Skip to content


Kumkum Khanna and ors. Vs. the Mother Acquinas and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 398, 411, 465, 466, 467, 468, 469, 470, 478 and 568 of 1975
Judge
Reported inAIR1976Delhi35; ILR1976Delhi31
ActsConstitution of India - Article 226; Delhi University Act, 1922 - Sections 30
AppellantKumkum Khanna and ors.
RespondentThe Mother Acquinas and anr.
Advocates: M.C. Bhandare,; G.L. Sanghvi,; P.R. Mridual,;
Cases ReferredEdition). In The Board of High School and Intermediate Education v. Chittra Srivastava
Excerpt:
(i) constitution of india - article 226--delhi university act (1922) sections 30 & 31--ordinance vii--writ petition--maintainability of--whether a principal of an affiliated college amenable to the writ jurisdiction.; that when a private college is admitted to the privileges of the university, it ceases to be an entirely private institution. it becomes the subject of statutory provisions and is regulated by it. the colleges, whether private or govt. or maintained by the university are, thereforee, parts of the university. the ordinances of the university are 'law' as they are enacted in exercise of the power conferred by sections 30 and 31 of the delhi university act. acting under ordinance vii, thereforee, the principal is acting in a public capacity. even if the office of the.....v.s. deshpande (1) is a writ petition maintainable against the principal of a private college recognised by the university of delhi in accordance with the delhi university act, 1922 and the statutes and ordinances framed there under is the principal of such a college bound to grant an opportunity to a student to show cause why she should not be prevented from appearing at her examination on the ground of shortage of the required attendance before debarring her from such examination on such a ground in exercising a statutory discretion to exclude periods of serious illness etc. in calculating the attendance of a student, is the principal justified in being guided by her own administrative policy these questions arise in this and the connected writ petitions (civil writs 411, 465 to 470,.....
Judgment:

V.S. Deshpande

(1) Is a writ petition maintainable against the Principal of a private college recognised by the University of Delhi in accordance with the Delhi University Act, 1922 and the Statutes and Ordinances framed there under Is the Principal of such a college bound to grant an opportunity to a student to show cause why she should not be prevented from appearing at her examination on the ground of shortage of the required attendance before debarring her from such examination on such a ground In exercising a statutory discretion to exclude periods of serious illness etc. in calculating the attendance of a student, is the Principal justified in being guided by her own administrative policy These questions arise in this and the connected writ petitions (Civil Writs 411, 465 to 470, 478 and 568 of 1975) in the following context.

(2) The University of Delhi is established as a teaching and affiliating University by the Delhi University Act, 1922. Section 2(a) of the Act defines a 'college' to mean an institution maintained or admitted to its privileges by the University. Jesus & Mary College is a private college admitted to the privileges of the University. Section 2(d) of the Act defines ''Principal' to mean the Head of a College. Under section 4(2)(a) the University has the power to hold examinations and to grant degrees to persons who have pursued a course of study in the University or in any college. Under sections 30 and 31 of the Act, the Executive Council of the University may make Ordinances subject to the provisions of the Act and the Statutes to provide for, inter alia, conduct of examination and maintenance of discipline among students. Ordinance VII-Conditions for Admission to Examinations-provides that :--

CLAUSE1(1) :-'Subject as here in after provided, no member of the University shall be admitted to any examination for a degree of the University other than a post-graduate degree unless he has pursued a regular course of study as hereinafter prescribed for not less than three academic years.'

CLAUSE2(1) :-'No person shall be deemed to have pursued a regular course of study unless the Principal of his College...............is satisfied that the required conditions in respect of his instruction have been fulfillled.'

CLAUSE2(2) :-'The required conditions shall not be deemed to have been satisfied...............unless the candidate has attended not less than two-thirds of lectures, practicals and preceptorial/tutorials separately............... in each academic years.'

There are two exceptions to the above rule which are relevant here. Clause 2(9)(a) provides that in calculating the total number of,lectures delivered in the college for a particular course of study in an academic year, the number of lectures in each subject delivered during the period when a student was absent for the purpose of participating in extra-curricular activities at the instance of his college shall not be taken into account. Clause 2(9) (e) provides that 'the Principal of a College may consider exceptionally hard cases of students who had fallen seriously ill or had met with an accident during the year disabling them from attending classes for a certain period, with a view to determine whether the lectures etc. delivered during the said period or a part thereof could be excluded for purposes of calculation of attendance of the year and decide each case on its own merits.' Clause 3 of Appendix Ii to Ordinance Vii provides that a student who has attended not less than 40 per cent of the lectures and tutorials separately in an academic year may be allowed to appear at the annual examination of the first or the second years of the graduate course at the discretion of the Principal but he shall be required to make up the deficiency in the lectures and tutorials during the second and/or the third years. A candidate who has put in attendance of not less than 40 per cent of the lectures and tutorials separately in the third year shall be allowed to appear at the third year examination if by combining the attendance of the third year with the attendance of first and second years, he makes up two-thirds of attendance in all the subjects taken together separately in lectures and tutorials held during the three years. Urdinance X-A provides that on a motion made by or with the authority of the Vice-Chancellor, the Academic Council may, in exceptional cases, grant exemption to candidates from the operation of any of the Ordinances governing, inter alia, attendance at lectures of the examination of the candidates.

(3) Thirty students of the Jesus & Mary College were prevented by the Principal from appearing at their examinations at the end of the academic year 1974-75 on the ground of shortage of attendance.

