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Azra Seema Iyengar Vs. J.P.S. Oberoi and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberC.W. No. 416 of 1978
Judge
Reported inAIR1979Delhi101
ActsConstitution of India - Articles 2(W) and 226; ;Delhi University Act, 1922 - Sections 31
AppellantAzra Seema Iyengar
RespondentJ.P.S. Oberoi and anr.
Appellant Advocate Sanjeev Aggarwal, Adv
Respondent Advocate V.P. Chaudhary, Adv.
Cases ReferredPatna College v. Kalyan Srinivas Raman
Excerpt:
.....of doubt that the requirement of minimum attendance has to be satisfied separately in case of tutorials, seminars and practicals. it is interesting to notice that a similar contention did not prevail in the supreme court in the case of principal, patna college v. are prescribed, the requirement of 75% attendance had to be satisfied in reference to each me of them and where either tutorials or practicals are prescribed, the requirement had to be satisfied with reference to either, whichever may have been prescribed in a given subject. moreover, in the hand book of information for the year 1977-78 issued by the department of sociology, it was clearly brought out on page 8 that 'students are required to attend at least 75% of the seminars held'.secondly, it was urged that the..........of shortage of attendance.' the vice-chancellor desired that the pro-vice-chancellor and the head, of department of sociology may 'discuss the matter and give their 'observations' and the matter be subsequently placed for 'his consideration. it appears from a note of april 17, 1978, by the controller of examination that 'the head of the dep't. of sociology explained that that department had not given the benefit of medical certificates submitted by the candidates to them since the department was not satisfied about the, genuineness of the ailments mentioned therein.' he explained, the note proceeds 'that, in the case of miss azra seema iyengar (petitioner) even if she is given the benefit of the medical certificate, she would still be short of the requisite attendance'. it was.....
Judgment:
ORDER

1. This petition under Article 226 of the Constitution of India by a student of V. A. (Previous) of the University of Delhi, in the Department of Sociology, is directed against orders of the Head of the Department of Sociology detaining the petitioner on the ground that on, account of shortfall in attendance for the full-time regular course of study, she was not eligible- to appear for the M. A. (Previous) Examination in Sociology in April, 1978.

