Bombay High Court
Anirudh Devansh vs Vile Parle Kelwani Mandal And 2 Ors on 13 April, 2017
Bench: Shantanu S. Kemkar
1 of 32 WP.444.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.444 OF 2017
Anirudh Devansh Petitioner
versus
1. Shri Vile Parle Kelwani Mandal, Mumbai
2. Mukesh Patel School of Technology, Management
and Engineering, Mumbai;
3. Narsee Monjee Institute of Management Studies
Deemed University, Mumbai. Respondents
WITH
WRIT PETITION (L) NO.621 OF 2017
Pranav Hajirnis Petitioner
versus
1. Shri Vile Parle Kelwani Mandal, Mumbai
2. Mukesh Patel School of Technology, Management
and Engineering, Mumbai;
3. Narsee Monjee Institute of Management Studies
Deemed University, Mumbai. Respondents
WITH
WRIT PETITION (L) NO.674 OF 2017
Rubin Jhambani Petitioner
versus
1. Shri Vile Parle Kelwani Mandal, Mumbai
2. Mukesh Patel School of Technology, Management
and Engineering, Mumbai;
3. Narsee Monjee Institute of Management Studies
Deemed University, Mumbai. Respondents
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WITH
WRIT PETITION (L) NO.678 OF 2017
Shivam Mahana Petitioner
versus
1. Shri Vile Parle Kelwani Mandal, Mumbai
2. Mukesh Patel School of Technology, Management
and Engineering, Mumbai;
3. Narsee Monjee Institute of Management Studies
Deemed University, Mumbai. Respondents
Mr.Mihir Desai, Senior Advocate, with Mr.Sarnath Sariputta Pramod
for Petitioner in Writ Petition (L) No.444 of 2017.
Mr.Uday Warunjikar with Mr.Omkar C. Geedh for Petitioners in Writ
Petition (L) Nos.621/2017, 674/2017 and 678/2017.
Ms.Manorama Mohanty with Mr.A.P.Singh i/by M/s.S.K.Srivastava &
Co. for Respondent nos.1 to 3 in all writ petitions.
CORAM : SHANTANU S. KEMKAR AND
PRAKASH D. NAIK, JJ.
Date of reserving the Judgment : 21st March 2017
Date of pronouncing the Judgment : 13th April 2017
CAV JUDGMENT - (Per : Prakash D. Naik) :-
1. The Petitioners in all these petitions have raised a common
issue and hence the petitions are disposed of by common judgment
and order. The Petitioners are students of Respondent no.2, which is
managed by Respondent no.1 management and is affiliated to
Respondent no.3 deemed university. The Petitioners have invoked
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writ jurisdiction of this Court under Article 226 of the Constitution of
India and have challenged the communication dated 22 nd November
2016 issued by Respondent no.2 debarring them from appearing in
their examination as well as the order dated 31 st January 2017
passed by the Dean of Respondent no.3.
2. The Petitioner in Writ Petition (L) No.444 of 2017 was
studying in the first semester of Master in Business Administration-
Tech (Electrical) course which is of five years. He was admitted to
the said course in the academic year 2015-16. However, he could
not pass the said examination and was required to appear for the
additional examination conducted by Respondent no.2. The results
of additional examination were declared on or about 5 th August
2016. He again failed to achieve success. According to him, he had
to enroll to the course only after the results were declared and
therefore, missed the lectures till the date he was enrolled to the
course. The course had commenced from 18 th July 2016 and he was
able to obtain admission on 19th August 2016. He was not allowed
to attend the lectures prior to the admission. It is contended by the
said Petitioner that he was ill from 19th September 2016 to 23 rd
September 2016 and despite that, made attempts to attend the
lectures, but was able to attend a few lectures. He relied upon the
medical certificate dated 24th September 2016. He further contended
that he had to undergo mental trauma and depression and was
attending counseling sessions during the period from 25 th August
2016 to 25th September 2016. He placed reliance upon medical
certificate dated 15th November 2016. According to him, he attended
additional compensatory lectures to compensate the loss of
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attendance, as the same was allowed by the faculty members but the
head of the department did not sanction the additional attendance.
These additional lectures were not considered. Notice dated 22 nd
November 2016 was displayed on the notice board mentioning that
the said Petitioner was debarred from end of semester examination
and that his term will not be granted. He preferred an application to
the Respondent authorities for consideration of his case by giving
reasons to condone the absence. The Respondents sent letter to the
parents of Petitioner and were informed that the Petitioner has not
been granted term due to lack of attendance vide letter dated 19 th
November 2016. It was stated that the Petitioner will have to appear
for the course in the next year. Similar communication was issued
on 21st November 2016. The said Petitioner preferred Writ Petition
(L) No.3173 of 2016 before this Court. By an order dated 5 th
January 2017, the petition was disposed of by directing the Petitioner
to approach the Respondent no.1 management vide representation,
which shall be decided by the management after granting hearing to
the Petitioner. The Petitioner, therefore, submitted his representation
dated 9th January 2017. Hearing was given to him vide letter dated
31st January 2017. The said Petitioner was informed that his case
was considered and the request for grant of relaxation to continue
the course was rejected as he lacks 80% attendance in two subjects,
viz. Engineering Mathematics and Engineering Mechanics.
