Mr. Nitin Pant And Ors. vs University Of Delhi And Ors.
2002 Latest Caselaw 600 Del

JUDGMENT

Manmohan Sarin, J.

1. This writ petition has been filed by 25 students to Kirori Mal College, who have been denied permission to take the examination for the year 2001-02, commencing in April, 2002. Petitioners, 25 in number, are sportsmen, who took admission in the College, primarily on account of their excellence in their respective games. They happen to be sportsmen playing football, Hockey, Cricket and Chess etc.

2. Learned counsel for the petitioners, Mr. Rajiv Sharma made a very impassioned plea for a compassionate view in the matter. He submitted that sportsman are initially were encouraged and lured to join the college on account of their excellence in sports. Assurances are given to them that they need to concentrate on sports and undertaking to play games is also obtained, failing which disciplinary action is to be taken. The petitioners have brought laurels to the college.

3. Learned counsel for the petitioners submits that the sportsmen in pursuit of attaining excellence in their respective sports, of necessity, had to go for tournaments, training camps, coaching sessions, which resulted in their missing their classes. It was physically not possible for these petitioners to participate in the tournament, attend the coaching sessions and yet attend the lectures as required. He submits that college authorities despite being so enjoined, failed to abide by the UGC guide-lines in making available library facilities, classes at the camps, as contemplated to ensure that the sportsmen do not lag behind in studies. Learned counsel further submitted that all along in the past sportsmen have been permitted to take the examinations, irrespective of the shortfall in lectures at college. Petitioners were not forewarned that they would not be permitted to take the examination. The decision of the Staff Council of not permitting students, who have less than 25 per cent attendance was made known only now to the students. In fact, their roll numbers had been sent by the University, yet the admit cards are not being issued to them. Learned counsel submitted that the decision of the Staff Council is contrary to and violative of the UGC guide-lines. UGC guide-lines contemplated credit being given to the petitioners and sportsmen for the time spent by them in sports tournaments. In the instant case, it has not been done. Further, the resolution is discriminatory, as it makes no distinction between sportsmen and non-sportsmen as both are clubbed together and required to have minimum attendance of 25 per cent. He submits that as per practice, most of the colleges were allowing students especially sportsmen to take the examinations.

(4) Mr. S.K.Luthra, representing Kirori Mal College, has placed on record the decision of the Staff Council held on 20.2.2002. The Staff Council Resolution is in the following terms :-

" I year students B.A.(Hons.)/B.A.(Pass), B.Com.(Hons.)/B.Com.(Pass), B.Sc.(Hons.)/ B.Sc.(General).

Those students who have attended less than 25% of the classes held, theory as well as practicals separately, will not be allowed to sit in the university examinations, 2002.

II and III year students : B.A.(Hons.)/ B.A.(Pass) B.Com.(Hons.)/B.Com.(Pass), B.Sc.(Hons.)/B.Sc.(General)

Those students who have zero per cent attendance in the theory as well as practical classes separately, will also not be allowed to appear in their annual examinations.

The above provisions will apply in all cases, irrespective of concessions on grounds of sports and extra curricular activities. This is in view of the fact that the 25% limit in 1st year is already very low and no further concession be allowed."

(5) Mr. Luthra admits that the Resolution of the Staff Council has not made any distinction between sportsmen and non-sportsmen and has prescribed a minimum 25 per cent for the first year in theory as well as in practicals to be attained separately. Although for the second and third year, it is only those students, who have zero per cent attendance, who are not allowed to appear in the examination. Mr. Luthra also stated that prior to the present Staff Council Resolution sportsmen were given concessions based on the UGC guide-lines and at times in excess of the guide-lines, by different colleges with a view to encourage sportsmen and to retain their presence in their college. Mr. Luthra has also placed on record the details of attendance record of 25 petitioners as well as their individual participation in sports tournaments and total number of days thereof.

