THE HONOURABLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION Nos.2678, 2713 AND 2796 OF 2023
COMMON ORDER:
The lis involved in the present writ petitions and the reliefs sought
therein are one and the same, as such they were heard together and
decided vide the following common order.
2. All the three writ petitions are filed by Final Year MBBS
Degree students of 4th respondent College to declare the action of the
respondent Nos.2 and 4 in not allowing them to appear for the Final Year Part-II regular examinations 2022-2023 which are scheduled from 21.02.2023 to 06.03.2023 as illegal and for consequential direction to respondent Nos.2 and 4 to open examination fee link with immediate effect so as to enable them to pay the examination fee and allow them to appear for all the aforesaid examinations.
CONENTIONS OF THE PETITONERS:-
3. Petitioners are Final Year students of MBBS Degree in the 4th respondent College. 2nd respondent had published examination schedule from 21.02.2023 to 06.03.2023 vide notification dated 27.12.2022. When the petitioners tried to open the link for payment of examination fee, they were not able to access the said link. Therefore, they contacted 2 the 4th respondent College along with their parents that they were not able to pay the examination fee. They came to know about their shortage of attendance. Despite specific request, 4th respondent did not provide attendance particulars. The 3rd respondent decided to conduct National Exit Test (NExT test) from the year 2025. This is a new pattern of examination selected by the respondent No.3 to inculcate same level of examination all over India. Therefore, 2nd respondent keeping the betterment of the batch of Final Year students to enable them to appear for post-graduate examination in the year 2024, preponed MBBS Degree Final Year Examinations to the month of February, 2023. Normally, the Academic Year of the Medical College is for 9 months. The attendance is calculated considering the overall 9 months but not month wise. Respondent No.4 neither cautioned any student regarding the attendance nor gave any statement of attendance to know the situation in advance and take care of the attendance. According to the petitioners, biometric attendance system is maintained by the 4th respondent university, however, biometric attendance machine did not record their attendance, thereby they lost roughly eight days of their attendance. According to the petitioners, they have more than 65% attendance. The same was not considered. Therefore, the present writ petitions. 3 CONTENTIONS OF 2ND RESPOONDENT:-
4. Whereas, Sri A. Prabhakar Rao, learned Standing Counsel appearing for 2nd respondent - University would submit that 2nd respondent University had issued a notice dated 07.01.2020 to all the Principals of Medical Colleges affiliated to 2nd respondent University stating that it has been noticed that some of the Colleges are not displaying internal attendance and attendance of the students on their notice board. Though it is obligatory on the part of the Colleges to display the attendance of all the students on their notice board for the benefit of the students as per respondent Nos.2 and 3 regulations, but they are not following. Therefore, 2nd respondent informed all the Principals of Medical Colleges that it is mandatory on the part of the Colleges to display internal assessment marks and attendance of the students on notice board for the benefit of the students. Therefore, it is mandatory on the part of the 4th respondent to display the attendance on the notice board for the benefit of the students. However, he would submit that considering COVID-19 Pandemic situation, 2nd respondent has reduced minimum attendance from 75% to 65%.
4
CONTENTIONS OF 4TH RESPONDENT:-
5. Learned counsel for 4th respondent would submit that as per the University guidelines, the minimum attendance required is 75% which was reduced by 2nd respondent to 65% after the notification dated 27.12.2022. In spite of the same, the petitioners have failed to secure even the reduced requirement of attendance in all four subjects in final year. Respondent No.4 is affiliated to respondent No.2 and it is therefore bound by the policies pertaining to admission, attendance, examination and research that are laid down by respondent No.2. Counseling Session was conducted for Final Year MBBS Part II students of respondent No.4 College who had shortage of attendance and/or poor performance in internal assessments, along with their parents, between 16.11.2022 and 18.11.2022. Despite granting ample opportunity, the petitioners failed to improve attendance. Therefore, the petitioners are not eligible to appear for final year MBBS Degree part-II examinations. It has been following the attendance policy of 2nd respondent. There is no irregularity or discrepancy in attendance of the petitioners with the said submissions, 4th respondent sought to dismiss the present writ petitions. 5 FINDINGS OF THE COURT:-
6. There is no dispute that all the petitioners herein are pursuing their Final Year Part II MBBS Degree in 4th respondent College which is affiliated to 2nd respondent University. As per the guidelines of 2nd respondent - University, minimum attendance required is 75% and the same was reduced by 2nd respondent to 65% after notification dated 27.12.2022. According to 4th respondent, attendance particulars of all the petitioners are as follows:-
WP Names Reg. General General Obstetri Paediatrics
No. No. Medicine Surgery cs and
Gynaec
ology
T P T P T P T P
2796/ Ms.V.Reethika 1801006194 61 63 65 63 65 68 64 93
2023 Reddy
WP Names Reg. General General Obstetri Paediatrics
No. No. Medicine Surgery cs and
Gynaec
ology
T P T P T P T P
2713/ Ms.M.Deepika 1801006081 37 45 39 46 49 20 31 22
2023
WP Names Reg. General General Obstetri Paediatrics
No. No. Medicine Surgery cs and
Gynaec
ology
T P T P T P T P
2768/ Jonnalagadda 1801006059 62 74 64 74 69 75 60 96
2023 Aruna
6
7. The aforesaid attendance particulars would reveal that all the 3 petitioners did not fulfill the said requirement of minimum attendance of 65%. However, referring to Annual Quality Assurance Report of 4th respondent, Sri P.Venkata Subba Rao, learned counsel for the petitioners in all the three writ petitions would submit that 4th respondent College shall maintain students attendance and the relevant clause is mentioned below:-
Student Attendance:- Student attendance is monitored through MCMS system linked to biometric devices. All the classrooms have biometric devices installed for students punching before and after every class and Clinical areas. Attendance particulars are sent to parents by SMS to their registered mobile numbers on daily basis.
