Vikash Kumar Singh vs University Of Delhi & Ors.
2011 Latest Caselaw 157 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 12th January, 2011.

+                  W.P.(C) 7869/2010 & CM No.20309/2010 (for interim relief)

%        VIKASH KUMAR SINGH                                       ..... Petitioner
                     Through:             Mr. Prithvi Pal, Adv.

                                    Versus

         UNIVERSITY OF DELHI & ORS.              ..... Respondents
                      Through: Mr. Amit Bansal, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     NO

2.       To be referred to the reporter or not?              NO

3.       Whether the judgment should be reported             NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner was admitted to the M.A.(Social Work) course of the

Department of Social Work of the respondent no.1 University in the year

2009 and was also provided Hostel accommodation in the said Department.

The petitioner could not clear the first semester examination held in or about

December, 2009. However as per the Rules he was still promoted to the

second semester and successfully cleared the second semester examination

held in April, May, 2010 and was promoted to the third semester. The

petitioner was required to take both the first and the third semester

examinations scheduled to be held in November, 2010. It is the case of the

petitioner that the respondent no.2 being the Head of Department of Social

Work and who is also a Provost of the Hostel of the said Department

developed enmity towards the petitioner and owing whereto he first issued

notice to show cause to the petitioner on the ground of misconduct in the

Hostel, on false and frivolous grounds and upon being not in a position to

prove, ended merely in a warning. The petitioner pleads that in furtherance

of the said enmity, the respondent no.2 first issued a Memo dated 20th

September, 2010 to the petitioner to the effect that the petitioner had not

submitted the Field Work Reports "from last one month" and that the

petitioner had not attended any individual conference "for last three weeks"

and thereafter issued another Memo dated 30th September, 2010

complaining that the petitioner had not attended Field Work "for the last two

months" and also not submitted any report for the same and had also not

attended or submitted group conference paper or made presentation thereon.

It was also mentioned in the Memo dated 30th September, 2010 that the

petitioner had thus rendered himself ineligible to appear in the Field Work

examination. It was yet further mentioned in the said notice that the

classroom attendance of the petitioner was also negligible and as such the

examination form of the petitioner could not be forwarded to the

Examination Branch.

2. The petitioner contends that the falsity of the Memos dated 20th

September, 2010 and 30th September, 2010 is evident from inconsistencies

therein, though only 10 days apart.

3. It is further the case of the petitioner that the respondent no.2

thereafter sent a letter dated 8th October, 2010 to the father of the petitioner

informing that the petitioner had attended only 2 out of 22 lectures in the

Paper No.6301, 6 out of 19 lectures in Paper No.6302, Nil out of 23 lectures

in Paper No.6303, 3 out of 13 lectures in Paper No.7101 and Nil out of 17

lectures in Paper No.7201. It was thus stated that the petitioner had attended

only 11 out of 94 lectures. It was yet further stated in the said letter dated 8 th

October, 2010 that the petitioner had not attended any Field Work which

was compulsory and was thus unlikely to be allowed to appear in the

semester examination as per the University Rules.

4. The petitioner contends that thereafter yet another undated Memo was

served on him complaining that he had not attended Field Work "since past

two months" and not responded to the earlier Memo of 20th September, 2010

also. The petitioner pleads that the respondent no.2 in his zeal to punish the

petitioner, signed the undated Memo also at the place earmarked for

Director.

5. The petitioner on 29th October, 2010 submitted to the Department that

he was suffering from a viral fever from 21st August, 2010; he had tried to

attend Field Work activities but from 5th September, 2010 had been unable

to attend the Field Work activities also. The said letter was accompanied

with a Medical Certificate issued by a Doctor at Allahabad who certified

that the petitioner was under his treatment from 21st August, 2010 to 29th

September, 2010.

6. The petitioner pleads that though the examination fee was collected

from him and his name was also included in the list of students to take the

third semester examination in November/December, 2010 to commence

from 24th November, 2010 but he was not issued the admit card. This writ

petition has been filed claiming the relief of directing the respondents to

release the admit card of the petitioner.

