IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 17315 of 2010(L) -------------------------- PETITIONER(S): --------------- SREENIKETHAN CENTRE FOR SOCIAL DEVELOPMENT (REGISTRATION NO.G.190/89), REPRESENTED BY DIRECTOR, DR.N.RAVEENDRAN, CHATHANOOR P.O., KOLLAM-691 572. BY ADV. SRI. DEVAN RAMACHANDRAN SRI.AJITH KRISHNAN RESPONDENT(S): --------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY REGISTRAR, KOTTAYAM. 2. VICE CHANCELLOR, M.G.UNIVERSITY, KOTTAYAM. 3. THE DIRECTOR, THE DISTANCE EDUCATION, M.G.UNIVERSITY, PRIYADARSHINI HILLS P.O., KOTTAYAM-686 560. 4. CONTROLLER OF EXAMINATION, M.G.UNIVERSITY, PRIYADARSHINI HILLS P.O., KOTTAYAM-686 560. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXTS: EXT.P1:- COPY OF MEMORANDUM OF UNDERSTANDING DTD.3.11.2009 ENTERED WITH THE PETITIONER AND R1. EXT.P2:- COPY OF ORDER NO.SDE 111/1/O.C.E/09 DTD.21.4.2010 ISSUED BY R3. EXT.P3:- COPY OF REPRESENTATION DTD.27.4.2010 (INADVERTENTLY SHOWN AS 26.4.2010) TO R2. EXT.P4:- COPY OF THE ORDER ISSUED BY R1. EXT.P5:- COPY OF JUDGMENT DTD.17.5.2010 IN WP(C) NO.14316/10 PASSED BY THIS COURT. EXT.P6:- COPY OF ACKNOWLEDGEMENT CARD EVIDENCING THE RECEIPT OF EXT.P5 JUDGMENT BY R1. EXT.P7:- COPY OF LETTER ISSUED BY SMT.GIRIJA TO THE PETITIONER . EXT.P9:- COPY OF PAPER PUBLICATION ON 15.7.2010 IN THE DESHABHIMANI DAILY RESPONDENTS EXTS: EXT.R1(a):- COPY OF LETTER DTD.26.4.2010 ISSUED BY THE CENTRE COORDINATOR. EXT.R1(b):- COPY OF THE STATEMENT OF SMT.V.GIRIJA DTD.11.5.2010 /TRUE COPY/ P.A.TO JUDGE K.T. SANKARAN, J. --------------------------- W.P(C). No.17315 of 2010 ------------------------------------ Dated this the 21st day of July, 2010 J U D G M E N T The Petitioner, Sreenikethan Centre for Social Development, conducts various courses of M.G. University, as off campus centre. The petitioner entered into Exhibit P1 Memorandum of Understanding with the University for that purpose. There are several conditions for conducting an off campus centre. Some of the main features of Exhibit P1 are the following: (1) The fee structure is to be prescribed by the University. (2) The off campus centre shall not collect any fee from the students other than the prescribed fees published in the admission brochure. (3) The University has the right to fix the necessary and required qualifications for the admission of the candidates to the courses. It is the duty of the off campus to verify the original certificates of the applicants. The centre has to forward the original certificates to the University within one month after the commencement of each course of study. W.P(C). No.17315/ 2010 2 (4) The University has no responsibility in case of any admission without the minimum required qualifications. (5) The University has the right to fix the number of candidates to be admitted for each course. (6) The Centre shall obtain required number of prescribed application forms and prospectus from the University by payment of application fee in advance. (7) The centre should remit the 50% of the tuition fee collected from each student to the university. The fee shall be collected by the centre from the students only by way of demand draft. (8) The university has exclusive right to specify the syllabi for the course of study. (9) The School of Distance Education will have to supply study materials to the students. (10) The centre shall arrange and conduct the classes for the students as per the terms and conditions prescribed by the University. (11) The centre shall engage only those teachers having the prescribed qualification. W.P(C). No.17315/ 2010 3 (12) The University will conduct inspections and evaluation of the centre as and when required and to supervise the examination at the expense of the centre. (13) The University will have no financial commitment in the matter of conduct of classes or examinations. (14) The expenses for conducting the examination including the rent for the examination halls, remuneration to invigilators and T.A./D.A. to officials have to be borne by the centre. 2. As regards the examination, the procedure and terms and conditions are prescribed in Clauses 22 to 26 of Exhibit P1 Memorandum of Understanding. They read as follows: 22.The university will allot one examination centre to each approved centre provided sufficient number of students appears for the examination. The centre shall arrange a Government recognized institution with sufficient facilities to conduct the examinations as per university standards at the expense of the centre. 