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Arvind Gupta Vs. University of Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 490 of 1980
Judge
Reported inILR1981Delhi28
ActsCampus Law
AppellantArvind Gupta
RespondentUniversity of Delhi and anr.
Advocates: S.C. Gupta,; L.R. Goel and; Jitendra Sharma, Advs
Excerpt:
.....at the end of the 4th & 5th semester. he was permitted by the respondent to take 4th semester examination subject to his giving an undertaking that he would make good the deficiency in attendance in the 5th semester. at the end of the 5th semester, the petitioner was still short of attendance in lectures but he was not detained because of the rule requiring the counting of attendance for the entire academic year which included the 5th and 6th semesters. at the time of the 6th semester examination, the petitioner was once again short of attendance of a total of the 5th and 6th semesters combined, apart from the shortage of lectures carried forward from the end of the 2nd year. the respondent refused to allow the petitioner to sit for the 6th semester examination because he..........the inevitable limb of the connected argumenttherefore is that only if there is shortage of sixth semesterlectures, can the petitioner be considered ineligible to takethe examination and as in the present case the petitioner hadattended more than two-third lectures delivered in thesixth semester, he was eligible to take the examination. it is apparent that this argument asks us to re-write the ordinance. the requirement of the ordinance vll(l)(8) isto take the year as a unit requirement is to attend two-thirds of total lectures delivered in each year. in the present case (3rd year) and would cover both the fifth andsixth semesters. it is only if the student then completestwo-third lectures that he will be deemed to have pursueda regular course of study. if he fails to complete the.....
Judgment:

Sachar, J.

(1) This petition challenges theaction of the respondent University in not having permilted the petitioner to take sixth semester of the LL.B. Examination because of the shortage of the attendance inlectures. Chapter Ii of Ordinance V of University ofDelhi, Vol. I Calendar (to be called the Calendar) provides for various courses of study including the Bachelorof Laws (LL.B). Ordinance Vii (2) lays down the condition for admission to examinations and provides that nomember of the University shall be admitted to any examination for a post-graduate degree unless he has pursueda regular course of study as hereinafter prescribed fornot less than two academic years. 'The candidates forthe various examinations are required to pursue regularcourse of study as indicated by sub-clause (3) of Ordinance VII. LL.B. has been prescribed three academicyears (six terms). Clause 8 (a) of Ordinance Vii furtherlays down that in case of students studying for LL.B.Degree Examination, no student shall be deemed to havepursued a regular course of study unless he has atlendedatleast two-thirds of the total number of lectures deliveredin each year ......... .held during the academic year inwhich he has been admitted as a regular student of theFaculty. There is exception in the proviso which providesthat the Dean may permit a student of the 2nd or the 4thterm to take the examination if he is short by not morethan 10 per cent of the total number of lectures deliveredincluding tutorials etc. during the 1st or the 2nd year ofthe course. However, such a student shall have to makeup the deficiency in attendance of the previous year in thenext following year in which he is admitted failing which heshall not be deemed to have fulfillled the attendance requirement of the year. The petitioner at the end of the IVsemester was short in attendance of (20) lectures. Apparently these were less than 10 per cent of the total numberof lectures delivered and he was, thereforee permitted totake the 4th semester examination subject to his giving anundertaking to complete the deficiency in the fifth semester.At the end of the fifth semester, the petitioner was still shortof attendance in lectures, inasmuch as he had attendedonly 24 out of 101 lectures instead of 66. But he was notdetained because of the rule requiring the counting ofattendance for the entire academic year, which in this casewas to be of 3rd year (5th and 6th terms combined). However, when the time for examination for sixth semestercame, the petitioner was, it is the common case, after givingthe benefit of medical certificate, short by 29 lectures of atotal of 5th and 6th semester combined apart from theshortage of 20 lectures carried forward from the end of 2ndyear, thus making a total shortage of 49 lectures. Of courseit is common case that the petitioner had attended morethan 2/3rd of lectures if only lectures of 6th term alonewere counted. The University, however, in view of thisposition refused to send his name for examination becausebe was deemed not to have pursued the regular course ofstudy, inasmuch as he had not attended 2/3rd of lecturesduring the academic year i.e. 3rd year, which means 5thand 6th terms'. It is at that stage that this petition wasfiled and we permitted the petitioner to take the examination for the 6th term subject to the decision of the mainwrit petition. The result was, of course, directed to bewithheld. The petition is now for final disposal before us.

