Mahatma Gandhi University vs Satheesh Kumar.K.A on 13 August, 2012

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Kerala High Court

Mahatma Gandhi University vs Satheesh Kumar.K.A on 13 August, 2012

University is the appellant and the party respondents, who were the writ petitioners, 3 in number, are tutors working in the Sree Sankaracharya University of Sanskrit. The petitioner in W.P.(C).No.19971 of 2008 is a Five Year National Diploma holder in Painting and the petitioners in W.P.(C).No.10999 of 2005 are respectively post diploma holder and diploma holders in Bharatanatyam and Mohiniyattom; respectively. All the petitioners took their diploma from R.L.V.College of Music and Institute of Fine Arts, Tripunithura (hereinafter referred to as "RLV College"). The petitioners were admitted to the post graduate course in accordance with an order dated 24.03.2004 of the appellant University. However, at the time of publication of results, the results of the petitioners were withheld for reason of their having not passed the Part I and Part II examination of the degree course. The short question involved in the appeals is W.A.Nos.2186/2012 & - 2 - 2187/2012 as to whether their status, as diploma holders from RLV College with three years continuous extant regular service of Government/University, exempt them from qualifying in Part I/Part II language examinations of the degree course. The learned Single Judge held in favour of the petitioners and found that clause 4 of Exhibit P4 order dated 24.03.2004, to the extent the same is contrary to the decision of the Academic Council of the University is liable to be quashed. The petitioners' results were directed to be declared by the impugned judgment.

2. Since the cardinal issue that arose in the appeals was with respect to the decision of the Academic Council, approved by the Syndicate, we directed the University to file the documents relating to the decisions arrived at by the Academic Council as approved by the Syndicate of the University; which was done by a verified petition dated 1.3.2013. We refer to the documents produced in the verified petition and notice that Exhibit P4 order referred to above has been produced as Annexure C along with the verified petition.

W.A.Nos.2186/2012 & - 3 - 2187/2012

3. The brief factual situation is that all the petitioners were diploma/post diploma holders from RLV College, which College was carrying on traditional courses under the tutorship of artists renowned in their own fields. The selection to the post of tutors were through the Public Service Commission and regulated by Special Rules. The College was upgraded and brought into general stream of University Education and the diploma and post diploma courses were replaced with graduate and post graduate courses. The petitioners were appointed as tutors, again by a valid process of selection in the Sree Sankaracharya University of Sankrit and had been continuing there when Annexure-C was brought out by the appellant-University. In accordance with the resolution of the Academic Council, the eligibility for admission to post graduate courses in the branches of Music, Performing Arts and Visual Arts under the Faculty of Fine Arts was revised to include diploma/post diploma holders of RLV College who are in the regular service of the Government/University with not less than three years of continuous service. Further conditions were W.A.Nos.2186/2012 & - 4 - 2187/2012 also stipulated in Annexure-C and clause 3 reads thus:

"3. Those who are admitted under the above category shall satisfy other conditions/norms for eligibility prescribed by the University, as given below:

i) Those who do not possess a qualification recognised as equivalent to the Pre Degree course, have to appear for a separate examination in English Paper I (one paper only) and secure a pass.

ii) Those who do not possess a bachelor degree in the concerned subject, will be conferred the Post Graduate degree only if they pass Part I & Part II examinations of the degree course. Ganabhooshanam/ Ganapraveena diploma holders in Music will be exempted from passing Part II examinations.

iii) Those admitted to PG courses on the basis of the provisions under this U.O. will be permitted to appear for the English examinations of PDC and Part I/Part II examinations of the degree course simultaneously through private registration scheme".

4. The petitioners approached this Court for being admitted to the post graduate courses and on the University's specific admission in their counter affidavit that the petitioners were eligible to be admitted to the post graduate course, their prayers were allowed and they were W.A.Nos.2186/2012 & - 5 - 2187/2012 admitted to the 2003-05 post graduate course. The dispute arose at the time of declaration of results, since according to the University clause 3 extracted above; more specifically the condition of pass in Part I and II of degree course, was not complied with by the petitioners and, hence, their results cannot be declared.