23. The examination time-table shall be fixed by the University and intimated to the centre through the Controller of Examinations, Mahatma Gandhi University well in advance. The application for the examinations in the prescribed form shall be submitted by the centre to the university in time. The Hall tickets, Nominal Rolls, Script books with additional sheets (in W.P(C). No.17315/ 2010 4 which alone candidates have to answer) and the other required stationery items for examination purpose shall be sent by the University through the Controller of Examinations to the centre of examination for distribution to the students not less than five days prior to the commencement of the examinations. The question papers will be brought to the examination centre by the University or by the person authoroized by the university and examination will be conducted under his supervision. The accommodation and other expenses incurred by the officials should be met by the centre. 24. The centre shall ensure that the hall tickets and the university examination time table are properly issued to the candidates at least three days prior to the commencement of the university examination for the proper conduct of the examination. 25.The Chief Superintendent of the examination centre shall ensure that the sealed question paper packets for all the courses offered have been reached the centre through the university representatives not less than two days prior to the commencement of the university examinations. 26.The centre shall conduct university examination at the centre fixed by the university at the cost of the centres. For the valuation, the examination answer scripts will be sent to the Controller of the Examinations, Mahatma Gandhi University by the centre at its cost with the countersign of the supervisor and the processing of the result shall be the responsibility of the university. The result and the mark list will be sent to the centres by the controller of the examinations, Mahatma Gandhi University. 3. It is stated that the petitioner had conducted the W.P(C). No.17315/ 2010 5 courses for the last several years. Exhibit P1 is really a renewal agreement, which has currency for a maximum period of five years. The agreement shall be renewed at the option of the University at the commencement of the academic year. 4. For the purpose of conducting the examination, the petitioner had selected Sreenikethan Central School, which is also managed by the same management of the petitioner. 5. It is stated that the examinations had to commence on 20/4/2010. On 21/4/2010, the University addressed Exhibit P2 letter to the centre co-ordinator of the petitioner directing him to shift the Examination Centre from the unaided school owned by the Co-ordinator of the off campus centre to the nearest Government/Aided School immediately. It is stated that after 20/4/2010, the next examination was to be held on 26/4/2010. On that day also, the examination for students of the petitioner- off campus centre was held in the same school of which the petitioner is in management. It was contrary to Exhibit P2 direction issued by the University. On 26/4/2010, an inspection team constituted by the University and headed by the Controller of examinations visited seven off campus examination centres W.P(C). No.17315/ 2010 6 including Sreenikethan Centre for Social Development. The inspection team found that there was mass copying and malpractices in four centres including the petitioner centre. It was found by the team that three students in one centre, seven students in another centre and five students in yet another centre were engaged in copying and malpractices while 30 students in the petitioner- centre were involved in such activities. Based on the report submitted by the inspection team, the University passed Exhibit P4 order dated 3/5/2010 debarring the candidates in the four examination centres from appearing for the remaining examinations. As per Exhibit P4, the petitioner -off campus centre was placed under suspension. Exhibits P2 and P4 orders are under challenge in this Writ Petition. 6. The petitioner contends that certain rival off campus study centres were engaged in making false and frivolous complaints against the petitioner alleging malpractices in the examinations. They had even approached the University and requested not to renew the agreement with the petitioner. The University conducted an enquiry in the matter and found that the allegations raised against the petitioner were false. Exhibit P1 W.P(C). No.17315/ 2010 7 agreement was executed accordingly. Even after execution of Exhibit P1 agreement, the rival study centres made complaints against the petitioner-off campus centre alleging malpractices. It is also alleged by the petitioner that the rival off campus centres had “patronage of certain politically affluent persons.” According to the petitioner, in spite of Exhibit P2 order, which was served on the petitioner on 23/4/2010, the petitioner was allowed to conduct the examinations on 26/4/2010 in the same examination centre in which the examinations were held on 20/4/2010. The petitioner also alleged that on 26/4/2010, the Controller of Examinations of the University, one