Ms. Akriti Jayant vs National Institute Of Fashion ...
2009 Latest Caselaw 119 Del

100


*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P. (C) 9147/2008

                                              Date of decision: 16.01.2009

      MS. AKRITI JAYANT                                    ..... Petitioner

                        Through : Mr. Mukesh Kalwani, Advocate.


                   versus


      NATIONAL INSTITUTE OF FASHION
      TECHNOLOGY & ORS.                               ..... Respondents

                        Through: Ms. Vibha Datta Makhija
                        with Mr. Philemon Nongbri, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?

2.    To be referred to Reporter or not?

3.    Whether the judgment should be
      reported in the Digest?

      S.RAVINDRA BHAT, J. (ORAL)

% Issue Rule. With consent of counsel for parties, the Writ Petition was

heard finally.

2. The petitioner seeks direction to the second respondent to allow her to

appear in the 3rd Semester examination conducted by the National Institute

of Fashion Technology (hereafter called "NIFT").

W.P. (C) 9147/08 Page 1

3. The brief facts of the case are that the petitioner was admitted to a

four years degree course in NIFT in August, 2005. She avers to having

attended important classes during the semester ending November-

December, 2008, except for the period when she was unwell. It is alleged

that in spite of this, the NIFT arbitrarily determined that she had insufficient

attendance and denied her participation in the examination which was held

on 1.12.2008 to 19.12.2008.

4. The petitioner approached this Court claiming that the re-examination

was scheduled for 5.1.2009. On the initial date of hearing, the Court had,

while issuing notice passed the following orders: -

"The grievance of the petitioner is that since she was on medical rest and thus she could not attend the classes due to illness.

As per petitioner's case, she was on medical rest from 3rd October, 2008 to 17th November, 2008 and re- examination is scheduled to be held on 5th January, 2009.

There is no document on record to show that re- examination is going to be held on 5th January, 2009.

Moreover, petitioner has not placed on record, any prescription slip of the treatment taken by her in respect of ailment.

The medical certificate is dated 27th December, 2008, i.e., it was issued one month and ten days after the petitioner became fit and moreover no fitness certificate has been placed on record.

Petitioner seeks time to place on record all the relevant documents in this regard. She may file the same before the next date of hearing.

List before Regular Bench on 6th January, 2009."

W.P. (C) 9147/08 Page 2

5. The petitioner thereafter filed an additional affidavit on 12.1.2009. The

Court had in the meanwhile heard the matter on 6.1.2009 and permitted the

NIFT to file its counter affidavit. Thereafter the case was adjourned to

13.1.2009 when the petitioner was permitted to file the rejoinder to the

counter affidavit. In the circumstances, the matter was adjourned for today.

6. The NIFT relies upon the Students' Rules & Regulations which governs

the issue, particularly Rule D-7 & D-8. The same read as follows: -

"D-7 Minimum 75% attendance of total sessions/classes conducted during the semester (minimum of 65% attendance in each subject taught in the semester) will be a prerequisite for the student to be allowed to appear in the final assessment/end semester exams/ jury of the subjects. Uninformed absence of more than four weeks due to any cause or zero percent attendance till midterm will mean loss of candidature for the student i.e. name of the student would be struck off rolls of the Institute.

D-8 Medical Certificate In the case of a student proceeding on medical leave, he/she is required to inform his/her department authorities for permission and also required to submit Medical Fitness Certificate within two working days of resuming his/her studies."

7. The NIFT submits that all students are made aware about the

importance of attending classes; a Circular issued on 22.4.2008 has been

pressed into service; copy of the same is part of the record. That circular is

in the form of advisory. The relevant part of the Circular reads as follows: -

"The overall attendance has to be minimum75% excluding the Modules having attendance less than 65%. Students meeting this condition shall only be considered as under: -

a) In case the shortfall of attendance can be made up by attending all classes till the end of the semester, the students may be allowed to sit for the main examination.

W.P. (C) 9147/08 Page 3

b) In case it is not possible to make up the short fall in attendance as indicated in point (1) above, extra inputs/assignments for the same may be considered to cover input loss during the semester break. The assignments may be designed on a case to case basis keeping in view the extent of shortage of attendance. The results of the examination in such cases shall be withheld in sealed cover and declared only after the extra input/assignment given is satisfactorily completed."

8. The NIFT further contends that its procedures include intensive

interface of students with not only teachers but also mentors assigned to

certain students, meant to highlight each individuals points of weaknesses,

which have to be followed up. In this regard, the Minutes of Mentor meeting

dated 15.9.2008 and 20.10.2008 both concerning several students (including

the petitioner), have been placed on record. These minutes warned that the

students concerned should be extremely regular and fulfill the mandatory

requirement of minimum over all 75% attendance. NIFT also has placed on

record a copy of the communication dated 1.9.2008 to two students

including petitioner which states that her attendance at that point of time

was 59.2%.

9. According to the NIFT, the petitioner apprised about her medical

condition and submitted a certificate only on 28.11.2008. The NIFT further

alleges that on an overall examination of her records as well as the other

students, a resume containing the percentage of said students was prepared

and put up on the notice board. This indicated that petitioner had 66.7%

attendance. After considering the records including the medical record, the

W.P. (C) 9147/08 Page 4 NIFT decided not to permit her and the others placed in the similar situation

to appear in the examination.