5. Sri.Jacob Varghese, learned Senior Counsel appearing for the appellant-University would strenuously contend that it is on the basis of Annexure-C that all the petitioners were admitted to the post graduate courses and they accepted the admission with open eyes on the specific terms provided in Annexure-C and they cannot later on turn around and contend that the prescription in Annexure-C for passing Part I/Part II language examinations of the degree course need not be complied with, since they were diploma holders of RLV College, who had continuous existing service in an University. It is the contention of the learned Senior Counsel based on Annexure-A that, for diploma holders in Music or performing Arts to be admitted to the post graduate course, it was mandatory that they pass Part I W.A.Nos.2186/2012 & - 6 - 2187/2012 English paper of the degree course through private study at one sitting. It was also provided in Annexure-A that post diploma holders in performing Arts will be issued certificates equating their qualification to post-graduate degree, provided they pass Part I English and Part II second language of degree course. While, these were the stipulations for the diploma/post graduate holders, what was intended by the decision of the Academic Council (Annexure-A) for persons who have continuous existing service in Government or University is that they would be admitted to the post-graduate course without the pre-condition of pass in Part I English and as far as they are concerned, they would be permitted to write the Part I and Part II language examinations of the degree course while continuing the P.G. Course. According to the learned Senior Counsel, the concession is only so far as the right to admission is concerned and for awarding the post-graduate qualification, such persons who were granted exemption for admission would also have to qualify in Part I/ Part II examinations of the degree course, which is clearly stipulated in Annexure-C. W.A.Nos.2186/2012 & - 7 - 2187/2012

6. Learned Senior Counsel Smt.V.P.Seemandini appearing for respondents, would, however, contend that in issuing Annexure-C order the University overreached the decision of the Academic Council. The Academic Council, held on 4.12.2003, as evidenced by Annexure-A, provided to the diploma/post diploma holders of RLV College, who are in the regular service of Government/University with not less than three years of continuous service, eligibility for admission to the respective P.G. courses for improvement of qualification. This decision was approved by the Syndicate and Annexure-C, issued on behalf of the Registrar, brought in a stipulation by clause 3, which was not a part of the decision of the Academic Council. To this extent, Annexure-C has to be read down and the petitioners, who were admitted on the basis of a decision of the Academic Council, cannot be further burdened with an additional stipulation of a pass in Part I/Part II language examinations of the degree course.

7. In resolving the issue, we have to first look at the Minutes of the Academic Council held on 4.12.2003, W.A.Nos.2186/2012 & - 8 - 2187/2012 produced as Annexure-A. The Minutes show that two major issues were considered under the heads - "I. Academic Matters" and "II. Qualification of Teachers". While considering academic matters in the background of replacement of 'diploma and post diploma courses' with 'PG courses', it was opined that the students who had already acquired diploma or post diploma should be permitted to improve their qualification by permitting them to gain admittance to the post graduate courses. Hence, as is evident from para 4 and 6 of Annexure A, the diploma holders were permitted to be admitted on qualifying in Part I English papers of the degree course through private registration at one sitting. Post diploma holders were permitted to appear for Part I English and Part II second language examination of the degree course and on successful completion, they were directed to be issued with certificates equating their post diploma qualification to that of a Master of Arts. By clause 9, the holders of Five year National Diploma Course in Fine Arts, which was replaced by the graduate course BFA, was also permitted to gain eligibility for admission to P.G. course, W.A.Nos.2186/2012 & - 9 - 2187/2012 provided they have passed Part I English of the BA course. Those who had passed Pre-Degree along with the National Diploma, were exempted even from passing Part I English, since they had undertaken more than five years of study after their Secondary School Leaving Certificate Examination.

