Delhi High Court
Vandana Kandari vs University Of Delhi on 12 July, 2010
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 30.04.2010
Judgment delivered on: , 2010
W.P.(C) No. 8302/2009,
Vandana Kandari ......... Petitioner
Through: Mr R.K.Saini, Advocate.
versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 8419/2009
Aarti Meena ..... Petitioner
Through: Mr R.K.Saini, Advocate.
versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 13314//2009,
Manas Pegu ..... Petitioner
Through: Mr Mohit Jolly, Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 8302/2009 Page 1 of 82
W.P.(C) No. 13354//2009
Sukriti Upadhyay ..... Petitioner
Through: Mr Hari Narayan Takkar
& Deepak Anand, Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 13391//2009
Rajesh Kumar Gautam ..... Petitioner
Through: Mr R.K.Saini, Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 13400/2009
Sajili Vashisht ..... Petitioner
Through: Mr. Kirti Uppal, Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 8302/2009 Page 2 of 82
W.P.(C) No. 13410/2009
Samiya Singh ..... Petitioner
Through: Mr. Kirti Uppal, Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 13427/2009
Manpreet Kaur ..... Petitioner
Through: Mr. Dinesh Agnani, Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 13456/2009
Samuel S.L. Serto ..... Petitioner
Through: Mr. A. Guneshwar Sharma,
Advocate.
Versus
University of Delhi.
..... Respondents
Through: Shri M.J.S. Rupal, Adv.
W.P.(C) No. 8302/2009 Page 3 of 82
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
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?
KAILASH GAMBHIR, J.
1. "Our Colleges of law do not hold a place of high
esteem either at home or abroad, nor has law become an area of
profound scholarship or enlightened research" observed Dr.
Sarvepalli Radhakrishnan some decades ago. But today we have
travelled a long distance since then, altering the landscape of
legal education in our country. We are just marginally away from
the profound scholarship and enlightened research and we must
proudly admit that Dr. Radhakrishnan‟s powerful and poignant
words are amenable to radical restatement today. The subject
matter of the present petitions is a case of an unfortunately
prevalent trend in the now otherwise highly systemized scheme of
legal education that exits today.
2. This order shall dispose of a batch of nine petitions
bearing nos. 8302/2009, 8419/2009, 13314/2009, 13354/2009,
13391/2009, 13400/2009, 13410/2009, 13427/2009 and
13456/2009, filed by the petitioners who are students of
different semesters in Law Faculty, University of Delhi. All these
petitions raise a common question and issue as all these
petitioners were detained from appearing in the semester
examinations on account of shortfall of their attendance. Out of
these nine cases, the petitioners in W.P.(C) No 8302/2009 and
W.P.(C) 8419/2009 seek relaxation in the shortfall of the
attendance under Rule 2 (9)(d) of Ordinance VII of the University
Ordinance read with Article 42 of the Constitution of India to give
concession of attendance in all those lectures during which
period they could not attend classes being at the advance stage
of pregnancy. In W.P.(C) No. 13314/2009, 13354/2009,
13400/2009, 13410/2009, 13427/2009, 13456/2009, the
petitioners claim condonation of shortfall of attendance on
medical grounds, while in W.P.(C) No.13391/2009, the petitioner
has claimed condonation on the ground that he could not attend
the classes due to the exigency of taking care of his old
grandparents.
3. Adumbrated facts of each petition are as follows:
In W.P. (C) 8302/09, the petitioner was pregnant and on
19.11.2008, she made a representation to the Professor-in-
Charge of the Faculty of Law stating that since she is pregnant,
she might fall short of attendance during the VIth semester
commencing from January, 2010 and so in such an event she may
be permitted to appear in the examinations, which representation
was duly received. She gave birth to a boy on 10.1. 2009, due to
which she had attendance of 54.30% as opposed to the required
66% and hence was detained from appearing in the VIth
semester examination. As on date, as an interim measure she was
allowed to appear in the VIth semester examination and the
result was to be kept in a sealed cover subject to the outcome of
the present petition. But still the university declared her result on
17.6.2009 in which she has cleared all the papers of the VIth
semester securing 297 out of 500 marks.
Similarly in W.P. (C) 8419/09 the petitioner was pregnant and
gave birth to a female child on 16.2.2009, due to which her
attendance in the IVth semester was 53% and was hence
detained from appearing in the examinations. As on date, as an
interim measure, this court had permitted her to appear in the
said examination and the result to be kept in a sealed cover
subject to the outcome of this writ petition.
4. Mr. R.K. Saini, counsel for the above mentioned two
petitioners, submitted that under Article 42 of the Constitution of
India by virtue of the Directive Principles of State Policy, a duty
has been cast upon the State to make adequate provisions for
securing just and humane conditions of work and for maternity
relief and that the Government in compliance thereof enacted the
Maternity Benefit Act , 1961(with special emphasis on section 4
and 6) and that the provision of Rule 2 sub rule 9(d) of Ordinance
VII of the university also flows from the said Directive Principles.
He also placed reliance on the judgment of the Apex court in
MCD vs. Female Workers AIR 2000 SC 1274 (with special
emphasis on para 10, 24 and 30). Mr. Saini further submitted that
so far Ordinance VII is concerned, the heading of the same which
reads as "Conditions for admission to Examinations" itself would
show that the said ordinance deals with the conditions of all the
examinations which includes LLB as well. He further submitted
that so far Rule 2(9) (d) of Ordinance VII is concerned, the same
remained effective even after amendment in Rule 2(8) (a) after
the decision of the Division Bench in S.N. Singh's (I) case (106
(2003) DLT 329). The contention of the counsel was that so far
the cases of the students of maternity leave are concerned, the
said provision remained unaltered and the same continued to be
applicable to all courses including the LLB Course. He further
submitted that by operation of Rule 2 (9) (d) a fiction is created as
if no lectures were held during the period of maternity leave of a
married woman student who becomes pregnant and delivers a
child during the period of her studies. Therefore by giving the
concession/benefit to a married woman student in accordance
with Rule 2 (9) (d) and Rule 2 (8) (a) of University calendar
relating to LLB course and Bar Council of India Rule is actually
not violated in as much as both the rules require a LLB student to
put in a minimum attendance of 66% in each of the subjects
which obviously relates to the lectures delivered. Counsel also
contended that what are the minimum lectures to be delivered by
the College/University in a particular Semester/Academic year is
not specified anywhere. He further placed reliance on the
judgment of the Apex Court in Zee Telefilms Ltd & Anr vs. UOI
AIR 2005 SC 2677 in which it was held that a decision is not an
authority for the proposition which did not fall for its
consideration. He also relied on the case of UOI vs. Amritlal
Manchanda AIR 2004 SC 1625 where it reiterated the
principle that each case depends on its own facts and a close
similarity between one case and another is not enough because
even a single significant circumstance may alter the entire
aspect. Counsel thus urged that in deciding such cases, one
should avoid the temptation to decide cases by matching the
colour of one case against the colour of another. To decide
therefore, on which side of the line a case falls, the broad
resemblance to another case is not at all decisive.
5. Mr. Saini also placed reliance on the judgment of this
Court in Seema Sharma vs. University of Delhi W.P. (C)
No.9892/2006 where specifically dealing with Rule 2 (9) (d) of
Ordinance VII, the court has held it applicable in the case of a
married women student, irrespective of the provisions contained
in the rules prior to said rules relating to the requirement of
attendance in her course of study, and has held it to be the right
of married women students studying in University of Delhi and
holding them as a special class under Ordinance VII. Counsel
also placed reliance on the following judgments:
1. Neera Gupta & Ors. vs. University of Delhi & Anr. 63 (1996) DLT 458
2. Nithya vs. University of Madras 1996 WLR 8029 (Madras High Court)
3. Mrs. Bharti Gupta vs. RITES (WPC 4798/03, Delhi High Court)
6. Coming to the other petitions, briefly the facts are as
follows:
In W.P. (C) 13314/09, the petitioner is a student of Ist Semester
and had 61.27% attendance. He could not attend college as he
suffered from acute lambago (ailment of the lower back) and was
advised bed rest for one month from 1.9.09 to 30.9.09. As an
interim measure, the court allowed him to appear in the Ist
semester examination and thereafter also permitted him to
attend IInd semester classes and appear in the IInd semester
examinations.
In W.P. (C) 13354/09, the petitioner is a student of Ist Semester
and her attendance was 56%. On account of suffering from
backache and infection in digestive system she had returned to
her hometown in Rajasthan for one month from 1.8.09 to 1.9.09
and was hence debarred from appearing in the Ist semester
examinations. As an interim measure, she was allowed to take the
Ist semester examinations and thereafter attend IInd semester
classes and also take IInd semester examinations.
In W.P. (C) 13391/09 the petitioner is a student of Ist semester
and had 63.7% and was short of attendance on account of taking
his ailing old grandparents to hospital time and again. As an
interim measure, he was allowed to appear in the Ist semester
examinations and attend classes of the IInd semester.
In W.P. (C) 13400/09 the petitioner is a student of the Ist
semester and her attendance was 50.2% due to asthma attacks
and was advised rest from 5.10.09 to 30.10.09. As an interim
measure, the court allowed her to appear in the Ist semester
examinations and attend classes of the IInd semester and also to
appear in the IInd semester examinations.
In W.P. (C) 13410/09 the petitioner is a student of Vth semester
and due to suffering from dengue fever, her attendance was
61.5% as opposed to the required 66%. According to the
petitioner she was marked zero attendance in the subject of
Intellectual Property Laws whereas she had attended quite a
number of lectures of the said subject. As an interim measure,
this court had allowed her to appear in the Vth semester
examinations and attend classes of the VIth semester and
thereafter also to appear in the VIth semester examinations
subject to the outcome of the present writ petition.
In W.P. (C) 13427/09 the petitioner is a student of Ist semester
and was short of attendance as she had 62.7% due to suffering
from viral. As an interim measure, the court had allowed her to
appear in the Ist semester examinations.
In W.P. (C) 13456/09 the petitioner is a student of Ist semester
and was suffering from acute sinusitis (frontal) due to which his
attendance was 62.20%. As an interim relief, the petitioner was
allowed to appear in the Ist semester examinations and
consequently to attend the classes of the IInd semester and to
appear in the IInd semester examinations subject to the outcome
of the present writ petition.