Syndicate Member and some officers of the University came to the examination centre of the petitioner and confiscated the hall tickets of about 30 students alleging that they were indulged in copying from textbooks and leaflets. According to the petitioner, these allegations are not correct. The petitioner has raised a contention that in the matter of conduct of examinations, the petitioner has no role to play, except to provide a building as the examination centre. The rest of the matters relating to the conduct of the examination are under the direct control of the University. The petitioner W.P(C). No.17315/ 2010 8 submitted Exhibit P3 representation dated 26/4/2010 to the Vice- Chancellor of the University explaining the facts and making clear the stand of the petitioner. According to the petitioner, the events on 26/4/2010 were stage managed and that even if the allegations are true, there is nothing to indicate that the petitioner is involved in the malpractices. If so, the decision to suspend the petitioner’s off campus centre was illegal. The petitioner also pointed out that though irregularities and malpractices were allegedly found in four off campus centres, suspension was ordered only in the case of petitioner. This is a clear discrimination. 7. The Registrar of the M.G. University filed a counter affidavit on behalf of the respondents. In the counter affidavit, the allegations levelled against the respondents were denied. The following facts are revealed from the counter affidavit. Examinations of each off campus centre are conducted by the Chief Superintendent appointed by the University and usually, the Chief Superintendent would be the Headmaster/Principal of the school as suggested by the centre co-ordinator. In the case of the petitioner, the CBSE School owned and run by the W.P(C). No.17315/ 2010 9 petitioner was the examination centre. Naturally, the head of that institution would be the Chief Superintendent. The Chief Superintendent submitted a submission to the University that she was forced to proceed on leave as compelled by the authorities of the petitioner and another person was appointed as Chief Superintendent by the petitioner without obtaining consent of the University. Even the Additional Chief Superintendent and the observer appointed by the University reported that there were malpractices in the examination conducted for the students of the petitioner-off campus centre. The petitioner had responsibility to ensure that examinations were conducted in a proper manner. It is alleged that the petitioner deliberately helped the students engaged in mass copying and other malpractices. The petitioner intimidated the Chief Superintendent and forced her to proceed on leave. The special team appointed by the University, after visiting the examination centre, reported that the petitioner was responsible for mass copying with the help of invigilators and even the invigilators were distributing copying materials to the students in the examination hall. It is alleged that even in the previous years, there were malpractices. The observer appointed W.P(C). No.17315/ 2010 10 by the University had reported on 20/4/2010 itself over telephone that malpractices were going on in the examination centre of the petitioner. The Principal of the examination centre was originally appointed as the Chief superintendent. Due to his inconvenience, Smt. V. Girija, an adhoc teacher was given charge of the Superintendent. In Exhibit R1(b) submission made by Girija on 11/5/2010, it is stated that she tried her level best to oppose the irregularities and that the management forcibly obtained her leave application and thereafter appointed one Mahesh Kumar as the Chief Superintendent. 8. A reply affidavit is filed on behalf of the petitioner and the allegations in the counter affidavit are denied. A letter dated 22/4/2010 issued by Smt.V. Girija to the Director of the petitioner requesting for leave from duty is produced along with the reply affidavit. It is contended that Smt. V.Girija was the Superintendent for the examination held on 20/4/2010 and she had not stated anything about any irregularity in the examination held on 20/4/2010. It is also pointed out in the reply affidavit and Exhibit R1(b) that the submission made by Smt. V. Girija cannot be relied on and service of Smt. V. Girija was terminated W.P(C). No.17315/ 2010 11 from the petitioner's centre. 