Neeraj Bahl vs Guru Gobind Singh Indraprastha ...
2011 Latest Caselaw 6365 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P.(C) 6814/2011

                                                    Reserved on:     09.12.2011
                                                    Date of decision 23.12.2011

IN THE MATTER OF
NEERAJ BAHL                                                   ..... Petitioner
                            Through: Mr. Karan Singh Thukral, Advocate

                       versus


GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY          ..... Respondent
                  Through: Mr. Mukul Talwar, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. The present petition is filed by the petitioner praying inter alia for

issuance of directions to the respondent/University to conduct the three

theory examinations again, for which he was restrained from appearing and

further to declare his results for those Second Semester examinations which

he had undertaken, along with the other students, for the course of B.Tech

(M.Tech dual) Degree.

2. The facts of the case lie in a narrow compass. Respondent/University

had admitted the petitioner as a student in the B.Tech course (M.Tech dual

degree) for the academic year 2010-11. On completion of his first semester,

he was promoted to the second semester, the classes for which began on

07.02.2011. There were two sets of internal examinations which were

conducted viz. from 08.03.2011 to 15.03.2011 and from 12.04.2011 to

18.04.2011. The petitioner appeared for both the sets of examinations and

cleared the same. It is the case of the petitioner that on the last working

day of the second semester, i.e., on 29.04.2011, he was informed by the

Dean of the Department of Information Technology in the

respondent/University that his attendance was falling short by 4% of the

prescribed minimum requirement of 75%. As per the petitioner, the Dean of

the University had condoned his shortfall of the attendance and he had been

allowed to take the Final Semester Practical Examinations for five subjects,

which had commenced from 02.05.2011. The final theory examinations

began on the 23.05.2011, and the petitioner sat for the theory examinations

in four subjects on 23.05.2011, 25.05.2011, 27.05.2011 and 31.05.2011.

However, on 02.06.2011, he was called by the Dean of the University and

informed that the shortfall in his attendance had not been condoned, and as

he was detained, he would not be allowed to appear for any further

examinations and his earlier examinations shall be treated as null and void.

Aggrieved by the said action, the petitioner filed the present petition on

08.09.2011.

3. The sheet anchor of the arguments of learned counsel for the petitioner

was that having been allowed to appear for the five final practical

examinations and four final theory examinations held for the second

semester in the month of May, 2011, would impliedly mean that the

shortfall, if any, in his attendance, had been duly condoned by the

respondent/University. It was his contention that the discretion vested in

the respondent/University to condone the shortage in his attendance had

been duly exercised in favour of the petitioner by permitting him to sit for

the examinations and having done so once, such a discretion could not have

been exercised once again and that too against the petitioner. In support of

his submission, learned counsel for the petitioner relied on the following

decisions: -

(i) Purshottam Das Dulichand Zargar & Anr. vs. Board of Secondary Education AIR 1962 MP 3

(ii) Premji Bhai Ganesh Bhai Kshatriya vs. Vice Chancellor, Ravishankar AIR 1967 MP 194

(iii) Shri Krishnan vs. Kurukshetra University AIR 1976 SC

(iv) Nilamadhaba Nanda & Ors. vs. Orissa University of Agriculture and Technology & Anr. AIR 1983 Ori 17

4. Counsel for the petitioner also drew the attention of the Court to a list

dated 18.5.2011, displayed on the notice board by the Dean of the

respondent/University, enlisting the names of those students who had been

detained on account of shortage in their attendance, wherein the name of

the petitioner did not feature. He stated that Clause 9 of Ordinance 11

governing the issue of attendance in the respondent/University clearly lays

down that the names of those students who are not eligible to appear for the

semester-end examinations should be announced by the respondent atleast

5 calendar days prior to the said exams commencing, which was not done in

the present case and any subsequent notice issued by the

respondent/University displaying the name of the petitioner as a detainee

was impermissible as per the aforesaid provision.

5. Counsel for the petitioner further submitted that the alleged shortfall

in attendance of 4% was not on account of the absence of the petitioner

from his classes, but because of a miscalculation of his attendance on the

part of the teachers of the respondent/University, who were careless and

negligent in that regard.

