Choudhary Ali Zia Kabir vs Guru Gobind Singh Indraprastha ...
2010 Latest Caselaw 3842 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 18th August, 2010.

+                         W.P.(C) No.3129/2010

%

CHOUDHARY ALI ZIA KABIR                                ..... Petitioner
                Through:               Mr. R.K. Saini & Mr. Sitab Ali
                                       Chaudhary, Advocates

                                    Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ANR.                          ..... Respondents
                  Through: Mr. O.P. Saxena, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
     be allowed to see the judgment?                Yes.

2. To be referred to the reporter or not?           Yes.

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a student of 4th Semester of B.A. LL.B (H) in the

respondent no.2 University School of Law & Legal Studies of the

respondent no.1 Guru Gobind Singh Indraprastha University (GGSIPU),

filed this petition upon being not issued admit card for the 4 th Semester End

Term Examination to be held from 10th May, 2010, for the reason of not

meeting the requisite attendance criteria. The writ petition came up first

before this Court on 7th May, 2010 when while issuing notice of the petition,

vide ad interim order, the respondent no.1 University was directed to issue

admit card to the petitioner and allow him to appear in the 4th Semester End

Term Examination awaiting the disposal of the writ petition. It was however

provided that merely because the petitioner had been so permitted to take the

examination will not create any equities in his favour and the result of the

petitioner for the said examination was ordered to be kept in a sealed cover.

2. The respondent no.1 University has filed a counter affidavit to which

rejoinder has been filed by the petitioner. The petitioner has thereafter also

filed two additional affidavits. The counsels for the parties have been heard.

3. Clause 9 of Ordinance 11 of the University requires a student to have

a minimum attendance of 75% in the aggregate of all the courses taken

together in a Semester and empowers the Dean of the concerned School to

condone attendance shortage upto 5% for individual student for reasons to

be recorded. It further provides that "under no condition, a student who has

an aggregate attendance of less than 70% in a Semester shall be allowed to

appear in the Semester End Examination". There is further a provision that

even if a student who does not meet such attendance criteria but by default

appears in the examination, his / her result shall be treated as null and void.

4. Rule 12 of Rules of Legal Education framed by the Bar Council of

India under the provisions of the Advocates Act, 1961 further prescribe

minimum attendance required as 70% of the classes held in the subject

concerned as also Moot Court Room exercises, tutorial and practical training

conducted in the subject taken together. The University School of Law &

Legal Studies in consonance with the said Rule has provided for counting

attendance for practical training, Moot Court participation etc. to the

following extent:

(i) Participation in Moot Actual attendance for the Competitions. competition and travel days with 2 days for preparation.

(ii) Preparation for Internal Two days attendance per moot. Moot Courts.

(iii) Research for Project Three days attendance Per Work. Project.

             (iv) Internship               Actual attendance for 15 days
                                           in a semester.
             (v)      Participation     in Actual attendance during the
             Workshops / Seminars days of the activity.
             activities of DLSA / BCI /
             High Court with prior
             permission.

(vi) Organization of Clinical Three days per activity subject Legal Education to a maximum of 6 days per programmes / Moots / Fests semester. / Sports / Legal Aid / Legal literacy camps.

5. The policy aforesaid qua attendance in the University School of Law

& Legal Studies of the respondent no.1 GGSIP University was framed

pursuant to directions of the Division Bench of this Court in WP(C)

No.5572/2007 titled Dr. Ravindra Pratap Vs. GGSIP University and has the

approval of the Division Bench.

6. According to the respondent no.1 University, the petitioner in 4th

Semester secured only 60% attendance, including attendance granted for 30

classes (six days) for attending Moot Court.

