IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 34035 of 2009(Y) --------------------------------------- PETITIONERS: --------------------- 1. REMYA.P SOMAN, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH, THALAPPADY, PUTHUPPALLY. 2. SHEENA SHUIDE, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 3. ABDUL NAIZAB U.M, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 4. DEEPAK JOSEPH, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 5. PRIYANKA PUSHKARAN, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 6. THOUFEEG. P.N, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 7. FEBIN JOHN FRANCIS, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 8. SHIMOJ M.V 4TH YEAR B.PHARM STUDENT REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. W.P.(C). NO.34035/2009-Y: 9. ANAKHA.P, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 10. NIMNIMOL.M, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. 11. MARY THOMAS, 4TH YEAR B.PHARM STUDENT, REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH,THALAPPADY, PUTHUPPALLY. BY ADVS. SMT.AYSHA YOUSEFF, SMT.MOLLY JACOB, SMT.U.M.FOUSIA, SMT.RABIA BEEGAM T.K, SRI.JOBI.A.THAMPI, SMT.M.KABANI DINESH, SMT.BOBY M.SEKHAR, SMT.FASHIYA YOUSEFF. RESPONDENTS: ------------------------ 1. MAHATHMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, ATHIRAMPUZHA, KOTTAYAM. 2. VICE-CHANCELLOR MAHATHMA GANDHI UNIVERSITY ATHIRAMPUZHA, KOTTAYAM. 3. PRINCIPAL REGIONAL INSTITUTE OF MEDICAL SCIENCE AND RESEARCH, THALAPPADY, PUTHUPPALLY. R1 & R2 BY SRI. T.A. SHAJI, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34035/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE HALL TICKET OF P.1. ISSUED BY THE UNIVERSITY. EXT.P.1.A: COPY OF THE HALL TICKET OF P.2. ISSUED BY THE UNIVERSITY. EXT.P.1.B: COPY OF THE HALL TICKET OF P.3. ISSUED BY THE UNIVERSITY. EXT.P.1.C: COPY OF THE HALL TICKET OF P.4. ISSUED BY THE UNIVERSITY. EXT.P.1.D: COPY OF THE HALL TICKET OF P.5. ISSUED BY THE UNIVERSITY. EXT.P.1.E: COPY OF THE HALL TICKET OF P.6 ISSUED BY THE UNIVERSITY. EXT.P.1.F: COPY OF THE HALL TICKET OF P.7 ISSUED BY THE UNIVERSITY. EXT.P.1.G: COPY OF THE HALL TICKET OF P.8 ISSUED BY THE UNIVERSITY. EXT.P.1.H: COPY OF THE HALL TICKET OF P.9 ISSUED BY THE UNIVERSITY. EXT.P.1.I: COPY OF THE HALL TICKET OF P.10 ISSUED BY THE UNIVERSITY. EXT.P.1.J: COPY OF THE HALL TICKET OF P.11 ISSUED BY THE UNIVERSITY. EXT.P.1.K: COPY OF THE LIST OF 4TH YEAR STUDENTS WHO HAVE APPEARED FOR THE 4TH YEAR EXAM IN THE YEAR, 2007. EXT.P.3: COPY OF THE ORDER NO. 5075/SF/III/2008/ADMN. DTD. 29/11/2008 OF THE R.1. EXT.P.4: COPY OF THE JUDGMENT DTD. 02/04/2009 IN W.P.(C).6176/2009. EXT.P.5: COPY OF THE LETTER NO. 16493/3/09/SFIII DTD. 29/08/2009 OF THE R.1. EXT.P.6: COPY OF THE ORDER NO. 5782/3/04/SF III DTD. 11/1/06 OF THE R.1. EXT.P.7: COPY OF THE NOTIFICATION NO. EI.VIII DTD. 20/03/2010 ISSUED BY THE R.1. EXT.P.8: COPY OF THE HALL TICKET OF THE P.3. FOR THE 3RD YEAR EXAMINATION HELD ON JANUARY 2010. EXT.P.9: COPY OF THE NOTIFICATION DTD. 19/06/2010 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 34035 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010 J U D G M E N T The petitioners in this writ petition are B.Pharm students who have completed the B.Pharm course in the year 2008. They have filed this writ petition at a time when they were not given permission to write the 4th year examination scheduled to be held from 11.12.2009 on the ground that they have not cleared the 3rd year examination. On the same question, I had rendered a judgment in W.P.(C) No.33579/2009 filed by two other students, which reads as follows: “At the time of filing the writ petition, the petitioners were final year B.Pharm students. Subsequent to the filing of this writ petition, they have completed the course. They approached this court at a time when the respondents refused to accept fee from them for writing the 4th year examination which was scheduled to be held from 11.12.2009 onwards. Petitioners passed all their papers in the 2nd year and appeared for the 3rd year B.Pharm supplementary examination. Since the first petitioner lost one paper and the 2nd petitioner lost two papers in the 3rd year examination, they had submitted applications for revaluation after remitting the fee as per Ext.P6. The result of the revaluation had not been published at that time. While so, the final year examination was notified to be held on 11.12.2009 but they were not allowed to pay the examination fee on the ground that they have not cleared all papers of the 3rd year which according to the respondent was an eligibility condition for writing the final year examination. It is under the above circumstances, the petitioners have filed W.P.