IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 2715 of 2009(W) --------------------------------------- PETITIONERS: ------------------- 1. GEORGE THOMAS JUNIOR, 3RD YEAR B. PHARM,PUSHPAGIRI COLLEGE OF PHARMACY, THIRUVALLA. 2. NAHILA RAHIM, DO...DO..... 3. JOBIN THANKACHAN, DO.....DO..... 4. LINU K.KOSHY, DO....DO..... 5. SURYA SURENDRAN, DO...DO..... 6. PRADEEP K.R., DO....DO...... 7. VIJAY ANTONY MANNANAL, DO...DO... 8. SREERAJ M.S., 3RD YEAR B. PHARM, NAZARETH COLLEGE OF PHARMACY, OTHARA P.O., TIRUVALLA. 9. RITTU MATHEW, DO...DO.... 10. VISHNU PRASAD.S, DO....DO..... 11. ANCY ABRAHAM, DO....DO..... 12. ROSHAN ABRAHAM JACOB, DO...DO..... BY ADV. SRI.J.OM PRAKASH RESPONDENTS: ------------------------- 1. THE MAHATHMA GANDHI UNIVERSITY, KOTTAYAM REPRESENTED BY ITS REGISTRAR, PRIYA DARSHINI HILLS, KOTTAYAM. 2. THE VICE -CHANCELLOR, DO...DO..... WP(C).No. 2715 /2009 3. THE CONTROLLER OF EXAMINATIONS, DO..DO. 4. THE PRINCIPAL, PUSHPAGIRI COLLEGE OF PHARMACY, THIRUVALLA. 5. THE PRINCIPAL NAZERATH COLLEGE OF PHARMACY.OATHARA P.O., THIRUVALLA. ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE FOR R4 SRI.TONY GEORGE KANNANTHANAM FOR R4 SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009, ALONG WITH WPC NO. 6176 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2715 /2009 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: A TRUE COPY OF THE HALL TICKET ISSUED TO THE FIRST PETITIONER DATED NIL. EXHIBIT P2: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 2ND PETITIONER DATED NIL. EXHIBIT P3: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 3RD PETITIONER DATED NIL. EXHIBIT P4: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 4TH PETITIONER DATED NIL. EXHIBIT P5: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 5TH PETITIONER DATED NIL. EXHIBIT P6: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 6TH PETITIONER DATED NIL. EXHIBIT P7: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 7TH PETITIONER DATED NIL. EXHIBIT P8: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 8TH D PETITIONER DATED NIL. EXHIBIT P9: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 9TH PETITIONER DATED NIL. EXHIBIT P10: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 10TH PETITIONER DATED NIL. EXHIBIT P11: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 11TH PETITIONER DATED NIL. EXHIBIT P12: A TRUE COPY OF THE HALL TICKET ISSUED TO THE 12TH PETITIONER DATED NIL. EXHIBIT P13: A TRUE COPY OF THE APPLICATION OF THE FIRST PETITIONER DATED 21/11/2008. EXHIBIT P14: A TRUE COPY OF THE APPLICATION OF THE 2ND PETITIONER DATED 21/11/2008. EXHIBIT P15: A TRUE COPY OF THE APPLICATION OF THE 3RD PETITIONER DATED 21/11/2008. EXHIBIT P16: A TRUE COPY OF THE APPLICATION OF THE 4TH PETITIONER DATED 21/11/2008. EXHIBIT P17: A TRUE COPY OF THE APPLICATION OF THE 5TH PETITIONER DATED 21/11/2008. WP(C).No. 2715 /2009 EXHIBIT P18: A TRUE COPY OF THE APPLICATION OF THE 6TH PETITIONER DATED 21/11/2008. EXHIBIT P19: A TRUE COPY OF THE APPLICATION OF THE 7TH PETITIONER DATED 21/11/2008. EXHIBIT P20: A TRUE COPY OF THE APPLICATION OF THE 8TH PETITIONER DATED 22/11/2008. EXHIBIT P21: A TRUE COPY OF THE APPLICATION OF THE 9TH PETITIONER DATED 22/11/2008. EXHIBIT P22: A TRUE COPY OF THE APPLICATION OF THE 10TH PETITIONER DATED 21/11/2008. EXHIBIT P23: A TRUE COPY OF THE APPLICATION OF THE 11TH PETITIONER DATED 22/11/2008. EXHIBIT P24: A TRUE COPY OF THE APPLICATION OF THE 12TH PETITIONER DATED 21/11/2008. EXHIBIT P25: A TRUE COPY OF THE ORDER DATD 11/1/2006 OF THE DEPUTY REGISTRAR(SFS) MAHATMA GANDHI UNIVERSITY. EXHIBIT P26: A TRUE COPY OF THE NOTIFICATION ISSUED BY THE UNIVRSITY OF KERALA NO. Acad.L/R/9554/2007 DATED NIL. EXHIBIT P27: A TRUE COPY OF THE ORDRE ISSUED BY THE DEPUTY REGISTRAR (SFS), MAHATMA GANDHI UNIVERSITY DATED 16/06/2008. EXHIBIT P28: A TRUE COPY OF THE ORDER OF THE DEPUTY REGISTRAR (SFS), MAHATHMA GANDHI UNIVERSITY DATED 29/11/2008. /TRUE COPY/ P.A. TO JUDGE scm ANTONY DOMINIC, J. --------------------------- W.P.(C) Nos. 2715 ,6176,6366, 5642,6716 & 5952 of 2009 -------------------------------------- Dated this the 2nd day of April, 2009 JUDGMENT In all these writ petitions, the issue raised are identical and therefore, these writ petitions are disposed of by this common judgment. For the sake of convenience, I shall be referring to the facts as pleaded in W.P(C).No.2715/2009. 