IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 2485 of 2008(U) --------------------------------------- PETITIONER(S): ------------------------ ANJU G.PRASAD, AGED 21 YEARS, D/O.K.VALAYUDHA PRASAD, RAILWAY QUARTERS, 83 D, POOJAPURA, TRIVANDRUM. BY ADVS. MR.T.A.UNNIKRISHNAN, MR.K.SATHEESH KUMAR. RESPONDENT(S): --------------------------- 1. THE KERALA UNIVERSITY REP. BY ITS REGISTRAR, TRIVANDRUM. 2. THE PRINCIPAL, THE DALE VIEW COLLEGE OF PHARMACY AND RESEARCH CENTRE, PUNALAL P.O., TRIVANDRUM. 3. THE GOVERNMENT OF KERALA, REP. BY SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. R1 BY ADV. MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R2 BY ADV. MR.KURIAN GEORGE KANNANTHANAM R3 BY GOVERNMENT PLEADER MR. M.A. ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2485/2008 U APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT DTD. 2/01/2007. P2: COPY OF THE CERTIFICATE OF THE PETITIONER IN THE PLUS TWO EXAMINATION DTD. 30/06/2003. P3: COPY OF THE RELEVANT PAGE OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES IN THE YEAR 2006. RESPONDENT'S EXHIBITS: R1(A): COPY OF U.O.NO.Ac.A.III 3/1212/2004 DTD. 25/02/2005. /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 2485 OF 2008 -------------------------- Dated this the 20th day of November, 2009 J U D G M E N T The petitioner was given admission for the B.Pharm degree course in Dale View college of Pharmacy and Research Centre, Thiruvananthapuram in a management seat in the year 2007. The petitioner who has passed the Higher Secondary Examination (Science Group) conducted by the Board of Higher Secondary Examinations, Kerala in June 2003, secured only less than 50% marks in the said examination. When she applied for registration to appear for the first year B.Pharm degree examination, the University of Kerala objected to her registration on the ground that she is ineligible for admission to the B.Pharm degree course. The University took the stand that as she does not have 50% marks in the qualifying examination, her admission was not in order. This writ petition was thereupon filed seeking a direction to the University of Kerala to approve the candidature of the petitioner and to permit her to appear for the first year B.Pharm degree examination. W.P.(C) No. 2485/08 2 2. Pursuant to the interim order passed by this Court on 22.1.2008, the petitioner appeared for the first year B.Pharm degree examination. Though initially this Court has directed that the results need not be declared, by order passed on 14.10.2009, this Court directed that the results be declared. Thereafter the second year examination was held. But the petitioner could not appear for the examination in the absence of an order from this Court. Though the petitioner applied for registration, registration was not granted and she was not permitted to appear for the second year examination. 3. The petitioner contends relying on Ext.P3 prospectus that there was no stipulation therein that a candidate seeking admission for the B.Pharm degree course should have passed the higher secondary examination with 50% marks and therefore her admission was in order. Per contra, the University contends relying on the regulations for the B. Pharm degree course that only those candidates who have passed the higher secondary examination with 50% marks are eligible for admission. Para 6.2.1 of the prospectus issued by the Commissioner for Entrance W.P.(C) No. 2485/08 3 Examinations with the approval of the Government reads as follows: “6.2.1 Medical and Agricultural Courses: (a) Candidates who have passed Higher Secondary examination of the Board of Higher Secondary Education, Kerala, or examinations recognized equivalent thereto, with 50% marks in Biology separately, and 50% marks in Physics, Chemistry and Biology put together, are eligible. (b) For admission to BV.Sc. & AH Course, candidates should have secured not less than 50% aggregate marks in English, Physics, Chemistry and Biology at the qualifying examination, in addition to the condition as stipulated in Clause 6.2.1(a) as per regulation 5 of minimum standards of Veterinary Education Degree Course (B.V.Sc., & AH) Regulation, 1993. Relaxation in marks is permissible as stipulated in clause 6.2.4. (c) Candidates who have passed 10+2 examination with Physics and Chemistry as compulsory subjects along with any one of Mathematics/Bio-technology/Computer Science/Biology are eligible for admission to B.Pharm courses. Such candidates will not be eligible for admission to B.Pharm (Ayurveda) course.” 4. Relying on regulation 6.2.1(c) the petitioner contends that as she has passed the 10+2 examination with Physics and Chemistry as compulsory subjects along with Mathematics, she is eligible for admission for the B.Pharm course. The petitioner contends that unlike in clauses (a) and (b) of para 6.2.1, in W.P.(C) No. 2485/08 4 clause (c) there is no stipulation that the candidate should have passed the 10+2 examination with 50% marks. On the other hand, regulation 2 of the regulations framed by the Academic Council of the Kerala University stipulates that only candidates who have passed anyone of the qualifying examinations with 50% marks in the aggregate are eligible for admission. Regulation 2 and 2.1 read as follows: 2. Eligibility for Admission A candidate who has undergone any of the following courses in English medium and passed the examination with 50% marks in the aggregate of optional subjects. 