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2014 DIGILAW 50 (KER)

Neema v. Commissioner Of Entrance Examination

2014-01-16

K ABRAHAM MATHEW, K.M.JOSEPH

body2014
JUDGMENT K.M. Joseph, J. 1. The appellant is the writ petitioner. The appellant, armed with a Bachelor's Degree in Computer Application (BCA for short) from the Bharathiyar University, Coimbatore, applied, pursuant to Ext.P5 prospects issued by the first respondent, for admission to the MCA course. After appearing for the examination, she was ranked 169. She was allotted for admission to the TCR Government Engineering College, Thrissur, vide Ext.P3 allotment memo. She deposited the amount as tuition fee as per Ext.P4 payment slip. When she contacted the 2nd respondent - the Principal, Government Engineering College, Cheroor, Thrissur, she was told that since the B.C.A. Degree is obtained under the school of Distance Education, Bharthiyuar University, she has to obtain certificate from the Calicut University or any other university in the State of Kerala recognizing the said course as equivalent to the B.C.A.Certificate issued by the Calicut University or other Universities in Kerala. It is when she was refused admission on this basis, that the appellant approached this court Seeking the following reliefs; "i). Declare that the degree issued by the Bharathiyar University under distance education programme is a qualified degree for admission to the course Master of Computer Application in the University of Calicut. ii). Issue a writ in the nature of mandamus commanding respondent to admit the petitioner to the course of Master of Computer Application in the 2nd respondent's college as allotted in Ext.P3 within such time as may be fixed by this Hon'ble Court." 2. The learned Single Judge did not find favour with the contention of the appellant and dismissed the writ petition. Feeling aggrieved, the appellant is before us. We heard the learned senior counsel for the appellant Sri.Ranjith Thampan, learned counsel for the respondent University, Sri. Santhosh Mathew and the learned Government Pleader Shri M.K.Aboobacker. 3. The learned senior counsel for the appellant drew our attention to Ext.P5 prospectus. He would emphasise the terms of the "note to clause 5 (b)" which provides for Academic Eligibility. Note to clause 5 (b) reads as follows; "5. Eligibility for Admission. (a) Nativity. Xxxxxxxxxxxxx (b). Academic Eligibility xxxxxxxxxxxxx xxxxxxxxxxxx Note: (1): Candidate seeking admission to the course should be qualified from any University in Kerala or any other Universities, recognised by any of the Universities in Kerala. (2). Note to clause 5 (b) reads as follows; "5. Eligibility for Admission. (a) Nativity. Xxxxxxxxxxxxx (b). Academic Eligibility xxxxxxxxxxxxx xxxxxxxxxxxx Note: (1): Candidate seeking admission to the course should be qualified from any University in Kerala or any other Universities, recognised by any of the Universities in Kerala. (2). Final Year regular Bachelor's Degree students are also permitted to appear for the Entrance Examination subject to the condition that the original degree certificate and mark lists of all parts of the qualifying examination shall be produced by the candidate at the time of admission". He would point out that under the said note what is required is that the candidate should be qualified from any University in Kerala or any other Universities recognized by any of the Universities in Kerala. He would submit that Bharathiyar University, from which the appellant took the BCA, is recognized by the University of Calicut. He would also emphasise that even final year regular bachelor's Degree students are permitted to appear for the Entrance Examination, as provided in the note which we have extracted above. He would submit that there is a specific averment to the effect that BCA obtained from Bharthiyar University is recognized by the University of Calicut. He would in fact point out that the requirement under the note is that the Bachelor's Degree must be obtained from the University which is recognized. He would submit that this is a case where the learned Single Judge distinguished the decisions, which were relied on by the appellant which were produced as Exts.P6 and P8, on the ground that they related to cases where the court was dealing with the impact of the concerned norms providing for an appointment based on the Degree. In the instant case, the court was concerned with the right of the University to prescribe the academic standards. The learned Single Judge, according to the learned senior counsel, erred in relying on the judgment of the Apex Court, which is reported in Guru Nanak Dev University v. Sanjay Kumar Katwal, (2009) 1 SCC 610 . That is a case which related to admission to the LLB degree Course and the requirement in academic qualifications provided that candidates, who have passed in Bachelor's degree of the University or any other equivalent qualification recognized as such by the University inter alia, would alone be qualified. That is a case which related to admission to the LLB degree Course and the requirement in academic qualifications provided that candidates, who have passed in Bachelor's degree of the University or any other equivalent qualification recognized as such by the University inter alia, would alone be qualified. In this context, he sought to distinguish the said judgment by pointing out that there is no requirement of any equivalent examination recognized by the University in the present case. The