Kerala High Court
Deepu Dev.S vs University Of Kerala on 6 March, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934
WP(C).No. 13188 of 2012 (W)
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PETITIONER(S):
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DEEPU DEV.S., AGED 29 YEARS
S/O.SAHADEVAN, N.S. BUILDING, KEEZHATTINGAL P.O.,
ATTINGAL, KEEZHATTINGAL VILLAGE, PIN 695 101
BY ADVS.SRI.M.R.RAJESH
SRI.K.M.ALEXANDER
RESPONDENT(S):
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1. UNIVERSITY OF KERALA,
REPRESENTED BY THE REGISTRAR, OFFICE OF
UNIVERSITY, PALAYAM THIRUVANANTHAPURAM 695146
2. PRINCIPAL,
COLLEGE OF ENGINEERING, KULATHOOR, THIRUVANANTHAPURAM 695583
3. STATE OF KERALA
REPRESENTED BY THE PRINCIPAL,
SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT,
GOVT.SECRETARIAT, THIRUVANANTHAPURAM 695001
4. THE ACADEMIC COUNCIL OF THE UNIVERSITY OF KERALA,
REPRESENTED BY THE VICE CHANCELLOR, OFFICE OF THE
UNIVERSITY OF KERALA , PALAYALAM, THIRUVANANTHAPURAM 695146
R1 & R4 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.
R2 & R3 BY SMT.LILLY.K.T., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-02-2013,
ALONG WITH WPC. 13749/2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AS
WP(C).No. 13188 of 2012 (W)
APPENDIX
PETITIONER(S) EXHIBITS:
EXT.P1: A TRUE COPY OF THE MEMORANDUM NO. AA1/TV/E-1(A)/ 118 DATED
06-03-2012.
EXT.P2: A TRUE COPY OF THE APPLICATION FOR READMISSION DT 06-01-2012.
EXT.P3: A TRUE COPY OF THE ORDER NO AC A III/4/12068/2012 DATED 08-02-2012
ISSUED BY THE 1ST RESPONDENT.
EXT.P4: A TRUE COPY OF THE FREE RECEIPT NO.246201 DATED 22-02-2012.
EXT.P4(A): A TRUE COPY OF THE SPECIAL FEE RECEIPT NO.53600 DT 22-02-2012.
EXT.P5: A TRUE COPY OF THE APPLICATION DATED 22-02-2012 SUBMITTED TO
THE 2ND RESPONDENT.
EXT.P6: A TRUE COPY OF THE MEMORANDUM NO.
AA1/VOVT/ATM/2012/OP/1/GENERAL DATED 16-03-2012.
EXT.P7: A TRUE COPY OF THE APPLICATION DATED 20-03-2012.
EXT.P8: A TRUE COPY OF THE COMPLAINT NO 807/2012 DATED 03-04-2012 ON
THE FILE OF THE HON'BLE LOK AYUKTHA.
EXT.P9: A TRUE COPY OF THE I.A NO.515/2012 IN COMPLAINT NO.807/201 DATED
03-04-2012 ON THE FILE OF THE HON'BLE LOK AYUKTHA.
EXT.P10: A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST
RESPONDENT TO EXT.P8.
EXT.P11: A TRUE COPY OF THE OBJECTION ALONG WITH THE DOCUMENTS
PRODUCED THEREIN FILED BY THE 2ND RESPONDENT.
EXT.P12: A TRUE COPY OF THE ORDER DATED 20-04-2012 IN EXT.P9.
EXT.P13: A TRUE COPY OF THE MINUTES OF THE MEETING DATED 07-05-2012 OF
THE 4TH RESPONDENT EVIDENCING THE DECISION IN ITEM NO.52.
EXT.P14: A TRUE COPY OF THE NOTES PLACED BEFORE THE 4TH RESPONDENT
FOR TAKING A DECISION REGARDING THE ADMISSION OF THE
PETITIONER.
EXT.P15: A TRUE COPY OF THE PAGE NUMBERS 33-35 OF THE INFORMATION
BULLETIN PUBLISHED BY THE COLLEGE OF ENGINEERING
THIRUVANANTHAPURAM.
CONT...
WP(C).No. 13188 of 2012 (W)
EXT.P16: A TRUE COPY OF THE PAGE NUMBERES 41 OF THE INFORMATION
BULLETTIN PUBLISHED BY THE COLLEGE OF ENGINEERING,
THIRUVANANTHAPURAM.
EXT.P17: A TRUE COPY OF THE M.TECH DEGREE COURSE REGULATIONS OF THE
1ST RESPONDENT WITH EFFECT FROM 2008 ONWARDS.
EXT.P18: A TRUE COPY OF THE APPLICATION FOR REVIEW BEFORE THE VICE
CHANCELLOR DATED 04-06-2012.
RESPONDENTS' EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
AS
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.13188 & 13749 of 2012
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Dated this the 12th day of February 2013
J U D G M E N T
W.P.C.No.13188 of 2012 is filed challenging Ext.P13 resolution passed by the Academic Council permitting the petitioner to continue his studies through part time M.Tech stream. Petitioner's complaint is regarding the permission to continue the course in the part time stream.