2.1 Minimum qualification for admission into First year of the B.Pharm Course. 1. Pre-degree Examination of the University of Kerala with Physics, Chemistry and Biology/Mathematics as optional subjects. 2. Higher Secondary Examination of Government of Kerala with Physics, Chemistry and Biology/Mathematics as optional subjects. 3. Any other Examination with Physics, Chemistry and Biology/Mathematics as optional subjects approved as equivalent to any of the above Examinations by the University of Kerala.” W.P.(C) No. 2485/08 5 Note:- In respect of candidates who have taken Physics, Chemistry, Biology and Mathematics as Optional subjects, the aggregate of Physics, Chemistry and Biology or Physics, Chemistry and Mathematics whichever is higher, shall be considered for the purpose of admission.” 5. By Ext.R1(a) University order, the regulations were amended. Though regulation 2.1 was amended, regulation 2 was not amended. Regulation 2.1 as amended reads as follows: “2.1. Minimum qualification for admission to First year B.Pharm Degree Course. 1. Pre-degree Examination of the University of Kerala with Physics, Chemistry and Biology/Mathematics/ Biotechnology/Computer Science as optional subjects. OR 2. Higher Secondary Examination of Government of Kerala with Chemistry and Biology/Mathematics/Biotechnology/ Computer Science as optional subjects. OR 3. Any other Examination with Physics, Chemistry and Biology/Mathematics Biotechnology/Computer Science as optional subjects approved as equivalent to any of the above Examinations by the University of Kerala.” Note:- In respect of candidates who have taken Physics, W.P.(C) No. 2485/08 6 Chemistry and Mathematics/ Biotechnology/ Computer Science as Optional subjects, the aggregate of Physics, Chemistry and Biology/Mathematics/Biotechnology/ Computer Science whichever is higher, shall be considered for the purpose of admission.” 6. It is evident from a comparison of the stipulations in the prospectus and the regulations that there is an apparent conflict between them. As per the prospectus, a candidate who has passed the Higher Secondary Examination with Physics and Chemistry as compulsory subjects along with Mathematics as optional subject is eligible for admission. In the case of such candidates, the prospectus does not stipulate that they should have secured not less than 50% marks in the aggregate. Regulation 2 of the regulations issued by the University on the other hand specifically states that candidates should have undergone the courses mentioned in regulation 2.1 in English medium and passed the examination with 50% marks in the aggregate for optional subjects. 7. A Division Bench of this Court has in Varghese v. Director of Medical Education (1987 (2) KLT 673) held that a prospectus issued contrary to the provisions of the University W.P.(C) No. 2485/08 7 Statutes cannot override the provisions of the Statutes. It was held that the power to fix the qualifications for admission to a course of study is with the Academic Councils of Universities and that the State Government cannot amend the qualifications prescribed in the regulations. Therefore, it has necessarily to be held that the regulations framed by the Academic Council of the Kerala University will prevail over the stipulations in the prospectus. The learned counsel appearing for the petitioner submits that the petitioner was given admission for the B.Pharm degree course by the college authorities on the basis that the qualifications are as set out in the prospectus. He submits, relying on Rule 9 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Rules, 2006, that the Government is competent to prescribe the educational qualifications for admission to professional degree courses and therefore the qualifications prescribed in the prospectus will prevail. The learned counsel also submits that as W.P.(C) No. 2485/08 8 the Government have the right to fix the qualifications under Rule 9 of the said rules, the prospectus will prevail over the regulations framed by the University. The learned standing counsel appearing for the University of Kerala submits that the Academic Council of the Kerala University is the only authority competent to prescribe qualifications and eligibility conditions for admission to colleges affiliated to the University of Kerala that the 2006 Act does not empower the Government to prescribe eligibility conditions for admission to professional degree courses and therefore Rule 9 is ultravires the Act. 8. A close reading of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act 2006 establishes beyond doubt that the Legislature did not confer on the State Government the power to prescribe qualifications for admission to professional degree courses. As the Act does not empower the Government to prescribe the qualifications for admission to professional degree courses, the Government W.P.(C) No. 2485/08 9 cannot in the exercise of its rule making power under section 19 of the Act, frame a rule empowering it to prescribe the qualifications for admission to professional degree courses. Therefore this Court will necessarily have to proceed on the basis that Rule 9 of the rules is ultravires the Act. Thus, it has to be held that the petitioner was ineligible for admission to the B.Pharm degree course since she did not possess the qualifications prescribed in the University Regulations. In the result, the writ petition fails and is dismissed. No costs. P.N.RAVINDRAN, JUDGE vps