(2) The stand of the University is that the petitioner hasto take his 6th term examination in April, 1981 but he mustattend requisite lecture in 5th, and 6th terms in the currentyear. It is, of course, conceded that the petitioner's resultof 5th semester will not be cancelled and he will retain thebenefit of his successful passing. This stand is consistentwith the position as found in Appendix Ii of the Ordinancerelating to Bachelor of Laws to be found in the Instructionsto applicant in Bulletin of Information for 1977-78 ofCampus Law Centre, page 14 at page 16 where in para 9it is laid down that when a student. .... .has been detainedfor shortage of attendance, the result of any examinationtaken by him at the end of First, Third and Fifth terms ofthe academic year, shall not be cancelled. This will at nostage, relieve the student of his obligation to put in therequisite attendance as per rules. The case of the University, thereforee, is that in terms of Ordinance VII(1) astudent cannot be admitted to the examination for a degreeunless he has pursued a regular course of study. The requirement, according to the University is two-fold (a) ofpassing the examination at the end of each semester and(b) of having attended at least two-thirds of total numberof lectures delivered during the academic year.

(3) Mr. Gupta, learned counsel for the petitioner, inorder to challenge the decision attacks the base and, thereforee, challenges the nexus or the relevance of the requirement of the rules of University inrequiring the student likethe. petitioner to attend requisite lectures of the fifth term(when the said examination cannot be cancelled) and alsoin detaining the petitioner at the end of the sixth term eventhough he has attended more than two-third of lectures ofthe sixth semester separately. Mr. Gupta in that connection referred us to Ordinance X(10)(i) which permits theVice-Chancellor to cancel the result of any candidate within four months of the publication thereof if he is satisfiedthat the candidate was ineligible to take the examination onaccount of shortage of attendance, but was permitted to doso by some mistake, but only that much action shall requirethe confirmation of the Academic Council. Frankly we donot see how this clause has any relevance. Had in thepresent case the petitioner been permitted to take examination of 6th term notwithstanding the shortage of lecturesand then further four months had expired from the publication of the result, it may not have been possible to cancel the result of such examination. In the present case,however, the University committed no mistake because itstopped the petitioner from taking the examination of thesixth semester on the ground of shortage of lectures. Theexamination of the 6th term was given under the ordersof this Court. So the benefit of Order X(10)(1) cannotbe invoked by the petitioner in the present case.

(4) Mr. Gupta emphasises that as the result of fifth semester could not be cancelled in terms of Appendix Ii, IT is pointless to ask the petitioner to attend the requisite number of lectures of the 5th Semester. But that by itselfwould not have given the eligibility to petitioner for sixthsemester. The inevitable limb of the connected argumenttherefore is that only if there is shortage of sixth semesterlectures, can the petitioner be considered ineligible to takethe examination and as in the present case the petitioner hadattended more than two-third lectures delivered in thesixth semester, he was eligible to take the examination. IT is apparent that this argument asks us to re-write the Ordinance. The requirement of the Ordinance Vll(l)(8) isto take the year as a unit Requirement is to attend two-thirds of total lectures delivered in each year. In the present case (3rd year) and would cover both the fifth andsixth semesters. It is only if the student then completestwo-third lectures that he will be deemed to have pursueda regular course of study. If he fails to complete the two-third lectures of both 5th and 6th Semesters in terms ofOrdinance Vll(8), he is not eligible to be admitted to theexamination. This is straight and uninvolved interpretationof the Ordinancs VII. This argument of claiming thatshortage of lectures should only be restricted to 6th semester evidently forgets that the petitioner had attended only24 lectures out of 101 lectures as against 66 lectures whichwas the requirement in the 5th semester. If each semesterwas to be taken separately the petitioner would have beendetained in the 5th Semester and would net have been promoted to be admitted to the 6th semester. He took thebenefit of the rule which required completing the requisitenumber of lectures in the academic year that is by combination of 5th and 6th semester. It does not lie in the mouthof the petitioner to ask us to interpret the rule as requiringthe attendance to be calculated separately for each semesterwhen in the 5th semester he took the benefit of the ruleand accepted that the requirement is to be completed inboth the semesters combined.

(5) Mr. Gupta's next argument is by way of analogies.He drew our attention to clause (4) of Ordinance VIIwhich in the case of student of B.Sc. Nursing (Honours)lays down that the required condition shall not be deemedto have been satisfied unless a candidate has attended suchnumber of lectures and practicals as may be prescribed bythe head of the department but any shortage in practicalsmay be made up even after the final examination, but thedegree shall not be awarded until such shortage has beenmade up. Mr. Gupta wanted us to use this analogy andinterpret Ordinance Vii (1) (8) so as to hold that a candidate even if he is short in requisite lectures he should beallowed to take the examination (in this case 6th semester)though degree may be given only after he makes up thedeficiency in the following year. Apart from our initialhesitation to equate the learned profession of law with adifferent kind though no doubt noble profession of Nursing,it is relevant to note that the requirement of attending theprescribed number of lectures is not dispensed with underclause (4), so that shortage in lectures will lead to the sameresult of uneligibility to take the examination as in the caseof LL.B. The practicals in the case of students in Nursingare obviously a different kind of requirement from the law.We must assume that the University must have good reasonsfor this distinction. We were also referred to OrdinanceVII Clause 8(c) which says that in the case of LL.M. students studying for Part Ii examination no student shall bedeemed to have pursued regular course of study unless hehas attended at least ten of the seminars conducted for theLL.M. Part Ii classes, five of which must have been attended before he appears at the examination in the writtenpapers. We do not know the compulsions of this requirement. But we may write that for LL.M. Part I examination no student shall be deemed to have pursued a regularcourse of study unless he has attended not less than two-thirds of the total number of lectures delivered during theacademic year this requirement is the same as in the caseof LL.B. student and the petitioner can hardly draw anyammunition from this.

