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2020 DIGILAW 751 (KER)

Shaun Vengamootil v. State Of Kerala, Represented By The Secretary, Higher Education Department

2020-09-08

DEVAN RAMACHANDRAN

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JUDGMENT : The times of Covid-19 seems to throw up myriad apprehensions and fear for many-some of which are genuine, some chimerical and the rest conjectural. 2. The petitioners in these cases are students pursuing engineering courses in the various colleges affiliated to the A.P.J. Abdul Kalam Technological University (hereinafter referred to as 'the University' for short). They concede that they have not been able to clear all the papers in the various semesters and that they were awaiting supplementary examinations to be conducted by the University. They then assert that the University has now published the schedule for supplementary examinations for all the semesters of the various courses, which commences from 09.09.2020 to last till 16.11.2020; and that even though they welcome this, they are singularly concerned that these examinations have been now decided to be held only in the 'off-line' mode, which is to say, through their physical presence in examination centres. 3. According to the petitioners, in the present Covid-19 pandemic scenario available in the State of Kerala, it is not wise or prudent for the University to insist on the conduct of examinations solely through the physical mode and that they ought to have scheduled them only through the 'on-line' mode; particularly because, the instructions issued by the University Grants Commission (UGC for short) gives them the discretion to conduct examinations either in the physical mode; or in the 'on-line' mode; or through a blend of both. They say that however, the University has now disregarded these instructions of the UGC and have chosen, unilaterally and without any rational basis, to conduct the examinations only in the physical mode, thus imperilling the health and lives of the large number of students who are to take part in the same. They thus pray that the examinations scheduled on 09.09.2020 be interdicted and the University be directed to conduct the same only through the 'on line' mode. 4. In answer to the allegations and assertions of the petitioners, Sri.Elvin Peter, learned Standing Counsel for the University, submitted that the apprehensions projected by the petitioners in these Writ Petitions are wholly without any cause because, not only the State of Kerala, but whole of the Country is now opening up and learning to live with the Covid-19 pandemic. 4. In answer to the allegations and assertions of the petitioners, Sri.Elvin Peter, learned Standing Counsel for the University, submitted that the apprehensions projected by the petitioners in these Writ Petitions are wholly without any cause because, not only the State of Kerala, but whole of the Country is now opening up and learning to live with the Covid-19 pandemic. He says that, going by the Standard Operating Protocols and other Health Advisories published by the Central and State Governments, examinations in the physical form are allowed to be conducted, as long as all the imperative and applicable diligence under the said protocols are scrupulously adhered to. He submitted that detailed instructions and stipulations have already been put in place by the University in all the examination centres, as per which, all the health advisories and Standard Operating Protocols recommended by the regulatory agencies are directed to be strictly followed and the heads of such institutions have been requested to contact the District Administration/Health Departments for any assistance in this regard. 5. Sri.Elvin Peter added that a campus lay-out showing the manner of exit and entry of students, staff and invigilators, have already been published and that signboards for such purpose have also been directed to be prominently shown in all the examination centres. He says that every student, staff and invigilator will be scanned, using a thermal thermometer, for temperature and the protocol regarding the use of hand sanitizer will be rigorously enforced. He says that in addition to this, every centre has been directed to have a fully functional CCTV system and officials of the Fire and Rescue, Police and Health departments have also been requisitioned to offer necessary help, including for the purpose of disinfection and fumigation of the centres, as is practically necessary. 6. Sri.Elvin Peter, thereafter, submitted that, as is clear from the Circular, dated 03.09.2020, issued by the University -a copy of which has been placed on record as Ext.P4 in WP(C) No.18261/2020 all these aspects have been specifically enumerated therein and therefore, that none of the students, much less the petitioners herein, can have any cause for concern or fear in appearing for the various examinations commencing from 09.09.2020. He closed his submissions by saying that even though the schedule for the examinations may look very long, the fact remains that these are supplementary examinations and that most of the students would require to appear only in a few of them, though showing me that some of the petitioners herein have as many as 27 papers to clear, which he says is not on account of any fault that can be attributed to anyone else, but themselves. He, therefore, prays that these Writ Petitions be dismissed. 7. Sri.S.Krishnamoorthy, learned Standing Counsel for the UGC, submits that as per the directions issued by his client, the University is to conduct the examinations as expeditiously as is possible, so that the career of the students are not, in any manner, prejudiced. He submitted that the discretion to conduct the examinations either 'on-line'; or 'off-line'; or through a blend of both, have been left to be decided by the University and that the UGC has not issued any specific instruction as to the manner in which it has to be done. He, however, submitted that since the University has now taken a decision to conduct the examinations through the 'off-line' mode, the UGC does not oppose the same, but will support it in any manner, as may be required of them. 8. Sri.Pramod, learned Government Pleader, appearing on behalf of the Sate of Kerala, affirmed most of the submissions of Sri.Elvin Peter as afore, saying that it is in the interest of the students also that examinations are conducted at the earliest, so that they can then pursue their future prospectus without having to wait indefinitely. He submitted that the State of Kerala does not have any specific opinion as to the manner in which the examinations are to be conducted; and that since the University has now opted for the 'off-line' mode for such purpose, every Authority under its command, including the Police, Health and Fire and Rescue, are fully committed and ready to offer every assistance, as is imperatively required. He submits that, therefore, the Government does not take any particular stand regarding the manner or mode in which the examinations are to be conducted, but that it is their singular position that it is in the best interests of all the students that it should be done at the earliest. 