(4) They have filed this and the connected writ petitions against their Principal and the Delhi University for the setting aside of the detention orders alleging that they were not given the benefit of the provisions of clauses 2(9) (a) and 2(9) (e) of Ordinance VII. They also contend that before the Principal decided to detain them, an opportunity should have been given to them to show that they could claim the benefit of these provisions with the result that they would not be found to be short in attendance. They contend that such an opportunity was not given to them and this has vitiated the orders of detention.

(5) They also point out that the Principal has wrongly adopted an administrative practice of not considering medical certificates regarding illness of the students unless these medical certificates arc submitted by the students contemporaneously with' the illness along with application for leave. They contend that it is the illness and not the medical certificates which are only evidentiary that is the reason for which the benefit of clause 2(9) (e) of Ordinance Vii is to be given. They go further and say that proof of illness even without medical certificate should be considered by the Principal before deciding whether the benefit of clause 2(9) (e) is to be given or not. The refusal of the Principal to exercise the discretion under clause 2 (9) (e) was vitiated by these irrelevant considerations being taken into account. The student petitioners prayed that the Principal be directed to permit them to eppear for their examinations.

(6) During the pendency of the writ petitions, the Court ordered that the petitioners may be allowed to appear for their examinations provided that the publication of their results would be subject to the decision of the Court in respect of each petition. The writ petitions are opposed by the Principal as also by the Delhi University. The Principal has replied to the petitioners' contentiona as follows :

(1) The procedure for giving the students the benefit of participation in extra-curricular activities under clause 2(9) (a) was that the teacher in-charge was to report the absence of the student due to such participation to the lecturers concerned. Thereupon a note was made in the register by the lecturers that the student was granted leave or was considered on duty.

(2) The Principal denied that she was bound to give a hearing to the students before passing the detention orders. The shortage of attendance of the students was brought to their notice from time to time and particularly at the beginning of the third year. As the petitioners knew and were expected to know of the lectures and tutorials attended by them, the question of giving them a hearing by the Principal before declaring them short of attendance did not arise.

(3) The: administrative practice adopted by the Principal that medical certificates should be submitted contemporaneously with the illness is sound. If the student is diligent, the production of such a medical certificate immediately after the illness should be always possible. Certificates produced late would not inspire confidence. The Principal, thereforee, decided not to accept certificates which were produced after the end of the academic session.

(4) The Principal has actually given a hearing to those students who came to her to explain the causes of the shortage of their attendance. The decision is ultimately of the Principal and it has been given on good grounds and cannot be reviewed by his Court.

(5) No writ petition under Article 226 of the Constitution can be maintained against the Principal of a private college as, such a Principal is not a public authority.

(7) Let us now consider Serialtim the three questions which arise for decision as stated at the beginning of the judgment. ' The basic difference between a suit and a writ petition is that the right of the plaintiff is decided in the former while a relief based on the established right of the petitioner is given in the latter. A suit lies against a private person the relief against whom is obtained under the rules of private law. Under Article 226 of the Constitution, a writ petition, lies against 'any person or authority, including in appropriate cases any Government'. The meaning of the word 'person' is coloured by the context. Firstly, it appears in the Constitution which is the basis of public law. Secondly, it is associated with the words 'authority' and 'Government'. Thirdly, proof of private rights such as those based on contract or tort cannot be given by way of a writ petition which is confined to rights arising out of the public law and the public law remedies specified in Articles 32 and 226.'

(8) The remedy 'by way of mandamus is available against 'any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty' ' [1, Halsbury's Laws of England 111, paragraph 89, 4th Edition (Administrative Laws) corresponding to 11 H.L.E. 84, paragraph 159, 3rd Edition, which has been frequently referred to with,approval by the Supreme Court].

(9) In Praga Tools Corporation v. C. V. Imanual, : (1969)IILLJ479SC the respondents had filed a v/rit petition against the appellant claiming a v/rit of or order in the nature of mandamus against the appellant. The High Court held that the writ petition was not maintainable and the Supreme Court upheld the decision in paragraph 6 of the report in the following words :---

'THE writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act............... it is well understood that a mandamus lies to secure the 'performance of a public or statutory duty'.

The Court then stated the law in the words from Halsbury quoted above and observed :-

'IT is, however, not necessary that the person or the authority on -.whom the statutory duty is imposed need be a public officed or on official body . A mandamus can issue , for instance, to an offical of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfillling public responsibilities.'

(10) On the one hand, the use of the word 'person' in Halsbury quoted above and 'in Article 226 of the Constitution does not mean a private person in the private capacity. For, a person is subject to mandamus only when he is required to do a public duty appertaining to his office. If the duty is of a public nature and if it appertains to an office, the office would also be of a public nature and its holder would be acting in a public capacity. The context of public law and the association of authority and Government with the word 'person' suggests that a person must be acting in a public capacity as a holder of a public office and in the performance of a public duty before he can become the subset of a public law remedy like mandamus.' Certiorari is also issued in relation to persons, bodies or tribunals having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially (R. v. Electricity Commissioners, 1924 K. B. 171 per Alkin L. J. and H. M. Seervai, Constitutional Law of India, page 586, para 16.20(z). Here also a person or a body of persons would be exercising a power of public nature before it becomes subject to certiorari. As observed by Professor S. A. de Smith, commenting on the classic statement of law in R. v. Electricity Commissioners, 'for this purpose, legal authority generally means statutory authority. Neither certiorari nor prohibition will issue to a private arbitral body which derives its jurisdiction from contract, or to a voluntary association or domestic tribunal which derives its jurisdiction solely from the consent of its members'. Professor Smith then goes on to say :-

'IT would seem to follow that certiorari will issue to other nonetatutory bodies (e.g. those established by royal charter) discharging comparable functions of a public nature. The proceedings of university disciplinary authorities not resting on a statutory basis are a marginal case, for their responsibilities are not so manifestly of a public nature, but in one recent case (R. v. Aston University Senate, ex parte Roffey, 1969 Q.B. 538(4) it was assumed that they were reviewable by certiorari.'