learned senior counsel also would point out that this is a case where, no doubt as pointed out by the learned Government Pleader on instructions, the seat to which the appellant was allotted has been filled up by admitting another student. He would submit that the appellant had approached this court prior to the last date fixed by the University i.e. 31/12/2013 and had the learned Single Judge decided the matter as he should have, the appellant would have secured the admission. The learned counsel cited before us the decisions reported in V.Alias v. Abaraham, 2004 (2) KLT 1044 and Ummekoya v. Lazar, 2004 (3) KLT 807 . In V.Alias' case (cited supra), the court inter alia held as follows; "10. The doctrine of actus curiae neminem gravabit is a maxim founded upon justice and good sense and affords a safe and certain guide for the administration of the law. Apex Court had occasion to consider the above maxim in Karnataka Rare Earth v. Senior Geologist Dept. of Mines & Geology. 2004 (2) SCC 783 . Apex Court placing reliance on the earlier decision of the Apex Court in South Eastern Coal Fields Ltd. v. State of M.P., 2003 (8) SCC 648 held as follows: " The doctrine of actus curiae neminem gravabit is not confined in its application only to such acts of the court which are erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the court to pass an order which at the end is held as not sustainable has resulted in one party gaining an advantage which it would not have otherwise earned or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost". The principle laid down by the Apex Court in South Eastern Coal Fields' case and Karnataka Rare Earth's case, in our view, would be squarely applicable to the facts of this case and applicable to final judgments rendered by courts. Respondents 1 and 2 without making the appellants parties to the Writ Petition got an advantage which they would not have got on the basis of Ext.P4 order. Ext.P4 order specifically says that the funds could be utilised only after getting majority decision of the parties. Admittedly such a decision has not been taken by the majority of the partners. But for this court's judgment respondents 1 and 2 could not have utilised the amount without a decision of the majority of the partners. Bank was informed of Ext.P4 order by the appellants. Bank also understood without majority decision the amount could not be utilised. Bank would not have released the amount, but for the judgment of this court in W.P.(C) 39626/03 which was rendered by this court without appellants in the array of parties. We are of the view the doctrine of actus curiae neminem gravabit would squarely apply to the facts of this case since this court would not have so acted had it been correctly appraised of the facts by the respondents Land 2. Under such circumstance the parties should be placed in the same situation that we got before the passing of the judgment by this court . Under such circumstance the parties should be placed in the same situation that we got before the passing of the judgment by this court . Still further, learned senior counsel for the appellant also drew our attention to the judgment of the learned Single Judge of this Court in Chandrasekhara Menon v. District Manager, 1989 (1) KLT 936 . That is a case where the learned Single Judge referred to the maxim 'Nunc pro tunc' which means that proceeding taken now for then that is, the proper time when it should have been taken. He would point out that the maxim would apply to both administrative authority as well as Courts. He would therefore submit that this is a case where the appellant was eligible, being armed with degree from an University which was recognized by the Calicut University which alone was the clause in the note. Denial of admission to her is injustice which should be rectified, if necessary by directing creation of seat against which she can be allowed to continue. 4. The learned counsel for the University, on the other hand, would submit that the appellant's understanding of the note is misplaced. He would submit that the note should be read as meaning that the course (in this case BCA) must be recognized by the University of Calicut. The University does not recognize other Universities, is the argument of the learned counsel. The business of recognising the universities is allotted to the University Grants Commission under the UGC Act. He would submit that we must take the prospectus as it is because it is not under challenge. The appellant therefore is bound by the condition in the prospectus that the course must be recognized. He would draw our attention to clause 13 (c) Clause 13(g) refers to the documents to be produced by the candidate at the time of admission. The candidate, he would point out in the facts , is obliged to produce Equivalency Certificate. In this case the candidate passed her qualifying examination from a University outside the State. Every applicant applying in pursuant to Ext.P5 prospectus, must comply with the requirement that if he passed qualifying degree from Universities outside the State, he is expected to produce Equivalence Certificate. The question of Equivalency Certificate is in fact being taken for consideration on 31/1/2004. In this case the candidate passed her qualifying examination from a University outside the State. Every applicant applying in pursuant to Ext.P5 prospectus, must comply with the requirement that if he passed qualifying degree from Universities outside the State, he is expected to produce