Arch.) course and joined the College during the session 2015-2016. The College of Architecture, Thiruvananthapuram was at the relevant time affiliated to the University of Kerala. She cleared her theory papers in respect of the I semester; but in the II semester, she dropped one theory paper. As per the Kerala University Statute and Regulation, she was promoted to the III semester. She attended some classes but then, allegedly having fallen critically sick, she was unable to pursue her studies for almost a year.
4. It is not in dispute that in the meantime, more specifically in the month of September, 2015, the State Government took a decision to transfer the affiliation of the College of Architecture, Thiruvananthapuram from University of Kerala to APJ University which was constituted under the APJ Abdul Kalam Technological University Act, 2015 ("the Act, 2015"), which Act came into force W.A. 1730/2017 3 with effect from 31.8.2015. The APJ University was intended to be an exclusive Technological University for the improvement of infrastructural and academic quality in technical educational institutions. All the technological colleges and courses affiliated under various Universities in the State of Kerala were brought under the APJ University. The effect was that, on and from session 2016-2017, students admitted to the College of Architecture, Thiruvananthapuram for the B.Arch. course under the Kerala University became students of the APJ University.
5. The appellant on recovering sufficiently, reported back to the College and sought to continue her studies by rejoining the III semester, which she had dropped midway. Instead, as by then, the College of Architecture, Thiruvananthapuram had been affiliated to the APJ University, the authorities of the APJ University directed the appellant to seek fresh admission in the II semester of the B.Arch. course being conducted by that University. This is what brought the appellant/petitioner to this Court. Her plea was simple. She was a student of B.Arch. course of the University of Kerala and was in the III semester, when she dropped studies and W.A. 1730/2017 4 as such, she was entitled to resume her studies from III semester. She could not be asked to go back and take readmission in II semester and that too, for B.Arch. course of the APJ University of which she was not a student either in the I and II semester or the incomplete III semester.
6. To the contra, learned standing counsel for the APJ University submitted that as the appellant had failed in one theory paper in the II semester, while she was a student of the University of Kerala, as per the APJ Abdul Kalam Technological University Rules and Regulations, she must first clear all the papers of the I and II semester and secure 39 credits to her account to be promoted to the III semester. Having failed in one paper and having failed to secure 39 credits, as per the University Rules and Regulations, she had to go back to the II semester and seek re-admission to the course, as a case of migration from University of Kerala to APJ University. Their stand is that APJ University is not conducting or responsible for conducting courses as stipulated by the University of Kerala and it cannot take that responsibility nor it has that responsibility. If the student wants to continue, then, the student W.A. 1730/2017 5 has to follow the curriculum, the rules and regulations of the APJ Abdul Kalam Technological University and not of the University of Kerala. University of Kerala is part of history, so far as the APJ University is concerned and the college is concerned. The learned single Judge accepted the arguments of the APJ University and dismissed the writ petition and hence, the intra court appeal.
7. After hearing the parties, in our view the appeal has got to be allowed and the judgment and order of the learned single Judge being erroneous, has to be set aside.
8. The entire stand of the APJ University is in direct conflict with the statutory provisions, as contained in Section 60(1) and Section 72 of the Act, 2015. We may in fact note that provisions of Section 60(1) of the said Act was not brought to the notice of the learned single Judge, for, if that was brought to the notice of the learned single Judge, we are sure, the result would have been otherwise.
9. Before proceeding further, we may first notice as to what is the effect of transfer of affiliation. Nothing changes in the college or the institution. The building remains where it is. The facilities remains the same. The teaching faculty remains the same. The W.A. 1730/2017 6 only difference is that they would now follow the rules and regulations of the new University. What would be the effect on the students? Obviously, a student who had taken admission for a course, which was earlier conducted and controlled by the former University under the rules and regulations of the former University, cannot cease to operate and new course, new rules and new regulations apply for such students. If there is similarity in rules, regulations, courses and examination schemes, it could be that they could switch over the tracks. But where there are differences, as in the present case, and that too major differences, students cannot be prejudiced. We may notice some differences in the curriculum and standards. The first major difference is the marking and evaluation system. Under the University of Kerala, the markings are on percentage basis, whereas under the APJ University, the system is of credits. There is accumulation of credits to promote students to the next semester, whereas under
the University of Kerala students have to clear minimum papers in a semester to be promoted to the next semester.
10.The learned counsel agree that even the course, curriculum and W.A. 1730/2017 7 standards thereof are quite different. Something that was taken up in the I semester in the University of Kerala is a part of IV semester in the APJ University. The course distributions are dissimilar. Under the APJ University, unless a person gets a minimum credit to his account, he cannot be promoted; whereas under the University of Kerala, like in the case of appellant/petitioner, even if she failed in one theory paper in II semester, she could be promoted to III semester, where she was in fact studying when she dropped out. What happens to these students who had started their academic sessions prior to the change of affiliation? These contingencies in our view are covered by Section 60(1) and Section 72 of the Act, 2015.
