IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 13598 of 2011(Y) -------------------------- PETITIONER: --------------- HASBI M.K., D/O.SHAMSUDHEEN, WHITE HOUSE, PANNUR, KIZHAKOTHU, KODUVALLY, KOZHIKODE DISTRICT. BY ADV. MR. BABU S. NAIR RESPONDENTS: --------------- 1. THE UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT, PIN-673635. 2. THE DEAN OF STUDENTS WELFARE, DEPARTMENT OF STUDENTS WELFARE, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENHIPALAM, MALAPPURAM DISTRICT, PIN-673635. 3. THE PRINCIPAL, K.M.C.T.DENTAL COLLEGE, MAMPATTA, MANASSERY P.O., MUKKOM, KOZHIKODE DISTRICT, PIN-673602. R1 AND R2 BY ADV. MR. SANTHOSH MATHEW , STANDING COUNSEL R3 MR. ANIL K.NARENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON 17.08.2011 DELIVERED THE FOLLOWING: WP(C) NO. 13598 OF 2011 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE MARK LIST OF THE FIRST YEAR BDS COURSE OF THE PETITIONER ISSUED BY THE CONTROLLER OF EXAMINATIONS UNIVERSITY OF CALICUT, DATED 04.01.2008 EXT. P2: TRUE COPY OF THE MARK LIST OF THE SECOND YEAR BDS COURSE OF HE PETITIONER ISSUED BY THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT DATED 31.01.2009 EXT. P3: TRUE COPY OF THE MARK LIST OF THE THIRD YEAR B.D.S. COURSE OF THE PETITIONER ISSUED BY THE CONTROLLER OF EXAMINATION, UNIVERSITY OF CALICUT, DATED 27.02.2010 EXT.P4: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE FATHER OF THE PETITIONER DATED 10.08.2008 EXT. P5: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE FATHER OF THE PETITIONER TO THE MANAGING DIRECTOR OF THE COLLEGE DATED 05.12.2010 EXT. P6: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE VICE CHANCELLOR OF THE UNIVERSITY DATED 10.12.2010 EXT. P7: TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 10.12.2010 AS NO. SW(3) GC/3533/2010 EXT. P8 TRUE COPY OF THE ORDER OF THE DEAN OF STUDENTS WELFARE, UNIVERSITY OF CALICUT DATED 3.03.2011 EXT. P9 TRUE COPY OF THE STATEMENT FURNISHED BY THE 3RD RESPONDENT AS ANNEXURE 1 SHOWING THE PERCENTAGE OF ATTENDANCE AND THE NUMBER OF DAY THE PETITIONER ATTENDED THE 4TH YEAR PART I COURSE OF BDS EXT. P10 TRUE COPY OF THE STATEMENT FURNISHED BY THE 3RD RESPONDENT AS ANNEXURE II SHOWING THE PERCENTAGE OF ATTENDANCE AND THE NUMBER OF DAYS THE PETITIONER ATTENDED THE 4TH YEAR PART I COURSE OF BDS EXT. P11 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 03.05.2011 AS NO. SW(3) GC/3533/2010 (1) EXT. P12 TRUE COPY OF THE NEW APPEARED IN DAILIES REGARDING THE VICTIMIZATION OF THE COLLEGE AUTHORITIES :2: WP(C) NO. 13598 OF 2011 RESPONDENTS' EXHIBITS : 3RD RESPONDENT'S EXHIBITS : EXT. R3 (A) : TRUE COPY OF LETTER DATED 02.12.2010 OF THE 3RD RESPONDENT ALONG WITH PROGRESS REPORT AND ATTENDANCE DETAILS OF THE CANDIDATES EXT. R3 (B) : TRUE COPY O F LETTER THE 2ND RESPONDENT DATED 13.12.2010 EXT. R3 (C) : TRUE COPY OF LETTER DATED 20.12.2010 OF THE 3RD RESPONDENT ADDRESSED TO THE 2ND RESPONDENT. EXT. R3 (D) : TRUE COPY OF LETTER DATED 02.12.2010 OF THE 2ND RESPONDENT EXT. R3 (E) : TRUE COPY OF REMARKS DATED 30.12.2010 SUBMITTED TO THE 2ND RESPONDENT ALONG WITH STATEMENT SHOWING SUBJECT WISE PERCENTAGE OF ATTENDACE OF THE PETITIONER AND ANOTHER STATEMENT SHOWING NUMBER OF DAYS SHE HAD ATTENDED THE 4TH YEAR BDS PART I CLASSES. EXT. R3 (F) : TRUE COPY OF LETTER DATED 28.02.2011 OF THE 3RD RESPONDENT ISSUED TO THE PETITIONER ALONG WITH ITS ANNEXURES. EXT. R3(G) : TRUE COPY OF COVERING LETTER DATED 01.03.2011 OF THE 3RD RESPONDENT ALONG WITH PROOF OF DELIVERY. EXT. R3(H) : TRUE COPY OF COMPLAINT DATED 03.03.2011 SUBMITTED BY THE 3RD RESPONDENT ALONG WITH THE RECEIPT ISSUED FROM MUKKOM POLICE STATION. EXT. R3 (I) : TRUE COPY OF ORDER DATED 03.03.2011 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. EXT. R3(J) : TRUE COPY OF SAID COVERING LETTER DATED 11.03. 2011 OF THE 3RD RESPONDENT ALONG WITH INTERNAL ASSESSMENT MARKS OF 4TH YEAR BDS PART I COURSE EXT. R3(K) : TRUE COPY OF STATEMENT DATED 18.03.2011 SIGNED BY THE 2ND RESPONDENT AND DR. GILSA K. VASUNNI EXT. R3 (L) : TRUE COPY OF COMPLAINT DATED 04.04.2011 SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE, MUKKOM POLICE STATION, ALONG WITH ITS RECEIPT. EXT. R3(M) : TRUE COPY OF REPRESENTATION DATED 07.04.2011 SUBMITTED BY THE 3RD RESPONDENT. EXT. R3(N) : TRUE COPY OF LETTER DATED 05.05.2011 OF THE 3RD RESPONDENT ADDRESSED TO THE PETITIONER. ;3; WP(C) NO. 13598 OF 2011 EXT. R3 (O) : TRUE COPY OF REQUEST DATED 07.06.2011, SUBMITTED BY THE 3RD RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE MUKKOM POLICE STATION, TO FURNISH INFORMATION REGARDING THE ACTION TAKEN OF EXHIBIT R3(h) AND R3(l) COMPLAINTS. EXT. R3(P) : TRUE COPY OF COMMUNICATION DATED NIL. OF THE SUB INSPECTOR OF POLICE, MUKKOM POLICE STATION. