Kaleem Fatima vs Jamia Milia Islamia And Ors
2012 Latest Caselaw 347 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 6499/2011
                                    Date of Decision:18th January, 2012.
      IN THE MATTER OF:-
      KALEEM FATIMA                                    ..... Petitioner

                   versus

      JAMIA MILIA ISLAMIA AND ORS                      ..... Respondents

AND

W.P.(C) 7692/2011

IN THE MATTER OF:-

      MOHD. ASLAM                                      ..... Petitioner

                   versus

      JAMIA MILIA ISLAMIA AND ANR                      ..... Respondents

      Present:-    Mr. Vijay Kishore, Adv. with Mr.Vikram Jetly, Adv. for
                   the petitioner in W.P.(C) No.6499/2011.

Mr. Jayant Nath, Sr. Adv. with Mr.Masood Alam, Adv. for the Petitioner in W.P.(C) No.7692/2011.

Ms. Jaya Goyal, Adv. with Mr. Rohit Gandhi, Adv. for the Respondents.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J (ORAL)

1. In the present petitions filed by two petitioners, who had

appeared for admissions in the BDS (Dentistry) Course in respondent

No.1/University in the academic year 2010-11 and were admitted to

the said course, challenge has been laid to the action of the

respondent No.1/University in detaining them due to deficiency in

attendance and in refusing to grant them permission to appear in the

annual examination for the course in question. The petitioners have

also sought directions to the respondents to re-admit them in the BDS

(Dentistry) course in the first year for the academic year 2011-12. As

the facts of both the cases are almost similar, for the sake of

convenience, the facts submitted in W.P.(C) No.6499/2011 are being

taken note of.

2. The undisputed facts of the case are that on 30.06.2010, the

petitioners had appeared for the written examination for admission in

the first year BDS (Dentistry) Course in the academic year 2010-11.

On 08.07.2010, the result of the written examination was declared and

the petitioners were duly selected. On 28.07.2010, the petitioners

were admitted by the respondents in the first year BDS (Dentistry)

Course for the academic year 2010-11. Classes for the first year of

the said course were held w.e.f 02.08.2010 to 30.05.2011. The

annual examination of the aforesaid course was to be held w.e.f.

30.05.2011, but the said date was deferred to 28.07.2011. However,

the petitioners were not permitted to appear in the final examination

due to shortage of attendance which was intimated to them by the

respondents vide letter dated 14.06.2011.

3. Counsels for the parties have drawn the attention of this Court

to the prospectus issued by respondent No.1/University for the

academic year 2010-11. Sub-rules (9) & (10) of Rule 5 relating to

admissions is relevant for consideration and the same are reproduced

hereinbelow:

"5. Rules Relating to Admission:-

1 to 8. xxx

9. A student who fails in the Annual/Semester Examination or who could not appear for the Annual Examinations for reasons other than shortage of attendance will not be re-admitted. However, he/she may be allowed to reappear as an ex-student in the next annual examination. The concerned Faculty/Department/Centre may provide to such students the facility of attending classes/sessional test etc.

10. A student of 1st year/1st Semester of any course who is detained due to shortage of attendance will no longer remain the student of the University. Such students will have to seek fresh admission and will be required to go through the entire admission process."

4. It may be noted that the aforesaid Rule 5 of the Prospectus was

amended by the respondent No.1/University in its prospectus issued

for the academic year 2011-12 wherein sub-rule (9) of Rule 5 reads as

below:-

"5. Rules Relating to Admission:-

1 to 8. xxx

9. A student of any course who could not appear in the examination due to shortage of attendance or any other reasons or who fails in the examinations may be given re-admission in the same class of that Course in the next academic session."

5. It is submitted by the counsels for the petitioners that as per the

sub-rule (10) of Rule 5 of the prospectus of the year 2010-2011, a

student of first year, who is detained due to shortage of attendance,

does not remain a student of the University and would have to seek

fresh admission for which he/she shall be required to undergo the

entire process of admission. In other words, the case of such a

student would be treated as a case of re-admission in the respondent

No.1/University.

