Andhra Pradesh High Court - Amravati

Akepati Swarnalatha vs The Principal on 19 October, 2022

       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

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. 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

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

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. 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

2021 (1) ESC 174 (SC)/MANU/SC/0037/2021

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.

AIR 1995 MAD 164

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:

MANU/DE/1614/2010

MANU/UP/2791/2021

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)

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

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

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,