2. The facts and circumstances leading to the Petition may be briefly stated. The petitioner has been a student of M. A. (Previous) In the Department of Sociology of the University of Delhi for a two-year course. The examination at the end of the first academic year of the course was scheduled to commence on April 22, 1978. On Jan. 17, 1978, a notice was put up on the notice board requiring the petitioner and a number of other 'students to meet the members of the Committee on Jan. 20, 1978, in connection with their 'tutorial attendance'. The petitioner, however, arrived late for the meeting, but subsequent to the meeting met two of the members of the Committee but allegedly had no Explanationn for irregular attendance. On March 27, 1978, a number of students including the petitioner were required to meet the Head of the Department of Sociology, respondent No. 1. and Dr. Veena Das of the Department of Sociology, on March 30, 1979, in connection with their 'tutorial and seminar attendance'. According to the Head of the Department, the petitioner met the Head of the Department and Dr. Veena Das on the aforesaid date and explained the shortage in attendance of tutorials and seminars on the ground of her illness and, when told that there was a possibility of her being detained, she offered to produce a medical certificate. According to the Head of the Department, she wanted to know 'the exact period during which she was absent', but this information was not disclosed to her 'lest she might submit a tailored certificate'. She was, however assured that the details of her attendance in the seminars would be communicated to her in writing. According to the Head of the Department, she was also told that any medical certificate submitted by her would be 'judged on its merits'. In course of her communication of March 30, 1978, Dr. Veena Das informed the Head of the Department, that the Petitioner was among the M.A. (previous) students of Sociology who fell short of the required attendance at seminars by more than 10% and, thereforee, could not be allowed to carry the deficit to the next year. According to this letter, out of a total of 46 seminars, she had attended only 24 as against the minimum requirement of 34. This letter purported to give to the Head of the Department the outcome of the deliberations of the meeting of the Tutorial Committee arid contained its recommendations with regard to the detention of students, who were running short of seminars or tutorials. By her communication of March 31, 1978, the petitioner informed the Head of the Department that she had not foreseen shortage in seminar attendance and had not submitted the Medical certificate earlier which was enclosed with the communication. The Head of the Department was requested to 'accept the certificate', and consider her case sympathetically. The enclosed certificate by Dr. Mazumdar, a Consultant Physician, made out that she had been 'examined 'frequently' in the months of Sept. and Oct., 1977 and was suffering from 'depression, anxiety, sleep disturbance and frequent attacks of migraine' and had been under treatment. Subsequent to this, the petitioner was informed by the Department of Sociology by its letter of March 31, 1978, that owing to short-fall in seminar attendance, the Committee -of Tutorials, which met on March 27, 1978, had recommended her detention in M.A. (Previous) and that she will not, thereforee, be eligible to sit for the M.A. (Previous) Examination scheduled to be held in April, 1978. In this letter, the extent of shortage was for the first time disclosed to the petitioner consistently with the stand taken by the Head of the Department and referred to above, explaining the reason why the earlier disclosure might have enabled the petitioner to submit a tailored medical certificate to explain away the shortage. The Committee of Tutorials met again on April 5, 1978, and in accordance with the minutes of the meeting, the cases of various students, who were running short of attendance in seminars or tutorials, and their representations, including the petitioner, were considered and in the case of the petitioner the Committee reiterated its earlier decision taken on March 27, 1978, that she would not be eligible and could appear for the examination next year. By his communication of April 6/7, 1978 the Head of the Department of Sociology informed the petitioner that the representation of the petitioner had been considered by the Committee in the light of the University rules and regulations and the requirements: for attendance laid down in Ordinance Vii 'in the Hand book of the Department of Sociology' and reiterated its earlier decision already conveyed to her vide his letter of March 31, 1978, that she was not eligible to appear for want of compliance 'with the minimum requirements of attendance for the full-time regular course of study.' The petitioner and certain other students similarly situated as the petitioner made a representation to the Vice-Chancellor invoking the benefit of concession in attendance under Clause 2 9 (a) of Ordinance Vii on medical grounds complained that the benefit of this clause had not been given them by the Department of Sociology. It however, appears that the Dean, 3t4dent Welfare, Of the University expressed the view in his note of March 10, 1978, that it the medical certificates of these students, including. the petitioner, were accepted 'they appear to fulfilll the attendance requirements of the Ordinance Vii (2) (9) (a) but still they are being detained on account of shortage of attendance.' The Vice-Chancellor desired that the Pro-Vice-Chancellor and the Head, of Department of Sociology may 'discuss the matter and give their 'observations' and the matter be subsequently placed for 'his consideration. It appears from a note of April 17, 1978, by the Controller of Examination that 'the Head of the Dep't. of Sociology explained that that Department had not given the benefit of Medical Certificates submitted by the candidates to them since the Department was not satisfied about the, genuineness of the ailments mentioned therein.' He explained, the note proceeds 'that, in the case of Miss Azra Seema Iyengar (petitioner) even if she is given the benefit of the Medical Certificate, she would still be short of the requisite attendance'. It was stated in the note that the Pro-Vice-Chancellor was satisfied with the Explanationn and 'it was agreed that the representations made by the students for relaxation in attendance requirements were not fit to be taken to the Standing Committee.' The Vice Chancellor concurred with the' proposal and in consequence the representation was turned down and the petitioner was informed accordingly by a communication of April 18, 1978. The present petition was filed on April 19, 1978, and while issuing Rule on April 20, 1978, the admitting Bench allowed the petitioner to appear for the examination subject to the decision of the petition and on the condition that the result would be held over till then. The petitioner has since availed of the opportunity, to appear for the examination and her result has stood held over. Meanwhile, by way of abundant caution, the petitioner has been attending M. A. (Previous) classes.