(JUDICIALReview of Administrative Action, 3rd Edition, page 341),(4)

(11) On the other hand, the use of the word 'person' in the above statements of law in relation to mandamus and certiorari would show that the person or authority against whom these remedies are given need not be invariably created by a statute. Only a legal person can be created by a statute. But these writs can be issued against a natural person provided that he is exercising a public or a statutory power or domg a public or a statutory duty. The following observation of professor S.A. de Smith makes this clear :-

'TO be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter. common law, custom or even contract............... It is thought that i.f a domestic tribunal wrongfully declines jurisdiction in a particular case, mandamus will issue to it provided that its jurisdiction is regulated by statute, but not if its jurisdiction is based merely on contractual or other non-statutory foundations.'

(JUDICIALReview of Administrative Action, 3rd Edition, page 492)

(12) It would appear, thereforee, that 'a person, though not created by a statute, would be exercising a statutory power or discharging a statutory duty if such a power is conferred or such a duty is imposed by a statute. The action of a person is statutory though the person is not created by a statute'. It is in the light of this legal position that the question whether a writ of mandamus or certiorari would lie against the Principal has to be considered.

(13) 'A private college may be formed and its principal may be appointed without attracting the applicability of public law. But when a college is admitted to the privileges of the University, it ceases to be an entirely private institution. It becomes the subject to statutory provisions and is regulated by it'. The Academic Council is an authority of the University created by a statute. The power now conferred on the Principals of affiliated and constituent colleges by Ordinance Vii was formerly e

(14) In Shri Vidya Ram Misra v. Managing Committee, Shri Jai Narain College, : (1972)ILLJ442SC , the dismissal by the High Court of a writ petition filed by a lecturer against his college was upheld, inter alia, by the following observation in paragraph 13 of the report :- '

'BESIDES, in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, as stated in S. R. Tewari v. District Board, Agra : (1964)ILLJ1SC , might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a statute. The college, or the Managing Committee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand 'will fall under the third exception cannot be accepted. The contention of counsel that this Court has sub-silentio sanctioned the issue of a writ under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh v. A. L. Pande : [1965]2SCR713 , and. thereforee, the fact that the college or the Managing Committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the appellant has no merit as this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court.'

(15) Two points are made in the above observation, namely, (1) the college or the Managing Committee is not a statutory body, and (2) the order terminating the contract of service was not an order of a statutory body acting in breach of mandatory obligation imposed by a statute. There need be no dispute regarding the first observation. As we have stated above, a private college and its Managing Committee can exist outside a statute. They are not created by a statute and in that sense they are not statutory bodies. But if statutory powers and duties are conferred on them, then they will be acting under a statute. But the decision of the Supreme Court in Vidya Ram Misra's case was that the termination of the service of the lecturer Misra was not made in breach of a mandatory obligation imposed by a statute. In this respect, it is to be distinguished from the present case where the only authority or discretion possessed by the Principal is under Ordinance and, thereforee, of a statutory nature. There is no question of it being of a contractual nature. The main thrust of the decision of the Supreme Court in Vidya Ram Misra's case was that the writ petition could not be maintained for the breach of a service contract. It is to be noted that even a suit for specific performance of a service contract could not be maintained. The rights of the petitioners in the present case are not based on contracts but on statutory provisions. In Vidya Ram Misra's case, the college was said to be not a statutory authority. In the present case, the Principal is a statutory authority in the sense that here is a public office recognised and governed by the Delhi University Act, 1922 and Ordinance 7 Confers statutory powers on the holder of that office. The ratio of the decision in Vidya Ram Misra's case is limited by the particular facts of that case which are quite different from the facts of the present case. Private colleges admitted to the privileges of a statutory University were hold to be amenable to the writ jurisdiction of the High Court in the following two recent Full Bench decisions after distinguishing the Supreme Court decision in Vidya Ram Misra's case, (II) namely (i) Vaish College (Society) Sharnli v. Sri Lakshmi Narain, Air 1974 All 1, and (ii) Harijander Singh v. Selection Committee, Kakatiya Medical College, : AIR1975AP35 . thereforee, in these respects, the preseat case is more analogous to Prabhakar Ramakrishna Jodh v. A. L. Pande, : [1965]2SCR713 , in which the termination of the services of a lecturer by his college was held to have been in breech of the College Code which was 'law' being Ordinances framed under the University of Saugar Act. The observation of the Supreme Court in Vidya Ram Misra's case has to be taken as a whole. With respect, it would not exclude the jurisdiction of this Court in the present case in dealing with the power and/or the discretion of the Principal governed by Ordinance VII. 'If the Principal is shown to have acted contrary to the provisions of Ordinance Vii, this Court would have power under Article 226 to deal with the action of the Principal because it would be action of a person holding the public office and acting in public capacity. A public office need not be created by a statute. Even if it is governed and regulated by a statute, it would be regarded as public.

(16) 'A public authority is a body, not necessarily a country council, municipal corporation or other local authority, which has public or statutory duties to perform, and which performs those duties and carries out its transactions for the benefit of the public and not for private profit..................A natural or individual person might, when acting in execution of a public duty, be a public authority....... ....... In general, a public officer may be said to be one who discharges any duty in the discharge of which the public are interested.' (30, Halsbury's Laws of England, 682 and 684, paragraphs 1317 and 1319. 3rd Edition). When a public officer is paid out of a fund provided by a public, he is more clearly regarded as the holder of a public office. But it is the nature of the office and not the fund from which its salary comes which is the more important consideration. Even a director of a private limited company was held by the House of Lords to occupy a public office in McMillan v. Guest, (1942) A.C. 561.

