IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 Con.Case(C).No. 371 of 2011(S) ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.37955/2010 Dated 17/02/2011 .................... PETITIONER(S): ------------------------ VEENA MONEY,AGED 23 YEARS, D/O.P.N.MONEY,'XANADU', TRIPUNITHURA PO, PUTHIYAKAVU,ERNAKULAM 682 301. BY ADV. SRI.K.RADHAKRISHNAN, SENIOR ADVOCATE SRI.ARUN KUMAR.P SMT.AMBIKA RADHAKRISHNAN SRI.SAJEEV KUMAR K.GOPAL RESPONDENT(S): ------------------------- 1. DR.T.K.NARAYANAN,AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,REGISTRAR, THE UNIVERSITY OF CALICUT , CALICUT UNIVERSITY PO, KOZHIKODE 673 635. 2. DR.P.K.MICHAEL THARAKAN,AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,VICE CHANCELLOR, UNIVERSITY OF CALICUT,THENHIPALAM, CALICUT UNIVERISITY PO, KOZHIKODE 673 635. 3. SRI.V.RAJAGOPALAN,AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT,THENHIPALAM, CALICUT UNIVERSITY PO, KOZHIKODE 673 635. ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. FOR R THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ Cont.Case (C) NO. 371 OF 2011 ===================== Dated this the 8th day of June, 2011 J U D G M E N T WP(C) No.37955/10 was disposed of by judgment dated 17th of February, 2011 with the following directions:- For the aforesaid reasons, I direct that the University shall award grace marks as provided in the Regulations 1997 and the Academic Calendar 2005-2010 to the petitioners for practicals also and on that basis, their results shall be published afresh. This the University shall do as expeditiously as possible and at any rate within 4 weeks. It is made clear that, on such publication of their results, those petitioners who are declared to have passed the final MBBS examination will be entitled to undergo internship. 2. On 21/3/11, petitioner herein filed this contempt petition with the following allegations:- It is submitted that the judgment of this Hon'ble Court was produced before the respondents for compliance on 21.2.2011 also. Nevertheless, the respondents have not so far taken any steps to declare the results of the petitioners in the writ petition. So the respondents have deliberately disobeyed the peremptory directions issued by this Hon'ble Court in declaring the results of the petitioners in the writ petition. No justification can be given for the above conduct of the respondents in not allowing grace marks to the petitioners and in not declaring the results within four weeks as directed by this Hon'ble Court. If the results are not published by the University as expeditiously as possible it will adversely COC No. 371/11 :2 : affect the career as well as the future of the petitioners in the writ petition. It is respectfully submitted that hence the respondents have committed Contempt of the peremptory direction issued by this Hon'ble Court in Annexure 1 judgment. Hence the respondents have committed grave contempt of this Hon'ble Court by refusing to comply with the order of this Hon'ble Court in its letter and spirit. The respondents are therefore liable to be proceeded against under the provisions of the Contempt of Courts Act, 1971. 3. The memo of charges filed along with the petition is consistent with the aforesaid pleadings in the petition. 4. When this petition was brought up for orders, it was reported by the counsel appearing for the respondents that WA No.409/11 filed by them was pending before a Division Bench and taking note of the said submission, hearing of the petition was deferred. While so, by judgment dated 28th of March 2011, Division Bench of this Court disposed of the appeal holding as follows:- We are of the view that the DME's circular is the most reasonable one in as much as discretion is given to the Pass Board to consider award of grace marks considering each student as an individual case and it is absolutely within the discretion of the Pass Board to give grace marks either for the theory or practical in one subject and necessarily Pass Board has to keep in mind the general performance of the student in all subjects. However we feel the decision taken, as a matter of policy by the Pass COC No. 371/11 :3 : Board to decline grace marks in the practical examination to any student in any subject is arbitrary. We notice from the marks obtained by the respondents that some have failed by shortage of even one mark and some have failed even on shortage of 2 or 3 marks and the marks required for a pass is up to 5 marks for all the respondents. From the practice of the University followed for five years prior to 2010 and the regulations of the MCI and the DME, we feel it will be unjust and inequitable to deny grace marks to the respondents in the practical examinations. We, therefore, decline to interfere with the judgment of the learned Single Judge and therefore, the writ appeal is dismissed. However the time for compliance of the judgment is extended by two weeks from receipt of this judgment. 