10. Mr. Kamlesh Anand, learned counsel submitted that the approach and

decision of the NIFT are unsustainable and arbitrary. He submitted that the

resume said to have been prepared on 28.11.2008 was in fact never put up

on the notice board nor was it brought to the knowledge of the petitioner. It

was contended that the minimum requirements of natural justice were that

the petitioner should have been afforded an opportunity to furnish materials

in support of her case of illness at the relevant time - September - October,

2008.

11. Counsel relied upon the decision of a Division Bench of this Court

reported as Kumkum Khanna and Ors. v. The Mother Acquinas and

Anr. AIR 1976 Delhi 35. It is submitted that though the petitioner informed

about her absence (to the NIFT), for which medical records were kept, she

was asked to submit them for the first time on 28.11.2008. Learned counsel

submitted that a copy of the representation made by the petitioner on

1.12.2008 has been wrongly shown as having been made on 28.11.2008. It

was submitted that the petitioner was not even informed on 28.11.2008

about any decision but merely prevented from appearing in the examination

which commenced on 1.12.2008.

12. Ms. Vibha Datta Makhija, learned counsel for the NIFT relied upon the

averments in the reply and submitted that although NIFT possesses

discretion to waive the condition of a minimum 75% attendance, yet such

W.P. (C) 9147/08 Page 5 discretion has to be exercised after considering the overall circumstances of

the case. It was submitted that a joint reading of Rules D-7 & D-8 would

reveal that much importance is placed on regularity and attendance and any

truancy in that regard is not acceptable. Learned counsel submitted that

uninformed absence would not ordinarily qualify a student for any relief.

Nevertheless the NIFT being a public authority would consider any

reasonable request having regard to the nature of the illness and other such

relevant and material circumstances.

13. Learned counsel contended that in this case the petitioner had sought

to place reliance on two apparently contradictory medical certificates. First

was submitted along with an application dated 28.11.2008. The second was

dated 27.12.2008. One describes the petitioner's illness as gastroenteritis &

enteric fever for the period 3.10.2008 to 17.11.2008 whereas the stated that

the petitioner had suffered entercolitis & vomiting since September -

October, 2008. It is lastly submitted that the NIFT did not rely upon either

certificate because the petitioner did not produce any supporting documents,

prescriptions, blood reports etc. which undermines the credibility of the

documents.

14. The above factual position discloses that the petitioner was not

permitted by the NIFT to appear in the examination which started on

1.12.2008 and ended on 19.12.2008, on the ground of her not fulfilling the

requisite attendance i.e. 75%. The relevant criteria is Rule condition D-9

prescribes the norm as 75%. Facially D-9 shows that NIFT the appropriate

W.P. (C) 9147/08 Page 6 authority can reasonably waive the condition for relevant considerations,

including illness of the students. The conditions further stipulate that the

student should inform the Department for permission for such leave.

Although such condition appears to be highly onerous (because there can be

situations where the student may not be in a position to inform the

Institution), yet the intention which can be discerned is that the student

should contemporaneously (with the ailment) inform the grounds or inability

to attend classes. This is underscored by the further requirement of the

students having to furnish the requisite certificates within two working days

after resuming studies. Though such time limit too cannot be construed as

inflexible, yet in the opinion of the Court, this condition also reflects the

anxiety of the Institution and the premium placed on attendance.

15. What can be gathered in these proceedings is that the petitioner

despite grant of opportunity did not furnish the medical records, sought for

by the orders of the Court on 31.12.2008. The averments in the counter

affidavit too have not been traversed by way of rejoinder. In the

circumstances, the Court is left to infer whether on the present facts, the

NIFT's position can be termed arbitrary.

16. The stand of the NIFT is that the petitioner was truant on several

occasions - and was informed about shortage of attendance has not been

disputed. Equally there is no denial about the fact that when the Mentor's

meeting took place on 15.9.2008 and 20.10.2008 the petitioner's presence

has been recorded. Similarly copies of the documents placed on record also

W.P. (C) 9147/08 Page 7 show that the petitioner was cautioned about the shortfall in her attendance

on 1.9.2008. No doubt according to her the medical record was sought by

NIFT, for the first time on 28.11.2008, yet the fact remains that the resume

containing particulars of 13 students, show that a similar view was taken for

other students who were facing shortage of attendance. In fact the list

shows that there were at least four other students with the better records

but were detained for want of attendance. In case of two others also the

medical records were submitted like the petitioner, on 28.11.2008.

17. The requirement of attendance wherever prescribed are to be taken

seriously. Though the petitioner was afforded sufficient opportunity to

substantiate the conflict between the two medical records, no further

documents or materials are forth coming in support of either certificate. In

the circumstances, the exercise of discretion - as the power to relieve the

students from the rigors of the minimum requirements, undoubtedly is - by

not permitting her to attend the examination, cannot be termed as arbitrary,

in the circumstances of this case.

18. In view of the above findings, the Court is of the opinion that the relief

claimed cannot be granted. The Writ Petition is accordingly rejected.

                                                        S. RAVINDRA BHAT
                                                             (JUDGE)
JANUARY 16, 2009
/vd/



W.P. (C) 9147/08                                                          Page 8