(17) On the first question, thereforee, we hold that the Principal of Jesus & Mary College is a person or authority (i.e., a public authority)within the meaning of Article 226 of the Constitution and the writ petitions are maintainable in respect of the exercise of the statutory power and discretion and the performance of statutory duties by her.

(18) The rule established by Ridge v. Baldwin (1964) A.C. 40, and applied in several decisions by the Supreme Court in India is that an administrative authority exercising a statutory power or performing statutory duties so as to act adversely to the rights and interests of a person must hear such person before acting against him. This rule applies whether the nature of the action is quasijudicial or executive. It is the rights and the nature of the power or duties which would determine whether the administrative authority has to hear a person. If the administrative action is not going to have 'civil consequences' or the administrative authority is to be guided by policy and not objective considerations, then a hearing may not be given (Union of India v. Col. J. N. Sinha, : (1970)IILLJ284SC . Did the petitioners in the present case have a right to appear at the examination or to claim the benefit of clause 2(9) (e) of Ordinance Vii It was contended for the Principal that the petitioners have no right to appear for the examination due to the shortage in their attendance and, thereforee, they have no right to the benefit of clause 2(9) (e) and equally they have no right to the benefit of clause 2(9) (e) under which the Principal has get unfettered discretion to consider exceptional hard cases or not. She cannot be compelled to consider such cases. 'It is true that primarily clause 2 (9) (e) confers a power on the Principal. But firstly the power is to be exercised for the benefit of the students. Secondly, the Principal has also to decide each case on its own merits, that is, objectively. These two considerations imply that the Principal has a duty to exercise the power. She cannot refuse to exercise the power at her sweet will. The law was long ago settled by the following dictum of Earl Cairns L. C. in Julius v. Bishop of Oxford (1880) 5 A.C. 214(15) :-

'WHERE a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise that power ought to be exercised, and the Court will require it to be exercised.'

This has been followed in numerous decisions since then. Clause 2(9) (e) is made expressly for the benefit of students. They have, thereforee, a right to seek its benefit by fulfillling its terms. Such a right cannot be denied to them merely because the Principal is not inclined to exercise her power'. On the other hand, the Principal is under a duty to do so.

(19) A general statement is made by the Principal in her affidavit in Civil Writ 398 of 1975 that every student who came to her for a hearing was heard. But this statement is coupled with the assertion that medical certificates produced at the end of the year could not be considered. The Principal has also said regarding late certificates as to why they could not be accepted. We would impress upon the Principal that she should keep the two aspects separate from each other, namely. (1) the necessity of giving of hearing to every affected student whether the medical certificates produced by her were early or late, whether apparently trustworthy or otherwise, and (2) the ultimate decision of the Principal on the merits of each case based on a finding whether the Explanationn given by the student including the medical certificate produced early or late is believeable or not. Natural justice requires that a premature decision should not be made on the merits of the case before hearing the student. Observations regarding unrealiability of the Explanationns given by the students and the medical certificates produced by them in the counter-affidavits filed by the principal are unfortunate as likely to bias the Principal's mind and also premature inasmuch as hearing has not been given to any petitioner at the end of the year. The first stage is to give the hearing and it is the second stage to make observation about the merits of the case of the students.

(20) During the pendency of the writ petitions, five students made representations to the Principal and/or the Vice-Chancellor without prejudice. The Principal has replied to the students. Since these representations were made without prejudice, they cannot be taken into account. It cannot be said that these students need not now be given a hearing. They will, thereforee, stand along with the other students and will fail into one of the three categories into which all the thirty petitioners will be divided by us later. We hold that- the Principal is bound to hear those students before preventing them from appearing at their examinations on the ground of shortage of attendance.

(21) It is true that in acting under clause 2(9)(c) the Principal exercises a discretion in assessing the nature of the illness and in deciding the merits of the case. But the discretion has to be exercised according to the terms of clause 2(9) (e). The Principal has to consider cases of illness, accident etc. 'during the year' with a view to determine whether lectures and tutorials delivered 'during the said period or a part thereof' could be excluded for the purposes of calculation of the attendance of the year. Such a calculation can be made only at the end of the year. It is at that time that the Principal has to consider periods of absence during the year and whether such periods of absence should be excluded for calculating the total attendence of a student for the whole year. It is then that the Principal has to decide each case on its own. merits. Such a decision cannot be made before the end of the year nor can several such decisions be made each time there is an absence in a particular period during the year. It is only when the year is completed that the total number of tutorials and the percentage attended by the student can be calculated. It would follow, thereforee, that 'the hearing to a student has to be given at the end of the year and before taking the decision whether the student has or has not fulfillled the requisite percentage so as to be able to appear for the examination.