(6) Mr. Gupta then drew our attention to the bookletPrinciples and Mechanics of the Semester System, broughtout by the University Grants Commission in 1971 andbrought to our notice the chapter on Aligarh Universitywhich says that the requirement of attendance at both postgraduate and the undergraduate levels has been dispensedwith. We, however do not know whether the AligarhUniversity is still continuing this system. Mr. Gupta wantedto emphasise that the rule requiring attendance of lecturesis required in laboratory and tutorial classes and. thereforee, the question of attendance was of no such significancein the case of the petitioner who is a student of LL.B Theeffort of Mr. Gupta was obviously to convince us that therequirement of attending lectures was of no consequenceas to judge the merit of a student. Though at first Mr.Gupta urged the extreme proposition that the requirementof lectures should be held to be an irrelevant considerationhe was willing to modify presumably to make it more acceptable by suggesting that though the University may insiston making the shortage of lectures, but without detainingon this account a student from taking the examination. Sointerpreted it would mean that the petitioner should havebeen allowed to take 6th term examination and then required to make up the deficiency of lectures in the next year,and degree will be given only after he had made up thedeficiency of lectures. Now the argument suffers from theobvious following by asking us not to give effect andinterpret the ordinance as it is, but to reframe and rewordthe ordinance so as. according to Mr. Gupta's thinking morein attune with modern thinking on the subject. We findourselves unable to entertain these suggestions for morethan one reason. The view that attendance of lecturesshould not be insisted upon is not universally accepted.Thus in this very booklet the Vice Chancellor of MeerutUniversity, as stated there is some force in the argumentthat attendance should not be insisted upon, on the pleathat it is achievement which is important and not the attendance, it must however be kept in view that unless objective tests are introduced, the yard-stick will have an inevitable tendency towards diminution to suit the level ofachievement. . .. another result will fall in enrolment especially in the faculties of Arts, Commerce, Law and Education. and there will be little justification in maintaining institutions with all the expensive paraphernalia without ensuring their adequate use. He has also warned that oncethe process of waiver starts, sooner than later the demandfor permission to appear as private candidate will have tobe conceded. It will thus be seen that the view that attendance of lectures are not relevant to the studies are notsuch a satisfactory view that there are not reasonable doubts as to its application. The university in the counter affidavit has denied that the rule requiring attendance of astudent in two third of the lectures makes the Rule absurd.The requirement to attend a certain percentage of lecturesdelivered is not only to enable a student to acquire requisite proficiency in the subject for the examination but alsoto ensure that a student who is pursuing a regular courseof study requires a discipline of education and a disciplinedoutlook towards his classes, courses and the academic life.We cannot say that this view of the university is palpablygroundless or without any merit. Unless the requirementlaid down by the University is discriminatory, this courtwould not substitute its own views to that of the University.It must also be recognised that the academic discipline willbe best preserved by all concerned including the Executiveand even the courts abstaining from encroaching upon theautonomy and internal discipline within the portals of university and academic institutions after all they are templesof learning. We may also in this connection note the observations of the Supreme Court in a very recent caseCivil Appeal 311511978 decided on 4/09/1980wherein the court observed: 'The case is merely one ofassessment of the academic performance of a student whichthe prescribed authorities of the University are best qualified and the courts perhaps are least qualified to judge.

(7) It seems to us that the University has covered anumber of situations. It is seen that the penalties arenot provided for shortage in each semester so that the student if for unavoidable reasons does not attend the requisite lectures he can attend the lectures in the next semester. The petitioner is beneficiary of this rule because hewas short at the end of the 4th semester and also at theend of the 5th semester and would not have been allowedto take the examination of 4th and 5th semesters had therule not provided this flexibility. The petitioner was fullyaware of this rule as is clear from the undertaking givenby him on 12/04/1979 at the end of the 4th semesterwherein he undertook to make up the deficiency in thenext year and also further undertook that he will not beallowed to take the examination at the end of the nextacademic year unless the shortage was made up. Thequestion of making up the deficiency of lectures in thesubsequent year can only be available in the first two years.It cannot arise at the end of third year. Once a studenthas been found at the end of the sixth term not to havethe requisite number of attendance to his credit, he is deemed to have not pursued the regular course of study withthe result that he will have to take the sixth, term againnext year (of course subject to the benefit that the fifthsemester examination will not stand cancelled). We cannotfind any logic nor can we so twist the rules as to acceptthe petitioners contention that even when a student is shortin lectures at the end of a 6th semester he should be permitted to take the examination subject to his completing thelectures in the subsequent year. This is against the verywording of the Ordinance and we cannot re-write the same.We thus cannot find anything wrong in the action of theuniversity in not having permitted the petitioner to takethe 6th semester examination and also requiring him tocomplete the requisite number of lectures in the next year.