Section 60 Affiliation and recognition:-
(1) The University can affiliate any of the Engineering Colleges or Institutions imparting education in technology owned by Government of Kerala or Government controlled societies, Private aided and Private unaided self-financing educational agencies, which, before the date of commencement of this Act remained affiliated to the different Universities, except Deemed Universities in the State of Kerala, provided they meet the criteria prescribed under this Act, Ordinances and Statutes for affiliation, including but not confined to availability of faculty, administrative machinery, infrastructure (buildings, laboratories etc.) which will be laid down by the University from time to time under the provisions of this Act. Such colleges meeting the specified criteria can be affiliated to the University as (i) regular colleges or (ii) autonomous colleges (iii) colleges with academic autonomy or (iv) institutions. The affiliation of such institutions to other Universities in the State except Deemed Universities, W.A. 1730/2017 8 shall stand transferred to the University on and from the date of commencement of this Act, subject to the conditions that the affiliation of these colleges or institutions in respect of the students admitted to Engineering courses shall continue till those batches of students complete their courses, the examinations of all such students shall be conducted by the Universities to which they were attached, degrees, postgraduate degrees or diplomas or other distinctions shall be awarded by such Universities:
Provided that the institutions in the technological branch maintained by other Universities of the State as their departments or their respective constituent colleges or the engineering colleges or teaching institutions under the deemed universities and the National Institutes established by the Central Government shall not come under the jurisdiction of the University.
Section 72 Matters relating to students pursuing studies in existing colleges:-
(1) Notwithstanding anything contained in this Act or the Acts of the other Universities in the State, any student, who immediately before the date of affiliation of a particular institution to this University after going through the process of affiliation as specified in Section 60 was studying in that institution for any degree, post-graduate degree, diploma or certificate of the concerned University, shall be entitled to appear for the examination of the University concerned and if he qualifies such examination, be entitled to be conferred with the corresponding degree, post-graduate degree, diploma or certificate, as the case may be, of the University established under this Act.
(2) Notwithstanding anything contained in this Act or the Statutes, Ordinances or Regulations made thereunder, any student of any college affiliated to the University who is undergoing study in any of the universities in the State shall be permitted to complete his course and preparation therefore, and the University established under this Act shall make arrangements for holding examination for such students, examinations in accordance with the curricula of studies of the concerned Universities as the case may be, until he completes the said course of studies.
11.First to section 60 (1) of the Act, 2015. The latter part of the section quoted above deals with the transition period. It clearly W.A. 1730/2017 9 says that those students who had been admitted to Engineering courses shall continue till those batches of students complete their course and the examinations of such students shall be conducted by the University to which they were attached and degrees, postgraduate degrees or diplomas would be awarded by such University. This clearly predicates no change of track or curriculum in any manner for students of one University, when their institution gets affiliated to the Technological University. In other words, the courses, curriculum rules and regulations of the Technological University would not apply to them and they would continue with the stipulations and requirements of the original University. This is obviously to maintain an undisturbed continuity, so far as students are concerned.
12.We would like to notice the last part of the said provision as well. It mentions about award of degree diploma etc. by such University, meaning, the old University, which should be the natural consequence because, they were pursuing the course under the old University. Now, we may refer to Section 72 of the Act, 2015. Section 72 of the Act, 2015 is contained in Chapter X and talks of W.A. 1730/2017 10 transitional provisions. The first thing we may note is Section 60 of the Act, 2015 also provided for transitional provision. But, for reasons known to the draftsman, instead of that provision being in this Chapter, it was made a part of Section 60 of the Act, 2015 as well. Section 72(1) of the Act, 2015 then makes it clear that the students already enrolled under the old University would continue as specified in Section 60 of the Act, 2015 and shall study the old courses. This makes it clear and reproduces the provisions of Section 60 of the Act, 2015. But the difference arises in the last part of sub section (1). As noticed earlier, the last part of Section 60(1) of the Act, 2015 talks of award of degree by the old University. Last part of Section 72(1) of the Act, 2015, on the other hand, talks of award of degree etc. of the University established under this Act, meaning the APJ University.
13.We would attempt to reconcile the two. The logical would be to read down the provisions of Section 72(1) of the Act, 2015 by reading the expression 'University' established under this Act, to mean 'University' not established under this Act, or, in other words, the original or old University, to bring it consistent with Section W.A. 1730/2017 11 60(1) of the Act, 2015. In the rest of the provision, there is no ambiguity or conflict.
