THE HON'BLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION NO.1203 OF 2022
ORDER:
This writ petition is filed seeking the following relief: To issue Writ of Mandamus (1) to declare the action of the 1st respondent in detaining me and not permitting me to appear in the lab exams commenced on Dated 09.01.2022 and ending on Dated 12.01.2022 of Civil Engineering branch 4th year 1st semester as illegal arbitrary and violation of principles of natural justice and in violation of Articles 14, 19 & 21 of constitution of India (2) to declare the action of the 1st respondent in not permitting me to appear in the 4th year 1st Semester end exams which are scheduled to be held from Dated 17.01.2022 on the ground of shortage of attendance i.e having 52% of attendance instead of 65% attendance without considering the advanced stage of my pregnancy as illegal arbitrary contrary to principles of natural Justice and Contrary to provisions of Maternity Act 1961 and in violation of Articles of 14, 19, 21, 41 and 42 of Constitution of India and consequently direct the 1st respondent to permit me to appear in the end exams of Civil Engineering Branch 4th year 1st semester which are scheduled to be held from Dated 17.01.2022 by providing me the Hall ticket bearing No.19705A0158 and also permit me to appear in the supplementary exams of lab exams of Civil engineering branch 4th year 1st semester."
2. The case of the petitioner is that she is prosecuting 1st Semester 4th year in Civil Engineering Branch in the first respondent college. Due to advanced pregnancy, the petitioner 2 did not attend college from 10.10.2021 to 26.11.2021. After delivering baby on 11.11.2021, she attended college after gap of 15 days. While the matter stood thus, the first respondent included the name of the petitioner in the list of detained persons as she was having shortage of attendance i.e., 52% instead of 65% and placed the said list in the notice board on 06.01.2022, asking them to submit their explanations within two days. Thereafter, the first respondent published the final list without hearing the objections of the petitioner . Thereafter, the petitioner made representation on 07.01.2022 to the first respondent explaining the reasons for not attending classes from 10.10.201 to 26.11.2021. But, the first respondent refused to consider the representation of the petitioner. Therefore, she was not permitted to appear in the 4th year 1st semester and lab exams. Aggrieved by the action of the first respondent in detaining and not permitting the petitioner for the examinations, the petitioner filed the present writ petition. 3
3. The first respondent filed counter affidavit contending that petitioner has secured only 52.83% of overall/cumulative attendance against 75% of the attendance stipulated for permitting the student to appear for final examinations. As per Regulation 6.3 of the Academic Regulations, shortage of attendance below 65% in aggregate shall in no case be condoned. The overall attendance secured by the petitioner is 52.83, which is 22.17% less than 75%. On medical grounds, the petitioner was granted 10% condonation of shortage of attendance. Even after 10% of condonation of shortage of attendance also, the petitioner has shortage of attendance by 12.17% to appear for the examinations and hence, she was detained as per the Regulations. In AICTE Circular F.No.2- PC/AICTE/Gen.Dist.Edu.Policy/2018 dated 10.09.2018, there is no mention about the maternity leave to be granted to the women students pursuing UG courses. UGC Circular No. DO No.21-116/2021 (CPP-II), dated 14.12.2021 is in relation to M. Phil/Ph.D., candidates, but not in relation to undergraduate courses. As per AICTE rules, a student pursuing B.Tech has to attend classes regularly and has to secure at least 75% of 4 attendance. The Hon'ble Apex Court in catena of occasions held that the academic regulations prescribed by the expert bodies cannot be diluted so as to meet the requirements of an individual. As there was no norms to consider the stortage of attendance less than 65% and as the petitioner has secured 52.83% aggregate attendance, she was detained and not permitted to appear IV year I Semester end lab examinations as per the JNTUA and college norms. The academic calendar for the IV B.Tech I-Semester was displayed before the commencement of the semester and there is no hard and fast rule that the semester has to be spread in the entire six months as mentioned by the petitioner. The semester is to be conducted in 90 working days and as per the calendar, the stipulation is satisfied. Therefore, the circulars issued by the AICTE and UGC are not applicable in the case of the Petitioner. Further, the provision of Conventions for Eliminating of all Forms of Discrimination against to Women (CEDAW) is also not applicable in the present facts of the case. Therefore, the petitioner can be re-admitted into the same semester and pursue the course by possessing required attendance, but she 5 cannot claim equities by grossly violating the mandatory requirements and requested to dismiss the writ petition.