(22) The administrative instruction regarding the leave of absence in the College prospectus is intended only to ensure that a student does not remain absent without the permission of the Principal. The object is to maintain discipline. At that time no decision is taken whether the period of absence of the student has to be excluded in the calculation of his attendance. That has to be done only at the end of the year. Such leave of absence could be granted for much loss serious reasons than are required for exemption of periods of absence for calculation of attendance under clause 2(9) (e). The medical certificate to be submitted for obtaining leave of absence may not thus be of such serious illness as had disabled the student from attending the College. In the nature of things, the Principal cannot be as strict in granting leave as she would be in granting exemption under clause 2(9) (e)'. The Principal has, however, made it a rule of practice that only those medical certificates which are submitted contemporaneously in obtaining leave would be taken into consideration in granting exemption at the end of the year under clause 2(9) (e). It was contended for the petitioners that only such guidelines for the exercise of her discretion under clause 2(9)(c) can be laid down by the Principal which are in tune with clause 2(9)(c) and which do not conflict with it. The law has been ably summarised recently as follows :-

'FETTERING discretion by own rules. A public body endowed with a statutory discretion may 'legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular case directly involving individual interests; hence it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment. These propositions, evolved mainly in the context of licensing and other regulatory powers, have been applied to other situations, for example the award of discretionary investment grants and the allocation of pupils to different classes of schools. The emplitude of a discretionary power may, however, be so wide that the competent authority may be impliedly entitled to adopt a fixed rule never to exercise its discretion in favor of a particular class of person, and such a power may be empressly conferred by statute.'

(1, Halsbury's Laws of England, 35, paragraph 33, 4th Edition).

(23) The practice followed by the Principal is subject to the following objections. Firstly, under clause 2(9) (e), it is the illness which is a ground for exemption and not the medical certificate. The insistence of medical certificate as the only proof of illness cannot be said to be in tune with clause 2 (9) (e). It is conceiveable that no doctor was called or was available during the illness. Consideration of the question whether exemption should be granted to a student at the end of the year cannot be ruled out merely because a medical certificate was not produced during the year at the time of the illness Secondly, the extent of the discretionary power of the Principal is not so vide under clause 2(9) (e) as to enable the Principal to adopt a fixed policy that no evidence other than medical certificate would be considered and that too only if the medical certificate is filed contemporaneously. Thirdly, the necessity to decide each case on its merits indicates that no inflexible rule of practice can be followed by the Principal. She is bound to consider exceptional cases on their peculiar facts. For these reasons, we hold that the Principal was not justified in pettering her discretion under clause 2(9)(c) by following an administrative practice contrary to the terms, of clause 2(9)(c). She is, thereforee, bound to consider all cases in which exemption is claimed under clause 2(9)(c) at the end of the year and decide each case on its own merits in the light of such evidence as may be adduced by the students'. Such evidence may include medical certificate's which are produced for the first time at the end of the year. A fabconstruction of clause 2(9)(c) of Ordinance Vii would show that the Principal has to decide on the merits of each case objectively whether the benefit of exemption there under should be given to a particular student. The hearing has to be given by the Principal to the students before deciding whether, after granting the exemption, if any, the student is short of attendance.

(24) In some English Universities, the disciplinary jurisdiction being vested exclusively in the Visitor is regarded as an internal matter of the University in which the Courts will not interfere. This doctrine has not been imported into India. The Supreme Court has only observed in some decisions such as Board of H.S. & Intermediate Education v. Bagleshwar Prasad : [1963]3SCR767 that the exercise of the discretion by the educational authorities would generally be respected by the Courts who would be slow to interfere with their decision. But even in England, violation of rules of natural justice by the University authorities would lead to judicial review of their action by the Courts (S.A. de Smith, Judicial Review of Administrative Action, page 200, Footnotes 44 and 45, 3rd Edition). In The Board of High School and Intermediate Education v. Chittra Srivastava, : [1970]3SCR266 , also the Court granted an opportunity to be heard to a student even though such opportunity was not likely to be of much use. The Court did not feel inhibited by the fact that the appellant was an educational authority.

(25) 'IT is the duty of persons upon whom statutory powers are conferred to keep strictly within those powers' (30 Halsbury's Laws of England, 686, paragraph 1324, 3rd Edition). The remedy available to an aggrieved person against the wrongful exercise of a statutory power is two-fold. If the person exercising a statutory power is not public authority, the remedy against him may be a special remedy provided by the statute or a general remedy such as injunction or damages under the rules of private law. If, on the other hand, such a person acts as a public authority in exercise of a statutory power or in the performance of a statutory or public duty, then the public law remedies such as the issue of a writ under Article 226 would be available against him. The action of the Principal under Ordinance Vii in detaining the petitioners and in not giving hearing before deciding that they are not entitled to exemption under clause 2(9)(c) is liable to be remedied by an order under Article 226 because the Principal acts in exercise of a statutory power in her public capacity.

(26) As for the benefit under clause 2(9)(a) of Ordinance Vii, the Principal has filed an affidavit that such benefit was given whenever participation in extra-curricular activities covered by clause 2(9)(a) was reported to the lecturer concerned by the teacher in charge. There is no definite averment by any of the petitioners that on a particular day she was participating in such activity at the instance of the College and that the benefit of such participation for that particular day was not given under clause 2(9)(a). On the contrary, the Principal has sworn on affidavit that such benefit has been given. If there is any dispute between the parties then it is a disputed question of fact. It cannot be decided in the present case. The Principal is, however, free to hear any petitioner and give her the benefit of clause 2(9)(a) also.

(27) The action of the Principal in detaining certain petitioners on the ground of shortage of attendance is liable to be set aside in respect of two kinds of petitioners. Firstly, those petitioners who sought such hearing but were denied the same on the ground that medical certificates had not been filed contemporaneously and who were not allowed to show cause why they should not be detained and the merits of those cases were not, thereforee, considered would have to be given a hearing. Secondly, those petitioners who did not seek the opportunity to be heard before the Principal decided their cases under clause 2(9) (e) would also be entitled to hearing if the have made definite averments in pleading that they have some cause to show why exemption should be granted to them under clause 2(9) (e). There is a third category of petitioners who would not be entitled to any relief. They are those who did not seek the hearing before the order was passed by the Principal and who have not made any definite averment in the writ petitons that they have such cause to show as would be covered by clause 2(9) (e) as to why they should not be detained. We shall now examine the cases of each of the petitioners to decide in which of the three categories they fall. Civil Writ 398 Of 1975.

