Delhi High Court

Himesh Rana vs University Of Delhi & Ors. on 12 July, 2010

Author: Rajiv Sahai Endlaw

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 12th July, 2010.

+        W.P.(C) No.9567/2009 & CM No.7581/2009 (for interim relief)

%

HIMESH RANA                                                    ..... Petitioner
                             Through:     Mr. R.K. Saini & Mr. Sitab Ali
                                          Chaudhary, Advocates

                                        Versus

UNIVERSITY OF DELHI & ORS.                      ..... Respondents
                 Through: Mr. Mohinder J.S. Rupal with Ms.
                           Preeti Maniktalya, Advocates for R-1
                           Ms. Jyoti Singh & Mr. Ankur
                           Chibhar, Advocates for R-2 & 3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?
2.       To be referred to the reporter or not?
3.       Whether the judgment should be reported
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner is a student of Bachelor of Ayurvedic Medicine

& Surgery Course in A & U Tibbia College (respondent no.2) owned

and controlled by the Govt. of NCT of Delhi (respondent no.3) and

affiliated to the respondent no.1 University of Delhi. The course

undertaken by the petitioner is of five and half years duration and

consists of three professional examinations held at intervals of one and

half year and internship training of twelve months thereafter.

2. The first professional examination comprising of six papers

was to be undertaken by the petitioner in January, 2009. Though the roll

number and admit card was issued by the respondent no.1 University to

the petitioner but the respondent no.2 College ordered detention of the

petitioner in four out of the aforesaid six papers for the reason of

shortage in attendance. The petitioner could thus appear in two

examinations only.

3. The respondent no.2 College has in its counter affidavit stated

that a student who has not so appeared in examination owing to short

attendance is entitled to appear in supplementary examination, provided

such student has 50% attendance at the time of supplementary

examination and which is counted from past 18 months. No Rule in this

regard is cited. It was expressly enquire from counsel for respondent

no.2 College whether there is any Rule to this effect. The answer is in

the negative.

4. The supplementary examinations were scheduled to be held in

June, 2009. The petitioner again applied for appearance in the four

papers in which he had been detained. Again, the roll number and admit

card of the petitioner was issued by the Respondent no.1 University but

denied by the Respondent no.2 College to the petitioner for the reason

of shortage in attendance. The petitioner represented to the Respondent

no.2 College contending that he had attended 80% of the classes from 5th

February, 2009 till 5th May, 2009 and was thus eligible for taking the

supplementary examination. The said representation having not met with

any success, the present writ petition was filed.

5. This Court vide order dated 5th June, 2009 while issuing notice

of the writ petition, allowed the petitioner to appear in the

supplementary examination on the conditions that his result would be

kept in a sealed cover and the petitioner will not claim any special equity

in his favour for the reason of having been allowed to appear in the

examination. Subsequently it was informed that the petitioner has

cleared the said examination.

6. It is the contention of the petitioner that the bulletin of

information issued by the Respondent no.2 College regarding admission

to the course aforesaid does not contain the norms of attendance Rules

and Regulations regarding appearance in the examination; that when the

Respondent no.2 College, after having not allowed the petitioner to take

the examination in four papers, allowed the petitioner to attend the

classes for the said four papers and in which classes the petitioner met

the attendance criteria by having 80% attendance, he could not be denied

the right to take the said four papers during the supplementary

examinations.

7. The Respondent no.2 College in its counter affidavit has

stated that there is a requirement of at least 50% attendance in the total

number of delivered lectures even though as per the Respondent no.1

University, each B.A.M.S. student is required to attend not less than

3/4th of the lectures delivered and practicals/demonstrations/ clinicals

held in each subject separately during each year of the course. It is

further pleaded that the discretionary power of the Principal to exempt

from attendance is only to the extent 1/3rd of the total number of lectures

delivered. The respondent no.2 College pleads that the attendance of the

petitioner at the time of main examination in the four papers aforesaid

was less than 50% in theory and in practical and the attendance being

less than 50%, he could not have been allowed. It is further stated that

the condition for appearing in supplementary examination, is at least

50% attendance at the time of supplementary examination and which is

counted for the past 18 months. It is contended that the petitioner did not

clear the benchmark of 50% for the last 18 months before the

supplementary examination either. It is contended that the attendance in

the classes after the main examination and before the supplementary

examination (and in which petitioner claims 80% attendance) alone

cannot be counted.

8. The counsel for the Respondent no.2 College during the

arguments has explained that a student who does not meet the criteria of

50% attendance in the 18 months study before the first professional

examination is permitted to attend the classes for about 6 months after

the final examination and before the supplementary examination and the

criteria for attendance to appear in the supplementary examination is

50% attendance in 18 months immediately preceding the supplementary

examination i.e. the attendance of the first 6 months of the 18 months'

course duration before main examination is not taken into consideration

and in lieu thereof the attendance of 6 months after final and before the

supplementary examination is taken into consideration. It is urged that

the petitioner on such computation also did not meet the minimum

criteria.

9. The counsel for the petitioner has orally challenged the method

aforesaid adopted by the Respondent no.2 College of excluding the first

6 months' attendance and substituting the same with the 6 months'

attendance between the main and the supplementary examination. It is

urged that if the average attendance of the entire 24 months is to be

taken or if the attendance of 18 months before main examination and 6

months after main examination is taken, the petitioner meets the criteria

of 50% attendance.