4. Heard learned counsel for the petitioner and the learned counsel for the respondents.
5. Learned counsel for the petitioner submits that though the 1st respondent granted two days time to submit explanation, without considering the explanation of the petitioner, published the list of the detained persons. On 07.01.2022, the petitioner submitted representation explaining the reasons for not attending the classes from 10.10.2021 to 26.11.2021 along with medical certificates and bills, the 1st respondent refused to consider the representation of the petitioner. The only reason for less attendance is that she was in advanced stage of pregnancy. Though the gap between each semester shall be 6 months, the first respondent conducted classes for the 7th semester i.e 4th year 1st part from 06.09.2021 to 31.12.2021 within a period of three months and if classes were conducted for the entire 6 months period, the petitioner would have met with the minimum required percentage i.e., 65%. 6
6. The learned counsel for the petitioner has relied on several judgments of various High Courts and the Apex Court.
7. In Ankita Meena V University of Delhi1, the petitioner joined 3 year LLB Course at Law Centre-II, Faculty of Law, University of Delhi in August, 2016. By the time she joined the course she was already married for about five months. The petitioner completed the first 3 semesters without any hindarance. However, she fell short of the required attendance during the 4th semester due to two difficulties. One was that she gave birth to a baby on 22.02.2018 disabling her to attend the classes till the end of March, 2018 and the second difficulty was that the Delhi University Teacher's Association went on a strike from 16.03.2018 and hence, the University could not conduct the minimum number of classes as prescribed by Rule 10 of the Bar Counsel of India Rules. Therefore, the petitioner was detailed by a Notice dated 09.05.2018 and not permitted to write the 4th Semester Examinations scheduled to commence from 12.05.2018. The Petitioner filed WP (Civil) No.5194 of 1 2021 (1) ESC 174 (SC)/MANU/SC/0037/2021 7 2018 before the High Court of Delhi seeking a direction to the university to permit to appear for the 4th semester examinations, but the said Writ Petition was dismissed by an Order dated 15.05.2018. An intra appeal was filed by the petitioner in LPA No.294 of 2018 and the same was dismissed by the Division Bench by an Order dated 07.09.2018. Thereafter, the petitioner therein filed SLP before the Hon'ble Apex Court and the Hon'ble Apex Court permitted the petitioner therein to appear in the semester examination on the ground that she was also carrying baby.
8. In Nithya v University of Madras and others2, the Madras High Court allowed the petitioner therein to appear in the examinations as the petitioner fell short of attendance due to delivery of a child. The Court further held that maternity relief in case of girl student will include leave and directed the University to make provisions for granting leave to girl students, if they get married during the period of study and lose their minimum attendance.
2 AIR 1995 MAD 164 8
9. In Vandana Kandari v University of Delhi3, in an identical matter, the Delhi High Court observed as extracted hereinunder:
In the light of the above discussion, if any female candidate is deprived or detained in any of the semester just on the ground that she could not attend classes being in the advanced stage of pregnancy or due to the delivery of the child, then such an act on the part of any of the university or college would not only be completely in negation of the conscience of the Constitution of India but also of the women rights and gender equality this nation has long been striving for. It is a saying that "Motherhood is priced of God, at price no man may dare to lessen or misunderstand". By not granting these students relaxation, we will be making motherhood a crime which no civilized democracy in the history of mankind has ever done or will ever do. We cannot make them pay the price for the glory that is motherhood.
10. In Saumya Tiwari v State of UP and others4, the Allahabad High Court held at para No.39 as extracted hereinunder:
3
MANU/DE/1614/2010 4 MANU/UP/2791/2021 9 The Supreme Court in Suchita Srivastava and others Vs. Chandigarh Administration (AIR 2010 SC 235), gave widest amplitude to a woman's right to make reproductive choices.
