Kerala High Court
Hariharan vs The Vice Chancellor on 13 August, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WA NO. 1041 OF 2021
[AGAINST THE JUDGMENT IN WP(C) NO.15749/2021 DATED 09.08.2021 OF HIGH COURT OF
KERALA, ERNAKULAM]
APPELLANTS/WRIT PETITIONERS:
1 HARIHARAN, AGED 21 YEARS,
S/O. ANIL KUMAR, (6TH SEMESTER STUDENT JYOTHI ENGINEERING
COLLEGE, THRISSUR) RESIDING AT MANGANKUNNATH HOUSE,
KULAPULLY, SHORANUR-2, PALAKKAD, PIN. 679 122.
2. ASWIN JAYAKUMAR, AGED 20 YEARS,
S/O. P.L. JAYAKUMAR, (TH SEMESTER STUDENT SREE NARAYANA
GURUKULAM COLLEGE OF ENGINEERING, KOLLAM), RESIDING AT
PULLANPLAVIL HOUSE, PALACE SQUARE, CHOTTANIKKARA P.O.,
ERNAKULAM, PIN. 682312.
3 ARJUN T. BALACHANDRAN, AGED 20 YEARS,
S/O. BALACHANDRAN, (6TH SEMESTER STUDENT TOC.H INSTITUTE SCIENCE &
TECHNOLOGY, ERNAKULAM) RESIDING AT THATTAMPARAMBIL HOUSE,
CHOTTANIKKARA P.O., ERUVELLY, ERNAKULAM.
4 GREGORY SHAJAN, AGED 21 YEARS, S/O. SHAJAN M.K.,
6TH SEMESTER STUDENT TOC.H INSTITUTE SCIENCE & TECHNOLOGY,
ERNAKULAM) RESIDING AT MUNDACKKAL HOUSE, PANGARAPILLY P.O.,
MULANTHURUTHY, ERNAKULAM.
5 ABHIJITH K.S., AGED 21 YEARS S/O. SREEKUMAR K.G., (6TH SEMESTER
STUDENT SREE NARAYANA GURUKULAM COLLEGE OF ENGINEERING
KOLLAM), RESIDING AT KALARIKKAL HOUSE, CHOTTANIKKARA P.O.
KANAYANNUR, ERNAKULAM.
6 DEV.S. CHANDRAN, AGED 20 YEARS S/O. SANOJ V CHANDRRAN ,
(6TH SEMESTER STUDENT SREEBUDDHA COLLEGE OF ENGINEERING
PATOOR), RESIDING AT KALPANA -1, KARIPUZHA P.O. MAVELIKARA,
ALAPPUZHA, PIN. 690 103.
7 VISHNU V., AGED 21 YEARS S/O.C. VIJAYAKUAMR
(6TH SEMESTER STUDENT SREEBUDDHA COLLEGE OF ENGINEERING
PATOOR) RESIDING AT VIJAYAMANDIRAM, EREZHA SOUTH P.O.
CHETTIKULANGRA, MAVELIKARA, ALAPPUZHA 690 106.
8 MITHRA SUSHEEL, AGED 21 YEARS D/O.V.V. SUSHEELAN NAIR, (6TH
SEMESTER STUDENT SREEBUDDHA COLLEGE OF ENGINEERING
PATOOR).RESIDING AT PARIPARAVADAKKATHIL HOUSE, PATHIYOOR P.O.
BHAGAVATHIPADI, CHETTIKULANGARA, ALAPPUZHA 690 508.
WA:1041/2021 -:2:-
9 VINAYAK SUSHEEL, AGED 21 YEARS
S/O. V.V. SUSHEELAN NAIR,
(6TH SEMESTER STUDENT SREEBUDDHA COLLEGE OF
ENGINEERING PATTOOR), RESIDING AT PARIPARA VADAKKATHIL
HOUSE, PATHIYOOR P.O. BHAGAVATHIPADI, CHETTIKULANGARA,
ALAPPUZHA-690 508.
10 KARTHIK.V., AGED 21 YEARS
S/O. VIJAYAKUMAR, (6TH SEMESTER STUDENT SREEBUDDHA
COLLEGE OF ENGINEERING PATTOR), RESIDING AT
VIJAYABHAVANAM, PUTHIYAVILA P.O. ALAPPUZHA 690 531.
11 ALEX JOSE, AGED 21 YEARS S/O. JOSE K.D., (6TH SEMESTER
STUDENT CHRIST ENGINEERING COLLEGE , IRINJALAKKUDA),
RESIDING AT KALLIVALAPPIL HOUSE, KALLETTUMKARA P.O.
THRISSUR, KERALA 680 683.
12 LINCY BOSCO, AGED 21 YEARS
D/O. BOSCO JOSEPH
(6TH SEMESTER STUDENT BISHOP JEROM INSTITUTE KOLLAM)
RESIDING AT BINCY DALE, RAJADHANI COMPOUND,
VADAKKEVILA P.O. KOLLAM.
13 DARSHADILIP, AGED 20 YEARS
D/O. DILIP KUMAR.K., (6TH SEMESTER STUDENT BISHOP JEROM
INSTITUTE KOLLAM) RESIDING AT KOCHUKUZHIKANATH HOUSE,
KUREEPUZHA, KARANAD P.O. KOLLAM 691 003.
14 JESSONJOSHY, AGED 21 YEARS
S/O. JOBY JOSE, (6TH SEMESTER STUDENT CHRIST ENGINEERING
COLLEGE, IRINJALAKKUDA) RESIDING AT MELEPPURAM HOUSE,
POTTA P.O. CHALAKUDY, THRISSUR, KERALA 680 722.
15 ARUN.V., AGED 20 YEARS
S/O.P.N. MADANSUNDAR,
(6TH SEMESTER STUDENT JYOTHI ENGINEERING COLLEGE
THRISSUR), RESIDING AT PONULLY NEDUNGHAT HOUSE,
NEDUMPURA P.O. CHERUTHURUTHY THRISSUR , KERALA 679 531.
16 LEO FRANCIS, AGED 20 YEARS S/O. FRANCIS P.I.,
(6TH SEMESTER STUDENT CHRIST ENGINEERING COLLEGE,
IRINJALAKKUDA) RESIDING AT PADIJAKKARA HOUSE,
PARIYARAM P.O CHALAKUDY, THRISSUR , KERALA 680 721.
17 IRSHAD T.A, AGED 21 YEARS S/O. ABOOBACKER T.,
(6TH SEMESTER STUDENT JYOTHI ENGINEERING COLLEGE
THRISSUR), RESIDING AT THOTTATHODI HOUSE,
PALAPPURAM P.O. OTTAPALAM, 679 103.
18 SARANG NATH.S, AGED 21 YEARS
S/O. SANTHOSH KUMAR.S.,
WA:1041/2021 -:3:-
(6TH SEMESTER STUDENT SREEBUDDHA COLLEGE OF
ENGINEERING PATTOR), RESIDING A T SISIRAM, NEDIYAVILA,
KUNNATHOOR EAST P.O. KOLLAM 690 540.
19 JITHIN S., AGED 21 YEARS
S/O. SANKARANARAYANAN V.P.,
(6TH SEMESTER STUDENT JYOTHI ENGINEERING COLLEGE
THRISSUR, ) RESIDING AT SREESAILAM, KULAPPULLY P.O.
SHORNUR 679 122.
20 GOKUL S. NAIR, AGED 21 YEARS
S/O. SURESH NAIR, (6TH SEMESTER STUDENT CHRIST COLLEGE OF
ENGINEERING CHENGANNUR), RESIDING AT SOUPARNIKA,
BUDHANOOR P.O. KADAMPOOR.