3. The Petitioner in Writ Petition (L) No.621 of 2017 took
admission on 19th June 2015 with the Respondents for five years
Master in Business Administration-Tech course. The examination of
the second semester of the first year course was scheduled from 30 th
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June 2016 to 7th July 2016. As the results were not declared of the
first semester and the second year course had started on 18 th July
2016, the Petitioner started attending the lectures. The results were
declared on or about 5th August 2016. The Petitioner was unable to
pass his academic year of the course. The lectures of the first
semester of the first year course had already commenced on 18 th July
2016. He took re-admission for the said course on 23 rd August 2016.
He attended the lectures in the first semester of the second year
course from 18th July 2016 to 5th August 2016. However, he missed
out the first year course lectures prior to the date of his re-admission.
On account of his ill health, he was unable to attend the lectures on
29th September 2016 and 27th October 2016. He relied upon medical
certificate which was submitted to the college. His grand-father
expired on 3rd October 2016 and he had to go through the mental
trauma on account of said loss. He did not attend the lecture on 4 th
October 2016. He contended that compensatory lectures to
compensate the loss of attendance were attended by him which was
allowed by the faculty members but not sanctioned by the head of
department. Although he attended the lectures regularly, he had to
miss few lectures due to unavoidable circumstances. Notice dated
22nd November 2016 was displayed with the similar contents as
stated in case of Petitioner in Writ Petition (L) No.444 of 2017. He
approached the Respondent college by an application dated 26 th
November 2016 by attaching the medical certificate dated 26 th
November 2016 and requested to consider his case. The
Respondents forwarded the letter dated 19th November 2016 to the
parents of the Petitioner which is similar to the letter referred to in
the earlier paragraph. The Petitioner, therefore, approached this
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Court by preferring Writ Petition (L) No.3173 of 2016 which was
disposed of by order dated 5th January 2017 with similar order as
referred to hereinabove. The Petitioner submitted a representation
dated 9th January 2017. He was heard by the management. By letter
dated 31st January 2017, the Petitioner was informed that the request
for grant of permission to continue the course was rejected on
account of lack of 80% attendance.
4. The Petitioner in Writ Petition (L) No.674 of 2017 took
admission on 19th June 2016 for the four years Bachelor in
Technology-Civil course. According to him, due to ill health, he
could not attend the lectures for the period from 28 th September
2016 to 30th October 2016, 12th September 2016 to 20th September
2016 and 3rd November 2016 to 9th November 2016. He placed
reliance upon medical certificates which were submitted to the
college. According to him, the Respondent college did not consider
his medical leave for the period from 3 rd November2016 to 9th
November 2016 while calculating his percentile of attendance. He
also attended the compensatory lectures to compensate his loss of
attendance, which was allowed by the faculty members but were not
considered for calculation of percentile of attendance. The
Respondents pasted notice dated 22nd November 2016 and letter
dated 19th November 2016 debarring the Petitioner from attending
the semester. The said Petitioner, therefore, approached this Court
by preferring Writ Petition (L) No.3173 of 2016. The said petition
was disposed of by order dated 5th January 2017 by directing the
Petitioner to approach the Respondent no.3 for hearing. The
Petitioner was heard on 23rd January 2017. By order dated 30 th
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January 2017, the Respondent no.3 rejected the request of the said
Petitioner for continuation of the first semester. The Petitioner has,
therefore, preferred this petition.
5. The Petitioner in Writ Petition (L) No.678 of 2017 took
admission on 30th August 2016 for the four years Bachelor in
Technology-Mechatronics course. According to him, due to ill health,
the Petitioner could not attend the lectures for a period from 10 th
October 2016 to 15th October 2016 and 26th October 2016 to 7th
November 2016. He placed reliance on medical certificates.
According to him, he attended compensatory lectures to compensate
the loss of attendance which was not considered by the Respondents
while calculating the attendance. He regularly attended the lectures
but missed few lectures due to unavoidable circumstances. However,
the Respondents displayed a notice dated 22 nd November 2016
stating that the Petitioner was debarred from the end of semester
examination. The Respondents also issued letters to the parents
informing them about aforesaid fact. The Petitioner approached this
Court by preferring Writ Petition (L) No.3173 of 2016 which was
disposed of vide order dated 5th January 2017. The Petitioner was
directed to approach the Respondent management and make a
representation which was to be decided by the Respondents after
giving hearing to the Petitioner. The Petitioner submitted his
representation dated 9th January 2017. He was given hearing on 23 rd
January 2017. By order dated 30 th January 2017, the request for
continuation of the admission of the Petitioner for the said semester
was rejected by the Respondent management.
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6. We have heard learned Senior Advocate Mr.Mihir Desai and
learned advocate Mr.U.P.Warunjikar appearing for the Petitioners and
learned advocate Ms.Manorama Mohanty for Respondents. The
Respondents have also placed on record affidavit-in-reply in respect
to all the petitions and countered the submissions of the Petitioners.
The Petitioner in Writ Petition (L) No.444 of 2017 has also filed
additional affidavit. We have perused the contents of the petitions,
affidavit-in-reply as well as additional affidavit.