9. In the affidavit dated 13/7/2010 filed by the petitioner, it is pointed out that a total number of 485 students are undergoing studies in the petitioner- off campus centre for different courses, out of which 260 students belong to the first year batch, 140 students belong to second year batch and 85 students belong to third year batch. It is submitted by the learned counsel appearing for the petitioner that there was considerable increase in the number of students in the petitioner centre and this has resulted in the rivalry towards the petitioner by certain other off campus centres. I.A. No. 9859/2010 is filed by the petitioner producing the newspaper publication dated 14/7/2010 issued by the University inviting applications for admission to various programs under the off campus programme, 2010-2011. Though applications were invited for admission to various off campus centres, the petitioner centre is not included in the Notification issued by the University. However, the three centres in which copying and other malpractices were allegedly found as mentioned in Exhibit P4, are included in the Notification issued by the University. The petitioner alleges that the petitioner W.P(C). No.17315/ 2010 12 is discriminated by the University. 10. Exhibit P2 is only a communication by the University to shift the examination centre from the unaided school owned by the Co-ordinator of the petitioner-off campus centre. It is admitted by the petitioner that the examinations were held in the CBSE School managed by the petitioner. Malpractices and copying were found in that centre on 20/4/2010. Therefore, there was nothing wrong on the part of the University in issuing Exhibit P2 directing the petitioner to shift the examination centre. The challenge against Exhibit P2, therefore, fails. 11. Exhibit P4 contains two parts. The first part deals with debarring the candidates who were found indulged in mass copying and malpractices, pending enquiry by the University. No student, who was debarred, has approached this Court and the petitioner cannot have any grievance against debarring the students who were found engaged in copying and other malpractices. Moreover, the debarring of the students is only pending enquiry. The enquiry has to be conducted by the University. Therefore, the petitioner cannot challenge that part of the order, by which some of the students of the petitioner's W.P(C). No.17315/ 2010 13 centre were debarred by the University. That part of the challenge against Exhibit P4, therefore, fails. The second part of Exhibit P4 is the decision to suspend the off campus centre of the petitioner, pending enquiry by the University. The off campus centre provides venue for students to undergo the courses. The Syllabi is prescribed by the university. Classes are to be held by teachers appointed by the petitioner. There is no case for the university that unqualified teachers were appointed. In the off campus centre, the petitioner would not be allowed to conduct the examinations. The examinations would be conducted in another centre. The University has control over the conduct of the examinations. By suspending the off campus centre of the petitioner, malpractices in the examination centre could not be prevented. The suspension of the off campus centre would only affect the admission of the students and the continued study of the students already admitted. No irregularities are alleged by the University in respect of the admission of the students or the method of teaching in the petitioner’s centre. The only allegation against the petitioner is malpractices in the examination centre. The learned counsel for the petitioner submitted that though W.P(C). No.17315/ 2010 14 malpractices and mass copying were allegedly found in four examination centres, suspension of the off campus centre is imposed only in the case of the petitioner. The counsel submitted that in the case of Serial No.(i) in Exhibit P4, three students were found engaged in copying. According to the counsel, there were only 18 students in that centre and thus 16.6% of the students were engaged in copying and malpractices. In the centre shown as Serial No. (ii) in Exhibit P4, seven students were found engaged in copying. According to the counsel, there were only 16 students and therefore the percentage of the persons engaged in copying is 43.75%. In Serial No.(iii) (petitioner’s examination centre), it is stated that 30 students were found engaged in copying and malpractices. The petitioner stated that there were a total number of 247 candidates and therefore the percentage of candidates who were engaged in copying and malpractices was only 12.14%. In the centre shown as Serial No.(iv) in Exhibit P4, five candidates were found engaged in copying and malpractices. The counsel submits that there were 17 candidates. Thus the percentage of candidates engaged in copying would come to 29.4%. The learned counsel for the petitioner submitted that W.P(C). No.17315/ 2010 15 going by the percentage basis, copying and malpractices were less in the examination centre of the petitioner when compared to other three institutions. Still, the off campus centre of the petitioner alone was suspended by the University, quite arbitrarily, according to the petitioner. 