Mr.Fahad Hassan vs Jamia Milia Islamia University & ...
2011 Latest Caselaw 2271 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) No. 2640/2011


%                           Judgment delivered on: 28th April, 2011

Mr.Fahad Hassan                                     ...... Petitioner.

                       Through: Mr. Sulaiman Mohd. Khan, Adv.

                            versus

Jamia Milia Islamia University & anr.               ..... Respondent

                       Through: Mr. M.A. Siddiqui, Adv.

                            And

                       W.P.(C) No. 2641/2011

    Mr.Udayan Biswas                                ...... Petitioner.

                       Through: Mr. Sulaiman Mohd. Khan, Adv.

                            versus

Jamia Milia Islamia University & Anr.               ..... Respondent

                       Through: Mr. M.A. Siddiqui, Adv.

                            And

                       W.P.(C) No. 2765/2011

    Mr.Arhan Sett                             ...... Petitioner.

                       Through: Mr. Vikramjeet Banerjee, Adv.
W.P.(C) No.2640/2011                 Page 1 of 20
                             versus

Jamia Milia Islamia University & Anr.               ..... Respondent

                       Through: Mr. M.A. Siddiqui, Adv.



CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.     To be referred to Reporter or not?                      Yes

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

KAILASH GAMBHIR, J. Oral

*

1. This common order will dispose of three petitions

bearing W.P.(C) No. 2640/2011, W.P.(C) No. 2641/2011 and

W.P.(C) No. 2765/2011 filed under Article 226 of the

Constitution seeking relaxation of attendance and to be

allowed to appear in the forthcoming final examinations.

2. The facts shorn of unnecessary details common to

the three petitions are that the petitioners are the students

pursuing M.A. (Mass Communication) from A.J.K. MCRC of

Jamia Millia Islamia University. The petitioner in W.P.(C) No.

2640/2011, a student of Ist year has 71.05% attendance; the

petitioner in W.P.(C) 2641/2011 is also a student of the Ist

year and has secured 71.05% attendance and the petitioner in

W.P.(C) 2765/2011 , a student of IInd year has secured 65.78%

attendance. The short point involved in the present petitions

is that the requisite attendance for appearing in the annual

examinations is 75% as per the relevant rules and therefore,

the petitioners herein being short of attendance have been

debarred from appearing in the forthcoming annual

examinations. Being aggrieved with the said action of the

respondent University, the petitioners have preferred the

present petitions.

3. Mr. Sulaiman Mohd. Khan, learned counsel for the

petitioner submits that the petitioner in W.P.(C) No.

2640/2011 was suffering from jaundice and was thus

disabled to attend his classes from 15.10.2010 to 22.10.2010.

Counsel further submits that a duly qualified MBBS Doctor

practicing in Patna issued a medical certificate dated

22.10.2010 in favour of the petitioner. Counsel also submits

that the petitioner has even submitted the investigation

report dated 16.10.2010 with the respondent University which

further proves the fact that the petitioner was suffering from

jaundice during the said period. Giving explanation for the

late submission of the medical certificate, counsel states that

the respondent University is itself entertaining the medical

certificates at the fag end, therefore the petitioner cannot be

blamed for submission of the medical certificate at the fag

end. Counsel also submits that the petitioner in fact had a

medical history of suffering from jaundice and to prove this

fact, the counsel has placed reliance on the similar medical

report dated 1.6.2010 which is placed on record at page 12 of

the paperbook. Counsel submits that the petitioner is

entitled to the benefit of relaxation of 15% of the total

attendance under the category of „sickness‟ as has been

provided in the Ordinance 15 (XV) of the respondent

University governing University Examinations. Counsel also

submits that in the investigation report dated 16.10.2010, the

concerned laboratory has clearly observed that SGPT and

SGOT levels are above the normal range.

4. Mr. Sulaiman Mohd. Khan, learned counsel for the

petitioner in W.P.(C) No. 2641/2011 submits that the

petitioner was suffering from very high grade fever and was

thus disabled to attend his classes from 7.11.2010 to

13.11.2010. Counsel further submits that duly qualified MBBS

Doctor practicing in Delhi issued a medical certificate dated

14.11.2010 in favour of the petitioner. Counsel also submits

that the petitioner has duly submitted the said medical

certificate with the respondent University. Counsel submits

that the petitioner could not file copy of the said certificate

as it was not retained by him and the same must be in the

records of the respondent. Counsel further submits that the

petitioner who is a first year student of M.A.(Mass

Communication) was quite regular in attending his classes.

Counsel submits that it is an admitted case that the

petitioner had secured 71.05% attendance till 31.3.2011 and

is short of merely 3.95% and to meet the target of 75%

attendance the petitioner was required to attend 23 classes.

