Delhi High Court
Ayushi Sethi & Ors vs Delhi University & Anr on 25 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 10.08.2017
Judgment delivered on : 25.08.2017
+ W.P.(C) 4801/2017 & C.M. No.23005/2017
AYUSHI SETHI & ORS
..... Petitioners
Through: Dr Ashutosh and Ms Urmi, Advs.
Versus
DELHI UNIVERSITY & ANR
..... Respondents
Through: Mr Mohinder J.S. Rupal and
Mr Prang Newmai, Advs for DU
Ms Beenashaw N. Soni, Adv for R-2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The present petition has been filed by the seven petitioners. The
prayers made in the petition read as under:-
(i) a Writ of Mandamus and/or any other Writ, order, and/or direction in the
nature thereof may kindly be issued in the matter, thereby directing the
respondents to allow the students to appear in the examination held on
27.05.2017 at 3 pm; and/or
(ii) a Writ of Mandamus and/or any other Writ, order and/or direction in the
nature thereof may kindly be issued in the matter, thereby directing the
respondents to promote the petitioners to the next semester, so that they may
appear in the supplementary examination of fourth semester along with the
examination of sixth semester; and/or
(iii) any other order, as may be deemed fit and proper, under the facts and
circumstances of the case, may also be passed in favour of the petitioners
and against the respondents."
2 On 26.05.2017 this Court had considered the rival submissions of the
parties; petitioner no 4 and petitioner no 7 namely Divya Gupta and Vinay
Varma were permitted to sit in the examination of "Generic Elective" which
was to be held on 27.05.2017. That direction stands complied with.
3 Record shows that the aforenoted petitioners are studying in the Deen
Dayal Upadhyaya College (hereinafter referred to as „respondent No.2‟).
They were pursuing a B.Com (Hons.) course from the said college. The
college is affiliated to respondent no. 1 (Delhi University). The course is a 3
year course divided into six semesters. All the students are presently in the II
year. Petitioners had successfully completed their 3rd semester and were to
appear in the examination of 4th semester which was scheduled between
09.05.2017 to 27.05.2017. Admit cards had to be issued to them on
08.05.2017. The petitioners did not know that there was any shortage of
attendance on their part.
4 On 05.05.2017 the management of the college had displayed a list of
184 students who were detained due to shortage of attendance. Their
attendance was allegedly less than 40%. As per the University guidelines
students securing 66.66% attendance were alone eligible to sit for the
examination. However, the students securing upto 40% attendance were
considered by the college for the purpose of their eligibility to appear in the
examination on the basis of their respective medical certificates or other
circumstances like participation in extra curricular activities and sports etc.
That out of list of 184 students, 70 were left out; their attendance was less
than 26.7%. The medical certificates and other grounds including
participation in extra curricular activities did not apply to those students
whose attendance was less than 26.7%.
5 Submission is that the petitioners in the month of January 2017 had
opted for the course Entrepreneurship/ Cyber Law by giving their option;
this was through E-filing; if their attendance for this course of
"Entrepreneurship/ Cyber Law" is calculated, the attendance of all the
petitioners would be more than 26.7% which was the cut off percentage set
by the college. The Principal of the college however did not accept the
attendance of the petitioners for those 18 days (in the month of January
2017) inspite of the fact that all the aforenoted petitioners had attended the
said classes. The concerned teacher who was taking the classes for the said
subject had inadvertently not passed on that attendance record to the
concerned authority as a result of which the petitioners had been denied their
admit cards. In fact the concerned teacher had even admitted her mistake in
writing to the effect that she had not passed on this attendance chart of said
aforenoted petitioners to the concerned authorities.
6 The petitioners were kept in the dark. They were time and again
informed that their matter was being considered favorably by the authorities.
On 18.05.2017 the Principal of the college gave an option to the petitioners
and advised them to procure medical certificates for the period of
examination i.e. 09.05.2017 to 27.05.2017 so that their attendance could be
marked on medical grounds during the days of the aforenoted examinations
and they could be promoted to the next semester; thereafter they could
appear in the supplementary examination for the fourth semester scheduled
alongwith the 6th semester examination. However even on this count the
Principal backed out and did not adhere to his promise. This was on
22.05.2017. On the same date a representation had been given to the
Principal; this was qua the conduct of one teacher namely Dr. Hemchand
Jain. Hemchand Jain was assigned the teaching of the subject "Computer
Application in Business" of B.Com(Hons.) II year. However he never used
to take classes as per schedule and even when he used to take classes they
would be not more than 10-15 minutes as he had a dual responsibility having
been promoted as Vice Principal and was also simultaneously looking after
the charge of Acting Principal. This was in the month of January to April.