21 APARNA B. CHANDRAN, AGED 22 YEARS
D/O. BALACHANDRAN,
(6TH SEMESTER STUDENT BISHOP JEROM INSTITUTE KOLLAM),
RESIDING AT AMBALASSERIL, PANDARATHURUTHU,
CHERIAZHEKKAL P.O. KANNAGAPPALLY.
22 ABHIJITH DASAN, AGED 20 YEARS
S/O. CHEREYAPURATH SIVA DASAN,
(6TH SEMESTER STUDENT GOVERNMENT ENGINEERING COLLEGE
KANNUR), RESIDING AT MOOTHATIL HOUSE, MULLURKARA RAILWAY
STATION, MULLURKARA P.O. THRISSUR 680 583.
23 S. SREERAG MENON, AGED 20 YEARS S/O. T. SUDHEER , (6TH
SEMESTER STUDENT JYOTHI ENGINEERING THRISSUR), RESIDING AT
NO. 6A4, SURYA APARTMENT , CIVIL STATION P.O. KANNUR 670 002.
24 ABDULLA M.R., S/O. MOHAMMEDHUSSAIN,
(6TH SEMESTER STUDENT TKM ENGINEERING COLLEGE KOLLAM),
RESIDING AT PLAVILAVEEDU, III ROAD, CHANDANATHOPE P.O.
KOLLAM 691 014.
25 NIVIN ANILKUMAR, S/O. ANILKUMAR,
PLAVILAZHIKATHU VEEDU, (6TH SEMESTER STUDENT TKM
ENGINEERING COLLEGE KOLLAM), RESIDING AT VENAD NAGAR , 35,
KILIKOLLOOR P.O. KOLLAM 691 004.
26 AYMAN, AGED 22 YEARS S/O. SAJITH.K.K.,
(6TH SEMESTER STUDENT JYOTHI ENGINEERING COLLEGE
THRISSUR), RESIDING AT KINARAMAKKAL HOUSE,
KUMRANELLOOR P.,O. PARUTHIPARA, THRISSUR 680 590.
27 ANNOTSHAJI GEORGE, AGED 21 YEARS
S/O. SHAJI GEORGE, (6TH SEMESTER STUDENT BISHOP
JEROM INSTITUTE KOLLAM), RESIDING AT MALABAR HOUSE,
MUNDAKKAL WEST, KOLLAM 691 001.
WA:1041/2021 -:4:-
28 ALISHA ALOSHIOUS, AGED 21 YEARS
D/O. ALOSIOUS N, (6TH SEMESTER STUDENT BISHOP JEROM
INSTITUTE KOLLAM), RESIDING AT OLD SCHOLL COMPOUND ,
JYOTHIS NAGAR 27, VADDY, KOLLAM 691 013.
29 JAYARAM T.P., S/O.T.P. VASUDEVAN,
(6TH SEMESTER STUDENT ) RESIDING AT
THUMARAKKAVILPUSHPOTH HOUSE, POOKKAYIL BAZAR P.O.
TIRUR ,MALAPPURAM DISTRICT 676 107.
BY ADVS. SHRI VARGHESE P.CHACKO
SHRI DENNIS VARGHESE
RESPONDENTS/RESPONDENTS:
1. THE VICE CHANCELLOR,
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY @ KERALA
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, ALATHARA ROAD,
AMBADY NAGAR, THIRUVANANTHAPURAM , KERALA - 695 016.
2. CONTROLLER OF THE EXAMINATIONS,
OFFICE OF THE CONTROLLER OF TECHNICAL EXAMINATIONS,
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY @ KERALA
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, ALATHARA ROAD,
AMBADY NAGAR, THIRUVANANTHAPURAM, KERALA-695 016.
3. UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY,
BAHADUR SHAZH ZAFAR MARG, NEW DELHI 110 002.
4. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT HIGHER
EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
KERALA-695 001.
R1 & R2 BY ADV. SRI. ELVIN PETER P. J.
R3 BY ADV. SRI. S.KRISHNAMOORTHY, AND
R4 BY SENIOR GOVT. PLEADER SRI. TEK CHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.08.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA:1041/2021 -:5:-
JUDGMENT
Dated this the13th day of August, 2021 S. Manikumar, CJ Instant writ appeal is filed challenging the judgment dated 09.08.2021 in W.P.(C) No.15749 of 2021, by which, a learned single Judge of this Court ordered as under:
"5. I have considered the contentions advanced. From a reading of Exhibit P2, I notice that the guidelines with regard to the conduct of intermediate semester/year assessments are specifically made subject to the advisories/directives issued by the Apex statutory bodies/councils concerned eg.AICTE, NCTE etc. Exhibit P2 itself specifically says that the assessment of intermediate semester students should be as suggested in the 2020 guidelines. The 2020 guidelines provide for conducting terminal semester examinations keeping in mind the protocols of social distancing. A reading of the 2020 guidelines would also make it clear that the mode of assessment of intermediate semester/year students has been left to the discretion of the University. In the above view of the matter, I am unable to accept the contention of the learned counsel for the petitioners that Exhibit P2 guidelines have been violated by the University in conducting offline examinations. Moreover, the petitioners are only 28 in number and in view of the fact that large number of students who are taking the examinations are not party to the writ petition, I am of the opinion that it is for the University to take an appropriate decision with regard to the conduct of examinations in the colleges affiliated to it, after considering all WA:1041/2021 -:6:- relevant aspects and after taking all due precautions. It is made clear that the examinations shall be conducted strictly following the Covid protocol and the case of students who are unable to attend the examinations due to Covid related reasons shall be considered appropriately by the University."
2. Short facts leading to the filing of instant writ appeal are that appellants/writ petitioners are the VI Semester B. Tech Engineering students of various Engineering Colleges under the APJ Abdul Kalam Technological University @ Kerala Technological University, Thiruvananthapuram.
3. The 1st respondent University issued Exhibit-P1 notification, viz., No. KTU/EX-V#3/6401/2019 dated 18.07.2021, to conduct the VI Semester Examination for the appellants and all other identically placed students, in the even semester or specifically the VI Semester by physical/ offline mode.
4. Aggrieved by the said notification, appellants have filed W.P.(C) No.15749 of 2021 for the following reliefs:
(i) To issue a mandamus or any other Writ, Order, by cancelling Exhibit "Notification No. KTU/EX-V#3/6401/2019 dated 18.07.2021 issued by the 1st respondent University" with immediate effect and direct the 1 st respondent University to comply Exhibit P2 "UGC Guidelines on Examinations in view of the Covid-19 Pandemic" issued by the 3 rd respondent UGC in all the matters connected with assessing the petitioner/6 th semester students of B. Tech Graduation Course by the 1 st respondent University.WA:1041/2021 -:7:-
(ii) To issue a mandamus or any other Writ, declaration, declaring that, the 1st respondent University is duty bound to follow Exhibit P2 UGC Guidelines issued by the 3 rd respondent UGC in matters connected with conducting Examinations in consideration of the alarming pandemic situation in Kerala.
5. Appellants have contended that as per the University Grants Commission (UGC) Guidelines 2021, it is mandatory for the APJ Abdul Kalam Technological University @ Kerala Technological University to conduct Assessment than Examination for the intermediary semester students like the appellants, as they are the VI Semester students, and that the University is not having any discretion to change the mode of assessment for Assessment to physical Examination.
6. Appellants have further contended that Exhibit-P1 notification passed by the respondent University, to conduct VI Semester Examination for the appellants with effect from 10.08.2021 to 08.09.2021, in an offline/physical mode, violates the mandatory UGC Guidelines dated 16.07.2021 (Exhibit-P2), and the All India Council for Technical Education (AICTE) Guidelines, thus compelling attendance of the students by holding physical examination in the present situation of COVID-19 pandemic, which according to the appellants, is a violation of the Right to Life, guaranteed under Article 21 of the Constitution of India.
