Sijin M. Tharakan vs Mahatma Gandhi University

,,,,

Shaji P. Chaly, J.",,,,

The captioned writ appeal and the writ petitions are substantially and materially connected, and therefore we have heard them together and propose",,,,

to pass this common judgment.,,,,

W. A. No. 693 of 2021 is filed by the respondents in W. P. (C) No. 4432 of 2021 challenging the judgment dated 30.03.2021, whereby the learned",,,,

Single Judge allowed the writ petition and held that respondent/writ petitioner is entitled to be granted the benefits of moderation under the head,,,,

“syndicate moderationâ€​.,,,,

Therefore, it was also held that Ext. P12 order dated 17.05.2019 issued by the Mahatma Gandhi University for granting moderation of 5 marks to",,,,

the B. Tech students, if they have only one paper remaining for pass, would apply to the petitioner, and thereupon directed the Registrar of the",,,,

University to take up Ext. P13 representation of the petitioner, and dispose it of, based on the observations contained in the judgment, as expeditiously",,,,

as possible, but not later than two weeks from the date of receipt of a copy of the judgment.",,,,

The brief material facts for the disposal of the writ appeal are as follows:-,,,,

The writ petitioner is an Engineering student, who completed the B. Tech course from Adi Shankara Institute of Engineering and Technology,",,,,

affiliated to the Mahatma Gandhi University. According to the writ petitioner, he is aggrieved by the arbitrary action of the University, causing",,,,

inordinate delay in conducting examinations and publication of results of the examinations, thereby affecting the career options and opportunities for",,,,

applications to Universities, both in the country and abroad, for higher education.",,,,

It is further submitted that after the establishment of the APJ Abdul Kalam Technological University in 2014, most of the Engineering courses",,,,

within the State of Kerala were transferred to the new Technological University, subject to the condition that the responsibility to conduct",,,,

examinations and publication of results of the students, those who were already admitted to any affiliated colleges, will remain with the Mahatma",,,,

Gandhi University.,,,,

In the year 2018, the last batch of Engineering students affiliated to the Mahatma Gandhi University completed their classes.",,,,

On 07.12.2018, Mahatma Gandhi University published a notification inviting applications from students who wish to write supplementary",,,,

examinations. As per the examination schedule, the last exam was conducted on 11.04.2019 and the results were published on 02.07.2019. The",,,,

revaluation results of the above said exams were published on 27.10.2020, with more than one year delay. Similarly, the results of examinations",,,,

completed on 13.07.2019 were published only in the month of January 2020.,,,,

The writ petitioner submitted an application for revaluation of the result on 20.01.2020, and even though there is a clear stipulation under the",,,,

relevant First Ordinances published that the revaluation result should be published within 60 days from the last date of application, the petitioner's",,,,

revaluation result is still awaited.,,,,

In the meanwhile, Mahatma Gandhi University notified the supplementary examination for 2021 on 06.02.2021, before the revaluation result is",,,,

published. As a result of the inordinate delay in conducting the examinations and publication of results, the writ petitioner and several other students",,,,

were unable to decide whether they must apply for the next round of supplementary examinations or not.,,,,

Be that as it may, according to the writ petitioner, the Controller of Examinations- the 4th appellant, pursuant to the decision of the Syndicate of the",,,,

Mahatma Gandhi University- the 3rd appellant, on 17.05.2019, came out with a notification stating that if any student pursuing B. Tech course under it",,,,

has to pass only one paper to clear the course, he/she would be given five marks of syndicate moderation, over and above the ten marks of",,,,

moderation awarded that year to all students, evident from Ext. P12.",,,,

It is the case of the writ petitioner that he was eligible for the syndicate moderation since he had just one back paper, and would have passed if",,,,

five marks were granted to him, and seeking the said benefit, writ petitioner has given Ext. P13 request dated 12.02.2021; however the 3rd appellant",,,,

on 24.10.2019, decided to withdraw Ext. P12 order for granting syndicate moderation, which is produced as Ext. P14 dated 26.10.2019.",,,,

Accordingly the 2nd appellant namely the Registrar, Mahatma Gandhi University, as per Ext. P15 order dated 27.11.2019, recalled the mark",,,,

sheets and degree certificates granted to students, who had passed the course, as a result of the syndicate moderation.",,,,

The beneficiaries of moderation as per Ext. P12 have challenged Exts. P14 and P15 before this Court by filing two writ petitions, and as per Ext.",,,,

P16 judgment dated 02.12.2020 in W. P. (C) No. 32960 of 2019 and a connected case, Exts. P14 and P15 were set aside.",,,,

