Mr. Gaurav vs Indian Institute Of Tourism & ...
2010 Latest Caselaw 5208 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI
+                          WP(C) NO.3022/2010

%                                     Date of decision:16th November, 2010

MR. ADITYA SINGH                                             ..... Petitioner
                           Through:     Mr. R.K. Saini & Mr. Sitab Ali
                                        Chaudhary, Advocates

                                      Versus

INDIAN INSTITUTE OF TOURISM & TRAVEL
MANAGEMENT & ANR.                              ..... Respondents
                  Through: Mr. Sachin Datta & Ms. Gayatri
                           Verma, Advocates for R-1.
                           Mr. B.V. Niren & Mr. Aarumugam
                           M., Advocates for R-2.

                                      AND

+                          WP(C) NO.3023/2010
MR. GAURAV                                              ..... Petitioner
                           Through:     Mr. R.K. Saini & Mr. Sitab Ali
                                        Chaudhary, Advocates

                                      Versus

INDIAN INSTITUTE OF TOURISM & TRAVEL
MANAGEMENT & ANR.                          ..... Respondents
                  Through: Mr. Sachin Datta & Ms. Gayatri
                           Verma, Advocates for R-1.
                           Mr. B.V. Niren & Mr. Aarumugam
                           M., Advocates for R-2.

                                      AND




W.P.(C) No.3022-24/2010                                       Page 1 of 11
 +                           WP(C) NO.3024/2010

MR. ANURAG DOBHAL                                         ..... Petitioner
                Through:                  Mr. R.K. Saini & Mr. Sitab Ali
                                          Chaudhary, Advocates

                                       Versus

INDIAN INSTITUTE OF TOURISM & TRAVEL
MANAGEMENT & ANR.                              ..... Respondents
                  Through: Mr. Sachin Datta & Ms. Gayatri
                           Verma, Advocates for R-1.
                           Mr. B.V. Niren & Mr. Aarumugam
                           M., Advocates for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    Yes

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

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


RAJIV SAHAI ENDLAW, J.

1. All the three petitioners at the time of filing of these petitions were

students of the Post Graduate Diploma & Management (Tourism & Leisure)

Course conducted by the respondent No.1 Institute. The said course is a two

year course divided into four semesters. The counsel for the petitioners has

today informed that the petitioners had joined the said course in the year

2009 and successfully completed the First Semester towards the end of the

year 2009 and were promoted to the Second Semester. The petitioners on

being denied permission to take the Second Semester end term Examination

for promotion to the Third Semester, on the ground of not meeting the

attendance criteria, filed these petitions.

2. The petitions came up before this Court first on 4 th May, 2010 when

the counsel for the petitioners informed that the Second Semester

Examination had already commenced on 3 rd May, 2010 and which the

petitioners were unable to take. This Court while issuing notice of the

petitions directed the respondent No.1 Institute to issue admit cards to the

petitioners and to allow the petitioners to appear in the remaining exams. It

was however made clear that no special equities would flow in favour of the

petitioners owing to the said interim directions. The result of the petitioners

was also directed to be kept in a sealed cover.

3. The petitioners pursuant to the aforesaid order appeared in the

remaining examination. The respondent No.1 has filed a counter affidavit.

The counsel for the parties have been heard.

4. The Rule of the respondent No.1 Institute regarding attendance is as

under:

"Attendance 20. Students are expected to put in as much attendance as possible as it is an integral part of learning. A minimal attendance is mandatory.

Attendance is also a part of evaluation.

21. A student to be eligible to appear at semester end examination must have at least 60% attendance in aggregate all the courses in the concerned semester, and, at least 30% attendance in each course.

Failing this student will have to repeat the semester.

A relaxation of 10% (overall and in each course) may be considered on grounds on ill-health and other reasons and engagements. In this case the candidate shall have to undertake make-up assignments as decided by the programme coordination committee.

22. Attendance in each course shall have a 10% weightage in evaluation. Attendance may be evaluated as follows out of 10 points.

                                       Above 85%                 10 marks
                                       65% to less than 75%      07 marks
                                       75% to less than 85%      05 marks
                                       60% to less than 65%      03 marks
                                       Less than 60%             00 marks"

5. The counsel for the petitioners has argued that the attendance of

each of the petitioners after relaxation of 10% in terms of above which is

given as a matter of routine is short by 1.1%, 0.8% and 2.63%

respectively. It is argued that the petitioners ought not to be directed to

repeat the Second Semester when the deficit in attendance is miniscule. It

is further argued that even though the results of the Second Semester

Exam of the petitioners has not been declared as yet but the respondent

No.1 Institute has been permitting the petitioners to attend the classes of

the Third Semester of which also only about 1½ months now remains. It

is contended that the attendance of each of the petitioners in the Third

Semester is over 90%. It is contended that since the Rules aforesaid

permit relaxation of 10%, subject to the candidates undertaking to submit

make up assignments as decided by the Programme Coordination

Committee, the further deficit over and above 10% can also be relaxed

subject to making up of assignments and which the petitioners are ready to

do. Attention is invited to the Rules of the Delhi University qua

attendance which permit relaxation subject to making up deficiency in the

following year / semester. It is argued that the petitioners also have

already made up for the deficiency in the Second Semester by attending

all the classes of the Third Semester and will in the remaining 1½ months

of third semester also attend all the classes and a sympathetic view of the

matter should be taken. It is further informed that as per the curriculum of

the respondent No.1 Institute there are no classes in the Fourth (Final)

Semester and which comprises of on-the-job training only. It is informed

that each of the petitioners has already been selected by the prospective

employers and would be undergoing the on-the-job training in the Fourth

Semester and if the petitions are dismissed their prospective employment

would also be derailed. With respect to the examination held on 3 rd May,

2010 in which the petitioners could not appear, it is contended that, that

exam would also be taken by the petitioners along with the examinations

of the Third Semester.

