Kerala High Court
Neethu A.T vs University Of Calicut
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938
WP(C).No. 15688 of 2015 (I)
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PETITIONER(S)`:
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1. NEETHU A.T,
D/O.CHANDRAN A.T,AGED 19 YEARS,
STUDENT OF 4TH SEMESTER-B.TECH(CIVIL ENGG.),
SREEPATHY INSTITUTE OF MANAGEMENT AND TECHNOLOGY,
RESIDING AT ARAYAL THARAMMAL HOUSE,
CHENGAL KOOVAPPURAM P.O., PAZHAYANGADI, KANNUR-670303.
2. GOPIKA C,
D/O.M.N.GOPALAKRISHNAN,AGED 19 YEARS,
STUDENT OF 4TH SEMESTER-B.TECH(CIVIL ENGG.),
SREEPATHY INSTITUTE OF MANAGEMENT AND TECHNOLOGY,
RESIDING AT CHITTOTHIDAM HOUSE, P.O.VALAPATTANAM,
CHIRAKKAL, KANNUR-670010.
BY ADVS.SRI.MAHESH V RAMAKRISHNAN
SRI.S.UNNIKRISHNAN (VARKALA)
RESPONDENT(S):
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1. UNIVERSITY OF CALICUT,
REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY,
CALICUT, MALAPPURAM-673635.
2. THE CONTROLLER OF EXAMINATIONS,
CALICUT UNIVERSITY, CALICUT, MALAPPURAM-673635.
3. SREEPATHY INSTITUTE OF MANAGEMENT AND TECHNOLOGY (SIMAT)
VAVANOOR, KOOTTANAD, PALAKKAD-679533.
4. NATIONAL INSTITUTE OF OPEN SCHOOLING (NIOS),
REPRESENTED BY ITS REGIONAL DIRECTOR,
34/2740 MAMANGALAM, KOCHI-682025.
5. UNION OF INDIA,
REPRESENTED ITS UNDER SECRETARY TO GOVERNMENT, MINISTRY
OF HUMAN RESOURCE DEVELOPMENT, NEW DELHI.
-2-
-2-
WPC NO 15688 OF 2016:
---------------------
6. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS
HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM-695001.
R1,R2 BY ADV. SRI.SANTHOSH MATHEW,SC
R3 BY ADV. SRI.T.K.VENUGOPALAN
R4,R5 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R4,R5 BY ADV. SRI.H.GOPAKUMAR, CGC
R6 BY GOVERNMENT PLEADER SRI P.V.ELIYAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31-08-2016, ALONG WITH WPC. 27924/2015,& WPC. 28740/2015,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 15688 of 2015 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT. P1 : TRUE COPY OF THE CERTIFICATE DATED.21-10-
2013 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER
NO.1.
EXT. P2 : TRUE COPY OF THE CERTIFICATE DT.21-10-2013
ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER NO.2.
EXT. P3 : TRUE COPY OF THE HALL TICKET OF THE B.TECH
3RD SEMESTER EXAMINATION ISSUED BY THE 1ST RESPONDENT
UNIVERSITY TO THE PETITIONER NO.1.
EXT. P4 : TRUE COPY OF THE HALL TICKET OF THE B.TECH
3RD SEMESTER EXAMINATION ISSUED BY THE 1ST RESPONDENT
UNIVERSITY TO THE PETITIONER NO.2.
EXT. P5 : TRUE COPY OF THE CERTIFICATE DATED.NIL
ISSUED BY THE 1ST RTESPONDENT TO THE 1ST PETITIONER.
EXT. P6 : TRUE COPY OF THE MEMO DATED.4-4-15 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONERS.
EXT. P7 : TRUE COPY OF THE LETTER DATED.7-4-2015 SENT
BY THE 3RD RESPONDENT TO THE 6TH RESPONDENT.
EXT. P8 : TRUE COPY OF THE ORDER NO.EE.I/MATRI &
RECOG/2013-14 DATED.8-5-2015 ISSUED BY THE 2ND
RESPONDENT.
EXT. P9 : TRUE COPY OF THE CERTIFICATE DATED.7-4-2013
ISSUED BY THE 4THE RESPONDENT TO THE PETITIONER NO.1.
EXT. P10 : TRUE COPY OF THE CERTIFICATE DATED.7-4-
2013 ISSUED BY THE 4THE RESPONDENT TO THE PETITIONER
NO.2.
EXT. P11 : TRUE COPY OF THE RESOLUTION DATED.14-9-
1990 OF THE 5TH RESPONDENT.
EXT. P12 : TRUE COPY OF THE LETTER DATED.25-7-1991
ISSUED BY THE ASSOCIATION OF INDIAN UNIVERSITIES TO
THE 4TH RESPONDENT.
EXT.P13 : TRUE COPY OF THE RELEVANT PAGES OF THE
PROSPECTUS (KEAM-2013) FOR ADMISSION TO ENGINEERING &
OTHER COURSES PUBLISHED BY THE GOVT OF KERALA.
