Nikita Garg And 55 Ors vs Shri Vile Parle Kelwani Mandal
2016 Latest Caselaw 1030 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                             
                              ORDINARY ORIGINAL CIVIL  JURISDICTION




                                                                     
                                  WRIT PETITION (L) NO.908 OF 2016

      Nikita Garg & Ors.                                                       ..Petitioners
                 Versus




                                                                    
      Vile Parle Kelwani Mandal 
      Through the Secretary & Ors.                                             ..Respondents
                                              
                                        ...........




                                                      
      Mr. Mihir Desai, Senior Advocate i/b. Sariputta Sarnath for the Petitioners.
      Ms. Manorama Mohanty i/b.  S. K. Srivastav & Co.  for Respondent Nos.1 
      to 3.
                                       
      Mr. Rui Rodrigues for Respondent Nos.4 and 5.
                                        ...........
                                      
                                               CORAM:  M. S. SANKLECHA & 
                                                            A. K. MENON, JJ.
                                                              
                                                  DATE :  31ST MARCH, 2016
         


      ORDER (PER A. K. MENON, J.):

1. This is a Petition under Article 226 of the Constitution of India

challenging the decision for Respondent No.1 to 3 and the Respondent

No.5, University of Mumbai debarring the Petitioners from appearing in

the Third Year B.Com (T.Y.B.Com) examination to be held by Respondent

No.5 commencing from 1st April, 2016.

2. The Petition was filed on 28 th March, 2016 and was mentioned

before us on 29th March, 2016 due to the inability of the regular Bench to

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take up the matter. Accordingly the matter was heard on 30 th March,

2016 when only the University of Mumbai was represented, no notice

having been served on the College authorities the petition was taken up

for urgent hearing today 31st March, 2016. We have since heard the

counsel on behalf of the parties. The impugned decision of the

Respondents debarring the petitioners from appearing for the T.Y.B.Com

examination to be conducted by Respondent No.5 and the consequent

withdrawal of the T.Y.B.Com examination forms of the students has its

genesis in an Ordinance issued by Respondent No.5-University of Mumbai

whereby it was necessary for all students covered by the Ordinance to

have secured atleast 75% attendance on an average, subject to a

mandatory 50% minimum attendance in each semester.

3. The Petitioners are 56 in number and it is the grievance of the

Petitioners that they have good attendance and they have good academic

record in the previous semester and hence they should be allowed to

appear for the semester examinations. They have relied upon mark sheets

of about nine Petitioners from the previous semester in support of their

contention. The second semester we are informed, commenced on 16 th

November, 2015 and the classes ended on 3rd March, 2016. The final

semester examination to be conducted by Respondent No.5 from 1 st April,

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2016. It is the case of the Petitioners that on 27 th February, 2016 which

was the day of their farewell, rumour had it that students having low

attendance would not be allowed to appear for the ensuing examinations

but there was no official communication received. It was only on 10 th

March, 2016 that the College uploaded on their website a list of students

with low attendance. According to the Petitioners, out of the requisite

number of 320 lectures to be conducted the College had conducted 276

lectures. The shortfall in attendance was recorded in respect of these 276

lectures. The Petitioners were required to have attended at least 50% of

these lectures and it is their case that they fell short of the required 50%

average attendance by "narrow margin".

4. According to the Petitioners they have submitted all relevant

documents in support of their individual cases to demonstrate their

inability to attend sufficient number of lectures but the Respondent did

not consider the documents including medical certificates and rejected

their claims seeking condonation of shortfall in attendance. On 16 th

March, 2016 the College informed the Petitioners regarding withdrawal of

their examination forms and intimated the Petitioners as per Ordinance

No.6086 that the Petitioners could approach the Controller of

examinations and the committee appointed by the Controller to take a

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decision in the matter. The Ordinance provides that students could

approach the said Committee which would consider their case and either

agree or disagree with the decision of the College to withdraw the

examination forms.