7. Appellants have also stated that in view of COVID-19 Pandemic, after WA:1041/2021 -:8:- constituting an Expert Committee, UGC has promulgated the July, 2021 Guidelines and mandated that, "For Intermediate semester/year students, assessment shall be based on internal evaluation and previous semester as suggested in 2020 guidelines".
8. Appellants have further contended that lakhs of students, teaching and non-teaching staff will be forced to risk their health and lives of their family members, in the event, if they are asked to participate in the offline/physical intermediate examination.
9. Appellants have further contended that the learned single Judge by reading the 2020 UGC Guidelines, in isolation, has arrived at an erroneous finding that the mode of assessment of intermediate semester/year students is left to the discretion of the University. According to the appellants, the learned single Judge has failed to take note of the fact that the said 2020 UGC Guidelines have been revised in Exhibit-P2 UGC Guidelines July, 2021, whereby it is made mandatory.
10. According to the appellants, importation of the word "shall" in Exhibit-P2 revised UGC Guidelines July, 2021 and also the expressly dedicated Paragraph (6) stating that the 2021 UGC Guidelines to be mandatory were overlooked by the learned single Judge. Hence, the appellants seek urgent interference of this Court to set aside the impugned judgment and mandate the respondent University to comply with the UGC Guidelines 2021, conduct WA:1041/2021 -:9:- assessment of the VI Semester students, rather than forcing the students, who are not vaccinated, to write physical Examination during this escalating pandemic year, at the risk of their health and safety.
11. Assailing the correctness of the impugned judgment, appellants have raised the following grounds:
A. Learned single Judge has misinterpreted the mandatory nature of guidelines contained in the UGC Guidelines for the year 2021, especially when the UGC Guidelines for the year 2021 states that, "For intermediate semester year students, ASSESSMENT shall be based on INTERNAL EVALUATION AND PREVIOUS SEMESTER as suggested in 2020 guidelines."
B. Learned single Judge, in paragraph (5) of the impugned judgment, has stated that a reading of the 2020 guidelines would also make it clear that the mode of assessment of intermediate semester/year students has been left to the discretion of the University. Whereas, the learned single Judge has failed to comprehend that the 2020 Guidelines were revised vide 2021 Guidelines, to make ASSESSMENT mandatory. Hence, conducting examination, instead of assessment, is ab initio illegal and void as it is an open violation of the mandatory UGC Guidelines.
C. The standard of compliance, as envisaged in 2021 Guidelines is "MANDATORY", whereas the procedures for assessment of intermediate semesters was only to be WA:1041/2021 -:10:- assessed from 2020 Guidelines. That means, only the procedure of assessment by way of internal evaluation and previous semester was liable to be mandatorily taken from 2020 Guidelines, whereas the standard of compliance is envisaged in 2021 Guidelines.
D. The impugned Judgment is liable to be set aside on Appellate judicial scrutiny by this Court because, it goes against the dictum laid down by a Hon'ble Three Judge Bench Judgment of Hon'ble Supreme Court of India in K. Praneeth & Others v. University Grants Commission (UGC) & Others [2020 (5) ALT 120].
E. The impugned Judgment is erroneously passed by the learned Single Judge as the writ court failed to understand the cardinal revision of the 2020 UGC Guidelines from being advisory to that of being mandatory in 2021 Guidelines by incorporating the word "shall" instead of "may", which reads as follows," "For intermediate semester year students, ASSESSMENT shall be based on INTERNAL EVALUATION AND PREVIOUS SEMESTER as suggested in 2020 guidelines.". Hence, no physical Examination is possible to be held for the 6" semester students vide the impugned notification passed by the university or otherwise.
F. Exhibit P1 dated 18.07.2021 issued by the 1 st respondent University is in violation of Exhibit P2 UGC Guidelines on Examinations and academic calendar, in view of the Covid- 19 Pandemic, and is ultra vires and arbitrary. Hence, Exhibit WA:1041/2021 -:11:- P1 Notification is liable to be set aside by this Court by allowing the prayers as prayed for in the above Writ Appeal.
G. Students like the appellants are yet to be vaccinated and the 4th respondent viz., State of Kerala, represented by Secretary to the Government, Higher Education Department, Thiruvananthapuram could not make due arrangements for vaccinating such students, till date. Thereby, if the appellants and their parents and various agencies involved in transportation, lodging, sanitation and various such other aspects, are involved in conducting the VI semester Examinations with effect from 10.08.2021, it would cause huge crowd and other movements, resulting in spread of the pandemic leading to victimization of the appellants and such other students. Hence, all the offline activities like the proposed VI semester Examination may be restrained by the urgent intervention of this Honourable Court by allowing the above Writ Appeal. H. No prejudice whatsoever would be caused to the respondent University, if all further proceedings pursuant to Exhibit P1 Notification is cancelled or set aside by this Court, by allowing the above Writ Appeal, because the UGC is the appropriate and competent authority, which is legally entitled to direct the Universities like the respondent University, to conduct ASSESSMENT for intermediary semester students like the appellants herein. Hence, the act of the respondent University in neglecting WA:1041/2021 -:12:- or discarding Exhibit P2 UGC Guidelines and issuing the impugned Exhibit P1 Notification is ab-initio void and ultra vires. Hence, on urgent intervention of this Court the impugned Exhibit P1 Notification may be set aside or cancelled.
I. The view of the learned Single Judge that only 29 students are before this Honourable Court is an unwarranted one because it is practically impossible for all the students to file Writ Petitions. Moreover, in Exhibit-P1 notification, even the University is frankly admitting that students student Organizations, parents have complaints about the non-completion of the stipulated portions in many colleges and even Mr. U.P.Akshay, a student syndicate member, also submitted a detailed status report of student's responses, upon the non-completion of portions resulting the inadequacy of preparedness and premature nature of the Examinations.
J. Government of Kerala have issued an order dated 04.08.2021, in exercise of power conferred under Section 20 (3) of the Disaster Management Act, 2005, allowing University Examinations. However, the State Disaster Management Authority and the State Government have no jurisdiction to invoke the said Act, to take a decision in matters connected with University Examinations, as it does not fall within the ambit of the purpose of the said Act. Thus, the respondent UGC is the only authority to determine the mode of Examinations.
WA:1041/2021 -:13:-K. The appellants herein have approached a Hon'ble Division Bench of this Court, when the remaining Examinations of the 1st and 3rd semester students were allowed to continue, on due consideration of the fact that certain Examinations for the 1st and 3rd semesters had already been completed. But, on oral clarification, the Hon'ble Division Bench clarified that even though the subject matter in Writ Appeal No. 948/2021 is pending consideration, it is only connected with the 1st and 3rd semester.
12. Inviting the attention of this Court Exhibit-P1 notification dated 18.07.2021 issued by APJ Abdul Kalam Technological University, Thiruvananthapuram, respondent No.1, Mr. Varghese P. Chacko, learned counsel for the appellants, submitted that despite the receipt of complaints from the parents, student organisations and also the student syndicate responses upon the non-completion of the portions resulting in inadequacy of preparedness for the examinations, the University has rescheduled the VI Semester B.Tech Examinations, to commence from 10.08.2021 onwards.
13. Learned counsel for the appellants further submitted that as per the University Grants Commission (UGC) Guidelines on Examinations and Academic Calender for the Universities, in view of COVID-19 Pandemic July, 2021 (Exhibit-P2), examinations for intermediate semester/year students, assessment shall be made only on internal evaluation and previous semester, WA:1041/2021 -:14:- as suggested in 2020 Guidelines. In this context, he invited our attention to the guidelines, which are extracted below, and submitted that the APJ Abdul Kalam Technological University, Thiruvananthapuram, respondent No.1, is bound by the said guidelines.