Giving explanation for the late submission of the medical

certificate, counsel states that the respondent University is

itself entertaining the medical certificates at the fag end,

therefore the petitioner cannot be blamed for the late

submission of the medical certificate at the fag end. Counsel

submits that the petitioner is entitled to the benefit of

relaxation of 15% of the total attendance under the category

of „sickness‟ as has been provided in the relevant Ordinance

of the respondent University.

5. Mr. Banerjee, counsel for the petitioner in W.P.(C)

No. 2765/2011 submits that the petitioner has secured

65.78% of attendance and could not complete the target of

securing 75% attendance due to bona fide and genuine

medical reasons. Counsel further submits that the petitioner

has a medical history of suffering from debilitating attacks of

migraine for the past three years and when such a attack

strikes, the petitioner cannot function at all. Counsel further

submits that the petitioner was diagnosed with migraine

for the first time in the year 2008 and since then he has been

under medication. Counsel further submits that in the year

2010 also the petitioner has suffered severe attacks of

migraine and on various occasions he had to return back to

Kolkata for proper medical treatment. Counsel further

submits that the petitioner had submitted medical certificate

and prescription of the Doctor attending him during which

period the petitioner could not attend his classes. Counsel

also submits that the petitioner made various representations

to the respondent University for kind consideration of his

case but vide letter dated 7.4.2011, the request of the

petitioner to allow him to appear in the forthcoming exams

was declined by the respondent University.

6. Opposing the present petitions, Mr. Siddiqui,

learned counsel for the respondent University submits that the

petitioners had failed to submit their medical certificates

within the prescribed time of two weeks as provided in the

University Ordinance 15 (XV) Clause 2.2. Counsel further

submits that throughout the year the respondent has been

repeatedly intimating not only the petitioners but the

parents of the petitioners as well about the shortfall in their

attendance. Counsel also submits that besides the said

intimation, the attendance position of each and every student

is being placed on the notice board of the respondent

University. Counsel submits that each and every medical

certificate as submitted by the students is being thoroughly

scrutinized by the medical experts of the Ansari Health Centre

of the University in terms of the Ordinance 15 (XV) Clause

2.2.

7. Counsel submits that the petitioner in W.P.(C)

2640/2011 was not found to be suffering from jaundice

during the relevant period as enzymes of the petitioner as per

the report submitted by him were near to normal range. Dr.

Irshad Husain Naqvi, Medical Officer in the respondent

University is present in the Court. He submits that any

person suffering from jaundice will denote extremely high

SGOT and SGPT i.e. 100 or more but the same below 50 are

treated near normal. Dr. Naqvi further submits that in the

present case the petitioner‟s SGOT and SGPT reached at the

level of 45 and 40 respectively which are absolutely within

the normal range and the medical report submitted by the

petitioner thus falsifies the claim of the petitioner that he

was suffering from jaundice during the relevant period.

8. Counsel for the respondent submits that the

petitioner in W.P.(C) No. 2641/2011 was called upon to

submit a complete investigation report to prove the fact that

he was suffering from very high grade fever w.e.f. 7.11.2010

to 13.11.2010 but he failed to submit the same. Counsel for

the respondent also submits that the respondent University is

not inimical against any of its students and a strict view is

being taken to enforce high academic standards and

discipline in the University. Counsel also submits that for the

past many years, the respondent has been observing the

tendency of the students submitting fabricated medical

certificates with a view to meet the attendance target. In

support of his arguments, counsel for the respondent has

placed reliance on the recent order passed by this court in

W.P.(C) No. 2553/2011 titled as Arunima Sen Vs. Vice

Chancellor, Jamia Milia Islamia University dated

21.4.2011, denying relief to a similarly placed student.

Counsel also submits that 15% relaxation under the category

of „sickness‟ is available in extreme cases, where the students

are suffering from some medical problem which can prevent

the students to attend their respective classes.

9. I have heard learned counsel for the parties at

considerable length.

10. In all these cases, the petitioners who are students

of M.A.(Mass Communication) from A.J.K. MCRC of the

respondent Jamia Millia Islamia University are seeking

relaxation in attendance under the category of „sickness‟ as

per Clause 2.2 of Ordinance 15(XV) of the respondent

University. The case of all these petitioners is that if the

period of sicknes during which they could not attend their

respective classes is taken into consideration, then they

would make up the shortfall in their attendance to meet the

target of 75% of the required attendance. It is not in dispute

between the parties that as per the said University Ordinance

it is imperative for the students to be regular in their classes

and attend not less than 75% of the aggregate of the lectures,

tutorials of all compulsory/optional/honours and subsidiary

subjects in order to be eligible to appear in their respective

examinations. It is also not in dispute that the relaxation to

the extent of 15% of the total attendance is permissible by

the University under the category of "sickness". For better

appreciation, the relevant clauses of Ordinance 15(XV) The

University Examinations of the respondent University are

reproduced as under:

Ordinance 15 (XV)

The University Examinations

2. Attendance (for Regular Students)

2.1 A Candidate shall be deemed to have under-gone a regular course of study in the University, if he/she has attended atleast 75% in the aggregate of lectures, tutorials and practicals in order to be eligible to appear at the Examination. Provided that the Majlis-i-Talimi (Academic Council) may, in special circumstances, condone any shortage in such attendance except otherwise provided by the Academic Council.