7. In the above mentioned seven petitions, the counsel
representing them jointly placed reliance on Rule 2 (9) (a) (ii) of
Ordinance VII of the University Calendar. The contention of the
counsel was that the said sub rule is still applicable with all force
even after an amendment was brought out by the Delhi University
in Rule 2 (8) (a) of Ordinance VII after bringing the same in
conformity with the then Rule 3 of section B of Part IV of the Bar
Council of India Rules. The contention of the counsel was that
Rule 9 of Ordinance VII deals with general students and even
after the amendment brought out in Rule 8 of Ordinance VII, the
said general provision cannot be rendered redundant or
obliterated from the Ordinance so far its applicability to the
students of LLB or LLM is concerned.
8. Mr. Mohit Jolly, counsel for the petitioner appearing
in W.P. (C) No. 13314/2009, vehemently contended that this court
has to interpret the said two provisions i.e. Ordinance VII Rule 2
sub rule (8) (a) and Ordinance VII Rule 2 sub rule 9(a) (ii)
harmoniously. The contention of the counsel was that such
interpretation would also satisfy the test of reasonableness as
required under Article 14 of the Constitution of India. Counsel
further submitted that any cast iron interpretation of the Statute
which promotes unreasonableness must be discarded. Counsel
also submitted that Rule 2 (9) (a) (ii) remained intact even after
the amendment in Rule 2 8(a) which in itself manifests the
intention of the university to provide relief in exceptional
deserving cases in terms of Rule 2 (9) (a) (ii) of Ordinance VII.
Counsel also submitted that no directions were given by the
Division Bench of this court in S.N. Singh's case(I) to the
University to amend Ordinance X-C in such a manner so as to
make Rule 2 (9) (a) (ii) inapplicable to the LLB course. He
further submitted that the amended rule does not in any manner
suggest that the same has to be read in isolation as a self-
contained and independent provision or that the same negates
and nullifies the operation of other rules including the said Rule
2(9) (a) (ii). In support of his arguments counsel placed reliance
on the judgment of this court in Manjit Singh vs. University of
Delhi W.P. (C) 7652/2008. Counsel further submitted that it is
a settled law that every clause of statute should be construed
with reference to the context along with other clauses of the Act
and a harmonious construction of such conflicting clauses is to be
given so as to give a purposeful interpretation to the same.
Counsel thus submitted that Rule 2 (8) (a) cannot be construed in
a manner so as to render Rule 2 (9) (a) (ii) otiose and dead letter.
Counsel thus urged that the interpretation sought to be given by
the university is per se unreasonable whereas the interpretation
canvassed by the counsel for the petitioner would not only be
just, reasonable and sensible but the same would also give real
intendment of the university in enacting the said Rule 2 (9) (a) on
the Statute Book. In support of his arguments, counsel placed
reliance on the following judgments.
1. Newspapers Ltd. vs. State Industrial Tribunal, U.P. & Ors. AIR 1957
SC 532
2. M. Pentiah 7 Ors. vs. Muddala Veeramallappa & Ors. AIR 1961 SC
3 . M/s Gammon India Ltd. vs. Union of India & Ors. AIR 1974 SC 960
4. Mysore State Road Transport Corporation vs. Mirja Khasim Ali Beg &
Anr., AIR 1977 SC 747.
5. O.P. Singla & Anr. vs. U.O.I. & Anr., 1984 (4) SCC 450.
6. Philips India Ltd. vs. Labour Court, Madras & Ors., 1985 (3) SCC 103.
7. Shrimant Shamrao Suryavanshi & Anr. vs. Pralhad Bhairoba
Suryanvanshi, 2002(3) SCC 676.
8. Tinsukhia Electric Supply Co.Ltd. vs. State of Assam & Ors., AIR 1990
SC 123.
9. Anwar Hasan Khan vs. Mohd. Shafi & Ors., 2001 (8) SCC 540.
10. Andhra Bank vs. B. Satyanarayana & Ors., AIR 2004 SC 4007.
11. Nandkishore Ganesh Joshi vs. Commissioner, Municipal Corporation of
Kalyan & Dombivali & Ors., AIR 2005 SC 34.
12. Nelson Motis vs. UOI, AIR & Anr. 1992 SC 1981.
13. Nathi Devi vs. Radha Devi Gupta, 2005 (2) SCC 271.
14. Kailash Chandra & Anr. vs. Mukundi Lal & Ors. AIR 2002 SC 829.
15. Krishan Kumar vs. State of Rajasthan & Ors., AIR 1992 SC 1789.
16. Madanlal Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills Ltd.
& Ors., AIR 1962 SC 1543.
17. Sultana Begum vs. Prem Chand Jain, AIR 1997 SC 1006.
18. State of Gujarat & Ors. vs. Dilipbhai Nathjibhai Patel & Anr., 1998 (3)
SCC 234.
19. D.Saibaba vs. Bar Council of India & Anr., AIR 2003 SC 2502.
20. Lalit Mohan Pandey vs. Pooran Singh & Ors.,2004(6) SCC 626.
9. Mr. Deepak, counsel appearing in W.P. (C) 13354/09
alleged that the petitioner had attended all the lectures in the
subject of Law of Torts and Family Law but was awarded only
15% and 60% attendance on account of the fact that the
attendance was marked on chit papers and not duly on
attendance registers and hence in the commotion to get the
attendance marked at the end of the lecture many students
frequently were not able to get their attendance marked. He
further submitted that the attendance rules in the Information
Bulletin of the Faculty of Law clearly states that the Professor-In-
Charge shall have the power to strike off the name of a student
who is grossly irregular in attendance in spite of warning, or,
when the absence of a student is for such a long period that he
cannot put in requisite percentage of attendance. His contention
was that the word "shall" used in the said attendance rules is only
directory in nature and not mandatory and hence the Professor-
In-charge is not under compulsion by virtue of this rule to strike
off the name of each and every student, but the said power is
discretionary and under exceptional circumstances he can
exercise such power. In support of his arguments, counsel placed
reliance on the judgment of the Apex Court in Union of India &
Ors. vs. A.K. Pandey (2009) 10 SCC 552 where it was held
that negative and prohibitory words are indicative of the
legislative intent when the statute is mandatory and in the
present case as the word "shall" in the attendance rules is not
followed by any negative words hence the said rule word only be
directory in nature and not mandatory. Counsel also placed
reliance on the following judgments:
1. Avanija Sundaramurti vs. University of Delhi & Anr. 139(2007)DLT 220
2. Neera Dadhwal vs. Deepak Paintal And Ors W. P. ( C ) No. 17455/2006
(Delhi High Court)
3. State of Haryana & Anr. vs. Raghubir Dayal (1995) 1 SCC 133
4. Lachmi Narain etc. vs. Union of India & Ors AIR 1976 SC 714
10. Mr. Kirti Uppal, counsel for the petitioner in W.P.(C)
No. 13410/2009 submitted that the petitioner was assigned zero
attendance by the teacher in the subject of Intellectual Property
Laws, although the petitioner did attend quite a number of
lectures in the said subject. Counsel also submitted that the said
averment of the petitioner has not been refuted by the Law
Faculty as no separate counter affidavit has been filed by the Law
Faculty in this regard and no reliance can be placed so far the
affidavit filed by the Registrar representing the University of
Delhi is concerned. He alleged that from a bare perusal of the
attendance sheet of the petitioner produced in the court during
the course of arguments it seems that the same has been
manipulated/overwritten. Counsel further submitted that the
petitioner had in her representation dated 19.11.2009 specifically
asked for the official attendance which was not given to the
petitioner. Counsel for the petitioner strongly placed reliance on
the judgment of this court in the case of Avijit Bhushan vs.
University of Delhi 136 (2007) DLT 441, where the court took
into consideration the amended Rule 8 (a) and judgment of the
Division Bench in S.N. Singh I case along with the promotion
rules and gave directions to the university to promote the
students to the IIIrd semester as the court found that there was
no requirement of attaining 66% attendance in the IInd
semester for securing promotion to the IIIrd semester. Counsel
also contended that the university failed to observe the principles
of natural justice as no show cause notice was given to her before
taking such a harsh decision of detaining the petitioner and have
thus violated the law laid down in the case of Avijit Bhushan.
11. Mr. Deepak and Mr. Kirti Uppal vehemently contended
that the respondents have misinterpreted the attendance and
promotion rules as the shortage of attendance of the petitioners
cannot be equated with the notion of "gross irregularity" as the
university has disdainfully erred in meaningful appreciation of the
said term in the light of its analysis by this court in the case of
Avijit Bhushan.
12. Counsel for petitioner in W.P. (C) 13400/2009 and
13427/2009 alleged that the petitioners have been discriminated
as the university later reduced the required attendance to 63%
and other students have been allowed to appear in the
examinations. Similarly, in W.P. (C) 13391/2009, the petitioner
alleged that the mandatory requirement of 66% was later reduced
to 64% and the petitioner had 63.7% of attendance and should
have also been given the benefit of the said relaxation. Counsel
also claimed relaxation in view of the Apex Court judgment in the
case of Union Of India vs. Satya Prakash (2006)4 SCC 550
and of this court in case of Madan Mohan vs. GGSIPU W.P.(C)
13035/2008 where 0.5% has been rounded off to 1%.
13. Mr. A Guneshwar Sharma, counsel appearing for the
petitioner in W.P. (C) 13456/2009 submitted that by mere
displaying the shortage of attendance at the threshold of the
examination, when the student will not be having an opportunity
to make up the same, cannot be termed as a justified act on the
part of the respondents. He further submitted that in the event of
the petitioner being detained, he will lose one academic year and
will not be able to pursue his law studies at all because of the
provision of Rule 12 of the ordinance which states that there shall
be no readmission in the LLB first term under any circumstances
including detention for shortage of attendance in that term and
hence the petitioner would have to again appear in the entrance
examination for seeking admission in the first year.
14. Mr. Rupal, counsel for the respondent, University
of Delhi submitted that so far the LLB students are concerned,
under Ordinance VII Rule 2(8) (a) read with Bar Council of India
Rules, the student must secure 66% attendance in each subject in
each semester. Counsel further submitted that under the proviso
of the said rule, only in exceptional cases, the Dean, Faculty of
Law/Professor In-charge of Law Centre concerned may condone
attendance short of those required by the said rule, if such
student had 66% of attendance in aggregate and for that the said
Dean or the Professor In-charge has to record reasons for
communication of the same to the Bar Council of India. He
further submitted that after the judgment
in the case of S.N. Singh I dealing specifically with the issue
of attendance with regard to LLB students, Rule 2 sub rule 9(a)
of Ordinance VII cannot come to the rescue of the LLB students.