Reproductive choices were construed as inherent to a woman's right to privacy, dignity and bodily integrity which are relatable to Article 21 of the Constitution of India. The Supreme Court then declined to put any restriction on such choices by holding forth:
"22.There is no doubt that a woman's right to make reproductive choices is also a dimension of `personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children...."
48. Further, at paragraph No.48 held that the Madras High Court in Nithya Vs. University of Madras and others( referred supra) 10 mandated the grant of maternity support in view of Article 42 of the Constitution of India by holding thus:
"5. Learned counsel for the first respondent, University of Madras submitted that as per the attendance regulation applicable to the petitioner even if 50% of attendance is condoned as the rule stands, she has to appear for the next September or subsequent University examination by paying the prescribed condonation fee without putting in further attendance. There is force in the contention of Miss K. Geetha, learned counsel appearing for the respondent that as the rule stands the University is bound by the said regulations. However, in the instant case, it is clear that the petitioner during the last course of her academic year for B.A. Corporate Secretaryship was married on 18-10- 1993 and she was conceived shortly thereafter and as a result she was suffering from morning sick- ness and other indispositions and, therefore, she was not in a position to attend the classes regularly. The reasons given by the petitioner for not attending the classes have to be accepted as they are genuine and natural consequences of married life. However, there is an impediment as far as University is concerned as long as Regulation 2(ii) is there. Taking into the peculiar facts and circumstances of the case, I feel that it is a fit case to give an exemption from the operation of the said rule as the petitioner has completed 55.75% of attendance and as such she is entitled to condonations of attendance by paying necessary condonation fee to the 11 University. In this connection it is observed that as large number of women students are joining University courses and the type of situation in which the petitioner was involved viz., she was married, may also occur in case of any woman students. The directive principles of State policy contain in parly IV of our Constitution by Art. 41 says that the State shall, within the limits of its economic capacity, make of active provision for secur ing education. If equal opportunity is given to women for education, they can stand on equal terms with men. Article 42 the Directive Principles of State Policy says that the State shall make provision for securing just and humane conditions of work and for maternity relief. Maternity relief in case of girl student will include leave. The University of Madras, a creature of statute can make provisions for granting leave to girl students, if they get married during the period of study and lose their minimum attendance. It is high time that the regulations that have been framed by the University are modified taking into consideration such situations where women student are married during the last course of their academic career and due to pregnancy they may not be in position to attend and complete the course."
11. In view of the above settled legal position, in our view, a female student like the petitioner cannot be deprived for student status or she cannot be detained in 12 any examinations/semesters due to the fact that she could not attend the classes because of her pregnancy. The petitioner deserves relaxation under the mandate of the Constitution.
12. For the above stated reasons and in the light of the above settled legal proposition of law, the action of the respondent No.1 in detaining the petitioner and not permitting the petitioner to appear in the lab examinations conducted from 09.01.2022 to 12.01.2022 of Civil Engineering Branch, 4th year, 1st Semester is illegal, arbitrary and violation of principles of natural justice.
13. This Court passed interim orders dated 18.01.2022 in I.A.No.1 of 2022 and the order dated 11.01.2022 passed in I.A.No.2 of 2022 directing the respondents to permit the petitioner to appear in the supplementary examination of Civil Engineering branch, 4th year 1st semester lab examinations to be conducted by the respondents. In view of the same, it is appropriate to direct the respondents to declare the results of the petitioner.
13
14. By following the Order of the Hon'ble Apex Court in Ankita Meena V University of Delhi (1 supra), the Writ Petition is disposed of directing the respondents to declare the results of the petitioner for which she attended in the light of the interim directions passed by this Court and issue necessary certificates, if she passes the examinations, subject to the petitioner clearing all other necessary formalities.
Miscellaneous petitions pending, if any, in this case shall stand closed.
_______________________________
JUSTICE BATTU DEVANAND
Date: -10-2022
eha
14
THE HONOURABLE SRI JUSTICE BATTU DEVANAND
WP No. 1203 of 2022
Date : .10.2022
eha