Kerala High Court
Sachu S vs The Chancellor University Of Kerala on 24 May, 2022
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
W.P.(C) No.14872/2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
WP(C) NO. 14872 OF 2022
PETITIONERS:
1 SACHU S
AGED 23 YEARS
VALIYAVILA PADEETTATHIL KURATHIYAD PO, MAVELIKKARA
ALAPPUZHA, PIN - 690101
2 ANU KRISHNAN
AGED 20 YEARS
SON OF OMANAKUTTAN PILLAI, ANANDHU BHAVAN,
MAYILADUMPARA, PATTAZHY PO, KOLLAM, PIN - 691522
3 ADAM JOSEPH KAVUMMUKKATHU
AGED 27 YEARS
SON OF GEORGE JOSEPH, ST GEORGE COTTAGE, POOZHICKAD
KUDASSANAD PO, PANDALAM, PIN - 689501
4 SARANJITH VS
AGED 24 YEARS
SON OF SREEDHARAN K, JITHU BHAVAN, KARAMKOTTUKONAM
PEYAD PO, THIRUVANATHAPURAM, PIN - 691522
BY ADV SAIJO HASSAN
RESPONDENTS:
1 THE CHANCELLOR, UNIVERSITY OF KERALA
RAJ BHAVAN, THIRUVANANTHAPURAM, PIN - 695001
2 SECRETARY, HIGHER EDUCATION DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
3 UNIVERSITY OF KERALA
REPRESENTED BY THE REGISTRAR, PALAYALAM,
THIRUVANANTHAPURAM, PIN - 695034
W.P.(C) No.14872/2022 2
4 CONTROLLER OF EXAMINATION
UNIVERSITY OF KERALA, PALAYALAM,
THIRUVANANTHAPURAM, PIN - 695034
BY ADVS.
K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI, SC, CHANCELLOR OF UNIVERSITIES
IN KERALA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.14872/2022 3
JUDGMENT
The petitioners herein are students who had pursued their B.Sc. Computer Science Degree during the year 2016-2019 from various Colleges affiliated to the University of Kerala, the 3rd respondent herein. The grievance raised by them in this writ petition concerns the delay on the part of the 3rd respondent in issuing the original Degree Certificate and Migration Certificate to the petitioners.
2. The brief facts of the case are as under:
The petitioners pursued the B.Sc. Computer Science Degree under the Choice Based Credit and Semester System (CBCSS) and completed the course.
Ext.P1 reveals that a Provisional Certificate has been issued to the 1st petitioner by the University. It is contended that similar certificates have been issued to the other petitioners as well. They contend that they are unable to pursue further studies due to the failure of the 3rd respondent in issuing the original Degree Certificate. In the said circumstances, they have submitted separate representations before the respondents seeking redressal of their grievance. It is contended that students similarly placed as the petitioners had approached this Court and by Ext.P3 judgment, this Court had issued directions to the W.P.(C) No.14872/2022 4 University to forthwith issue the certificates sought for by the petitioners therein in an expeditious timeframe. It is in the afore circumstances that they have approached this Court seeking issuance of similar directions.
(i) To issue a writ of mandamus or order or direction or any other appropriate writ directing 3rd respondent to issue original degree certificate and migration certificate to the petitioners within a time frame fixed by this Hon'ble Court.
(ii) To issue a writ of mandamus or order or direction or any other appropriate writ directing the respondents to consider Ext.P2 and P2(A) representations immediately and to pass appropriate orders within a time frame fixed by this Hon'ble Court.