Thereafter, on 02.02.2021, the Controller of Examinations issued a letter clarifying Ext. P12 order granting syndicate moderation over and above",,,,

the regular moderation, which according to the writ petitioner, reinstates Ext. P14 order, which was expressly set aside by this Court in Ext. P16",,,,

judgment, a copy of which is produced as Ext. P17 dated 02.02.2021.",,,,

Therefore, according to the writ petitioner, Ext. P17 is highly arbitrary and illegal, which was liable to be interfered with. It was in the above said",,,,

background facts, the learned Single Judge allowed the writ petition partly, and directed the 2nd respondent, i.e. the Registrar of the University, to take",,,,

up Ext. P13 representation submitted by the writ petitioner, and do the necessary, within the time period, taking into account the observations made by",,,,

the learned Single Judge.,,,,

It is thus challenging the legality and correctness of the judgment, the writ appeal is preferred.",,,,

The paramount contention advanced by the University and its officials are that the learned Single Judge failed to note that as per Chapter VIII,,,,

clause 8.8 of the examination manual of the Mahatma Gandhi University, moderation mark is not a matter of right; the Board of Examiners appointed",,,,

for the conduct of the University examinations may recommend award of moderation marks, if found necessary to candidates, for any one or more of",,,,

the reasons given therein; granting moderation marks for a particular examination is solely the discretion of the University and the writ petitioner,,,,

cannot demand the same as a matter of right; for B. Tech supplementary examinations, University is granting moderation marks as per the guidelines",,,,

in the examination manual of the University and the writ petitioner cannot rely solely on the moderation marks for getting pass marks in examinations;,,,,

that while directing the University to reconsider the petitioner's representation, learned Single Judge failed to see that petitioner is not similarly situated",,,,

as that of the students who have secured Ext. P16 judgment specified above; that the result of the petitioner was not published with the additional,,,,

moderation marks sanctioned by the Syndicate; that neither mark list nor degree certificate were issued to the petitioner to make him to be in the same,,,,

footing as those B. Tech students who approached this Court challenging the recalling of mark lists and degree certificates issued to them,",,,,

incorporating the additional moderation granted by the Syndicate as per Ext. P12 order dated 17.05.2019, and; that the petitioner had a backlog of five",,,,

papers to clear as on 17.05.2019, and hence not eligible to avail the benefit of the said moderation.",,,,

Subject,External,Internal,Total,Pass/Fail

Engineering,25,30,59,Fail

Mathematics IV,,,,

Assistant Registrar 3 (Exams),,,,

Ext. P17 order issued by the University dated 02.02.2021, fixing the cut off date of 17.05.2019, reads thus:-",,,,

“Mahatma Gandhi University, Kerala",,,,

Abstract,,,,

B. Tech Examination â€" Setting aside the order cancelling,,,,

syndicate moderation â€" complying the Judgement - Regarding,,,,

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Examination wing I-1 Section,,,,

No. 706/El 1/2021MGU 2021 Priyadarsini Hills dated 02-02-,,,,

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Reference (1) University Order bearing No. 2085/El 1/2019 MGU dated 17-05-2019.,,,,

(2) University order bearing No. 5207/El 1/2019 MGU dated 26-10-2019,,,,

(3) Judgment of the Hon'ble High Court of Kerala in W.P.(c) 32960/2019, W.P.(c) 35551/2019 dated 02-12-2020.",,,,

(4) Minutes of the Syndicate Sub Committee (Examinations) meeting held on 18-01-2021.,,,,

Order,,,,

It has been ordered to grant 5 marks as syndicate moderation in addition to existing moderation to those students who had only one paper to be cleared,,,,

in any of the semesters in B.Tech examination vide reference 1 above. vide reference 2 the aforesaid decision was withdrawn and it was decided to,,,,

cancel the order dated 17-05-2019.,,,,

The Hon'ble High Court of Kerala vide reference 3 judgment had set aside reference 2 order. The Syndicate Sub Committee (Examinations) meeting,,,,

held on 18-01-2021 resolved to accept the judgment and thereby restored reference 1 order and had recommended to clarify the terms mentioned,,,,

therein in the following manner.,,,,

The University Order bearing No. 2085/El 1/2019 MGU dated 17-05-2019 would be binding only to those B.Tech examinations wherein the results,,,,

are published before 17-05-2019.,,,,

The University Order bearing No. 2085/EI 1/2019 MGU dated 17-05-2019 will be not applicable to those students who had failed in any one paper,,,,

in shortage of 5 marks in the period prior to 17-05-2019, and those who had passed in supplementary examination before 17-05-2019 would not be",,,,

covered by the Order bearing No. 2085/EI 1/2019 MGU dated 17-05-2019.,,,,

In the case of students who had surrendered their degree certificate as per University order bearing No. 5207/El 1/2019 MGU dated 26-10-2019,,,,