2. The petitioners were admitted to B. Pharm Course in the Colleges of respondents 4 and 5, which are affiliated to the first respondent University, in the academic year 2007 and are presently in the 3rd year course. They are mainly aggrieved by Exhibit P28, proceedings of the second respondent, the Vice Chancellor of the University, modifying the promotion procedure. 3. These students were governed by the syllabus as revised effective from 2003 and the promotion procedure laid down therein reads as under; “ a) The results of the respective University W.P.(C) No. 2715/2009 and other connected cases 2 examinations of a candidate will be announced only after passing all the subjects in the examinations of the lower class. b) A candidate is permitted to carry over 4 first year subjects (two theory and two practicals) to the second year, but shall pass the first year failed subjects before promotion to 3rd year. c)The candidate is permitted to carry over 4 second year subjects (two theory and two practicals) to 3rd year. But shall pass the second year subjects before promotion to the 4th year. d) The candidate is permitted to carry over 4 subjects(two theory and two practicals) of 3rd year to final year. But the result will be declared only after passing all the 3rd year subjects.” 4. It is stated that based on the representations made by first year B Pharm students, the promotion procedure was modified by the Vice Chancellor subject to ratification of the Academic Council of the University by Exhibit P25 dated W.P.(C) No. 2715/2009 and other connected cases 3 11/01/2006. The relevant portion of the order reads as under; “Candidates who have registered for the University examination of a class will be eligible for promotion to the next higher class. But he/she will be eligible to appear for the examination of the higher class only after passing in all subjects in the lower class.” 5. The amendment to the regulation thus effected was ratified by Academic Council of the University in its meeting held on 13/12/2006, and was notified by Exhibit P26. While the matters stood thus, it would appear that the Academic Council of the University vide its Minutes dated 6/08/2008 constituted a Sub Committee to modify the regulations of the B Pharm Course and Sub Committee by its Minutes dated 24/11/2008 resolved to amend the promotion procedure. Subsequently, Vice Chancellor accorded sanction to the amendments, exercising his powers under Section 10(17) of the M.G. University Act. Accordingly, the University issued Exhibit P28 order dated 29/11/2008. Relevant portion of which reads as under; W.P.(C) No. 2715/2009 and other connected cases 4 “ Eligibility for appearing the University Examination: A student who has minimum 80% attendance and who has appeared in the theory and practical internal/ sessional examinations in the respective year is eligible to appear in the University examination. Promotion Procedure: 1.A student who got registration for the University examination and appeared in the first year examination is eligible to attend second year classes. 2. A student studied the second year class as per promotion regulation (1), is eligible to appear the second year examination provided he/she satisfies the clause 'eligibility for appearing the University examination'. 3.A student is permitted to attend the third year class only after passing the first year papers completely and a student is permitted to attend the fourth year W.P.(C) No. 2715/2009 and other connected cases 5 class only after passing the second year papers completely.” 6. It is also stated in Exhibit P28 that the promotion procedure will be implemented in the syllabus effective from 2003 onwards. Petitioners submit that in terms of Exhibit P25, every student who had registered for the University examination of a class is eligible for promotion to next higher class, however, their eligibility to appear for examination of the higher classes will be only after passing in all subjects in the lower class. It is stated that the right to attend higher classes available to them under Exhibit P25, has been taken away by Exhibit P28. It is with this grievance, these writ petitions have been filed challenging Exhibit P28. 7. The main contention raised is that there was no circumstance justifying exercise of the extra ordinary powers of the Vice Chancellor available under section 10(17) of the M.G. University Act. Section 10 of the Act provides the powers of the Vice Chancellor and Subsection (17) reads as under; “ If at any time, except when the Syndicate or W.P.