EXT. P14 : TRUE COPY OF THE GUIDELINES FOR ADMISSION
TO THE ENGINEERING DEGREE PROGRAMME ISSUED BY THE
AICTE.
EXT. P15 : TRUE COPY OF THE EXTRACT FROM REGULATION
GRADUATE MEDICAL EDUCATION 1997 PUBLISHED BY THE
MEDICAL COUNCIL OF INDIA.
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-2.
WPC NO 15688 OF 2015:
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EXT .P16 : TRUE COPY OF THE ELIGIBILITY CONDITION FOR
B.TECH PUBLISHED BY THE IIT KANPUR IN THEIR OFFICIAL
WEBSITE.
I.A. NO.13286 OF 2015:
---------------
EXT.P13 : TRUE COPY OF THE ORDER DATED NIL ISSUED BY
THE REGISTRAR OF THE 1ST RESPONDENT UNIVERSITY.
EXT P14 : TRUE COPY OF THE LIST OF
RECOGNIZED/EQUALIZED CORRESPONDENCE COURSE OF OTHER
UNIVERSITIES PUBLISHED BY THE 1ST RESPONDENT
UNIVERSITY AS ON 21-05-2015.
RESPONDENT(S)' EXHIBITS NIL
----------------------
/TRUE COPY/
P.A.TO JUDGE
K.V.
ALEXANDER THOMAS, J.
-----------------------------
W.P(C).Nos.27924/2015, 15688/2015
and 28740/2015
---------------------------------
Dated this the 31st day of August, 2016.
J U D G M E N T
The facts in these three Writ Petitions are broadly similar and the matter in W.P.(C).No.27924/2015 is taken as the leading case. W.P(C).No.27924/2015
2. The petitioner herein had passed the Senior Secondary School Examination conducted by the National Institute of Open Schooling (NIOS) formerly nomenclatured as National Open School (NOS) which is an organisation regulated by the Government of India, as per Ext.P-1 dated 4.6.2013 with Grade A in all the subjects concerned (viz., English, Maths, Physics, Chemistry & Biology). Thereupon he had applied for admission to the 4 Year B.Tech Engineering courses in May, 2013. Ext.P-9 is the prospectus issued for the said academic year 2013-14 by the State Government's Commissioner for Entrance Examination (CEE). Relevant portion of W.P.(C).27924/15 etc. - : 2 :-
clause 6.2.2.(a) of Ext.P-9 prospectus reads as follows:
"Candidates who have passed Higher Secondary Examination, Kerala, or Examinations recognized as equivalent thereto, with 50% marks in Mathematics separately, and 50% marks in Mathematics, Physics and Chemistry put together are eligible for admission. In case, the candidate has not studied Chemistry, the marks obtained in Computer Science shall be considered. In case, the candidate has not studied Chemistry and Computer Science, the marks obtained in Biotechnology shall be considered.
studied Chemistry, Computer ScienceInand Biotechnology, the marks case, the candidate has not obtained in Biology shall be considered. The marks as shown in the mark list of the Board Examination obtained from the respective Higher Secondary Board shall be considered for academic eligibility."
It is not in dispute that all the petitioners in these batch of cases have secured the minimum stipulated marks in the above said subjects referred to in the above referred clause 6.2.2.(a) of Ext.P-9. The Regulations framed by the All India Council for Technical Education (AICTE) under the enabling provisions of the AICTE Act insist for possession of 10+2 Senior Secondary Examination Certificate with the requisite marks in Physics, Chemistry and Mathematics, etc. None, including the respondent University have a case that the petitioners do not possess the minimum eligibility norms prescribed by the AICTE. The petitioner had thereupon appeared for common Entrance Examination conducted by the State Government Commissioner for Entrance Examination for the academic year 2013-14 and qualified for Engineering Degree in the Entrance Examination. Thereupon, the Government Commissioner W.P.(C).27924/15 etc. - : 3 :-
for Entrance Examination had duly allotted the petitioner for admission to the B.Tech Degree course in Mechanical Engineering. Ext.P-2 is the allotment memo dated 3.7.2013 issued by the Commissioner for Entrance Examination for the above said allotment and admission. The petitioner was thus duly allotted for admission in the 3rd respondent Jawaharlal College of Engineering & Technology, Lakkidi, Ottappalam, Palakkad District, affiliated to the respondent-Calicut University. Thereupon, the petitioner had duly joined for the said course in July, 2013 itself. It is not in dispute that the University examination for I and II semesters for the said Engineering course is a combined one. It was conducted after the end of II semester. Before appearing for the said examination, as per the procedure prescribed by the respondent-University, the respondent-College authorities had duly processed the application of the petitioner for registration of his candidature for appearance in the University Examination and forwarded the same to the respondent-University and it is also not in dispute that the respondent-University authorities had allowed necessary registration on the said application of the petitioner forwarded by the respondent-College concerned. In tune with this, the petitioner W.P.(C).27924/15 etc. - : 4 :-
was permitted to appear in the combined I and II semester examinations for the academic year 2013-14. Results of the petitioner were also duly declared by the respondent-University in which he had duly qualified. It may be relevant to note that the Calicut University Act and the statutes framed thereunder have made provisions for admissibility of qualifications for admissions to various courses, etc. By Ext.P-6 proceedings issued by the respondent-Calicut University, it has been certified that Senior Secondary School Examination of the National Institute of Open Schooling for the year April, 2013, is offered as a correspondence study and it has been recognized by the Calicut University for the purpose of higher studies. Still further, as per Part D of Ext.P-4 proceedings issued by the Equivalency & Migration Section of the Calicut University, the Senior Secondary Certificate Examination (SSCE) awarded by the NIOS has been recognized by the University as an acceptable and recognised qualification for prosecution of higher studies, as on July, 2014. No restriction or exception can be read into the recognition granted in Exts.P-4 & P-6 so as to give rise to any understanding that the said recognition is only for the purpose of higher studies other than for engineering courses. It is W.P.(C).27924/15 etc. - : 5 :-
to be noted that the University does not have a case that the recognition granted in Exts.P-4 and P-6 is only for the purpose of higher studies other than for Engineering Degree courses in the University.