This representation also remained unheard.
7 On 24.05.2017 the petitioners met the Chairman of the college namely
Dr. Brajesh Choudhary. They were informed that the Committee who was
looking into their matter had sympathetically considered their case. An E-
mail was addressed to the Dean, Students Welfare also on the same day
explaining the aforenoted circumstances. The petitioners were running from
pillar to post seeking promotion to the next semester. They failed to get any
relief. It is pointed out that the similarly placed students had been granted
relief.
8 Qua the status of petitioners no. 4 and 7 namely Divya Gupta and
Vinay Varma, respondent points out that these two students had not passed
their previous papers; they would be ineligible for promotion to the next
semester. This Court notes that on 26.05.2017 this fact was noted and
petitioners no. 4 and 7 were permitted to sit in the examination of paper
Generic Elective scheduled for 27.05.2017. This result of petitioners no. 4
and 7 is yet awaited.
9 A counter affidavit has been filed by respondent No.2 alone.
Respondent No.1 has supported the stand of respondent No.2. Contention of
respondent No.2 is that respondent No.2 is bound to follow the University
Statutes and Ordinances; he is bound by them. Reliance has been placed
upon Ordinance VII of the Ordinances of University of Delhi. It is pointed
out that a student is required to have at least 66.66% i.e. 2/3rd attendance to
make him/her eligible to appear in an examination. The Principal of the
college has discretion in terms of Ordinance VII (2) to allow students with a
40% attendance to take the examination. The petitioners had been given the
concessions available under the rules; they did not qualify as per the
attendance criteria and hence their admit cards were legally withheld. It is
pointed out that a list of 184 students who were short of attendance had been
displayed on the college website on 05.05.2017. On 08.05.2017 a revised
list of 172 students with shortage of attendance was again displayed. Many
of the students came with a request to accept their medical certificates
claiming ignorance on their submissions earlier. As a gesture of goodwill,
these medical certificates of all such students who had filed them at that
point of time were entertained by the college Administration. As per the
University rules a benefit of a maximum of 1/3rd of the classes could be
given on medical grounds to the students meaning thereby that 1/3 rd of the
classes could be subtracted while computing the attendance of the students.
10 It is pointed out that the petitioners along with one teacher of their
college namely Dr.Abha Wadhwa, (Associate Professor in Commerce) had
come to the office of the Principal and on 11.05.2017 she had given a letter
in writing stating that the aforenoted 7 petitioners had applied for a change of
option to "E-Filing of Returns" and were attending her classes regularly. It is
pointed out that the college had offered 3 options under the Skill
Enhancement Courses to the students of B.Com(Hons.) 4th semester. They
were (i) Entrepreneurship Development (ii) Cyber Crime and Laws and (iii)
E-filing of Returns. The students were required to give one option out of
three. As per the record none of the said students had opted for "E-filing of
Returns" which was being taught by Dr.Abha Wadhwa. Six of them had
opted for „Entrepreneurship Development‟ and one for „Cyber Crime and
Laws‟. When this fact was brought to the notice of Dr.Abha Wadhwa, she
submitted another application stating that these students had changed their
option in the month of February 2017. She however stated that each of the
petitioners had attended 18 classes out of 18 held in January 2017. This
appears to be fraudulent as petitioner no. 4 was on medical leave from
22.01.2017. She thus could not have attended all the 18 classes. The names
of other students appeared in the attendance sheet of the subject
„Entrepreneurship Development‟ and „Cyber Crime and Laws‟ which option
had been taken in January 2017. One student could not attend two classes at
the same time and take benefit of attendance from both the subjects. The
rules allowed the student to take one option. Moreover the attendance record
submitted by Dr.Abha Wadhwa for the month of January 2017 did not have
the names of the petitioners. The names appeared to have been added by her
in her own handwriting for which she had no explanation. No weightage
could thus be given to the attendance of the petitioners for the paper E-filing
of Returns; these petitioners had never opted for the subject being taught by
Dr.Abha Wadhwa.
11 The details of the attendance of the aforenoted students has been
clarified in the aforenoted counter affidavit; submission being that each of
the student has less than 20% attendance. The attendance sheet submitted by
Dr.Abha Wadhwa is in fact incorrect. The petitioners have not come to the
Court with clean hands. Petitioner no. 4 has qualified only in 4 papers out of
5 in the 3rd semester. Petitioner no. 7 had in fact qualified in all the papers;
he had mis-represented to the Court that he has failed pursuant to which he
was permitted by this Court to sit in the examination which was scheduled
on 27.05.2017. The petitioners deserve no relief.