9. He submits that, therefore, the Government does not take any particular stand regarding the manner or mode in which the examinations are to be conducted, but that it is their singular position that it is in the best interests of all the students that it should be done at the earliest. 9. Sri.Sreehari Indukaladharan and Sri.Sayed M. Thangal, learned counsel for the petitioners, refuted the afore submissions of Sri.Elvin Peter by saying that the conduct of examinations through the physical mode would create great uncertainty for the students. They submitted that many of the students may find on a fine morning that their examination centres or residences are included in a 'Containment Zone' and would, thereafter, be unable to take the examinations. They submitted that since the Covid-19 scenario is worsening in the State of Kerala at this moment and is expected to peak till about November or December 2020, it was incumbent upon the University to keep these factors also in mind before taking a decision to conduct the examinations only through the 'off-line' mode. They asserted that since it is now well recognised internationally that the conduct of examinations in the 'on-line' mode is the safest and most secure way of doing so, at least for the students and the invigilators, the University ought to have given a deep thought to this before hurrying into a decision to conduct it in the manner as is now proposed. They, therefore, reiteratingly prayed that these Writ Petitions be allowed. 10. As I have said in the prefatory paragraph of this judgment, there is no doubt that all the citizens are generally apprehensive of the ongoing Covid-19 scenario. This is for good reason and at times have proven to be justified. 11. However, the fact remains that the petitioners have approached this Court at the eleventh hour, with the examinations set to start tomorrow (09.09.2020). obviously, therefore, even if this Court is inclined to grant them any benefit, it is incapacitated from doing so solely from the stand-point of the time frame involved. This is because, if this Court is to interdict the examinations in any manner today, the preparation and hope of thousands of other students, who have raised no objection to the conduct of the examinations 'off-line', would be severely impaired. This is because, if this Court is to interdict the examinations in any manner today, the preparation and hope of thousands of other students, who have raised no objection to the conduct of the examinations 'off-line', would be severely impaired. This Court does not intend to do so, though my singular resolve at this time is to ensure, as far as it is possible, that no student -be that the petitioners or others -are exposed to avoidable danger on account of the conduct of examinations in the physical mode. 12. In this perspective, I certainly notice the submissions of Sri.Elvin Peter that all requisite and necessary steps have been taken by the University to ensure that none of the students are exposed to any risk on account of the Covid-19 scenario and that all the protocols, as are mandated under the Standard Operating Protocol issued by the Central Government, as also the health instructions issued by the State Government are followed without any deviation. 13. Since the State of Kerala also supports the University in their endeavour to conduct examinations in the physical mode, it is indubitable that this Court would now require to issue no further orders, apart to remind the University that they must take full responsibility and control of the situation and that they will be fully accountable for all consequences that may flow out of their decision, which they assert has been taken with full contemplation. I do not propose to say anything further since it would be wholly inappropriate to substitute the wisdom of this Court for that of the experts and competent Authorities of the University, who appear to have taken a conscious decision to conduct the examinations in the physical mode. 14. I, therefore, dispose of these Writ Petitions without issuing any orders, as has been prayed for by the petitioners; however, directing the University to ensure that the examinations in the physical mode are conducted without any avoidable risks and implicitly ensuring the safety, health and well-being of every student, staff member and invigilators, by adopting the mandatory social distancing norms and the best health practices, as are stipulated by the Standard Operating Protocol and the Instructions given by the Central and State Governments respectively. 15. 15. It is needless to say -since it is already so recorded in the Circular of the University, dated 03.09.2020, a copy of which has been placed on record as Ext.P4 in WP(C)No.18261/2020 -that the District Administration, the Health Department, the Fire and Safety Authorities and the concerned Police Officials will make sure that full assistance is given to each examination centre, so as to avoid any chance of contamination or infection to the students, staff or invigilators, including for periodic disinfection as per the extant and applicable instructions. 16. I close this judgment by reiteratingly reminding the University that they will be fully accountable for the decision they have taken to conduct the examinations in the physical mode; and therefore, that they will act with due diligence and necessary care, securing every student to the extent possible. 17. After I dictated this part of the judgment, Sri.Sreehari Indukaladharan, learned counsel for the petitioners in WP(C)No.18261/2020, submitted that, if, for any reason, any of the petitioners are unable to take part in the examinations commencing on 09.09.2020, the University may be directed to conduct a further examination within a period of three months. 18. Sri.Elvin Peter, learned Standing Counsel for the University, responded to this by saying that, as is evident from the afore referred Circular of the University itself, they will conduct further examinations within three months after the present schedule; and that every student -and not merely the petitioners herein -who are, for any cause, unable to take the examinations now, will be permitted to do so as per the extant Rules. This is recorded. These Writ Petitions are thus disposed of.