6. Counsels for the petitioners state that the aforesaid Rule has

caused immense hardship to the petitioners for the reason that the

prospectus of the academic year 2011-12 had set out the schedule of

admission in the Faculty of BDS (Dentistry) wherein for the BDS

(Dentistry) course (subject matter of the present petition), the last

date for submission of the application forms was fixed as 02.05.2011,

the date of the entrance test was fixed as 31.05.2011, the date of

display of the list of candidates called for interview was fixed as

07.06.2011, the date of interview was fixed as 20.06.2011 and the

date of display of the list of selected and wait listed candidates was

fixed as 28.06.2011. They point out that it was only on 14.06.2011

that the petitioners herein were served with a notice of detention, due

to deficiency in attendance, and they were not permitted to appear in

the annual examination for the academic year 2010-11. As a result,

they missed an opportunity to seek fresh admission in the said course

as provided for under sub-rule (10) of Rule 5 for the reason that the

last date fixed for submission of application forms for the academic

year 2011-12 was 02.05.2011. It is further pointed out that the

respondent No.1/University is also aware of the fact that sub rule (9)

and sub rule (10) of Rule 5 of the Prospectus, 2010-11 was causing

immense hardship to the students of the first year due to which the

University thought it fit to amend Rule 5 for the academic year 2011-

12, by stipulating that a student of any course who could not appear in

the examination due to shortage of attendance or for any other

reason, may be given re-admission in the same class of that course in

the next academic session.

7. In other words, when faced with a similar situation like the one

that the petitioners herein are facing, students in the academic year

2011-12 would not have to apply for fresh admission to the

respondent No.1/University, but, they would be granted re-admission

in the same class of the relevant course in the next academic session.

It is submitted by the counsels for the petitioners that sub rule (9) of

Rule 5 is a beneficial legislation and ought to be extended to the

petitioners herein as well. It is thus urged that respondents ought to

be directed to permit re-admission of the petitioners herein into the

first year in the same course and they should not be discriminated as

against similarly placed students in the academic year 2011-12, who

have been given the benefit of the amended sub rule (9) of Rule 5 of

the prospectus.

8. Counsel for the respondents opposes the relief sought in the writ

petitions on the ground that the attendance of both the petitioners was

far below the minimum required attendance of 75% in exam-going

subjects and 70% in non-exam subjects. She relies on Annexure R-1

enclosed with the counter affidavit to substantiate her claim that the

attendance of both the petitioners was not up to the mark. She

further states that the attendance record of both the petitioners was

duly communicated to them from time to time and further, that the

parents of the petitioners were also counseled on the said aspect on

different dates. She refers to the reminders pertaining to the

attendance record of the petitioners as issued by the respondents to

their parents from time to time and enclosed with the counter affidavit

as Annexure R-2 (Colly.), to state that in each of the reminders, the

petitioners and their parents had been duly warned that if their

attendance was found to be below the minimum prescribed

benchmark, they would not be eligible to appear in the annual

examination for the academic year 2010-11.

9. Pertinently, neither of the petitioners have questioned their

attendance record as maintained by the respondents. Their only

grievance is that having been detained in the academic year 2010-11

for not meeting the minimum prescribed requirement of attendance

and being prohibited from appearing in the annual examinations in

their respective years, they had been adequately penalized. But the

manner in which respondent No.1/University had fixed the admission

schedule for the same course for the next academic year 2011-12, has

resulted in depriving them of an opportunity to apply for fresh

admission for the next academic year as well, thus causing them a loss

of two academic years. It is canvassed that resultantly, the petitioners

have been made to suffer a double jeopardy inasmuch as the cut off

date of submission of the application forms for the academic year

2011-12 for the BDS (Dentistry) course was fixed by the

respondent/University as 02.05.2011 whereas the petitioners herein

were issued the notice of detention by the respondents only on

14.06.2011, which was after a period of one and a half month from

02.05.2011, thus foreclosing their right to seek fresh admission in the

same course in respondent No.1/University for the academic year

2011-12, in terms of the said sub rule (10) of Rule 5, as existing in the

prospectus for the academic year 2010-11.