14. Learned counsel for the appellants further submitted that the Test Positivity Rate, in Kerala, is increasing and the life of the people is more important than the economic criteria, taken by the UGC, that huge amount has to be repaid to the students.
15. Learned counsel for the appellants made submissions on the grounds raised.
16. Per contra, Mr. Elvin Peter, learned counsel for the Vice Chancellor and the Controller of Examinations, APJ Abdul Kalam Technological University, Thiruvananthapuram/respondent Nos.1 & 2, submitted that W.P. (C) No. 15749 of 2021 was filed by the appellants/writ petitioners on 04.08.2021, the writ petition was disposed of on 9.8.2021, APJ Abdul Kalam Technological University, Thiruvananthapuram, could not place all the material facts before the writ court.
17. However, inviting the attention of this Court to the UGC Guidelines on Examinations and Academic Calender in view of the COVID-19 Pandemic dated 16.07.2021 (Exhibit-P2), learned counsel submitted that referring to the earlier guidelines issued on July, 16, 2020 and September, 24, 2020, University WA:1041/2021 -:15:- Grants Commission in their subsequent guidelines issued on 16.07.2021 stated that in the case of Higher Education Institutions located at places where appropriate Governments (Central/State) or competent authority has imposed restrictions on public gatherings, the Higher Education Institutions may plan accordingly.
18. He further submitted that the University Grants Commission in its guidelines dated 16.07.2021 has made it clear that "in any case, these recommendations shall not cause any restrictions on the guidelines/ directions issued by the appropriate Government/competent authority.
19. He also submitted that the UGC has also made it clear that notwithstanding the guidelines dated 16.07.2021, regarding the conduct of examinations and commencement of the next academic sessions, every Higher Education Institutions shall ensure that it is prepared in all respects to carry out the academic activities following necessary protocols/guidelines/ directions/advisories issued by the Central/State Governments or competent authorities from time to time, in view of the COVID-19 pandemic.
20. According to the learned counsel for the 1 st respondent University, the abovesaid guidelines issued by the University Grants Commission are only advisory or recommendatory in nature, and that UGC, in its guidelines dated 16.07.2021, has made it clear that the recommendations shall not cause any restriction on the guidelines/directions issued by the appropriate WA:1041/2021 -:16:- Government/competent authority.
21. Learned counsel for the 1st respondent University further submitted that as stated supra, Higher Education Institutions have been directed to follow the protocols/guidelines/directives/advisories issued by the Central/ State Government or competent authorities, from time-to-time, in view of CODIV-19 Pandemic.
22. Referring to the order, G.O(Rt) No.564/2021/DMD dated 04.08.2021, issued by the Chief Secretary, Government of Kerala, Disaster Management (A) Department, Thiruvananthapuram, Mr. Elvin Peter, learned counsel for the respondent University, submitted that before issuing the said Government order, a meeting was convened in which, the Vice Chancellor of all the Universities were invited, after deliberations and taking note of the expert's opinion, Government have ordered thus:
"The expert opinions in the matter and the concerns regarding the effect of prolonged/closure of establishments on livelihood have been considered in entirety. Accordingly, it is identified that a focused strategy based on micro-containment as well as access control to indoor spaces of public gathering is required to be implemented in the state."
23. Learned counsel for the 1st respondent University also invited our attention to clause (viii) of the annexure appended to the Government order dated 4.8.2021, which states that "All competitive, recruitment and university examinations/sports trials shall be permitted". WA:1041/2021 -:17:-
24. In the light of the abovesaid Government order dated 4.8.2021, issued by the Government of Kerala, learned counsel for the 1 st respondent University submitted that Government of Kerala has taken note of the prevailing COVID-19 Pandemic situation in Kerala, and accordingly, permitted all University examinations to be conducted. There is no inhibition in conducting any examination in the offline mode, and that the same is in consonance with the UGC Guidelines on Examinations and Academic Calender in view of the COVID-19 Pandemic dated 16.07.2021.
25. As regards the contention of Mr. Varghese P. Chacko, learned counsel for the appellants, that in UGC Guidelines on Examinations and Academic Calender in view of the COVID-19 Pandemic dated 16.07.2021, it is stated that for intermediate semester/year students, assessment shall be based on internal evaluation and previous semester, as suggested in 2020 guidelines, Mr. Elvin Peter, learned counsel for the respondent University taking this Court through the relevant portion of UGC Guidelines of the year 2020, submitted that even in 2020 Guidelines of the UGC, discretion has been conferred on the Higher Education Institutions to conduct examinations. For brevity, relevant clause is reproduced:
"5. For intermediate semester/year students, the universities may conduct examinations, after making a comprehensive assessment of their level of preparedness, residential status of the students, status of COVID-19 pandemic spread in different region/State and other factors.WA:1041/2021 -:18:-
In case the situation does not appear to be normal, in view of COVID- 19, in order to maintain "social distancing", safety and health of the students, grading of the students could be composite of 50% marks on the basis of the pattern of internal evaluation adopted by the universities and the remaining 50% marks can be awarded on the basis of performance in previous semester only (if available). The internal evaluation can be continuous evaluation, prelims, mid-semester, internal assignments or whatever name is given for student progression.
In the situations where previous semester or previous year marks are not available, particularly in the first year of annual pattern of examinations, 100% evaluation may be done on the basis of internal evaluation.
If the student wishes to improve the grades, he/she may appear in special exams for such subjects during next semester.
This provision for intermediate semester examinations is only for the current academic session (2019-20) in view of COVID-19 pandemic, while maintaining safety and health of all the stakeholders and sanctity and quality of the examinations."
26. According to him, as per the UGC Guidelines for the year 2020, University may, for intermediate semester/year students, conduct examinations, after making a comprehensive assessment of their level of preparedness, residential status of the students, status of COVID-19 pandemic spread in different regions/state and other factors. He further submitted that in view of the revised UGC Guidelines on Examinations and Academic Calender for the Universities dated 16.07.2021, in case of Higher Education Institutions located at places where appropriate Government (Central/State) or competent authority has imposed restrictions, the Higher Education Institutional can plan accordingly. He, therefore, submitted that the advisories/ WA:1041/2021 -:19:- recommendations issued in 2020, have been revised by the UGC, stating that the recommendations shall not cause any restrictions on the guidelines/ directives issued by the appropriate Government/competent authority.
27. He reiterated that in the case of examinations to be conducted by the Universities in the State, Government of Kerala have issued an order dated 4.8.2021.
28. Learned counsel for the respondent University further submitted that the writ petition has been filed under misconception that in the case of intermediate semester/year students only, assessment has to be done on the basis of internal evaluation and previous semester, as suggested in 2020 guidelines, and not by conducting offline/physical examinations.
29. He also submitted that the University has conducted examinations for the I and III Semesters, intermediary semester/year students, by offline mode and about 70,000 students for the VI Semester have already written the intermediary semester examinations commencing from 10.08.2021, and also large scale arrangements have been made.
30. Learned counsel for the respondent University further submitted that only 29 students before this Court alone have claimed that their performance should be assessed only through internal assessment and not by holding physical examination and that all other students have come forward to take up the examination.
WA:1041/2021 -:20:-
31. That apart, the respondent University has also made it clear that if any one of the students affected with COVID is unable to take up the examinations, he/she will be permitted to take up the examinations on a subsequent date as if it is the first appearance for such students.