(8) We had heard the matter on 23/07/1980 whenwe were informed by Mr. Gupta that the petitioner wantedto move the University for condensation of shortage ofattendance. When the matter came up again on 20/08/1980 Mr. Gupta informed us that the matter was stillunder consideration of the University authorities. We hadpermitted the petitioner to take the examination of 6th semester during the pendency of the writ petition, which wasnaturally subject to the decision of the writ petition. Aswe are now today dismissing the writ petition in the normalcourse, the result would be that the 6th term examinationhe has taken by the petitioner would become infructuousand of no use. We had directed the withholding of The result. So, we do not know whether the petitioner haspassed or not. Ordinance X-C permits the AcademicCouncil to grant exemption from operation of any of therequirements including the attendance of lectures subjectto certain requirements. Of course, it is for the AcademicCouncil to decide finally on the representation made bythe petitioner. But we see that it would help the AcademicCouncil in its decision if before deciding the matter it findsout whether the petitioner has been successful in the 6thsemester examination which he took in pursuance of ourdirection. If the petitioner has failed then nothing moreis to be done. But if the Academic Council finds that the petitioner has passed the 6th semester which he took inpursuance of the direction of this Court, the AcademicCouncil may seriously consider whether granting of exemption to the petitioner and condoning the shortage of theattendance of lectures in exercise of its power under Ordinance X will not meet the ends of justice. We may in thisconnection note that Mr. Gupta told us that as the matterwas still pending the petitioner did not want to take achange, with the result that he joined the fifth semester.We were also told that the petitioner has attended morethan 2/3rd of the lectures given in the fifth semester. Thusthe petitioner has complied with the requirement of Ordinance Viii (1) (8) so far as the fifth semester is concerned.Of course, if the Ordinance is to be applied in its strictness.the petitioner will be required to attend the lectures in 6thsemester and only permitted to take the examination of the6th semester in 1981. But we do feel that if the petitionerhas passed in the 6th semester examination which he hastaken and considering that the petitioner has attended morethan 70 per cent of the lectures in the 6th semester in thelast year, the Academic Council may well consider whetherthe ends of justice and the requirement of discipline havenot been sufficiently met by the petitioner especially now thathe has attended requisite lectures of the fifth semester. Itmay also be noted that if the petitioner had complied withthe regulation he would have obtained his degree in 1980July, but because of the shortage of lectures and the presentlitigation even if the Academic Council now grants him exemption the petitioner would have been delayed by aboutsix months in getting his degree. The Academic Councilmay also consider if it wishes to be very technical that incase petitioner has passed the sixth semester examination,he may be awarded the degree in April, 1981 on the basisof result of sixth semester which he took in May. 1980.Thus he may not be asked to take the examination again.Thus the requirement of the University will be met inasmuch as the petitioner would have attended the requisitelectures of fifth semester in 1981; he has already completedthe requisite requirement of the sixth semester and the result of May, 1980 examination could be the basis for givinghim the degree but only in 1981. Thus the result will bethat the requirement of the University that the petitionershould get the degree in April, 1981 will be met but at thesame time it will not require the petitioner to undergo further purposeless lectures in the sixth semester and also notrequire him to undergo unnecessary strain and nervousexperience of again having to take the sixth semester exa-mination. This will broadly serve both the requirementsof the discipline insisted upon by the University and alsobe a warning to the students that the regulation of the requirement of attendance of lectures cannot be ignored withimpunity. Of course, it is not our purpose to tell the Academic Council as to what decision it should take becausethe matter is in its discretion and we do not wish to anticipate it. We have only indicated the various courses opento it in the recognition that sometimes considerations ofmercy rather than insistence upon rigid and inflexible application of the rule will better serve the purpose for it hasnot been well said :

'THEquality of mercy is not strain'd -In droppeth as the gentle rain from heavenupon the place beneath, it is twice blest.It blesseth him that gives, and him that takes.'

( . . Merchant of Venice of Shakespeare)We have said enough and need not dilate any further on it.

(9) With the above observations, the writ petition is dismissed but there will be no order as to costs.


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