(6) It may be noted that the decision of the Staff Council of the college is a departure from the requirement of attendance, as given in Prospectus issued by the college, which is as under :

II. Attendance

1. In the matter of attendance in lectures, tutorials and practicals, students of the college are governed by the rules and regulations of the University of Delhi. No student is eligible for promotion to the next higher class or to take a University Examination unless he/she has attended separately, two-thirds of the lectures, tutorials, preceptorials and practicals held, However, the student may be allowed to do so, provided he/she can make up for the short fall in the subsequent years according to the following minimum criteria :

   (i) at least 40% attendance in each year 

    (ii) 1st year     : 40% 

     IInd year    : 55% (Ist + IInd year)  

     IIIrd year   : 66% (total of all the three years)"  
 

7. Mr. Mariaputtham and Mr. Anurag Mathur, appearing on behalf of the University of Delhi submitted that the Staff Council decision was contrary to and ultra vires the University Ordinance. Mr. Mariaputtham referred to the various provisions of the University Calender, in particular, Ordinance VII, which required that no member of the University would be admitted to any admission for a degree of the University unless he has pursued a regular course of study. Ordinance VII (page 269 of the Calender, Volume I Conditions for Admission to Examination) provides that the required condition shall not be deemed to have been satisfied unless the candidate has attended not less than two-thirds of the lectures and practicals, separately, delivered in his college or the University, as the case may be, for the course of study in each academic year. Those participating in NCC and extra curricular activities or sports, the following concession is provided :-

In the case of students who, have been representing the college in debates in extra curricular or in sports or activities approved by the Vice-Chancellor, the total number of lectures in the college for the course of study in each academic year, the number of lectures in each students delivered during the period of absence for the purposes shall not be taken into account. However, the benefit of exclusion of lectures is not to exceed one-third of the total number of lectures delivered.

8. Learned counsel further submitted that issuance of roll number was of no-consequence, as it was obligatory on the part of the University to issue roll numbers on receiving applications for admission. However, the College Principles were oliged prior to release of the admit card to verify and certify that the candidates met the requisite requirement for attendance.

9. To summarise the position, which emerges is as follows:

(i) The Resolution of the Staff Council of Kirori Mal College dated February 20, 2002, provides that as far as 1st year students of B.A.(Hons), B.A.(Pass), B.Com.(Hons), B.Com.(Pass), B.Sc(Hons) or B.Sc.(General) are concerned, if they have attended less than 25 per cent of classes in theory and practical in the first year, they are not to be allowed to sit in the University examinations. The IInd year and IIIrd year students of the above subjects who have zero per cent attendance in theory as well as in practical classes separately are also not to be allowed to appear in the examinations. The above is to apply to all students irrespective of concessions on grounds of sports or extra-curricular activities. The retionale for this as given is that 25 per cent limit fixed in the 1st year is very low.

(ii) The Staff Council resolution is a departure from the attendance requirements, as specified in the prospectus issued by college.

(iii) The UGC guide-lines as they apply to the Sports cases make a provision for giving credit to sportsmen for lectures and practicals missed by them as a result of participation in inter-collegiate, inter-University, State and National level event and International tournaments and coaching camps. The credit for the lectures missed is to be given on production of a certificate of participation in the authorised sporting events from the Organisers of the events. The total period of absence for which credit can be given is 30 days for State-National level sports and 45 days for international events in an academic year, including the journey period. In exceptional cases relaxation beyond this time period may be permitted to protect the sports interest by the Vice Chancellor of the University. The guide-lines also call for efforts being made for provision of educational facilities, such as, organising classes and practicals and other library facilities for sports persons to making up the loss.

(iv) As per the Calender and Ordinance of the University for the courses in question, Ordinance VII Clauses 2 provides that no person shall be deemed to have pursued a regular course of study unless the principal of his college/Head of the Department concerned is satisfied that the required conditions in respect of his instruction have been fulfillled. The required conditions shall not be deemed to have satisfied unless the candidates has attended not less than two-thirds of lectures and practicals, separately, in respect of each academic year.

(v) The benefit of exclusion of lectures missed by a student while participating in approved activities, such as, NCC, Civil defense, National Service Scheme, Inter University, National or International sports and activities specified in Clause 9 or Ordinance VII is confined to 1/3rd of the total lectures delivered.