12 Rejoinder has been filed by the petitioners reiterating the averments
made in the petition. It is pointed out that there is no rule in the University
which denies promotion to the students; Ordinance VII does not prohibit a
promotion from one semester to another. The petitioners undertake to make
good of the shortfall of their attendance in the next semester. It was only on
08.05.2017 that the petitioners for the first time were told that they would not
be eligible for the examination which was to be held on 09.05.2017.
Thereafter they are running from pillar to post to get relief. The Principle has
adequate discretion to condone the shortage of their attendance, if any.
13 Respondent No.2 was directed to file an additional affidavit. This was
on 02.08.2017. In this additional affidavit it is pointed out that the terms and
conditions of the Ordinance which have now been highlighted by the
petitioner are not pleaded in the petition. It is pointed out that classes in the
4th semester were dispersed on 27.04.2017. On the same day, the college had
its Annual Day Function. 29th and 30th April were Saturday and Sunday. The
college had displayed the shortage of attendance on their website and notice
board on 05.05.2017. Benefit under sub clause (a) of the aforenoted
Ordinance was given to all those students who had qualified.
14 In the course of these proceedings learned counsel for the petitioners
had pointed out that two students namely Tanvi Jain and Raj had been
granted the benefit of additional attendance and their shortage of attendance
had been condoned. Record of the aforenoted students was brought to the
notice of the Court. This was on 01.08.2017. On the following day i.e. on
02.08.2017, this Court has been informed that the record of Tanvi Jain and
Raj is distinct as they were participants in extra curricular activities. This
objection is thus no longer pressed.
15 Rejoinder to this additional affidavit has been filed. It was stated that
the college should have condoned the shortage of attendance in terms of
Ordinance VII (2) of respondent No.1 university.
16 Learned counsel for the respondent in support of his submission has
placed reliance upon a judgment reported as 170 (2010)DLT 755 Vandana
Kandari vs University of Delhi. Reliance has also been placed upon a
Division Bench judgment of this Court reported as 197 (2013) DLT 469
Heena Bahal vs University of Delhi & Ors. as also 2011 Law Suit (Del) 3615
Neeraj Behl vs Guru Gobind Singh Indraprastha University.
17 Arguments have been heard. Record had been perused.
18 Ordinance VII which is the relevant Ordinance of the University
regarding attendance rules for the 3 year semester based undergraduate
programmes (page No. 328 and 349 of the University Calendar Volume I
(2004) (E.C. 28.05.2015) was amended w.e.f. 28.05.2015. The existing
nomenclature of an undergraduate course BBS (Bachelor of Business
Studies) came to be amended and the amended nomenclature reads as BMS
(Bachelor of Management Studies).
19 The said Ordinance (Ordinance VII (2)) reads as under:
A candidate for the Semester I/II/IV Examination shall not be deemed to
have satisfied the required conditions of attendance unless s/he has attended, in all
the subjects taken together, not less than two thirds of the
lectures/practical/presentation/tutorial required to be attended. Provided that a
student of the Semester I/III/V who does not fulfill the required conditions of
attendance, as above, but has attended, in all the subject taken together, not less
than 40 percent of lectures/practical/presentations during the respective semester,
may at the discretion of the Principal of the College concerned, appear for the
ensuring semester examination; but such a candidate shall be required to make up
the deficiency at lectures and practical, in the next semester of the same academic
year.
Provided that a student of the II/IV/VI semester who does not fulfill the
required conditions of attendance as above, but has attended in all the subjects
taken together, not less than 40 per cent of the
lectures/practical/presentation/tutorials, held during the respective semester, may
the discretion of the Principal of the College concerned, be allowed to appear at
the ensuing examination provided that she/he makes up the deficiency of the said
attendance by combining the attendance of the previous semester in the ensuing
semester.
Provided further that the Principal of the College concerned may permit a
student to appear in an examination notwithstanding that the student has not
fulfilled the attendance requirement, if in the opinion of the Principal, such student
shall make up the deficiency in the succeeding academic year.
Provided further that a student of the VI semester shall be allowed to
appear at the VI semester examination, if by combining the attendance of the three
academic years, the candidate has put in two-thirds of attendance, in all the
subjects taken together, held during the respective years.
20 The petitioners are in the 4th semester. They have however not been
permitted to give their examination for the 4th semester for the reason as
enumerated in their petition.