10. I have enquired from the counsel for the Respondent no.1

University and the counsel for the Respondent no.2 College as to

whether there is any Rule entitling the Respondent no.2 College to so

exclude the first 6 months of the 18 months before main examination

and substituting the same with 6 months after main examination for

computing the attendance. The counsels have been unable to show any.

There is also nothing to show that the students were informed of the

aforesaid method/formula adopted by the respondent no.2 College.

11. I find no basis whatsoever for the Respondent no.2 College to

adopt the system/method aforesaid in the case of students who fail to

meet the attendance criteria for the examination and who are permitted

to attend classes between the main and the supplementary examination.

It defies logic as to why only the first 6 months and not any other

months should be excluded. It is quite possible that the attendance in the

first 6 months when the course has just begun is good/regular and the

students have become irregular as the classes and the studies progress.

Similarly, the situation can be otherwise too. However, it is not for this

Court to deliberate on the said aspect. This Court neither has the

expertise nor is equipped to take decision in this regard. It is best to

leave the same to be decided by the authorities concerned after taking

the views of all concerned into consideration. I have also enquired

whether there is any provision qua the practice followed by the

Respondent no.2 College of holding classes after the main examination

and before the supplementary examination. The answer is in the

negative. Again, though the Respondent no.2 College is affiliated to the

Respondent no.1 University which prescribes the minimum attendance

as 3/4th but the Respondent no.2 College is following the Rule of 50%

as minimum attendance. There is no explanation for the same also.

12. Moreover, the Respondent no.2 College without informing the

students of their Rules regarding attendance, cannot withhold any

student suddenly without notice. The writ petition is thus entitled to

succeed on this ground alone.

13. However, before parting with the case, I must add that the

course undertaken by the petitioner is a professional course. The

petitioner after clearing the same would be handling the lives of others.

The course is not such which can be taught through correspondence or

learnt without attending regular classes. The purport of the said classes

is to enable the students to learn the art of medicine in practice rather

than in theory alone under the guidance of highly specialized and

experienced teachers/faculty. The students cannot be permitted to defeat

such purpose by missing classes particularly when there is no plausible

explanation therefor. A doctor who has cleared the examination without

attending the classes would definitely have something lacking in him

and which could play havoc with the lives and well-being of the persons

who approach such a doctor with confidence in his acumen. The

students of such professional courses ought to have a higher sense of

responsibility and which seems to have been lacking in the petitioner.

Self study is not sufficient. Even though, distance learning has come to

be widely accepted as a universal mode of acquiring knowledge, skills

and qualifications, yet traditional forms of knowledge dissemination

holds great relevance where instructional interface is mandatory. The

requirement of minimum attendance is not a mere formality but a term

of eligibility to sit for the examination. The counsel for the Respondent

no.2 College has stated that the aforesaid system/method has been

followed by the Respondent no.2 College for long and all students

were/are aware of it. The same appears to be quite likely. The petitioner

instead of attending his classes appears to have been busy elsewhere.

Such a student who has no faith in the faculty of the Institution which he

has joined cannot make a good doctor.

14. The Division Bench of this Court in Ashutosh Bharti Vs. The

Ritnand Balved Education Foundation (Regd.) MANU/DE/0024/2005

and in Arvind Gupta Vs. University of Delhi MANU/DE/0238/1980 and

in Preeti Srivastava Vs. CBSE MANU/DE/0484/1994 and Single

Judge of this Court in Yogesh Bhatia Vs. University of Delhi

MANU/DE/0784/2003 and in Neera Dadhwal Vs. Deepak Paintal

MANU/DE/8392/2007 have emphasized the importance of attendance

and that Rules with regard thereto cannot be given a go bye or

sympathetic grounds.

15. Thus though allowing the writ petition for reason aforesaid, it

is deemed expedient to impose certain conditions on the petitioner.

16. The writ petition is therefore allowed on the following terms:-

(i) The respondents to release the result of the petitioner of the

examination undertaken under orders of this Court.

(ii) The petitioner if promoted, be allowed to attend the classes

of the next semester.

(iii) The respondent no.2 College is directed to in consultation

with the Respondent no.1 University, experts and all other

concerned parties, within four months hereof frame proper

Rules qua the attendance criteria; regard in this respect be

given to the requirement of the Respondent no.1 University

of 3/4th attendance and the need, if any, of the Respondent

no.2 College to lower the bar. Rule should also be made

with respect to the classes to be held after the main

examination and before the supplementary examination and

as to how the total attendance is to be computed.

(iv) It is further directed that the petitioner, if does not meet the

attendance criteria as may be so laid down, in future shall

not be granted any indulgence. Though during the hearing it

was proposed by the Court that a condition be imposed on

the petitioner to have at least 90% attendance for the

remaining years of the course but at the time of correcting

the order it is not deemed expedient to interfere with the

Rule of the University/College and to place a more onerous

condition on the petitioner. However, it is directed that if

the petitioner intends to take any leave he should duly

inform about the same to the Respondent no.2 College

stating reasons in advance. If the petitioner is compelled to

take leave without opportunity of communication as

aforesaid, the petitioner to immediately thereafter, as soon

as may be possible in the circumstances, inform the

Respondent no.2 College in writing of the same, again

stating reasons.