(vi) Appendix 2 contains the provisions for relaxation for students of the 1st and 2nd year and IIIrd year. These provides discretion to the principal of the college to permit students, who have attended in the case of 1st year not less than 40% of the lectures delivered subject to the candidates being required to make up the deficiency of lectures of the 1st year and the IInd year. Similar provisions are made for the IInd year provided he makes up the deficiency of the IInd year by combining the attendance of the 1st year. It is not necessary in the facts of this case to go in detail, with regard to the detailed provisions of Appendix 2 as the petitioners in the second year and third year have almost zero per cent attendance.

10. Having noticed the requirements and provisions for attendance and concessions available as per decision of Staff Council, UGC guide-lines and the Ordinance, let us consider their applicability and validity.

11. Counsel for the petitioners submitted that petitioners who have devoted all their times and energy for attaining excellence in sports and earning laurels for the college should be given the benefit of the most lenient and beneficial provision existing i.e. the Staff Council's decision as for minimum percentage and the UGC guide-lines providing for positive credit for days spent in sports. In other words, counsel submits that the limit of 25 per cent coupled with the UGC guide-lines providing for giving the positive credit for the days spent in sports as lectures attended should be taken into consideration in petitioners' case. Learned counsel also relied on the earlier decisions of a Co-ordinate Bench of this Court in CWP No.2245/2001 Roopa Nanda and others v. The Principal, Jesus & Mary College, decided on 10.4.2001 as well as in CWP No. 5738 Neha Kalra and others v. University of Delhi and others, decided on 4.2.2002 where the learned Single Judge after considering similar submissions made with regard to lack to proper attendance record, the assurances held out the past practice of non-insistence upon the requirement for attendance, had permitted the students to make representations to the principal of the college seeking relaxation in accordance with the assurance and rules for being permitted to appear in the examination. In some cases students were permitted as an interim measures to take the examination while in some cases the Principles declined to exercise his discretion. Except for enabling them to make a representation for relaxation and direction for its consideration by the Principal and concerned Authorities, the said judgments do not support the view being canvassed. Rather the learned Judge after noticing the provisions of the Ordinance held that in case a wrong practice has been adopted, the Court cannot permit the same to be continued even in subsequent years.

12. I am not persuaded in the facts of this case to pass a similar orders for representation to be made and requiring the principles to consider the cases for relaxation. In the instant case, as it is the college following the decision of its Staff Council, have disallowed only those having less than 25% attendance in the 1st year and 0% in the IInd year from appearing. The attendance records produced by the college of the petitioners show an extremely dismal picture. In fact, out of 25 petitioners, nine cases are of zero per cent attendance for the entire academic year, while except for one case of Mritunjay Kumar who has 27 per cent attendance and Joginder Singh who has 22 per cent, the attendance record of rest of them is below 20%. The certificates given regarding participation in Sports football, Hockey Cricket etc. simply give the total number of days involved in practice, matches and participation. It does not give the nature of sports event and actual number of days that had been missed. It is also not disclosed as to how many were the actual number of working days. There is no indication of the number of lectures missed. Mr. Mritunjay Kumar, who had 27% attendance with 65 days shown in sports has been permitted to appear in the theory paper.

13. As regards whether the decision of the Staff Council or the UGC guide-lines or the provisions of the Ordinance will prevail, in may view, this does not admit of any controversy. The Staff Council is constituted under Ordinance xviii. In terms of Ordinance xviii Rule 6-A(5)(a) of Calendar Volume I, (The Act, Statutes and Ordinance) University of Delhi makes a provision with regard to the matters, which shall be dealt with by the Staff Council. It is in the following terms:

"(5)(a) Subject to the provisions of the Act, the Statutes and the Ordinances of the University, the Staff Council shall take decisions in respect of the following matters:

(i) Preparation of College time-table. (ii) Allocation of extra-curricular work of teachers not involving payment of remuneration.

(iii) Organising extra-curricular activities, including cultural activities of students, sports, games, National Service Scheme and other social services schemes and academic societies.