32. In sum and substance, it is the contention of the learned counsel for the University that the UGC Guidelines are not mandatory; that it is only an advisory/recommendation; that the Universities have been permitted to take note of the guidelines/directives issued by the appropriate Government (Central/State) or competent authority; and in the case on hand, G.O.(Rt) No.564/2021/DMD dated 4.8.2021 has been issued by the Chief Secretary, Government of Kerala, Disaster Management (A) Department, Thiruvananthapuram, permitting the examinations to be conducted. He reiterated that the power of the University to conduct examinations in the offline mode has not been restricted
33. Mr. S. Krishnamoorthy, learned standing counsel for the University Grants Commission/respondent No.3, on instructions, submitted that the guidelines issued by the UGC insofar as examination is concerned, are mandatory in nature. He also submitted that the NEET Examination has been postponed. According to him, the interpretation of the learned counsel for the 1st respondent University is not proper.
34. By way of reply, learned counsel for the appellants by inviting our WA:1041/2021 -:21:- attention to the Full Bench decision of the Hon'ble Supreme Court in K. Praneeth & Others v. University Grants Commission (Ugc) & Others reported in CDJ 2020 SC 686, made submissions.
35. Heard learned counsel for the parties and perused the material available on record.
36. UGC Guidelines on Examinations and Academic Calender for the Universities, in view of COVID-19 Pandemic and Subsequent Lockdown April, 2020, dated 29.04.2020, are extracted hereunder:
"UGC Guidelines on Examinations and Academic Calendar for the Universities in View of COVID-19 Pandemic and Subsequent Lockdown Introduction The whole world, including India, is passing through unprecedented difficult times due to the outbreak of COVID-19 pandemic. As all universities and colleges are closed due to national lockdown, the teaching -- learning process and research activities have been badly disrupted. The schedule of Terminal Semester examinations has also got disturbed. In such scenario, it is joint responsibility of all the stakeholders to manage multiple key issues relating to academic activities in the institutions. While it is crucial to follow measures taken by the Government to contain the spread of COVID-19, it is also important to continue the educational process making effective use of technology and other available options. Future may have many uncertainties but difficult times demand quick appropriate decisions. We must be optimistic that we can reinvent work again and engage the students in effective and constructive ways. The University Grants Commission (UGC) has been engaged with this issue and contemplating measures to face the challenge of safeguarding the interests of the academic fraternity in general and students in particular. Confronted with vital issues of examinations and academic calendar, UGC constituted an Expert Committee to deliberate on these issues and make recommendations to address them. In the present circumstances, the major concerns are as follows:WA:1041/2021 -:22:-
1. Ensuring the health, safety and security of the students, faculty and staff and also to continue academic activities.
2. Conducting the examinations and declaration of results.
3. Facilitating the students to participate in further admissions, placement processes, research and training etc.
4. Charting out a plan for the next academic session.
In the current scenario, the following issues have been deliberated by the Expert Committee:
1. Mode of Teaching-learning Process xx xxxx xxxxx
2. Academic Calendar for the Session 2019-20 xx xxx xxxx
3. Modes of Examinations Like the modes of teaching-learning, most of the universities follow the physical mode of examinations, with a few exceptions. On this aspect also, some of the universities lack adequate IT infrastructure for conducting online examinations. The hiring of private agencies for conducting online examinations also does not seem feasible in view of the fact that examinations are to be conducted simultaneously by all the universities. Therefore, keeping in view the basic infrastructure available at the level of the institutions and accessibility of internet to the students, especially in remote areas, it is not feasible to uniformly adopt the online mode of examination at this juncture.
4. Academic Calendar for the Session 2020-21 xx xxx xxxx
5. Functioning of Laboratories.
xx xxxx xxxx GUIDELINES Based on the recommendations of the Expert Committee, the following Guidelines have been framed for the Examinations and the Academic Calendar in the Universities. The guidelines are advisory in nature and each university may chart out its own plan of action taking into consideration the issues pertaining to COVID-19 Pandemic. WA:1041/2021 -:23:- EXAMINATIONS
1. Maintaining the sanctity of academic expectations and integrity of examination process, the universities may adopt alternative and simplified modes and methods of examinations to complete the process in shorter period of time in compliance with CBCS requirements as prescribed by UGC from time to time. These may include MCQ/ OMR based examinations, Open Book Examination, Open Choices, assignment/ presentation-based assessments etc.
2. The universities may adopt efficient and innovative modes of examinations by reducing the time from 3 hours to 2 hours assigned to each examination, if need arises but without compromising the quality, so that the process may be completed in multiple shifts and, at the same time, sanctity to evaluate the performance of a student is also maintained.
3. The universities may conduct Terminal / Intermediate Semester / Year examinations in offline / online mode, as per their Ordinances/ Rules and Regulations, Scheme of Examinations, observing the guidelines of "social distancing" and keeping in view the support system available with them and ensuring fair opportunity to all students.
4. Terminal semester / year examinations for PG/ UG courses/ programmes may be conducted by universities as suggested in the academic calendar keeping in mind the protocols of "social distancing".
5. For intermediate semester/year students, the universities may conduct examinations, after making a comprehensive assessment of their level of preparedness, residential status of the students, status of COVID-19 pandemic spread in different region / state and other factors.
In case the situation does not appear to be normal in view of COVID- 19, in order to maintain "social distancing", safety and health of the students, grading of the students could be composite of 50% marks on the basis of the pattern of internal evaluation adopted by the universities and the remaining 50% marks can be awarded on the basis of performance in previous semester only (if available). The internal evaluation can be continuous evaluation, prelims, mid-semester, internal assignments or whatever name is given for student progression.
In the situations where previous semester or previous year marks are not available, particularly in the first year of annual pattern of WA:1041/2021 -:24:- examinations, 100% evaluation may be done on the basis of internal evaluation.
If the student wishes to improve the grades, he/she may appear in special exams for such subjects during next semester. This provision for intermediate semester examinations is only for the current academic session (2019-20) in view of COVID-19 pandemic, while maintaining safety and health of all the stakeholders and sanctity and quality of examinations.
6. In addition to the above, following steps are required to be taken:
xx xxxx xxxxxx
7. The modalities for examination and other related activities be applied uniformly across all courses in a university. xx xxx xxxx
11. The universities may conduct the practical examinations and Viva- Voce Examinations through Skype or other meeting apps, and in case of intermediate semesters, the practical examinations may be conducted during the ensuing semesters.
xx xxx xxxx xx xxx xxxxx ACADEMIC CALENDAR xxx xxxxxxx xxxxx Some General Guidelines xx xxxx xxxxxx
8. In view of the present scenario and future uncertainties:
i. the universities may adopt and implement these Guidelines in a transparent manner by making alterations/ additions/ modifications/ amendments to deal with particular situation(s) in the best interest of students, educational institution and the entire education system, ii. if the university faces difficulty in making admissions as per the existing policy, it may adopt alternative modes of admission process, if otherwise legally tenable, and iii. In case of educational institutions located at places where the Government (Centre/ State) have imposed WA:1041/2021 -:25:- restrictions on gathering of public, the institutions may plan accordingly. In any case, the above recommendations shall not cause any restrictions on the guidelines/directions issued by the appropriate Government/competent authority.
Notwithstanding the above Guidelines regarding the resumption of session, conduct of examinations and commencement of next academic session, every university/ college has to ensure that it is prepared in all respects to carry out the academic activities following necessary advisories/guidelines/directions issued by the Central/State Government, MHRD or UGC from time to time to prevent the spread of COVID-19."