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P(C) No. 13598 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 17th August , 2011 JUDGMENT Ext. P11 order passed by the University making the petitioner to “re-do” part I of the 4th year BDS course for the alleged shortage of attendance, is under challenge. 2. The petitioner is a 4th year BDS student of the 3rd respondent college, which is a self-financing institution. Allotment of the petitioner to the said institution was by virtue of her merit, being a merit-listed candidate in the Government quota. The petitioner cleared all the papers of the previous three years and has secured 65 % marks, as revealed from Exts. P1 to P3 marklists. 3. The case of the petitioner is that, she happens to be a member of the first batch of students admitted by the 3rd respondent College and her father happens to be the Chairman of the W.P. (C) No. 13598 of 2011 : 2 : Parents' Council. Since the 3rd respondent College was a newly started one, there was lack of sufficient infrastructure and as such, quite a lot of complaints have been preferred by the father of the petitioner before the Director of the 3rd respondent college and such other authorities like the first respondent University, Dental Council etc. This allegedly infuriated the management and the petitioner is made a victim, having denied permission to appear for the Part I examination of the 4th year, alleging shortage of attendance, which made the father of the petitioner to file a complaint before the Managing Director of the 3rd respondent college as borne by Ext. P5. 4. It is to be noted that 4th year BDS course consists of two segments, part I and Part II. Part I commenced from 01.01.2010 to 30.09.2010 and part II from 01.01.2011 onwards. The examination in respect of Part I was proposed on 13.10.2010. But, W.P. (C) No. 13598 of 2011 : 3 : due to various reasons, the course had to be allegedly extended by two months and the examination was rescheduled to be conducted on 12.12.2010 onwards. The petitioner had to avail maternity leave from 01.07.2010 to 20.09.2010, which, however is stated as compensated by virtue of the extension of the course by two months and hence that the petitioner was having requisite attendance to have taken part in the examination. It was apprehending denial of entry, that the father of the petitioner had filed Ext. P5 representation before the Managing Director of the 3rd respondent on 05.12.2010. 5. As nothing transpired in the positive, the petitioner preferred Ext. P6 representation, referring to victimization on 10.12.2010, before the Vice Chancellor of the University, seeking for immediate interference. Pursuant to this, Ext. P7 order was passed by the second respondent on 10.12.2010 itself, permitting the petitioner W.P. (C) No. 13598 of 2011 : 4 : provisionally to appear for the forthcoming BDS examination, making it clear that, the publication of the result will be subject to the enquiry on the alleged victimization. Based on the said order, the petitioner participated in the examination. When the result was published by the University, the result of the petitioner was also published, which revealed that, the petitioner had come out successful in the said examination and was eligible to attend the Part II classes, followed by Part II examination. But the result was subsequently withheld by the University; pursuant to which, the 3rd respondent denied entry to Part II classes w.e.f. 01.03.2011. In the said circumstances, the petitioner preferred another complaint before the second respondent on 03.03.2011. After considering the matter, the second respondent passed Ext. P8 order on the same day, referring to the pending enquiry by the Board for Adjudication of the W.P. (C) No. 13598 of 2011 : 5 : Students Grievances in relation to the complaint preferred by the petitioner on victimization and permitting her to attend the Part II classes for the 4th year BDS provisionally, making it clear that, it will be subject to the enquiry report and the decision thereon. 