3. The petitioner seeks to avoid the orders detaining her, even though admitting that she was short of attendance in seminars, on the grounds that the decision, as indeed the proceedings leading to it, were vitiated on account of non-compliance with the mandatory requirement of the principle of audi alteram partem in that full disclosure as to the extent of shortage was not made at the material time with the result that the petitioner was prevented from making any effective representation both before and after the decision and was denied an opportunity of a personal hearing before the authority which made the orders. The petitioner joined issue on the extent of shortage, the true method of computation to determine the minimum requirement of attendance and urged that the petitioner had not been given the, benefit of certain provisions of Ordinance Vii of the Ordinance of the University, and the relevant provisions set out in the Handbook of Information of the Department of Sociology, and, thereforee, contended that the decisions were contrary to these statutory provisions and we reliable to be quashed. A strong plea was also made on behalf of the petitioner by her counsel, Shri Aggarwal, with considerable emphasis that the University should not have been rigid with regard to the attendance standards particularly while dealing with post graduate students of the University, who were sufficiently mature and responsible, and that such technical requirements should not be allowed to prevent a student, who was confident of appearing at an examination successfully, from such an attempt.

4. The Impugned orders, however, were sought to be defended with considerable vehemence by Shri Chaudhary on behalf of the University on the ground that the principle of audi alteram partem has no application to the domestic tribunals of the University while dealing with its students and that, in any event, whatever be the standard of an opportunity of being heard in such cases, the petitioner had been given sufficient opportunity of not only making a representation both before and after the decision but the representations were duly considered by the appropriate authorities, and that in dealing with the case of the petitioner, the University had acted in a just and fair manner. He contended that there has been no noncompliance of any of the Ordinances which were applicable to the petitioner and disputed the claim as to the extent of shortage or the alternative method of computation or of any permissiveness in allowing students to appear even at the Post graduate level if they had not undergone the full course of studies, particularly the seminars. He made a strong plea that the Universities should be allowed to administer their internal affairs so long as they acted in a just and reasonable manner and urged that any Judicial interference in a case of this kind would be wholly unjustified and may perhaps render the requirement -with regard to attendance of tutorials and seminars almost nugatory.

5. Whether the University, when called upon to consider if a student was eligible to appear at an examination, having regard to the minimum attendance requirements in terms of the relevant Ordinances, rules and regulations, is within the principle of audi alteram partem and, if so; the extent of the application of such principle and whether the requirements of the principle were satisfied in the present case, are questions that must be first determined. There has been considerable judicial controversy in England since the turn of the present century, and in India during the last over two decades as to the content and scope of the principle, the extent of its application, the circumstances in which the requirements of the principle would be implied even though a statute may be silent with regard to the duty to hear, the circumstances in which the right of representation may be said to have been expressly or by necessary intendment excluded by the legislature and as to the scope of the hearing and its various situational modifications, having regard to the nature of the power, the authority exercising the power, the right or interest affected by the exercise of power and the other compelling circumstances. By a long course of English decisions from the earlier decision in the case of Board of Education v. Rice, 1911 Ac 179 to the latest decision in the Case of Durayappah v. Fernando, (1967) 2 Ac 337 and in India from the decisions in the landmark cases such as Dr. (Miss) Binapani Dei, : (1967)IILLJ266SC , A. K. Kraipak v. Union of India, : [1970]1SCR457 to the more recent decisions in the cases of Maneka Gandhi, : [1978]2SCR621 and Mohinder Singh Gill, : [1978]2SCR272 the law can be said to be fairly settled that as a general rule, every person or authority empowered to decide a matter, which may affect rights, would be under a duty to hear the person who may e affected by such a decision and such a duty would be implied even if the statute may be silent with regard to the right of representation. It is equally well settled that there are well known exceptions to the rule and one of these is that the exclusion of the principle may also be judicially inferred if there is an express provision to that effect in the legislation or such an exclusion could be justified on the basis of necessary intendment. It is, however, equally settled that the principles of natural justice are not embodied rules and there is no rigid measure as to the extent of the hearing and whether the principle could be satisfied only with a full and complete enquiry or a mere right of representation would vary with varying situations, bodies and circumstances. With the growing volume of case-law on the subject, one wonders at times whether time has not come when attention is devoted to the desirability of codifying the principle either generally or in every statute which authorises the exercise of power which may affect rights, so that there is an element of certainty with regard to the principle and the extent of its application obviating dependence on the vagaries of judicial mind. Be that as it may, there can be no doubt that the purpose of the pr4nciple being that the matter is dealt with by the authorities in a Just and fair manner and to prevent the miscarriage of justice, the question one would have to ask in each case is whether the person affected had a reasonable opportunity of being heard even though there may not have been a full and complete enquiry, unless such an enquiry is envisaged by the statute itself or the application of the principle is excluded, in which cases the statutory provisions would represent the criterion as well as the measure of the applicability of the principle.