37. UGC Guidelines on Examinations and Academic Calender for the Universities, in view of COVID-19 Pandemic and Subsequent Lockdown July, 2021, dated 16.07.2021, are extracted hereunder:
"UGC Guidelines on Examinations and Academic Calender in view of COVID-19 Pandemic - July, 2021 I. Introduction Keeping in view the prevailing situation due to the COVID-19 pandemic; the order of the Hon'ble Supreme Court of India regarding the cancellation of School Board examinations for class/grade-XII; the earlier order of the Hon'ble Supreme Court upholding the UGC's guidelines of July 6, 2020 regarding terminal semester/ final year examinations; the earlier UGC guidelines on examination and academic calendar dated April 29, 2020, July 6, 2020 and September 24, 2020; and, the larger interest of students, the following guidelines are being issued by the UGC in respect of examinations and the academic calendar for universities, colleges and institutions deemed to be universities (who are collectively called "Higher Education Institutions" in these guidelines) in continuation of the earlier guidelines.
II. Examinations The provisions as contained in the guidelines issued earlier as mentioned above shall apply for the current academic session 2020-21. Further, the Terminal Semester/ Final Year Examinations (2020-2021) WA:1041/2021 -:26:- be compulsorily conducted in offline (pen & paper)/ online/ blended (online + offline) mode by no later than August 31, 2021 following the prescribed protocols/guidelines related to the COVID-19 pandemic. For intermediate semester/year students, assessment shall be based on internal evaluation and previous semester as suggested in 2020 guidelines.
III. Academic Calendar xx xxx xxxxx
4. Accordingly, Higher Education Institutions shall follow the calendar given below for the academic session 2021-2022:
Xx xxxx xxxxxxx Commencement of Classes of Undergraduate *Latest by 01.10.2021 and Postgraduate students' Fresh batch (First Semester/Year) Preparatory Break Conduct of Examinations Semester Break ** To be planned by the Higher Education Commencement of Classes for Even Semester Institution Preparatory Break Conduct of Examinations Semester Break begins Semester Break ends 31.07.2022 Commencement of Next Academic Session for 01.08.2022 this batch xx xxx xxxx **Higher Education Institutions may plan for classes, breaks, conduct of examinations, semester break etc. during the period October 1, 2021 to July 31, 2022 following necessary protocols/guidelines/ directions/ advisories issued by the Central/State Governments and competent authorities from time to time, in view of the COVID-19 pandemic.
Xx xxx xxxxx
6. The guidelines issued by the UGC on April 29, 2020 and July 6, 2020 highlighting the modes of teaching, conduct of examinations, WA:1041/2021 -:27:- importance of physical & social distancing etc. should be read along with the present guidelines and shall remain mandatory, but the present guidelines shall prevail in the event of any conflict.
7. The present guidelines are subject to the advisories/directives issued by the apex statutory bodies/councils concerned, e.g., AICTE, NCTE, BCI, NMC, DCI, INC, PCI, AYUSH etc. regarding examinations and academic calendars.
Notwithstanding the present guidelines regarding the conduct of examinations and commencement of the next academic session, every Higher Education Institution shall ensure that it is prepared in all respects to carry out the academic activities following necessary protocols/guidelines/directions/advisories issued by the Central/State Governments or competent authorities from time to time, in view of the COVID-19 pandemic."
38. D.O. No.F.1-1/2021 (Secy) dated 16.07.2021 issued by the University Grants Commission to the Vice Chancellors of all the Universities and Principals of all the Colleges is extracted hereunder:
"D.O. No. F.171/2021 (Secy) 16 July, 2021 Subject: UGC Guidelines on Examinations and Academic Calendar in view of the COVID-19 Pandemic --July 2021 Respected Madam /Sir, The University Grants Commission (UGC) had issued 'Guidelines on Examinations and Academic Calendar for the Universities in view of COVID-19 Pandemic and Subsequent Lockdown on April 29, 2020. The said guidelines were later revised as the number of COVID-19 cases increased and, subsequently, further revised guidelines were issued on July 6, 2020 and September 24, 2020.
UGC constituted an Expert Committee to revisit the Guidelines on Examinations and Academic Calendar, keeping in view the prevailing situation clue to the COVID-19 pandemic; the order of the Hon'ble WA:1041/2021 -:28:- Supreme Court of India regarding the cancellation of School Board examinations for class/grade-XII; the earlier order of the Hon'ble Supreme Court upholding the UGC's guidelines of July 6, 2020. regarding terminal semester/ final year examinations; and, the larger interest of students. A copy of the guidelines is enclosed. In the case of Higher Education Institutions located at places where the appropriate government (Central/State) or competent authority has imposed restrictions on public gatherings, the Higher Education Institutions may plan accordingly. In any case, these recommendations shall not cause any restrictions on the guidelines/directions issued by the appropriate government/ competent authority. Notwithstanding the present guidelines regarding the conduct of examinations and commencement of the next academic session, every Higher Education Institution shall ensure that it is prepared in all respects to carry out the academic activities following necessary protocols/guidelines/directions/advisories issued by the Central/State Governments or competent authorities from time to time, in view of the COVID-19 pandemic.
With kind regards, Yours sincerely, Sd/-
Encl.: As above (Rajnish Jain)"
39. Exhibit-P1 notification dated 18.07.2021 issued by the 1 st respondent University is extracted hereunder "APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY CET campus, Thiruvananthapuram-695 016 Ph: 0471 2598122; Fax: 2598522 www.ktu.edu.in Email: [email protected] KTU/EX-VI/3/6401/2019 18.07.2021 WA:1041/2021 -:29:- NOTIFICATION Ref: 1. Notification No. KTU/EX-II#5300/2018 10.07.2021 Sub: Conduct of S6 B. Tech Examinations-complaints related with non- completion of portions- actions- reg.
The classes for the present S6 B. Tech were commenced on 22-03-2021. As per the academic calendar published prior to the commencement of classes, the last date of completion of classes are scheduled on 05-07- 2021, ensuring 75 working days in the semester. Further, direct contact classes were also planned from 07-06-2021 to 05-07-2021 on the presumption that Covid-19 related situations will be normalized by then. However, due to restrictions associated with Covid-19 propagation and associated lockdowns, contact classes could not have been conducted.
University has given detailed instructions on 25-05-2021 on the need for continuing online classes, but with detailed norms to be followed, to make it more student-centric. Since the conduct of direct contact classes were not materialized as initially scheduled, instructions were given to extend the conduct of online classes till 21-07-2021. As a result, 83 working days were made available for the institutions for the transaction of the prescribed syllabus. Accordingly, notification scheduling the sixth semester B. Tech examinations from 02-08-2021 was issued on 10-07-2021 ensuring 12 days for examination related preparations.
Unfortunately, the University is in receipt of complaints from parents, students and student organizations, upon the non-completion of stipulated portions in many colleges. Mr. U.P. Akshay, the student Syndicate member, submitted a detailed status report of students responses upon the non-completion of portions resulting in the WA:1041/2021 -:30:- inadequacy of preparedness for the examinations. Further, University collected feedback from Principals too.
Though the lapse of non-transaction of prescribed syllabus in the affiliated colleges, is no way, the fault of the University, the genuine complaints of students on the matter could not be neglected. Hence, Hon'ble Vice Chancellor has accorded sanction to reschedule the S6 B. Tech Examinations to commerce from 10-08-2021. Detailed timetable will be published shortly.
Considering the seriousness of the issue, an urgent meeting of the Heads of Institutions will also be convened by the University for a detailed discussion on the matter."
40. Government Order, G.O.(Rt) No.564/2021/DMD dated 4.8.2021, issued by the Chief Secretary, Government of Kerala, Disaster Management (A) Department, Thiruvananthapuram is extracted hereunder:
"File No.DMA2/767/2020-DMD-Part(4) GOVERNMENT OF KERALA Abstract Disaster Management Department - COVID-19 containment activities
- relaxation and restrictions from 5 th August-2021 - Orders issued.