He submitted that the position was again reiterated by this court
in the judgment of the division Bench in S.N Singh II and again
by Justice S.K Misra in the case of Satyendra Singh vs.
University of Delhi W.P. (C) 3225/2008. Further elaborating
his arguments, counsel submitted that Rule 2(9) (a) of Ordinance
VII would be only applicable to the students of other courses
excluding the LLB course. He also submitted that similarly Rule
2 sub rule 9 (d) of Ordinance VII dealing with the maternity leave
is not applicable so far the LLB students are concerned.
15. Mr. Rupal placed reliance on the judgment of this
Court in the case of Kiran Kumari vs. Delhi University & Ors
W.P. (C) No. 9143/2007 where it was held that the students still
have 34% of lectures to deal with the emergent situations like
sickness or such other reasons beyond control and certainly the
maternity period can also be taken care of in this percentage. He
also placed reliance on the judgment of the Division Bench of this
court in Komal Jain vs. University of Delhi W.P. (C)
8534/2008 where the court reiterated the law as settled by the
previous judgments.
16. Also, refuting the submissions of counsel for the
petitioners, Mr. Rupal said that the judgment in the case of Avijit
Bhushan would not come to help the petitioners as the fact
situation was entirely different in that case. It was further
submitted by the counsel for respondent that the attendance is
regularly displayed on the notice board and hence there is no
question of there being violation of principles of natural justice so
far the petitioners are concerned. He further submitted that the
allegation of the mandatory requirement of 66% being reduced to
64% or 63% before the commencement of the examinations is
completely fallacious as there is no ground for raising such an
argument and no records to prove the same. He also submitted
that in the case of married students who were pregnant, Rule
2 (9)(d) of ordinance VII would not be applicable as there is a
requirement of obtaining maternity leave for the operation of the
said sub rule which has not been done in the case at hand.
17. Mr.Mohit Jolly, on the other hand, rebutting the
arguments of Mr. Rupal submitted that it is to be noted that in
the case of S.N Singh II, the Division Bench of this court merely
reiterated the ratio of S.N Singh I and directed the university
to follow the same and in none of the judgments relied upon by
the respondents the power vested with the Dean in Rule 2(9) (a)
(ii) has been held to be inapplicable to LLB students and in fact
there is no discussion , observation or finding so far the said rule
is concerned in any of the judgments.
18. I have heard learned counsel for the parties at
considerable length and given my anxious consideration to the
facts of each case and import of various judgments cited by the
counsel for the parties.
19. Eminent jurist Nani Palkhivala once remarked that
lawyers‟ education is a process extending over a whole career. It
starts with the academic stage, extends through training in courts
and continues through a mix of self education and learning from
peers for long as a person is involved in legal work. The stress is
on the importance of the capacity to learn, which must be
developed at the earliest possible stage i.e. the law school. It is
this vital capacity, in my opinion, which marks the distinction
between getting a degree and having an education.
20. Before adverting to the pleas raised by the counsel for
the parties, it would be appropriate to garner the metamorphosis
of the rule that is the bone of contention here.
RULE 2 (8)(a), ORDINANCE VII, UNIVERSITY OF DELHI
21. Shri S.N.Singh, Professor of Law Centre-II, Faculty of
Law, University of Delhi had filed a Public Interest Litigation after
he found mass indiscriminate promotion of students from first
year to second year and then from second year to third year,
although such students had cleared only 14 papers, which was in
violation of the promotion rules but still were being exempted by
the Standing Committee (Students) of the University from time to
time. The Division Bench of this court after taking into
consideration the contentions raised by Mr. S.N. Singh and the
respondents therein and the then existing Rule 2 (8) (a) of
Ordinance VII and Rule 3 of Bar Council of India Rules gave
directions to the University of Delhi to amend the attendance
rules to bring them in conformity with the rules framed by the
Bar Council of India (for short BCI). The Division Bench was of
the view that the permissible relaxation, so far the requirement of
attendance in the LLB course was concerned, should be strictly as
per the Rules framed by the Bar Council of India. It would be
pertinent to reproduce the observations of the Division Bench in
the said judgment, known as S.N. Singh I, here:
"27. We find force in the submission of the learned counsel
for the petitioner in respect of the first four submissions noted
by us above. A law course cannot be equated with a normal
academic course. Attendance of lectures, tutorials and
seminars is very essential to train the law students. Under the
Advocates Act 1961, the Bar Council of India has been
empowered, amongst others, "to promote legal education and
to lay down standards of such education". The Bar Council of
India has framed statutory rules which bind all institutions
conferring LL.B. Degree Course which are recognised by the
Bar Council of India. Section 4 of the Delhi University Act
1922 empowers the University to confer degrees of students
who have pursued a course of study in the University or in
any college attached or affiliated to the University. No student
can be deemed to have pursued a course of study who does
not comply with the various requirements prescribed under
the Act, Statute, Ordinances or Rules framed by the Academic
Council. Needless to state that the Academic Council is the
Supreme Academic Body of the University. Clause 8 of
Ordinance 7 clearly provides that no student shall be deemed
to have pursued a regular course of study unless he has
attended at least two-thirds of the total number of lectures
delivered in each year. The proviso permits relaxation of
shortage of attendance up to 10%. Thus, as per the
attendance norms prescribed under the Ordinances,
pertaining to LL.B. Degree Course, shortage of attendance
beyond 10% is not permissible. However, the Academic
Council in exceptional cases is empowered to grant a further
relaxation. The examination Rule framed by the Bar Council of
India also provides for relaxation, but makes a different
provision for relaxation. The Bar Council of India Rule requires
66% attendance in each paper and empowers relaxation in a
particular paper, provided however total attendance in all the
papers is 66%. The Academic Council decision to accept the
Justice V.S. Deshpande Committee recommendation is thus a
resolution limiting the exercise of power of relaxation
unanimously adopted by the Academic Council. The Academic
Council would thus be bound by its own resolution. The
decision not to grant relaxation was a conscious decision
taken for which even a high powered Committee was
constituted and was taken in the interest of legal education.
28. Since the Bar Council of India recognises the LL.B.
Degree Course of the University of Delhi and the Bar
Council of India is a statutory body constituted under
the Advocates Act 1961 and is empowered to lay down
standards of legal education, University of Delhi would
be required to bring its rules in conformity with the
rules of the Bar Council of India.
29. The respondent No. 1 is thus issued a direction to
amend its examination and promotion Rules in the
matter pertaining to attendance to bring them in
conformity with the corresponding rules framed by the
Bar Council of India."
It further held:
36. In matters pertaining to education no court can
permit total violation of the norms. LL.B. Degree Course
is expected to produce trained legal minds, ready to
take on the challenges of the 21st Century. Decline in
education norms in professional law courses was noted
by the Supreme Court as far back as 1989. In the
judgment: [1989]2SCR862 titled Baldev Raj Sharma Vs.
Bar Council of India, it was observed that there is a
substantial difference between a course of study
pursued as a regular student and a course of study
pursued as a private candidate. It was observed that
regular attendance for the requisite number of lectures,
tutorials etc. has a purpose. Rules framed by the Bar
Council of India were upheld.
37. For future, directions contained above, namely, no
relaxation would be given from the requirement of
clearance of 5 or 15 papers as the case may be for
promotion to the third and fifth term shall be adhered
to by the University. Further, the attendance rules shall
be amended by the University of Delhi and shall be
brought in conformity with the attendance rules framed
by the Bar Council of India. The permissible relaxation
would be as per the rules framed by the Bar Council of
India and manner of exercise shall be as so framed
there under.
22. Pursuant to the aforesaid directions given by the
Division Bench, Rule 2 (8) (a) of Ordinance VII was amended so
far as it was inconsistent with Rule 3 of the Bar Council of India
Rules and the said amended Rule of Ordinance VII is reproduced
as under:
"2(8) (a) The students shall be required to
put in minimum attendance of 66% of the lectures on each
of the subjects as also at the moot courts and practical
training course.
Provided that in exceptional cases for reasons to be
recorded and communicated to the Bar Council of India, the
Dean of the Faculty of Law/ Professor-in-Charge of the Law
Centre may condone attendance short of those required by
this Rule, if the student had attended 66% of the lectures in
the aggregate for the semester examinations.
Provided further that no person shall be deemed to
have satisfied the required conditions in respect of his
instructions unless, in addition to the requirement regarding
attendance and other conditions, he has appeared and
satisfied by his performance the Professor-in-Charge of the
Law Centre in such test, written and/or oral, as may be held
by him in his discretion.
The Professor-in-Charge shall have, and shall be
deemed always to have had, the power to detain a student
in the same class in which he has been studying, or not to
send him up for the University Examination, in case he did
not appear at the tests aforesaid or his performance was
not satisfactory.
The Professor-in-Charge of the Law Centre shall have
power to strike off the name of a student who is grossly
irregular in attendance inspite of warning, or, when the
absence of the student is for such a long period that he
cannot put in requisite percentage of attendance. ''
23. After the above stated special amendment was
introduced by the university in the said Ordinance, Mr. S.N.
Singh again filed a writ petition to ensure strict compliance of
the attendance rules by all the law centers of Delhi University
and vide order dated 5.12.2006, the Division Bench in
unequivocal terms upheld the contentions of Mr. S.N. Singh and
held that for obtaining the degree of LLB, a student necessarily
has to have a minimum attendance of 66% of lectures in each
subject, and so far the contention with regard to the shortfall of
attendance was concerned, the same was directed to be strictly
adhered to by all the law centers of Delhi University in terms of
the amended rule. It would be pertinent to refer to the relevant
para of the said judgment, known as S.N. Singh II, here:
"The Bar Council of Delhi (in short referred to as the „BCD‟
and BCI are also represented by their counsels. They have
drawn our attention to the provisions of aforesaid Rule 4.
They have also placed before us the BCI Rules made under
the provisions of the Advocates Act, 1961. Reference was
made to Rule 4 thereof which reads as under:
"4. The student shall be required to put in minimum
attendance of 66% of the lectures on each of the
subjects as also at the moot courts and practical
training courses:
Provided that in exceptional cases for reasons to be
recorded and communicated to the Bar Council of
India, the Dean of the Faculty of Law or the
Principals of Law Colleges may condone attendance
short of those required by this rule, if the student
had attended 66% of the lectures in the aggregate of
the semester or examination as the case may be."