6. While it is, thereforee, not possible to accept the contention that the University was outside the principle merely because the Universities and the educational institutions are in loco parentis to their alumni, the requirement of the Principle could not be stretched in cases of eligibility of students to appear at examinations beyond a reasonable limit and the requirement 'of the principle would be satisfied if the student knew why he was being held to be ineligible and had a fair opportunity to explain the contrary point of view. Applying this test to the present case, it could not be said that the petitioner was denied a reasonable opportunity of being hear The ground for ineligibility is the short age in attendance at the seminars, a fact which was not only within the knowledge of the student at all material times -but was disclosed to the student both on January 20, 1978, when the petitioner met two members of the Committee and on March 30, 1978, when the petitioner met the Head of the Department and Dr. Veena Das of the Department of Sociology. The petitioner was, thereforee, fully aware that on account of shortage of attendance at the seminars, the petitioner was being as ineligible for appearing at the examination. Now, this is true that according to the Head of the Department, the petitioner wanted to know on March 30, 1978, the second of the two occasions, the precise extent of short age, but this information was not disclosed to her 'lest she might submit a tailored certificate.' Such an attitude is no doubt unjustified not only because it may amount to a denial of complete disclosure with regard to the shortage, but also because such an attitude of mistrust of the alumni may perhaps not be conducive to the development of a healthy relationship between the alma mater and the alumni. Ordinarily, when complete disclosure of relevant information to withheld, courts have often frowned at it in the context of the requirement of the principle of audi alteram partem, but it does not appear to have any significance in this case be cause the petitioner was supposed to know as to how many seminars were held and out of how many of these she did not attend. In any event, subsequently after the Petitioner had made a representation, the extent of shortage was also communicated to the petitioner and the representation of the petitioner was considered not Only by the Head of the Department, but later even by the Vice-Chancellor. It is significant that the petitioner did not dispute the extent of shortage at any stage and even at the hearing it was not disputed that the petitioner was short of attendance at seminars though the precise extent of it was disputed on the basis of a different method of computation. If that be so, the only question on which the petitioner had to be heard was if there was a good reason for the shortage and if, in spite of such shortage, the petitioner should or should not be allowed to appear either because of any enabling rule or otherwise. It is not disputed that the petitioner made a representation invoking ill health as the reason for the absence at some of the seminars and sought to reinforce the contention with a medical certificate. It is also not disputed that the representation and the medical certificate were duly considered by the University and the representation was rejected not only because the medical certificate was not said to be genuine but also because it was felt that even if the period during which the petitioner was said to have been suffering from the state of depression was excluded, the shortage in attendance would still be beyond the minimum required and the petitioner would nevertheless be ineligible to appear. It is true that while the petitioner personally appeared before the members of the Committees more than once, there was-no personal hearing before the Vice-Chancellor, but none was sought nor is there any provision that the petitioner must be given a personal hearing at all the stages or levels at which the matter is considered. Having regard to all the circumstances, it could not be said that the petitioner was in any manner denied a reasonable opportunity of being heard nor can it be said that in dealing with the case of the petitioner, the authorities did not act in a just and fair manner.