7. Mr.Desai, learned Senior Advocate, appearing for the
Petitioners submitted that the order dated 30th January 2017 was
passed in most mechanical manner and without adhering to the
directions issued by this Court vide order dated 5 th January 2017. He
submitted that the Petitioners have complied with the requirement of
rules embodied in Student Resource Book in respect to the
attendance. He submitted that the documents and the reasons
furnished by the Petitioners for continuation of their absence, was
not considered in proper perspective by the Respondents. He
submitted that the fact that the results of the Petitioners were
declared belatedly and thus the petitioners could enroll themselves
to the course belatedly resulting in inability to attend the classes, was
not considered by the Respondents. The said period ought to have
been condoned by the Respondents, as the course had commenced
prior to re-admission of the Petitioners. The Petitioners had missed
out the lectures due to medical conditions and they submitted
medical certificates, which ought to have been taken into
consideration while calculating the percentile of attendance by the
Respondents. He further submitted that the Petitioner in Writ
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Petition (L) No.444 of 2017 had attendance of more than 80% in all
the subjects, except two subjects viz. Engineering Mathematics and
Engineering Mechanics. The entire decision making process of the
Respondents was arbitrary, capricious and in flagrant violation of
principles of natural justice. There was no personal hearing, case by
case, and proper individual verification of genuineness and gravity of
the problems, which was justifying the absence of students. He
submitted that Rule 3.2.3 of the Student Resource Book of
Respondent college permits condonation of absence between 70% to
80%, which power can be exercised by the Dean/Directors. There
was a failure on the part of Respondents to use discretion in favour
of the students by Respondent no.3. He submitted that rules are not
clear whether attendance of the Petitioners was considered subject-
wise or at an aggregate for the purpose of appearing for the
examination. He relied upon the contents of additional affidavit filed
on behalf of Petitioner in Writ Petition (L) No.444 of 2017 wherein it
was stated that the Respondents have erroneously mentioned that
total number of theory lectures were 34 wherein upon calculating
the total in the primary attendance record provided by the
Respondents, shows that there were 32 theory lectures. It is further
stated that the attendance in the subject of Engineering Mechanics is
indicated in the attendance sheet provided to the said Petitioner and
the said attendance sheet calculates to have conducted 32 theory
lectures out of which the said Petitioner has attended 16 theory
lectures, while 22 practical lectures were conducted in the semester
wherein he had attended 22 practical lectures including additional
lectures. He submitted that the percentage of attendance qua the
said Petitioner calculates to 70.37%. He submitted that considering
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the exemption granted on the basis of medical certificates,
percentage of attendance of the said Petitioner stands to be between
70% to 80%. There were arithmetical errors in calculating the
attendance percentile of the students by Respondents.
8. Mr.Warunjikar, learned advocate appearing for other
Petitioners submitted that there was error apparent on the face of the
record in calculating the attendance of the Petitioners. He submitted
that the Respondents are not following transparent procedure in
marking the attendance of the students. He submitted that in the
reply filed by the Respondents it has been stated that internal faculty
every day recorded the attendance of the students and after
completion of the class, entered the same in the computer. With
reference to the said averments, Mr.Warunjikar submitted that the
procedure adopted by the Respondents is defective as it is difficult to
note the attendance of the students who are present in the class
without maintaining any attendance register in the class and it is
difficult to believe that attendance is recorded after the class is over
by the Respondent college, as stated in the affidavit-in-reply. He,
therefore, submitted that the benefit of the irregular procedure must
be given to the students. He submitted that in view of the issues
involved in the matter, the Petitioners be allowed to attend the
classes by admitting the Petitions. He submitted that the Petitioners
will not claim any equity in case the petitions are subsequently
dismissed. He further submitted that the Respondents had not
considered the explanation tendered by the Petitioners for
condonation of their absence and the rules were misinterpreted by
the Respondents to the disadvantage of Petitioners-students.
11 of 32 WP.444.2017
Mr.Warunjikar contended that the procedure followed by the
Respondents is arbitrary and in violation of principles of natural
justice. They were not given personal hearing case by case and not
properly verified individual data, which could justify the calculation
of percentile of attendance. The Respondents have primary data of
external faculty members of inspection but not primary data of
internal faculty members for inspection. The Respondents did not
give inspection of primary data of attendance taken by internal
faculty members on daily basis. The Respondents gave inspection of
the data which has been submitted by them before this Court, which
was arbitrary and unjust. According to the Petitioners, Rule 3.2.3 of
the Student Resource Book of the Respondent college permits
condonation of absence between 70% to 80% to be exercised by the
Dean/Director while considering/adopting debarment procedure.
The said power was not exercised by the Respondents.
9. The Petitioners further contended that compensatory lectures
attended by them were not taken into consideration. The notice
dated 22nd November 2016 was issued without giving any show
cause notice to them and deprived them of opportunity to give an
explanation. It is submitted that on account of arbitrary action of the
Respondents, several students have lost academic year. The
Respondents having deemed university status is not at par with other
universities. The procedure followed by the Respondents of not
maintaining records of primary data creates doubt about the action
taken by the Respondents. It is further pleaded that in spite of
demand of primary data of attendance, the Petitioners were provided
inspection of computer generated attendance sheets.
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10. Ms.Mohanty, learned counsel appearing for Respondents
submitted that the submissions made by the Petitioners are devoid of
any merit. The Respondents have followed the correct procedure
while calculating the attendance of the Petitioners. She further
submitted that the Petitioners have failed to comply with the rules of
attendance and, therefore, the communication debarring them from
continuing the semester is justifiable. She further submitted that in
pursuance of the order passed by this Court, proper hearing was
given to the Petitioners, the documents submitted by them were
taken into consideration and in spite of giving all the exemptions to
the Petitioners, they were found not entitled for the benefit.