3. While the petitioner was undergoing IV semester in the academic year 2014-15 in the respondent-Engineering College, the respondent-University had issued Ext.P-3 proceedings dated 26.8.2015 inter alia ordering that the registration granted to the petitioner by the respondent-University for prosecuting Engineering Degree course stands cancelled and that candidates like the petitioner are lacking pre-requisite qualification for B.Tech admission. It is also brought to notice that the respondent-Calicut University had issued Ext.P-5 proceedings on 21.5.2015 stating the list of recognized/equalised correspondent courses of other Universities as on 21.5.2015. It is discernible from page 2 thereof that for Senior Secondary School Examination conducted by NIOS (for higher studies only), the academic council met on 15.1.2015 and has resolved that the candidates with Senior Secondary School Examination of NIOS, who are applying for B.Tech Degree under Calicut University have to produce an Equivalency Certificate from W.P.(C).27924/15 etc. - : 6 :-
the Commissioner of Entrance Examinations, Kerala, or of the Director of Technical Education, Kerala, to prove equivalence with Higher Secondary Examinations. It may be noted that it is stated in Ext.P-3 that some of the candidates like the petitioner have not produced any equivalence certificate either from the Commissioner for Entrance Examinations or from the Director of Technical Education Department as to whether the NIOS course undergone by them is equivalent to the Higher Secondary course conducted by Kerala, etc.
4. Being aggrieved by Ext.P-3 cancellation of registration, the petitioner had preferred the instant Writ Petition and this Court by various interim orders had permitted the petitioner to appear in various subsequent semester examinations and the respondent-
University has withheld the results thereof in view of the pendency of these Writ Petitions. The petitioner is now in the VII semester of the Engineering Degree Course. The prayers in the aforementioned Writ Petition are as follows:
"i) To issue a Writ of Certiorari or any other appropriate Writ, order or direction, to call for the entire records culminated in Ext.P3 order and quash the same;
ii) To declare that the Senior Secondary School Examination Course qualified by the petitioner as per Ext.P1 under the National Institute of Open Schooling (NIOS) is sufficient qualification for admission to the B.Tech - Mechanical Engineering Course of the W.P.(C).27924/15 etc. - : 7 :-
1st Respondent University, in view of the Exts.P4 to P8;
iii) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the Respondents 1 & 2 to publish the results of the B.Tech Mechanical Engineering 4th Semester Examination forthwith;
iv) Award cost of these proceedings to the petitioners; and
v) Pass such other or further orders as this Hon'ble court may deem fit and proper in the circumstances of the case."
5. The respondent University has filed a statement dated 23.8.2016 wherein it is stated that the matter of equivalence of Senior Secondary School Examination of NIOS to the examination conducted by the Directorate of Higher Secondary Education in Kerala was placed before the highest body in academic matters in the University, viz., the Academic Council, who then resolved to direct the candidates to produce the Equivalency Certificate either from the Commissioner of Entrance Examinations or the Director of Technical Education, Kerala, to prove that NIOS is equivalent to Higher Secondary Education and since no such certificate was received from either of the officers, registration of the candidates, previously identified, were cancelled. The said averments in para 4 of the statement can only be in relation to decision of the Academic Council taken with effect from 15.1.2015 as referred to in Ext.P-5. It is further stated in the statement filed by the University that though the University has issued the equivalency certificate to the W.P.(C).27924/15 etc. - : 8 :-
effect that it has been recognized by the University for the purpose of higher studies, in the footnote of Ext.P-6 certificate itself it is noted that the admitting authority should verify the mode of study and the eligibility (in the instant case it is not in dispute that the basic decision to admit and allot the petitioner for Engineering Degree course is as per the direction of Commissioner for Entrance Examinations, who has granted allotment and admission to the petitioner, etc.). It is further averred in para 6 of the statement that the Academic Council of the University has not identified NIOS as equivalent to courses of the Higher Secondary Education (HSE), Central Board of Secondary Education (CBSE) or CISCE since Senior Secondary Examination of NIOS is a distance education mode, etc. It is also contended in para 8 of the said statement that as per University Regulations, the candidates should possess required qualification as on the date of application or at least on the date of admission and that in the equivalency certificate issued by the University itself it is noted thereon that the mode of study of NIOS is distance education mode. Further that, neither the Commissioner for Entrance Examinations nor the Director of Technical Education Department, Kerala, has taken a decision treating the NIOS Senior W.P.(C).27924/15 etc. - : 9 :-
Secondary School Examination as equivalent to Higher Secondary Education or Vocational Higher Secondary Education of Government of Kerala, etc., and that hence the registration was rightly cancelled. However, the respondent University has not even remotely denied about the recognition granted to the NIOS qualification as reflected in Ext.P-4.