5. In the instant case, the Petitioners have relied upon a tabulated

form appearing at Exhibit G, of the petition, reproducing the names of 56

Petitioners, their percentages of attendance and the reason for low

attendance. The attendance recorded in respect of these 56 Petitioners

were all below 50%. They range from 6.14% in the case of Petitioner

No.21 to 47.29% in the case of Petitioner No.51. Various other Petitioners

have recorded attendance, between these two figures. The grievance of

the Petitioner is that after having appealed to the University of Mumbai,

on 18th March, 2016 the University released the results of the appeal in

which it was found that out of a total number of 87 students who have

applied for reconsideration of their respective cases in only 24 cases the

University had approved the reasons given for shortfall in attendance and

had permitted these 24 students to appear for the examination. As far as

remaining students are concerned, they were debarred from appearing in

the examination. It is the Petitioners case that after receiving the aforesaid

intimation they wrote to the Vice Chancellor of the Respondent No.5-

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University seeking his intervention but to no avail.

6. Mr. Desai, the learned Senior Advocate, who appeared before us on

behalf of the Petitioners submitted that the case of the Petitioners is not

without a precedent. He made three submissions. According to Mr. Desai

no reasons have been given either by the College authorities or by the

University for their decision to debar the students. Secondly, some

students who had approached the Appellate Authority pursuant to the

Ordinance were allowed to appear for the examination although their

attendance was below the 50% limit. Thirdly, at least 10 students who

had between 40% to 45% attendance were denied the opportunity to

appear. Thus, the University has arbitrarily chosen some students to

qualify for the examination. He therefore assailed the decision of the

authorities on these three grounds . In support of his submissions he relied

upon the decision of a Division Bench of this Court in Writ Petition

No.3776 of 2015 Preeti M. Sondarwa & Ors. v/s. The Controller of

Examination, University of Mumbai & Ors. rendered on 10th July, 2015.

wherein the Division Bench had allowed the Writ Petition and connected

matters observing that the Respondents must regularise the terms of the

Petitioners to their respective courses. The Ordinance No.6086 came in

for consideration in those group of Petitions whereby the manner of

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dealing with the case of students attendance falling below 50% was

considered and which pertained to the very same Respondent Institute as

in this case. In that case the list of defaulters were displayed on the notice

boards. However, that group of petitions related to students who were

appearing for the internal examination of the institute for the First Year

B.Com and Second Year B.Com. We may straightway observe that in these

petitions there was no challenge to the legality or constitutional validity of

the Ordinance. The Court observed that scope of judicial review in such

matters is limited but if it affected the civil rights of a students on account

of the same being unjust or contrary to law, particularly the denial of

principles of natural justice, the Court could examined the same.

7. Relying upon the aforesaid decision Mr. Desai submitted that the

Division Bench had observed that the day the College published the

defaulters list, an adverse decision was taken against the students which

affected their civil rights. In these cases no separate show cause notices

were issued to the learners/students dealing with the alleged default for

want of attendance. There was no provision to deal with specific material

which would be used against the students with particular reference to the

attendance record since all the attendance records were always in the

exclusive possession and control of the College. The Division Bench

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observed that there was no procedure in the Ordinance which permitted

the students to inspect and verify their attendance record. The whole

material for calculation of low attendance was with the College and there

was no provision to offer explanations or an opportunity to rectify the

record of the students allegedly in default leading them to be debarred

without a proper opportunity to show cause.

8. Mr. Desai relied upon the observations in paragraph 18 of the said

judgment where the Division Bench observed that students civil rights

being affected no procedure had been followed and no show cause notices

were issued asking him to explain the default every month and no

reasoned individual or separate orders had been passed. According to Mr.

Desai in that case, by a common order, the Appellate Authority had

decided the case of the Petitioners without separate case to case reasons

thereby resulting in violation of basic principles of natural justice. Mr.

Desai therefore submitted that the Petitioners be permitted to appear for

the examinations.