2. The factual situation in the case would disclose that the petitioner joined for M.Tech (Signal Processing) in the College of Engineering, Thiruvananthapuram in the 2008-2010 batch. He completed three semesters and during the 4th semester, he had to discontinue his studies as he was selected as Junior Executive in the Airport Authority of India. He was posted at Chennai. Later, he got a transfer to Thiruvananthapuram and wanted to continue the 4th semester for which he approached the College authorities W.P.C.No.13188 & 13749 of 2012 2 and he was permitted to join the course. However, the head of the department did not permit him to join the classes having found that the petitioner was employed in the Airport Authority of India and they required the petitioner to obtain necessary permission from the employer. The petitioner approached the employer and by Ext.P6 dated 16/3/2012, his application for study leave was rejected; but it was indicated that he could avail night duties to do the thesis work during day time if opted without causing any inconvenience to the daily running of operations. On this basis, request was made to the Principal by Ext.P7. Since he was not permitted to attend the classes of the 4th semester, he approached the Lok Ayuktha and by an interim order, the Lok Ayuktha permitted the petitioner to continue the course. Subsequently, it was indicated that the Principal had placed the matter before the Academic Council and the Academic Council passed a resolution as Ext.P13. When the Academic Council passed such a resolution, the Lok Ayuktha had taken note of such resolution and dismissed the application W.P.C.No.13188 & 13749 of 2012 3 thereby vacating the interim direction. Orders passed by the Lok Ayuktha is challenged in W.P.C.No.13479 of 2012.
3. Petitioner has also amended the writ petition seeking for a declaration that he is entitled to study and complete the 4th semester in the said batch as per re- admission given as per Ext.P3.
4. The main contention urged by the petitioner is that there is no specific rule or regulation which prevents a person employed in any organisation to undertake the M.Tech course. The regulation produced as Ext.P17 only indicates that the students should have 75% attendance in all the semesters. Once such a condition is observed by the student, in the absence of any rule or regulation which restricts the right of the student to have an employment, it was wrong on the part of the College or the University to have refused his endeavour to complete his fourth semester and the Academic Council committed serious error of law in directing him to undertake the course as part-time especially when there was no part-time course in the above subject. W.P.C.No.13188 & 13749 of 2012 4
5. Counter affidavit is filed by the University in W.P.C.No.13749 of 2012 supporting the stand taken by the Academic Council. According to them, the University follows a procedure which is being carried out by all the Colleges coming under the University wherein persons who are employed are not permitted to attend the course as they will not be in a position to devote their time for their studies. According to the University, M.Tech is a specialty course which requires devotion of necessary time for undertaking the course as such and especially in this case when the 4th semester includes thesis, the student will have to devote substantial time and energy to complete the said thesis work. If such a person is employed in another institution, apparently he will not be in a position to complete the studies in a proper manner and therefore, as a procedure, University does not permit such students to undertake day course and such students are given the facility to attend the part time course which is double the period than the normal full time course. It is also brought to the notice of this Court W.P.C.No.13188 & 13749 of 2012 5 that for M.Tech Signal Processing, State Government had granted sanction for starting part time course.
6. Heard learned counsel for the petitioner, learned Standing Counsel for the University and the learned Government Pleader.
7. The main contention urged by the petitioner is regarding the absence of any rules or regulation which restricts the right of the petitioner to join the full time course even though he is employed. Ext.P17 is the regulation with reference to M.Tech degree course. On a perusal of Ext.P17, I do not find any specific provision which restricts the right of the person employed to undertake a full time course. In fact, in the application submitted by the petitioner before the Principal of College to continue the 4th semester course, which is produced as Ext.P2, there is no specific column in order to indicate as to whether the candidate is employed in any institution. Whereas the application contains a column to be filled up which requires for stating the reason for discontinuance of the course. The petitioner had specifically W.P.C.No.13188 & 13749 of 2012 6 stated that "it is to take job with the Airport Authority of India". There is no requirement for any person to state as to whether he is actually employed or not.
8. According to the petitioner, in Ext.P17, what is required to be done for the 4th semester is specifically mentioned as under:
"Semester IV:
In the fourth semester there will be only thesis work. The fourth semester must be the extension of thesis preliminary work. Towards the end of the semester there would be a pre-submission seminar to assess the quality and quantum of the work by the Evaluation Committee. This would be the pre-qualifying exercise for the student for getting approval from the Department Committee for the submission of Thesis. Atleast one technical paper is to be prepared for possible publication in Journals/Conference. The final evaluation of the Thesis would be external evaluation. The 12 credits allowed may be proportionally distributed between external and internal W.P.C.No.13188 & 13749 of 2012 7 evaluation as follows as far as possible, the student shall be encouraged to do their work in the parent institution itself."