7. Whether in declaring the petitioner ineligible to appear at the examination, the University violated any provision of any of its Ordinances, rules and regulations so as to vitiate the decision, is the next question that falls for determination. In the first instance, it was urged that on a true construction of the relevant provision with regard to attendance, the University authorities ought to have come to the conclusion that the 75% attendance had to be considered collectively by taking the tutorials, preceptorials, seminars and practicals together and that the University had applied the aforesaid test to tutorials, preceptorials, seminars and practicals separately, and that if all these had been taken into account together, the petitioner could not be said to have been short of requisite attendance. This contention is wholly devoid of any force. It Is true that the cyclostyled note with regard to attendance requirement for the various post-graduate courses prescribes for the Faculty of Social Sciences 75% attendance in '(tutorials/preceptorials/seminars/practicals).' This is based on Resolution No. 357 of the 'Academic Council which was enclosed as Annexure Iii of the affidavit of the Registrar of the University. This is how the requirement is laid down in the Resolution:-

'(b) Faculty of Social Sciences, Compulsory attendance of not less than 75% at tutorials, 75% at seminars and 75% at practicals. (as in Human Geography) for each student registered for a regular Post-graduate Course in each subject under the Faculty of Social Sciences. The language of the Resolution leaves no manner of doubt that the requirement of minimum attendance has to be satisfied separately in case of tutorials, seminars and practicals. It is interesting to notice that a similar contention did not prevail in the Supreme Court in the case of Principal, Patna College v. Kalyan Srinivas Raman, : [1966]1SCR974 where the requirement was worked out in the manner indicated In the cyclostyled note and it was held that where tutorials and practicals, etc. are prescribed, the requirement of 75% attendance had to be satisfied in reference to each me of them and where either tutorials or practicals are prescribed, the requirement had to be satisfied with reference to either, whichever may have been prescribed in a given subject. Moreover, in the Hand book of Information for the year 1977-78 issued by the Department of Sociology, it was clearly brought out on page 8 that 'students are required to attend at least 75% of the seminars held'. Secondly, it was urged that the petitioner was entitled to the benefit of proviso to Clause 2 (3) of Ordinance Vii and that this benefit was denied to the petitioner. Clause 2 (3) of the Ordinance Vii provides that with regard to certain Degrees, Diplomas, Certificates mentioned in the sub-clause, the required condition for eligibility shall not be deemed to have been satisfied unless the candidate had attended not less than three-fourths of the 'lectures of practicals or tutorials/preceptorials The proviso to it empowers the Principal of a College 'in the case of B.Com. and Director, Delhi School of Economics in the case of M. A. in Economics/Statistics' to permit a student to proceed to the next higher class if he falls short of the required percentage by not more than 10% of the 'lectures or practicals or tutorials/preceptorials'. Unfortunately sub-clause (3) of Clause 2 would have no application to the petitioner because this does not apply to the Department of Sociology. Similarly, the proviso to it is also confined so far as M.A. classes are concerned to M.A. in Economics/ Statistics and the benefit of the proviso was, thereforee, not available to the petitioner. Mr. Chaudhary, learned counsel for the University, pointed out and rightly in my view, that the students of M. A. Sociology were dealt with separately and the provisions with regard to them, which are reproduced in the Handbook, leave no manner of doubt that the attendance at seminars - was compulsory. It was also pointed out by him, and is borne out on a reference to the Handbook at page 8, that the Head of the Department 'may permit a student falling short of the required percentage by not more than 10% of the tutorials and written assignment during the year' to proceed to the next higher class. But there is no such proviso with regard to attendance at seminars. Thirdly, it was urged that the petitioner was illegally denied the benefit of cls. 2 (9) (a) (ii) and 2 (9) (b) of Ordinance Vii of the Ordinances of the University. While Clause 2 (9) (a) (ii) empowers the 'Principal of a College' on the basis of a medical certificate to consider exceptionally hard cases of students who had fallen seriously ill or had met with an accident during the year with a view to determine if the lectures, etc. delivered during, the said period could be excluded for purposes of calculation of attendance, C1. 2 (9) (b) enjoins 'the College' to notify on the Notice Board the final attendance position of each of its students within three days of the dispersal of the classes in the last Session of the academic year. Unfortunately for the petitioner, none of these provisions applied to the petitioner or to the Department of Sociology -because the Department of Sociology was not a College or an institution affiliated to the University but a Department of the University itself. That apart, the benefit of Clause 2 (9) (a) (ii) or 2 (9) (b) should be legitimately claimed by the petitioner if the petitioner was covered by Clause 2. Neither Clause 2 nor any of its sub-clauses refer to M. A. Sociology as the requirement with regard to attendance of tutorials and seminars in this subject was dealt with separately, as pointed out above. In any event, the question whether the petitioner could be given the benefit of exclusion of the seminars held during the Period of her sickness should be, given or not had been duly considered by the University and it was found that even if the seminars held during the period were to be excluded, the petitioner would still not be able to satisfy the Minimum requirement of attendance. This contention must, thereforee, also fail.

