AI Structured Summary
Not yet generated for this judgment
Judgment
In view of the projected urgency in the matter, upon special
mentioning, we have agreed to hear this appeal for final disposal
with the consent of the learned counsel for the appellant/petitioner,
the learned standing counsel for the APJ Abdul Kalam
Technological University (APJ University) and the learned standing
counsel for the University of Kerala.
We have heard Sri.Kaleeswaram Raj, learned counsel for the
appellant/petitioner, Sri.S.Krishnamoorthy, learned standing
counsel for the APJ University, and Sri.Thomas Abraham, learned
standing counsel for the University of Kerala at length. The parties
agree that so far as respondent Nos.7 and 8 are concerned, they
are proforma respondents and need not be noticed, as both the
Universities are duly represented.
The present intra court appeal is against the judgment dated
14.8.2017 in W.P.(C) No.24324 of 2017 and analogous cases. The
appellant is concerned only with her writ petition i.e., W.P.(C)
No.24324 of 2017. The facts are not in dispute. The appellant
was a student of College of Architecture, Thiruvananthapuram for
the Bachelor of Architecture (B.Arch.) course and joined the
College during the session 2015-2016. The College of
Architecture, Thiruvananthapuram was at the relevant time
affiliated to the University of Kerala. She cleared her theory
papers in respect of the I semester; but in the II semester, she
dropped one theory paper. As per the Kerala University Statute
and Regulation, she was promoted to the III semester. She
attended some classes but then, allegedly having fallen critically
sick, she was unable to pursue her studies for almost a year.
It is not in dispute that in the meantime, more specifically in the
month of September, 2015, the State Government took a decision
to transfer the affiliation of the College of Architecture,
Thiruvananthapuram from University of Kerala to APJ University
which was constituted under the APJ Abdul Kalam Technological
University Act, 2015 ("the Act, 2015"), which Act came into force
with effect from 31.8.2015. The APJ University was intended to be
an exclusive Technological University for the improvement of
infrastructural and academic quality in technical educational
institutions. All the technological colleges and courses affiliated
under various Universities in the State of Kerala were brought
under the APJ University. The effect was that, on and from session
2016-2017, students admitted to the College of Architecture,
Thiruvananthapuram for the B.Arch. course under the Kerala
University became students of the APJ University.
The appellant on recovering sufficiently, reported back to the
College and sought to continue her studies by rejoining the
III semester, which she had dropped midway. Instead, as by then,
the College of Architecture, Thiruvananthapuram had been
affiliated to the APJ University, the authorities of the APJ University
directed the appellant to seek fresh admission in the II semester of
the B.Arch. course being conducted by that University. This is
what brought the appellant/petitioner to this Court. Her plea was
simple. She was a student of B.Arch. course of the University of
Kerala and was in the III semester, when she dropped studies and
as such, she was entitled to resume her studies from III semester.
She could not be asked to go back and take readmission in
II semester and that too, for B.Arch. course of the APJ University of
which she was not a student either in the I and II semester or the
incomplete III semester.
To the contra, learned standing counsel for the APJ University
submitted that as the appellant had failed in one theory paper in
the II semester, while she was a student of the University of Kerala,
as per the APJ Abdul Kalam Technological University Rules and
Regulations, she must first clear all the papers of the I and II
semester and secure 39 credits to her account to be promoted to
the III semester. Having failed in one paper and having failed to
secure 39 credits, as per the University Rules and Regulations,
she had to go back to the II semester and seek re-admission to the
course, as a case of migration from University of Kerala to APJ
University. Their stand is that APJ University is not conducting or
responsible for conducting courses as stipulated by the University
of Kerala and it cannot take that responsibility nor it has that
responsibility. If the student wants to continue, then, the student
has to follow the curriculum, the rules and regulations of the APJ
Abdul Kalam Technological University and not of the University of
Kerala. University of Kerala is part of history, so far as the APJ
University is concerned and the college is concerned. The learned
single Judge accepted the arguments of the APJ University and
dismissed the writ petition and hence, the intra court appeal.