6. Heard Sri.Mahesh V.Ramakrishnan, learned counsel for the petitioner, Sri.Santhosh Mathew, learned Standing Counsel for Calicut University appearing for respondents 1 & 2, Sri.George Jacob (Jose), learned counsel for the 3rd respondent-College, learned Central Government Counsel appearing for respondents 4 & 5 and the learned Government Pleader appearing for the 6th respondent.
7. It is not in dispute that Ext.P-6 is the certificate issued by the respondent-University certifying that Senior Secondary School Examination conducted by NIOS in April, 2013, which is offered as correspondence course of study, has been recognized by the University for the purpose of higher studies. Ext.P-6 is seen issued by the University on 19.1.2015 which is 4 days after the decision at Ext.P-5 taken by the Academic Council on 15.1.2015.
Even in Ext.P-6, the Calicut university reiterates that the said course W.P.(C).27924/15 etc. - : 10 :-
of NIOS, though offered as a correspondence course of study, it has been duly recognized by the University for the purpose of higher studies. Higher studies contemplated in the University Act would certainly take in all various courses affiliated to the respondent University. True that there is a specific condition in the footnote of Ext.P-6 that the eligibility and mode of studies are to be verified by the admitting authority, as the original certificate of the individual student has not been verified by the University before issuing Ext.P-6. The admitting authorities in this case are the Government Commissioner of Entrance Examinations and the college concerned. In terms of clause 6.2.2(a) of Ext.P-9 it appears that the Commissioner for Entrance Examinations has accepted all those qualifications, which are treated as equivalent by the University concerned as reflected in Ext.P-4. Consequent to the allotment and admission granted to the petitioner by the Government Commissioner of Entrance Examinations, as per Ext.P-2 memo, the 3rd respondent-College had admitted the petitioner. It may be noted that the petitioner herein has secured admission and allotment to the Engineering Degree Course on the basis of the application which was processed and considered by the Government W.P.(C).27924/15 etc. - : 11 :-
Commissioner for Entrance Examinations and he has been allotted admission by none other than the Commissioner for Entrance Examinations. After having taken the decision in Ext.P-4 as well as Ext.P-6 for NIOS batch of April, 2013 as per Ext.P-6, then the respondent University cannot raise any excuse merely on the ground of aforequoted note appended to Ext.P-6. It may also be noted that the Commissioner for Entrance Examinations is an officer appointed by the Government of Kerala and the Commissioner for Entrance Examinations is empowered to make allotment entries to various courses like medical, engineering, etc., and that they may have a confidential panel of outside experts for preparing question papers and evaluation of Entrance Examinations, but the said body may not have academic experts with experience to assess the equivalency of academic qualifications of various qualifications and therefore it appears that as per clause 6.2.2.(a) of Ext.P-9 the CEE would have accepted all those qualifications which are recognised as equivalent to the 10+2 courses, by the University concerned as in Ext.P-4, etc. When the decision at Ext.P-6 has been taken for the NIOS course for April, 2013, as well as the recognition reflected in Ext.P-4, the University cannot find fault with the Commissioner of Entrance W.P.(C).27924/15 etc. - : 12 :-
Examinations for having made allotment and admissions of the petitioners. The impugned Ext.P-3 proceedings cancelling registration of the petitioner cannot be justified by the respondent University by taking recourse to the footnote appended to Ext.P-6 so as to find fault with the Commissioner for Entrance Examinations, who is the only officer of the Government with supporting administrative staff and ministerial staff and who may not necessarily have expertise to adjudge on the academic equivalency of qualifications. The footnote of Ext.P-6 certificate issued by the respondent University provides only as follows:
"This is a general certificate and the original certificate of the individual concerned has not been verified in this office, while issuing this. The eligibility and mode of study will be verified by the Admitting Authority." So the disclaimer in Ext.P-6 is only to the effect that as the original of the NIOS certificate issued to the student who got Ext.P-6 certificate has not been verified by the University, it is for the admitting authority like the CEE, College concerned, etc., to verify the original of the NIOS certificate and be satisfied as to the genuineness of the certificate of the student concerned, etc. The respondent University does not have any case that the NIOS W.P.(C).27924/15 etc. - : 13 :-
certificates of the petitioners are forged or fabricated. This disclaimer in Ext.P-6 will not in any manner dilute the substantive content of the decision of the University in Ext.P-6 and Ext.P-4 regarding the recognition of the NIOS qualification. Moreover, it can be clearly seen from a perusal of Ext.P-4 proceedings issued by the Equivalency & Migration Section of the respondent Calicut University, that the NIOS Senior Secondary Certificate Examination (SSCE) acquired by the petitioners is recognized as one among the equivalent qualification recognized by the Calicut University as on July, 2014, as per the list of recognized courses notified in part D of Ext.P-4. Whereas the decision referred to in Part II of Ext.P-5 proceedings stipulating the impugned new condition for equivalence of NIOS qualification is taken only prospectively from 15.1.2015. The decision of the respondent University reflected in Ext.P-6 is that NIOS qualification acquired by 2013 Batch is recognized by the University for higher studies. Therefore, it is beyond the shadow of any doubt that the decisions in Exts.P-4 and P-6 will govern the case of the petitioners who belong to NIOS April, 2013 batch, whereas Ext.P-6 decision will have only prospective application from 15.1.2015. Therefore, finding fault with the Commissioner for Entrance Examinations by the University after having issued Exts.P-6 & P-4 is not right and proper.