In the said report, it is also specifically mentioned that the details of hostel inmates are maintained digitally.
8. Referring to the notification dated 27.12.2022, he would submit that the calculation of the attendance percentage is upto 15.01.2023. The uploading of the attendance percentage and internal assessment marks is from 17.01.2023 to 20.01.2023. The confirmation date for attendance and internal marks uploaded is 23.01.2023.
9. It is also relevant to note that 4th respondent had issued handbook for medical students including the attendance which is as follows:-
7ATTENDANCE:-
1. Each student is required to attend punctually at stated hours for lectures, dissection, practicals and Clinicals.
2. Every student must put in 75% of attendance in theory & practical/clinicals. It does not mean that the student can attend only 75% of the theory & practical/clinical classes and absent himself for the remaining 25%. The concession of 25% is only for such of the students who fall sick. The attendance in theory & practicals/clinicals will be sent to the University at the end of every month.
3. No "Attendance certificate" prescribed by the University shall be granted to any student unless he shows satisfactory progress to the authorities responsible for granting the certificate even if they have required percentage of attendance and until they pay all the demands against him.
4. No student will be allowed to appear for the University Examination unless he/she secures 35% in the internal assessment examination conducted by the concerned departments. Very serious note will be taken of the students violating these rules.
5. Each referred student in any particular subject for being recommended to sit for the succeeding examination should put in the 75% of attendance and 35% of marks in the internal assessment examinations conducted by the concerned departments.
10. Learned counsel for the petitioners has also referred the whatsapp message sent by 4th respondent College to the petitioner Ms. V.Reethika Reddy in W.P.No.2796 of 2023. Learned counsel for the petitioners would submit that in the whatsapp message sent on 17.11.2022, it is mentioned as follows:-
17 November 2022 Updated marks & attendance of your ward VOOKANTI REETHIKA REDDY GM-I.A (60) -62% T-64% P-69% GS-I.A (60)-62%T-65%P- 63% OBG-I.A (40)-65%T-57%P-68% PAEDIATRICS-I.A(40)-73%T-
65%P-93% (M-Marks,T-Theory,P-Practicals) KI MS:Principal 8
11. Therefore, according to him, 4th respondent is not following the guidelines issued by 2nd respondent for maintaining attendance. Therefore, there is discrepancy in the attendance of the petitioners. They have not calculated the attendance properly.
12. Whereas, according to the 4th respondent, it has been following attendance policy of 2nd respondent and the same is specifically extracted in the counter affidavit.
13. As discussed supra, the petitioners being Final Year MBBS Degree students shall possess 75% of attendance. However, University is having power to reduce it by 10% on consideration of certain circumstances. In the present case, 2nd respondent University has reduced the said percentage from 75% to 65% considering the COVID- 19 pandemic situation. Therefore, the petitioners shall possess 65% of attendance.
14. The aforesaid attendance particulars furnished by 4th respondent would reveal that they did not possess the aforesaid required attendance. According to this Court, there is no discrepancy in maintaining the attendance. It is also relevant to note that 4th respondent has conducted counseling for the Final Year MBBS Part-II students who have shortage of attendance/or poor performance in internal 9 assessments, along with their parents, between 16.11.2022 and 18.11.2022. The petitioners in all the aforesaid three writ petitions did not attend the said counseling. There is no explanation much less plausible explanation either from the petitioners or from their parents with regard to the same as to why they were absent for counseling. According to the 4th respondent, most of the students along with their were present in the counseling except the petitioners and their parents. In proof of the same, they have filed counseling list wherein both the parents and students have signed there is no dispute with regard to the same. The petitioners and their parents were absent for the said counseling. Therefore, now the petitioners and their parents cannot blame the 4th respondent. Thus, according to this Court, there is no discrepancy in maintaining the attendance by the 4th respondent.