(C)No. 34035 of 2009 -2- this writ petition, seeking the following reliefs: “i. Call for the records leading to Ext.P11 order dated 11.1.2006 and quash the same to the extent it specify that the B.Pharm students will be eligible to appear for the examination of the higher class only after passing all the subjects in the lower class. ii. to issue a writ of mandamus commanding the respondents to accept the fee for writing the 4th year B.Pharm examination (final year) from the petitioners and to allow them to write the examination which is going to be commenced from 11.12.2009, irrespective of the fact that they have not cleared all the papers of 3rd year B.Pharm examination. iii. to declare that the petitioners are eligible and entitled to appear for the 4th year B.Pharm examination in the light of Ext.P7 by which persons similarly situated like the petitioners were allowed to appear for the final year B.Pharm examination held in 2007. “ 2. According to the petitioners, as per the B.Pharm Regulations, which are statutory regulations governing the issue, it is not necessary to pass all the subjects of the 3rd year examination for becoming eligible to write the final year examination, and it would be sufficient if they passed all subjects except two theory and two practicals of the 3rd year. According to the petitioners, since the 1st petitioner had already cleared all papers except one paper and the 2nd petitioner has cleared all except two papers of the 3rd year they are eligible to write the 4th year examination. The only embargo on them is that the results of the final year examination would be declared only after passing the 3rd year subjects. Pursuant to interim orders of this court, the petitioners have already written the 4th year examination. In the meanwhile, they had also cleared all the papers of the 3rd year examination by appearing in further supplementary examination. 3. The learned standing counsel for the University opposes the prayers of the petitioners. According to him, as is clear from Ext.P11, students are eligible to appear for the examination to the higher class only after passing all subjects in the lower class. He points out that, the petitioners had not cleared some papers of the 3rd year at the time when they filed this writ petition seeking permission to write the 4th year examination and therefore they were not eligible to write the W.P.(C)No. 34035 of 2009 -3- final year examination. 4. I have considered the rival contentions in detail. The relevant provisions of the B.Pharm Regulations reads as follows: “VIII. PROMOTION PROCEDURE: a) The results of the respective University 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 yr. c) The candidate is permitted to carry over 4 second year subjects (two theory and two practicals )to 3rd yr. 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 yr. But the result will be declared only after passing all the 3rd year subjects.” 5. But in Ext.P11 it is stated thus: “Candidate 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.” 6. Admittedly the 1st one is a prescription in the statutory Regulations. Although the learned standing counsel for the University would strenuously argue that, the regulations have been amended by Ext.P11, I am not quite satisfied that it is so. Ext.P11 does not state that the B.Pharm Regulations are amended as stated in Ext.P11. As such, clearly there is some ambiguity in the provisions applicable at the relevant time. In view of the discrepancy between two rules, only one of the two Rules can prevail. In view of the ambiguity pointed out above, I am of opinion that, the benefit of doubt should be given to the students in so far as they are eligible to write the 4th year examination going by the original B.Pharm Regulations. I am inclined to allow the claim of the petitioners especially since they have already written the 4th year examination on the W.P.(C)No. 34035 of 2009 -4- strength of the interim order and they have also cleared the 3rd year papers during the pendency of the writ petition. It is declared that their appearance in the final year examination as per the interim order shall be construed as valid appearance and therefore results of their examination shall be declared forthwith as if they had validly written the examination.” 2. The learned counsel for the petitioners candidly admits that the ratio of that decision would apply only to petitioners 1 to 3 and the other petitioners would not be eligible for the benefit of that decision, although they had also written the final year examination on the strength of the interim orders passed in this writ petition. Accordingly this writ petition is disposed of declaring that the petitioners 1 to 3 have written the 4th year examination validly. Consequently their results shall be declared as if they had validly written the examination. In respect of petitioners 4 to 11 reliefs are declined. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/