Therefore, the requests made by them could not be accepted. She
further submitted that the objections raised by the Petitioners in
these petitions with regard to the genuineness of the calculations of
the attendance of the Petitioners is after thought. She submitted that
the calculations submitted by the Petitioners by way of chart etc. and
by producing the documents in support of their representations, were
taken into consideration by Respondents and were considered in
proper perspective. But the case of the Petitioners was not falling
within the purview of rules contained in Student Resource Book, and
therefore, the decision of debarment was confirmed by order dated
30th January 2017. She further submitted that in the admission form
itself it was categorically mentioned that the Petitioners-students will
adhere to the norms of attendance. For instance, in the admission
form of the Petitioner in Writ Petition (L) No.444 of 2017, which is
placed on record by the Respondents in its affidavit-in-reply, at page
64, it is reflected that he will put in minimum 80% of the attendance
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for each subject, in the absence of which he will not be eligible to
write the examination for the concerned subject. She further
submitted that e-mails were forwarded to students intimating them
that they were short of attendance and they should adopt corrective
measures. She further submitted that the Petitioners were aware
that they are not complying with the norms of attendance and were
alerted by the college. The grounds of illness or justification for their
absence came at belated stage which is apparently after thought.
She also submitted that the Petitioners have submitted medical
certificates in support of their prayer for condonation of absence for
a particular period, although practically they were present for the
lectures on some of those days. She, therefore, submitted that the
genuineness of the certificates submitted by the Petitioners is
doubtful.
11. Learned counsel for Respondents placed reliance upon
decisions of this Court, which are as follows :
(i) Nikita Garg and others Vs. Vile Parle Kelwani Mandal and
others - 2016(3)-ABR-450;
(ii) Judgment of a Division Bench of this Court in Writ Petition (L)
No.865 of 2016 decided on 28th April 2016; in the case of
Shantanu R. Godara Vs. Shri Vile Parle Kelwani Mandal & ors.
(iii) Aishwarya V. Jain V/s. Maharashtra State Board of Technical
Board, Mumbai Sub-Region and others - 2016(5)-Mh.L.J.-176;
(iv) Judgment of a Division Bench of this Court in Writ Petition
No.840 of 2016 decided on 29th June 2016; in the case of
Kum.Kamakshi Roy Vs. The State of Maharashtra & others.
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12. The Respondent no.3 has provided the Student Resource Book
to the students which clearly states guidelines and the rules to be
followed by the students for the term being granted during
completion of every semester. The Respondent no.3 is strictly
following the rules and regulations framed in the student resource
book. This rule book has been agreed upon by the Petitioners during
admission in the admission form. Rule No.3.0 which relates to
attendance and gave guidelines for all the students, can be quoted
herebelow, which read as follows :
"3.0 Attendance and leave guidelines for all students :
3.1 General Guidelines -
3.1.1 A student is required to monitor his/her own
attendance. The attendance reports will be shared on monthly
basis and discrepancy (if any) to be informed by the student to
the concerned course coordinator within 3 working days from the
date when report has been shared. No changes will be permitted
once attendance reports are finalized.
3.1.2 For ALL absence, prior intimation through
prescribed leave application form is to be given to the Course
Coordinator. In emergent situations, intimation must be given to
Course Coordinator on phone/fax/email within 24 hours of the
absence. Any leave without written intimation will be treated as
unauthorised leave and will be reflected in the records as such.
3.1.3 Students must refrain from approaching the visiting
and full time faculty members for attendance related issues and
exemptions. They must submit an application to the coordinator
concerned for necessary approvals.
3.2 Attendance rules for all School :
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3.2.1 100% attendance in classes for each subject is
desirable. However, for medical reasons/personal
reasons/contest/placement/institutional work/other activities
etc. absence upto 20% may be allowed.
3.2.2 Students, who are having attendance, in a
Trimester/ Semester, in each subject, equal to or more than 80%
are eligible to appear at the respective Trimester/Semester term
and examinations.
3.2.3 Exceptional cases for students having attendance
between 70% to 79.9% in any subject(s), will be dealt with on
case to case basis by Dean/Directors of the respective schools.
Such students will be eligible to appear for the regular
trimester/semester and term examination, subject to approval of
exemption from attendance is granted from the Dean of
respective School/Director of the respective campus.
3.2.4 Students who are having attendance less than 80%
in individual subject/s in a Trimester/Semester and if the Dean
of the respective School/Director of campus has not given
exemption, have to take re-admission in the same
Trimester/Semester in the same class of subsequent academic
year by paying requisite fees on prorata basis as per the
prevailing rules of NMIMS and complete all the requirements of
the program.
100% attendance in each subject is desirable.
Attendance Remarks
% (In each
subject/s)
80% and Eligible to appear for Trimester/Semester End
above Examinations.
70% to Eligible to appear for Trimester/Semester End
79.9% (10% Examinations subject to approval of exemption granted
Exemption) from the Dean of respective School/ Director of the
respective campus/Associate Dean.
Below 80% Have to take re-admission in the same Trim/Sem same
(Not eligible class in the subsequent academic year."
for
exemption)
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13. As per Clause 3.2 of the student resource book of 2016-17, the
student has to secure minimum 80% of attendance in each subject to
be held eligible for trimester/semester end examination. The student
whose attendance is 70% to 79.9%, are not eligible to appear for the
trimester/semester end examination subject to approval of
exemption granted by the Dean of respective school/Director of the
respective campus/Associate Dean (Medical reasons/personal
reasons/contest/absence/institutional work/ other activities etc.).