and who had passed the examination through revaluation / supplementary examination and if they demand to issue certificates with reference to the,,,,

date of initial issuance of certificate, permission is accorded to issue consolidated mark list, Provisional certificate / Degree certificate granting",,,,

moderation on the basis of the University order dated 17-05-2019 by cancelling consolidated mark list, Provisional certificate / Degree certificate",,,,

already issued.,,,,

4 Since the University Order bearing No. 2085/EI 1/2019 MGU dated 17-05-2019 is restored on the basis of the Judgment of the Hon'ble High Court,,,,

of Kerala, the University order No. 6012/El 1/2019MGU dated 27-11-2019 cancelling the results of those students who had passed the B.Tech",,,,

examination with syndicate moderation is to be nullified.,,,,

By virtue of powers conferred upon the Hon'ble Vice Chancellor under Section 0(1) of Chapter 3 of Mahatma Gandhi University Act, 1985, the above",,,,

recommendations were approved.,,,,

Accordingly orders issued,,,,

Bindhu N. B.,,,,

Assistant Registrar (Examination),,,,

For Controller of Examinations.â€​,,,,

The University has come out with Ext. P12 order to grant syndicate moderation with the intention of ensuring that the B. Tech students, who were",,,,

attached to the Mahatma Gandhi University, are granted an opportunity to secure moderation and pass the examination if there is only one paper",,,,

remaining to be cleared.,,,,

Admittedly, syndicate moderation was given to various students and later the said order was withdrawn, which was under challenge before this",,,,

Court and the students secured Ext.P16 judgment, whereby the order issued withdrawing syndicate moderation was quashed.",,,,

It is clear that the beneficiaries of Ext. P16 judgment, irrespective of the cut off date of 17.05.2019, had secured the benefits of syndicate",,,,

moderation, even if they had more papers than one to be cleared. It is also clear from the documents produced by the respondent/writ petitioner in the",,,,

above writ appeal that the moderation was given to the students who had more than one paper on the cut off date of 17.05.2019.,,,,

Therefore, the contention advanced by the University that the moderation was given to the students, who had only one paper on the cut off date of",,,,

17.05.2019, cannot be sustained.",,,,

The learned Single Judge also found that in Ext. P12 order dated 17.05.2019, there was no cut off date fixed, but the sole requirement to secure",,,,

the benefit of the said order was that the said order would be available only to students who had only one paper to clear.,,,,

Therefore, it was held that Ext. P12 order is intended to apply generally, as is clear from its tenor, and therefore could not have been confined to a",,,,

class of students, which would certainly become discriminatory since difference students of the same course would come to be granted different",,,,

benefits through moderation under the head 'syndicate moderation'.,,,,

The contention advanced by the learned Standing Counsel for the Mahatma Gandhi University is that no benefit was extended to any students who,,,,

had more than one paper on the cut off date of 17.05.2019; however, we find that there is no rationale or reason for fixing such a cut off date. This is",,,,

basically for the reason that the University has awarded the syndicate moderation to various students on the basis of Ext.P12 order, irrespective of",,,,

any cut off date, and irrespective of any number of papers that were remaining to be cleared.",,,,

Even though on the basis of certain controversy, the University has withdrawn such orders, it was interfered with by this Court as per Ext. P16",,,,

judgment, and all the said students got the benefit of Ext. P12 order, irrespective of the number of papers remaining to be cleared.",,,,

Taking into account the said aspect, even though we are conscious of the fact that no student can claim a moderation as of right, since many",,,,

students have secured the benefit of syndicate moderation on the basis of Ext. P16 judgment and on the basis of the results published by the,,,,

University evident from Annexure R1(B) to Annexure R1(G) produced by the writ petitioner along with the statement filed in the captioned appeal,",,,,

we do not think that the University has made out any case to interfere with the judgment of the learned Single Judge.,,,,

Resultantly, the writ petitioners in the other two writ petitions captioned are also entitled to get the benefit of the judgment of the learned Single",,,,

Judge, since they are also students similarly situated as that of the respondent/writ petitioner in W. A. No. 693 of 2021.",,,,

In that view of the matter, the writ appeal is dismissed. The captioned writ petitions are allowed and the competent authority of the Mahatma",,,,

Gandhi University is directed to consider the case of the writ petitioners, in accordance with the directions of the learned Single Judge in W. P. (C)",,,,

No. 4432 of 2021, at the earliest and at any rate, within two weeks from the date of receipt of a copy of this judgment. However, we make it clear",,,,

that since W.A. No. 313 of 2021 filed challenging the revaluation result of the petitioner in W.P. © No. 7925 of 2021 is pending consideration before,,,,

this Court, all such questions raised in the said writ petition would remain open.",,,,