6. The aforesaid submissions made on behalf of the petitioner were

vehemently opposed by learned counsel for the respondent, who stated that

in the first place the present petition was highly belated and would not be

maintainable on account of delay and laches as the cause of action accrued

in the present case on 2.6.2011, whereas the present petition was filed after

over two months. He further submitted that the petitioner failed to point out

that the only reason for allowing him to appear for the four final theory

papers on the aforesaid four dates in the last part of May, 2011, was

because the petitioner had submitted an undertaking to the invigilator to the

effect that he had forgotten to carry his admit card and that if anything was

found wrong after verification of his identity and candidature on perusal of

his original records submitted with the respondent/University, then his

examinations would be cancelled and the authorities would be free to take

other action as deemed fit.

7. To refute the contention of the petitioner that his attendance was

within condonable limits, counsel for the respondent/University submitted

that the attendance of the petitioner was not 71% as alleged by him.

Instead, it was around 32.15%, which was far below the condonable limits

as governed by Clause 9 of Ordinance 11. He disputed the stand taken by

the petitioner, that the Dean of the respondent/University had orally

condoned the shortfall in his attendance, by relying on the Ordinance

governing the issue of attendance in the respondent/University. Clause 9 of

Ordinance 11 is relevant and states as below:-

"A student shall be required to have a minimum attendance of 75% or more in the aggregate of all the courses taken together in a semester, provided that the Dean of the School in case of University Schools and Principal/Director in case of University maintained/affiliated institutes may condone attendance shortage upto 5% for individual students for reasons to be recorded. However, under no condition, a student who has an aggregate attendance of less than 70% in a semester shall be allowed to appear in the semester end examination."

8. It was the submission of the counsel for the respondent that it was

inconceivable that the Dean of the respondent/University could have

condoned a shortage of almost 42.85% from the requisite attendance of

75%. He however conceded that in the notice dated 18.05.2011 issued by

the respondent/University enlisting the names of the detainees, the name of

the petitioner had not appeared. However, he submitted that the same was

an inadvertent error and the said error was rectified immediately thereafter

by issuing a subsequent notice dated 20.05.2011, which duly included the

name of the petitioner as a detainee.

9. It was the contention of the counsel for the respondent/University that

even if the story set up by the petitioner that his attendance was 71% and

the Dean had orally condoned the shortage of his attendance is accepted,

any shortage of attendance below the mandatory limit of 70% could not, in

any event, have been condoned by the Dean. He stressed the fact that the

Ordinance is mandatory in nature and is binding not only on the students,

but also on the Dean who had no power to condone a shortage in attendance

which was far below 70% and under no circumstances, could he have

condoned such a shortage in attendance as in the case of the petitioner. It

was further submitted that where an aspect of education, such as

attendance, is governed by a statute, then such a statute is supreme, and

no authority can deviate from the same. To support his submission, he

referred to the decision of a Division Bench of the Calcutta High Court in the

case of Ashoke Saha vs. State of West Bengal reported as 1999 LawSuit

(Cal) 45, where it was held that where an authority is a creature of a

statute, then it can act only within the four corners of the statute and if it is

given the power to make any condonation/exemptions, adhering to the

conditions in the statute, then it has no option but to pass an order in terms

of the said statute.

10. This Court has heard the counsels for the parties and carefully perused

the documents and examined the judgments placed on record.

11. The first question which arises for consideration is as regards the

maintainability of the petition on account of delay and laches. The

contention of the counsel for the respondent/University that the petition is

highly belated on account of the fact that the end-semester examinations, in

respect of which the petitioner was aggrieved, were held in May, 2011,

whereas the petition was filed as late as in September, 2011, cannot be

accepted. It may be noted that in matters of education, where the

academic career of a student is involved, some amount of leniency has to be

shown to the students in approaching the Court by filing a writ petition.

Further, the petitioner has sought to explain in his rejoinder that in the

intervening period, he alongwith his mother had been regularly approaching

the Vice-Chancellor and the Dean of the respondent/University in respect of

his grievance of being wrongly detained and they were hopeful of a positive

outcome. This Court sees no reason to disbelieve the petitioner on this

issue. Hence, the explanation offered by the petitioner for the delay in filing

the writ petition is found to be just and sufficient and the petition is

therefore held to be maintainable.