6. In the course of further proceedings, the third respondent produced Exts. P9 and P10, particulars of attendance of the petitioner before the Enquiry Committee, which according to the petitioner are not correct or reliable. The petitioner contended that, the attendance of the petitioner was manipulated and that the third respondent was not properly maintaining the attendance registers in the manner as provided under the relevant provisions of law. However, without any regard to the specific case projected by the petitioner, the second respondent passed Ext. P11 order on 03.05.2011, simply referring to the W.P. (C) No. 13598 of 2011 : 6 : recommendations made by the Committee appointed by the Board to enquire into the alleged victimization, subject to the ratification by the Board for Adjudication of Students Grievance. The operative portion of the said order reads as follows: The following orders are therefore issued in this regard : (a). The 1st Part of IV year examination taken by Smt. Hasbi during December, 2010 shall be annulled. (b), Permit MS. Hasbi MK to appear for the 1st part of IV year BDS examination in the forthcoming examination. The college authorities are directed to produce her APC, so that she can be permitted to appear for the said examination. The college has to facilitate here necessary extra hours for the purpose. (c).The College is directed to display monthly attendance statements on the notice boards. The petitioner is challenging Ext. P11, on many a ground and seeks for a direction to have the 'withheld result' published in respect of the Part I W.P. (C) No. 13598 of 2011 : 7 : Examinations of the 4th year BDS and to permit the petitioner to attend and appear for part II classes and Examinations. 7. When the matter came up consideration before this Court on 17.05.011, the following interim order was passed. “Urgent notice on admission to the 3rd respondent by special messenger. Standing counsel for respondent 1 and 2 to get instructions and to file statement / counter affidavit, if any. Post on 27.05.2011. Meanwhile the petitioner shall be permitted to attend the classes in Part II of 4th year BDS course, subject to result of this writ petition.” On completion of service of notice on admission, the third respondent entered appearance and filed a detailed counter affidavit; the contents of which were sought to be rebutted by the petitioner by filing a reply affidavit. This necessitated filing of additional counter affidavit by the 3rd respondent. The first and second respondents have W.P. (C) No. 13598 of 2011 : 8 : filed a 'brief statement' in support of Ext. P11, through their standing counsel, contending that, the petitioner was having only 65 % attendance (beyond the condonable limit) and hence that no relief as sought for by the petitioner can be extended. 8. The matter was argued at length by the learned counsel for the petitioner and the learned counsel for the third respondent. This Court also heard the learned standing counsel appearing for the University i.e. respondents 1 and 2. 9. The learned counsel for the petitioner, asserted the factual position as to the sufficiency of attendance available to the petitioner, by virtue of the extension of the course (notwithstanding the maternity leave availed by her from 01.07.2010 to 20.09.2010) and the lapses on the part of the 3rd respondent in reckoning the actual attendance of the petitioner and maintaining proper attendance Registers. It was also added that, the petitioner W.P. (C) No. 13598 of 2011 : 9 : had to face the situation only as a measure of victimization in view of the steps taken by the father of the petitioner, who happened to be the Chairman of the Parents Council, by filing several complaints before the Management, University and Dental Council, in respect of the lack of infrastructure in the 3rd respondent college. Coupled with this, the petitioner contends that she is a Government-nominated candidate in the merit quota, which also contributed to the cause and she is made to suffer for the same. Despite filing the complaint before the University, referring to victimization and producing the relevant materials, nothing has been stated as discussed in Ext.P11 order passed by the second respondent, as to the finding on the question of 'victimization'; without which, no such order ought to have been passed, detrimental to the interest of the petitioner. Reference is also made to the 'tables' given in W.P. (C) No. 13598 of 2011 : 10 : paragraph 4 of the reply affidavit, the first one referring to the 'time table' and the second one referring to the 'total number of classes' from 01.01.2010 to 30.11.2010 in each subjects, based on the above time table. 10. The learned counsel for the petitioner submits that, the 'time table' as referred to above stands not disputed by the 3rd respondent and if that be so, there cannot be any dispute with regard to the total number of classes during the period in question (based on such time table). If this is considered as correct and sustainable, the petitioner is having the requisite attendance and the contentions to the contrary, taken by the 3rd respondent and accepted by the second respondent, are liable to be rejected. The learned counsel also submits that, there is a clear finding in Ext. P11 order passed by the second respondent, that the Enquiry Committee was convinced over the W.P. (C) No. 13598 of 2011 : 11 : 'ambiguities' seen in the maintenance of the attendance registers; which necessitated issuance of a positive direction, to have the monthly attendance statements displayed on the notice board of each college. Reference is also made to the insinuation made by the general public against the 3rd respondent institution and its sister concern, who runs the Engineering College, which attracted the mass media, as borne by the Ext. P12 series paper cuttings. 