-------------------------------------------------------------------------------------
DISASTER MANAGEMENT (A) DEPARTMENT G.O.(Rt)No.564/2021/DMD Dated, Thiruvananthapuram, 04/08/2021
------------------------------------------------------------------------------------- Read:- 1. GO(Rt) No.404/2021/DMD dated 06.05.2021
2. GO(Rt) No.467/2021/DMD dated 16.05.2021
3. GO(Rt) No.479/2021/DMD dated 22.06.2021
4. GO(Rt) No.487/2021/DMD dated 29.06.2021
5. GO(Rt) No.500/2021/DMD dated 06.07.2021
6. GO(Rt) No.524/2021/DMD dated 10.07.2021
7. GO(Rt) No.532/2021/DMD dated 17.07.2021
8. GO(Rt) No.534/2021/DMD dated 20.07.2021 WA:1041/2021 -:31:-
9. GO(Rt) No.545/2021/DMD dated 24.07.2021
10. GO(Rt) No.550/2021/DMD dated 28.07.2021
11. GO(Rt) No.559/2021/DMD dated 30.07.2021 ORDER Targeted COVID-19 containment activities were undertaken by the State in the last few months. On 30.07.2021, Hon.Chief Minister, in his regular COVID-19 core group meeting, directed to evolve a COVID- 19 containment strategy focusing public health needs and livelihood concerns. Subsequent to this, the State Health Experts' Committee met on 01.8.2021 and the undersigned took meetings with Secretaries of Government, Enforcement agencies and Chairman, State Health Experts' Committee on 31.07.2021 and 02.08.2021 respectively to examine the COVID-19 containment strategy. The team sent by the Ministry of Health and Family Welfare, Government of India met with the undersigned on 02.08.2021 in which containment at micro-level was emphasized by the team.
The expert opinions in the matter and the concerns regarding the effect of prolonged/closure of establishments on livelihood have been considered in entirety. Accordingly, it is identified that a focused strategy based on micro-containment as well as access control to indoor spaces of public gathering is required to be implemented in the state.
Accordingly, the undersigned in his capacity as Chairman of the State Executive Committee of State Disaster Management Authority, in exercise of the powers conferred under Sec.20 (3) of the Disaster Management Act-2005, hereby issues the guidelines as given in the Annexure for strict implementation by the enforcing authorities with effect from 00:00 Hrs of 5th August-2021. These guidelines are in supersession of the previous guidelines issued by the Government read as (1) to (11) above.
(By order of the Governor) Dr V P Joy Chief Secretary "
41. The Annexure enclosed along with Exhibit-P1 notification dated 4.8.2021 is extracted hereunder:
WA:1041/2021 -:32:-
File No.DMA2/767/2020-DMD-Part (4) Annexure i. Special intensified stringent lockdown restrictions will be enforced in the LSGIs with critical spread based on the Weekly Infection Population Ratio (WIPR). WIPR is the total number of COVID-19 infections reported in the week multiplied by 1000 divided by total population of the panchayath or urban ward. In panchayaths/urban wards with WIPR of more than 10, special intensified stringent lockdown restrictions shall be imposed. District Disaster Management Authorities shall publish this list by the evening of every Wednesday with data from Covid19 Jagratha portal and disseminate information accordingly.
ii. Shops, markets, banks, offices, financial institutions, factories, industrial establishments, open tourist spaces and other establishments can function from Monday to Saturday. All shops, tourism centres and other establishments should display the status of vaccination of employees and the number of customers permitted at a time. It shall be the responsibility of the owner of such establishments to avoid crowding inside and outside the shop. Enforcement agencies will conduct checks and take action to ensure the above.
iii. All establishments in the public sector, including government offices, PSUs, companies, autonomous organizations, commissions etc. will function from Monday to Friday.
iv. Only persons who have taken at least one dose of COVID-19 vaccine before two weeks, or who are in possession of RT-PCR negative certificate taken 72 hours before or who is in possession of COVID-19 positive results more than a month old will be allowed inside (workers/visitors) in shops, markets, banks, public and private offices, financial institutions, factories, industrial establishments, open tourist spaces and other establishments.
v. All persons (whether belonging to the categories mentioned in point
(iv) or not) can move out of home for essential activities like vaccination, COVID 19 testing, medical emergency, purchase of medicine, death of relatives, marriage of close relatives, local travel to catch long route bus/train/flight/ship, examinations etc. vi. To avoid crowding, all shops and establishments can function from 7 am to 9 pm. People will be allowed inside the shop only on the basis of the shopping area (1 person per 25 sq ft.) Hotels and restaurants will be allowed online delivery till 9:30 PM.WA:1041/2021 -:33:-
vii. All transport vehicles (public and private) shall be permitted with strict adherence to COVID-19 protocol.
viii. All competitive, recruitment and university examinations/sports trials shall be permitted.
ix. There will be complete lockdown on 8th August 2021 (Sunday) with the permissible activities ordered in GO(Rt)No.459/2021/DMD dated 07/06/2021 and GO (Rt)No.461/2021/DMD dated 10/06/2021. However, there shall be no lockdown on 15th August 2021 (Independence day). x. Children who have not been vaccinated can accompany adults in point (iv).
xi. DDMAs shall declare containment zones and shall ensure that entry/exit is not allowed from these containment zones, except for emergencies.
xii. Schools, Colleges, Tuition Centres, Cinema theatres, in-house dining in Hotels and restaurants etc. will not be permitted. Malls can be permitted to open only for online delivery. Educational institutions can be opened for imparting online education only. Dining will be allowed in open areas, inside vehicles, parking lots etc. maintaining six ft. distance.
xiii. Accommodation facilities like hotels, resorts etc will be allowed in a bio-bubble model in all areas on all days.
xiv. Public functions, social, cultural and political gatherings are not permitted. However, marriages and funerals will be allowed with participation of maximum 20 persons. Places of worship shall strictly limit the maximum number of persons to 40 with each person having a minimum of 25 sq.ft area. For lesser area, the maximum number of persons shall be reduced proportionately.
xv. All departments shall conduct online/social media campaigns to effectively implement the restrictions.
xvi. All departments concerned shall ensure that appropriate COVID protocol is followed in all areas. Specifically, Transport Department (Bus stops and bus depots), Fisheries Department (Fish markets, harbours and fish landing centres), LSGD (Markets and public places), Labour Department (Loading and unloading centres), Industries Department (Industrial areas and manufacturing units) etc will take coordinated action for the purpose. District Collectors shall appoint Sectoral Magistrates for strict enforcement of regulations. WA:1041/2021 -:34:- xvii. Police Department and Local Self Government Institutions concerned shall convene meetings with traders' associations of the area to ensure that crowding inside and outside the shops does not happen. Shops shall make necessary arrangements specifically for this purpose. Home delivery/ On-line delivery shall be encouraged. xviii. Rapid Response Teams (RRT) shall be deployed at ward level for effective contact tracing and surveillance including monitoring of home quarantine and moving patients to Domiciliary Care Centres (DCC)."
42. The main thrust of the contention of Mr. Varghese P. Chacko, learned counsel for the appellants, is that the Guidelines issued by the UGC are mandatory, and whereas, the contention to the contrary of the learned counsel for the respondent University is that, they are only advisories/ recommendatory in nature, and that, the Higher Educational Institutions are given the discretion to choose the mode, depending upon the guidelines/ directives issued by the appropriate Government (Central/State).