21 Learned counsel for the respondent has highlighted the first proviso of
the aforenoted Ordinance. Submission is that a student who is of the 4 th
semester (as is in the instant case) and who does not fulfill the required
conditions of attendance but has attended in all the subjects taken together
not less than 40% of the lectures / practical / presentation / tutorials held
during that particular semester i.e. during the 4 th semester, may at the
discretion of the Principal of the college be allowed to appear at the ensuing
examination provided that she/he makes up the deficiency of the said
attendance by combining the attendance of the previous semester in the
ensuing semester. Learned counsel for the respondent points out that even if
the attendance of the 3rd semester of the petitioners is taken into account and
is read alongwith the attendance of the petitioners in the 4th semester, they do
not qualify for a promotion to the 5th semester as 40% attendance in each
respective semester has to be kept in mind. The attendance of the petitioners
in the 4th semester was even less than 20%.
22 Per contra learned counsel for the petitioner has highlighted the 2nd
proviso; submission is that the Principal of the college may permit a student
to appear in an examination not withstanding that the student has not
fulfilled the attendance requirement and if in the opinion of the Principal
such student shall make up the deficiency in the succeeding academic year.
Learned counsel for the petitioners points out that the petitioners have an
attendance of 40% if both 3rd and 4th semester is counted. This position is not
in dispute. It is not in dispute that if the attendance of 3 rd and 4th semester is
counted together each of the petitioners would have an attendance of about
40%. The contention of the respondent is that 40% attendance as contained
in the first proviso should be an attendance in each semester. Learned
counsel for the petitioner submits that the discretion of the Principal of the
college which is contained in the second proviso is wide enough to allow a
student to sit in an examination if in the opinion of the Principal the student
can make up the deficiency in the succeeding academic year.
23 The vehement submission of the respondent that the deficiency of
attendance in the 4th semester cannot be made up in the next year as the 3 rd
and 4th semester is one cumulative year and a shortage of attendance in the
3rd and 4th semester cannot be made up in the next semester i.e 5 th
semester/6th semester would be contrary to the terms of the second proviso
which clearly provides that Principal in its discretion may allow a student to
make up the deficiency in the succeeding academic year meaning thereby
that if the student has fallen short of attendance in the II year (3rd and 4th
semester taken together) and if the Principal is of the opinion that such a
student can make up the deficiency in the next academic year, he may be
permitted to sit in the examination.
24 Again at the cost of repetition the submission of the respondent on this
count that each year is a complete year in itself and the present petitioners
who are in the II year (4th semester) cannot make good their attendance in the
5th and 6th semesters thus holds no water. This argument of the respondent
has no force.
25 The fact that two other students namely Tanvi Jain and Raj have been
granted permission to be promoted to the next semester even though they
have an attendance of 14% and 18% respectively had been examined by the
respondent. The respondent had informed this Court that the said students
admittedly had an attendance of 14% and 18% respectively but they were
granted permission to be promoted to the next semesters for the reason that
they had participated in the extra curricular activities which is not the case of
the present petitioners. This Court also notes the submission of the
petitioners that their case is being treated more harshly than the others for the
reason that they had approached this Court and were openly fighting for their
rights before the Competent Authority.
26 Record of the petitioners shows that if the attendance of the 3 rd and 4th
semesters is counted together, their attendance is around 40%. The
discretionary quota which is available with the Principal of the college is
contained in the second proviso of Ordinance VII. This is a wide discretion.
The Principal of the college may permit a student to appear in an
examination even if he has not fulfilled the attendance requirements if in his
opinion the said student may make up the deficiency of attendance in the
succeeding academic year meaning thereby that if an undertaking on
affidavit is given by the petitioners that they would make up the deficiency
shortfall of their attendance in the 5th and 6th semester (3rd academic year)
and make good the said attendance of which they have fallen short in the
previous year, the Principal can permit such a student to appear in an
examination. This Court also notes the submission of the petitioners that Dr.
Abha Wadhwa had given a 18 day full attendance to each of the petitioners
certifying that they had attended a course being taught by her which was a
course of „E-filing of Returns‟. The fact that the petitioners could change
their options through an online application is not disputed. The case of
petitioners is that they had changed their option i.e. E-filing of Returns in
January 2017. The affidavit of Dr. Abha Wadhwa who was teaching this
course was to the effect that each of the petitioners had attended 18 classes
out of a total 18 held in January 2017. The fact that such a letter had been
given by the Professor of respondent No.2 namely Dr. Abha Wadhwa is not
in dispute. The contention of the respondent college is that this certificate
appears to be incorrect and action is now being contemplated against Dr.