Hence, the students who secure less than 80% attendance had to
take re-admission in the said trimester/semester in the subsequent
academic year. The Respondents have placed on record the
admission forms filled up by the Petitioners wherein they have
agreed upon the attendance clause and declared that they would
record minimum 80% attendance for each subject and in the absence
of which the Petitioners will not be eligible to write the examination
for the subjects. Clause No.F-9 of the admission form categorically
mentions that the student has fully understood that he will put in
minimum 80% of the attendance for each subject and in the absence
of which he will not be held eligible to write the exams for the
subject.
14. The grievance made by the Petitioners in all these petitions is
devoid of any substance. From the reply filed by the Respondents
and the documents annexed to the reply it is crystal clear that
whatever benefits which were required to be provided to the
Petitioners, have been granted in their favour. As far as Petitioner in
Writ Petition (L) No.444 of 2017 is concerned, it was brought to our
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notice that he had attended 17 lectures in Engineering Mechanics
(theory) out of 34 lectures. After giving medical benefit for the
period from 19th September 2016 to 23rd September 2016, his
attendance has increased to 20 lectures out of 34. The Petitioner had
attended 12 practical sessions out of 24 practical sessions in the said
Engineering Mechanics (practicals) from 19 th August 2016 to 19th
November 2016. After giving the medical benefits for the period
from 19th September 2016 to 23rd September 2016, his attendance
was 14 out 24 in the subject Engineering Mathematics (practicals).
The said Petitioner had attended extra sessions (practicals). He was
given 100% benefits and his attendance in the subject in Engineering
Mathematics (practicals) is 24. The total attendance of the said
Petitioner was, therefore, 59% after giving all the benefits claimed by
him. The subject Engineering Mechanics-1 consist of theory and
practical sessions. There were 34 theory lectures and 22 practical
sessions conducted by the faculty in the subject Engineering
Mechanics for the period 19th August 2016 to 19th November 2016.
The said Petitioner attended about 16 lectures out of 34. As there
was no lectures conducted by the faculty during the period from 19 th
September 2016 to 23rd September 2016, no medical benefit is
granted to the said Petitioner. He had attended about 22 practical
sessions out of 22 practical sessions in the said subject Engineering
Mechanics. Hence, the attendance of the said Petitioner in the
subject Engineering Mechanics came to about 68%. It is pertinent to
note that total attendance for each of the subject taken into account
of the aggregate of Engineering Mechanics (theory) and Engineering
Mechanics (practicals). The Respondents have relied upon a chart
which was annexed to the reply which shows the calculation of
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attendance of the Petitioner and the exemptions granted to him. All
the requisite details as to how the benefits were granted to the said
Petitioner has been furnished in detail in the reply filed by the
Respondents, however, we do not wish to elaborate more on the said
aspect. We have noted that the said Petitioner has not given 80%
attendance in each and every subject which is the requirement as per
Student Resource Book. The said Petitioner had lacked the
attendance in two subjects even after granting exemption on the
medical ground and the certificates produced by him.
15. As far as Petitioner in Writ Petition (L) No.621 of 2017 is
concerned, it is pointed out to us that the said Petitioner has been
granted maximum benefits of exemption in each and every subject in
accordance with the rules of Student Resource Book. Hence, even
thereafter the Petitioner's attendance in three subjects was less than
80%. The Respondents have considered each and every fact and
grounds raised by the Petitioner and after taking into consideration
the same, he has been finally debarred to appear in the examination
of the first semester. It is pertinent to note that he has not produced
any medical certificate with the Respondents till he was debarred. In
spite of repeated notices were issued to him, he did not submit any
medical certificate before the Respondents. The benefits of extra
lectures/practicals attended by the said Petitioner have been
considered by the Respondents. The chart prepared by the
Respondents in respect to the calculation of attendance of the said
Petitioner for the period from 23rd August 2016 to 19th November
2016 in each and every subject was placed on record by annexing the
same to the affidavit-in-reply filed by the Respondents. The learned
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counsel representing the said Petitioner and two other Petitioners,
raised doubts about the procedure adopted by the Respondents
institution with reference to recording of the attendance of the
students of the said college. The Respondents have denied that there
were calculation errors, as alleged by the Petitioner. It was also
denied that the Respondents had provided the data of attendance of
external faculty and not provided internal faculty of the primary data
of the attendance. In the affidavit-in-reply, the Respondents had
stated that the internal faculty record the attendance of the students
and after class, fills the same in computer and e-mail it to the course
coordinator. The course coordinator processes the attendance in SAP
on every day. At the first week of next month, the attendance report
of each students is sent to them and their parents and the notice is
displayed on BPLM notice board. Hence, internal faculty does not
maintain register as it is recorded in the computer every day. In
respect to the said averments, learned counsel for the Petitioner
representing the said Petitioner had submitted that this not a
transparent procedure adopted by the Respondents in maintaining
the attendance. He had submitted that there will be difficulty to
memorize the attendance of the students who were present in the
class after the class is over and, therefore, there is doubt with regard
to recording of attendance of the students in the computer as stated
in the affidavit-in-reply. He submitted that the benefit of the said
doubt ought to have been given to the Petitioners-students.