12. Exhibit P4 was issued pending enquiry. The enquiry is to be made by the University. Even if the centre is closed down, as stated earlier, malpractices and copying by the candidates cannot be prevented. That has to be prevented in the examination centre. The learned counsel for the petitioner submitted that the petitioner is prepared to comply with any direction issued by the University in the matter of conduct of examinations and even the University can appoint their own personnel for conducting the examination and all the expenses for the same would be met by the petitioner. The submission made by the learned counsel for the petitioner is that pending the enquiry, the functioning of the centre should not be suspended. 13. The learned Standing Counsel appearing for the University submitted that conduct of the examination is an W.P(C). No.17315/ 2010 16 integral part of running of the off campus centre and any malpractice in the examination centre would affect the centre itself. By providing an examination centre where rampant copying was possible, the petitioner was attracting more number of candidates for admission in the off-campus centre. If more students are admitted in the petitioner’s off campus centre by attracting them offering chances for malpractices, it would affect the reputation of the University. The University requires the examination to be held in a proper and legal manner and the University has the right to suspend any off campus centre. There is no vested right in the petitioner to run the off campus centre. The rights of the parties are governed by the agreement. Clause 33 of the agreement provides as follows: If during the subsistence of this agreement, any action of the centre is found not to be satisfactory in the opinion of the university, the university has the right to cancel this agreement at any moment, after conducting an enquiry. The university reserves its right to terminate the service of the centre co- ordinator on proper enquiry, about which prior intimation will be given by the University and the decision of the university shall be binding on the centre. 14. Clause (33) of the agreement provides for cancellation W.P(C). No.17315/ 2010 17 of the agreement after conducting an enquiry. Exhibit P4 is not a cancellation of the agreement after conducting enquiry. Going by the agreement, the University has no jurisdiction to pass an interim order, pending enquiry, suspending the centre. Even for terminating the services of a centre co-ordinator, Clause 33 provides for proper enquiry after giving prior intimation. It goes without saying that the agreement can be cancelled by the University only after making a proper enquiry and after finding that the cancellation of the campus is warranted and required in the facts and circumstances. No such finding is arrived at in Exhibit P4. It is true that malpractices were found in the examination centres. Exhibit P4 does not show anything about the involvement of the petitioner in the malpractices. Exhibit P4 does not say that the petitioner was instrumental for the malpractices. The malpractices could be done either by the candidates involved in the malpractices alone, or with the connivance of some others. The learned counsel appearing for the University submitted that the complicity of the petitioner in the malpractices can be gathered from Exhibit R1(b) submission made by Smt. V Girija. I am not inclined to accept this W.P(C). No.17315/ 2010 18 contention, since Exhibit P4 was passed on 3/05/2010 while Exhibit R1(b) submission was made by Smt.V. Girija only on 11/5/2010. Therefore, it is clear that suspension of the petitioner's centre as per Exhibti P4 was not based on the statements given by Smt. V. Girija. 15. Suppose in the enquiry, it is found that the candidates alone were responsible for the malpractices and copying, how could the University rectify the damage done to the petitioner by suspending the off campus centre? Is there anything in Exhibit P4 justifying suspension of the off campus centre of the petitioner? Is there anything in Exhibit P4 indicating the involvement of the petitioner? A perusal of Exhibit P4 would make the position clear that there is no allegation against the petitioner in Exhibit P4. If so, suspension of the off campus centre of the petitioner, pending enquiry is per se illegal. 16. For the aforesaid reasons, I am of the view that suspension of the off campus centre of the petitioner pending inquiry was illegal. That part of Exhibit P4 by which the off campus centre of the petitioner is suspended, is quashed. It is made clear that this judgment would not affect the enquiry W.P(C). No.17315/ 2010 19 contemplated in Exhibit P4 or debarring the candidates as mentioned in Exhibit P4. The Writ Petition is allowed in part as mentioned above. The University shall take consequential steps in accordance with law. K.T. SANKARAN, JUDGE scm