12. The main plank of the argument of the counsel for the petitioner was

that once an authority had exercised its discretion in one manner, it could

not subsequently backtrack and take an entirely different stand from that

taken previously. It was submitted by learned counsel for the petitioner that

once the petitioner had been allowed to sit for the examinations, in effect,

implying that his shortage of attendance had been condoned, the

respondent/University could not have subsequently restrained him from

taking the rest of the exams, on the ground of shortage of attendance.

Reliance was placed on a judgment of the Supreme Court in the case of Shri

Krishnan(supra) to stress the aforesaid point, wherein the observations

made in para 6 as below were pointed out:-

"6. ... once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the university to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear".

13. While making the aforesaid observation, the Supreme Court had relied

on the reasoning given in a decision of the Division Bench of the Madhya

Pradesh High Court in the case of Premji Bhai Ganesh Bhai Kshatriya(supra),

where it was held:-

"From the provisions of Ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinance 19 or Ordinance 48 which would enable the Vice Chancellor to withdraw the permission. The discretion having been clearly

exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice Chancellor to withdraw that permission subsequently and to withhold his result."

14. The ratio laid down in Shri Krishnan(supra) has to be seen in the light

of the peculiar facts and circumstances of that case. In the said case, the

appellant therein had sat for the examinations based on an undertaking

given by him that he would produce a document from his employer

permitting him to join the law classes, and otherwise he would abide by any

order passed by the University. Subsequently, the appellant therein had

refused to furnish such a document as he had later on found out that there

was no statutory provision under which he was required to produce such a

document. Thereafter, the declaration of his result was withheld by the

University on various other grounds such as shortage of attendance, lack of

approval from the superior officer, absence of certificate of good moral

character, etc. While taking note of the inconsistencies in the stand of the

respondent/University in that case, the Supreme Court tested the argument

of the counsel for the appellant therein that once the appellant was allowed

to appear in the examination, his candidature could not be withdrawn, on

the anvil of clause 2 of Ordinance X of the Statue contained in the

Kurukshetra University Calendar and it was observed that last part of the

said Statute showed that the University could withdraw the certificate issued

by it if the candidate failed to attend the prescribed course of lectures. But

the Supreme Court further noted that this could be done only before the

examination, but not thereafter.

15. The facts of the aforesaid case are however entirely distinguishable

from the present case, inasmuch as in the aforesaid case, the undertaking

given by the appellant therein was for production of a document from his

employer, which he later found out, was not statutorily required to be

produced by him. Further, the Supreme Court was of the opinion that if the

appellant therein fell short of attending the prescribed number of lectures,

then it was for the University to have found out the defect well in time and if

the University therein acquiesced to the infirmities contained in the

admission form of the appellant therein, and went on to allow him to appear

in the examination, it had no power under the Statute to withdraw his

candidature. In those specific circumstances, the Supreme Court had found

it expedient to strike down the decision of the University of withholding the

results of the appellant therein.

16. On the other hand, in the present case, the undertaking given by the

petitioner to the invigilator was due to non-compliance of a statutory

requirement of production of his admit card before sitting for the

examination. Fact of the matter is that the failure on the part of the

petitioner to produce his admit card was for the reason that the same had

not been issued to him by the respondent/University due to shortage of

attendance. This fact was deliberately concealed by the petitioner from the

invigilator, who while accepting on face values the explanation offered by

the petitioner that he had forgotten to carry the admit card, permitted him

to sit for the examinations by accepting a written undertaking offered by the

petitioner at that time. The situation in the present case was in fact

envisaged by the Supreme Court in the decision of Shri Krishnan (supra),

where it was observed as below:

"7. ...This was not a case where on the undertaking given by a candidate for fulfilment of a specified condition a provisional admission was given by the university to appear at the examination which could be withdrawn at any moment on the non-fulfilment of the aforesaid condition. If this was the situation then the candidate himself would have contracted out of the statute which was for his benefit and the statute therefore would not have stood in the way of the university authorities in cancelling the candidature of the appellant."