However, it is pertinent to note that all the precautions were taken
by the Respondents in displaying the attendance as stated
hereinabove and the notice was given to the students and in case
there was doubt about marking of attendance by Respondent no.3, it
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was open to the Petitioners to raise objections in that regard, which
is not done in the present case. The Respondents have pointed out
that the external faculty do not have access to the computers in the
institute and they are meant to maintain register for recording
attendance. The calculation chart which was annexed to the reply
clearly states that the attendance of the Petitioner has been taken
into account from the date of his enrollment.
16. The Petitioner in Writ Petition (L) No.674 of 2017 was also
granted all the benefits which were required to be granted qua
attendance. The Respondents have considered the medical
certificates submitted by him. The additional lectures attended by
him were also taken into consideration and the benefits of the extra
lectures/practicals attended by the said Petitioner have already been
granted to him. The chart prepared by the Respondents in respect to
the calculations of the attendance of the Petitioner for the period
from 18th July 2016 in each and every subject was also placed on
record by the Respondents by annexing the same to the affidavit-in-
reply. We have also noted that the internal faculty recorded the
attendance of the students after the class and filled the same in the
computers and e-mail the same to the course coordinator.
17. The Petitioner in Writ Petition (L) No.678 of 2017 had also
relied upon the medical certificates. The exemptions were granted to
him on the basis of medical certificates submitted by him. However,
the Respondents have denied that the Petitioner has attended any
compensatory lectures as stated by him. It is also pointed out that
the attendance report was sent to the said Petitioner and his parents
21 of 32 WP.444.2017
from time to time. However, no objection was raised by the
Petitioner or his parents thereto. Before the Petitioner was debarred,
the Respondents had informed the Petitioner about his poor
attendance from time to time. A chart prepared by the Respondents
in respect to the calculations of the attendance of the said Petitioner
for the period from 31st August 2016 to 19th November 2016 in
each and every subject was also placed on record by the Respondents
by annexing the same to the affidavit-in-reply. It is pertinent to note
that the said Petitioner at the time of taking admission in respect of
the course in the month of June-2016, had executed a declaration
that the Petitioner will put in minimum 80% attendance for each
subject in the absence of which the Petitioner will not be eligible to
write the examination for the said subject. The form was also signed
by the parent of the said Petitioner. The said documents are part of
the record placed before this Court by Respondents.
18. Petitioners' made a grievance that the attendance was counted
from the date of their enrollment. The Respondents have justified
the said decision by stating that the Petitioners had failed in the first
year of MBA-Tech course for the academic year 2015-16 and they
were required to enroll themselves on 23rd August 2016 only after
the results of the re-examinations were declared. Therefore,
attendance of the Petitioners has been taken into consideration from
the date of their enrollment i.e. 23rd August 2016 and not from the
commencement of the course i.e. 18th July 2016.
19. Except the Petitioner in Writ Petition (L) No.621 of 2017, the
Respondents had raised doubts in respect to the genuineness of
22 of 32 WP.444.2017
medical certificates produced by the Petitioners in other petitions.
The Petitioner in Writ Petition (L) No.444 of 2017 had placed
reliance upon medical certificates to condone the absence resulted in
non-attendance of classes. The said Petitioner had requested for
exemption for the period from 19th September 2016 to 23rd
September 2016 on medical ground. It was submitted by
Respondents that such medical certificates were created only for
seeking exemptions from attendance. It was further submitted that
even the Petitioner apparently had forgotten the dates when he
remained absent in the class. From the records it was pointed out by
the learned advocate for the Respondents that the Petitioner had
attended the classes on 19th, 20th and 21st September 2016. The
Petitioners had, however, tried to over come the said discrepancy by
stating that on some occasions although they were not keeping well,
they had attended the lectures. However, as far as Petitioner in Writ
Petition (L) No.444 of 2017 is concerned, the benefits of medical
certificates submitted by him, were given to him while calculating his
attendance including the period from 19th September 2016 to 23rd
September 2016. The Petitioner in the Writ Petition (L) No.674 of
2017 had placed reliance upon medical certificates for the period
from 3rd November 2016 to 9th November 2016. The said medical
certificate was issued by doctor from Apollo Hospital, Ahmadabad for
the period between 3rd November 2016 and 9th November 2016
during which period the said Petitioner was attending the classes in
Mumbai. The Respondents, therefore, have raised doubt about the
genuineness of the said certificate. The said medical certificate was
produced by the said Petitioner with a representation. Although the
students are required to submit their leave applications or intimation
23 of 32 WP.444.2017
to the course coordinator on phone/fax or e-mail within 24 hours of
the absence, there was no such leave application filed by the
Petitioners. The Petitioner in Writ Petition (L) No.678 of 2017 has
placed reliance upon medical certificates for the period from 10th
October 2016 to 15th October 2016, 26th October 2016 to 7th
November 2016. Then from 28th October 2016 to 3rd November
2016. As far as last period is concerned, there was Diwali vacations
and hence there was no lecture during the said period. The
Petitioner had attended the classes on 13th October 2016, 26th
October 2016, 27th October 2016, 5th November 2016 and 7th
November 2016. It is very clear that the medical certificates were
also provided for the period on which the Petitioner had attended the
classes and, therefore, the Petitioner himself was not aware as to on
what date he had attended the classes and on which dates he was
absent from the classes. In spite of these infirmities and the
genuineness of the medical certificates was under shadow of doubt,
the Respondent college and management had granted exemptions to
the Petitioner in respect to the said medical certificates submitted by
the Petitioner.