9. On behalf of University, Mr. Rodrigues, opposed the petition and

submitted that every opportunity was given to the students- Petitioners to

explain their stand. He submitted that as a matter of practice and

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pursuant to the judgment in the earlier case cited by Mr. Desai several

procedures had been laid down and followed. The College had collected

all information pertaining to the students inability to attend, had given a

hearing to the students and their parents and thereafter found it necessary

to debar them from appearing for the examination. The Appellate

Authority had thereafter considered each of the Petitioners case and had

recommended some of them for appearing in the examinations based on

the merits of each case. The University according to Mr. Rodrigues had

relied upon the records of the College in this respect and was satisfied that

due process had been followed. Mr. Rodrigues further submitted that the

Petitioners have chosen to approach the Court at the very last moment

when exams are to commence from 1st April, 2016. He alluded to the

practical difficulties in permitting these students to appear at this last

minute even if the Court was inclined to so direct in view of the fact that

allotment of centres, examination halls, distribution of hall tickets and all

other administrative machinery was already in place for conduct of the

examinations and if a last minute direction is given to the University to

permit the Petitioners to now appear it would throw entire establishment

into disarray. He therefore submitted that the Court should decline the

reliefs on these grounds itself.

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10. According to us, this is a hardly a ground that could be urged by

the University if in fact there has been violation of principles of natural

justice. The College and the University was bound to consider the

Petitioners appeals in accordance with law. We had therefore on 30th

March called upon Mr. Rodrigues to produce the relevant Minute Book, if

any, available with the Respondent No.5 since he stated that due process

will be followed however since the entire staff of the University has now

been inducted for examination duties, it was not possible for him to have

all the records produced at short notice. He further submitted that

University had relied upon the College records to assist them in their

decision making process and that the college records were the basis of the

enquiry at the appellate stage. He however produced a few documents to

demonstrate that each case had been considered and approved or

disapproved.

11. We therefore called upon Ms. Mohanty who appears for

Respondent No.2 -College to address us on the aspect as to how the

Petitioners came to be debarred. Ms. Mohanty has submitted that the

College was served only on last evening and in the short time it was

unable to respond on oath but sought leave to produce, refer to and rely

upon various steps taken by the College authorities with documents in

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support of her contentions. We have allowed her to do so. At the

beginning of the year the student and his/her guardian while taking

admission gave a written undertaking as part of the Admission forms to

the effect that they would attend classes regularly. This undertaking was

given after recording the fact that the failure to attend classes regularly

may result in the student not being able to attend the examinations. They

agreed to abide by the decision of the College on this account. According

to Ms. Mohanty the second semester started from 16 th November, 2015

and it was soon found that the Petitioners were falling short of

attendance. Accordingly from 5th December, 2015 onwards right upto 27 th

January, 2016, the Petitioners were informed of their shortfall of

attendance. This was done in two ways. Firstly, the attendance reports

for each Division for the period 16 th November, 2015 to 22nd December,

2015 was displayed on the notice board. This continued for further

periods upto 28th January, 2016 and 3rd March, 2016 thereby covering the

entire semester in this attendance report. Copies of these reports have

since been perused by Mr. Desai appearing for the Petitioners. The College

has recorded the number of lectures held and attended and the percentage

of attendance. This is provided in respect of all the students and we find

from this record that some of the students had recorded 100% attendance

and several are ranging between to 85% to 96%. The Petitioners we find

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have recorded a percentage i.e. below 50% attendance of lectures. After

this attendance report was displayed, each of the students were sent

emails on 7th January, 2016 setting out their attendance from 16 th

November, 2015 to 22nd February, 2015. The postscript of the emails read

as follows:-

"Representation about the veracity of the above attendance details may be made to the college within 48hrs from the

receipt of this mail failing which it will be deemed that you and your ward have accepted the above record as true and

correct."

12. Another email was sent to the students dated 5th February, 2016

intimating them of their attendance figures during the period 16 th

November, 2015 to 31st January, 2016. This is included the average

attendance, total number of classes conducted, number of classes attended

and the percentage. The copies of the email have since been perused by

Mr. Desai. It contains a postscript note which reads as follows:-

"If you have anything to say, please let us know."