In view of the aforesaid stand now taken by all the parties
hereto, we are of the considered opinion that to be able to
appear in the examination for obtaining the degree of LLB, a
student has to have a minimum attendance 66% of the
lectures on each of the subjects. However, there is a proviso
added thereto that in exceptional cases for reasons to be
recorded and communicated to the Bar Council of India the
Dean of the Faculty of Law and the Principals of the Law
Colleges shall have the power and the jurisdiction to condone
attendance short of what is required by the rule, if the
student have attended 66% of the Lectures in the aggregate
for the semester or examination as the case may be. The
aforesaid provision mandates that a candidate must have
minimum attendance of 66% of the lectures on each of the
subject to enable him to appear in the LLB examination,
subject to the condition mentioned in the proviso."
24. The law having been authoritatively settled by the
above said two judgments of the Division Bench, the students
were still being irked by the attendance prescripts and therefore
this issue again came up for consideration before the Hon‟ble
Division Bench of this court in the matter of Kiran Kumari vs.
Delhi University & Ors W.P.(C) No. 9143/2007. The court
once again, after taking note of the earlier two decisions in S.N.
Singh I and S.N. Singh II and also after having taken into
consideration the observations of the Apex Court in the case of
Baldev Raj Sharma vs. Bar Council of India, 1989 Supp (2)
SCC 91 and Bar Council of India & Anr. vs. Aparna Basu
Mallick & Ors., 1994 (2) SCC 102, found no illegality in the
said amended Rule 2 (8) (a) of Ordinance VII or in the Bar Council
of India Rule fixing the criteria of fulfillment of minimum 66%
attendance in each subject as a condition of eligibility for
appearing in the examination in each semester. It would be apt to
refer to the relevant paras of the said judgment here:
"The only question therefore, is whether there is
anything illegal or unconstitutional about the
requirement subject to which the power to condone can
be exercised by the competent authority.
In fairness to Mr. Mittal, we must mention that he
did not canvass that the Rule or the proviso was beyond
the rule making power of the Bar Council of India or the
University. In any case, such an argument may not
have been available to Mr. Mittal in the light of the
decisions rendered by the Supreme Court in cases of
B.R. Sharma and Aparna Basu Mallick (supra), where
the Supreme Court has clearly accepted the scheme of
the Bar Council Rules and recognized that the same lays
great emphasis on regular attendance by the students
of the lectures during the time the students are
undergoing the course. The decision in S.N. Singh
Versus Union of India & Ors. 2003 IV AD (Delhi) 378
(supra) hereinafter referred to as S.N. Singh-I had also
emphasized the importance of lectures, tutorials and
seminars in the process of training the law students. It
had noticed the provisions of the University studies
framed by the Academic Council which at that time
permitted relaxation of shortage of attendance up to
10% making further relaxation permissible only in
exceptional cases. The court had however found a disparity
between the Rules framed by the Bar Council of India and
those framed by the University and directed the University to
amend the same in order to bring them in conformity with the
corresponding Rules framed by the Bar Council of India. While
doing so, the Court noticed that the Rules framed by the
University had resulted in creating an anomalous situation in
as much as the requirement of attendance had been dispensed
by the university authorities for every conceivable reason and
permitted students with as low an attendance as 32% to
appear in the examination. The Court declared that
attendance of lectures delivered during the course was an
essential requirement which alone would entitle the candidate
to qualify in the examination and get enrolled as a Member of
the Bar. That position was reiterated in S.N. Singh Versus
University of Delhi & Ors. (decided on 5.12.2006) (supra)
hereinafter referred to as S.N. Singh II case where another
Division Bench of this Court had held that the provisions of the
Rule were mandatory in nature and had to be strictly adhered
to. This court observed:
"Considering the aforesaid position, we are also of the
opinion that the aforesaid provision being mandatory in
nature should be strictly adhered to and be complied
with by the respective colleges. If there is any violation
of the said rules, it would be open to the petitioner to
bring it to the notice of the University Authorities and
also to the notice of the Bar Councils and when such
violation is noticed, appropriate remedial measures
shall be taken by the University Authorities, BCD and
the BCI. It is also made clear that the University
Authorities shall not allow any deviation from the
requirements of Rule 4 of Section A of Part IV of the Bar
Council of India Rules unless they receive specific
permission from the BCI."
In the light of the above, we find it difficult to
appreciate as to how the requirements of 66% in each
subject or as a condition of eligibility for appearance in
the examination of the requirement of 66% attendance
in the aggregate for purposes of granting the benefit of
condonation in the shortfall can be said to be either
illegal or arbitrary. The decisions delivered by the
Supreme Court and by this Court to which we have
referred above have in our view authoritatively held
that the LLB course was a professional course in which
the candidates have to ensure regular attendance of
lectures and those who do not attend the stipulated
percentage of lectures would not even be eligible for
enrolment as members of the Bar. Such being the
importance given to the attendance of lectures, there is
no question of the requirement stipulated by the Rules
being irrational, unconstitutional or illegal in any
manner. The quality of training which a candidate gets
during the time he undergoes the course is directly
proportional to the number of lectures that he attends.
The failure of a candidate to attend the requisite
number of lectures as stipulated by the relevant rules
can legitimately disentitle him to claim eligibility for
appearing in the examination.
That brings us to the contention vehemently urged by
Mr. Mittal that insistence upon 66% lectures in the aggregate
as a condition precedent for the exercise of the power of
condonation was irrational, for it amounts to empowering the
competent authority on the one hand and denuding him of that
power on the other. We do not think so. What is the
minimum percentage of lectures which a candidate must
attend in each subject or on the aggregate is a matter
on which the academic bodies like the university and
the Bar Council of India are entitled to take a decision.
If in the opinion of the Bar Council and the University, a
candidate cannot be said to have taken proper
instructions or meaningfully undergone the course,
unless he attends a minimum of 66% lectures in the
aggregate, this court cannot but respect that opinion.
In maters relating to academics and standards of
education, the Court would show deference to the
opinion of the academicians unless a case of patent
perversity is made out by the petitioners. The present is
not, however, one such case where the requirement of
the rule can be said to be so perverse or irrational as to
call for the intervention of this Court. As a matter of
fact, the minimum percentage of lectures having been
fixed at 66%, still gives to the students freedom to miss
or abstain from 34% of such lectures. That is 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. No student can however
claim that apart from 34% lectures which he is entitled
to miss even without a cause the shortage to make up
66% should be condoned if he shows good cause for the
same."
25. As would be manifest from the above judgment, the
Division Bench was of the clear view that the minimum
percentage of lectures having been fixed at 66% still give the
students the freedom to miss or abstain from 34% of such
lectures which as per the Hon‟ble Division Bench is a fairly large
percentage of lectures which a student may miss for a variety of
reasons including sickness or such other reasons beyond his/her
control. The necessary import of the said observation would be
that besides such 34% of the lectures which is understood to be a
legitimate right of the students to miss, the criteria is to have
66% of attendance in aggregate in a particular semester to entitle
a student to seek further relaxation to meet the shortfall in
attendance in exceptional cases.
26. As still the wayward lot of students try to wriggle relief
by knocking the door of the court of law, in yet another case of
Komal Jain vs. University of Delhi W.P. (C) No. 8534/2008
the Division Bench of this court was confronted with the same
situation where again the candidate had challenged the
constitutional validity of the rules concerning the promotion of
students of the LLB course. In the facts of the said case, the
petitioner, because of suffering from typhoid, could not attend her
classes for 22 days in her Vth semester of LLB course and due to
that she had only 53.41% attendance instead of the prescribed
minimum 66% attendance. The Division Bench, not finding any
merit and substance in the pleas raised by the student and after
placing reliance on the earlier decisions of this court, dismissed
the petition with the following observations:
"We cannot lose sight of the fact that education is not
available to every citizen of India. The State allocates large
sums of money on higher education and professional courses,
such as the Law Degree. For every student who is fortunate
to gain admittance to a professional course, at least four
persons are disappointed. Education, so far as in Delhi
University is concerned is so highly subsidized by the
government that it is unfortunately taken for granted by a
large section of the student community. It is this section
which thinks that it is not necessary to attend all the lectures
delivered in the Faculty; they even challenge the minimum of
66 per cent established by the University of Delhi as well as
by the Bar Council of India.
The constitutional validity of the Rules has been considered
and upheld by the Division Bench of this Court in WP(C)
No.91432/2007 titled Kiran Kumari vs Delhi University
decided on 16.5.2008. Precedents emanating from the Apex
Court, including those titled Baldev Raj Sharma vs Bar Council
of India, 1989Supp (2) SCC 91, Bar Council of India vs
Aparna Basu Mallick,(1994)2SCC102 and S.N. Singh vs Union
of India, 2003 IV AD (Delhi) 378, were analysed and applied.
It has been opined that the fixation of the minimum
percentage of attendance is a matter on which academic
bodies, like the University of Delhi and the Bar Council of
India, are most competent to decide. It has also been opined
that the freedom to abstain from attending 34 per cent of
lectures adequately covers eventualities of sickness etc. It
appears to us that is beyond cavil that every citizen must
comply with the attendance criteria in order to be eligible for
promotion to the next academic year. We are in
respectful agreement with the decisions mentioned above.
The vicissitudes and vagaries of life often cause a delay in
achieving an objective that a person has set for himself. It
would be foolish to think that such a delay inexorably leads to
ruination of the career.
For a Mandamus to issue it is imperative for the Petitioner to
show the existence of an undisputable right; or the impugned
decision should partake of a perverse or indefensible
character. Rather than falling in this category, the decision of
the Respondents to insist on adherence to minimum
attendance criteria is calculated to achieve excellence in
academic standards. We find no reason to exercise
extraordinary powers vested under Article 226 of the
Constitution of India. Dismissed."
