Pooja Sharma And Ors vs Morarji Desai National Institute ...
2011 Latest Caselaw 1827 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 29th March, 2011

+        W.P.(C) 585/2011, CM No.1238/2011 (for stay) & CM
         No.2260/2011 of the petitioner for impleadment).

         POOJA SHARMA AND ORS                     ..... Petitioners
                     Through: Mr. V. Shekhar, Sr. Advocate with
                              Mr. Abhigya, Mr. Abhay Kushwaha
                              & Mr. C.B. Sharma, Advocates.

                                      versus

    MORARJI DESAI NATIONAL INSTITUTE
    OF YOGA                                 ..... Respondent
                 Through: Mr. R.M. Bagai & Mr. Sunil Bagai,
                           Advocates.
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 Ms. Pooja Sharma, a student of the one year Diploma

course in Yoga of the respondent Institute has filed this writ petition when

stopped from appearing in the examination owing to not having the

requisite attendance. It is not in dispute that as per the rules of the

respondent Institute the petitioner was required to attend, separately,

minimum 80% of the theory & 80% of the practical classes. The rules

further provide that students having attendance below 80% would not be

eligible for appearing in the examination. Discretion to give benefit of 5%

attendance on medical ground has been vested in the competent authority

of the respondent Institute.

2. According to the petitioner she had 83% attendance in theory and

69% attendance in the practical classes. Notice of the petition was issued

on the premise that the petitioner having aggregate of 76% attendance may

be eligible. It may be recorded that the petition in so far as petitioner no.2

Mr. Kapil Singh Rao was concerned, was dismissed on 31 st January, 2011

itself.

3. Counter affidavits have been filed. The petitioner has also filed CM

No.2260/2011 for impleadment of another student namely Ms. Nidhi Sud

as a party on the ground that the respondent Institute has given certain

concessions to the said student and which have not been allowed to the

petitioner. However it has been put to the senior counsel for the petitioner

as to how can the petitioner claim any right of negative equality. The

sr. counsel has chosen to argue on the basis of the case of the petitioner

herself.

4. The contention of the senior counsel for the petitioner is two fold.

Firstly, that owing to the petitioner residing at a great distance, she was

always late in reaching for the practical classes scheduled at 7.00 a.m. in

the morning by about 10 to 15 minutes and owing whereto her attendance

was not marked. Secondly, it is contended that the petitioner was assured

by all the teachers that notwithstanding her attendance having not been

marked, she would not suffer. The petitioner in this regard has filed an

additional affidavit along with affidavits of 26 of her classmates to the said

effect.

5. The counsel for the respondent Institute contends that the petitioner

has fabricated the said affidavits and that the students whose affidavits

have been filed were not even in the same section and were themselves not

attending all the classes and are thus not competent to give the affidavits.

The counsel for the respondent Institute has also handed over in the Court

the photographs of the attendance sheets which demonstrate that the

attendance was not marked by the teacher but signed by the students

themselves. It is contended that the very fact that the petitioner did not sign

the attendance shows that she was absent in the class. With respect to the

plea of the petitioner reaching late, it is contended that throughout the term

no such representation was made and the said plea is now being taken as

an afterthought.

6. The senior counsel for the petitioner has contended that in view of as

many as 26 affidavits of other students having been filed, the petitioner

being a girl student and for the reason of staying at a great distance she

should be granted indulgence.

7. This Court in Neetu Sharma v. Delhi University

MANU/DE/1990/2010 held that the purport of providing for minimum

attendance is to ensure that the students imbibe what is taught in the class

and not merely appear in the examination. If the students want to appear in

the examination without attending the classes they have the open schools

and other institutes, not insisting upon attendance available to them. Once

the student joins an Institute where attendance is a must, the student is

bound to attend the classes and if does not attend the classes, is not entitled

to any indulgence from this Court. In fact the courts have gone to the

extent of stating that even on medical grounds attendance cannot be

relaxed. The Division Bench of this Court recently in judgment dated 10 th

January, 2011 in LPA No. 662/2010 titled University of Delhi v. Vandana

Kandari has held that exemption from attendance on the ground of

maternity also cannot be allowed.

8. As far as the case of the petitioner of having attended the classes is

concerned, such questions cannot be allowed to be raised as held in Syed

Shabeeb Raza Bilgrami v. The School of Planning & Architecture

MANU/DE/2221/2010.

9. The petitioner having admittedly not attended the minimum number

of practical classes cannot be granted the relief of taking the exams.

The petition is dismissed with no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 29th MARCH, 2011 pp..