(iv) Laying down guide-lines for purchase of library books and laboratory equipment in consultation with the appropriate departments.

(v) Organising admission of students."

14. It would be seen from the foregoing that the fixing of minimum attendance is not one of the matters which falls within the purview of the Staff Council. Moreover, the decisions of the Staff Council is subject to the provisions of the Act, statutes and ordinance of the University. Hence, it is the ordinance, which shall prevail and not any decision taken by the Staff Council of the College. Similarly, the UGC guide-lines have no statutory force and are merely recommendatory in nature. Moreover, if the benefit of the relaxation is sought to be taken, then the requirement for attendance, as per guide-lines according to Mr. Mariaputtham, learned counsel for the University is over 75%. Be it may, UGC guide-lines cannot override the ordinance or the Statute. In view of the above, it is the ordinance which has to prevail.

15. The ordinance at best gives a discretion to the Principal to permit a 1st year student, if he has attended a minimum of 40% of the lectures and practicals separately to appear and sit in the examination subject to making up the deficiency in the IInd year.

16. Based on the provisions of Appendix II, as noticed earlier, exclusion of the number of lectures which the students abstain while participating in the inter-college, inter-State or National sports are to be excluded. These are also confined up to a maximum of 1/3rd of the total number of lectures. In the instant case, based on the date as produced by the college authorities and the dismal record of attendance, prima facie, it does not appear that the petitioners would be eligible. However, it is for the principal of the college to satisfy himself with regard to the participation of the petitioners in sports, in terms of the provisions of the Ordinance and the number of lectures that they missed on that account while calculating the relaxation to which they may be entitled under appendix 2.

16. The writ petitioners who are before the Court are those who have not been permitted to appear because they did not even have attendance of 25 per cent in the 1st year and mor ethan zero per cent in the IInd or IIIrd year as per Staff Council's decision. From the record of attendance as produced before the Court and as noticed earlier, it does not appear feasible that these petitioners who have failed even to meet the requirement of 25% attendance would come within the 40% attendance limit, as required under the Ordinance for the 1st year even after excluding the lectures, if any, missed on account of participation in sports and other activities except perhaps in the case of Mritunjay Kumar. In case, he is found to be falling within the relaxation limits, as per the Ordinance, the Principal may in his discretion permit him to appear in the practical examination and his result would be subject to his meeting the requirement of attendance after excluding the number of lectures on account of participation is sports as per the Ordinance. It is only when the petitioners meet the minimum requirement of 40% attendance that they would come within the purview of the principal exercising his discretion to permit them to appear.

17. Before parting with this case, I would like to observe that it is high time that the University and all the colleges affiliated to it, uniformly follow and adhere to the provisions of the Ordinance, as required at law. Rather than individual colleges following the adopting different practice in the matter of attendance and relaxation thereto, especially in the case of sportsmen. The petitioners are right when they contend that due to their excellence in sports, the colleges welcome sportsmen and encourage them to participate in sports to attain laurels for their respective institutions. Either on account of earlier practice followed or assurances by over enthusiastic Sports Instructors/college staff, the sportsmen labour under a false sense of assurance that they would be allowed to take their examination whether they have attended lectures or not.

18. There can be no two opinions about sports being an integral part of the educative process. The blending of academic excellence and sporting ability is an ideal synthesis one can aspire, for development of the overall personality. Undoubtedly, sports generate camaraderie and lasting bonds between students. However, it cannot be lost sight of that at the University level, the primary aim is education and a healthy combination with sports would be ideal. Perhaps this can be attained by pursuing and avoiding commercialization of sports. The task of attaining professionalism and pursuit of career in sports being left to specialized sports institutions and the colleges and Universities serving as the source and feeder channel for professional sportsmen.

The writ petition is dismissed with the direction to the principal of respondent No.2 college to follow the provisions of Ordinance VII (Conditions for admission to the Examinations) and permit the petitioners to take the examination only if they meet the requirement of attendance as specified after exclusion of the lectures missed on account of authorised sports activities as per the Ordinance.

A copy of the judgment be sent by the Registrar of the University of Delhi to the Principles of the affiliated colleges.