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2024 DIGILAW 1433 (KER)

Muhammed Irfan P S v. Mahatma Gandhi University

2024-11-06

MURALI PURUSHOTHAMAN

body2024
JUDGMENT : The petitioner is a 5th semester BBA student of the KMM College of Arts and Science, Edappally, Cochin, which is affiliated to Mahatma Gandhi University, the 1st respondent. A criminal case was registered against the petitioner on 26.08.2024 and he was in judicial custody for a period of 50 days. He was enlarged on bail on 15.10.2024. The examination for the 5th Semester BBA is slated during November, 2024 and the last date for payment of examination fee was 26.10.2024. The petitioner approached the 3rd respondent, the Principal of the College for registration for the 5th Semester examination. However, by Ext. P1, the request of the petitioner was rejected by the Principal stating that as per the Examination Notification issued by the 1st respondent University, 75% attendance is mandatory to attend University Examination and the petitioner has got only 38% attendance. Challenging Ext. P1, the petitioner has filed this writ petition. The petitioner has also sought for a direction to the respondents to permit him to register for the examination. 2. This Court on 28.10.2024 issued notice to the Principal by special messenger and the learned standing counsel for the 1st respondent University was asked to get instructions and the matter was posted to 01.11.2024. Meanwhile, the petitioner submitted Ext.P3 representation dated 29.10.2024 before the Controller of Examinations for condonation of shortage of attendance and requesting to permit him to register for the examination. Since the office of the 1st respondent did not receive Ext.P3, the petitioner sent the same by Speed Post. The petitioner had submitted yet another representation dated 28.10.2024, marked as Ext. P5, before the Principal requesting for condonation of shortage of attendance. The Principal by Ext. P4 communication dated 28.10.2024 rejected the same reiterating that as per the Examination Notification for the 5th Semester released by the 1st respondent University, 75% attendance is mandatory to attend the University examination and as per the records, the petitioner is having only 38% attendance and that as per the University norms, the attendance percentage should be between 65% to 75% for condonation. 3. According to the petitioner, he could not attend class for 50 days as he was in judicial custody and the shortage of attendance occurred for reasons and circumstances beyond his control. 3. According to the petitioner, he could not attend class for 50 days as he was in judicial custody and the shortage of attendance occurred for reasons and circumstances beyond his control. It is contended that the Principal did not take into consideration the extenuating circumstances that prevented the petitioner from attending classes and the denial of right to participate in the examination is an infringement of his fundamental right to education guaranteed under the Constitution of India. 4. Heard the learned counsel for the petitioner, the learned standing counsel for the 1st respondent University and the officer of the College representing the 3rd respondent Principal. 5. The learned Standing Counsel for the 1st respondent University refers to Chapter 10A of the Examination Manual issued by the University and submits that 75% attendance is mandatory to attend the University examination and the petitioner is having only 38% attendance. 6. The application of the petitioner for condonation of shortage in attendance was not recommended and forwarded by the Principal, the Head of the Institution to the Controller of Examinations. It is for the Controller of Examinations to pass orders sanctioning condonation of shortage of attendance. Therefore, the question to be considered is whether the Head of the Institution is justified in summarily rejecting the request of the petitioner for condonation of shortage of attendance without forwarding the same to Controller of Examinations. The question whether confinement of the petitioner in judicial custody can be considered as an extenuating circumstance to condone shortage of attendance does not arise for consideration at this stage. 7. Paragraph 10A.6 of the Examination Manual reads as follows: 8. The Examination Manual provides that applications for condonation of shortage of attendance shall be made by each candidate in the prescribed format. The applications shall be recommended and forwarded by the Heads of the Institutions concerned and reach the Office of the Controller of Examinations ten days before the date of commencement of the examination. The applications for condonation of shortage of attendance received in the office of the Controller shall be scrutinized by that office with reference to the requirements provided therein. Applications not conforming to the rules have to be rejected by the Controller. The applications for condonation of shortage of attendance received in the office of the Controller shall be scrutinized by that office with reference to the requirements provided therein. Applications not conforming to the rules have to be rejected by the Controller. Thus, going by the Examination Manual of the 1st respondent University, the Head of the Institution is only required to forward the application for condonation of shortage of attendance to the Controller of Examinations along with his recommendation, which may be either positive or negative in nature. If the application is in the prescribed format with receipt for payment of required fee, the Head of the Institution shall forward the same with a forwarding letter to the Controller of Examinations. It is for the office of the Controller of Examinations to scrutinize the application and the Controller to reject the application that do not conform to the rules. It is true that the rules provide that the candidate must have earned at least 75% attendance to be eligible to appear for the examination. Thus, a candidate who does not have 75% attendance does not qualify to appear for the examination. That does not mean that application for condonation that falls below the 75% threshold should be rejected summarily by the Head of the Institution. The Head of the Institution shall forward the application to the Controller of Examinations along with his recommendation or refusal to recommend the application. The Controller of Examination has to consider the application independently in terms of the provisions of the Examination Manual. The petitioner has not submitted application for condonation of shortage of attendance in the prescribed format. The Controller of Examinations is not a party to the writ petition. If the petitioner submits an application in the prescribed format, the 3rd respondent shall forward the same to the Controller of Examinations along with his recommendations, at the earliest. The writ petition is disposed of.