IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 14925 of 2009(I) ------------------------------------- PETITIONER(S): ------------------------ 1. HASHIM.M., ARIPADATHU REHMATH MANZIL, VAVVAKAVU P.O., KARUNAGAPPALY, KOLLAM. 2. JOMY MATHEW, PARUTHIYIL HOUSE, KOTHANALLOOR P.O., KOTTAYAM. 3. AMSHAVANI.R., LETCHMI ESTATE, SOUTH DIVISION, MUNNAR P.O., IDUKKI. 4. AKILA P.O., PLACKAL HOUSE, KARINILAM P.O., MUNDAKKAYAM, KOTTAYAM. 5. SHOBA.D., VAGUVARRAI ESTATE, FACTORY DIVISION, THALAYIL P.O., MUNNAR, IDUKKI DIST. 6. NIMISHA.C.M., CHALIKANDY HOUSE, KARAYAMUTTAM P.O., THRISSUR DIST. 7. RESHMA.K., MOHANA SADHANAM HOUSE, IRITTY P.O., KANNUR DIST. 8. NEETHU V.K., VIJALAYAM HOUSE, KOTHAVARA P.O., VAIKOM, KOTTAYAM DIST. BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K. MR.JOBI.A.THAMPI W.P.(C) NO.14925/2009 RESPONDENT(S): ------------------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, ATHIRAMPUZHA, KOTTAYAM DIST. 2. VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, ATHIRAMPUZHA, KOTTAYAM DIST. 3. PRINCIPAL, DEPARTMENT OF PHARMACEUTICAL SCIENCES, CHERUVANDUR, ETTUMANOOR, KOTTAYAM DIST. BY ADV. MR.T.A.SHAJI, SC , MAHATMA GANDHI UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.14925 of 2009 -------------------------- Dated this the 17th June,2009 J U D G M E N T Petitioners claim to be 4th year B.Pharm students in the Department of Pharmaceutical Sciences, Cheruvandur, which is run by the School of Medical Education under the Mahatma Gandhi University. They were admitted to the B.Pharm course in the year September 2005. The course has four year duration. During the 1st year B.Pharm examination students have to appear in 7 theory papers and 6 practicals. Petitioners did not clear all the papers in the 1st year. Therefore, though they were promoted to the 2nd year they were not allowed to appear for the 2nd year examination. They approached this Court in WPC No.34136/2007 and other connected cases. This Court had passed an interim order enabling them to continue their studies and therefore they continued their studies for the 2nd and 3rd year B.Pharm course. In the meanwhile, petitioners completed their 3rd W.P ( C) No.14925 of 2009 2 year B.Pharm course in February 2008 and they started commencement of the 4th year B.Pharm in February 2009. This Court took note of the fact that petitioners had continued their studies on the basis of the interim order. But final results have not been declared so far. This Court construed the regulations framed by the University and found that students have registered for examination and they were eligible to continue their studies. Accordingly the University was directed to examine whether the petitioners in those writ petitions have registered for the examination and if so, their continuance in the course will be treated as regular and results were to be published. Obviously the direction issued by this Court was relatable to the prosecution of the 2nd and 3rd year B.Pharm course. As the petitioners who had approached this Court in the year 2007 when they were prosecuting the 2nd year B.Pharm course were allowed to prosecute the 3rd year course during the pendency of the writ petition, registration of these students, for the examination, as referred to by this Court, was relatable to the registration W.P ( C) No.14925 of 2009 3 for the examination for the 2nd year 2. As stated above, the petitioners started prosecution of the 4th year B.Pharm course in February 2009 and they had remitted the fees for the 4th year (7th and 8th semester) except in relation to those petitioners belonging to SC/ST community. The course will be completed, according to them, in another five months. 3. Reference is being made in the writ petition to the new promotion procedure brought into force as per Exhibit-P3. Exhibit-P3 laid down the procedure by which the students who got registration for the University Examination and appeared in the 1st year examination was eligible to attend the 2nd year classes. A student has to be permitted to attend the 3rd year classes only after passing the 1st year papers completely and student is permitted to attend the 4th year classes only after passing the 2nd year papers completely. This procedure was brought into force as per the orders of the Vice Chancellor subject to ratification. Apparently Exhibit-P3 was challenged in several writ petitions before this Court. By Exhibit-P6 W.P ( C) No.14925 of 2009 4 judgment, this Court held that there was no circumstance justifying the exercise of the extra ordinary powers of the Vice Chancellor bringing about the revised promotion procedure and he should have waited for the issue to be decided by the Academic Council. Exhibit-P3 was therefore set aside by this Court. 