It is not the case of any of the Petitioners that these emails have not been

received nor is it the case of the Petitioners that having received these

emails they have disputed the figures of low attendance.

13. The College did not stop at this but in the meanwhile published a

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notice on the notice board dated 28 th November, 2015 inviting their

attention to the fact that they should maintain 75% attendance of lectures,

tutorials and practical's conducted during the semester, failing which they

will not be permitted to appear for the semester and that this was likely to

lead to a loss of the academic year (Emphasis supplied). The College

thereafter published notices on 7 th December, 2015 and 13th January, 2016

intimating students who are defaulters in attendance calling upon them to

attend meetings along with their parents on 12 th December, 2015 and 15th

January, 2016 respectively. The parents and the students attended and all

of them were informed of the shortfall in attendance. Written

undertakings were obtained from each of these students addressed to the

Principal wherein the parents and the students both have signed. They

have acknowledged the contents of Ordinance No.6086 and its mandatory

requirements. They acknowledged their shortfall in attendance. They

acknowledged of having been counselled by Class-mentors to maintain the

minimum attendance and finally undertook that they will henceforth

attend all lectures, tutorials and practicals failing which they may be

debarred from appearing in the semester examinations. Ms. Mohanty has

produced before us originals of all these undertakings. None of the

contents of these undertakings have been disputed and although the fact

situation in the present case is quite different from those before the

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Division Bench hearing Writ Petition No. 3776 of 2015, we have no doubt

in our minds that the College has complied with the guidelines suggested

by the Division Bench in the order dated 10 th July, 2015 so as to ensure

that the mechanism of providing an opportunity to the students is

followed in the best interest of the students.

14. Ms. Mohanty has also produced before us an acknowledgement by

92 students who fell short of attendance of having attended the meeting

on 14/15th March, 2016 at the hearing of the appeal before the University

Authorities and each of these persons are seen to have signed on the

attendance sheet against the total attendance recorded. Thus, we find it is

not possible to accept the submissions of Mr. Desai that no opportunity

was given to students and no personal hearing was given to the students

or that no reasons were given for debarring them. Although the fact

situation of the present case is distinguishable from the fact situation at

the time the Division Bench disposed of the Writ Petition No.3776 of 2015

and connected matters, at that time none of these steps now shown to us

by Ms. Mohanty were taken by the College or University, whereas after the

said judgment we are satisfied that the College has left no stone unturned

to ensure that the students were given every opportunity of complying

with the requirements and of rectifying short fell in attendance. On 15 th

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March, 2016 the College is seen to have written to the Controller of

Examinations enclosing list of 93 students of T.Y.B.Com, 33 students of

T.Y.B.A. and 24 students of T.Y.B.Sc. who were debarred from appearing in

the semester VI examination for want of attendance. The College informed

the University that the following steps were taken in accordance with

Ordinance No.6086 and despite of the aforesaid efforts the students have

failed to fulfill the norms.

"The following measures were taken to ensure attendance as per the University of Mumbai Ordinance 6086.

1) Undertaking duly signed by the Students and the Parents

from the admission form.

2) Orientation Session/Lecture is conducted for the students.

3) Notice dated 28/11/2015 displayed on the notice board as well as circulated in the class room to create awareness

about the importance of attendance.

4) Day-wise, class-wise, division-wise and lecture-wise

attendance is taken and recorded in our SAP software.

5) Attendance data displayed every month on the notice board as well as email sent to the parents about the attendance of their ward.

6) Parent's meetings were conducted twice in the month of December- 2015 & January-2016 and undertaking was obtained duly signed by students and parents.

7) The list of students whose term is not granted and

debarred from examination was displayed on the notice board as well as on the website providing opportunity to the students to appeal to the Principal.

              8)     The   decision   on   appeal   was   communicated   to   the  
                     students."

