IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17306 of 2007(I)
1. JOBY JOHN, S/O.P.C.JOHN, AGED 20 YEARS,
... Petitioner
Vs
1. UNIVERSITY OF KERALA, REPRESENTED
... Respondent
2. VICE CHANCELLOR, UNIVERSITY OF KERALA,
3. CONTROLLER OF EXAMINATION,
4. THE PRINCIPAL MUSLIM ASSOCIATION -
5. SYNDICATE, UNIVERSITY OF KERALA,
For Petitioner :SRI.SHAJI P.CHALY
For Respondent :SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/12/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOs. 17306 & 30342 OF 2007
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Dated this the 19th day of December, 2008
J U D G M E N T
Petitioner had joined for B.Tech Course in the Travancore
Engineering College, Oyoor, Kollam District. Due to ailments, petitioner
could not attend classes regularly and subsequently, while the petitioner
was in the Vth Semester, he applied for transfer to the 4th respondent and
joined that College.
2. However, for the reason that the petitioner was short of
attendance, the University did not issue hall ticket for the Vth Semester
Examination and at that stage, the petitioner filed Writ petition before this
court as WP(C) No.32199/06. The writ petition was disposed of by
judgment dated 5th December, 2006 with the following directions.
” Writ petition is disposed of directing the 3rd respondent to issue
hall ticket and permit the petitioner provisionally to write the Vth
Semester Examinations subject to the decision to be taken by the
Syndicate on the petitioner’s application for condonation of
shortage of attendance. 3rd respondent will place the application
of the petitioner before the Syndicate for their decision in their
next meeting” .
It is stated that in pursuance to Ext.P1 judgment, petitioner was permitted
to appear for the Vth Semester examination, but however, as a decision on
the request of the petitioner for condonation of the shortage of his
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attendance was not taken, his result was withheld.
3. In the meantime, petitioner completed his VIth Semester
course. When he made application for appearing in the VIth Semester
examination, that was declined to be accepted, for the reason that his Vth
Semester result was withheld. It is thereupon that the petitioner filed WP(C)
No.17306/07. At the admission stage, this Court passed order dated 6/6/07
permitting the petitioner to provisionally write the VIth Semester
Examination subject to further orders from this Court. Accordingly,
petitioner appeared for the examination and this result was also withheld.
4. Along with the counter affidavit filed by the University, they
have produced as Ext.R1(a), communication dated 28/5/2007, which reads
as under.
As per the reference cited 1st above, the Examination committee at its
meeting held on 10/4/2007 considered the matter and resolved that the
condonation of shortage of attendance be not granted to Sri.Joby John,
B.Tech Student(S) since he has attended only 28 working days during the 5th
semester. It was also recommended that the candidate be directed to repeat
the 5th semester. As per reference cited 2nd, the Syndicate has ratified the
above decision of the Standing committee.
5. According to counsel for the University, based on Ext.R1(a), Vth
Semester examination undertaken by the petitioner has also been cancelled.
When the University produced Ext.R1(a) referred to above, producing the
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same as Ext.P1 and seeking to get it quashed, the petitioner has filed WP(C)
No.30342/07. The contention that is raised by the counsel for the petitioner
in relation to the validity of Ext.P5, which has been referred to as Ext.R1(a),
in the counter affidavit filed by the University, is that the same reflects the
decision of the Standing Committee of the examination and not that of the
Syndicate.
6. On the other hand, it is contended by the counsel for the
University that the Syndicate had delegated its power to the standing
committee and therefore the decision taken by the Standing Committee is
perfectly justified.
7. In the judgment in WP(C) NO.32199/06, this Court had
specifically directed that the decision on the petitioner’s application for
condonation of shortage of his attendance should be taken by the Syndicate
itself. Admittedly, the decision has not been taken by the Syndicate, but by
one of its standing committees.
8. Section 23(xix) of the Kerala University Act confers power on the
Syndicate to delegate any of its powers to the Vice Chancellor or to a
Committee appointed from among its members. Though this Section
provides for even total delegation of the powers of the Syndicate, this power
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of delegation is controlled by the provisions contained in the Kerala
University First Statutes, 1977.
9. The statute that is relevant are those contained in Chapter 6 of
the Statute and Statute 3 (Clause xxviii) provides that the Syndicate has the
power to refer any matter to a Faculty, a Board of Studies, a Board of
Examiners or the Academic Council, the Students’ Council or any Committee
or person, and to call for a report or opinion thereon. Therefore, though the
Syndicate has the power to delegate any of its powers, since such power of
delegation is controlled by the aforesaid provision in the University Statutes,
Syndicate can only refer the matter to committee, call for its report or its
opinion and decide the matter by itself. If that be the manner of exercise of
power by the Syndicate, the question is whether, Ext.P5 reflects a proper
exercise of power.
10. A reading of Ext.P5 in WP(C) No.30342/07 shows that the
Examination Committee had resolved that condonation of shortage of
attendance be not granted to the petitioner. Committee also recommended
that the candidate be directed to repeat the Vth Semester. The
communication proceeds to state that as item No.92 of the meeting of the
Syndicate held on 21/4/2007, “Syndicate has ratified the above decision of
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the Standing Committee”. Evidently, therefore the decision that is
communicated to the petitioner is the decision of the Standing committee,
which was only ratified by the Syndicate. Thus obviously, the Syndicate has
surrendered its power to the Standing committee which is clearly
impermissible.
11. For that reason, I quash Ext.P5, produced in WP(C)
No.30342/07 and direct that the application for condonation of shortage of
attendance made by the petitioner shall be considered by the Syndicate as
directed by this Court in the judgment in WP(C) No.32199/06. Necessarily,
therefore, depending upon the decision to be taken, the validity or otherwise
of the Vth and VIth Semester Examinations undertaken by the petitioner
shall be taken by the University. A decision as above shall be taken by the
Syndicate, as expeditiously as possible, at any rate within 6 weeks of receipt
of a copy of this judgment.
Writ petitions are disposed of as above.
ANTONY DOMINIC, JUDGE
Rp