27. With the three Division Bench judgments in the
backdrop, the petitioners, in the present petitions, have shown
valiance in approaching this court with the hope that their
truancy would be pardoned. It is well settled legal principle that a
smaller Bench cannot override a decision of the larger Bench. It
would be worthwhile here to refer to the recent judgment of the
Apex Court in the case of State Of Karnataka vs. G.V
Chandrashekar (2009)4 SCC 342 where Hon‟ble Justice S.B
Sinha has discussed this rule in the following light:
"The Bench in Official Liquidator vs. Dayanand(2008)10 SCC 1
noticed several judgments/orders of different Benches taking a
view contrary to Uma Devi (3) (supra) to opine that those
cases were illustrative of non-adherence to the rule of judicial
discipline which is sine qua non for sustaining the system. It
was opined:
90. We are distressed to note that despite
several pronouncements on the subject, there
is substantial increase in the number of cases
involving violation of the basics of judicial
discipline. The learned Single Judges and
Benches of the High Courts refuse to follow and
accept the verdict and law laid down by
coordinate and even larger Benches by citing
minor difference in the facts as the ground for
doing so. Therefore, it has become necessary to
reiterate that disrespect to constitutional ethos
and breach of discipline have grave impact on
the credibility of judicial institution and
encourages chance litigation. It must be
remembered that predictability and certainty is
an important hallmark of judicial jurisprudence
developed in this country in last six decades
and increase in the frequency of conflicting
judgments of the superior judiciary will do
incalculable harm to the system inasmuch as
the courts at the grass root will not be able to
decide as to which of the judgments lay down
the correct law and which one should be
followed.
91.We may add that in our constitutional set up
every citizen is under a duty to abide by the
Constitution and respect its ideals and
institutions. Those who have been entrusted
with the task of administering the system and
operating various constituents of the State and
who take oath to act in accordance with the
Constitution and uphold the same, have to set
an example by exhibiting total commitment to
the Constitutional ideals. This principle is
required to be observed with greater rigour by
the members of judicial fraternity who have
been bestowed with the power to adjudicate
upon important constitutional and legal issues
and protect and preserve rights of the
individuals and society as a whole. Discipline is
sine qua non for effective and efficient
functioning of the judicial system. If the Courts
command others to act in accordance with the
provisions of the Constitution and rule of law, it
is not possible to countenance violation of the
constitutional principle by those who are
required to lay down the law.
...................
We feel bound by the observations made therein."
Hence, in the present case also this court is bound by the
aforesaid decisions of the Division Bench of this Court.
BAR COUNCIL OF INDIA & ITS RULES
Justice A.M Ahmadi once remarked that "We have waited long
enough to repair the cracks in the legal education system of this
country and it is high time that we rise from arm-chairs and start
the repair in the right earnest" . Hence, the Bar Council of India
sought to introduce regulations of law courses through out the
country. BCI derives its power under the Advocates Act, 1961
which has its source from Entries 77, 78 of List I which deal with
the subject of persons entitled to practice before Supreme Court
and the High Courts. Section 7 of the Indian Advocates‟ Act 1961
states the functions of the Bar Council of India and a glance at
sub clause (h) and (i) of the same show that one of the important
functions of the BCI and the State Bar Councils is to promote
legal education in the country and to lay down standards of the
legal education in the Law Universities of India. It is under the
aegis of this section that the Bar council of India Rules, 1975 have
been enacted. In imparting such legal education, under clause (i)
of Section 7, it is the function of the BCI to recognize the
universities whose degree in law shall be a qualification for
enrolment as an advocate. It would be, therefore, quite apparent
that whereas the formal education in the field of law is given by
various universities and colleges, it is the Bar Council of India
which is the statutory body which grants affiliation to such
universities or colleges and is also responsible to maintain the
standards of professional conduct and etiquettes of the advocates.
It is thus manifest that the BCI alone is endowed with the
responsibility to act as a sentinel of the professional standards
and conduct of the advocates in the country. Rule 21 of the Bar
Council of India Rules, 1975 provides that no college shall impart
instructions in a course of study of law until its affiliation is
approved by the BCI. Sub Rule (g) of Rule 21 provides that if the
Legal Education Committee of the Bar Council is satisfied with
the standards of legal education; and /or the rules for affiliation
or continuance of affiliation provided for in these rules are not
complied with; and/or the examination are not such so as to
secure to persons undergoing legal education the knowledge
and training requisite for the competent practice of law, then the
Legal Education Committee shall recommend to the BCI
disapproval of affiliation of the continuation of the legal
education in such a university or college. Hence, indisputably, it
is the BCI which has the power and the responsibility to regulate
the goings in the field of legal education.
28. The rule under scanner here is Rule 4 of Part IV,
Section B of the Bar Council of India Rules, 1975 mandating that
the students undergoing three year LLB Course would be
required to put in a minimum attendance of 66% in each subject.
By way of proviso to the Rule, an exception was made that the
Dean of the Faculty of Law or Principal of the Law College would
be empowered to condone shortage of attendance under two
eventualities i.e. (i) Such a case is an exceptional case and, (ii)
Such a student has attended 66% of the lectures in aggregate. It
would be relevant to reproduce the said rule of Bar Council of
India as under:
"The students shall be required to put in a minimum attendance of 66%
of the lectures on each of the subjects as also at tutorials, moot courts and
practical training course.
Provided that in exceptional cases for reasons to be recorded and communicated to
the Bar Council of India, the Dean of the Faculty of Law and the Principal of law
colleges may condone attendance short of those required by the Rule, if the student
had attendance 66% of the lectures in the aggregate for the semester or examination
as the case may be"
29. Now in the aforesaid backdrop, dealing with the
contentions raised by the counsel for the parties, let me first deal
with the legal position and background of facts in the case of
Avijit Bhushan(Supra) on which much emphasis was placed by
the counsel for the petitioners. In this matter the court was
dealing with the promotion rules of the University for the LLB
course. The facts of the said case were that the petitioner was
not allowed to appear in the examination of the IInd semester as
his attendance in the IInd semester in each of the subject was not
66% as contemplated under the attendance rules. The grievance
of the petitioner was that since he had qualified in 5 out of the 10
subjects of the Ist and IInd semester taken together, therefore, he
became eligible for promotion to the IIIrd semester, even though
he did not fulfill the criteria of securing 66% attendance in each
of the subjects in the IInd semester. On the representation of the
petitioner, the university stated that as his case was a case of
gross irregularity and hence the Professor-In-Charge had the
power to strike off his name from the attendance rolls. The court
in the said case, after considering the attendance criteria and
examining the promotion rules found that there was nothing in
the promotion rules providing for minimum attendance
requirement of 66% in the IInd semester for promotion from the
IInd semester to the IIIrd semester. The Court also opined that
the finding of the respondent that the case of the petitioner was
of gross irregularity was vitiated as the petitioner was not given a
reasonable opportunity to show cause and the order of striking off
his name was passed without proper application of mind. Hence
directions were accordingly given by the court to promote the
petitioner to the IIIrd semester of the next session and in the
meanwhile he was also allowed to attend classes of the IInd
semester where after completing his attendance of minimum
percentage of 66% he would become eligible to appear in the
examination of the IInd semester. As would be evident from the
facts of Avijit Bhushan‟s case (Supra) and the decision
thereon taken by the Court, this Court in the present batch of
writ petitions is not confronted with the issue of striking off the
names of the students on the ground of gross irregularity on their
part. But here the court is concerned whether the students who
have been detained due to the shortfall in their attendance
because of not fulfilling the target of minimum requirement of
66% attendance in aggregate of all the subjects can still be
considered for granting relaxation under Rule 2 (9) (a) (ii) of
Ordinance VII, being exceptionally hard cases.
30. Justice B.D Ahmed while dealing with a batch of writ
petitions decided by him on 20.4.2007 in the matter of Smt.
Deepti & Ors. vs. Vice Chancellor University of Delhi
W.P.(C) 18051/2006 noticed the inconsistency in interplay of
the promotion rules with the requirement of attendance, after
having taken into account the observations made by this court in
Avijit Bhushan's case. However, in the ultimate analysis,
Justice Ahmed disposed of all the writ petitions keeping in view
the directions given by the Division Bench in S.N. Singh I and
S.N.Singh II. It would be worthwhile to refer to the observations
in the said judgment here:
"13. To make matters more complicated, there is an apparent
conflict between Clause 2(8) (a) of Ordinance VII and the
provisions governing the promotion of students. The Promotion
Rules as mentioned in the Bulletin of Information (2006/ 2007)
issued by the Faculty of Law, University of Delhi reads as
under:-
Promotion Rules
A student of the First Term LL.B Programme will
be promoted to the Second Term, irrespective of
the number of courses in which he/she has filed to
pass or failed to appear in the First Term
Examinations, provided that he or she has not
been detained on account of shortage of
attendance in First Term Examinations. A student
will be promoted to Third Term LL.B. Programme
only in those cases where he/she has passed at
least five courses offered by him/her at the LL.B.
First and Second Term Examinations taken
together.
14. The Promotion Rules stipulate that a student would be
promoted to the following year of the LL.B. Programme so long
as the student has passed at least five courses out of the ten to
be taken by the student in the first and second semesters
combined, irrespective of the attendance in the second
semester. A plain reading of the said Promotion Rules in
conjunction with the provisions of clause 2(8) (a) would
indicate that a student having less than 66% attendance in
each of the subjects in the first term would not be permitted to
take the examination of the 1 st Semester. Consequently, the
student would not proceed to the second semester. Resultantly,
he/she would not be taking the 2nd Semester examination also.
Thereby, the student would be out of the LL.B Course and
would have to seek admission the next year as a fresh entrant
after qualified in the entrance examination because, according
to the University, re-admission to the first year of the LL.B.
Programme is not permissible. On the other hand, if a student
has over 66% attendance in the 1st Semester, he/she would be
in a position to take the 1st Semester examination and, if
he/she passes all the five papers, he/she would be promoted to
the 2nd year without him/her attending a single lecture in the
2nd Semester or appearing in any paper in the 2 nd Semester
examination. This does creates an anomalous situation, being
heavily loaded against students who miss out in the first
Semester.
.......................................
Reading the above observations made in Avijit Bhushan
(supra), it is apparent that promotion from the first semester to
the second semester requires the student to have a minimum
66% attendance, the same requirement is not there for
promotion from the 2nd to 3rd as the only condition of promotion
to the 3rd semester is that the student should have passed in
five courses in the first year, the 1 st and 2nd semesters taken
together. This also in accentuates the anomalies in the
promotion rules from semester to semester in its interplay with
the requirement of attendance.
.....................................