W.P.(C).27924/15 etc. - : 14 :-
8. A reading of Ext.P-7 Central Government Order dated 14.9.1990 makes it clear that earlier Government of India in the Ministry of Human Resources Development, Department of Education, had set up the National Open School Society, an autonomous and registered body on 23.11.1989 to cater to the educational needs of school dropouts, working adults, housewives and socially disadvantaged sections through distance education at the school stage and the said society runs the management of the NOS, etc. That further it was decided in pursuance of Sec.3(ii) of Memorandum of Association of the National Open School Society that the Society shall conduct the above examinations at the school stage of education up to pre-degree level, whether academic, technical or vocational, which are developed either by the National Open School itself or in collaboration with other agencies, subject to the approval of the Society's Executive Board or as it may be called upon to conduct by the Government of India, Ministry of Human Resource Development, Department of Education. It is also clear therefrom that the Society shall also be the certifying authority for such courses and programmes and do such acts ancillary to these objects as may be necessary. Till then earlier the Central Board of W.P.(C).27924/15 etc. - : 15 :-
Secondary Education (CBSE) was the certifying and examining authority on behalf of the National Open School Society and it was by resolution dated 14.9.1990 in the Gazette of India that CBSE ceased to be the certifying and examining authority on behalf of the NOS society from the date of issuance of Ext.P-7 notification (dated 14.9.1990). Further it is clearly ordered in Ext.P-7 that a copy of the resolution shall be sent to all State Governments, Union Territory Administrations, all Ministries, Departments of the Government of India, University Grants Commission, Prime Minister's Office, National Council of Educational Research & Training, Council of Boards of Secondary Education, Association of Indian Universities, Central Board of Secondary Education, Council for the Indian School Certificate Examinations and the State Boards of Education, etc., and the resolution was also ordered to be published in the Gazette of India for general information. But for the amendment made as per the resolution dated 14.9.1990 in Ext.P-7, the certifying and examining authority in respect of courses offered in the NOS would have been the CBSE and in that event, such disputes as the one sought in the present impugned writ proceedings may not have surfaced at all. But it may be noted W.P.(C).27924/15 etc. - : 16 :-
that the Government of India as the Executive repository of the Union of India is conferred with the necessary enabling executive powers in that regard, which are relatable to Entry 33 of Concurrent List (Education) and Entry 66 of the Union List which relates to co- ordination and determination of standards in higher education sector. It is trite law that executive powers conferred as per the Constitution of India on the Union as well as State Government are co-extensive and co-terminus with the legislative competence conferred on them as per the provisions contained in the distribution of legislative powers envisaged under Article 246 of the Constitution of India along with the entries in the Lists appended to Schedule VII of Constitution of India. Therefore, it is only to be noted as relevant in this context that the Government of India in the exercise of its executive powers relatable to Entry 33 of the Concurrent List as well as Entry 66 of the Union List is conferred with the necessary executive powers to take a decision as the one in Ext.P-7, so long as it is not in conflict with any central law.
9. It is also to be noted that pursuant to Ext.P-7 notification dated 14.9.1990 issued by the Government of India, the Association of Indian Universities (AIU) has issued Ext.P-8 W.P.(C).27924/15 etc. - : 17 :-
proceedings dated 25.7.1991 ordering that the said Association has granted equivalence to the courses of National Open School with those of other examinations of recognized Boards for the purposes of admission to higher studies at Indian Universities and that the matter has been brought to the notice of all Universities in the country for their appropriate action, etc. Therefore, a highly placed academic authority like the Association of Indian Universities has clearly decided as per Ext.P-8 as early as on 25.7.1991 that the Senior Secondary School Examination course conducted by the National Open School (which has been subsequently nomenclatured as NIOS) has been recognized as a course equivalent to +2 level courses offered by other Boards for the purpose of higher studies in the Indian Universities to all courses affiliated to the Universities including Engineering degree courses. The respondent University has no case that AIU has at any time withdrawn or lifted recognition granted as per Ext.P-8.