4. Petitioners contend that they are now prosecuting the 4th year course. But the University is preventing them from doing so. Therefore they have approached this Court praying for the following reliefs. (i) to issue an appropriate writ, order or direction commanding the respondents to allow the petitioners to attend the classes of the 4th year B.Pharm course which they are attending from February 2009 onwards and allow them to complete the course. (ii) to declare that the petitioners are eligible and entitled to continue their course of study and complete the course in B.Pharm, under the 3rd respondent as they have already appeared for the 3rd year B.Pharm examination held in January 2009 onwards” 5. Learned standing counsel for the University, on instructions, submits that Exhibit-P3 was set aside by this Court in Exhibit-P6, essentially on the ground that the usual procedure for amendment of the regulations have not W.P ( C) No.14925 of 2009 5 been followed in the said course. But the Vice Chancellor has proceeded to exercise his powers under Section 10 (17) of the M.G University Act which normally is to be exercised only when there is an emergency. But he points out that even if Exhibit-P3 is set aside, it does not mean that the petitioners are otherwise eligible to prosecute the 4th year B.Pharm course unless they have passed the 2nd year B.Pharm exams in its entirety. It is contended that B.Pharm students will be entitled to prosecute the 4th year course only after passing the 2nd year subjects completely. He will be entitled to prosecute the 3rd year course only after passing the 1st year examination completely. Reference is made in this regard to the Regulations, Scheme of examination and Syllabus of the 4th year B.Pharm course. Clause VIII of the promotion procedure which is prevalent even now, provides 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 first year subjects (two theory and two practicals) W.P ( C) No.14925 of 2009 6 to the second year, but shall pass the first year failed subjects before promotion to 3rd year. c. The candidate is permitted to carry over 4 second year subjects (two theory and two practicals) to 3rd year. 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 year. But the result will be declared only after passing all the 3rd year subjects.” 6. Learned standing counsel for the University refers to Clause c of Promotion Procedure which states that a candidate will be permitted to carry over 4 second year subjects to the 3rd year but he shall pass the 2nd year subjects before promotion to the 4th year. Candidate also will be permitted to carry over 4 subjects of 3rd year to the final year. But the results will be declared only after passing all the 3rd year subjects. 7. Learned counsel for the petitioner submits that the revised procedure laid down by Exhibit-P3,is similar to the procedure now put forth by the standing counsel for the University and since Exhibit-P3 has been struck down by this Court though for the reason that the Vice W.P ( C) No.14925 of 2009 7 Chancellor had exercised his emergency powers, the resultant situation is that what prevails now is only Exhibit- P4. Learned counsel contends that therefore the moment a person registers for a university examination of a class, he will be eligible for promotion to the next higher class. But he will be eligible to appear for the examination of the higher class only after passing in all subjects in the lower class. It is contended since the petitioners had registered for the 3rd year examination they should be treated as eligible for promotion to the 4th year and this should not be dependent upon whether they had passed all the examinations in the 3rd year. The only restriction, according to them, is that these petitioners will be eligible to appear in the 4th year examination only after passing all the subjects in the 3rd year. 8. I am unable to accept the submission. In fact, Exhibit P4 operates in a different field. Even if the benefit of Exhibit-P4 in its entirety is given to the petitioners, it will only mean that as and when a person prosecuting the B.Pharm course registers for the examination of a W.P ( C) No.14925 of 2009 8 particular year he will be eligible for promotion to the next higher class. This is to avoid course lagging due to delay in result publication as expressly stated in Exhibit-P4. It does not mean that the promotion procedure laid down by Clause VIII of the Regulation extracted above is completely given a go by on account of what is mentioned in Exhibit-P4. I think what is contemplated by Exhibit-P4 is that a person prosecuting the third year and who has registered in the examination for the third year should not by reason of the delay in the conduct of the examination of the third year be prevented from prosecuting his course in the 4th year. That will be to cast a burden on the student for the default on the part of the University in