However, the issue with regard to attendance has been
settled by a decision of another Division Bench of this
Court in the case of S.N. Singh V. Delhi University (WP
(C)No. 7701/2005) (hereinafter referred to as S.N. Singh-
II). In this decision the Division Bench observed as
under:-
We are of the considered opinion that to be able to
appear in the examination for obtaining the degree of LL.B., a
student has to have a minimum attendance 66% of the lectures
on each of the subjects. However, there is a proviso added
thereto that in exceptional cases for reasons to be recorded and
communicated to the Bar Council of India the dean of the Faculty
of Law and the Principals of the Law Colleges shall have the
power and the jurisdiction to condone attendance short of what is
required by the rule, if the student have attended 66% of the
Lectures in the aggregate for the semester or examination as the
case may be. The aforesaid provision mandates that a candidate
must have minimum attendance of 66% of the lectures on each
of the subject to enable him to appear in the LL.B. examination,
subject to the condition mentioned in the proviso.
The Division Bench also directed that:
Considering the aforesaid position, we are also of the
opinion that the aforesaid provision being mandatory in nature
should be strictly adhered to and be complied with by the
respective colleges. It is also made clear that the University
Authorities shall not allow any deviation from the requirements
of Rule 4 of Section A of Part IV of the Bar Council of India Rules
unless they receive specific permission from the Bar Council of
India.
The position, therefore, has been crystallized by
the decision of the Division Bench in S.N. Singh II (supra)
that attendance is to be calculated semester-wise and
subject-wise. Furthermore, the relaxation in attendance
can only be granted if the conditions prescribed in the
proviso itself or as prescribed under the Bar Council of
India Rules referred to above are satisfied.
19. This being the position, the present writ petitions are
disposed of with the direct that those of the petitioners, who fall
within the Rules of relaxation, as prescribed under Clause 2(8)
(a) of the Ordinance read with Rule 3 of Section B of Part IV of
the Bar Council of India Rules and who have appeared in the
semester examinations held in 2006, would be entitled to have
their results declared. Those who do not fall within the criteria of
relaxation would obviously not have been eligible to sit for the
semester examinations held on December, 2006 and there would
be no question of the declaration of the result of the papers in
which they have appeared pursuant to interim orders passed by
this Court. However, because of the contradictions, anomalies
and confusion created with regard to the promotion rules read
with the attendance provisions, it is directed that those
petitioners who are first year students and who are not entitled
to any relaxation under the Rules, would not be required to
appear in the Entrance Examination for the next year but would
be provided re-admission to the first semester of the next
Academic Session. The petitioners, who were to appear in the 3 rd
and 5th semester examination but fell short of attendance, would
be required to complete their regular course of study by making
up the attendance in the next year. It must be re-emphasized
that the requirement of a regular course of study is an essential
condition for the grant of the LL.B. Degree. This implies that
students must attend lectures regularly in respect of each subject
in each semester. The minimum requirement being 66%
attendance. Relaxation to a certain degree is permissible but
that is only to the extent provided by the Proviso in Clause 2(8)
read with the Bar Council of India Rules. The exercise of
considering the grant of relaxation to the extent permissible
shall be concluded by the university within one week."
31. The eloquent dictums of the aforesaid judgments
would unequivocally demonstrate that primacy has been given to
the Rules set by the Bar Council of India.
32. Now dealing with the University Rules, Ordinance VII
of Chapter III of the University of Delhi which governs the
conditions of admission to examination in various courses
envisages different parameters of attendance for different
courses. So far the LLB degree examination is concerned, the
unamended sub rule 8(a) of Ordinance VII mandated attendance
of at least 2/3 of the total number of lectures delivered in each
year and relaxation by not more than 10%, if for reasons to be
recorded by the Dean, such student was found entitled to such a
relaxation. In the said rule it was also provided that such a
student will have to make up the deficiency in the attendance of
the previous year in the next following year in which he was
admitted failing which such a student shall not be deemed to have
fulfilled the attendance requirement of a year.
33. Encapsulating the entire scenario, this very rule which
was under challenge in S.N.Singh I, was recommended to be
amended by the Division Bench so as to bring the same in
conformity with Rule 3 of Bar Council of India Rules. The
Division Bench in S.N. Singh's case I clearly stated that a law
course cannot be equated with a normal academic course and
therefore, in a law course, attendance of lectures, tutorials and
seminars is very essential to law students. The Division Bench
also observed that the Bar Council of India has framed statutory
rules which are binding on all the institutions conferring LLB
degree course which are recognized by the Bar Council of India
and in this background the Division Bench thought it fit that the
University of Delhi would be required to bring its rules in
conformity with the Rules of Bar Council of India and accordingly
directions were given to the University to amend its rules in the
matter pertaining to attendance to bring them in conformity with
the corresponding rules framed by the BCI. Needless to mention,
the University of Delhi pursuant to the said directions given by
the Division Bench, amended its earlier sub rule 8(a) and
replicated it in conformity with Rule 3 of Bar Council of India.
After amending sub rule 8(a) of Ordinance VII, which has already
been reproduced above, the said amendment now in place which
is in complete conformity with the Bar Council of India Rules and
BCI being the apex statutory body governing the professional
standards of the lawyers in the country, no case of shortfall of
attendance can be entertained and allowed unless the same
strictly falls in the aforesaid norms.
34. To qualify for relaxation of attendance the first pre-
requisite is that the student must have 66% of attendance in
aggregate in a particular semester in which relaxation is being
sought and secondly, in case of such a student the Dean must
feel satisfied that it falls in any of the exceptional cases. Thirdly,
the Dean is required to record reasons spelling out such
exceptional circumstances and, fourthly such reasons are
required to be communicated by the Dean to the Bar Council of
India. What exceptional cases could warrant such relaxation
would depend upon the facts of each case. To illustrate, it could
be because of ill health, accident cases or any other medical
ground, bereavement in the family or such other extenuating or
compelling circumstances where under the student is not in a
position to attend his/her classes. No hard and fast rule can be
laid down to spell out such exceptional cases as it would be for
the Dean to feel satisfied that the nature of facts spelled out by
the student were such that they genuinely prevented him/her to
attend the classes. The rule for communication of the reasons by
the Dean to the BCI again demonstrates that in the category of
law students there is a definite role of the Bar Council of India
and their admission to examinations in the case of shortfall of
attendance is no more left to the discretion of the Professor In
Charge or the Dean. The LLB degree course thus cannot be
equated with the other courses for which different criteria for
admission to examination has been laid down in Ordinance VII.
Therefore, placing reliance on sub rules (i) and (ii) of rule 2 (9)(a)
will be of no help to the petitioners. No doubt the said rule 2(9)(a)
of Ordinance VII deals with all the categories of courses as have
been referred to in Ordinance VII and the said rule is of general
nature, but the same cannot be held applicable to the LLB course,
which has been held to be a special course.
35. For the sake of repetition, it is reiterated that the
Division Bench in S.N. Singh's cases was of the clear view that
the University of Delhi would be required to bring its rules in
conformity with the rules of BCI and by virtue of the Advocates
Act, 1961, it is the Bar Council of India which has been
empowered to promote legal education and to lay down standards
of such education. Sub rule 9 of Ordinance VII, therefore, cannot
be construed as a further proviso to rule 2 (8) (a) of Ordinance VII
to confer further discretion with the Dean of the college to grant
necessary relaxation in exceptionally hard cases of the students
who had fallen seriously ill or who had met with an accident
during the year disabling them from attending the classes for
certain period. Even otherwise, sub rule (ii) of rule 2 (9) (a) has
already been taken care of in the proviso of rule 2 (8) (a) of
Ordinance VII and there cannot be any duplicity to deal with the
same situations under two different sub rules. Under the proviso
of rule 2 (8) (a) also the Dean can deal only with those cases
which are of exceptional nature and again in sub rule (ii) of rule
2 (9) (a) the cases to be dealt are again exceptionally hard cases.
36. The argument advanced by the counsel for the
petitioners invoking sub rule (ii) of rule 2 (9) (a) of Ordinance VII
although looked attractive at first blush, but after examining the
entire scheme of the Act as well as after taking into consideration
the import of the aforesaid judgments, I do not find any substance
in the said submissions. In Kiran Kumari's case (Supra) the
Division Bench has clearly observed that 34% of the lectures can
take care of all the situations, the lectures which a student may
miss for a variety of reasons including sickness or such other
reasons beyond his/her control. So far as 34% attendance is
concerned, every student can miss or skip the classes and the
same can take care of various unforeseen and exceptional
situations. Though it is not expected of a student who is a serious
student of law not to attend his classes regularly, yet to meet with
unforeseen situations, a student can claim relaxation of
attendance but such a relaxation can be given only in exceptional
circumstances and not as a matter of right that too in a case
where a student has put in 66% of lectures in aggregate in a
particular semester.
37. A catena of judgments were cited by Mr. Mohit Jolly,
counsel for the petitioner in W.P. (C) 13314/2009, in support of
his arguments that sub rule (ii) of rule 2(9) (a) of Ordinance VII
and the sub rule 9 itself cannot be rendered otiose or dead letter
and also that the said provision require a harmonious
construction when interpreted along with rule 2 (8) (a) of
Ordinance VII. But all these arguments do not cut any ice when
construed in the face of the amendment introduced by amending
rule 2 (8) (a) in conformity with the Bar Council of India Rules.
Indisputably, neither there is such Rule like rule 2(9) (a) in the
BCI Rules and nor any such direction was given by the Division
Bench to the BCI to amend their rules, therefore, in such
circumstances sub rule 9 has to be read with its applicability to
all other courses excluding the LLB Course.
38. Mr. Jolly also placed reliance on the judgment of this
court in the case of Manjit Singh (supra) but in this case while
dealing with the case of a LLM student for which promotion rules
are different than LLB course and also the rule applicable is Rule
2(8)(b) of Ordinance VII, and therefore the Single Bench of this
court finding no merit in the petition dismissed it in the light of
the decision of this court in S.N Singh‟s case and hence this
would not be of any help to the petitioners.
39. Mr. Deepak, counsel for the petitioner in W.P.(C)
13354/2009 placed reliance on the judgments of the Apex Court
in the case of A.K Pandey , Raghubir Dayal , Lachmi Narain
(supra) to emphasize that the word „shall‟ used in the
attendance rules as provided in the Information Bulletin is
directory and not mandatory in nature. These judgments would
not be of any help as in the present case the names of the
students have not been struck down, but they have only been
detained from appearing in the examinations of the respective
semesters. He also placed reliance on the judgment of this court
in Avanija Sundaramurti (supra), but this case was where the
petitioner was granted admission late by 20 days in the LLB
course and hence that period was excluded for calculating the
attendance as the situation was beyond her control, but the case
at hand cannot be equated with this case because if a student is
not given admission then how can he/she be expected to attend
classes which is not the situation in the present writ petitions. He
also placed reliance on the judgment of this court in the case of
Neera Dhadhwal (supra) but in this case the student was not
allowed to appear in one of the papers and the court giving
primacy to the attendance requirement did not grant her
permission to appear without making up for the attendance of the
last semester.