10. As regards the role contemplated for Association of Indian Universities (AIU) in the context of the provisions in the Indian Medical Council Act, 1956, it may be relevant to note that the Medical Council of India, with the prior approval of the Central W.P.(C).27924/15 etc. - : 18 :-
Government, has framed statutory regulations under Sec.33 of that Act, to fulfill the requirements of Secs.13(4A) & (4B) of the said Act by framing the MCI (Screening Test) Regulations 2002, and the MCI (Eligibility of Requirements for Taking Admission in Undergraduate Medical Course in Foreign Medical Institution) Regulations, 2002, as per notification dated 13.2.2002. Regulation 2(5) of the MCI Screening Test Regulations, 2002, defines "Prescribed Authority" to mean a medical institution or any other examining body authorized by the Central Government/MCI to conduct Screening Test and Regulation 11 thereof stipulated that the Prescribed Authority shall intimate the results of the Screening Test to the candidates as well as the MCI authorities, etc. In tune with the statutory regulations, the MCI has issued proceedings dated 15.3.2002 notifying that the screening test to be undergone by the foreign primary medical qualification holders is to be conducted by the National Board of Examinations, New Delhi, as per the abovesaid provisions of the IMC Act and the MCI Regulations concerned. In tune with that, the National Board of Examinations, Government of India, New Delhi, has issued notifications and information bulletin for regulating the eligibility criteria under the above referred MCI Regulations and one W.P.(C).27924/15 etc. - : 19 :-
such condition is that the equivalence certificate as regards the equivalence of those foreign medical graduates, who have undergone their 10+2 studies abroad is to be secured from the Association of Indian Universities (AIU). So even for a more competitive and difficult course like graduate medical qualifications/primary medical qualification in the case of those who have taken their qualifications from abroad, it has been stipulated that in respect of those candidates, who have done their 10+2 studies abroad, the equivalence certificate to prove equivalence of their foreign Plus Two level course is invested with the Association of Indian Universities. So when this is criteria, which is recognised and permitted by the Central authorities including the Government of India by taking recourse to the competence relatable to Entry 66 of the Union List [relating to co-ordination and determination of standards in higher education sector], it is not right and proper to simply brush aside the equivalence or recognition granted by the Association of Indian Universities to the 10+2 qualifications offered by the National Institute of Open Schooling that the same is equivalent to 10+2 of Central/State Education Boards concerned, etc. So it is only to be held that much weight and deference must W.P.(C).27924/15 etc. - : 20 :-
be shown to the considered decision taken by a national level expert body like the AIU, who has granted recognition to NIOS course as per Ext.P-8.
11. It is also to be noted that pursuant to the authorization given by the Government of India as per aforequotaed Ext.P-7 resolution dated 14.9.1990 issued by the Government of India, and also on the basis of the certification or recognition granted by the Association of Indian Universities, the National Institute of Open Schooling has certified that the courses study of NIOS are equivalent to the courses of CBSE, CISCE and several State Boards of Secondary/Higher Secondary Education, etc. as can be seen from Ext.P-9 dated 7.4.2014 in W.P.(C).No.15688/2015. Therefore, in view of all these various aspects, it is to be only held that at the time of admission of the petitioner in July, 2013, the matters were regulated by clause 6.2.2.(a) of Ext.P-9 issued by the Government Commissioner of Entrance Examinations and Ext.P-6 equivalency certificate issued by the respondent Calicut University for the NIOS course for April, 2013 as well as Ext.P-4. The recognition referred to in Ext.P-4 must certainly have been in vogue even in 2013 as otherwise the respondent University would not have issued Ext.P-6 W.P.(C).27924/15 etc. - : 21 :-
equivalency certificate for April, 2013 NIOS Batch. It is not in dispute that even the respondent University has issued Ext.P-6 on 19.1.2015, four days after the decision at Ext.P-5 stated to be rendered on 15.1.2015 and there is no inconsistency or contradiction in the said stand of the University, as Ext.P-6 equivalency is for the NIOS course for April, 2013, whereas Ext.P-5 decision is only to be taken as a prospective, one which has been taken on 15.1.2015 by the academic council. So prior to 2015, the competent authority of the respondent University has issued Ext.P-6 equivalency certificate in respect of the NIOS course for April, 2013 and even the respondent University has no case that Ext.P-6 equivalency certificate and Ext.P-4 proceedings have been issued wrongly or illegally or in violation of any substantive or procedural provisions of law, governing the field. In the circumstances, it is only to be held that the new decision taken by the academic council on 15.1.2015 as referred to in Ext.P-5 will have only prospective effect from 15.1.2015 and cannot relate to any decisions of equivalancies decided by the respondent University in respect of NIOS qualification awarded for any prior periods in accordance with the provisions as in Exts.P-4, P-6, etc. that was in W.P.(C).27924/15 etc. - : 22 :-
vogue for the relevant prior periods. Therefore, the impugned Ext.P-3 cancelling registration is on the basis of application of the new norm laid down by the respondent University as per Ext.P-5 with effect from 15.1.2015 in respect of matters already covered for previous years as in Ext.P-6 & Ext.P-4, etc. Hence the basic premise, on which the impugned Ext.P-3 order has been passed is on illegal and irrelevant aspects and after not taking into account all legal and relevant aspects of the matter and without taking into account the legal norms that governed the field during April/July, 2013, at the time of the acquisition of the qualification and admission of the petitioner. For these reasons, the impugned Ext.P-3 proceedings is liable to be interdicted in judicial review proceedings and therefore, the said decision is quashed to the extent it orders the cancellation of the registration of the petitioner herein.