20. It was also brought to our notice that first semester of the
courses Bachelor of Technology-Civil and MBA-Tech started from
18th July 2016 and ended on 19th November 2016. As per the rules,
the Respondents informed the attendance of each and every student
by displaying it on the notice board and subsequently parents were
informed by sending e-mails. The attendance for the period between
18th July 2016 and 7th September 2016 was displayed on the notice
board on 12th September 2016 and an e-mail was also sent to the
24 of 32 WP.444.2017
parents on 16th September 2016. A meeting with the defaulters was
conducted on 30th September 2016 by the Dean/Associate Dean to
apprise serious consequences of the non-attendance. Again
attendance for the period between 18th July 2016 and 9th October
2016 was displayed on the notice board on 14th October 2016 and a
letter was sent to parents on 13th October 2016. Similarly, by e-mail
dated 13th October 2016, the Respondents informed the Petitioners
and their parents that the Petitioners had defaulted in attendance in
the classes conducted till 9th October 2016 and suggested to ensure
that the Petitioners regularly attend the classes and maintain
requisite attendance. The said letters were sent by the Respondents
trough Black Board Learning Management System (BBLMS). The
attendance of the students is entered in SAP system by the
Respondents on daily basis. Again by letter dated 19th November
2016 the parents of the Petitioners were informed that they are not
allowed to appear for semester and examination due to poor
attendance as per academic requirements. The students were
informed about the attendance after each month through BBLMS, e-
mail/letters to the parents indicating that there ward is defaulting in
the attendance as on that date. The Respondents had placed on
record the aforesaid communications in the nature of letters, notices,
e-mails etc. by exhibiting the same to the reply filed in respect to all
these petitions. The Respondents further brought to our notice that
each student and their parents have the access to BBLMS system and
therefore, the attendance of the students can be apprised
individually. Apart from that, potential defaulter list has been
displayed on the notice board indicating the students who are likely
to be defaulted. A meeting of the CRs was also conducted to apprise
25 of 32 WP.444.2017
the students of the rules regarding attendance at the beginning of the
session. A meeting of the defaulters was also conducted by the
Dean/Associate Dean and the students were apprised of the
attendance rules and consequences thereof. However, the Petitioners
never raised any objections in respect to their attendance as
informed to them. As per Rule 3.1.1, a student is required to
monitor his attendance. It was categorically stated that the
attendance reports will be shared on monthly basis and
discrepancies, if any, to be informed by the students to the concerned
course coordinator within three working days from the date when
the report has been shared. No changes will be permitted once the
attendance reports were finalised.
21. We have considered all the aspects and perused all the
documents as stated hereinabove. Although we have all the
sympathies to the Petitioners who are young students, we cannot
brush aside the fact that the requirement of attendance is one of a
necessity and mandatory requirement for continuation as a student
for particular semester or for appearing in the examination. We have
also noted that the issues raised by the Petitioners are the disputed
questions of fact which cannot be gone into in exercise of power
under Article 226 of Constitution of India. We have also considered
the fact that the Dean has given opportunity to tender explanation to
the Petitioners and after going through the documents submitted by
them and calculating the attendance in the proper perspective as put
up by the Petitioners before the said Dean, the benefits for which
they were entitled to, have been provided to the Petitioners by the
Dean.
26 of 32 WP.444.2017
22. This Court in the case of Nikita Garg (supra) had come across
a similar situation and has dealt with the same by assigning several
reasons for not considering the claim of the Petitioner-student
therein. In the said decision also, the students were debarred from
attending the classes on account of lack of attendance or for the fact
that there was no requisite attendance. In this case also, the students
were put to notice from time to time as in the present case. There
was default on the part of the said students in attending the classes
and they were cautioned that they should clear the said default as
early as possible. In paragraph 17 of the said judgment, this Court
has observed as follows :
"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 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
27 of 32 WP.444.2017
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 wilful 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
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."
23. In another decision of this Court delivered in Writ Petition
No.865 of 2016 (O.S.) (supra), the Court had considered a similar
situation wherein the students had not attended the classes in spite
of cautioning them that there was default on their part in attending
the classes. In paragraph 18 of the said decision, it was observed as
follows :
28 of 32 WP.444.2017
"18. The learned counsel for the petitioner relied
upon a decision of the Division Bench of this Court in
Preeti Mulji Sondarwa and others Vs. The Controller of
Examinations, University of Mumbai and others in Writ
Petition No.3776 of 2016 and submitted that there is
violation of rules of natural justice. The petitioner was
not given benefit of guidelines suggested by the courts
in the said guidelines. The learned counsel also relied
upon decision of the Supreme Court in Ravi Yashwant
Bhoir Vs. District Collector, Raigad and others (2012)4-
SCC-407 and submitted that the petitioner could not be
prevented from writing his examination on the ground
that there were no speaking order giving reasons as to
why he is debarred from writing examination or the
salutary requirement of natural justice viz. spelling out
the reasons to ensure that the party affected is provided
the reasons why he was so debarred and that the right
to receive reasons is an undisputed part of judicial
system. We do not find the judgment in Bhoir's case
(supra) being of any avail to the petitioner. Apart from
the fact that the said judgment was concerning removal
from office of elected office bearers under Maharashtra
Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965, the said judgment is of no avail.