3. A statement has been filed by respondents 3 and 4 wherein it is stated that the petitioners have completed their B.Sc. Computer Science Course during various periods by pursuing their course in affiliated colleges. Due to a software error, candidates were granted an irregular hike in moderation in respect of the B.Sc. Computer Science Course. When this fact was brought to the notice of the University, a probe was ordered by constituting an External Expert Committee. The Committee found that there has occurred an irregularity in granting moderation due to an error in the moderation module of the tabulation software. The enquiry which was conducted however revealed that no deceptive or malafide measures were adopted by any person but the irregularity was purely a software error. The defect was immediately rectified. A W.P.(C) No.14872/2022 5 complaint was lodged before the Crime Branch and an enquiry is in progress. According to respondents 3 and 4, about 135 candidates had benefited from the irregular hike in moderation out of which, 23 candidates went on to secure qualifying marks. Those 23 students were awarded Degrees/ Provisional Certificates/ Consolidated Mark list by the University. The remaining students were noted as failed in the papers other than the affected papers and they were not able to qualify. In the said circumstances, the University had no other option, but to proceed under Chapter 31 of the Kerala University First Statute, 1977, to revoke the irregular hike in moderation and thereby cancel the Degree/Qualification. The Syndicate resolved to cancel the degrees of the 23 candidates and thereafter the matter was placed before the Senate for consideration. The Senate in the meeting held on 28.7.2020 considered the matter and resolved to withdraw the degrees awarded to the 23 candidates and the recommendation to withdraw the degrees was submitted for confirmation before the Chancellor. It was also decided to hold a special Examination for the candidates who benefited from the irregular moderation after obtaining the confirmation of cancellation by the Chancellor. However, the Chancellor sought clarification as to whether the cancellation of the Degree would fall within the purview of Chapter 31 of the Kerala University First Statute, 1977. Respondents 3 and 4 felt that an amendment to the Kerala University First Statute was W.P.(C) No.14872/2022 6 necessary to cancel the Degree and the Syndicate approved the proposed introduction of Statute 5A in Chapter 27 of the Kerala University First Statute, 1977 and the same was placed before the Senate for approval. The proposed amendment was approved by the Senate on 26.8.2021 and the proposal was placed before the Chancellor for assent as envisaged under Section 35 (6) of the Kerala University Act, 1974. It is further stated that since further clarity was needed regarding the time span for invoking the provisions, a revised amendment proposal was placed before the Syndicate during the meeting held on 28.10.2021 and the revised amendment was approved by the Senate. The assent of the Chancellor was sought. It is stated that this Court in the judgment dated 03.02.2022 in W.P.(C) No.13233 of 2021 had issued directions to the University to issue the certificates and those directions were complied with.
4. A statement has been filed on behalf of the 1st respondent wherein it is stated that when the allegations of irregularity in the results surfaced in the print media, reports were called for from the University. In response, the Vice-Chancellor of the University by letter dated 2.12.2019 offered an explanation in the following lines:
"The issue of unauthorised escalation of marks in the mark list of students of career related programmes came to the notice of the section concerned when more than one student of BBA/BCA courses approached the ES Section stating that they were unable to register for the W.P.(C) No.14872/2022 7 supplementary examinations of S1 November 2019, the section verified the data base and noted that the students had already passed in December, 2016. On further verification, it was found that the moderation given for the S1 December 2016 examination has been altered."
5. This was followed up with reports dated 20.2.2020, 27.4.2020 and 26.6.2020, whereby the Vice-Chancellor, reported as follows:
"Internal enquiry and enquiry by the Crime Branch of Police have been instituted in the issue. The enquiry conducted by a special committee consisting of scientific or computer experts from University of Kerala and Cochin University of Science and Technology revealed error in the software which resulted in award of moderation repeatedly. Hence it is to be reasonably concluded that no deliberate attempt has been made to tamper with the examination system, and the error has occurred due to software problems. On a detailed verification, 135 candidates were found benefited out of this irregular hike in moderation, of which 23 candidates have qualified their programmed and were awarded degrees by the University whereas the remaining were found having papers other than the affected papers to qualify the program/degree."