8. What comes to fore is that the Academic Council thought it fit that a diploma holder for gaining admission to the P.G. course should have undertaken a minimum five years study after the SSLC Examination. Those who had undertaken a Pre-Degree course or a regular graduate course with a compulsory examination in English were permitted to be admitted to the P.G. course. However, those who had not appeared in an English examination even at the Pre-Degree level or at the graduate level were required to qualify Part I English at the graduate level, for being eligible to be admitted to the P.G. course. This was to ensure that the diploma/post diploma holders of RLV College were not denied their normal chances of improving their qualification; since the diploma and post diploma courses were replaced by graduate and post-graduate courses. The W.A.Nos.2186/2012 & - 10 - 2187/2012 discussion under the head "Academic matters" was confined to the diploma or post diploma holders who seek to improve their qualification.

9. Under the head "Qualification of Teachers", what was primarily considered was the improvement of the qualification of the teachers of the RLV College; existing at the time when the said college was brought into the regular main stream University courses, so as to absorb them and continue them in the main stream. Various stipulations were made and a bridge course also was ordered, exclusively for the existing teachers in the RLV College, taking into consideration the practical difficulty of such teachers who were experts in their respective fields of art; but practically unable to go through a regular academic course by reason of their age and confinement to their area of specialization in Fine Arts. This again is not applicable to the instant case.

10. However, while concluding with the provisions made for the teachers of RLV College, it was stated in clause 4 of Annexure A; thus:

"4. The RLV College being a Government institution the teaching W.A.Nos.2186/2012 & - 11 - 2187/2012 staff is always transferable to the other Govt. Colleges, viz., SST College of Music, Thiruvananthapuram and Chembai Memorial Music College, Palakkad. It is only natural justice that the above facilities for improvement of qualification are extended to the teaching staff of these colleges, especially when those colleges are also upgraded. Hence the facilities for improving the qualifications of RLV teachers may be extended to the teachers of these two colleges also. The diploma/ Post Diploma holders of RLV college who are in the regular service of Government/University with not less than three years of continuous service are eligible for admission to the respective PG courses for improvement of qualifications".

(emphasis supplied) The petitioners rely on the last sentence, where a decision was taken by the Academic council to permit diploma/post diploma holders of RLV College who are in the regular service of Government/University, and make them eligible for admission to the post graduate course, subject to the condition of their service being continuous for the last three years. We have to notice that there is no stipulation as to passing the Part I/Part II examinations of the degree course; W.A.Nos.2186/2012 & - 12 - 2187/2012 as has been provided in Annexure-C. Annexure-A, in so far as it relates to diploma/post diploma holders similarly situated as the petitioners, make them eligible for admission to the post graduate course if they are in the regular service in Government/University with not less than three years of continuous service. Annexure-B is the Minutes of the Syndicate, held on 19.1.2004, wherein Item O.A.16/5.29 approved the Minutes of the Academic Council held on 4.12.2013. The only rider was a reference back to the Council on an issue, which is not relevant in the present case. It is based on this decision of the Academic Council as approved by the Syndicate that Annexure-C has been brought in. We are unable to find any decision by the Academic Council or the Syndicate that Part I/Part II examination of the graduate course has to be completed during the currency of the course. It is also pertinent that even with respect to diploma holders, the stipulation was only with respect to a pass in Part I English of the B.A. graduate course for gaining eligibility to be admitted to the post graduate course. Part I English and Part II second W.A.Nos.2186/2012 & - 13 - 2187/2012 language were stipulated only with respect to post diploma holders and that too for not gaining admission to the post graduate course, but for being issued with certificates recognizing their post diploma as a post graduate, Master of Arts, qualification. We cannot understand diploma/post diploma holders having not less than three years extant service in Government/University to be burdened with a more onerous condition than that stipulated for students, especially when they were treated preferentially and separately by the Academic Council; as is evident from the decision of the Academic Council dated 4.12.2003.

11. The learned Senior Counsel appearing for the University would, however, persist and take us through the additional documents produced by way of an application dated 8.3.2013. We notice that Annexures G to K are all prior to the decision of the Academic Council dated 4.12.2003 and having absolutely no bearing on the issue arising in the above case, which is specifically in the context and background of the diploma/post diploma courses in RLV College being replaced with graduate/post graduate courses W.A.Nos.2186/2012 & - 14 - 2187/2012 and the transition of the said institution to the regular University stream. Any exemption has to be construed strictly, but on a person being found to be coming within the four corners of the exemption provided, then his eligibility should be considered liberally; giving a purposeful interpretation based on the rationale behind the grant of such exemption and the reason for such preferential treatment.