6. The counsel for the respondent No.1 Institute has argued that even

though the results of the Second Semester examination of the petitioners

have not been declared as yet, the petitioners were permitted to attend the

classes of the Third Semester under interim order of this Court; emphasis

is placed on the interim order whereunder no equities are to flow in favour

of the petitioners. It is argued that no reliance can be placed on the Rules

of Delhi University; there is no provision in the Rule aforesaid of the

respondent No.1 Institute for making up of deficiency of attendance in one

semester in the following semester; on the contrary, the consequence of

deficiency in attendance is expressly provided for i.e. of repeating the

semester. Reliance is placed on the judgments of this Court in Vandana

Kandari Vs. University of Delhi MANU/DE/1614/2010 and in Syed

Shabeeb Raza Bilgrami Vs. School of Planning & Architecture 2010 VII

AD (Delhi) 229.

7. The counsel for the petitioners in rejoinder has argued that in the

respondent No.1 Institute, attendance is also a part of evaluation; that the

petitioners for the reason of having less than the required 60% attendance

have got zero marks out of the 10 marks allotted for attendance; that they

having already suffered, should not be made to also repeat the semester.

Reliance is also sought on the reply dated 26th August, 2010 to the RTI

query to the effect that another student Ashwani Kumar Sahu was given

relaxation of more than 10%. It is thus contended that it is not as if the

respondent No.1 Institute never gives relaxation in attendance of more

than 10%. It is also contended that the petitioners could not attend classes

owing to health reasons and because of events in the family.

8. The counsel for the respondent No.1 clarifies that Ashwani Kumar

Sahu was granted relaxation because he was stopped from attending the

classes in order to prevent the spread of Chicken Pox from which he had

suffered.

9. I do not find any merit in the arguments of the counsel for the

petitioners on the basis of the Rules of Delhi University. A writ normally

is issued when a party / Body acts in contravention of its Rules and

Regulations. The Supreme Court in Maharishi Dayanand University Vs.

Surjeet Kaur JT 2010 (7) SC 179 held that the Court has no competence

to issue a direction contrary to law, nor the Court can direct an authority

to act in contravention of statutory provisions. It was held that the High

Court cannot be generous or liberal in issuing such directions which in

substance amount to directing the authorities concerned to violate their

own statutory Rules & Regulations. In the absence of any Rule of the

respondent No.1 Institute permitting the deficit in attendance in one

semester to be met in the next semester no order directing so can be made.

I also do not find any merit in the contention of the petitioners suffering

double jeopardy i.e. on the one hand being deprived of marks allotted for

attendance and on the other hand being made to repeat the semester. The

requirement for minimum attendance is different from the weightage in

terms of marks given for attending more than the minimum number of

classes; the two are different. The zero marks allocated for below 60%

attendance are not by way of punishment but a part of evaluation.

Moreover when the petitioners have to repeat the semester, the evaluation

mark are irrelevant.

10. The argument of the counsel for the petitioners hinges on the deficit

being minuscule. However while calling the deficit to be minuscule, the

counsel for the petitioners forgets that the deficit of 1.1%, 0.8% and 2.6%

is after presuming the entitlement to relaxation of 10% to be as a matter of

right. The Rules do not provide it to be as a matter of right. A student is

entitled to such relaxation only after satisfying the existence of the ground

therefor. Else the deficit in the case of each of the petitioners is over 10%.

11. I have during the hearing repeatedly enquired from the counsel for

the petitioners that if the Courts were to start interfering in such Rules of

attendance, where should they stop. If the Courts are to interfere when the

deficit is 2.6% as claimed in the present case, why not when deficit is 5%

or may be 10%. It is not as if the students are required to attend 100% of

the classes. The Rules already permit the students to miss / skip 40% of

the classes. Once the rules provide for attendance of minimum 60% of the

Classes, the Courts ought to respect the same and ought not to device their

own cut offs. If the Courts start doing so, there would be no end. If the

Courts in one case, on sympathetic grounds, relax the Rules by 5%, in

another case it may be argued that why not to 6 or 7%. It would make the

matter unending and make the Rules of Educational Institutions qua

minimum attendance farcical. The same cannot be permitted to be done.

The Supreme Court in Guru Nanak Dev University Vs. Parminder Kr.

Bansal (1993) 4 SCC 401 observed that sympathy, quite often wholly

misplaced does no service to anyone. Loose, ill-conceived sympathy was

held to expose judicial discretion to the criticism of degenerating into

private benevolence and subversive of academic discipline and leading to

serious impasse in academic life. It was held that the Courts should not

embarrass academic authorities by itself taking over their functions.

12. I have recently dealt with the aspect of attendance in detail also in

WP(C) No.2790/2010 titled Gangandeep Kaur Vs. GNCTD decided on

20th October, 2010 besides the judgments aforesaid. In view thereof, need

is not felt to enter into the lengthy discussion herein.

13. There is no merit in the petitions; the same are dismissed.

Axiomatically, the result of the examination taken by the petitioners under

the interim orders in this petition is annulled / cancelled. The petitioners

are directed to repeat the Second Semester. However, since owing to the

pendency of the present writ petitions, the petitioners could not till now

attend the classes of the Second Semester, it is directed that the attendance

of the Third Semester attended by the petitioners shall be counted for the

attendance of the Second Semester. The petitioners to hereafter attend the

classes of the Second Semester and would be entitled to appear for the

examination for promotion from the Second to the Third Semester.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 16th November, 2010/„gsr‟