conducting the third year examination in time. But the promotion procedure mentioned under clause VIII referred to by the learned standing counsel for the University operates in a different way. It actually enables the candidate to carry over four subjects in the third year to the final year and therefore if in the prosecution of the 4th year course, the results for the third year are declared and it is found that W.P ( C) No.14925 of 2009 9 he had not passed all the papers in the third year, he shall not be prevented from prosecuting his final year provided the deficit in the third year is confined only to two theory and two practical papers. He will be entitled to complete the course in the 4th year and participate in the 4th year examination provided he passes all the subjects in the lower class (this is the effect of Exhibit-P4). But this is not to say that Exhibit-P4 enables a person to prosecute 4th year course even before completing the 2nd year completely that is to say after passing all the 2nd year papers. I cannot read Exhibit-P4 in such a manner as to permit a student who has not cleared all second year papers to prosecute the 4th year course. 9. In my view, that would be doing violence not only to the regulations, relied on by the learned standing counsel for the University but it is also completely beyond the scope of Exhibit-P4. All that Exhibit-P4 enables is to permit a student to prosecute the 4th year ( the 3rd or 2nd year as the case may be) without being burdened by the delay in the conduct of the examination for the lower class. W.P ( C) No.14925 of 2009 10 Lower class in relation to the 4th year would be the 3rd year. Therefore, delay in the conduct of the examination for the 3rd year should not stand in the way of the petitioners prosecuting the 4th year course. That is completely different from saying that petitioners need not pass their 2nd year examination for prosecuting their 4th year course. I do not think any such inference can be drawn from a literal reading of Exhibit-P4. 10. In spite of the above, learned counsel for the petitioner submits that the petitioners had got only one chance to clear their papers in the 2nd year and they did not get an opportunity to give a supplementary examination for the 2nd year and that a supplementary examination for the 2nd year will be conducted within a shortwhile. It is submitted that the petitioners will take the next supplementary examination for the 2nd year and if they are able to clear the said supplementary examination for the 2nd year then the prosecution of the 4th year course by them is eligible to be treated as regular. I find force in the submission. W.P ( C) No.14925 of 2009 11 11. Normally a person gets at least one chance apart from the regular examination held on an annual basis to clear any papers which he has not been able to clear in the regular course. Thus a student prosecuting the 3rd year course and who has not been successful in clearing all the subjects in the 2nd year, will get a chance to appear for the supplementary examination for the 2nd year papers before he takes the third year examination. If such an opportunity has been denied to the petitioner then it must be given to them. In the circumstances, the writ petition is disposed of with the following directions. i) Petitioners shall be permitted to appear for the supplementary examination for the 2nd year B.Pharm course to be held next provided they have not participated in any supplementary examination for the 2nd year so far. ii) If they clear all the subjects in the 2nd year B.Pharm course, after results are announced in the said supplementary examination, then their prosecution of the 4th year B.Pharm course, shall be treated as regular. W.P ( C) No.14925 of 2009 12 iii) If they fail to clear all the 2nd year papers, in spite of the chance given to them as above, then they will be bound to repeat the 4th year course after they clear all the 2nd year papers iv) Petitioners shall be permitted to continue their 4th year B.Pharm course, till they participate in the 2nd year supplementary examination as permitted above and the results thereof are published. Further eligibility to prosecute the 4th year course shall be regulated in the manner already mentioned above. v) If they fail to clear the 2nd year B.Pharm course in its entirety, in spite of their chance to appear in the supplementary examination, then their prosecution of the 4th year course on the strength of this order will be treated as cancelled. They will be bound to repeat the 4th year afresh after clearing all the papers in the 2nd year B.Pharm course. (V.GIRI,JUDGE) ma W.P ( C) No.14925 of 2009 13 W.P ( C) No.14925 of 2009 14 W.P ( C) No.14925 of 2009 15 W.P ( C) No.14925 of 2009 16 (V.GIRI,JUDGE) ma W.P ( C) No.14925 of 2009 17 W.P ( C) No.14925 of 2009 18