7. The writ petition came up before this Court first on 23rd November,

2010 i.e. just a day before the commencement of the examination. The writ

petition was accompanied with an application for interim relief. Attention

of the counsel for the petitioner was invited to the judgment dated 20th

October, 2010 of this Bench in W.P.(C) No.2790/2010 titled Gagandeep

Kaur Vs. GNCTD holding inter alia that illness is not a ground for not

meeting the requisite attendance criteria. However, notice of the writ

petition was issued and vide interim order the petitioner permitted to take

the examination subject to the final outcome of the writ petition and without

creating any equities in his favour and with a further direction that the result

of the petitioner be not declared.

8. The respondents have filed a counter affidavit pleading that as per the

Rules, a student is required to have minimum 75% attendance with

discretion in the Head of Department to condone shortage of attendance of

not more than 10%; that the petitioner having attended only 11 out of 173

classes held in the 5 theory papers of the third semester, had an attendance

of only 6.35% and was rightly refused permission to sit in the examination.

It is further pleaded that the attendance record of the petitioner in the

previous two semesters was also poor and dismal; that the petitioner had

failed to attend the Block Field Work throughout the semester; his

attendance in the Field Work Practicum (Paper No.6304) is zero; that he had

never appeared in the internal assessment tests of any paper of the third

semester; that he had not attended Block Field Work Training (Paper

No.6305) held in summer 2010 and its viva-voce examination held on

15/16th November, 2010; that as per the Rules, a student who fails in Social

Work Practicum has to repeat both practical and all theory papers of that

semester for promotion to the next semester. The respondents in the counter

affidavit have denied any enmity of the respondent no.2 towards the

petitioner and have pleaded that the respondent no.2 has acted in the

discharge of his duties as the Head of Department and as the Provost of the

Hostel. It is denied that there is any inconsistencies in the Memos of 20th

September, 2010 and 30th September, 2010; it is explained that the Memo of

20th September, 2010 was with regard to non-submission of Field Work

Report, while the Memo of 30th September, 2010 was with regard to non-

attendance of Field Work. It is explained that at the time when the

respondent no.2 signed the Memo at the place marked Director, the Director

was on leave and the respondent no.2 was officiating in his place. It is

further pleaded that though the Medical Certificate was only till 29 th

September, 2010 but the petitioner has not provided any justification for

absence thereafter also. It is pleaded that the attendance report of all

students upto 18th September, 2010 was displayed on the Notice Board on

22nd September, 2010 and the final attendance was displayed on 22 nd

October, 2010. It is pleaded that deposit of examination fee does not create

any right.

9. When the matter was called out today, the counsel for the petitioner

sought an adjournment inspite of having been warned on the last date of

hearing that repeated adjournments may deprive the petitioner of any

efficacious relief. The counsel for the petitioner then stated that though

rejoinder had been filed but it was not on record. He was told that the copy

could be handed over in the Court. He then contended that he had received

an advance notice of an application filed by the respondents for correcting

an error in the counter affidavit filed. The said application however is not

listed today. The counsel for the respondents has handed over a copy of the

said application in the Court. The counsel for the petitioner then offered to

argue the writ petition today itself. The counsels have been heard.

10. The petitioner in his rejoinder to the counter affidavit has not pleaded

anything new.

11. The crux of the arguments of the counsel for the petitioner is that the

respondents in the counter affidavit filed have falsely pleaded that the

petitioner inspite of obtaining the interim order from this Court did not

appear in the examination held on 1st December, 2010. It is urged that upon

the petitioner controverting the said fact in the rejoinder. The application

aforesaid was filed by the respondents for correcting the other error. It is

argued that when the respondents in the counter affidavit have indulged in

falsehood then neither the other pleas of the respondents in the counter

affidavit nor the records of attendance maintained by the respondents could

be believed.

12. The respondents in the application for correction of the counter

affidavit have stated that the mistake in wrongly pleading that the petitioner

had not appeared in the examination held on 1st December, 2010 occurred

owing to the respondent no.2 having inadvertently provided wrong

information to the Registrar of the respondent no.1 University who has filed

the counter affidavit.