2.2 A relaxation to the maximum extent of 15% of the total attendance shall be accorded to student on account of sickness, participation in University functions and the prescribed Educational Tours/Field Trips/Field work, provided that the attendance record, duly counter signed by the Teacher incharge, is sent to the Head of the Department concerned/Principal, University Polytechnic within two weeks of the function/activity etc.

Provided further in case of sickness/medical disability an application for the condonation shall be supported by a medical certificate issued by a registered Medical Practitioner/Public Hospital and duly authenticated by the Ansari Health Centre of JMI. Such applications must be submitted either during the period of treatment/hospitalization or within two weeks following recovery."

11. As would be seen from the aforesaid clauses of

Ordinance 15 (XV) of The University Examinations, a student

is required to attend 75% of the lectures, tutorials and

practicals to qualify to appear in his/her final exams. If a

student achieves the said target, still there remains 25%

which can take care of many eventualities and exigencies

which any student may be confronted with for not attending

the classes as held by the Division Bench of this court in the

case of Kiran Kumari vs. Delhi University WPC No.

9143/2007.

12. To gain complete knowledge of any subject,

attendance of the student in a class is a must. No student

can excel in his/her life unless he or she devotedly attends the

classes of a course which he/she undertakes. Attendance is

thus a rule and absence from class is an exception.

Undoubtedly, there can arise certain unforeseen situations

and exigencies where a student may not be able to attend his

classes and medical ground is one such exception which can

be considered by the Universities and Institutions to give the

benefit of relaxation in attendance. In Clause 2.2 of the

Ordinance 15(XV), the University has prescribed a period of

two weeks for submission of such medical certificates by the

student after the resumption of his classes but this rule is

not being strictly observed either by the students or by the

University. The plea taken by the University is that they

entertain the medical certificates even at the fag end so that

the students should not have any grievance that the medical

certificate although submitted late by them was not

entertained by the University. The University by entertaining

such medical certificates at the fag end is itself creating a

kind of indiscipline in the University, besides defying its own

rules. In certain cases the student may not be able to

submit the medical certificate within the prescribed time but

certainly the student is required to submit a medical

certificate within a reasonable time after he/she resumes

attending his/her classes. In any case it cannot be at the fag

end of the academic session. It is a matter of common

experience that when a student comes to know that he/she

would not be able to fulfill the laid down requirement of

attendance then he/she adopts such type of fraudulent means

to procure one or the other medical certificates so as to cover

up the shortfall in his/her attendance. This court in the case

of Vandana Kandari vs. University of Delhi 170(2010)

DLT 755 with regard to medical certificates held that :

" 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."

Thus the University is directed to strictly follow its own rules

and regulations and any relaxation in the said rules, would

lead to making a mockery of them in which situation, the

students would not have any remedy but to rush to the courts

alleging discrimination on the part of the University.

13. Dealing with the contention of the University which was

fortified by the presence of Dr.Naqvi in the Court today, that

the report of the petitioner in WPC No. 2640/2011 alleging

that he was suffering from jaundice is false, this court is of the

clear view that the court would not go into adjudicating upon

the medical reports or their truthfulness in exercise of its writ

jurisdiction. In cases where the petitioners before this court

allege their absenteeism on medical grounds, it would be

preposterous to state whether who was more ill and who was

less ill to decide as to who would be entitled to relief by this

court.

14. This court has time and again, through numerous

judicial pronouncements, stressed the importance of

attendance in educational institutions. As the incorrigible lot

of students still approaches the portals of law for seeking

relief, it has but become incumbent upon this court to

reiterate in black and white the dicta of law. In the detailed

judgment of this court in the case of Vandana Kandari &

Ors. vs. University of Delhi 170 (2010) DLT 755 , while

crystallizing the legal position , declined to grant relief to the

students falling short of attendance in L.L.B course of the

Delhi University. This court observed that the problem of

absenteeism has taken the face of a chronic disease plaguing

the edifice of the education system as the students who do not

attend classes have a strong belief that they are not suffering

significantly by their absence as the absenteeism does not

affect their clearing the examinations with good grades.