6. Later, a proposal was forwarded on 17.8.2020 to withdraw the degrees awarded to the 23 candidates and confirmation was sought from the Chancellor as envisaged under Chapter 31 of the Kerala University First Statute, 1997 (KUFS). However, as Chapter 31 of Statute 1 of the KUFS, is intended for cancellation of Degree/Diploma when the person conferred with Degree/Diploma has been convicted of an offence involving moral delinquency, the Chancellor directed the University to clarify whether the matter fell in the W.P.(C) No.14872/2022 8 said category. The students affected by the non-issuance of certificates represented the Chancellor and taking note of their grievance by letter dated 9.9.2021, the 4th respondent was directed to act strictly in accordance with the provisions of the University Act, Statutes, Rules and Regulations and to issue the Degree Certificate to the students who have since passed the Degree by declaring the results. The 4th respondent was directed to act independently of moderation marks awarded erroneously keeping in mind the welfare of the students, secrecy and sanctity of procedure as the prime consideration. Since the 2nd respondent failed to submit any material facts to satisfy the condition laid down in Statute 1, Chapter 31 of KUFS, 1977, the Chancellor has taken the decision not to accord sanction to the proposal for withdrawal of Degrees awarded to the 23 candidates as proposed by the University and the same was intimated to the Vice-Chancellor as per communication dated 20.1.2022. It is contended that the University has not placed any materials before the Chancellor that any disruptive or malafide measures were adopted by any of the students which resulted in the excess marks being awarded. It is also contended that accepting the proposal mooted by the University would cast a shadow on the moral delinquency of the students who are otherwise innocent. Thereafter, on 13.9.2021, the University furnished a proposal dated 30.9.2021 to bring out an amendment to the KUFS, 1977 by incorporating a new Statute W.P.(C) No.14872/2022 9 as Statute 5A in Chapter 27 with the heading "Recalling of Degrees, Diplomas, Titles etc. conferred/awarded" at any time after it is made where evidence is placed before the Syndicate to show that any person to whom such Degree, Diploma, Certificate, Title etc. was awarded by mistake of fact. On receipt of the proposal, the Vice-Chancellor of the University was ordered to furnish clarifications. However, without furnishing the clarification, the proposed amendment was withdrawn and a revised amendment proposal dated 22.12.2021 was forwarded by incorporating a time frame of 10 completed years for withdrawing the Degree Certificate. The Chancellor on perusal of the proposed amendment found that the proposal was against all canons of law and the amendment in its present form did not merit any consideration. The Chancellor withheld assent for the proposed amendment to the First Statute and the decision was communicated to the University on 22.1.2022. It is stated that no proposal is pending before the University in relation to the issue of alleged irregularity in granting moderation pending before the Chancellor and that the decision of the Chancellor has been duly communicated to the University.
7. I have Heard Sri. Saijo Hassan, the learned counsel appearing for the petitioners, Sri. Thomas Abraham, the learned Standing Counsel appearing for the University and Sri. Jaju Babu, the learned senior counsel appearing for the 1st respondent as instructed by Sri. Brijesh Mohan, the learned counsel and W.P.(C) No.14872/2022 10 the learned Government Pleader.
8. I have considered the submissions advanced and have carefully perused the records.
9. The records reveal that the petitioners herein had pursued the B.Sc. Computer Science course in various colleges affiliated with Kerala University. The course has been completed and some of the petitioners have been issued with provisional degree certificates as is evident from Ext.P1. However, their Original Degree Certificates and Migration Certificates have not been issued to them to date.
10. The reason offered by the University for the non-issuance of the Degree Certificate is the pendency of an investigation over the grant of moderation given for the S1 December 2016 Examination. The University has not stated in their counter affidavit as to when the irregular hike in moderation was noticed. All that is stated is that a detailed verification was conducted by a committee constituted by the University which found that there has occurred an irregularity in granting moderation due to an error in the moderation module of the tabulation software used by the University. 23 students including the petitioners herein are alleged to have benefited from the irregular hike in moderation and they are stated to have qualified for the programme as a result. W.P.(C) No.14872/2022 11
11. The very same question raised in the writ petition had engaged the attention of this Court in W.P.(C) 13233 of 2021 and by judgment dated 03.02.2022, this Court had issued directions to the University to issue the certificates sought for by the petitioners. Paragraph Nos. 12 to 19 of the judgment deals with the issue. The same is extracted below for convenience.
12. Now the question is whether the University is vested with the powers to refuse to issue the Degree Certificate long after the completion of the course and after the grant of the provisional certificates.