Abha Wadhwa. Admittedly this certificate was given by Dr. Abha Wadhwa
in May 2017. Additional affidavit of respondent No.2 was lastly filed in
August 2017. Till that date i.e. in this intervening period of 3 months no
action has been taken against Dr. Abha Wadhwa; if an incorrect certificate
had been issued by the said Associate Professor, nothing prevented the
college from taking appropriate action; till the date of filing of the additional
affidavit, they were only contemplating action. If this attendance of 18 days
which as per Dr. Abha Wadhwa was an attendance of each of the petitioners
for a course being taught by her (i.e. E-filing of Returns) and is taken into
account, the case of the petitioners would qualify for a complete attendance
in terms of clause (a) of Ordinance VII (2). There is no reason as to why this
certificate of Dr. Abha Wadhwa should be disbelieved; the attendance record
has been submitted by Dr. Abha Wadhwa; it cannot be at the whim and
fancy of the respondent college to reject such a certificate when admittedly
Dr. Abha Wadhwa is a Associate Professor of the college of respondent
No.2. Even presuming that a fake certificate has been issued by her, why no
action has been taken against her in this intervening period of 3 months for
which there being no explanation, this Court is not inclined to accept this
stand of the respondent.
27 The submission of the petitioners that the stand of the respondent is
being adopted harshly against the petitioners for the reason that they have
approached the Court is also a submission which cannot be ignored at this
stage. This Court also notes that the petitioners are willing to submit
respective affidavits of each of them undertaking to make good the shortage
of their attendance in the last semester by attending all classes in the ensuing
semesters. If the 18 classes certified by Dr. Abha Wadhwa are taken into
account, the petitioners fully qualify for promotion to the next semester as
also for their right to appear in the supplementary examination for the 4th
semester which will now be held along with the exams of the 6th semester. In
the alternate, even if these 18 classes are not taken into account, the second
proviso of Ordinance VII (2) gives a discretion to allow such students to be
promoted to the next semester on their undertaking to make up the
deficiency in the succeeding academic year. This discretion has to be
exercised by the Principal fairly and justly and for no other reason. The
discipline of an Institute no doubt has to be maintained but noting the
circumstances of the case this Court deems it fit to allow the prayer of the
petitioners.
28 The judgment relied upon by the learned counsel for the respondent
are distinct on their facts in Vandana Kandari (supra) Ordinance VII of the
University of Delhi was the subject matter of discussion. A Law student who
had not adhered to the attendance pattern of Ordinance VII and had not
followed the norms and standards laid down by the Bar Council of India was
not considered sympathetically; facts of that case are distinct. The judgment
of Neeraj Bahl (supra) is also distinct on its own facts. The shortage of
attendance was not condoned for the reason that there was no explanation by
the students on any count. In the instant case the petitioners have been able
to show that they had attended 18 classes of Dr. Abha Wadhwa which was
not taken into account; the fact that Dr. Abha Wadhwa was teaching a course
which has been opted for by the petitioners (as his evident and admitted by
the respondent) Associate Professor of respondent No.2 having certified this
position, the said judgment would not apply to the facts of the instant case.
The third judgment relied upon by the learned counsel for the respondent in
Heena Bahal (supra) is also distinct on its own facts. That judgment was
delivered prior to the amendment in Ordinance VII(2). In the unamended
Ordinance VII (2) the second proviso which is the discretion of the Principal
of the College to allow a student to appear in an examination was not
prevalent; this has been added only now. In fact in none of the judgments
relied upon by the learned counsel for the respondent this amended proviso
was present; this amendment come into force with effect from 28.05.2015.
Learned counsel for the respondent has not placed on record any judgment
which has examined or interpreted the second proviso of Ordinance VII.
29 This Court is of the view that the case of the petitioners, in the light of
its facts, has to be considered sympathetically by the respondent. If the 18
classes of Dr. Abha Wadhwa are added, respondent No.2 would have no
quarrel with the petitioners qua a shortage of attendance. The case of the
petitioners must accordingly succeed. They are permitted to be promoted to
the next semester on their giving an undertaking on affidavit to respondent
No.2 college that they will make good the shortfall of the attendance in the
last semester. This undertaking/affidavit shall be adhered to by them failing
which the Principal of the college will have discretion to take appropriate
action against the said students. This affidavit shall be filed before
respondent No.2 college within a period of 1 week from today. Respondent
No.2 will permit the petitioners to appear in the supplementary examination
of 4th semester which will be held along with 6th semester. This Court had
given certain interim directions qua the status of petitioners no. 4 and 7.
Those orders stand confirmed.
30 Petition allowed and disposed of in the above terms.
INDERMEET KAUR, J
AUGUST 25, 2017
A