11. The learned counsel for the 3rd respondent, submits with reference to the pleadings and documents produced as Exts. R3 (a) to R3 (n) and Ext. R3 (o) and Ext. R3 (p) respectively, that the contentions raised by the petitioner do not keep right track of truth. It is stated that, the Principal of the third respondent institution is a lady and that there was no need, necessity or occasion for her to have had any ill-will against the petitioner. Had it been the position, the W.P. (C) No. 13598 of 2011 : 12 : petitioner would not have obtained the internal assessment marks, as now awarded to her in Exts. P1 to P3 mark sheets, especially when the alleged instance for ill-will / victimization is in respect of Ext. P4 dated 10.08.2008. The learned counsel also submits that, the attendance registers are maintained by the Heads of the Departments and not by the Principal and that the missing of two Registers, however has not adversely affected the petitioner in any manner. It is stated that, out of the two Registers missing, one was subsequently traced out and the Registers have been produced before the Enquiry Committee. The learned counsel submits that, in respect of the said two Registers, dealing with the subject 'Pedo' (Clinical and Theory), 80 % and 83 % attendance have been awarded to all the students, irrespective of the actuals, based on the average attendance in the other papers. It is stated that, the petitioner is also a W.P. (C) No. 13598 of 2011 : 13 : beneficiary to the said extent. Further, the petitioner is actually having only 58 % attendance, while 7 % was added by the Principal based on the Medical certificate produced; thus taking the total to 65 %, in spite of the fact that, the Principal does not have any such power. The power to condone the shortage of attendance is stated as exclusively vested with the University, that too, to a maximum extent of 10 %. It was in the said circumstances, that out of the three candidates listed in Ext. P10, shortage was shown as 'condonable' in respect of the other two, who were having the attendance above 70 %, while it was stated as 'not condonable' in respect of the petitioner. The learned counsel points out that the provisional permission given by the second respondent to attend the classes and to take part in the Examinations and the provisional order passed by this Court when the matter came up for consideration on 17.05.2011 to attend the part W.P. (C) No. 13598 of 2011 : 14 : II classes cannot create any vested right on the petitioner. The subsequent developments, as to the course and events allegedly pursued by the father of the petitioner and his henchmen, causing trespass, forceful restraint and abusing the Principal, threatening of dire consequences on different dates (such as 03.03.2011 and 04.04.2011), leading to Exts. R3(h) and R3(l) complaints filed before the S.I. of Police; followed by Ext.R3 (m) dated 07.04.2011 are referred to, contending that the petitioner does not deserve any sympathy. Reference is also made to Ext. R3 (o) representation preferred before the S.I. of Police and Ext. R3 (p) reply of the S.I. of Police, as to the police protection stated as given to the 3rd respondent, (which have been produced along with the additional counter affidavit). It is contended in paragraph 6 of the counter affidavit that, because of the influence of the petitioner's father, no action is being taken W.P. (C) No. 13598 of 2011 : 15 : by the Police on the complaints preferred by the 3rd respondent and that no police protection is actually provided. It is also stated that the 'course' was never postponed as contended by the petitioner; that the particulars of the attendance as given by the third respondent before the Board and as produced before this Court are correct, that by virtue of the relevant rules, which are not under challenge, the maximum shortage that can be condoned, by University is only 10 % and that the petitioner is not entitled to have any relief. 12. The learned standing counsel for the University supported the said contentions and made a reference to clause 7 (3) of the Calicut University First Ordinance, pointing out that, by virtue of the same, the writ petition is liable to be dismissed. 