After hearing the parties, in our view the appeal has got to be
allowed and the judgment and order of the learned single Judge
being erroneous, has to be set aside.
The entire stand of the APJ University is in direct conflict with the
statutory provisions, as contained in Section 60(1) and Section 72
of the Act, 2015. We may in fact note that provisions of Section
60(1) of the said Act was not brought to the notice of the learned
single Judge, for, if that was brought to the notice of the learned
single Judge, we are sure, the result would have been otherwise.
Before proceeding further, we may first notice as to what is the
effect of transfer of affiliation. Nothing changes in the college or
the institution. The building remains where it is. The facilities
remains the same. The teaching faculty remains the same. The
only difference is that they would now follow the rules and
regulations of the new University. What would be the effect on the
students? Obviously, a student who had taken admission for a
course, which was earlier conducted and controlled by the former
University under the rules and regulations of the former University,
cannot cease to operate and new course, new rules and new
regulations apply for such students. If there is similarity in rules,
regulations, courses and examination schemes, it could be that
they could switch over the tracks. But where there are differences,
as in the present case, and that too major differences, students
cannot be prejudiced. We may notice some differences in the
curriculum and standards. The first major difference is the marking
and evaluation system. Under the University of Kerala, the
markings are on percentage basis, whereas under the APJ
University, the system is of credits. There is accumulation of
credits to promote students to the next semester, whereas under
the University of Kerala students have to clear minimum papers in
a semester to be promoted to the next semester.
The learned counsel agree that even the course, curriculum and
standards thereof are quite different. Something that was taken up
in the I semester in the University of Kerala is a part of IV semester
in the APJ University. The course distributions are dissimilar.
Under the APJ University, unless a person gets a minimum credit
to his account, he cannot be promoted; whereas under the
University of Kerala, like in the case of appellant/petitioner, even if
she failed in one theory paper in II semester, she could be
promoted to III semester, where she was in fact studying when she
dropped out. What happens to these students who had started
their academic sessions prior to the change of affiliation? These
contingencies in our view are covered by Section 60(1) and
Section 72 of the Act, 2015.
Section 60 Affiliation and recognition:-
(1) The University can affiliate any of the Engineering Colleges or Institutions imparting education in technology owned by Government of Kerala or Government controlled societies, Private aided and Private unaided self-financing educational agencies, which, before the date of commencement of this Act remained affiliated to the different Universities, except Deemed Universities in the State of Kerala, provided they meet the criteria prescribed under this Act, Ordinances and Statutes for affiliation, including but not confined to availability of faculty, administrative machinery, infrastructure (buildings, laboratories etc.) which will be laid down by the University from time to time under the provisions of this Act. Such colleges meeting the specified criteria can be affiliated to the University as (i) regular colleges or (ii) autonomous colleges (iii) colleges with academic autonomy or (iv) institutions. The affiliation of such institutions to other Universities in the State except Deemed Universities,
shall stand transferred to the University on and from the date of commencement of this Act, subject to the conditions that the affiliation of these colleges or institutions in respect of the students admitted to Engineering courses shall continue till those batches of students complete their courses, the examinations of all such students shall be conducted by the Universities to which they were attached, degrees, postgraduate degrees or diplomas or other distinctions shall be awarded by such Universities:
Provided that the institutions in the technological branch maintained by other Universities of the State as their departments or their respective constituent colleges or the engineering colleges or teaching institutions under the deemed universities and the National Institutes established by the Central Government shall not come under the jurisdiction of the University.
Section 72 Matters relating to students pursuing studies in existing colleges:-
(1) Notwithstanding anything contained in this Act or the Acts of the other Universities in the State, any student, who immediately before the date of affiliation of a particular institution to this University after going through the process of affiliation as specified in Section 60 was studying in that institution for any degree, post-graduate degree, diploma or certificate of the concerned University, shall be entitled to appear for the examination of the University concerned and if he qualifies such examination, be entitled to be conferred with the corresponding degree, post-graduate degree, diploma or certificate, as the case may be, of the University established under this Act.