9. In regard to the evaluation process it is indicated that the University evaluates the thesis work and the viva voce examination will be taken up only after the student completes all formalities and other course requirements satisfactorily. Clause 5.8 of the regulations at Ext.P17 requires the students to have a minimum of 75% attendance in all the semesters. According to the learned counsel for the petitioner, on the recommendation of the Principal, the University can condone the attendance as well. But the fact remains that as per Ext.P17, for completing the course, the student should have 75% attendance unless it is condoned by the University on the recommendation of the Principal. Therefore, it is argued that once the petitioner qualifies by having 75% attendance and the petitioner attends the course the College or the university need not bother as to whether the petitioner is employed or not since there is a W.P.C.No.13188 & 13749 of 2012 8 clear absence of any such restriction in the rules framed for M.Tech course.
10. It could be seen from the averments raised on behalf of the University that they have been following a certain procedure and apparently this is to enable the students to have absolute devotion to their studies and also to attain the required attendance which qualifies them for the examination. But each case will have to be considered on its own facts. Learned counsel for the petitioner also relies upon the Full Bench judgment of this Court in Mary Philipose v.State of Kerala [1981 KLT 380] to contend for the position that whenever Academic Council desires to take decisions in matters covered by Section 38 of the Act, those decisions can only be in the form of regulations. Argument is that regulations have already been framed by the Council in exercise of powers vested in it under the University statute and therefore there cannot be any deviation from the said regulation and one cannot be insisted to comply a procedure which is not specifically provided under the rules. W.P.C.No.13188 & 13749 of 2012 9
11. On a consideration of the facts and circumstances involved in the case, it can be seen that the petitioner has completed his three semesters and what is required for him to complete the M.Tech course is to complete the fourth semester within a period of five years from the date of starting the course. If the petitioner does not get an opportunity to complete the fourth semester during the said academic year, probably he may loose the chance to get the M.Tech degree. Therefore what is to be looked into is whether there is any specific provision which disentitles the petitioner to join the course. Though the learned Standing Counsel for the University relies upon the procedure that is being followed, taking into consideration the present facts and circumstances of the case, a positive approach ought to have been taken by the college as well as by the University authorities. Even the employer of the petitioner had given him necessary adjustments to enable him to continue the full time course, which according to the Principal, is between 9 a.m to 9 p.m. Ext.P6 is the letter issued by the Airport W.P.C.No.13188 & 13749 of 2012 10 Authority of India Ltd. permitting the petitioner to avail night duties for the thesis work during day time.
12. During the pendency of the above writ petition, by an interim order dated 13/09/2012, this Court had directed the 2nd respondent to conduct the final thesis evaluation of the petitioner by the Evaluation Committee and to forward the thesis report to the University. It is said that the said procedure had been completed and what is awaited is the approval of thesis work by the University. That apart, the petitioner had submitted Ext.P25 application to the Principal of the College for condoning the attendance, which he had lost on account of the pending litigations, which is required to be forwarded by the Principal with necessary recommendation to the University and the University has to condone the deficit attendance. It seems that Ext.P27 hall ticket is also issued for completing the viva voce in respect of the thesis submitted by the petitioner.
13. The facts being so, if it was a case where the petitioner had to undertake the course to satisfy the W.P.C.No.13188 & 13749 of 2012 11 requirement of 75% attendance in all the semesters which include academic sessions as well, there would have been some justification on the part of the University to have contended that the petitioner should not have obtained another employment. But the fact remains that petitioner had already completed three semesters and the 4th semester was only completion of the thesis work and when his employer themselves had made necessary adjustments, it would have been proper on the part of the College as well as the University to permit the petitioner to have completed the said course. The facts and circumstances of the case would show that if the petitioner is permitted to sign his attendance register and is allowed to attend the thesis work in the College itself as per the curriculum prescribed for the same the petitioner could have completed the said course.
14. Now, by Ext.P13 in W.P.C.No.13188 of 2012, the petitioner is asked to attend the part time course which apparently was not in existence at that point of time. It is stated that now the part time course is available. But, the W.P.C.No.13188 & 13749 of 2012 12 question is whether the said part time course was available at the time when Ext.P13 was issued. Therefore, under normal circumstances, taking into consideration the decision of the University, this Court would not have interfered in the process. However taking into consideration the factual circumstances involved in the matter and the fact that regulation does not impose any restriction on the petitioner to undertake any employment for attending the full time course, as a special case, the petitioner ought to have been permitted to complete the said course.
15. Under these circumstances, I am of the view that the writ petitions are only to be allowed and accordingly the following directions are issued:
i) That the course undertaken by the petitioner shall be considered as a valid full time course for completing the 4th semester.
ii) That the principal of the College shall consider Ext.P25 application after taking into consideration the factual circumstances involved in the matter and if found W.P.C.No.13188 & 13749 of 2012 13 eligible, recommend the condonation of the deficit attendance and forward the same to the University.
iii) If the condonation of deficit attendance is recommended by the Principal and thereafter condoned by the University, the University shall evaluate the thesis of the petitioner by issuing necessary date of evaluation in accordance with the procedure prescribed.
iv) The entire process shall be completed within a period of three months from the date of receipt of a copy of this judgment.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.13188 & 13749 of 2012 14 W.P.C.No.13188 & 13749 of 2012 15