13. It is in the exercise of powers conferred by Section 83 of the Kerala University Act, 1974 that the Government has made the Kerala University First Statute, 1977.
14. Statute 5 in Chapter 27 of the KUFS, 1977, provides for the award of Degrees, Diplomas etc. The said provision reads thus:
5. Award of Degrees, Diplomas, etc:- Award of Degrees, Diplomas, Certificates, Titles, etc. shall be made in absentia at a meeting of the Senate held after the publication of the results of the examinations concerned, the said meeting of the Senate being considered as a Convocation of this purpose.
15. Statute 1 in Chapter 31 provides for the procedure for withdrawal or cancellation of Degrees, Diplomas, Titles etc. The said provision reads thus:
1. Procedure:-If evidence is laid before the Syndicate to show that any person on whom a degree, title or other distinction has been conferred to whom a diploma, licence or certificate has been granted by the Senate, has been convicted of what in their opinion is an offence involving moral delinquency, the Syndicate may propose to the Senate that the degree, diploma, title, licence, certificate W.P.(C) No.14872/2022 12 or other distinction shall be cancelled, and if the proposal is accepted by not less than two - thirds of the members present at a meeting of the Senate and is confirmed by the Chancellor, the degree, diploma, title, licence, certificate or other distinction shall be cancelled accordingly.
Provided that before cancellation of the degree, diploma, title, licence, certificate, or other distinction of a person, the person affected shall be given a reasonable opportunity to present his case.
16. A reading of Statute 1 clearly shows that only when evidence is laid before the Syndicate to show that any person on whom a Degree, Title or other distinction has been conferred or to whom a Diploma, Licence or Certificate has been granted by the Senate has been convicted of what in their opinion is an offence involving moral delinquency, the Syndicate may propose to the Senate that the Degree, Diploma, Title, Licence, Certificate or other distinction shall be cancelled. If the proposal is accepted by not less than ⅔ of the members present at a meeting of the Senate and is confirmed by the Chancellor, the Degree, Diploma, Title, Licence, Certificate or other distinction can be cancelled. The said provision cannot be applied to the petitioners herein as they have not been convicted of an offence involving moral delinquency. Furthermore, though a proposal was forwarded to the Chancellor, the Chancellor had refused to confirm the same. As per section 7 of the University Act, 1974, the Chancellor is the head of the University and as per Section 7(3) of the Act, the Chancellor is empowered to annul any proceedings of any of the authorities of the University which is not in conformity with the Act, the Statutes, the Ordinances, the Regulations, the Rules or the bye-laws. In that view of the matter, the University cannot aspire to cancel the degree by recourse to statute 1 of Chapter 31.
17. When the attempt of the University to withdraw the Degree invoking Chapter 31 failed, they furnished a proposal to bring out an amendment to the Kerala University First Statute, 1977 by incorporating 5A in Chapter 27. Section 35 of the Kerala University Act, 1974 provides for the procedure for making statutes. The said provision reads thus:
W.P.(C) No.14872/2022 13
"Section 35: Procedure for making Statutes.-
(1) The Senate may of its own motion take into consideration the draft of a Statute:
Provided that, in any such case, before a Statute is passed, the Senate shall obtain and consider the opinion of the Syndicate.
(2) The Syndicate may propose to the Senate the draft of any Statute for consideration and such draft shall be considered by the Senate at its next meeting.
(3) The Senate may approve the draft of a Statute proposed by the Syndicate and pass the Statute or may reject it or return it to the Syndicate for reconsideration, either in whole or in Part together with amendments which the senate may suggest.
(4) After any draft returned by the Senate under sub-section (3) has been further considered by the Syndicate, together with any amendment suggested by the Senate, it shall be again presented to the Senate with the report of the Syndicate thereon, and the Senate may then deal with the draft in any manner it thinks fit.
(5) Where any Statutes has been passed by the Senate, it shall be submitted to the Chancellor who may refer the Statute back to the Senate for further consideration or assent thereto or withhold his assent.
(6) No Statute passed by the Senate shall be valid or come into force until assented to by the Chancellor.