12. The background in which the Academic Council had decided the specific issue of diploma/post diploma holders of RLV College has been dealt with by us herein above. The Academic Council, being the body competent to decide on such issues, has arrived at a specific decision to grant an exemption to diploma/post diploma holders of RLV College, having not less than three years continuous existing service in Government/University. That the petitioners fall under the exempted category cannot at all be disputed. The only question is whether the further stipulation of their obtaining a pass in Part I/Part II degree examination is mandatory for the grant of post graduate W.A.Nos.2186/2012 & - 15 - 2187/2012 certificates to such exempted persons. We have noticed that even with respect to diploma holders aspiring to improve their qualification, the only stipulation is pass in Part I English examination for acquiring eligibility to be admitted to a post graduate course. The diploma/post diploma holders of the RLV College who have three years continuous service in Government or University was treated as a separate class by the Academic Council and granted preference in the matter of admission to P.G. course. There was no further stipulation provided and it cannot be gainsaid that it was intended that a more onerous condition of pass not only of Part I English, but also of Part II second language should be insisted for persons who were treated separately and preferentially.

13. The decision of the Academic Council has been accepted by the Syndicate without any rider. It was by Annexure-C that a further stipulation that Part I/Part II examinations of the degree course have to be cleared in the currency of the post graduate course was brought in. True, the petitioners claimed admission to the P.G. Course on the W.A.Nos.2186/2012 & - 16 - 2187/2012 basis of Annexure-C. We find it apposite to refer to Shri Krishan v. Kurukshetra University [AIR 1976 SC 376], wherein the appellant before the Supreme Court, had acquired admission to LL.B. course by virtue of his status as a Government employee and had written to the University authorities that the requisite permission of his employer would be obtained and sent to the University in due course. The Supreme Court found that there was no provision in the University Statutes for obtaining such permission of the superior officer. The letter was issued by the appellant only since the University was bent on prohibiting him from appearing in the examination under one pretext or another. It was held that:

"It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission".

14. In the instant case too, the stipulation in Clause 3 was beyond the authority and scope of the powers conferred on the Registrar. Academic matters are in the exclusive domain of the Academic Council, as approved by W.A.Nos.2186/2012 & - 17 - 2187/2012 the Syndicate. The powers and duties of the Academic Council, as enumerated in Section 25 of the Mahatma Gandhi University Act, 1985, confer on it exclusive jurisdiction to advise the Senate and the Syndicate on all academic matters by clause (i) and by clause (v) clothe the Council with the power to prescribe the qualifications for admission of students to the various courses of study and to the examinations and the conditions under which exemptions may be granted. The power to make regulations, inter alia, for the purpose of admission of students to the various courses of study and to the examinations conferred by clause (b) of Section 39 of the Act is subject to Section 40, which requires such regulation to be laid before the Syndicate during its next succeeding meeting. We have noticed above that the decision taken by the Academic Council was placed before the Syndicate and with respect to the exemption, which is the subject matter of the above appeals, the Syndicate has approved the same. The Registrar cannot overreach the decision of the Academic Council as approved by the Syndicate and provide further conditions. W.A.Nos.2186/2012 & - 18 - 2187/2012 Hence, though the writ petitioners were permitted to join for the post-graduate course as per Annexure-C order; for sustenance Annexure-C has to fall back upon the decision of the Academic Council. The respondents/writ petitioners would be entitled to the exemption granted by the Academic Council and cannot be saddled with any further condition stipulated by the Registrar.

In the context of the reasoning rendered above, we are of the definite opinion that the appeals filed by the University are devoid of merit and the impugned judgment is not liable to be interfered with. We confirm the judgment of the learned Single Judge and dismiss the appeal, leaving the parties to suffer their costs.

Sd/-

Manjula Chellur, Chief Justice Sd/-

                                     K.Vinod Chandran,
vku/                                      Judge

                           ( true copy )

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