15. With regard to the compliance of the notice, date 07.01.2020 issued by 2nd respondent informing all the Principals of the Medical College that they have to display internal assessment marks and attendance of students on the notice board. There is no complaint that 4th respondent failed to display the same. None of the petitioners have filed any correspondence with regard to the same. Therefore, according to 10 this Court, there is no discrepancies in the attendance being maintained by 4th respondent.
16. Now only question that falls for consideration before this Court is whether this Court in exercise of power under Article 226 of the Constitution of India can waive the shortage of attendance.
17. The said issue is no more res integra in common order dated 03.07.2019 in W.P.No.7876 of 2019 and batch, this Court referring to the several judgments of Apex Court held that this Court is not having power to condone shortage of attendance.
18. Considering similar facts and circumstances, the Apex Court in ASHOK KUMAR THAKUR v. UNIVERSITY OF HIMACHAL PRADESH1 held as under:-
"4. The only question that now remains is whether the petitioner's deficiency in the matter of attendance could be condoned by any authority. The final lecture statement of the Bilaspur and Dharmsla colleges show that the petitioner was short of 20 lectures in Civics, of 10 lectures in Economics, of 10 lectures in History and of 8 lectures in English. Now the rules as to condoning of deficiency in the mater of attendance of lectures are to be found in Chapter XV of the Punjab University Calender 1969. Volume III (Rules). The relevant Rule is 1(a) and the material portion of it is in the following terms:
"(I) Taking into consideration the results of the House examinations:
(a) The Principal of a College affiliated in the Faculties of Arts, Science and Oriental Learning may condone the deficiency in lectures as under:
(i) Upto 15 lectures in each of the subjects;"
1 AIR 1973 SC 221 11 Since the petitioner's deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or competence of the Principal to condone this deficiency. In our opinion this completely destroys the case of the petitioner.
5. Considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favaour of the petitioner even if the petitioner had succeeded in making out a case for condonation. In our opinion, the appeal must fail on this short point. Much as we regret the unfortunate fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the High court, and dismiss the petitioner's appeal. We, therefore, do so. In the circumstances of this case, however, we are making no order as to costs."
19. A Division Bench of the High Court of erstwhile State of Andhra Pradesh, in K.PRADEEP vs. JAWAHARLAL NEHRU TECHNOLOGICAL UNIVERSITY, HYDERABAD2, considering identical set of facts and circumstances, and the law laid down in the earlier Division Bench in AKILESH LUMANI v. PRINCIPAL, SIR C.R. REDDY AUTONOMOUS COLLEGE, ELURU3 , held as under:
"7. In the instant case as the appellant has not secured the required attendance to make him eligible for appearance at the examination, this Court cannot issue a mandamus as prayed for. In our opinion the requirement prescribed by the University is not only a salutary one but also essential one and that attending the college or educational institution is an essential element of education."
2 2002(3) ALD 667 3 2000(4) ALD 630 12
20. An other Division of the High Court of the erstwhile State of Andhra Pradesh, in M.SUNIL CHAKRAVARTHY vs. PRINCIPAL SREEKALAHASTEESWARA INSTITUTE OF TECHNOLOGY4 , in identical set of facts and circumstances, considering various judgments, held as under:
"4. Since nobody has power to condone the attendance below 65% therefore, it should be assumed that even this Court cannot order such a condonation. Something which is prohibited by the regulations cannot be subject-matter of a mandamus.
5. For these reasons, through we have sympathy with the petitioners, but we have no option, but to dismiss the writ appeals. No costs."
21. In view of the law laid down by this court in the aforesaid judgments, this court does not have power to reduce or waive shortage of attendance. It is relevant to note that the petitioners being students of a professional course i.e., MBBS should have been more diligent in attending classes instead of preferring litigation by way of filing present writ petitions. The afore-stated attendance particulars would reveal that their attendance is below the required attendance of 65%. At the cost of repetition, it is also apt to refer that considering COVID-19 pandemic situation, 2nd respondent had reduced minimum attendance from 75% to 65%. 2nd respondent does not have the power to reduce the required attendance further. i.e., below 65%. Even after reducing the minimum 4 2005(1) ALD 253 13 attendance to 65%, the petitioners do not possess the required attendance. Though this Court has sympathy for the petitioners who are in final Year of MBBS Degree, this Court is not inclined to grant relief to them in view of the law laid down by the Apex Court and this court in the aforesaid judgments. Therefore, all the writ petitions are liable to be dismissed.
22. In view of the above, all these Writ Petitions are dismissed.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
___________________ K. LAKSHMAN, J Date:09.02.2022 Vvr.