Equivalence Certificate. The question of Equivalency Certificate is in fact being taken for consideration on 31/1/2004. He would submit that it is case where the appellant has failed to comply with the requirement under Ext.P5 prospectus. The learned counsel for the University made available the order dated 7/9/2013, wherein it is provided as follows; "Vide paper read as 3 above, the Board of Studies in Engineering (PG), at its meeting held on 27/06/2013, vide item No. 9, considered the minutes of the meeting held on 25th May 2013 at the office of the additional Chief Secretary to Government, Higher Education Dept. for the unification of MCA admission to be conducted under the University of Kerala, MG University, University of Calicut and Kannur University, and unanimously resolved to adopt the qualifications suggested in the said minutes held on 25th May 2013 for admission to MCA programmes. The new academic eligibility criteria to MCA course are as follows; a). Candidate should have any bachelors degree under 10 +2+3 pattern of education with Computer science /computer applications/mathematics/statistics/Engineering and Technology as one of the main or subsidiary subject with at least 50% or equivalent CGPA in aggregate. b). A relaxation of 5% mark shall be given to SCBC and PH candidates. c). SC/ST candidates need to get only a pass in their qualifying examination. The above resolution of the Board of Studies in Engineering (PG) was approved by the Faculty of Engineering at its meeting held on 24/07/2013 vide item No. 2. Vide paper read as 4 above, the Academic Council at its meeting held on 30/07/2013 (vide item No. IIF) approved the minutes of the Faculty of Engineering held on 24/7/2013. Therefore, it is a case where the requirement in the prospectus in relation to the respondent University regarding the recognition and the concept of Equivalency Certificate is not to be found in the statutory regulations. The learned Government Pleader would submit that the seat has been filled. 5. Therefore, it is a case where the requirement in the prospectus in relation to the respondent University regarding the recognition and the concept of Equivalency Certificate is not to be found in the statutory regulations. The learned Government Pleader would submit that the seat has been filled. 5. The first question we must consider is whether the declaration sought by the appellant in the writ petition that the Degree issued by the Bharthiyar University under the distance Education Programme is a qualified degree for admission to the MCA course can be made. When we decide this issue, we must also consider whether we should give declaration in vacuum in the sense that such declaration would amount to futile declaration in view of the fact that we may not be in a position to grant substantial reliefs, which is found in prayer No. (ii). If we take up prayer No. (ii), we would have to consider the fact that the seat which is allotted to the appellant is filled up by admitting another student. As already stated, the admitted student is not before us. In fact, the only contention of the learned senior counsel for the appellant is that the injustice can be undone by directing creation of another seat against which the appellant can be accommodated. The said contention is addressed before us on the wings of the three decisions cited before us, wherein the doctrine of actus curiae neminem gravabit was made applicable. Alias v. Abraham (cited supra) was a judgment in the writ appeal filed against the judgment of the learned Single Judge wherein the 2nd respondent in the appeal was allowed to withdraw the amounts lying in the account of the first respondent without appellants in the party array. The appeal was allowed. The court referred to the doctrine of actus curiae neminem gravabit and the court took the view that the parties should be placed in the same situation and directed respondents 1 and 2 to re-deposit the amount received by them from the third respondent Bank. As far as the decision in Ummerkoya' s case (cited supra) is concerned, that is a case where the suit was proceeded on the footing that the defendants had not filed written statement. In fact, written statements were on record and it is in such case doctrine was adverted to. 6. As far as the decision in Ummerkoya' s case (cited supra) is concerned, that is a case where the suit was proceeded on the footing that the defendants had not filed written statement. In fact, written statements were on record and it is in such case doctrine was adverted to. 6. In Chandrasekhara Menon' s case (cited supra) , the applicant for telephonic connection had made the deposit by way of Cheque which was dishonoured not for lack of fund, but on account of defect in attestation. The learned Single Judge took the view that the petitioner should have been given an opportunity for rectifying the defect and regularising the application. It is in the said context, the learned Single Judge held as follows; "8 The next question is as to what exactly is the relief to which the petitioner is entitled. The petitioner seeks to be restored to his priority as on the date of the cheque and to his original position in the waiting list. If the respondents had informed him within a reasonable time after March 15, 1982 when the cheque was returned, the petitioner would have rectified the error, and continued in the same position in the waiting list. The cancellation of Ext.P3 should therefore result in the petitioner being restored to that position, on