5. Refuting the allegations in the petition against them, respondents have filed affidavit dated 24th of May 2011 producing Annexure R1(a), proceedings of the Pass Board of the 3rd Professional MBBS Part II Examination, October 2010, the relevant portion of which reads as follows: In compliance with the direction issued by the Hon'ble High Court, the Pass Board met on 8.4.2011 to submit the proposal for finalization of results of Final Professional Part II Exam and resolved to grant grace marks for practical examination as well subject to the following conditions: That the student seeking the benefit of grace marks for practical examinations should have passed all the previous exams both practical and theory in first chance with 60 percentage marks, and that the candidate seeking grace marks for practical examination for Final Professional Part II Examination should have secured 55% and above marks in all other practical examinations of other papers of that year and that the candidate who have secured 56% or COC No. 371/11 :4 : above be granted grace marks for practical examinations as per the following range 56-60% - 1 mark 61-65% - 2 marks 66-70% - 3 marks Above 71% - 5 marks The results of the Final Professional Part II MBBS Examination published as per the recommendations of the Pass Board met on 26/11/2010 is modified to the extend above. University is to examine the individual case of the students as per the above decisions and to finalize the result accordingly. 6. Along with IA No.313/11 petitioner has also produced Annexure A2 notification dated 18/4/2011 published by the University in pursuance to Annexure R1(a) referred to above, which shows that, for practicals, grace marks have been given to five candidates. In para 7 and 8 of the affidavit filed by the University, it is stated thus:- 7. It is submitted that the recommendation of the Pass Board was placed before the appropriate authority and results has been finalised accordingly and revised mark list issued. It is submitted that 5 candidates were granted grace marks in terms of the decision of the Pass Board and that 19 candidates who failed in the examination applied for the supplementary examination conducted during February, 2011 and out of which 17 candidates has passed the examination and their results were published on 19/4/2011 and they have received the revised mark list without any demur. It is submitted that 2 candidates Sri.Abin Suraj and Sri.Jibin C.P. though applied for the supplementary examination had not attended the examination and hence declared COC No. 371/11 :5 : failed. 8. In so far as the petitioner is concerned she had appeared for the Supplementary Examination held in ebruary, 2011 and passed the examination and received the revised mark list on surrendering the original mark list without any objection. Hence she cannot have any subsisting grievance. 7. From the above, therefore it is obvious that by Annexure A2 dated 18/4/2011, the University has published the results which according to the University is in compliance with the directions in the judgment. According to the respondents, with the publication of the results as above, the cause of action which led the petitioner to file this petition no longer survives. It is also the case of the University that the petitioner appeared in the supplementary examination and on passing the examination, she has already collected the revised mark lists without any protest whatsoever. 8. In the above background, the contention now raised by the learned senior counsel appearing for the petitioner is that grace marks for practicals have been granted only to those students who satisfied the conditions specified by the respondents in Annexure R1(a) proceedings of the pass board and that by imposing such conditions, the respondents have COC No. 371/11 :6 : disobeyed the directions in the judgment of this Court. In other words, according to him, by granting grace marks only to those who have passed all previous examinations, both practicals and theory in the first chance with 60% of marks, with a further condition that such candidates should have secured 55% and above in all other practical examinations of other papers of that year, the University was attempting to overreach the directions in the judgment and to deny grace marks to the petitioners in the writ petition. 9. As rightly pointed out by the learned counsel for the University, the contention now urged by the counsel is not the case pleaded by the petitioner. Contempt proceedings are in the nature of criminal proceedings and unless the respondent has notice of the case set up by the petitioner and afforded an opportunity to meet the allegations, this Court will not be justified in taking cognizance of such arguments. In this case, admittedly, subsequent to the production of Annexure R1(a) and the issuance of Annexure 2 notification by the University, the petitioner has not chosen to amend the pleadings incorporating the petitioner's COC No. 371/11 :7 : contentions against the conditions imposed by the University in Annexure R1(a). In such circumstances, I am not persuaded to take cognizance of the case now argued before me. 10. At best, this is a case of delayed publication of the results by the University. Having regard to the fact that the Division Bench rendered its judgment on 28/3/2011 allowing two weeks time for compliance and that University has published the results on 18/4/2011, I am not persuaded to think that there was any culpable delay amounting wilful disobedience of the directions in the judgment warranting proceedings under the Contempt of Courts Act. Therefore this contempt petition is dismissed. ANTONY DOMINIC, JUDGE Rp