40. In W.P.(C) 13410/2009, Mr. Kirti Uppal alleged that the
petitioner was marked absent in the subject of Intellectual
Property Laws, but no reasons have been spelled attributing any
motive on the part of the concerned teacher. Whether there was
any vindictiveness or malafide or any other reason due to which
the teacher of this particular subject would give zero attendance
to the petitioner has not been brought forth. Also, why would any
teacher deliberately mark the petitioner absent is beyond the
comprehension of this court. During the course of arguments, the
attendance record of the petitioner was produced by the
respondent university and Mr. Kirti Uppal had alleged, on a
cursory glance, tampering/overwriting of "P" as "A" in the
records. However, a perusal of the records show that only at two
places "P" has been changed to "A" in the subject of Intellectual
Property Laws for the month of October. This change only at two
places is a genuine change or due to extraneous reasons can not
be commented upon with any exactness in the absence of any
allegations of malafides or vindictiveness. However, even if the
petitioner is given the benefit of these two lectures, she makes
her attendance to 62.05% which is still short of the required 66%.
It is worth mentioning that in the month of September also the
petitioner had 28.5% attendance in the subject of Intellectual
Property Laws. In the subject of Environmental Law as well, the
petitioner has zero attendance for the month of November but
has not raised any contention for the same which only goes to
show that the petitioner remained absent continuously in these
two subjects. Mr. Uppal also objected to the filing of the affidavit
by the Registrar of the University as the same in his view should
have been filed by the Dean, Faculty of Law. However, the
Statute 11-K (3) (a) of the University of Delhi provides that the
Registrar of the university is the custodian of all the records of
the university and hence by virtue of the said power, he is the
appropriate person to have filed the said affidavit. Hence in the
light of the said rule, the contention of the counsel does not hold
good.
41. The counsel for the petitioners have also raised some
disputed questions of facts in the present petitions. In W.P.(C)
13400/2009 , 13427/2009 and 13391/2009 the counsel alleged
that at the very threshold of examinations, the attendance
requirement was reduced below 66% and a number of students
were allowed to appear in the examinations who did not meet the
attendance requirement of 66%. It is a settled position of law that
the High Court will not determine the disputed question of facts
while exercising its jurisdiction under Article 226 of the
Constitution of India and hence no indulgence of this court is
called for in this regard.
42. Standard of legal education is a yardstick to measure
the Rule of law which is the foundation of modern democracy. In
1954 the Setalvad Commission in its report (XIVth report of the
Law Commission) while making scathing remarks on the status of
legal education, gave suggestions for the reforms in legal
education. Two scores and nine years ago it was lamented in
Setalvad Commission‟s Report that:
There are already plethora of LLBs, half baked lawyers
who do not know even the elements of law and who are
let loose upon the society as drones and parasites in
different parts of the country. Several of them did not
even know what subjects were prescribed in the LL.B.
programme, did not know the names of the prescribed
books......
43. But there is a marked change in the scenario than
what it was when the above observations were made. The oft
quipped statement that many students enter into the portals of a
law college because they cannot be any where else seems is far
from truth today as law now ranks high in the list of highly
preferred professions. But, alas, the problem of absenteeism has
taken the face of a chronic disease plaguing the edifice of the
legal education system. Those students who do not attend classes
have a strong conviction that they are not suffering significantly
by their absence and the absenteeism does not affect their
clearing the examinations with good grades. But the status of
legal profession is directly linked with the legal education
process. It is high time that the law students understand that
there is no royal road to education and education teaches only
those in attendance. Lawyers are always going to be students and
the learning does not stop in law school. The quality and standard
of legal education acquired at law school is reflected through the
standard of the Bar and the Bench and consequently affects the
legal system. Hence a student who is habitual to not attending
classes in law school would seek adjournments later in his cases
thus infesting the whole system.
44. Before giving my final conclusion, it would be
imperative to bring to the fore certain crucial changes that have
taken place after the filing of these petitions. Mr. Saini, counsel
for the petitioners, raised the argument that it is nowhere
specified that how many are the minimum lectures to be delivered
in a particular year/semester of a law course. It would be useful
to point out here Rule 10 of Chapter II, Part IV of the BCI Rules
which states as follows:
"10. Semester system
The course leading to either degree in law, unitary or on
integrated double degree, shall be conducted in semester system
in not less than 15 weeks for unitary or on integrated double
degree, shall be conducted in semester system in not less than 15
weeks for unitary degree course or not less than 18 weeks in
double degree integrated course with not less than 30 class-
hours per week including tutorials, moot room exercise and
seminars provided there shall be at least 24 lecture hours per
week.
Provided further that in case of specialized and/or honours law
courses there shall be not less than 36 class-hours per week
including seminar, moot court and tutorial classes and 30
minimum lecture hours per week.
Provided further that Universities are free to adopt trimester
system with appropriate division of courses per trimester with
each of the trimester not less than 12 weeks."
45. LLB in Delhi University is one of the oldest courses in
the field of law. The first national law school was set up in 1986 in
Bangalore as a model law school by the BCI imparting the five
year integrated law course. But in Delhi, this course entered
much later under the I.P. University and later on when National
Law University under the aegis of Delhi High Court at Dwarka
was set up. The National Law Schools or Universities (NLU‟s as
they are popularly called), till a very long time were few and far
between, but now as the corporate culture with big pay packets is
luring the young , the craze for this profession has increased
manifold. This would be evident form the mammoth number of
students appearing for entrance examination this year alone. In
the five year law course the minimum attendance required is 75%
while in Faculty of Law, Delhi University, the same is 66%. In the
subject matter of the present writ petitions, the students have not
been able to make up 66% of the attendance in the respective
semesters, the percentage which was in conformity with the Bar
Council of India Rules. But now this rule has been further
amended as Rule 12, Chapter II, Part IV by the BCI as follows:
"12. End Semester Test
No student of any of the degree program shall be allowed to
take the end semester test in a subject if the student concerned
has not attended minimum of 70% of the classes held in the
subject concerned as also the moot court room exercises,
tutorials and practical training conducted in the subject taken
together.
Provided that if a student for any exceptional reasons fail to
attend 70% of the classes held in any subject, the Dean of the
University or the Principal of the Centre of Legal Education, as the
case may be, may allow the student to take the test if the student
concerned attended at least 65% of the classes held in the subject
concerned and attended 70% of classes in all the subjects taken
together. The similar power shall rest with the Vice Chancellor or
Director of a National Law University, or his authorized
representative in the absence of the Dean of Law.
Provided further that a list of such students allowed to take the
test with reasons recorded be forwarded to the Bar Council of
India."
46. It would also be befitting to mention here that the BCI
has recently announced conducting of the Bar Examination for
entry into the legal profession. The vision statement for 2010-
2012 of the BCI states that the Indian legal profession today
consists of approximately 11 lakh (1.1 million) registered
advocates, around 1,000 law schools and approximately 5 lakh
(0.5 million) law students across the country. Every year,
approximately 60,000 law graduates join the legal profession in
India. With that kind of gigantic numbers, this entry is to winnow
the grain from the chaff.
47. All the above only depicts that the BCI is making
efforts to make the legal education open only to those who are
genuinely interested in entering the folds of the legal fraternity.
48. The Law Faculty of Delhi University has been a
premier institution imparting legal education. It has to be borne
in mind that with the introduction of five years law course the
students of three year law course have to compete with the
students of five years law courses, hence the norms and the
standards as laid down by Bar Council of India have to be strictly
adhered to by all the law students and for which no compromise
or undue sympathy can be shown. If the rules are given a go-by
then I am afraid that the Law Faculty will become an island of
institutionalized mediocrity among a sea of excellence.
49. Hence, in the light of the aforesaid discussion, the
students in the seven writ petitions of W.P.(C) 13314/2009 ,
13354/2009, 13391/2009, 13400/2009, 13410/2009, 13427/2009
and 13456/2009 are not entitled to any relief. These petitions are
hereby dismissed with the following directions:
That the petitioners in all the five writ petitions bearing
Nos. W.P.(C) 13314/2009 , 13354/2009, 13391/2009,
13400/2009 and 13456/2009 were students of the Ist
semester at the time of the filing of the writ petitions and as
an interim measure they were allowed to appear in the Ist
semester examinations and thereafter to attend the classes
of the IInd semester and then also allowed to appear in the
examinations of the IInd semester and their results were
directed to be kept in a sealed cover. However, in W.P. (C)
No. 13427/2009, the petitioner was also a student of the Ist
semester at the time of filing of the present writ petition and
was allowed to appear in the Ist semester examination but
she did not seek the interim relief to attend either the
classes of the IInd semester or to appear in the IInd
semester examinations. Be that as it may, as this court is of
the view that these six petitioners are not entitled relaxation
for the shortfall of attendance as they were not eligible to sit
for the examination of the Ist semester, therefore they are
not entitled to get their results of the Ist or even the IInd
semester declared, in which exams they had appeared
pursuant to the interim orders passed by this court.
However, in the peculiar facts of the case at hand, these six
students would not be required to appear in the entrance
examination for admission in the Ist semester but would be
given re-admission to the Ist semester in this academic year
beginning July,2010. However, this order shall not be
treated as a precedent.
That the petitioner in W.P.(C) No. 13410/2009 was a student
of the Vth semester at the time of filing of the present writ
petition and as an interim measure was allowed to attend
the classes of the VIth semester and consequently to appear
in the VIth semester examinations. However, as she is not
entitled to the grant of relaxation, her result of the Vth and
the VIth semester shall not be declared. Be that as it may,
she would be re admitted to the Vth semester in the present
academic session of July, 2010.
That though stated in the counter affidavit by the
respondent university that the attendance is regularly
displayed on the notice board, there was still some
ambiguity regarding the same. Hence in this circumstance,
it would only be proper to direct the respondent to display
the attendance at the end of each month, subject wise and
also overall for every semester so that the students are
aware as to their status of attendance and can point if any
discrepancy persists.
It is also directed that the teachers would not take any
attendance on chits and papers and attendance would be
duly marked only in the attendance registers maintained for
this purpose.