10. This Court finds force in the aforesaid submission made by the

counsels for the petitioners. Had it been a case where the operation of

the unamended sub-rule (9) of Rule 5 of the prospectus relating to the

academic year 2010-11 would have resulted in affording an

opportunity to the petitioners, who had been detained for want of the

minimum prescribed attendance to apply for fresh admission in the

same course in the very next academic year, the Court would not have

found any illegality in the action of the respondents. However, the

respondents apparently did not realize that if it proposed to detain

students with shortage of attendance in one academic year and gave

them an option to apply afresh for admission only in the next academic

year, then the cut off date for the next academic year ought to have

been fixed in such a manner that those students, who had been

detained in the previous academic year could have availed of the

opportunity of applying afresh for admission in the next academic

year. Undoubtedly, the petitioners could not have been penalized by

the respondents twice over for the same breach thereby subjecting

them to a break of two running academic years.

11. The fact of the matter is that the respondents have themselves

realized the immense hardship caused to students in the manner of

implementation of sub-Rule (9) of Rule 5 prescribed in the prospectus

for the academic year 2010-11. This realization has dawned on them

later on which is the reason why the said Rule 5 relating to admissions

in the academic year 2011-12 has been amended by the respondent

No.1/University by stipulating that a student of any course who could

not appear in the examination due to shortage of attendance or for

any other reason or a student who fails in the examination would be

given admission in the same class in the said course in the next

academic session. By amending Rule 5 in the aforesaid manner, the

respondents have ensured that w.e.f. the academic year 2011-12,

students similarly placed as the petitioners would not have to undergo

the ordeal of seeking re-admission in the same course in the next

academic session.

12. In the present case, had the respondent No.1/University ensured

that the last date for submission of application forms fixed in the

prospectus of the academic year 2011-12 for the course in which the

petitioners were studying fell after 14.06.2011, the date on which they

were issued notices of detention, the Court would have been inclined

to accept the submission made by learned counsel for the respondents

that the petitioners had not been completely left out in the cold and

they still had an opportunity of seeking fresh admission in the next

academic year. But by fixing the last date of submission of application

forms for admission in the said course for the academic year 2011-12,

as 02.05.2011 and thereafter proceeding to issue them notices dated

14.06.2011 detaining them from appearing in the annual examination

for the academic year 2010-11 due to shortage of attendance, the

respondents have closed the doors in the face of the petitioners and

have deprived them of a valuable right to even apply for fresh

admission in the same course in the next academic year, which is

patently illegal and unjustifiable and amounts to imposing a dual

punishment on the petitioners for the very same breach/default.

13. For the aforesaid reasons, this Court is inclined to accept the

submission of the counsels for the petitioners that the petitioners can

not be made to suffer a double jeopardy at the hands of the

respondent No.1/University and that in the given facts and

circumstances of the cases, they are entitled to being granted re-

admission in the same course in the next academic session, i.e., the

year 2011-12, without applying afresh to the respondents for

admission.

14. The next issue that arises for consideration is the manner in

which the relief has to be moulded in respect of both the petitioners.

As regards W.P.(C) No.6499/2011, an interim order was passed on

23.09.2011 whereunder, the petitioner was allowed to attend classes

of the first year BDS (Dentistry) course for the current academic year

subject to the final outcome of the writ petition while clarifying that

the interim direction would not create any special equity in her favour.

It has been submitted by learned counsel for the petitioner in W.P.(C)

No.6499/2011 that she has been continuing her studies in the current

academic year on the strength of the aforesaid interim order, which

statement is confirmed by learned counsel for the respondents. It is,

therefore, directed that the petitioner in W.P.(C) No.6499/2011 shall

continue to attend classes of the first year BDS (Dentistry) Course and

if found eligible as per the Rules and Regulations applicable in that

regard, she shall be permitted to sit for the annual examinations at the

end of the academic year 2011-12.

15. However, the petitioner in W.P.(C) No.7692/2011 had

approached this Court belatedly by filing the writ petition only on

20.10.2011. Consequently, he was not granted any interim order and

he has not been attending classes for the first year BDS (Dentistry)

course in the current academic year. As a result, while allowing

W.P.(C) No.7692/2011, it is deemed appropriate to direct the

respondents to grant re-admission to the said petitioner in the same

course for the relevant session, on completion of requisite formalities

for the next academic session, i.e., for the academic year 2012-13,

which shall commence in the month of August, 2012.

16. Both the petitions are disposed of and parties are left to bear

their own costs.

HIMA KOHLI, J JANUARY 18, 2012 'anb'