the principle of nunc pro tune. This principle is one allied to the maxim "actus curiae neminem gravabit". That is the act of a court shall prejudice no man. This rule which is applicable to acts of courts has been extended to the realm of Administrative Law by invoking the principle of nunc pro tune. The maxim means " a proceeding taken now for then, that is, the proper time when it should have been taken" (Wharton Law Lexicon 14th Edition page 706). Black in his Law Dictionary 5th edition page 965 deals with the matter thus; "Nunc pro tune: Now for then. A phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e. with the same effect as if regularly done. Nunc pro tune entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake. Nunc pro tune entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake. Nunc pro tune merely describes inherent power of court to make its records speak the truth, i.e. to record that which is actually but is not recorded. Nunc pro tune signifies now for then, or in other words, a thing is done now, which shall have same legal force and effect as if done at times when it ought to have been done". The function or office of the device nunc pro tune is a procedure whereby a determination previously made but for some reason improperly entered or expressed, may be corrected and expressed as of the original time when it should have been ......(Corpus Juris Secundum Volume 67). The rule is intended to render justice to parties, to prevent an unjust prejudice to a suitor by the delay unavoidably arising from the act of court, and had been uniformly exercised unless the delay is attributable to laches of the party applying (Evans v. Rose (840) 113 E.R. 774 at page 777). The Lahore High Court dealt with this doctrine as follows in Sham Das v. Umer Din AIR 1930 Lahore 497 ( F.B.) at page 501. "The applicability of this rule is confined to those cases only in which some hardship would be visited upon a party without any fault of his, unless he were relieved from it by allowing proceeding to be taken now for then, i.e. for the proper time when it should have been taken". The principle is one of equity. It is intended to undo an injustice done to a party by reason of a lapse on the part of an authority. Even though applied in the first instance to acts of courts, there is no reason why the same principle should not be applied to the case of administrative authorities like the respondents in order to render justice between parties. In Chacko Scaria v. Regional Transport Authority, AIR 1967 Kerala 153, Mathew,J. Considered the applicability of this principle to a decision of the Regional Transport Authority under the Motor Vehicles Act. In Chacko Scaria v. Regional Transport Authority, AIR 1967 Kerala 153, Mathew,J. Considered the applicability of this principle to a decision of the Regional Transport Authority under the Motor Vehicles Act. The doctrine must apply to the facts of this case and the petitioner restored to the position which he would have occupied if he had been informed of the dishonour of the cheque soon after March 15, 1982. We may notice that the learned Single Judge took the view that the principle is one of equity. It is intended to undo an injustice done to a party by reason of a lapse on the part of an authority. It was in the said circumstances, the court restored the petitioner's position in the waiting list for telephone connection and directed that connection would be given as and when his turn is reached. 7. Here in view of the passage of time and at which we are rendering our judgment, we are over taken by the grant of admission to a 3rd party who is not before us. An equitable doctrine is pressed into service to persuade us to create a seat and to accommodate the appellant in the said seat. We must remind ourselves that this is sought to be done at the time when we are at least two weeks into the academic session after starting classes. We would think that even accepting everything that the appellant has to say in regard to her being qualified, we may not be in a position to grant actual relief granting her admission for the reason that this is a case where granting of such relief would involve exercising our 'extraordinary powers' to direct creation of seats. We would think that such a request cannot be accepted. Equally also, we are not empowered with extraordinary powers as the Apex Court under Article 142. Creating of seat in a course is essentially an exercise of power by the concerned authorities and the Government. We cannot also totally ignore the fact that this is is a case where the appellant was expected to produce Equivelency Certificate. No doubt we have already referred to the statutory regulation fixing the qualification, which may support the appellant. But, as we have noted, the entire exercise in examining the prayer No.(i), in our view, would amount to a futile exercise which we refrain from doing. No doubt we have already referred to the statutory regulation fixing the qualification, which may support the appellant. But, as we have noted, the entire exercise in examining the prayer No.(i), in our view, would amount to a futile exercise which we refrain from doing. At least for the next academic year, when the prospectus is issued by the State, the State is obliged to consider the actual statutory regulation governing each University. Care must be taken to make it in tune with the requirements of each University. Subject to the said observation, the appeal fails and the same is dismissed.