It is also observed that the students after knowing that they
are short of attendance at the last moment rush to the
doctors who can make their medical certificates to claim
condonation of attendance on medical grounds. Therefore,
if a student seeks to avail the benefit of relaxation bringing
his case within the four corners of an exceptionally hard
case in terms of the proviso of Rule 2(8) (a), then in such
circumstances it is directed that such a student after
returning from medical leave should submit the medical
certificate for the same period immediately on rejoining the
college and not at the end of the semester so that the
university has a record of the period the student was on
medical leave.
50. Now dealing with the two students in W.P.(C)
No.8302/2009 and W.P.(C) No. 8419/2009 who could not fulfill
the eligibility criteria of attending 66% of the lectures in
aggregate due to their being in the advanced stage of pregnancy
and subsequent delivery of the child. To claim relaxation for
these candidates, the counsel placed reliance on sub rule (d) of
rule 2 (9) of Ordinance VII, but this court, as discussed above, is
of the view that rule 2 (9) of Ordinance VII, so far LLB students
are concerned, would not be applicable. Therefore, sub rule (d) of
rule 2 (9) of Ordinance VII would not come to the rescue of these
two students as well. Counsel for the petitioners placed reliance
on the judgment of this court in the case of Seema
Sharma(supra) wherein sub rule 9(d) of Ordinance VII was held
applicable in case of a married woman student. This case however
would not help the petitioners as the petitioner in the said case
was a student of Masters in Pharmacy and this court in the
present case is of the view that the said sub rule would be
applicable to all courses excluding the LLB course.
51. However, the Directive Principles of State Policy
contained in Part IV of the Constitution of India, under Article 41
requires the State to make effective provision for securing the
right to work and to education and Article 42 requires that the
State shall make provision for securing just and humane
conditions of work and for maternity relief. Mr. R.K Saini, counsel
appearing for these petitioners placed reliance on the judgment
of the Apex Court in the case of MCD vs. Female Workers
(supra) and it would be worthwhile to reproduce the relevant
para of the said judgment here:
"Since Article 42 specifically speaks of "just and humane
conditions of work" and "maternity relief, the validity of
an executive or administrative action in denying
maternity benefit has to be examined on the anvil of
Article 42 which, though not enforceable at law, is
nevertheless available for determining the legal efficacy
of the action complained of.
................................
A just social order can be achieved only when
inequalities are obliterated and everyone is provided
what, is legally due. When who constitute almost half of
the segment of our society have to be honoured and
treated with dignity at places where they work to earn
their livelihood. Whatever be the nature of their duties,
their avocation and the place where they work; they
must be provided all the facilities to which they are
entitled. To become a mother is the most natural
phenomena in the life of a woman. Whatever is needed
to facilitate the birth of child to a woman who is in
service, the employer has to be considerate and
sympathetic towards her and must realise the physical
difficulties which a working woman would face in
performing her duties at the work place while carrying a
baby in the womb or while rearing up the child after
birth. The Maternity Benefit Act, 1961 aims to provide all
these facilities to a working woman in a dignified
manner so that she may overcome the state of
motherhood honourably, peaceably, undeterred by the
fear, of being victimised for forced absence during the
pre or post-natal period."
52. Article 15(3) empowers the State to make special
provisions for women. Women constitute 50% of the country‟s
population and without making education a reality for them,
fundamental rights shall remain beyond the reach of a large
majority of population of this country which is illiterate. The
Supreme Court in a catena of judgments has held that right to
education is implicit in right to life and personal liberty
guaranteed by Article 21 and now with the Right to Education Act
in force, education cannot be kept outside the reach of any
citizen. Education is the greatest leveler of all inequalities and
only if women are given equal opportunity for education they can
stand on an equal footing with men.
53. Of all the rights of women, to be a mother is the
greatest. Long ago, the Universal Declaration of Human Rights,
by Article 25 had declared that everyone has the right to a
standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances
beyond his control. Article 25(2) provides that:
2) Motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall enjoy
the same social protection.
54. It would, while on the topic, also be essential to refer to the
Convention for Elimination of All Forms of Discrimination Against
Women (CEDAW). The Vienna Convention on the Elimination of
all forms of Discrimination Against Women was ratified by the
U.N.O. on December 18, 1979. The Government of India who was
an active participant to CEDAW ratified it on June 19, 1993 and
acceded to CEDAW on August 8, 1993 with reservation on
Articles 5(e) 16(1) 16(2) and 29 thereof. The Preamble of CEDAW
reiterates that discrimination against women, violates the
principles of equality of rights and respect for human dignity; is
an obstacle to the participation on equal terms with men in the
political, social, economic and cultural life of their country;
hampers the growth of the personality from society and family
and makes it more difficult for the full development of
potentialities of women in the service of their countries and of
humanity. It would be pertinent to quote the relevant provisions
here:
11(2). In order to prevent discrimination against women on the ground
of marriage or maternity and to ensure their effective right to work,
states parties shall take appropriate measures;
(a) To prohibit, subject to the imposition of sanctions, dismissal on the
grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of martial status;
(b) To introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social
allowances;
In the case of Madhu Kishwar & Ors. vs. State of Bihar &
Ors. (1996) 5 SCC 125, the Apex court held that though the
Directive Principles and Fundamental Rights provide the matrix
for development of human personality and elimination of
discrimination, these conventions (CEDAW) add urgency and
teeth for immediate implementation. Hence, it is this court which
has been enjoined upon the duty to put life into the provisions of
these international conventions.
55. At this stage, it would also be significant to mention the case
of Air India vs. Nergesh Mirza (1981)4 SCC 335 where the
Apex Court was confronted with the constitutional validity of
Regulation 46(i) (c) of Air India Employees‟ Services Regulations
which provided that the services of the Air Hostesses would stand
terminated on first pregnancy. It would be pertinent to quote the
relevant para of the said judgment here:-
"Having taken the AH in service and after having utilised
her services for four years, to terminate her service by
the Management if she becomes pregnant amounts to
compelling the poor AH not to have any children and
thus interfere with and divert the ordinary course of
human nature. It seems to us that the termination of
the services of an AH under such circumstances is not
only a callous and cruel act but an open insult to Indian
womanhood the most sacrosanct and cherised
institution. We are constrained to observe that such a
course of action is extremely detestable and adhorrent
to the notions of a civilised society. Apart from being
grossly unethical, it smacks of a deep rooted sense of
utter selfishness at the cost of all human values. Such a
provision, therefore, is not only manifestly unreasonable
and arbitrary but contains the quality of unfairness and
exhibits naked despotism and is, therefore, clearly
violative of Article 14 of the Constitution.
In Sharron A. Frontiero v. Filliot L. Richardson 36 L. Ed.
2d 583 the following observations were made:
Moreover, since sex, like race and national
origin, is an immutable characteristic
determined solely by the accident of birth, the
imposition of special disabilities upon the
members of a particular sex because of their
sex would seem to violate "the basic concept of
our system that legal burdens should bear
some relationship to individual responsibility.
What is said about the fair sex by Judges fully applies to
a pregnant woman because pregnancy also is not a
disability but one of the natural consequences of
marriage and is an immutable characteristic of married
life. Any distinction therefore, made on the ground of
pregnancy cannot but be held to be extremely
arbitrary".
56. In the light of the above discussion, if any female candidate
is deprived or detained in any of the semester just on the ground
that she could not attend classes being in the advanced stage of
pregnancy or due to the delivery of the child, then such an act on
the part of any of the university or college would not only be
completely in negation of the conscience of the Constitution of
India but also of the women rights and gender equality this nation
has long been striving for. It is a saying that "Motherhood is
priced of God, at price no man may dare to lessen or
misunderstand". By not granting these students relaxation, we
will be making motherhood a crime which no civilized democracy
in the history of mankind has ever done or will ever do. We
cannot make them pay the price for the glory that is motherhood.
57. It would not be inappropriate to mention at this
juncture the recent rulings of the Apex Court in the cases of Lata
Singh vs. State Of U.P AIR 2006 SC 2522 and S. Khushboo
vs. Kanniamal & Anr MANU/SC/0310/2010 where it has given
liberty to the live-in relationship from the shackles of being an
offence and also in the latter case where it has held that pre-
marital sex is not an offence. The society today is changing at a
rapid pace and we must be in tune with the realities and not hold
on to archaic social mores. Once such a right, however
unpopular, is recognized then it cannot be ruled out that there
can be more cases of girl students proceeding on maternity leave
when while they are still in college. Law should be an instrument
of social change and not a defender of it. Motherhood is not a
medical condition but a promise. We all kowtow to our mothers to
whom we owe our existence and to punish a woman for becoming
a mother would surely be the mother of all ironies.
58. Hence, a female student cannot be deprived from her
student status or can be detained in any semester on account of
the fact that she could not attend the classes because of her
pregnancy and therefore so far these two students in W.P. (C) No.
8302/2009 and W.P.C No. 8419/2009 are concerned, they deserve
relaxation under the mandate of the Constitution. These petitions
are accordingly allowed with the following directions:
In W.P.(C) No. 8302/ 09, the petitioner, at the time of filing
of the writ petition, was a student of the VIth semester and
her result of this semester was also declared wherein she
has passed the semester. Hence, she must now be awarded
the final degree of L.L.B.
In W.P.(C) No. 8419/09, the petitioner was a student of IVth
semester at the time of filing of the writ petition and as an
interim measure she was allowed to appear in the
examination of the IVth semester and it was directed that
her result be kept in a sealed cover. The interim application
(C.M No. 12580/09) for direction to let the petitioner
provisionally attend the classes of the Vth semester was
filed on 8.10.2009, but there is visibly no order regarding
the said application. Therefore, in the present
circumstances, now as the petition is being allowed, it is
directed to declare the result of the petitioner for the IVth
semester and she be promoted to the next semester in
conformity with the promotion rules.
Bar Council of India, although not a party in the present writ
petitions, is hereby suggested to make rules for women
students claiming relaxation on ground of maternity relief so
that they are not deprived of appearing in the LLB
examinations due to pregnancy.
59. College is a time when students are able to grow and
mature before going into the real world. At omega, it would be in
the right earnest to hope that the students understand that
attending college is important in the context of their future plans
and goals, not just in terms of grades and academic success.
Nevertheless, law colleges would still remain places where
pebbles are polished and not where diamonds are dimmed and
law students not bottles to be filled but candles to be lit.
KAILASH GAMBHIR, J
JULY ___, 2010