13. The common case of the respondents (University and the 3rd respondent) is that the petitioner was not liable to be permitted to W.P. (C) No. 13598 of 2011 : 16 : participate in the Examinations for Part I of the 4th year BDS and in turn, to attend the classes in respect of Part II, for shortage of attendance beyond the condonable limit. Reference is also made to clause 7 (3) of Calicut University First Ordinance, 1978, which is extracted below. 7(3) A student who has failed to earn the required attendance in an academic year, at the end of which there is a University Examination, must attend the college to receive such additional instruction as the Principal may prescribe to enable him to issue the annual certificate. The Vice - Chancellor shall be competent to grant condonation of attendance up to 14 days but not 24 days, the Syndicate alone shall be competent to grant condonation. In the case of Semester, condonation up to six days for each semester may be given by the Vice - Chancelllor. The case of the petitioner, on the other hand, is that, though the petitioner had availed maternity leave for nearly two months from 01.07.2010 and W.P. (C) No. 13598 of 2011 : 17 : 20.09.2010, the same was compensated, when the examination was postponed from October, 2010 to December 2010 and additional classes were going on and attended by the petitioner. The factual position in this regard is not successfully disputed by the respondents, but for contending that, the APC of the petitioner had already been forwarded in view of the Examinations scheduled earlier in October, 2010 and as such, attending of the classes subsequently can only be for receiving additional instructions and not to gain attendance in any manner. The said submission made on behalf of the respondents does not win confidence of this Court, in view of the specific averments of the petitioner with reference to the 'time table' and distribution of teaching hours/classes as given in paragraph 4 of the reply affidavit. This is more so, when the petitioner has got a serious case that the course pursued against the petitioner, is as a measure of W.P. (C) No. 13598 of 2011 : 18 : victimization; that there is much irregularity in maintaining the attendance Registers and that the entries in the said Registers are manipulated. 14. It is no more in dispute that the petitioner, pursuant to the complaint preferred before the University alleging victimization, was permitted to take part in the Examinations for Part I of the 4th year BDS, on interference made by the second respondent as per Ext. P7 dated 10.12.2010, holding that, it will be subject to the result of the Enquiry on alleged victimization. The result of the said Examinations was also declared in the meanwhile, showing the petitioner as 'passed', though it was subsequently withheld. When the petitioner was denied entry to attend part II classes from 03.03.3011, it was intercepted as per Ext. P8 order dated 03.03.11 of the second respondent, permitting her to attend the classes, subject to the Enquiry report and decision thereon. W.P. (C) No. 13598 of 2011 : 19 : On approaching this Court, as per interim order dated 13.07.2011, the petitioner was permitted to attend Part II BDS classes on a provisional basis, subject to the result of the writ petition and she is continuing accordingly. It was pointed out during the course of hearing, that the examinations in respect of Part II 4th year BDS are scheduled to be commenced from 18.08.2011 onwards. 15. Coming to the finalization of the proceedings at the hands of the University, in respect of the complaint preferred by the petitioner on 'victimization' by passing Ext. P11, it is to be noted that, the said order has been passed by the second respondent, merely accepting the recommendations of the Committee appointed to enquire into the complaint of victimization and based on the 'Sanction' given by the Vice Chancellor for implementing the said recommendations, subject to the ratification by the Board for Adjudication of W.P. (C) No. 13598 of 2011 : 20 : the Students' Grievances. Absolutely nothing has been stated in Ext. P11, as to the 'finding' of the Enquiry Committee on the complaint on 'victimization'. So also, it is not discernible from Ext. P11, whether there was any independent application of mind by the concerned authority, on the recommendations made by the enquiry committee, before implementing the decision, asking the petitioner to “re-do” the course in respect of Part I of the 4th year BDS, to the requisite extent. 16. Obviously, Ext. P11 order was passed on 03.11.2011, on the basis of the Report of the Enquiry Committee dated 19.04.2011. A copy of the said Report is not filed by the respondent University along with the statement filed by