8. It was next urged that - the requirement of eligibility with reference to the attendance at tutorials, seminars etc. for Post-graduate students was unreasonable and that if a student at that level was prepared to risk an attempt to appear at the examination even though he or she may not have attended the requisite number of tutorials or seminars, the University should not have stood in the way because the Students at that level were sufficiently mature. to look after their own interest and could complete their requisite course of study even on their own without the assistance of the University or attendance at the tutorials or participation in the seminars. While there may be some force in the contention that where a post-graduate -student had fallen short of the requisite attendance in tutorials or seminars, but was nevertheless confident of succeeding, if allowed-to appear at the examination, the University should have taken a flexible attitude, there is quite a lot to be said on the need to ensure that students, even at that level, must also be compelled to attend the minimum required tutorials and seminars, if not the lectures. In any event, that is more a matter of policy for the University and a .facet of the system of education for the educationists to consider, , which would, unfortunately for the petitioner, be beyond the scope of Judicial review in the Present proceedings.

9. Lastly, Mr. Aggarwal, learned counsel for the petitioner, who faithfully reflected the anxiety of a young student faced with the prospect of losing an academic year, urged that the petitioner having since appeared at the examination under the auspices of the direction made by this Court and being hopeful of having succeeded at the examination, there was no reason why the University authorities could not be required to take a sympathetic required to take a sympathetic view of the matter particularly if the petitioner has been able to secure the requisite marks at the examination. In this context, learned counsel invited attention to the wide discretionary powers enjoyed by the Vice-Chancellor in the matter of allowing students to appear at an examination in spite of the shortage in attendance. Shri Chaudhary, however, pointed out that such a course was not .Possible in view of the fact that the petitioner, having failed to attend the tutorials and seminars during, the second year term , not be in a position to make up the deficiency of the first term. In view, however, of the limited Scope Of the present proceedings it is not possible for this Court to make any direction , reasonable the suggestion of the petitioner may other wise appear to be. It is entirely for the University authorities to consider the matter. Having regard, however, to the proverbial interest that the Universities have in the welfare of the student community, I have no doubt in my mind that if the Petitioner makes a fresh representation to the University authorities, the matter would be dispassionately considered by the authorities keeping in view the welfare of the student, as indeed, all other relevant considerations.

10. In the circumstances it is not possible to give any relief to the petitioner and the Petition must, thereforee, fail. There would, however, be no costs' .

11. Writ petition dismissed.


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