17. In the present case, by giving an undertaking that he be provisionally

allowed to appear in the end term examinations and if he was found guilty of

any wrong, then his examination be cancelled, the petitioner had, in effect,

opted out of the contract/Ordinance and hence, he cannot be permitted to

turn around now and seek the benefit of the very same Ordinance by taking

a stand that in having permitted him to sit for the exams, the

respondent/University had, impliedly, condoned his shortfall of attendance,

as stipulated in the said Ordinance. By taking such a ground, the petitioner

is only trying to run with the hares while hunting with the hounds, which is

impermissible. Therefore, the ratio laid down in the case of Shri

Krishnan(supra) that discretion exercised in one manner, cannot

subsequently be exercised in a contrary manner, would have no application

to the facts of the case in hand.

18. Similarly, in the case of Premji Bhai Ganesh Bhai Kshatriya(supra),

admission cards to sit for exams had already been issued. The University

therein was therefore reprimanded for not having properly scrutinized the

attendance of the petitioner therein before issuing admission cards and

letting him sit for the ensuing examinations. In the present case, admittedly,

no such admit card had ever been issued to the petitioner in the first place.

Nor is it the case of the petitioner that an admit card was issued to him later

on. The shortage of attendance of the petitioner had already been informed

to him, the first time orally on 29.4.2011 and for the second time vide notice

dated 20.5.2011. This is not a case where there was a lack of due diligence

which was required to be exercised by the respondent/University in

scrutinizing the attendance of the petitioner. Furthermore, the petitioner was

fully aware of the fact that as per the Ordinance, even the Dean could have

condoned only 5% of shortage of attendance and unless and until the same

was condoned, he would be ineligible to sit for the semester-end

examinations.

19. As for the argument of the counsel for the petitioner that the

undertaking given by the petitioner at the time of taking the examinations

was under pressure and given in terrorem, for which again reliance was

placed on the decision in Shri Krishnan(supra), it may be noted that it is not

a case where the petitioner was unaware of his legal rights. Nor is it a case

where the petitioner was unaware of the fact that he had been repeatedly

missing his classes for one reason or the other and that his attendance was

perpetually short. Rather, at the time of giving his examination, the

petitioner was conscious of the fact that he was short of attendance, which

had not been condoned and communicated to him in writing and as per the

procedure prescribed in the Ordinance, unless the said shortage was

condoned, he would not be allowed to take his examinations. The inevitable

conclusion is that the petitioner would also have been aware of the fact that

his admit card had been withheld due to shortage of attendance. Secondly, a

point which has eluded the petitioner is that a perusal of the undertaking

given by the petitioner shows that he had specifically tick marked the option

of "I have forgotten to carry my admit card", in the form, even though there

were two other options available to him, which were "No admit card received

by me from the University" or, "My admit card...... has been

lost/spoiled/destroyed on account of conditions beyond my control", either of

which the petitioner could have ticked if it was his case that the admit card

had not been issued to him on 23.5.2011 or that his admit card had been

misplaced by the University.

20. It appears that the petitioner has spun an elaborate web of half truths

and falsity, so as to place the blame entirely on the University and the

teaching faculty, without producing a single scrap of paper to substantiate

his claims. In the first instance, the petitioner furnished a false undertaking

to the Invigilator and managed to sit for the examinations and then having

sat for the examinations based on the false undertaking, he has tried to

claim a vested right for taking the remaining examinations, on the specious

plea that he was not informed of the shortfall in his attendance within the

time stipulated in the Ordinance. Pertinently, learned counsel for the

petitioner did not even bother to address the Court on the issue of shortfall

of attendance in his arguments, till the said issue was broached by the other

side. The consistent stand of the petitioner was that his attendance was

short by a mere 4%, which had been orally condoned by the Dean of the

respondent/University, which stand has not been supported by any

document placed on record.

21. Counsel for the respondent/University has rightly sought to refute the

contention of the petitioner that discretion exercised in one manner cannot

be changed subsequently i.e. to say that the respondent/University would be

bound by the principles of promissory estoppel, by adverting to the decision

of the Supreme Court in the case of Central Airmen Selection Board vs.

Surender Kumar Das reported as (2003) 1 SCC 152, where it was held as

below:-

"7. ... It is well known that the principle of promissory estoppel is based on equitable principles. A person who has himself misled the authority by making a fake statement, cannot invoke this

principle, if his misrepresentation misled the authority into taking a decision which on discovery of the misrepresentation is sought to be cancelled."