As far as judgment in the case of Preeti Sondarwa
(supra) is concerned, we find the college complied with
the guidelines laid down and in this respect. We may
also make reference to the order passed by this Court in
Nikita Garg and others Vs. Vile Parle Kelwani Mandal
and others in Writ Petition (L) No.908 of 2016, dated
31.3.2016 in which the guidelines laid down by this
Court in Preeti Sondarwa (supra) were considered.
The fact situation was similar to that in the present
case involving the very same college. Ordinance 6086
was duly considered and it was held that the college
had adopted all measures consistent with guidelines in
Preeti Sondarwa (supra).
24. In the case of Aishwarya V. Jain (supra), this Court had come
across another situation wherein the Petitioner therein was refused
29 of 32 WP.444.2017
permission to appear in the examination for having not cleared the
first year of said course. The Court was pleased to observe that the
Petitioner was not qualified as per the rules for admission to the third
year course and the examination form of the said Petitioner was,
therefore, rightly not accepted as admission itself was faulty and
contrary to the rules. The Petitioner cannot seek a writ which would
go contrary to the admission rules. This Court in the said decision
has referred to several decisions relied upon by the Petitioners
therein. In paragraph 11 of the said decision, it was observed that it
is a settled principle of law that this Court in exercise of its writ
jurisdiction would not interfere in academic matters. The rules
in question set out academic standards in education and are
framed by the experts in the field. The standards cannot
interfere and/or dilute and ought to command highest respect
from all stakeholders and students are clearly bound by these
rules and standards contained in it in pursuing the course of
such a high academic value.
25. In another decision of this Court in Writ Petition (L) No.840
of 2016 (O.S.) (supra), it was observed by this Court that it would
not be possible to interfere with the discipline of the college on
the basis or for the reason of non attendance, as now assigned
by the Petitioners therein. It was further observed that it is
common ground that private professional institutions imparting
education ought to he strict with the students and maintain
discipline so that not only the reputation and image of the
institution is not affected, but the students appreciate the efforts
of the teachers and the management of such institution in
30 of 32 WP.444.2017
providing them not only basic amenities and facilities but some
modern high-tech teaching and researching tools, such as well
furnished classrooms, libraries, computers, learning aids etc.
The students would do well to appreciate that it is in their
interest if they devote themselves to studies and co-operate with
the teachers. In paragraph no.9 of the said decision, it was
observed as follows :
"9. The affidavit-in-reply and annexures thereto
indicate as to how the maternal grandmother gave an
explanation to the Management of the Institution about
the illness of the paternal grandmother. We do not think
that a statement made during the course of parents
teachers meetings would suffice. There are absolutely no
particulars, much less proper and complete pleadings
which would enable this court to interfere in its
extraordinary jurisdiction with the requirement of
minimum attendance. We do not think that merely
because in some cases the college has been lenient with
such students and has allowed the pupils to attend the
classes or appear at the examination, that would be a
precedent or a guide to be followed in all such cases
irrespective of the nature of the explanation. It is well
settled that equality is a positive concept and two wrongs
do not make one right. Merely because in some cases
despite shortfall in attendance students have been
allowed to appear for the exams or the college has not
cancelled their admission, such course automatically
follows in other cases of similar nature. That is not how
we will view these matters, particularly when judicial
review of a academic decision taken by academic experts
is a exception and not a rule."
26. We have given our anxious consideration to the issues raised
by the Petitioners in the present petition. We have all sympathy
31 of 32 WP.444.2017
towards the students. However, the rules are meant to be complied
with by the students which is in their interest. We do not think it
proper that in spite of violation of mandatory rules, the students be
allowed to appear for the course or the respective examinations.
Although the Petitioners had tried to dispute the reasoning given by
the Respondents, we find that these are all disputed questions of
facts which cannot be gone into in exercise of powers under Article
226 of the Constitution of India. We have, however, noted that the
Respondents have given maximum benefits to the Petitioners-
students to condone their absence from attending the classes. We,
therefore, are of the view that no ground is made out to set aside the
decisions taken by the Respondents on account of non attendance by
the Petitioners-students. Although our sympathies are with the
Petitioners-students who are debarred by impugned decisions, we
cannot over look the fact that there was no compliance of the rules
as stipulated in the Student Resource Book. We have also noted, as
stated in detail hereinabove, that from time to time, the students
were put to notice that there is default in compliance with the
requirement of attendance on the part of Petitioners-students. We
have also noted that the Petitioners and the parents were aware that
there was lack of attendance on the part of students. The grounds
raised by the Petitioners seeking condonation of non-attendance of
the lectures by producing the medical certificate etc. appears to be
after thought and is not a genuine ground to condone the absence.
In the light of the observations made by this Court in the aforesaid
decisions and in the facts and circumstances of the cases involved
and in the facts of the present cases, we do not find it appropriate to
exercise the powers under Article 226 of the Constitution of India
32 of 32 WP.444.2017
and to grant the reliefs as prayed by the Petitioners in these petitions.
For all the aforesaid reasons, we pass the following order :
ORDER
(a) Writ Petition (L) No.444 of 2017, Writ Petition (L) No.621 of
2017, Writ Petition (L) No.674 of 2017 and Writ Petition (L) No.678
of 2017 are dismissed;
(b) No order as to costs.
(PRAKASH D. NAIK) (SHANTANU S. KEMKAR)
MST