However in the same matter, relaxation of attendance was

given to two students who were pregnant, but setting aside

the same, the Division Bench of this court in LPA No.662/2010

decided on 10.1.2010 declined such exemption as well,

elucidating the legal position that in no case whatsoever,

relaxation of attendance can be given.

15. However, the Hon‟ble Division Bench of this court while

upholding the abovesaid order in Vandana Kandari(supra)

whereby relaxation of attendance was declined to seven other

students, in LPA 539/2010 titled Sukriti Upadhyay vs. Delhi

University decided on 4.10.2010 held that the quality of

training which a candidate gets during the time he undergoes

the course is directly proportional to the number of lectures

he attends and the failure to attend the requisite number of

lectures can legitimately disentitle him to claim eligibility for

appearing in the examination.

16. In the subsequent order of this court in the case of

Gagandeep Kaur vs. Govt of NCT of Delhi WPC No.

2790/2010 decided on 20.10.2010 this court held that even if

it were to be held that the petitioners were prevented for

bonafide reasons beyond their control from attending some of

the classes, there is no explanation as to why the petitioners

could not have attended all the other classes during the

remaining duration so as to fulfill/secure their eligibility for

attendance. Thus it has to be stated firmly here that once the

student by regular letters and notices put up on the notice

board of the University is made aware of his shortage in

attendance compelled by whatever reason, it becomes the

solemn duty of the student to try and attend all the subsequent

classes to make up for the attendance so that he does not

stand the risk of getting ineligible for appearing in

examinations.

17. The strict view in not granting relief to the students

has been further reiterated in the recent orders by this court

in Choudhary Ali Zia Kabir vs. Guru Gobind Singh

Indraprastha University WPC No.3129/2010 and Vibhor

Anand vs. Vice Chancellor, GGSIP University WPC No.

3163/2010. In view of the above cited detailed judgments, it is

unnecessary to burden this judgment with more reasoning.

18. The importance of attendance can hardly be

overemphasized. The students must understand that the

attending the classes is not only important in terms of their

clearing the examinations but also to shape their minds, aims

and perspectives in life. It would be befitting to quote here the

observations of the Division Bench of this court in the case of

Ashutosh Bharti & Ors. vs. The Ritanand Balved

Education Foundation (regd) & Ors. MANU/0024/2005 as

under:

"3. It may be noted that the grooming up and progressing of the students at the college is an important aspect for assessing the students. Their presence is a must. That system has been recognised all over the world. If the student is not attending the classes regularly, the teacher will not be in a position to watch the progress of that student. Academic authorities are best judges in the field of education to make suitable rules, regulations or ordinances. It is for

the college or the University to put the conditions on the students to attend a particular number of classes so as to be satisfied that the student has attended regular classes and he has taken education at the college/school.

4. Attendance is a must. Curriculum does not mean only examination, but it includes various other aspects such as discipline, behavior in the class room with the teachers and other co-students, answering the questions, time taken for answering the questions etc. These are the relevant aspects to be taken into consideration by a teacher and this can be done only if a student is attending the classes regularly. The University has prescribed 75% minimum for this purpose and it cannot be said that it is not in accordance with law or it is an arbitrary provision.

5. If any step is taken towards better educational method and standard, not only the Court should not come in the way, but must command and encourage it. Those who fail to maintain such standard round the year may lose the very valuable year of the young career, just as they lose if they fail in the examination. Matters of academic judgment are not for the courts to entertain. Better standards are required for learning and it can be only from experiences and different modalities. Educational institutions are the best judges to impose appropriate restrictions and conditions. Merely because the conditions which are imposed may be found inconvenient to some students, it cannot be challenged as being arbitrary. All the students who are appearing in te examinations have attended classes for not less than 75%. Merely because a few students are before the Court, it cannot be said that the rule or regulation is arbitrary."

Thus, the students must understand that there is no royal road

to education and education teaches only those in attendance.

19. However, before parting with the judgment, this

court is constrained to observe that the similar seekers of

relief in hope of garnering sympathy and pity are pouring

manifold everyday before this court. It has thus become

imperative for them to hear the clarion call of the court that

for the protection of rule of law as is luculent from the

various judicial pronouncements referred above and of

maintaining discipline, the law courts are not inclined to grant

relief to students falling short of attendance.

20. Certainly, this court has great sympathy with these

petitioners who due to shortage of marginal percentage of

attendance would waste their one precious academic year,

but if any indulgence, if given, to such students due to

sympathy and compassion then the same would result in total

indiscipline and chaos thus opening a Pandora‟s box. Strict

view in such like cases would be in the larger interest not only

of a student but also of any institution or University.

21. In the light of the above discussion, I do not find

any merit in these petitions, and the same are hereby

dismissed.

DASTI under the signature of Court Master.

April 28, 2011                          KAILASH GAMBHIR, J
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