22. This Court is in complete agreement with the aforesaid submission

made by the counsel for the respondent/University that it does not lie in the

mouth of the petitioner to invoke the principle of promissory estoppel,

inasmuch as, he had made a false representation to the Invigilator and had

deliberately given a false undertaking that he had forgotten to carry his

admit card, even though no such card was ever issued to him. Hence he

cannot now raise the plea of promissory estoppel to bind the

respondent/University to its decision to allow him to sit for the semester-end

examinations and insist that he be permitted to take the remaining three

papers which he was not allowed to take.

23. This Court is also of the opinion that not much turns on the argument

of the counsel for the petitioner that 5 days prior notice had not been given

to him as required under the aforesaid University Ordinance for the reason

that admittedly, the first time the petitioner was informed of the shortage of

attendance was on 29.4.2011, so it was not as if he had been unaware of

the shortfall of attendance 5 days prior to his end-term examinations.

Furthermore, as noted above, the contention of the petitioner that the Dean

had orally communicated to him that the shortage in his attendance had

been condoned can also not be accepted since the petitioner has not been

able to place on record any written application submitted by him to the Dean

for condonation of shortage of attendance either subsequent to 29.4.2011,

the first date on which he received such an information or after 20.05.2011,

the date on which the second list of detainees was issued and displayed.

The petitioner has also failed to place on record any written authorization by

the Dean of the respondent/University condoning the said shortage in

attendance. He has merely made a bald averment to the said effect in the

petition without substantiating the same by filing relevant documents, which

is not permissible.

24. Further, as pointed out by learned counsel for the

respondent/University that condonation of shortage of attendance beyond

5% was not within the powers of the Dean and hence there was no question

that such a condonation, oral or otherwise, could have been made by the

Dean in favour of the petitioner. There is no reason to disbelieve the

submissions made on behalf of the respondent/University. Nor has any

allegation of malafides been levelled by the petitioner against the University,

which could be offered as a possible explanation for failure to mark his

attendance for classes he had attended or for non-condonation of his

absence from class.

25. The petitioner having miserably failed to place on record any document

in support of his claim that the respondent/University had condoned the 5%

shortfall in his attendance, the Court declines to accept the argument of the

counsel for the petitioner that the shortfall in the attendance of the

petitioner had been condoned by the respondent/University, albeit orally. In

the light of the aforesaid observations, the arguments raised by the counsel

for the petitioner that the Dean had condoned the shortfall in his attendance

and further, that he could not be bound by his undertaking as it was offered

by him under duress, are turned down as being entirely devoid of merits.

26. The Court also finds merit in the submission of the learned counsel for

the respondent/University that in any event, condonation of attendance

cannot be permitted beyond the rules of attendance as stipulated in the

Ordinance and neither any authority or a Court ought to direct relaxation

thereof beyond what is permissible. The Supreme Court has stated in very

clear terms that an authority bound by a statute cannot be compelled to do

something by the court which is beyond that authority's legal competence.

In the case of Ashok Kumar Thakur vs. University of H.P. reported as

(1973) 2 SCC 298, sympathy was expressed with the appellant/student

therein, but the Supreme Court did not return any finding in his favour. It

was held in the above case that:-

5. Considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favour of the petitioner even if the petitioner had succeeded in making out a case

for condonation. In our opinion, the appeal must fail on this short point. Much as we regret the unfortunate fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the High Court, and dismiss the petitioner's appeal. " (emphasis added)

In any event, the facts of the present case are not such which merit

issuance of any direction to the respondent/University to grant any

relaxation to the petitioner in the form of condonation of the deficiency in his

attendance, which has been abysmally poor.

27. In the light of the abovementioned facts and circumstances, this Court

finds that the plea of the petitioner that he be allowed to sit for the

remaining semester-end exams of the second semester and be promoted to

the third semester, cannot be granted either in law or in equity. Rather, it

is a case of suppresio veri, suggestio falsi, as the petitioner has not revealed

the true and correct facts to the Court and has deliberately withheld material

information so as to mislead the Court, which in itself disentitles him from

calling upon the Court to exercise its extraordinary powers of judicial review

in his favour.

28. The petition is, therefore, dismissed with costs of ` 7,500/-

imposed on the petitioner as counsel's fee.

                                                              (HIMA KOHLI)
DECEMBER 23, 2011                                                 JUDGE
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