(28) She claims the benefit of clause 2(9)(c) for participation in Basket Ball tournaments and fashion show. No dates or particulars are given. Her general and vague averment that no consideration has been shown for these activities is, thereforee, properly met by the Principal's general pleading that whenever the participation was reported by the teacher-in-charge to the lecturer concerned, the benefit for it was given. She is not entitled to any relief unless the Principal voluntarily hears her.

(29) She has definitely averred that she suffered from a chronic disease for which she had to undertake prolonged treatment from the Irwin Hospital from 1st February, 1975 as would be seen from the hospital ticket possessed by her. She is, thereforee, entitled to be heard by the Principal under clause 2(9) (e). The detention order against her is set aside and the Principal is directed to give her a hearing.

(30) She has also definitely pleaded that she is a chronic patient of gastro-enterIT is which disabled her from attending the college. Though she has not given the dates of her absence, she has a medical certificate certifying that her absence was due to ill-health. Her mother also saw the Principal to explain the cause of her absence. The reply of the Principal does not deny these allegations but merely states that there is no medical certificate regarding the illness on record and that medical certificate in proof of such illness does not ipso facto give any benefit regarding attendance. The Principal has throughout treated only those medical certificates as on record which were submitted contemporaneously because she did not accept medical certificates submitted at the end of the year. The benefit of the hearing was, thereforee, wrongly denied to her under clause 2(9) (e). The detention order against her is, thereforee, set aside and the Principal is directed to give her a hearing.

(31) She has also produced a medical certificate at the end of the year but this has not been taken into account because of the Principal's administrative practice not to consider certificates produced at the end of the year. The detention order is, thereforee, set aside and the Principal is directed to give her a hearing.

(32) Her claim for benefit under clause 2(9) (a) is not. supported by any particulars of the dates. thereforee, it is not by the reply of the Principal that reported participation in extra-curricular activities was considered and benefit was given under clause 2 (9) (a). But this petitioner definitely avers that from 15th October, 1974 to 5th November, 1974 she was ill for which she had a medical certificate which she did not submit because she was under the impression that she had fulfillled the requisite attendance. The detention order against her is set aside and the Principal is directed to give her a hearing under clause 2(9) (e).6. Manju Singh :-

(33) Her averment is very vague. She simply says that on a few occasions she did not attend the College as she was down with influenza. She did not take any medical treatment from any doctor. It is true that even without a medical certificate she would have been entitled to show cause why exemption under clause 2(9)(c) should be given to her. But it was necessary that she should have made some definite averments as to the dates on which she was ill. Without such averment, her claim to be heard under clause 2(9) (e) could not be properly controverter by the Principal. She is not, thereforee, entitled to any relief. 7. Padma Shukla :-

(34) She had submitted medical certificates of illness to the Principal. These certificates were not accepted by the Principal as they were submitted at the end of the year and not contemporaneously with the illness of the petitioner. The Principal says that delay in submitting medical certificates casts suspicion on the voracity of the certificates. This, however, is a consideration to be taken into account at the time deciding the case on merits. Raising it prematurely raises the risks of bias. By itself it .cannot be a reason for denying a hearing altogether. The detention order against her is also set aside and the Principal is directed to give her a hearing.

(35) She submitted two medical certificates for two spells of illness from 12th September, 1974 to 25th September, 1974 and 18th November, 1974 to 25th December, 1974. These certificates have been accepted by the Principal and her claim for exemption under clause 2(9) (e) has been considered. If she is still short of attendance thereafter there is nothing that the Principal can do for her. She is not, thereforee, entitled to any relief. Her allegation that she was marked absent some times in the classes despite her presence in the class as a punishment is too vague and unreliable. It has also been denied. It is not, thereforee, proved. She is not entitled to any relief.

(36) Her claim is two-fold. Under clause 2(9) (a) benefit has already been given 'to her for participation in extra-curricular activities. Even thereafter she was short of attendance. The next claim is for the benefit of clause 2(9)(c). She says that she had submitted five medical certificates of which only three were considered but two were not considered by the Principal. The reply of the Principal is that only the certificates on record, namely, those submitted in 'time were considered. The Principal then states that even if the two medical certificates referred to in Annexure F to the writ petition were on record, they would not have been accepted for the simple reason that the petitioner had been present in the College during the period on several days, thereby casting grave doubts on the validity of those certificates. In this statement, the Principal has again mixed up two different things. She must have an objective attitude when hearing the petitioner under clause 2 (9) (e). The formation of opinion regarding the voracity of the claim and the validity of the certificate is a subsequent stage after the hearing. Since no hearing has been given to the petitioner in regard to these two certificates, it is premature for the Principal and likely to bias her mind to form an opinion about them and to decide the claim of the petitioner in respect of them. The detention order against her is set aside and the Principal is directed to hear her in respect of the two certificates regarding which Dr. Passi wrote to the Principal as per Annexure F and regarding which Dr. Passi has filed an affidavit as per Annexure G to the writ petition.

37. The medical certificate filed by her for illness from 8-1-1975 to 19-1-1975 has been taken into account by the Principal. She then says that she off and on fell ill and was not able to attend all the classes. She says that she can give satisfactory account of such illness. As rightly pointed out by the Principal neither was this subsequent illness brought to the notice of the Principal nor even in the writ petition, there is any specific information regarding the nature of the illness and the dates on which the petitioner is alleged to have fallen ill. In view of the vague pleading, the claim of the petitioner could not be met by the Principal. The petitioner is not, thereforee, entitled to any relief.