12. The Pre Degree courses affiliated to various State Universities including the respondent University were delinked from the University system and was made part of the school education system and it was appended as the Plus Two part of the 10 year schooling in terms of the national education policy, which W.P.(C).27924/15 etc. - : 23 :-
was enforced by the State of Kerala since last more than a decade- and-a-half. So at least since the year 2000, none of the Universities in the State of Kerala have any pre-degree course and therefore the teachers in the colleges affiliated to the Universities may not be actually exposed to the experience of teaching students at the pre-degree/Plus Two stage and this must have been one of the factors which weighed with the Board of Studies and the Academic Council of the respondent University to entrust the task of evaluating the equivalence of qualifications, with the Government Commissioner of Entrance Examinations (CEE) and the Director of Technical Education (DTE) of the Government of Kerala as per Ext.P-5 w.e.f. 15.1.2015. As already noted herein above, the decision in this regard has been taken by the Academic Council on 15.1.2015 as referred to in Ext.P-5. The University authorities may seriously ponder whether the Government Commissionerate of Entrance Examinations is equipped with the expert personnel and the academic equipments to evaluate this highly responsible and sensitive academic task. The petitioner's counsel has also pointed out that ordinarily, in the scheme of things, the Directorate of the Technical Education (DTE) is a body set up by the Government of W.P.(C).27924/15 etc. - : 24 :-
Kerala to monitor the activities of various polytechnics and Government Engineering Colleges and at times, they are entrusted with the duty of evaluating the workload norms and admissibility of posts in aided private polytechnic institutions and aided private engineering colleges offering engineering diploma courses as well as engineering degree courses, respectively. That it appears that the Directorate of Technical Education mainly consists of the Director of Technical Education, various of the officers in the rank of Addl. Director, Joint Director, etc., and all such officers are ordinarily appointed from the senior most stream of Government engineering colleges' teaching staff by way of promotion and selection, etc. and that the other layer of officialdom in the Directorate of Technical Education consists of other administrative staff and supporting ministerial staff, etc. It is thus pointed out by the petitioner that most of the officers in the rank of Joint Director, Addl. Director and Director, etc. are personnel, who are senior Professors or Associated Professors from Government Engineering Colleges, who are specialised in various disciplines of engineering, who may not have actual experience in teaching at Plus Two level. This Court would only request the University to seriously ponder and think over as to W.P.(C).27924/15 etc. - : 25 :-
whether the CEE and the DTE are equipped with the apt and necessary personnel as well as materials and supporting infrastructure to decide on such a sensitive and highly demanding academic task of judging equivalancy of Plus Two courses, which are not being taught by such personnel of the Directorate of the Technical Education. These are only observations made by this Court in order to request the University to contemplate over those aspects in a manner deemed fit and appropriate, by the experts of the University.
13. Justice V.R.Krishna Iyer, speaking on behalf of a 3-judge Bench in the celebrated case in Dr.J.P.Kulshrestha & Ors. v.
Chancellor, Allahabad University & Ors. reported in (1980) 3 SCC 418, has observed in para 11 thereof that Judges must not rush in where even educationists fear to tread. These observations of Justice V.R.Krishna Iyer were made in paragraph 11 of the said judgment, wherein it was also observed that the obscurantism we must remove is the blind veneration of marks at examination as the main measure of merit and that social scientists and educational avant garde may find pitfalls in our system of education and condemn the unscientific aspects of marks as the measure of merit, things as they now stand. But that however imperfect and obtuse the current system and W.P.(C).27924/15 etc. - : 26 :-
however urgent the modernisation of our courses culminating in examinations may be, the fact remains that the court has to go by what is extant and cannot explore on its own or ignore the measure of merit adopted by universities. It is in this context that His Lordship made the observation that "Judges must not rush in where even educationists fear to tread", etc.
14. The abovesaid observations in Dr.J.P.Kulshrestha's case supra have been relied on by the Apex Court in the ruling in AICTE v. Surinder Kumar Dhawan & Ors. reported in (2009) 11 SCC 726, as can be seen from paras 17, 18 and 32 thereof. In para 17 their Lordships of the Apex Court in AICTE's case supra [reported in (2009) 11 SCC 726], has relied on the said observations in para 11 of Dr.J.P.Kulshrestha's case supra that "Judges must not rush in where even educationists fear to tread". These observations in para 11 of Dr.J.P.Kulshrestha's case supra have also been reiterated and relied on in the ruling of the Apex Court in Parshvanath Charitable Trust & Ors. v. AICTE reported in (2013) 3 SCC 385, para 35.