(7) The Syndicate shall not propose the draft of a Statute or of an amendment to a Statute affecting the status, powers or constitution of any authority of the University until such authority has been given an opportunity of expressing an opinion upon the proposal;
and any opinion so expressed shall be in writing and shall be considered by the Senate.
(8) No Statute providing for the conditions for, or procedure relating to, the affiliation of private colleges shall be passed by the Senate without the previous approval of the Government." W.P.(C) No.14872/2022 14
18. From the statement of the Chancellor, it appears that the proposal was considered by the Chancellor and the Chancellor by Annexure-R4(a) communication withheld his assent. Annexure-R4(a) reads thus:
"KERALA RAJ BHAVAN THIRUVANANTHAPURAM PIN-695 099 TEL. : 2721100 FAX : 2720266 PRINCIPAL SECRETARY TO GOVERNOR NO.GS6-2421/2021 January 22, 2022.
The Vice Chancellor, University of Kerala, Thiruvananthapuram.
Sir, Sub:- University of Kerala - Amendment to Kerala University First Statutes, 1977 - Incorporation of new Statute 5A - Withholding of assent by the Chancellor - Reg.
Ref:- Letter No.Ac.L/S/2887 A/2021 dated 22.12.2021 from the Registrar, University of Kerala.
------------------
Inviting attention to the above, I am directed to inform that the Hon'ble Chancellor, University of Kerala has considered the proposal referred above in detail and found to be immature, unconvincing and W.P.(C) No.14872/2022 15 in violation of all canons of law. The instant proposal in its present form and stage does not merit any consideration.
In the above circumstances, I am directed to convey that the Hon'ble Chancellor is pleased to withhold assent on 22.1.2022, to the amendment to Kerala University First Statutes, 1977, for incorporating new Statute 5A in Chapter 27 for "Recalling of Degrees, Diplomas, Titles etc., conferred/awarded", as provided under Section 35(5) of the Kerala University Act, 1974.
Yours faithfully, Principal Secretary to Governor"
19. The materials made available do not reveal that any of the students indulged in any disruptive or malafide measure to secure the marks. It is evident from the statement filed by the Chancellor that the alleged software error was noted in respect of the S1 exams held in the year 2016. Almost six years have elapsed and the students after completing the course in the year 2019 are still at the mercy of the University. On the basis of the provisional certificates granted by the University, some of them might have secured employment and some may be pursuing higher studies. The provisions of the University Act, Statutes or the Rules and Regulations do not empower the University to withdraw the Degree granted to the Students. One only wishes that the University invokes the power vested with them under Statute 1 of Chapter 31 in appropriate cases where persons who have secured degrees from the University are convicted for offences involving moral turpitude. However, under no circumstances, can such power be exercised in the case of the petitioners and the Chancellor has rightly rescinded the proposal. The attempt of the University to amend the Statute was rightly interdicted by the Chancellor and that too on eminently justifiable grounds. I hold reasons offered by the University for refusing to issue the original Degree Certificate and the migration certificate sought for by the petitioners cannot be justified on any grounds.
W.P.(C) No.14872/2022 16
19. The principles laid above apply on all fours to the petitioners as well. In that view of the matter, the petitioners are entitled to succeed.
This writ petition will stand allowed. There will be a direction to the respondents 3 and 4 to forthwith issue the original Degree Certificates and Migration Certificates applied for by the petitioners, if there are no other impediments, expeditiously, in any event, within a period of three weeks from the date of receipt of a copy of this judgment.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE IAP W.P.(C) No.14872/2022 17 APPENDIX OF WP(C) 14872/2022 PETITIONERS' EXHIBITS:
Exhibit P1 TRUE COPY OF PROVISIONAL CERTIFICATE OF FIRST PETITIONER Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 01.04.2022 SUBMITTED BY THE PETITIONERS 1 TO 3 Exhibit P2A TRUE COPY OF THE REPRESENTATION DATED 01.04.2022 SUBMITTED BY THE 4TH PETITIONER Exhibit P3 TRUE COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN WP(C) NO.13233 OF 2021 DATED 03.02.2022 RESPONDENTS' EXHIBITS:
NIL