43. A careful scrutiny of the guidelines issued by the UGC dated 16.07.2021 (Exhibit-P2) shows that even at the beginning of the guidelines, UGC has made it clear that the guidelines are only advisory in nature and each University may chart out its own plan of action, taking into consideration the issues pertaining to COVID-19 Pandemic. In the case of examinations for intermediate semester/year students, UGC Guidelines of April, 2020 dated 29.04.2020 state that Universities may conduct examinations, after making a comprehensive assessment of the level of preparedness, residential status of the students, status of COVID-19 pandemic spread in different regions/State WA:1041/2021 -:35:- and other factors. As stated supra, UGC, in their opening paragraph of the Guidelines issued in April, 2020, dated 29.04.2020, has made it clear that the recommendations are only advisory in nature, and that is why, UGC at clause (5) of the guidelines under the head 'Examinations' has stated thus:
"5. For intermediate semester/year students, the universities may conduct examinations, after making a comprehensive assessment of their level of preparedness, residential status of the students, status of COVID-19 pandemic spread in different region / state and other factors.
In case the situation does not appear to be normal in view of COVID-19, in order to maintain "social distancing", safety and health of the students, grading of the students could be composite of 50% marks on the basis of the pattern of internal evaluation adopted by the universities and the remaining 50% marks can be awarded on the basis of performance in previous semester only (if available). The internal evaluation can be continuous evaluation, prelims, mid-semester, internal assignments or whatever name is given for student progression.
In the situations where previous semester or previous year marks are not available, particularly in the first year of annual pattern of examinations, 100% evaluation may be done on the basis of internal evaluation.
If the student wishes to improve the grades, he/she may appear in special exams for such subjects during next semester. This provision for intermediate semester examinations is only for the current academic session (2019-20) in view of COVID-19 pandemic, while maintaining safety and health of all the stakeholders and sanctity and quality of examinations."
44. In the case of conducting examinations for intermediate semester/ year students, if the intention of the UGC is to adopt only the internal evaluation, UGC would not have given discretion to the Higher Educational Institutions to conduct examinations. Merely because the UGC, in its WA:1041/2021 -:36:- guidelines issued on 29th April, 2020, has stated that insofar as intermediary semester/year students' assessment shall be based on the internal evaluation and previous semester, as suggested in 2020 guidelines, that would not take away the power of the Universities, in conducting examinations.
45. Though, in paragraph (6) of the revised Guidelines issued on 16.07.2021 (Exhibit-P2), UGC has stated that the guidelines issued by the UGC on April 29, 2020 and July 6, 2020, highlighting the modes of teaching, conduct of examinations, importance of physical & social distancing etc., should be read along with the present guidelines and shall remain mandatory, but the present guidelines shall prevail in the event of any conflict, perusal of the revised guidelines issued by the UGC on 16.07.2021, make it clear that, in the case of Higher Educational Institutions, located at places where appropriate Governments (Central/State) or competent authority has imposed restrictions on public gatherings, the Higher Education Institutions may plan accordingly. UGC, in the revised guidelines dated 16.07.2021, has also made it clear that the recommendations issued, shall not cause any restrictions on the guidelines/ directives issued by the appropriate Government/competent authority. In such circumstances, the Higher Educational Institutions may plan accordingly.
46. At this juncture, it should be noticed that the Government of Kerala, after taking the expert opinion in the matter and the concerns regarding the effect of prolonged closure of establishments on livelihood, have issued WA:1041/2021 -:37:- general guidelines, G.O(Rt.) No.564/2021/DMD dated 4.8.2021, permitted all competitive, recruitment, and University examinations/sports trials.
47. It is also relevant to note that before issuing the general guidelines on 4.8.2021, Government of Kerala have taken the opinion of the experts, which at the risk of repetition, reads as under:
"The expert opinions in the matter and the concerns regarding the effect of prolonged/closure of establishments on livelihood have been considered in entirety. Accordingly, it is identified that a focused strategy based on micro-containment as well as access control to indoor spaces of public gathering is required to be implemented in the State."
48. Contention of the learned counsel for the University that before issuing the abovesaid guidelines, Vice Chancellor of all the Universities have also participated in the meeting on 16.6.2021, and thereafter, considering the views of the experts and that of the Vice Chancellors, a decision was taken by the Government, permitting conduct of examinations, is not disputed. At the risk of repetition, UGC in its revised guidelines, Exhibit-P2, has made it clear that the recommendations of the UGC shall not cause any restriction on the guidelines/directives issued by the appropriate Government/competent authority, making it manifestly clear that the Higher Educational Institutions may take appropriate decision in the matter of conducting examinations.
49. Giving due consideration to the submission of the learned counsel for the parties, and on perusal of the material on record, we are of the view that the guidelines issued by the UGC cannot be construed as mandatory, WA:1041/2021 -:38:- rather it should be construed as advisory/recommendatory in nature.
50. On a conjoint reading of the guidelines issued in the year 2020, and the revised guidelines of the year 2021, there is no absolute restriction, in conducting offline examinations, for the intermediary semester/year students. That apart, it should be noted that for intermediate semester/year students, University has already conducted examinations, where over one lakh students have participated in the said examinations.
51. Use of the word "shall" in clause (6) is not conclusive. Reading of the guidelines issued by the UGC altogether, we are of the view that the word "shall" used in clause (6) of the guidelines, has to be construed and meant as "may". On the facts and circumstances of this case, the guidelines issued by the UGC, which are advisory in nature/recommendations, will not partake the character of an order directing the Universities not to conduct any examination for intermediate semester/year students.
52. Pitted against 70,000 students for the VI Semester Examinations, only 29 students have approached this Court and all other eligible students have taken up the examinations on 12.08.2021.
53. In K. Praneeth & Others v. University Grants Commission (Ugc) & Others reported in CDJ 2020 SC 686, after considering the rival submissions, a Full Bench of the Hon'ble Supreme Court has finally concluded as under:
WA:1041/2021 -:39:-
"111. In view of our foregoing discussion and conclusion, this batch of cases is disposed of in the following manner:
(1) The prayer to quash the revised guidelines dated 06.07.2020 issued by the University Grants Commission and OM dated 06.07.2020 issued by the Ministry of Human Resource Development and letter dated 06.07.2020 issued by the Ministry of Home Affairs is refused.
(2) The decision taken by the State Disaster Management Authority/State not to hold final year/terminal semester examination by 30.09.2020 in exercise of power under Disaster Management Act, 2005 shall prevail over deadline fixed by the University Grants Commission i.e. 30.09.2020 in respect to the concerned State.
(3) The decision of the State/State Disaster Management Authority to promote the students in the final year/terminal semester on the basis of previous performance and internal assessment being beyond the jurisdiction of Disaster Management Act, 2005 has to give way to the guidelines of UGC dated 06.07.2020 directing to hold examination of final year/terminal semester. The State and University cannot promote the students in the final year/terminal semester without holding final year/terminal examination. (4) If any State/Union Territory in exercise of jurisdiction under Disaster Management Act, 2005 has taken a decision that it is not possible to conduct the final year/terminal semester examination by 30.09.2020, we grant liberty to such State/Union Territory to make an application to the University Grants Commission for extending deadline of 30.09.2020 for that State/Union Territory which shall be considered by UGC and rescheduled date be communicated to such State/Union Territory at the earliest.
112. All writ petitions are disposed of accordingly. The Special Leave Petition No. 10042 of 2020 is dismissed. "
54. Decision relied on by the learned counsel for the appellants would not lend support to their case. On the contrary, it fortifies the case of the 1 st WA:1041/2021 -:40:- respondent University that, in cases where any State/competent authority, under the provisions of the Disaster Management Act, 2005, issues any orders, the guidelines or orders issued by the UGC shall be subject to the orders issued by the appropriate Government. Therefore, it is specific and clear that the guiding order is the order of the State Government, extracted above, and looking at the issue in that context, the decision of the Hon'ble Apex Court in K. Praneeth's case (cited supra) would not, in any manner, be inure to the benefit of the appellants.
In the light of the above discussion, we are of the view that there is no error in the impugned judgment, warranting interference. Writ appeal is dismissed. No costs.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE krj //TRUE COPY// P.A. TO C.J.