(38) The medical certificate submitted by her in October, 1974 does not bear any date. It simply says that she was indisposed for three weeks during August, 1974. Under clause 2(9) (e) the nature of the illness has to be such that the student should be disabled from attending the College. This certificate does not say that the illness was of such a nature. The mere advice of complete rest during the said period does not fulfill this lacuna in this certificate. This certificate was, thereforee, rightly rejected by the Principal. The petitioner then says that her mother had a fracture in her leg in Octo- ber-November, 1974 and she was confined to bed during that period as a result of which, the petitioner was irregular in her attendance during October-November, 1974. This reason does not fall in the ambit of clause 2 (9) (e). It was argued for her that absence in the College may not necessarily be due to the student's own illness but may be due to other reasons which may disable the student from attending the College. This may be quite true. But clause 2(9) (e) is not intended to cover every good reason. This speaks of only certain reasons and cannot be construed to include other totally different reasons. The petitioner is not, thereforee, entitled to any hearing. Her claim is rejected.

(39) The medical certificate submitted by her on 31st March, 1975 to explain her absence during the academic year was taken into consideration by the Principal according to her administrative practice. On a construction of clause 2(9)(c), we have held that the students are entitled to hearing at the end of the year before they are detained. It would appear that the Standing Committee (Students) of the Academic Council and the said Council have also so understood clause 2(9)(c) in suggesting clarification by amendment. The detention order against the petitioner is set aside and the Principal is directed to give her a hearing.

(40) The medical certificates submitted by her at the end of the year (on 31-3-1975) were not considered by the Principal in view of her administrative practice. The order against the petitioner is also, thereforee, set aside and the Principal is directed to give her a hearing.

(41) Benefit has been given to her under clause 2(9) (a) for her participation in the extra-curricular activities. Her claim to benefit under clause 2(9)(c) is worded extremely vague. She says that en few occasions she had fallen ill but she did not get herself medically treated and allowed nature to cure her. Such a pleading does not disclose any cause of action at all. Particularly, it does not say that she was so seriously unwell that she could not attend the classes. In the absence of the necessary pleading, her claim is rejected.

(42) Her pleading is also very .vague. She says that she was also ill on a couple of occasions but did not take a medical certificate. Since she has not said that she was so seriously ill that she could not attend the classes and has given no indication as to the dates of the illness, the pleading does not disclose any cause of action, nor claim is, thereforee, rejected.

(43) She says that she was unwell in the month of July-August 1974 for which she had got a medical certificate from the M.T. Room, Delhi. She has not stated that the illness was so serious that she was unable to attend the College. Nor is the certificate produced to speak for itself. It is not possible, thereforee, to hold that her pleading makes out a cause of action. Then she says that there were other occasions when she was unwell and down with influenza. Such occasions must have been on several days. But she took no medical treatment and, thereforee, cannot produce a medical certificate. This pleading is also too vague to disclose any cause of action and her claim is, thereforee, rejected.

(44) Her Explanationn for shortage of attendance is that in September, 1974 her father was ill and she had to look after him. This reason does not fall in the ambit of clause 2 (9) (e). Her claim is, thereforee, rejected.

(45) She says that in February-March, 1975 she suffered two or three spells of cold and mild flu as a result of which she was unable to attend the classes on several days. She also says that her pleadings to the Principal and the lecturer in this behalf have not been accepted. The Principal denies this. But on the petitioner's own pleading she got a hearing from the Principal. But the Principal did not believe her. Her right under clause 2 (9) (e) gives her only hearing but does not control the decision of the Principal. She has not, thereforee, made out any case for hearing and her claim is rejeeted.

(46) The medical certificates submitted by her were taken into account by the Principal. But even after giving her the benefit of these certificates she is still short of attendance. No question of any hearing under clause 2(9) (e), thereforee, arises. The claim of the petitioner is, thereforee, rejected. 20. Manju Mathur :-

(47) She says that she was ill on a few occasions but did not take any medical treatment. Her pleading is extremely vague. It does not state that the illness prevented her from attending the College. It does not state the nature of the illness or the period of illness. It does not, thereforee, disclose a cause of action. Her claim is, thereforee, rejected.

(48) She has given two reasons for the shortage of her attendance. Firstly, she was led into thinking that she could take up Paper 8-B instead of Paper 8-A. She did not, thereforee, attend the lectures on Paper 8-A. Paper 8-B was not taught in the College and she was preparing for it privately. This reason is not covered by clause 2(9) (e). The petitioner has made a representation to the Vice-Chancellor for getting exemption under Ordinance XA. She intends to seek a re-hearing by the Vice-Chancellor as the Academic Council does not seem to have considered such cases which are outside the jurisdiction of' the Principal.

(49) The second reason is that in August 1974 Dr. K. C. Malik of Willingdon Hospital examined the petitioner and certified as follows:-

'MISS Namita Gokhale gets fever due to recurrent urinary tract infection (pylonephritis). She is advised to take rest during the attack.'