(2) Notwithstanding anything contained in this Act or the Statutes, Ordinances or Regulations made thereunder, any student of any college affiliated to the University who is undergoing study in any of the universities in the State shall be permitted to complete his course and preparation therefore, and the University established under this Act shall make arrangements for holding examination for such students, examinations in accordance with the curricula of studies of the concerned Universities as the case may be, until he completes the said course of studies.
First to section 60 (1) of the Act, 2015. The latter part of the
section quoted above deals with the transition period. It clearly
says that those students who had been admitted to Engineering
courses shall continue till those batches of students complete their
course and the examinations of such students shall be conducted
by the University to which they were attached and degrees,
postgraduate degrees or diplomas would be awarded by such
University. This clearly predicates no change of track or curriculum
in any manner for students of one University, when their institution
gets affiliated to the Technological University. In other words, the
courses, curriculum rules and regulations of the Technological
University would not apply to them and they would continue with
the stipulations and requirements of the original University. This is
obviously to maintain an undisturbed continuity, so far as students
are concerned.
We would like to notice the last part of the said provision as well.
It mentions about award of degree diploma etc. by such University,
meaning, the old University, which should be the natural
consequence because, they were pursuing the course under the
old University. Now, we may refer to Section 72 of the Act, 2015.
Section 72 of the Act, 2015 is contained in Chapter X and talks of
transitional provisions. The first thing we may note is Section 60 of
the Act, 2015 also provided for transitional provision. But, for
reasons known to the draftsman, instead of that provision being in
this Chapter, it was made a part of Section 60 of the Act, 2015 as
well. Section 72(1) of the Act, 2015 then makes it clear that the
students already enrolled under the old University would continue
as specified in Section 60 of the Act, 2015 and shall study the old
courses. This makes it clear and reproduces the provisions of
Section 60 of the Act, 2015. But the difference arises in the last
part of sub section (1). As noticed earlier, the last part of Section
60(1) of the Act, 2015 talks of award of degree by the old
University. Last part of Section 72(1) of the Act, 2015, on the other
hand, talks of award of degree etc. of the University established
under this Act, meaning the APJ University.
We would attempt to reconcile the two. The logical would be to
read down the provisions of Section 72(1) of the Act, 2015 by
reading the expression ''University'' established under this Act, to
mean ''University'' not established under this Act, or, in other words,
the original or old University, to bring it consistent with Section
60(1) of the Act, 2015. In the rest of the provision, there is no
ambiguity or conflict.
Sub Section (2) of Section 72 of the Act, 2015 then creates an
obligation on the new University, i.e., APJ University, to facilitate to
make all arrangements of holding examinations for such students
in accordance with the curriculum etc., of the old University until
the student completes the said course of study. Thus, from
beginning to end, the students do not have to change their courses
or the scheme but are to continue under the same curriculum up to
the day he or she passes out. Thus, if we read Section 60(1),
72(1) and 72(2) of the Act, 2015, the scheme and the legislative
intent is clear. The students who were earlier in different
Universities would be undisturbed. They would continue with the
curriculum rules and regulations of courses according to and as
prescribed by the old University and it shall be the responsibility of
the Technological University to which their institutions got affiliated
to ensure this process. This being our finding about the scope and
the nature of the scheme envisaged by the Act, 2015, let us see
what has happened.
From the submissions as made by the learned standing counsel
for the APJ University, it seems what they have done is just the
opposite. What we perceive is that the authorities of the APJ
University failed to notice these provisions at all. To them, it was
that as the institution had now got affiliated to their University,
everything applied to the institution as per the Technological
Universities rules, regulations and curriculum and it is not their
responsibility to allow students to carry on courses as earlier
prescribed by their original Universities. The students had to
migrate to the new courses. They had to comply with the rules and
regulations for the new courses and curriculum as prescribed by
the Technological University.