13. The aforesaid contention of the petitioner cannot be accepted. The

wrong statement made in the counter affidavit is not such of which the

respondent no.2 could have derived any advantage which could tilt the

decision of this writ petition against the petitioner. In the circumstances, the

version of the respondents of the reason for the error is found plausible and

the counter affidavit is permitted to be corrected as sought.

14. The counsel for the petitioner has next argued that the present is a

case of mala fides. It is urged that the other Lecturers in collusion with the

respondent no.2 have been marking the petitioner absent when he has been

present in the classes. It is pleaded that along with counter affidavit also the

attendance record has not been filed and only a summary thereof has been

filed.

15. The aforesaid arguments raised by the petitioner, raise factual

controversy which cannot be gone into in writ jurisdiction and if the

petitioner is desirous of agitating the same, his remedy is by way of a suit

and not under Article 226 of the Constitution of India. Suffice it is to state

that the averments of mala fide do not inspire confidence. The petitioner has

not stated any reason for the respondent no.2 and the other Lecturers who

are averred to have marked the petitioner absent inspite of being present, to

be inimical towards him.

16. I have in judgment dated 7th December, 2010 in W.P.(C) No.

3163/2010 titled Vibhor Anand Vs. Vice Chancellor, GGSIP University

already held that the said pleas cannot be entertained in this jurisdiction and

the records of attendance maintained by the Colleges/Universities have to be

believed and the Colleges/Universities cannot be put to proof thereof and if

so directed, would forever be involved in the same only rather than in their

academic pursuits. Merely because the Head of Department in his capacity

as the Provost of the Hostel has initiated disciplinary action qua misconduct

by the petitioner in the Hostel, is no reason for him to vent his anger against

the petitioner on the academic side. Moreover, the misconduct averred was

also not of such a nature. The allegation against the petitioner was of

locking out his roommate. The fact remains that though the petitioner was

meted out a warning, he did not challenge the same. Thus at this stage, the

petitioner cannot allege that he was wrongly warned. Moreover, no

antecedent incident for respondent no.2 to be inimical to the petitioner, has

been disclosed.

17. In the judgment aforesaid, it has also been held that the principles of

audi alteram partem or natural justice cannot be extended to matters such as

of attendance.

18. There is no material before this Court to disbelieve the statement of

the respondents of the petitioner having only 6.5% against the requisite of

75% attendance. It is not as if, such stand was taken for the first time just

before examination. The petitioner admits the Memos issued from time to

time. From the said Memos it is apparent that the petitioner was being

warned since at least three to four months prior to the examination.

19. The counsel for the respondents has also argued that the petitioner

even if passing the theory papers and in which he was allowed to appear

under the interim orders of this Court, under Promotion Rules, would still

not be entitled to be promoted to the fourth semester for the reason of having

not appeared in the practical examination and is required to repeat all the

theory papers also.

20. The counsel for the petitioner has rejoined by contending that the

petitioner was not given an opportunity to appear in the practical

examination. It is stated that unlike the other students, no time for the

practical examination was given to the petitioner. It is contended that in the

document filed by the respondents also though time for practical

examination of each student is mentioned, instead of mentioning any time

against the name of the petitioner, merely absence is recorded.

21. The counsel for the respondents has contended that the petitioner if

had been attending the Institute/Department, would have been aware that the

practical examination of all the students was held on two days only and

could have appeared in the same. Without any other material before this

Court, the version of the respondents is found to be more believable than

that of the petitioner. The petitioner admits of being at Allahabad till 29 th

September, 2010. There is nothing to show that the petitioner was in Delhi

thereafter and when the practical examinations were held. The plea of the

respondents is of the petitioner having not attended any lectures thereafter

also. The petitioner at least then was aware of the controversy and if had

been present, ought to have taken care to have his attendance marked.

22. In the circumstances, no merit is found in the writ petition. The same

is dismissed. Resultantly, the examination which the petitioner was allowed

to take under the interim orders in these proceedings, is ordered to be

cancelled and no result thereof be declared.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 12th January, 2011 bs