14.Sub Section (2) of Section 72 of the Act, 2015 then creates an obligation on the new University, i.e., APJ University, to facilitate to make all arrangements of holding examinations for such students in accordance with the curriculum etc., of the old University until the student completes the said course of study. Thus, from beginning to end, the students do not have to change their courses or the scheme but are to continue under the same curriculum up to the day he or she passes out. Thus, if we read Section 60(1), 72(1) and 72(2) of the Act, 2015, the scheme and the legislative intent is clear. The students who were earlier in different Universities would be undisturbed. They would continue with the curriculum rules and regulations of courses according to and as prescribed by the old University and it shall be the responsibility of the Technological University to which their institutions got affiliated to ensure this process. This being our finding about the scope and the nature of the scheme envisaged by the Act, 2015, let us see what has happened.
W.A. 1730/2017 12
15.From the submissions as made by the learned standing counsel for the APJ University, it seems what they have done is just the opposite. What we perceive is that the authorities of the APJ University failed to notice these provisions at all. To them, it was that as the institution had now got affiliated to their University, everything applied to the institution as per the Technological Universities rules, regulations and curriculum and it is not their responsibility to allow students to carry on courses as earlier prescribed by their original Universities. The students had to migrate to the new courses. They had to comply with the rules and regulations for the new courses and curriculum as prescribed by the Technological University.
16.For example, in case of the appellant/petitioner, they state that as she had not scored 39 credits in the first two semesters, she cannot be allowed to join the III semester. As she had failed in one paper in the II semester, she would have to clear that paper. This was not the requirement or the system in the University of Kerala. There were no concept of credits and, as is not in dispute, even though she failed in one paper in II semester, she was liable to be W.A. 1730/2017 13 and she was in fact promoted to the III semester which she was attending, but dropped midway because of illness. This shows that the authorities of the APJ University totally were under the mis- appreciation of law. They misunderstood and misapplied the provisions. We wonder how many other students must have been subjected to such unauthorized changes. Students who took admissions in the institutions, when the institution was affiliated to the University of Kerala, would continue to be students of University of Kerala and would graduate as such. That is, what is contemplated in Section 60 of the Act, 2015 and that is contemplated in Section 72(1) of the Act, 2015 and the obligation to ensure that by virtue of Section 72(2)of the Act, 2015 is upon the Technological University to which the institutions have migrated. To illustrate, the first batch of admissions to the course of B.Arch. in the Technological University would be from 2016-2017. Therefore, the students who took admission in the College of Architecture, Thiruvananthapuram for B.Arch. course from the session 2016-2017 would be governed by and would be treated as students of the Technological University. But, so far as the W.A. 1730/2017 14 students of earlier batches are concerned, i.e., 2015-2016 and prior batches including the appellant, they would continue with course, curriculum, rules and regulations of the University of Kerala till they complete their courses of studies, meaning, the full five year course. They cannot be and they are statutorily not required to seek re-admission or change course midway from University of Kerala to the APJ University. They would get their degree certificates, diplomas, as the case may be, of University of Kerala. If the APJ University has done otherwise, that would be wrong and a correction is due.
17.In view of the above, what they have done with the appellant is indeed wrong and cannot be sustained upon the plain reading of the statutes, as referred to above. She cannot be treated as a student readmitted to the course. She would be treated as a student continuing the course with a break. Even if for any technical reason she is to be treated as a re-admission, it would be re-admission to a continuing course and the continuing course would be nothing else but the B.Arch. course of University of Kerala governed by the rules and regulations of the University of W.A. 1730/2017 15 Kerala. The credit system and other rules of the APJ University would not apply. Hence, even if she was to take re-admission, the re-admission would be to the III semester with a chance to clear the semester II paper in supplementary examination, as were conducted by the University of Kerala. We would like to further clarify one lurking doubt amongst the two lawyers representing the two Universities i.e., with regard to the responsibility. We have no doubt in this regard if Sections 60(1) and Section 72(2) of the Act, 2015 are read together. The legislative intent is clear and unambiguous. They are to continue with their courses as prescribed by the old University and the new University i.e., APJ University, would be a facilitator in this regard. But the examinations would be conducted by the University of Kerala. Of course, by mutual agreement University of Kerala may transfer this responsibility to the APJ University. Whatever may be the situation, we have settled the legal position. Whatever position, the two Universities may take, the interest of the student for uninterrupted studies without change of track is paramount and that has to be kept in mind by all. Wherever contrary decisions W.A. 1730/2017 16 were taken or in cases where students have been subject to procedures not sanctified by law as explained by us, the process has to be revered and set right. Thus, in view of our findings as above, we are unable to uphold the judgment of the learned single Judge and the same is hereby set aside. The APJ University is directed not to treat the re-admission of the appellant to the course of B.Arch. under the APJ University but to treat her to be a student of B.Arch. course of the University of Kerala and which she shall continue as such. Her readmission would be in III semester and not in II semester. She would have the right to clear the backlog papers which are to be conducted by the University of Kerala as supplementary examination as was usually otherwise done. With these directions and observations, this appeal stands allowed.
Sd/-
NAVANITI PRASAD SINGH, CHIEF JUSTICE Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE vps 19.8