IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 17170 of 2008(R) -------------------------- PETITIONER: ---------------- ROMY MARIA JACOB, W/O.LIJU THOMAS, NOW RESIDING AT C/O.LIJU THOMAS, SAFETY AOFFICER, SITE 305, BUTTALEEBA CONTRACTING LLC, POST BOX NO. 10874, DUBAI, UAE, REPRESENTED BY HER FATHER AND POWER OF ATTORNEY HOLDER JACOB MATHEW, SON OF TC MATHEW, AGED 60 YEARS, RESIDING AT.THELLY HOUSE,THIDANADU, KOTTAYAM DT BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT: -------------------- UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, OFFICE OF THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. BY ADV. SRI.M. RAJAGOPALAN NAIR , SC, UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................................ W.P(C) No. 17170 OF 2008 ............................................................................ Dated this the 15th July, 2008 J U D G M E N T As agreed by learned counsel appearing for the parties, the Writ Petition itself was taken up for hearing. The pleadings are complete. 2. The petitioner appeared for 5th year B.Arch Degree Examination in May, 2005 conducted by the University of Kerala. She secured 224/500 (44.8%) for Thesis and viva-voce, 84/150 (56%) for Transportation Planning and 85/150 (57.3%) for Structural Systems. The relevant Regulation governing B.Arch Degree course is Clause 8 of Regulation of the B. Arch Degree Course, 1998. The regulation reads as follows: “8.(a) A candidate shall be declared to have passed an Annual Examination in full if he/she secures not less than 40% marks for each subject of the University Annual Examination and not less than 50% of the overall aggregate marks for the year, i.e., University Examination marks and sessional marks of all the subjects of the year put together. (b) A candidate shall be declared to have passed in an individual subject of a year Examination if he secures not less than 40% for the subject in the University Examination and not less than 50% of the total marks for the subject, ie., University Examination marks and sessional marks in that subject put together. (c) A candidate who does not secure a full pass in a year Examination as per Clause (a) above, will have to pass in all the subjects of the year as per Clause (b) above, before he is W.P(C) No. 17170 OF 2008 2 declared to have passed in that year Examination in full. “ 3. From the marks secured by the petitioner, it can be seen that she has not secured 50% marks in the aggregate for the year. The petitioner, however, has secured 40% marks in each subject. 4. The petitioner and similarly situated candidates submitted representations before the University. The Joint Registrar (Academic) issued Ext.P1 communication to the Principal of the College stating that candidates who satisfied the minimum pass mark requirements for the 2 theory papers and the thesis and Viva but did not secure the aggregate minimum can reappear for any paper of their choice viz., (External Jury) Thesis and Viva group or Transportation Planning or Structural Systems and Design of Building. Based on Ext.P1 communication, the petitioner appeared for the paper of Structural Systems and Design of Building in the examination conducted by the University during the month of July, 2006. It is stated that the aggregate marks obtained by her in all three papers would exceed 50%. 5. It is stated by the petitioner in paragraph No.3 of the Writ Petition that the result of the petitioner was declared as 'Passed' by the respondent-University. This averment is denied by the respondent. No material is placed before me to show that the result of the petitioner was declared as 'Passed'. It is stated that though the petitioner applied for degree certificate during the month of December, 2006, it was not issued. According to the petitioner, she made several representations to the University . At last, she received Ext. P3 memo dated 31.05.2008 stating that the petitioner has to re- appear for the failed subject (Thesis and Viva Voce) paper. The relevant portion of the memo reads as follows: “As per the decision of the Academic Council held on W.P(C) No. 17170 OF 2008 3 20.05.2008, Smt. Romy Maria Jacob is directed to reappear for the failed subject (Thesis & Viva Voce) of the fifth year B.Arch. Degree Course to secure the required aggregate minimum for a pass. She has to appear for a supplementary external jury evaluation for Thesis & Viva Voce in June 2008 as this is the last chance she can avail under the 1998 Scheme. She is also directed to contact the tabulation Section (EE IIa) for further details regarding examination.” 6. The contention of the petitioner is that she is entitled to be declared as having been duly passed in B.Arch Degree Course conducted by the University. The petitioner prays for a writ of mandamus directing the University to issue the Degree Certificate in respect of B.Arch Degree Course and to declare that the petitioner has successfully completed the 5th Semester of B.Arch Degree Course on the basis of her pass in the Examination. 7. The University has filed a counter affidavit. The contention put forward by the University is that Clause (b) of Regulation 8 applies since the petitioner has not passed as per the stipulation in Clause (a) of Regulation 8. Therefore, the University took the view that the petitioner has to appear for the paper -Thesis and Viva Voce afresh. Though she had appeared for the paper 'Structural Systems and Design of Building' , as permitted under Ext.P1 communication, it cannot be said that she has passed in the examination as she has not satisfied the condition in Regulation 8. 8. As regards Ext.P1 communication, on the basis of which the petitioner was mis-led and on the basis of which she appeared for the paper-Structural Systems and Design of Building', it is stated in the counter affidavit thus: “9. Based on the letter No.Ac.A.III/3/05 dtd. 07.12.2005 W.P(C) No. 17170 OF 2008 4 addressed to the Principal, T.K.M. College of Engineering, Kollam as a clarification on the request of another candidate Smt. Leny Vijayan, the petitioner, after appearing for the Examination in July 2006, gave a request to the University (dtd. 19.02.2007) to consider her case at par with that of Smt. Leny Vijayan. A copy of petitioner's request dated 19.02.2007 is produced herewith and marked as Exhibit -R1(a). Petitioner was not declared passed as alleged in para 3 of the writ petition and nowhere in the Regulations it is stated that candidates not securing overall of 50% in an individual subject be declared passed and no such precedence exist. 