15. Thereafter on 16th March, 2016 the College had individually

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communicated to each of the students who were being debarred from

taking the final examination (87 in all including the 56 Petitioners) that as

per Ordinance they can approach the University Authorities. All 87

students approached the University Authorities i.e. Low Attendance

Redressal Committee in terms of the Ordinance on 17 th March, 2016. Out

of 93 students 87 students including the Petitioners were offered an

opportunity of personal hearing and on 18 th March, 2016 the Redressal

Committee allowed 24 of the 87 students to appear at the examination

rejecting the others including the 56 Petitioners before us.

16. It is in this background that the present facts have to be viewed.

After having heard the learned counsel for the parties in the context of the

present facts we have no manner of doubt that College has done all that it

could in bringing to the notice of the students the attendance and calling

upon them to remedy the situation. Ms. Mohanty in support of her

contention pointed out that although the Division Bench had earlier set

out the guidelines in Writ Petition No.3776 of 2015 in a subsequent

matter being Writ Petition No.11168 of 2015, wherein the sole Petitioner

sought similar reliefs seeking permission to appear in the examinations

which were to commence on the following day, the petitioner was

declined any relief in view of the fact that the Petitioner therein was

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intimated of her low attendance and she was fully aware of her

attendance being insufficient. In this case we find that the guidelines in

the judgment of the Division Bench in Preeti Sondarwa (supra) have been

followed by the College Authorities and accordingly we find that the facts

in the present case do not justify any interference in our writ jurisdiction.

17. We are therefore constrained to observe that although our

sympathies are with the students who will now not be able to attend

examination we cannot overlook the basic and undeniable position that

lectures are necessary to be attended and are not optional. The

education curriculum which requires students to attend College classes

have been evolved by experts in the field who are best equipped to decide

the necessity of students attending classes to be fully quipped to

undertake the voyage of life. As observed by Albert Einstein, the role of

college education is not merely learning of facts, but the training of the

mind to think. The best opportunity for this to happen is when the

student attends classes and interact with the teachers and fellow students

with regard to the subject being taught. As observed by Socrates ,

Education results in kindling of the flame not mere filling up of the vessel.

This kindling of the flame occasions when questions are asked of the

teachers and the resultant interaction. One more fact which must be not

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lost sight of is every person carries with him for his life a large part of the

values and knowledge received at his Alma mater. Every person is an

advertisement for the good or bad of his Alma mater. Thus every

institution is aware of and therefore keen to impart the best education to

its wards. It is not adversarial to the students' interests. The parents of

the students must appreciate this and encourage their wards to attend

classes for the students personality to flower. If students are unable to

attend lectures, online studies may be suitable in specific cases but when

one opts to take education in College, one must follow the discipline of

the College. This discipline would help to shape the student in a manner

such that the journey of life is comfortably travelled. Though the

Petitioners are losing a year, one must remember it is insignificant in the

context of a life of three score and ten if not 100 years. The parents must

appreciate this and bring it to the notice of their wards, the petitioners.

We are all aware that obtaining admissions to institution today is in itself

an arduous task. Having secured admissions we cannot take kindly to

willful abstinence from classes. We must bear in mind that the

petitioners may have displaced several hopefuls by securing admission in

the first place. The admission forms of some of the students were shown

to us and it contains a clear provision inviting the attendance of

students and parents that attendance is compulsory. The fact situation

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reveals that every opportunity was given to them to remedy the shortfall

in attendance but they have omitted to remedy the shortfall. In the course

of extensive submissions made before us, we called upon Mr. Desai to

demonstrate as to how the College and University has behaved in arbitrary

fashion but we are not convinced that the students have been wronged.

18. In view of the fact that the students who are likely to lose an

academic year and given the short time we have made every effort to

investigate whether they have been wronged and were unfairly and hastily

denied the opportunity to appear for the exams but the records produced

by the College reveals an entirely a different fact situation. We are

therefore constrained to decline to entertain the Petition.

19. In the circumstances, we pass the following order:-

(i) Writ Petition is dismissed.

(ii) There will be no order as to costs.

               (A. K. MENON, J.)                              (M. S. SANKLECHA, J.) 




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