7. The petitioner claims further relaxation of attendance on account of

following other activities in which he claims to have participated in the 4 th

Semester viz.:

"a. National Cadets Corps (NCC), National Integration Camp 2010, held at Rohtak, Haryana from 19-01-2010 to 30-01-2010, representing Delhi Directorate of NCC as a Senior Division Cadet.

b. Essay Writing Competition „Role of Women in Armed Forces‟ conducted by National Cadets Corps (NCC), National Integration Camp 2010, at Rohtak, Haryana, from 19-01-2010 to 30-01-2010, representing Delhi Directorate of NCC as a Senior Division Cadet.

c. Kirorimal College, University of Delhi, Debating Competition, which was held from 10-02-2010 to 13-02-2010, as an Adjudicator.

d. Deen Dayal Upadhyaya College, University of Delhi, Melange 2010, Verbal Blitz (Debate), which was held on 26-02-2010, as a debater.

e. St. Stephen‟s College, University of Delhi, 62nd Mukherjee Memorial Championship (Debate), which was held from 26-10- 2010 to 02-03-2010, as an Adjudicator.

f. Annual Prize Distribution Function conducted by Satyawati College, University of Delhi, and petitioner has been awarded a Trophy for excellence as a Cadet in NCC Awards 2009-2010.

g. R.K. Jain Memorial, National Moot Court Competition 2010, which was held from 27-03-2010 to 28-03-2010, as a Speaker / Mooter."

8. The counsel for the respondent no.1 University contends that as per

respondent no.1 University‟s policy, the petitioner is not entitled to any

relaxation for the activities save as in (g) above and of which benefit has

already been given to the petitioner.

9. Argument of the counsel for the petitioner is that the petitioner is

entitled to relaxation for the period of the NCC camp attended by him. It is

stated that there is no reason for the respondent no.1 University, to while in

its policy aforesaid allowing relaxation for sports, not allowing relaxation for

NCC. It is further the case in the rejoinder that since the University School

of Law & Legal Studies does not have NCC, the petitioner had applied to the

Dean for permission to pursue NCC and which permission was granted. It is

urged that the respondents having granted permission to the petitioner to join

NCC, ought to grant relaxation in attendance therefor. It is further informed

that the attendance of the petitioner is short by just six days and since he had

attended NCC camp for over six days, if benefit thereof is given, the

petitioner would meet the attendance criteria.

10. However, according to the policy aforesaid of the respondent

University, NCC even if equated with sports, the benefit thereof only to the

extent of three days can be given and not of six days.

11. The petitioner prior to preferring this petition had made

representations to the respondent no.1 University but without any success.

The vehement opposition by the respondent no.1 University to the said

petition is also indicative of the respondent no.1 University being not willing

to consider the case of the petitioner.

12. The subject of attendance in Law Colleges has been a subject matter

of a recent detailed judgment dated 12th July, 2010 of another Single Judge

of this Court in Vandana Kandari Vs. University of Delhi and several other

petitions. This Court, for plethora of reasons given therein has held that

minimum percentage of lectures having been fixed at 66% (in that case), still

gives the students freedom to miss or abstain from 34% of such lectures and

which was considered a fairly large percentage of lectures which a student

may miss for a variety of reasons including sickness or such other reasons

beyond his control. Reliance in this regard was placed on the judgment

dated 16th May, 2008 of a Division Bench of this Court in W.P. (C) No.

9143/2007 titled Kiran Kumari Vs. Delhi University, order dated 1st

December, 2008 of another Division Bench of this Court in W.P. (C) No.

8534/2008 titled Komal Jain Vs. University of Delhi and on judgment dated

20th April, 2007 of another Single Judge in W.P. (C) 18051/2006 titled Smt.

Deepti Vs. Vice Chancellor, University of Delhi.

13. I find that another Division Bench of this Court in Arvind Gupta Vs.

University of Delhi MANU/DE/0238/1980, in Preeti Srivastava Vs. CBSE

MANU/DE/0484/1994 and in Ashutosh Bharti Vs. The Ritnand Balved

Education Foundation (Regd.) MANU/DE/0024/2005 and Single Judge of

this Court in Yogesh Bhatia Vs. University of Delhi MANU/DE/0784/2003

and in Neera Dadhwal Vs. Deepak Paintal MANU/DE/8392/2007 have

emphasized the importance of attendance and that Rules with regard thereto

cannot be given a go by on sympathetic grounds.