For example, in case of the appellant/petitioner, they state that as
she had not scored 39 credits in the first two semesters, she
cannot be allowed to join the III semester. As she had failed in one
paper in the II semester, she would have to clear that paper. This
was not the requirement or the system in the University of Kerala.
There were no concept of credits and, as is not in dispute, even
though she failed in one paper in II semester, she was liable to be
and she was in fact promoted to the III semester which she was
attending, but dropped midway because of illness. This shows that
the authorities of the APJ University totally were under the mis-
appreciation of law. They misunderstood and misapplied the
provisions. We wonder how many other students must have been
subjected to such unauthorized changes. Students who took
admissions in the institutions, when the institution was affiliated to
the University of Kerala, would continue to be students of
University of Kerala and would graduate as such. That is, what is
contemplated in Section 60 of the Act, 2015 and that is
contemplated in Section 72(1) of the Act, 2015 and the obligation
to ensure that by virtue of Section 72(2)of the Act, 2015 is upon the
Technological University to which the institutions have migrated.
To illustrate, the first batch of admissions to the course of B.Arch.
in the Technological University would be from 2016-2017.
Therefore, the students who took admission in the College of
Architecture, Thiruvananthapuram for B.Arch. course from the
session 2016-2017 would be governed by and would be treated as
students of the Technological University. But, so far as the
students of earlier batches are concerned, i.e., 2015-2016 and
prior batches including the appellant, they would continue with
course, curriculum, rules and regulations of the University of Kerala
till they complete their courses of studies, meaning, the full five
year course. They cannot be and they are statutorily not required
to seek re-admission or change course midway from University of
Kerala to the APJ University. They would get their degree
certificates, diplomas, as the case may be, of University of Kerala.
If the APJ University has done otherwise, that would be wrong and
a correction is due.
In view of the above, what they have done with the appellant is
indeed wrong and cannot be sustained upon the plain reading of
the statutes, as referred to above. She cannot be treated as a
student readmitted to the course. She would be treated as a
student continuing the course with a break. Even if for any
technical reason she is to be treated as a re-admission, it would be
re-admission to a continuing course and the continuing course
would be nothing else but the B.Arch. course of University of
Kerala governed by the rules and regulations of the University of
Kerala. The credit system and other rules of the APJ University
would not apply. Hence, even if she was to take re-admission, the
re-admission would be to the III semester with a chance to clear
the semester II paper in supplementary examination, as were
conducted by the University of Kerala. We would like to further
clarify one lurking doubt amongst the two lawyers representing the
two Universities i.e., with regard to the responsibility. We have no
doubt in this regard if Sections 60(1) and Section 72(2) of the Act,
2015 are read together. The legislative intent is clear and
unambiguous. They are to continue with their courses as
prescribed by the old University and the new University i.e., APJ
University, would be a facilitator in this regard. But the
examinations would be conducted by the University of Kerala. Of
course, by mutual agreement University of Kerala may transfer this
responsibility to the APJ University. Whatever may be the
situation, we have settled the legal position. Whatever position,
the two Universities may take, the interest of the student for
uninterrupted studies without change of track is paramount and
that has to be kept in mind by all. Wherever contrary decisions
were taken or in cases where students have been subject to
procedures not sanctified by law as explained by us, the process
has to be revered and set right. Thus, in view of our findings as
above, we are unable to uphold the judgment of the learned single
Judge and the same is hereby set aside. The APJ University is
directed not to treat the re-admission of the appellant to the course
of B.Arch. under the APJ University but to treat her to be a student
of B.Arch. course of the University of Kerala and which she shall
continue as such. Her readmission would be in III semester and
not in II semester. She would have the right to clear the backlog
papers which are to be conducted by the University of Kerala as
supplementary examination as was usually otherwise done.
With these directions and observations, this appeal stands
allowed.