10. Clarification from the Chairman, Board of Studies in Engineering (Pass I) and the present Dean, Faculty of Engineering and Technology was obtained in this regard. Both of them remarked that the candidate had failed for the subject 'Thesis and Viva-Voce' and since the University had permitted the student to improve the subject of her choice, the same may be ratified. The Vice-Chancellor, subject to ratification by the Academic Council approved the same and Ext. P2 U.O. in this regard (U.O. No. Ac.A.III/3/2007 dtd. 18.5.2007) was issued. As per Ext. P2 the Vice Chancellor has only ratified the examination taken by Smt. Romy Maria Jacob for the paper 'Structural System & Design of Buildings' of the Fifth Year B.Arch Degree Course in July 2006 which she had already passed. When the matter was placed before the Academic council at its meeting held on 07.11.2007, the Academic Council resolved that the whole issue be re-examined by the Board of Studies in Engineering and Faculty of Engineering and Technology and brought to the next meeting of the Academic council. 11. As resolved by the Academic Council at its meeting held on 07.11.2007, the whole issue was placed before the Annual Combined Meeting of the Board of Studies in W.P(C) No. 17170 OF 2008 5 Engineering (Pass I,II & III) held on 15.4.2008 and the Faculty of Engineering and Technology held on 09.5.2008. The Academic Council at its meeting held on 20.5.2008 resolved that Smt. Romy Maria Jacob, student of B.Arch. Degree Examination (2000-2005) 1998 Scheme of TKM College of Engineering, Kollam has to re-appear for the failed subject (Thesis and Viva- Voce) as per the Regulations to the B.Arch. Degree course. The Board of Studies unanimously recommended to the higher authorities/bodies to ascertain the circumstances under which a letter has been sent to the Principal, TKM College of Engineering, Kollam violating the provisions of the Regulations and action may be taken to withdraw the letter immediately. Accordingly, the Memo dated 31.5.2008 was issued to the petitioner as part of the action taken in this case.” 11. A reply affidavit is filed by the petitioner . Along with the reply affidavit, she has produced Ext. P5 mark-list of the 5th year B.Arch Degree course conducted in May, 2005. The petitioner has also produced Ext. P6 mark-list in respect of the examination conducted in July, 2006. Ext. P5 mark-list shows that for 'Thesis and Viva-Voce', a total of 500 marks is provided consisting of two categories, viz., Internal Jury-250 marks and External Jury -250 marks. Below 'Thesis and Viva-Voce' paper, details of other papers are shown in respect of which separate columns are provided for 'Written' and 'Sessional' marks. Learned counsel for the petitioner points out that Clause (b) of Regulation 8 applies only in cases where 'Written' and 'Sessional' marks are available and since the paper ' Thesis and Viva-Voce' being one for which there is no 'Written' or 'Sessional' marks separately, there cannot be any direction as is now issued by the University to re-appear for the paper 'Thesis and Viva-Voce', which is quite contrary to the stand taken in Ext. P1 communication. W.P(C) No. 17170 OF 2008 6 12. To my mind, Regulation 8 is as vague as possible. If one reads Clause (a) it is clear that the candidate has to secure 40% marks in each paper and has to get an overall aggregate of 50% marks for the year. Clause (b) provides that a candidate shall be declared to have passed in an individual subject of a year, if he/she secures not less than 40% marks for the subject in the University Examination and not less than 50% of the total marks for the subject, i.e, University examination marks and Sessional marks in that subject put together. If there is no University Examination marks and Sessional marks for a subject, evidently Clause (b) cannot have any application. Then a question would arise -whether a candidate who has not secured 50% marks in the aggregate as provided in Clause (a) of Regulation 8, for which paper the candidate has to appear, viz., for the paper of his /her choice or for the paper in which he/she did not get 50% marks. That was the reason why Ext. P1 communication was issued giving option to the petitioner and similarly situated persons to appear in any of the three papers. Complying with the directions contained in Ext. P1 communication, the petitioner appeared for the examination and she secured the required minimum marks of 50% in aggregate and also more than 50% in the paper for which she appeared. Thus it must be taken that she has passed in the examination. Ext. P1 communication makes it clear that there was confusion in the matter of interpretation of Regulation 8. The University is not expected to spoil the future of the students who appeared for the examinations. Let the confusion be cleared by appropriate amendment of the Regulation. But the future of the students should not be put in peril because of such confusion. There is no confusion if clause (a) alone is taken. Probably because of such vague provision like Regulation 8, clarification was issued as per Ext. P1 communication. The petitioner having complied with the W.P(C) No. 17170 OF 2008 7 directions in Ext. P1, there is no justification for the University to tell the petitioner after several years to re-appear for another examination again. The stand taken by the University is not just and reasonable. I am of the view that the petitioner is entitled to the reliefs prayed for in the Writ Petition. The Writ Petition is allowed. The respondent, University shall issue to the petitioner the Degree Certificate in respect of the B.Arch Degree Course forthwith. K.T. SANKARAN, JUDGE. lk