14. The petitioner as per the policy of the respondents regarding

attendance did not have the requisite attendance. The policy regarding

attendance having been approved by the Division Bench of this Court, this

Bench cannot go into the questions as to why exemption is granted for some

extracurricular activities and not for others. The students are required to

attend all classes. The petitioner if had attended the other classes besides for

the period for which he claims to have participated in extracurricular

activities would still have met the attendance criteria. Such students who

take classes lightly and believe in skipping rather than attending classes do

not deserve any indulgence.

15. The petitioner has also urged that the respondent no.1 University has

permitted other students who also do not have the requisite attendance to

take the examination. Neither have the said other students been made parties

nor can such enquiry be made in these proceedings. Moreover, there can be

no equality in illegality. Even if the contention of the petitioner were to be

true that the policy of the respondents regarding attendance has been

violated qua other students, that would only entitle the petitioner to have the

said action of the respondent no.1 University struck down, as held in

Gursharan Singh Vs. NDMC (1996) 2 SCC 459.

16. The petitioner has also contended that no warning was meted out to

him. The petitioner has however not shown any Rule requiring such

warning to be meted out to him. A student is required to know the norm qua

attendance and which is a usual norm transgressing all educational

institutions and the student cannot be heard to say that he did not know that

he was short of attendance. A student whenever he / she misses a class

ought to know that the same is at the peril of his being detained.

17. The petitioner has also urged that the respondents have fabricated his

attendance records and have not given him the aggregate attendance.

However, there is no averment as to why the respondent no.1 University

would be prejudiced against the petitioner and would be interested in

detaining him. In the absence of any such case having been made out, such

pleas by a student against the educational institution to which he / she is

admitted are depreciable. It shows the regard which the student has for his

educational institution. Such allegations show that the petitioner for the sake

of relief is willing to blame one and all and without any basis. Justice

Krishna Iyer in Gulam Mustafa Vs. State of Maharashtra (1976) 1 SCC

800 stated "It (mala fide) is the last refuge of a losing litigant". In Ajit

Kumar Nag Vs. General Manager, IOC Ltd. AIR 2005 SC 4217, it was

held "it is well settled that the burden of proving mala fide is on the person

making the allegations and the burden is very heavy" (vide E.Y. Royappa

Vs. State of Tamil Nadu AIR 1974 SC 555). There is every presumption in

favour of the administration that the power has been exercised bona fide and

in good faith. It is to be remembered that the allegations of mala fide are

often more easily made than made out and the very seriousness of such

allegations demands proof of a high degree of credibility".

18. The petitioner also contends that inspite of his pleas, he was not given

a hearing and not shown the record to satisfy the University that he was

wrongly marked absent when he was present.

19. In my opinion, the Rules of natural justice or audi alteram partem

cannot be extended to such matters. The Supreme Court in Maharashtra

State Board of Secondary & Higher Secondary Education Vs. Paritosh

Bhupesh Kumar Sheth AIR 1984 SC 1543 has held that the rule of audi

alteram partem cannot be extended to checking of the answer sheets in an

examination. In my view the same has to be applied in the matter of

attendance also. The factual disputes as to attendance if are permitted to be

raised, the educational institutions would forever be embroiled in such

disputes only and would be running to the Courts to prove the attendance

rather than imparting education to the students. Moreover, it would be well

nigh impossible for the Courts also to decide as to whether the student has

been correctly marked absent on a particular day or not. A teacher who is

imparting education and learning to a student cannot be expected to mark a

student present in the class absent.

20. There is no merit in the petition. The same is dismissed. The result

of the examination which the petitioner was permitted to take under orders

of this Court is accordingly ordered to be cancelled. However, no order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) 18th August, 2010 gsr (corrected and released on 6th September, 2010)