15. Still further it is to be noted that in the celebrated ruling in Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth reported in 1984 (4) SCC 27, p.p.56, 57, para 29 that the Courts must be extremely W.P.(C).27924/15 etc. - : 27 :-
reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. The said observations in para 29 of Maharashtra State Board of Secondary & Higher Secondary Education's case supra read as follows:
"29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded.
It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case."
16. However, it is to be noted that Justice V.R.Krishna Iyer in the 3-Judge Bench decision in Dr.J.P.Kulshrestha's case supra has also observed in para 17 thereof that though various rulings of the court were cited before their Lordships to hammer home the point W.P.(C).27924/15 etc. - : 28 :-
that the courts should not substitute its judgment for that of academicians, when the dispute relates to educational affairs, which was also observed in the same way, as follows:- "While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, is bound by the rule of law and cannot be a law unto itself. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the court out".
17. In the light of these aspects, it is made clear that the aforementioned observations made by this Court herein above requesting the respondent University to seriously think and ponder on the abovesaid issues as to the advisability of entrusting the equivanency issue with the CEE and DTE are made only to highlight before the University so that if after such consideration, they feel that the matter requires a fresh look, it may be so done, as otherwise, if, as a matter of fact, those two bodies of the Government do not have the actual academic personnel or expertise to adjudge on these equivalency issues, the student community, who pass out from various courses, outside the State or such other qualifications, may find it extremely difficult and so also, those W.P.(C).27924/15 etc. - : 29 :-
Governmental bodies may also have their own problems in dealing with such issues. Therefore, this Court would also request the respondent University to consider, after due consultation with other bodies like State Government, the Commissionerate for Entrance Examinations, Director of Technical Education, etc. as to whether the decision reflected in Ext.P-5 taken with effect from 15.1.2015 should require any change and whether the academic bodies like the Director of Higher Secondary Education or Directorate of Vocational Higher Secondary Education of the Government of Kerala or the State Council for Educational Research & Training (SCERT) constituted by the State Government, CBSE, NCERT, etc. could be entrusted with such responsibilities or not. The observations made by this Court from paras 12 to 17 of this judgment are not part of any directions to be enforced, but are only left to the best wisdom of the University authorities. If, on ascertainment, it is found that the CEE and the DTE do not have necessary academic expert personnel or facilities to adjudge on the academic question of equivalency of 10+2 qualifications, then the issue as to whether the decision to entrust those responsibilities with those bodies would amount to "Wednesbury Unreasonableness" or perversity might arise W.P.(C).27924/15 etc. - : 30 :-
in an appropriate case. Such issue will not arise in the instant case relating to the qualification awarded to NIOS April 2013 batch as Ext.P-5 decision has only prospective effect from 15.1.2015. But still it is only to be incidentally observed that prevention of litigation by appropriate remedial action may be a far better option than litigative cure.
18. It is ordered in the light of the discussion and findings in paras 1 to 11 of this judgment, that the appearance of the petitioner in various University examinations pursuant to the interim orders passed by this Court, will stand regularised, if it is otherwise in order and it is made clear that the appearance of the said examination cannot in any way be interfered with solely on the aspects covered by the impugned cancellation order as the same has already been quashed. Accordingly, the competent authority of the University will examine the results of the petitioner and will take appropriate action for declaration of those results, if the petitioner's appearances in those examinations were otherwise in order. Necessary action in this regard should be taken by the University without any further delay, at any rate, at least within 2 weeks prior to the last date of the submission of applications for the next W.P.(C).27924/15 etc. - : 31 :-
supplementary or other examinations, which the petitioner may have to otherwise appear and the outcome of this process should be specifically intimated to the petitioner by registered speed post and it should also be made known to the petitioner individually, as and when he contacts the respondent Controller of Examinations of the University.
With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of. W.P.(C).Nos. 15688 & & 28740 of 2015:
The facts in these two Writ Petitions are broadly similar to the one in W.P.(C). 27924/2015, which has already been disposed of by this Court today. Accordingly, it is ordered that the findings and directions in the judgment in W.P.(C).No.27924/2015 will regulate these two Writ Petitions as well. Consequently, it is made clear that the impugned orders rejecting the cancellation of the registration of the petitioners will stand quashed and the findings and directions issued in the judgment in W.P.(C).No.27924/2015 will regulate these cases also. Consequently the impugned cancellation order of the respective petitioners will stand quashed and the other directions given in relation to the appearance of the W.P.(C).27924/15 etc. - : 32 :-
petitioners for the various examinations pursuant to the interim orders passed by this Court, will regulate these cases as well, and necessary consequential action in that regard should be taken by the competent authority of the respondent University, more particularly, by the Controller of Examinations of the University, in the matter of intimating the outcome of the results to the petitioner within the time limit stipulated in the judgment in W.P.(C).No. 27924/2015.
With these observations and directions, both the aforecaptioned Writ Petition (Civil) stand finally disposed of. bkn/-
sdk+ ALEXANDERSd/-
THOMAS, JUDGE
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P.S. to Judge