(C) No. 2715/2009 and other connected cases 6 the Academic Council is in session, the Vice- Chancellor is satisfied that an emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act, the Vice- Chancellor may take such action as he deems fit and shall, at the next session of the Syndicate or the Academic Council, as the case may be, report the action taken by him to that authority for such action as it may consider necessary [and that authority may, after considering the action taken by the Vice- Chancellor is of the view that such action shall not have been taken by him, refer the matter to the Chancellor whose decision thereon shall be final.] 8. A reading of this section shows that except when the Academic Council is in session, the Vice Chancellor is satisfied that an emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Academic Council, he may take such action as he deems fit. W.P.(C) No. 2715/2009 and other connected cases 7 Therefore, existence of an emergency requiring immediate action for exercise of the powers of the Academic Council is a condition precedent for the Vice Chancellor to exercise his power under Section 10(17) of the Act. 9. The corresponding provision in the Delhi University Statue was considered by Division Bench of Delhi High Court in M. N. Gupta Vs. University of Delhi [AIR 1992 Delhi 212]. In that Judgment, it has been held that while it may be conceded that an element of subjectivity is always involved in the formation of such an opinion, the existence of the circumstance from which the inferences constituting the opinion, as the sine qua non for action, are to be drawn, must be demonstrable, and the existence of such circumstances, if questioned, must be proved at least prima facie. Proceeding further it is held that when the very existence of emergency on which the impugned action is sought to be based, has been questioned, it is the duty of the respondents to plead necessary facts and place material on record, at least to prima facie show the existence of emergency in order to justify the exercise of the emergency W.P.(C) No. 2715/2009 and other connected cases 8 power. Holding that there was not even a plea regarding the existence of emergency, much less about its nature, the court interfered with the exercise of power. Following the aforesaid judgment of the Delhi High Court, interpreting Section 11 of the Cochin University of Science and Technology Act, a Division Bench of this Court in the case of Dr. Leelakrishnan Vs. Cochin University [1997(1) KLT 281] held that power under Section 11(11) is to be exercised only when an emergency arises and sparingly and only when the proposal will not brook the delay till the Syndicate meets. 10. Therefore, in the light of statutory provisions contained in Section 10(17) of the Act, I am of the view that law laid down in the aforesaid two judgments fully applies to the facts of this case. If that be so, question is whether there was any circumstance justifying the exercise of power under Section 10(17) by the Vice Chancellor. Answer to this question has to be found in the counter affidavit filed by the University, where all that is stated in Para 10 is that the Academic Council of the University had constituted a Sub committee to discuss the W.P.(C) No. 2715/2009 and other connected cases 9 amendment of regulation and the Committee has recommended amendment, which was approved by the Vice Chancellor subject to ratification by the Academic Council. It is stated this is the usual procedure followed by the University. In my view this explanation is totally unsatisfactory and at any rate does not answer the requirement of Section 10(17) of the Act to sustain Exhibit P28. 11. Explanation of the learned Standing Counsel appearing for the respondents that by Exhibit P28 they have only relaxed regulation as amended by Exhibit P25, also does not merit acceptance. It is the settled position of law that if a statute requires something to be done in a particular manner, it must be done in that manner alone or not at all. In this case, although power has been conferred on the Vice Chancellor to exercise powers of Academic Council in emergency situations, exercise of such power is conditional. Since the conditions are not satisfied, Exhibit P28 cannot be sustained. Therefore, for the aforesaid reasons, I set aside Exhibit P28, order. W.P.(C) No. 2715/2009 and other connected cases 10 In view of the Judgment in WP(C) No.2715/2009, Writ Petition Nos. 6716/2009, 6366/2009, 5642/2009, 6716/2009, 5952/2009 will also stand disposed of accordingly. ANTONY DOMINIC, JUDGE scm