It is to be noted that this certificate does not refer to the past but to the future. The advice of the Doctor is that whenever she would get an attack of this infection she should take rest during the attack. The Principal has however stated that the certificate could not taken into consideration as it was to vague and did not specify the period of illness or the days on which she was unable to attepd classes due to that illness. Further, no application for leave of absence was made and it is not possible to relate this certificate to any particular days of absence unless every day of her absence after the certificate is to be attributed to this illness. This criticism of the certificate is again premature. The formation of opinion as to the value of the certificate is to take place after a hearing is given to the petitioner. During such a hearing, the petitioner would be entitled to adduce evidence as to the dates on which she got attacks of this infection and on which she could not attend for that reason. As distinguished from a certificate for a past illness, certificate which indicates probable attacks of infection in future cannot indicate the dates in the certificate itself. But it does lay down the foundation on which future absence can be explained by showing that it was due to these attacks. The petitioner even offered that she would get the necessary endorsements of the doctor regarding the dates on which she was prevented from attending the College by the attacks of the infection. But the Principal did not give the petitioner such an opportunity. This offer by the petitioner shows her bona fides and also that she has a definite case for consideration. This makes good the lacuna in the pleading to a large extent. As the petitioner was prepared to get a further certificate of the doctor for the dates on which she was ill and as the Principal did not allow her to do so, the petitioner is entitled to a hearing. We, thereforee, set aside the order of detention against the petitioner and direct the Principal to give her a hearing.

(50) The allegation of the petitioner that she was ill from 25th November to second week of December, 1974 and again from 28th February to 6th March, 1975 for which the medical certificates from Dr. Rupani were submitted but which do not seem to have been taken into account made in para 3 of the writ petition has not been specifically denied by the Principal. The bare denial of para 3 is not enough. Again in para 4 of the writ petition, the petitioner pleaded that she was pregnant in January/February 1975 and was off and on falling ill and was unable to attend the College and was prepared to submit a medical certificate for her illness; But the Principal refused to accept the same has not been specifically traversed. The petitioner was, thereforee, denied opportunity to show cause under clause 2(9) (e). The detention order against her is set aside and the Principal is directed to give such opportunity before deciding whether she is entitled to the benefit of clause 2(9)(c) or not.

(51) She says that between January to March 1975 there were 4 or 5 occasions when she was not well and had an attack of influenza due to which she could not attend the College. She is prepared to adduce sufficient evidence in support of her illness. The Principal has given the stereo-type reply that no leave of absence was applied for and no medical certificate was submitted till the end of the academic year. But the petitioner is entitled to show that she was disabled from attending the College when she was down with influenza on 4 or 5 occasions from January to March, 1975. Her pica regarding written tutorials as a substitute for attendance tutorials is not covered by Ordinance VII. The detention order against her is set aside and the Principal is directed to give her a hearing as to her absence due to influenza on 4 or 5 occasions during the period from January to March, 1975.

(52) Her absence was due to her father's death and her mother's illness. This reason is not covered by Ordinance VII. The only possible relief she could get was from the Vice-Chancellor and the Academic Council under Ordinance XA. Unfortunately, her representation under Ordinance Xa has been rejected. She is going to approach him again. We, thereforee, are unable to help her and her writ petition has to be dismissed.

(53) Her claim under clause 2(9) (a) was considered and rejected by the Principal on merits. We cannot interfere with the decision. She says she was ill in February and March 1975 and had submitted two medical certificates. The Principal says that only one medical certificate regarding her illness in March v/as received by her. She further says that this certificate could not be taken into consideration for the reason that during the period she was stated to be bed ridden, it was seen from the records that she attended her classes on 10-3-1975 and had come to the College Office for obtaining her clearance form on 20-3-1975 which circumstance casts doubts on the geunineness of the certificate. It is explained for the petitioner that some one else must have proxied for her on 10-3-1975 and she had to collect her clearance. But it is the duty of the Principal to hear her before drawing unilateral conclusions. Her detention is set aside and the Principal is directed to give her a hearing.

(54) In this case the petitioner was beared. She submitted four medical certificates to explain her absence. Only one of them was accepted and the other three were rejected because the petitioner was found to have been present during the period covered by the certificate. This is a decision on the merite of her case by, the Principal with which we cannot interfere. The writ petition is, thereforee, dismissed.

(55) She was admitted late in the College and claims that the percentage of her attendance should be calculated only from the date of her admission. This contention is contrary to Regulation 13 framed under section 32 of the Delhi University Act and cannot be accepted. The reply of the Principal is that even if this is done still she is short of the required percentage of attendance. Her only remedy was, thereforee, under Ordinance XA. Her representation under Ordinance Xa has, however, been unsuccessful though she is making a second one. She is not thereforee entitled to any relief. Her writ petition is dismissed.

(56) Her pleading is extremely vague. She simply says that she was unwell on a few occasions. She says that she has sufficient evidence including the medical certificate to show that she was actually unwell for a short time. The expression 'on a few occasions' and 'for a short time' do not tally with each other. She does not indicate when she was ill and even the year in which she was ill. No medical certificate is produced even with the writ petition. Nor is the nature of Illness indicated. Her pleading is, thereforee, too vague to make out any cause of action. Her claim is, thereforee, rejected.

(57) She says that she could not attend lectures for more than six days because of influenza. She does not say when she got the influenza. Even the year is not mentioned. No medical certificate is produced even with the writ petition. Her pleading also is, thereforee, too vague for making out even a cause of action.

(58) She says she was keeping indifferent health suffering from Higrane pain during October-December, 1974 and was unable to attend the College. During the Christmas vacation she had measles in Calcutta. This continued till 12-1-1975 as a result of which she missed couple of attendance in January. 1975. She wishes to have an opportunity to substantiate these facts. Her pleading is fairly definite and she is willing to substantiate it. She is, thereforee, entitled to an opportunity to be heard by the Principal. The order of her detention is set aside and the Principal is directed to give her a hearing. Her absence due to the death of her grandfather and the operation of her mother is, however, not due to a cause covered by clause 2(9) (e) and she is not entitled to any hearing before the Principal on that account. The writ petitions are disposed of accordingly as stated above without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //