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Manas Sarkar and ors. Vs. University of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberT. No. 1399 of 1999 and W.P. No. 1958 of 1999
Judge
Reported inAIR2000Cal251
ActsConstitution of India - Article 226
AppellantManas Sarkar and ors.
RespondentUniversity of Calcutta and ors.
Appellant AdvocateDipankar Ghosh as Amicus Curiae, ;Saktinath Mukherjee, ;Ajit Kumar Panja, ;Prodosh Kumar Mallick, ;S.K. Kapoor, ;Nirmalendu Nath Mitra, ;Sibdas Banerjee, ;Adhip Chandra Kar, ;Pratap Chatterjee, ;Subra
Respondent AdvocateBikash Ranjan Bhattacharya, ;Jayanta Kumar Biswas and ;Dipankar Dutta, Advs.
Cases Referred(Debnath Ghosh v. University of Calcutta
Excerpt:
- orderamitava lala, j.1. there are 5 writ petitions altogether. all the 5 writ petitions are meant for the purpose of granting relief in favour of the petitioners in the nature of regularisation of their candidature as students of the concerned law college under the university of calcutta. out of the 5 writ petitions. 3 writ petitions have been made in the original side jurisdiction of the high court when other 2 writ petitions are made in the appellate side jurisdiction of the high court. although not similar, but common cause of action is involved in respect of all the 5 writ petitions.2. out of the 5 writ petitions w.p. no. 1957 of 1999, (ms. sreemoyee das v. state of west bengal) is made contending that the petitioner was under the impression that her roll number is 73 and paid all the.....
Judgment:
ORDER

Amitava Lala, J.

1. There are 5 writ petitions altogether. All the 5 writ petitions are meant for the purpose of granting relief in favour of the petitioners in the nature of regularisation of their candidature as students of the concerned law college under the University of Calcutta. Out of the 5 writ petitions. 3 writ petitions have been made in the Original Side jurisdiction of the High Court when other 2 writ petitions are made in the Appellate Side jurisdiction of the High Court. Although not similar, but common cause of action is involved in respect of all the 5 writ petitions.

2. Out of the 5 writ petitions W.P. No. 1957 of 1999, (Ms. Sreemoyee Das v. State of West Bengal) is made contending that the petitioner was under the impression that her Roll Number is 73 and paid all the tuition fees etc. on the basis of such impression. Subsequently, she came to know from the college authority before depositing the requisite fee for examination that her actual Roll Number is 75. Therefore, the petitioner's name did not figure either in the list of collegiate or non-collegiate students although she did attend the classes excepting for a brief period in between December and January, 1999 when she was ill. However, the petitioner was allowed to deposit requisite fees for the purpose to be paid by the non-collegiate students as well as the tuition fees etc. Therefore, she should be allowed to sit in the examination.

3. The next application being W.P. No. 1960 of 1999 (Ajoy Kumar Singhania v. University of Calcutta) is for non-consideration of medical certificate for the purpose of allowing him to sit in the examination upon completion of formalities yet he was asked by the Doctor to take bed rest for 4 months in a year. It was further contended that he had submitted medical report and thereafter he was allowed to fill up the forms as per the notice dated 7th & 8th July 1999 on medical ground but even then he was not allowed to sit in the examination.

4. Leaving aside these 2 individual cases which were not, infact, strongly opposed by the respondent-University but they have taken serious objection in respect of other 3 applications made jointly by numerous students who have been either declared as non-Collegiate or dis-collegiate students in connection with their studies and sitting of the respective LLB. Examinations for the year, but without filing any affidavit to the extent.

5. The cases of purported nomenclature 'non-collegiate' is involved in W.P. No. 22181 (W) of 1989 (Amit Jalan v. University of Calcutta) and W.P. No. 22182 (W) of 1999 (Shri Debnath Ghosh v. University of Calcutta). The other one is in repect of purported nomenclature of 'dis-collegiate' students under W.P. No. 1958 of 1999 (Manas Sarkar v. University of Calcutta).

6. The cases are jointly made a unique situation. In respect of the earlier 2 applications which are under the purported nomenclature of 'non-collegiate' students, the petitioners being various students of the Law College under the University of Calcutta alleged that all requisite fees were received by the University of Calcutta as non-collegiate fees even thereafter, they were not allowed to sit in the examination. Therefore, once the money has been received as per the rules as a token of penalty by describing students as 'non-collegiate' students, the University has no authority to withheld or disallow such candidates from sitting in the examination or for continuance of their studies. The respondents did not file any affidavit in this respect, but they have relied upon a bunch of documents dated 8th July, 1999, 12th July, 199, 14th July, 1999, 16th July, 1999 and 20th July, 1999. These documents are correspondence between the Head of the Department of Law, University of Calcutta and the Controller of the Examinations, Calcutta University, or note to the Secretary Faculty of Law, Calcutta University or note to the Vice-Chancellor, and decision of the Syndicate or University of Calcutta. Therefore, the case of the respondents are restricted on these documents.

7. I get the facts from the first document that Department of Law is requesting the Controller of Examinations, University of Calcutta for extension of the last date for submission of their forms with fine by at least 2 days. Certain notes are there in the copy of the letter, one of which is written before the signature as 'agreed' upon putting the signature and dated as 9th July, 1999.

8. Second one is note of the Head of the Department towards the Secretary of Faculty dated 12th July, 1999 from which it appears that certain applications were made which appears to be in respect of purported 'dis-collegiate' students with a note the applicants are short of 55% attendance which is the minimum of being non-collegiate. In the bottom, there is a note dated 13th July, 1999 as 'regretted'.

9. Thereafter, on 14th July, 1999 a note was given to the Vice-Chancellor through the Secretary of the Faculty of Law explaining various aspects like (a) failure or non-failure on the part of the non-teaching staff of the concerned college in respect of preparing list after counting the percentage; (b) unless specific case is pointed out to the teachers or the Head of the Department, it is impossible to ascertain whether irregularity has been committed or partiality shown by the members of the non-teaching staff; (c) policy of acceptance of medical certificate has been prepared by all the teachers of the Department of Law keeping in view of the University Regulations which stipulates 65% attendance for being collegiate and 55% attendance after condonation for being non-collegiate. Such regulation is silent about the acceptance or non-aceptance of the medical certificate. The department decided to take medical certificates into consideration in view of the request from the students as well as in absence of specific instructions or guideline in the University Regulation in this regard; (d) in view of the above, it was presumed that the matter might have been left for discrimination of the members of the departmental committee; (e) uniformity has been strictly maintained in giving relief or allow condonation of absence for 3 months on medical ground to the students who have applied for condonation. The policy was decided by all teachers sitting together; (f) the Head of the Department of Law University of Calcutta felt that the teachers have not committed any irregularity nor had they favoured any one in particular or committed discrimination in any manner whatsoever.

10. Next letter is dated 16th July, 1999 written by a Faculty of Law to the Vice-Chancellor, University of Calcutta. More or less, similarly placed and explanatory as to the question of law and interference in this respect by the Court of law, specially by saying that the teachers decided to apply the rules of interpretation of statutes which provide that in case when the law is silent on a particular matter the Court has liberty to add to it or supply the mislink to give effect to the intention of the legislature.

11. Ultimately, on 20th July, 1999itwas resolved by the Syndicate :

'Resolved -- the applications of candidates who are discollegiate as per rules, including those which had earlier been condoned by the Department on medical and other grounds, be regretted.'

This is the order impugned under challenge.

12. Mr. Shaktinath Mukherjee, learned Senior Counsel, Mr. Nirmalendu Nath Mitra and Mr. Malay Ghosh learned Counsel made their submissions in respect of the non-collegiate students jointly or severally. Collective submissions on their behalf is that prima faice the aforesaid non-collegiate students are entitled to sit in the examinations since the requisite fees on whose behalf have already been received by the University of Calcutta. The decision was taken by the Syndicate on 20th July, 1999 but from 7th or 8th July onwards i.e. before taking such decision on 20th July, 1999, the requisite fees are collected by the University of Calcutta. Therefore, there is no way out for the University to ignore such acceptance or refuse to sit in the examination in spite of acceptance of such sums.

13. They have strongly relied upon a Notification being No. CSR/10/99 Column 5 which prescribed for percentage in prosecuting the studies of LLB in the respective colleges under University of Calcutta where I find that maximum percentage of attendance is 65% wherein minimum percentage of attendance after condonation is 55%. They have relied upon further documents being a communication of the Registrar to the Head of the Department of University of Calcutta being No. MET/2/7 dated 2nd July, 1993 wherefrom it appears that Syndicate has taken a resolution that the proposed rates of fees as embodied in the item annexed therein be approved w.e.f. 1st July, 1993. It appears from the enclosure that there is a provision for acceptance of fees as above in respect of non-collegiate student fees (external students) and condonation fees for short percentage. There is also a provision for delay fine for submission of application for non-collegiate permission after the expiry of the last date. Therefore, when the provisions for allowing for prosecuting studies or for attending examination is there, Syndicate has no business or power to withhold or refuse grant of such recognition from prosecuting studies and examination.

14. The argument was put forward even to the extent that the words 'non-collegiate' is misnomer, which in other words a wrong or unsuitable name or misnaming.

15. In fact, there is a substance of such submission in respect of the expression 'non-collegiate'. The act and rule do not define the word 'non-collegiate' it is far to say about 'dis-collegiate'. The Notification No.CSR/10/ 99 is prescribing for minimum percentage of attendance after condonation. Similarly, a further circular of the Controller of Examinations being dated 20th July, 1993 and enclosure therewith is prescribing for condonation fees for short percentage. Therefore, in effect, two categories are there, one who are holding minimum percentage of attendance and other who are holding minimum percentage after condonation.

16. It is relevant to say at this stage that like the aforesaid documents as relied upon by the respondents, the petitioners also relied upon a letter of the Registrar as aforesaid being No.MET/2/7 dated 2nd July, 1993 with its enclosure and circular of Controller of Examinations dated 20th July, 1993 with its enclosures.

17. For the purpose of effective adjudication and for the purpose of corning to an appropriate conclusion of analogous hearing, I have to deal with the submissions as made on behalf of the respondents after narrating the case of the petitioners in respect of the so-called 'dis-collegiate' students under the W.P. No. 1958 of 1999 (Manas Sarkar v. University of Calcutta). Since the case is also strongly facts-oriented wherein too the University of Calcutta did not use any affidavit contradicting the state-merits as made therein, relevant factual aspects are set out hereunder :

'i) Your petitioners are all citizens of India and are students of Five Years LLB Course conducted by the Department of Law of the respondent University of Calcutta.

ii) The respondent No. 1 is a body corporate responsible for imparting studies and for the conduct of the examination of the students enrolled at the various institutions registered under the frame work of the respondent No. 1 and are responsible for the purpose of imparting advanced studies and for the holding of examination by the students in the various institutions. The respondent No. 1 is conducting such tasks of imparting studies from inter alia at The Department of Law University of Calcutta Hazra Campus. The respondent No. 4 & 5 are the incharge and responsible for the studies from the said institutions.

iii) Your petitioners No. 37 to 44 are the students of the first Year. Your petitioners No. 34 to 36 are the students of the second Year. Your petitioners No. 21, 22, 28 to 33 & 47 are the students of the third Year. Your petitioners No. 23 to 27 and 49 are the students of the fourth Year. Your petitioners No. 1 to 20, 50 & 51 are the students of the fifth Year. The respective names and the roll nos. of your petitioners are given in a schedule annexed hereto and marked 'A'.

iv) Till the last academic session i.e. 1997-98 the LLB examinations were held in four parts being parts 1, 2, 3 and 4 at the end of second, third, fourth and fifth year respectively. From the current academic session i.e. 1998-99 the LLB examination one due to be held in five parts and the students are required to appear for part I (now) examination at the end of the first year.

v) The number of setas in the., five-year LLB degree course is 320 in each year. There are, therefore, 320 students in the first and second years after which there is a marginal drop out of students who are unable to clear and/or appear at the previous examination. There are, therefore, ever 1500 students in the first, second, third, fourth and fifty years of the LLB Course.

vi) In each year there are four sections each comprising approximately 80 students. The classes of two sections are held together in case of the first and the second year and the classes for all the four sections are held together in case of the third, fourth and fifth years.

vii) The classrooms in which classes are jointly held are meant to accommodate the students of a single section that is approximately 80 students which is the optimum role strength of a single section. If however all the students of a year attended a class there would be 160 students attending the first and second year classes and between 260 to 300 students attending the third, fourth and fifth year classes.

viii) The classrooms in which the classes are held neither have the capacity nor sitting arrangements to accommodate the students of four sections or even the students of two sections. Whenever attendance in any first year class exceeds 50% to 60% or the attendance in any third, fourth or fifth year classes exceeds 30% to 40%, there is absolute commotion and chaos with over-crowding of benches. Many of the students who come to classes do not even get a place to sit in unable the classrooms and have to stand

ix) Furthermore, it is virtually impossible for a single teacher to conduct a class exceeding 80 to 100 students. There are no amplifiers in the classrooms. The students who sit at the back can hardly hear a lecture in the classes which are well attended.

x) The law classes are never held regularly. There are often long gaps between two classes, such gaps sometimes being of more than 2/3 hours. In the aforesaid circumstances students are deterred and/or discouraged from attending classes.

xi) Serious students of law have no option, but to obtain coaching elsewhere. Students who join the LLB course with a serious view to practicing as Advocates find it far more beneficial to attach themselves to Law Chambers and/or Law Firms where they can have easy access to the latest books and can also acquire practical experience and basic knowledge of Law.

xii) In the circumstances, there is hardly any attendance in the LLB classes conducted by the Respondent University of Calcutta. Although the Respondents realize fully that the reason for the poor attendance of the students of the LLB course is the total jack of infrastructure. Nothing is done to remove the inherent practical difficulties, which deter and/or discourage the students from attending the classes. It may further be pointed out that according to rules four periods for each section of the students are mandatory i.e. on an average 1 to 2 classes are held. Approximately 350 classes for all subjects were held during the whole year for the current academic session.

xiii) Knowing fully well that if a class is attended by all the students or even a good percentage of the students, it would be impossible for the respondent authorities to conduct the classes, the respondent authorities do not insist on attendance in classes. On the other hand, it is convenient for respondent authorities if classes are attended only by a small percentage of the students. This was the usual practice for several years that was followed by the respondents.

xiv) The purported rules framed by the respondent University of Calcutta relating to minimum attendance for appearance in University examinations have therefore merely been existing on paper so far as the LLB examinations are concerned and have never been enforced at least in the last five years in respect of any LLB examinations. Compliance with the said purported rules have all along only been symbolical, and all students are allowed to appear for the examination Irrespective of the actual number of classes attended by them. The students are merely shown to have the requisite attendance. Not a single student of the department of law of the respondent University has been made discolleglate and debarred from appearing in an examination in the last five years.

xv) The registers for recording the attendance of the students of the five year LLB course conducted by the University of Calcutta are not maintained properly and the same are manipulated. This will be evident from the fact that there are discrepancies in the total number of classes shown to have been held in respect of different sections of the fifth year, although the classes of all the sections are taken together, at the same time by the same Professor/Teacher. Furthermore, there are numerous instances where students who do not attend classes including students who are employed and cannot possibly attend classes are marked present and allowed to appear for the LLB examinations. Moreover it is not physically practical and possible for a single Lecturer to take attendance of 320 students of all the differ-ent sections in one period which is of about 60 minutes. Such recording of attendance were practically never done, accept for a few days during the beginning of the session.

xvi) This year, all of a sudden, under the garb of purported compliance with the rules of the Respondent University of Calcutta relating to minimum attendance for appearing in an examination which as your petitioners shall demonstrate is only a 'symbolic compliance', about 69 students including your petitioners who do not have any party affiliation and/or are not backed by students unions and/or are not able to exert external and/or extraneous influence, have been subjected to hostile discrimination, made dis-collegiate and debarred from appearing in examinations. Your petitioner could not attend the requisite number of classes for reasons entirely beyond their control but your petitioners have all along being subjected to practical, theoretical and effective studies

xvii) By a notice No. PRA/F 104 dated 3rd June, 1999 the respondent Controller of Examinations, University of Calcutta announced the dates for commencement of the LLB part-I (new), part-I (old), part-II. part-III and part-IV examinations and the dates for submission of examination forms for the said examinations. A copy of the said notice is annexed hereto and marked with the letter 'B'.

xviii) By a notice dated 15th June, 1999 the respondent Head of the Department of Law, University of Calcutta informed the students that examination forms would be available at the Calcutta University Sales Counter on payment of Rs. 10/- per form. The students were directed to collect the forms and also challans for depositing fees and to submit the completed forms in the office of the Respondent University at 51/1 and 51/2 Hazra Road, Calcutta within the notified time for verification, a copy of the said notice is annexed hereto and marked with the letter 'C'.

xix) Your petitioners accordingly went to the University sales Counter which is located at College Street. Calcutta-12 purchased the examination forms on payment of Rs. 10/- per form, obtained chanans from the cash counter of Re. 1/- per copy, filled in the farms and submitted the same to the Respondent authorities for verification.

xx) On 18th June, 1999 a notice was issued by the respondent Head of the Department of Law, University of Calcutta, intimating the students that the dates for verification of the part-1. LLB examination forms, have been deferred, A copy of the said notice is annexed hereto and marked with the letter 'D'.

xxi) Under the rules framed by the Respondent University of Calcutta in relation to the required attendance for examination which however has only existed on paper in respect of the LLB Course. Students are required to have atleast 65% of attendance for appearing in the examination as a 'Collegiate' candidate and those students whose attendance is less than 65% but above 55% are allowed to appear for the examinations as 'Non-Collegiate' candidates upon payment of a fee.

xxii) By a notice dated 22nd June 1999 the respondent Controller of Examinations, University of Calcutta published a purported list of students who had allegedly attended 65% of the total lectures and had been declared 'Collegiate' for appearing in the various parts of the ensuing LLB examinations, 1999. A copy of the said notice is annexed hereto and marked with the letter 'E'.

xxiii) From a perusal of the said purported notice it will appear that only 319 out of approximately 1500 students were declared 'Collegiate' thereby reflecting the dismally low attendance in classes. In this context, it would perhaps not be out of context to mention that there could be no reason why there should be such a poor attendance of students in general in a full time under-graduate course for a professional degree unless there were inherent defects in the course itself.

xxiv) By a notice dated 28th June. 1999 the respondent Head of the Department of Law, University of Calcutta published a list of candidates who had allegedly attended more than 55% but less than 65% of the total number of lectures delivered, who were provisionally allowed to sit for their respective parts of the ensuing LLB examination, 1999 as Non-Collegiate candidate and would have to pay a sum of Rs. 50/- as 'Non-Collegiate' fee for the purpose. A copy of the said notice dated 28th June, 1999 is annexed hereto and marked with the letter 'F'.

xxv) Your petitioners states that for the last several years it was the consistent practice of the respondent authorities not to dis-collegiate any student for shortage of percentage and the students were declared non-collegiate and they were allowed to appear in examination on payment of non-collegiate fee.

xxvi) Your petitioners states that all of a sudden this year without any notice and/or intimation to the students that the said past practice will not be followed all of sudden at the end of the academic session the respondent authorities decided to disallow the petitioners and also various other students from appearing in the examination for shortage of percentage.

xxvii) Your petitioner states that the said past practice generated a reasonable expectation in the minds of the students including your petitioners that shortage of percentage will not debar any student from appearing in the examination. It is not out of place to state that such past practice arose from a representation or a promise bona fide in the minds of the students. The existance of legitimate expectation arose from the existance of a regular practice which the petitioners reasonably expected would con-tinue and that the same had generated such expectation as to it continuence that it raised a public law obligation and that such practice should continue.

xxviii) The names and the roll numbers of the students who were allowed to appear for the examination either as 'Collegiate' or 'Non-Collegiate' students after the publication of the said list on 28th June, 1999 are setforth in a schedule annexed hereto and marked with the letter 'G'.

xxix) From the said schedule it will be seen that about 87 students of the first year, 93 students of the second year, 94 students of the third year, 62 students of the fourth year and 145 students of the fifth year were discollegiate and hence not allowed to appear for the examinations.

xxx) Your petitioners state and submit that most of the students whose names have been included in the purported list of Non-Collegiate students published on 28th June, 1999 did not in fact attend 55% of the classeg held, but their attendance was manipulated and they were only shown to have attended 55% of the classes by sheer manipulation. Many of the students whose names are included in the said list did not in fact attend even 10% of the classes held, as stated hereinabove students who were backed by the students' Unions and/or had political affiliation and/or otherwise exerted extraneous influence were able to get their names included in the Non-Collegiate list of candidates.

xxxi) By a notice dated 5th July, 1999. the respondent Head of the Department of Law of the University of Calcutta included one student of the first year, 8 students of the second year. 2 students of the third year and one student of the fourth year in the list of non-collegiate candidates published on 28th June, 1999. One student of the second year whose roll non, was G-51 was excluded from the list of non-collegiate candidates on the alleged grounds that her roll no. had inadvertently been inserted in the said list of 28th June, 1999. A copy of the said notice dated 5th July, 1999 is annexed hereto and marked with the letter 'H'.

xxxii) By a notice dated 7th July 1999 the respondent Department of Law, University of Calcutta published yet a third list of non-collegiate candidates. A copy of the said notice is annexed hereto and marked with the letter 'I'.

xxxiii) By a notice dated 8th July, 1999 the respondent Head of Department of Law of the University of Calcutta published a fourth list of non-collegiate candidates. The said purported list contained the Roll nos. of 6 students of the first year, 17 students of the second year, 10 students of the third year, 6 students of the fourth year and 8 students of the fifth year. The second year student bearing Roll No. G-51 whose name bad been included in the first list of non-collegiate students was thereafter excluded from the list on the ground that it had inadvertently been excluded wag once again included in this list as a Non-collegiate student. A xerox copy and a type written copy of the said notice are annexed hereto and collectively marked with the letter 'J'.

xxxiv) A comparision of the various lists published by the respondent Head of the Department of Law, University of Calcutta from time to time clearly reflects manipulation to include students who did not have the requisite attendance of 55% in batches. In any event there is no scope of publication of lists one after unless there are manipulations.

xxxv) Your petitioners state and submit that the Rules of the respondent University in relation to attendance for examination are not enforced in the LLB course. Not a single student has been made discollegiate in the last five years. All the students of the other Law Colleges affiliated to the respondent University have been allowed to appear in the examination irrespective of attendances. Your petitioner do not have any political affiliation and are not backed by the students Unions nor have your petitioners been able to exert any extraneous influence. Accordingly, your petitioners have been penalised in purported compliance of the purported rules which have been given a go-bye and are for all practical purposes non-existent in case of the five year LLB examination. Your petitioners have therefore been subjected to hostile discrimination and are been prevented from appearing in the LLB examinations which are scheduled to commence on 27th July, 1999.

xxxvi) As stated hereinabove, the names of the students who have actually attended even less than 10% of the total classes have been included in the list of non-collegiate candidates by sheer manipulation. In this context it may be pertinent to point out that the 5 year LLB course is a full time day course and classes are held from 9 a.m. to 2 p.m. There are many students who are employed and are not, abje to attend a Single Class at all have been declared non-collegiate candidates. One such instance is that of a 4th year student Digvijay Raychaudhury who is sergent of the Calcutta Police and is therefore not able to attend classes. The Digvijay Raychaudhury is required to attend to his regular duties and that he did not attend even 25% of the glasses as will be evident from services/leave, record of Digvijay Raychaudhury. Similarly, one Md. Belal Hussain Choudhury who is a 5th year student and his roll no. is 035 attended only 9 classes. His attendance has been manipulated and he has been included in the list of non-collegiate candidates. There are numerous such instances.

18. Such type of specific allegations are not been contradicted by the respondents by obtaining leave to file affidavit and wanted to rely upon the documents as aforesaid.

19. Mr. Utpal Bose, the learned Counsel appearing in support of the purported dis-collegiate students contended that the fact of the case is strong enough to make a prima facie case of legitimate expectation for condoning minimum percentage of attendance. In fact, many names of the purported discollegiate students were brought into the category of purported non-collegiate students so that upon putting requisite fees and upon accepting the University can regularise their attendance for the purpose of sitting in the forthcoming examinations when others were left discriminately. The authority proceeded on the basis of the whims of a student's Union.

20. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing on behalf of the University made his submissions mainly on the question of law. But before proceeding with his submissions, I like to point out that being prima facie satisfied with the contentions of the purported non-collegiate and discollegiate students this Court was pleased to allow the students to sit in the forthcoming examinations for the respective years under the interim orders, keeping in the mind, strong factual basis of those cases unlike many others which are some times becoming misplaced sympathy as depricated by us on numerous occasions as well as the Supreme Court of India. The University did not prefer any appeal but allowed the students to sit in the respective examinations. However, results were not published without the leave of the Court as also directed earlier. Be that as it may, the analysis of this case will say whether the interim order was granted rightly or wrongly irrespective of the above observation of this Court.

21. Mr. Bhattacharya has made his submission on the basis of three judgments of the Supreme Court of India. One is reported in : AIR1994SC1334 (Bar Council of India v. Aparna Basu Mallick) in its paragraph 16, another is : AIR1993SC2412 GuruNanak Dev University v. Parmindar Kumar Bansal and other is : [1998]1SCR897 , Central Board of Secondary Education v. Nikhil Gulati.

22. So far the first case is concerned, the word 'non-collegiate' is available but what is the context of pronouncing such judgment and whether the factual aspect of that case available for the purpose of applicability of law as applicable in the present position or not, has not been explained to the Court. The Court has gone through the judgment in its entirety and found that a post-graduate student in Political Science and Modern History undertook studies in LLB Course in Calcutta University as a non-collegiate woman candidate under Regulation 35 of Calcutta University, 1st Regulation 1951 framed under the Calcutta University Act, 1951 which underwent a change on the addition of the proviso by the Resolution of 7th December, 1979. Therefore, such analogy cannot be applicable in this context. Further the meaning of the 'non-collegiate' therein is private candidate or part-time candidate which is not available under new regulation. Now LLB Course is full time Course. For this reason, a complaint is made by the students that how some of the students can prosecute the studies and do their respective services at a time.

23. The other judgment being : AIR1993SC2412 prescribe in respect of interlocutory remedies and for showing misplaced sympathy. I am afraid that at the time of finalisation of this order, such point is, in fact, redundant and will arise if this Court fail to prove his justification in passing order or orders allowing the students to sit in the respective examinations.

24. The very important judgment, therefore, is the third reported judgment which is very short and precise on the point. But such Judgment is also helping the Court to come to an appropriate conclusion taking the same as a principle in this respect. Under an order refusing in granting Special Leave petition, the Supreme Court made an observation which is as follows :

'Occasional aberrations such as these, whereby ineligible students are permitted, under Court orders, to undertake Board and/or University examinations, have caught the attention of this Court many a time. To add to it further, the Courts have almost always observed that the instance of such aberrations should not be treated as a precedent in future. Such casual discretions by the Court is nothing but an abuse of the process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust-that unless the High Court can justify its decision on principle and precept. It should better desist from passing such orders, for it puts the 'Rule of Law' to a mockery, and promotes rather the 'Rule of Man'.

25. Although the observation can harsely (sic) affect one, then even the scope and ambit of justification is available in the observation itself to the extent as follows :

'..... we hope and trust that unless the High Court can justify its decision on principle and precept it should better desist from passing such orders......'.

26. Therefore, if there is a scope of justification on the basis of the fact situation can the Court shut out his eyes from laying down any principle and precept

My answer is 'No'.

27. It is depending upon conception and courage of the Court. Law makers are making various mistakes at the time of making law when it is implemented by the administration may adversely affect a class of people and to understand whether the same is Justifiable or not judiciary is there. Therefore, each and every case has its own view point of decision and cannot be sacrosanct even thereafter. Similarly, whether there is 'Judicial Activism' or 'Judicial restraint' or 'Rule of Law' or 'Rule of Man1 that has to be gone into by the Court itself. There is no fixed line to be drawn in between the aforesaid. Why there is no fixed line? This is because each case has to be evalued first on the basis of the fact which is basic foundation of application of law, When facts are stronger than fiction Court obviously enter into the arena of facts from the very beginning up to the end to analyse as to whether such principle will be applicable in the case or not. As I have already stated that this is a unique situation wherein large number of students by a stroke of pen disallowed to sit in the examination by treating them either purportedly non-collegiate or purportedly discollegiate students when there is no specific definitions in these respect either in the act or in the rules itself, any specification under the notification can be said more than a hand made justice of the University to penalise a student? Therefore, these are the questions relevant for the purpose of finding the issue herein. A student studying in a College for whole of the year coming with a case that the counting, if any, of the attendance was not properly done is an admitted position. Therefore, the question in respect of non-collegiate or discollegiate will come later on upon discharging the onus on the part of the specific allegations made by the students against the College and University in this respect. As and when such specific denial is not available it will be end of the matter considering the balance of probability. Discussions as to the statutory regulations and its applicability will come later on provided the step taken by the University is appropriate. As and when the fact situation is different, the same cannot be fit in the law without contradicting the factual aspect to suit their purpose alone otherwise. I have to hold and it is that the students and University before the Court of law are not in equal bargaining position. Therefore, sympathy, if any as shown by this Court is fully placed far to say that the same is misplaced.

28. Furthermore after Unni Krishnan JP as reported in : [1993]1SCR594 whereunder right of education, in effect, brought under Part III of the Constitution of India by saying fundamental right then why the law Courts under Article 226 of the Constitution of India will be rigid and not liferalise themselves like service law jurisprudence is unknown to me. If in one hand in case of socio-economic justice I liberalise myself by saying the constitution being Supreme, it is abounden duty of the law Courts to give shape and offer reality to such a concept and further say that Constitution is the fountain head of all the statutes and when language of Article 226 is clear why I put shackles to limit the jurisdiction in respect of educational matters by showing rigidity or otherwise and in such a case can I not be held up before the society for promoting 'Rule of Man'.

29. Whenever a statute comes up for consideration it must be remembered that it is not within human powers and foreses the manifold sets of facts which may arise, and, even if it were, it is not possible to provide them in terms of free from all ambiguity. The English language is not an instrument of mathematical precision.

30. In the instant case, the petitioners have come with a positive case that only 319 out of approximately 1500 students were declared collegiate. Strong factual aspects not only on the part of the so-called discollegiate students but also so-called non-collegiate students came-forward. Therefore, without ascertaining such position from the affidavit on behalf of the University, how the Court will come to a position that the assertion made by the students are incorrect, is unknown to me. It is well-known that when a case of mala fide or unfairness or discrimination or violation of principle of natural justice has been made, the respondent or respondents should come forward with an answer refuting or denying of such allegations. Otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of the probaility. Under the circumstances, it is not for the parties to say what is relevant or not the matter is one for the Court to decide. There is no question of vagueness in making such assertion as available from the application or applications. Therefore it can be presumed that there is no face saving answer on the part of the respondents or there is no co-ordination in between the authorities of the University to take the responsibility or there is no uniform stand.

31. Therefore, if I take the teaching of Lord Denning we shall come to know that a Judge, believing himself to be fettered by supposed rule that he should look to the language and nothing else, laments that the draftsman have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if acts of legislative body were drafter with devine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of legislative body and he must do this not only from the language of the statute but also from consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.

32. In this context, upon understanding such teaching and also going through the Act and the Statutes made by the University in this respect one positive question is coming to the mind of the Court repeatedly as to whether declaration that the students as 'non-collegiate' or 'discollegiate' can be applicable in rem by a stroke of pen under an one line order without ascertaining the individual cases by the College or by the University. Is it the intention of the legislature?What will be the impact upon the studentsfor the future years? :

33. This Court has taken a judicial notice of the fact that from now for the future years there will be appropriate admission test and only the successful candidates will get the entry. Even thereafter if some of seats are lying vacant those will not be filled up by unsuccessful candidates to maintain the standard. If it is so I am asking the University that if the petitioners are refused by the Court will it create discipline or indiscipline in future in respect of the studies of the fresh blooded students because Court is socially conscious about poluted entry in the Bar and it appears that this is one of the source.

34. Mr. Bhattacharya has relied upon unreported judgment of this Court in Re : T/1408/1999 etc. (Joy Mukherjee v. University of Calcutta with other matter) and said a Single Bench of this Court refused to entertain applications in the similarly placed situation following a Division Bench Judgment of this Court in the matter of (University of Calcutta v. Sujata Dutta) (G.A. No. 1493/1998), (APO296/1998), (W.P.No. 573/ 1998) wherein the order of the Trial Court was set aside on the reasoning that under the rules since such discollegiate students cannot be admitted to the examination, the Trial Court could not have passed any such order.

35. It is to be remembered hereunder that such Single Bench was pleased to refuse to entertain the writ petitions even at the threshold even for the purpose of sitting in the examinations without following the interim orders passed by this Court but following the Division Bench Judgment as above. Therefore, such Single Bench Judgment and order cannot have any binding effect at this stage of finality. However it is better to discuss about Division Bench Judgment and its applicability at a point of time.

36. In any event, it is crystal clear from the argument advanced by the University that they have acted within the four corners of the rules and statutes by refusing the students from sitting in the examinations. I have to analyse the same but before that I have to perform certain other duties by giving opportunity of hearing to parties i.e. so-called 'non-collegiate' students who are eager to make their submissions. In turn, they have repeated what submission they made earlier. In addition thereto they have categorically stated that the case of so-called 'non-collegiate' students are different from so-called 'discollegiate' students. The reason behind such submission is that the University has accepted the requisite fees as a token of penalty from such so-called 'non-collegiate' students allowing them to sit in the aforesaid forthcoming LLB Examinations. Therefore, their case is squarely covered by the act, rules statute and notifications by which the minimum label of percentage of attendance after condoning is fixed at 55%. They have raised a further point by placing a judgment reported in : AIR1976SC376 (Shree Krishan v. The Kurukshetra University) that once the candidate is allowed to take the examination rightly or wrongly then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for an infirmity which should have been looked into before giving the candidate permission to appear. It is to be remembered, in the instant case, this Court allowed the students to sit considering the prima facie case not by a misplaced sympathy which the Court is eager to explain and explain more and more and the University allowed the same and no appeal preferred from such order to the best of the knowledge of the Court. Under such circumstances, the principle as laid down by the 3 Judges Bench of the Supreme Court has to be taken note for subsequent discussion.

37. In the midst of the argument of Mr. Saktinath Mukherjee, learned Senior Counsel appearing on behalf of the 'non-collegiate' students, three questions came in the mind of the Court which were placed to all the Counsels to come to the inference. In any event these types of answers might have embarrassed them since all the questions are independent when after all they are proceeding with their clients case. In such a situation, I have appointed Mr. Dipankar Ghosh, learned senior Counsel of this Court as amicus curiae to give answer to three questions which are as follows :

'(a) Whether rules and regulations of the University of Calcutta can be made applicable to consider as to whether students are non-collegiate or discollegiate in rem or in personam depending upon individual cases;

(b) Whether rules and regulations made by the University are mandatory or directory in nature in this respect? How far the same is relaxable under the facts and circumstances of this case?

(c) What is the impact of the Single Bench unreported judgment of this Court dated 26th July, 1999 as referred above in respect of those cases before this Single Bench and whether this Bench can proceed independently about applicability of the rules and regulations as made in rem?'

38. Mr. Ghosh, in turn, made his submissions that if a student has not attended 65% days but attended 55%, he does not automatically become eligible. There is a discretion of the University to condone or not and this must necessarily depend on case to case. For an example, if one student decides to go at the race course and thereafter attends law lecture this would not be a good ground and on the other hand, if he falls ill and could not attend class this would be a good ground.

39. Therefore, the shortage in attendance can be condoned if satisfied. But after condonation minimum percentage is 55%. So if students bona fide is unable to come within 55% he becomes ineligible, this is mandatory. These are the matters for the University to come to conclusion as to whether the proper case about the condonation has been made out. So far the individual case is concerned if there is less than 55% he becomes ineligible. He does not know what evidence there is. He would have thought if it is shown that the University has accepted Rs. 50/- as condonation fees for shortage there must be some inference. They have power to condone and by taking the fee, they have in fact, confirmed that they have condoned.

40. When the matter was finally went up to the Vice-Chancellor, it seems subject to correction that what he said about the students to sit for examination is really applicable to discollegiate not to non-collegiate students. So far as the law is concerned there is no authority to the fact that under what circumstances a non-collegiate student can be debarred from appearing at the examination. If falls within the parameters. If the original rule remains there without modification then 55% is the requirement. In that sense the word minimum means 'mandatory'. So far as the non-collegiate is concerned according to him they are eligible. In the present case, it appears that they couldnot have been debarred.

41. So far as the dis-collegiate students are concerned whose attendance is below 55% according to him, this Court is bound by previous judgment of this Court that is the Division Bench judgment which has been followed by the another Single Bench of this Court in refusing grant of such prayer. If this Court has any doubt about the correctness in that event Court can refer the matter under Chapter 5. Rule 2 of the Original Side Rules to the Chief Justice for formation of larger Bench since the Division Bench judgment is placed on a similar point. But rightly or wrongly this Court is bound by such judgment.

42. The question of 'mandatory' is the key point and he came back to the notification which says 'minimum' after condonation. The University is really concerned with the bottom line of 55%. He could have understood if there was limitation which was arbitrary within the meaning of Article 14 of the Constitution of India. Within the Constitutional framework, nothing is arbitrary. Attendance of law lectures if integral part. In answering to a question to the Court as to whether such type of act can be done whimsically or not, the amicus curiae answered that it is a matter of fact and the Court is not supervising the attendance rolls. If they have done so, it is illegal. Illegality cannot be foundation of right. All these cases which are cited for misapplication, sympathy and discretion and other that is neither here nor there. Firstly, I come to Court because I have right; secondly, the right has been infringed, therefore, give appropriate reliefs. One case may be highly regrettable but one illegality cannot permit other one. In the Division Bench, the same question was followed. The Single Bench should follow the Division Bench but the Court may note the language of Chapter 5, Rule 2. Every thing is open for interpretation.

43. So far the other question as passed through the mind of the Court as to 'in rem' and 'in personem' in one sense every individual case has been considered. This is a question of fact. Again the matter of consideration between 55% and 65% has to be determined by reference of the facts of that particular candidate. The Idea is to give further result not to cause any inconvenience. Here broader question is involved.

44. Mr. Bikash Ranjan Bhattacharya, Learned Counsel appearing on behalf of the University of Calcutta contradicted with such argument by saying that both the batch of the students, were discollegiate under whatever circumstances may be. The teacher of the College took a decision absolutely without jurisdiction to condone three months delay as a mass. It must be discriminatory. If condonation based on the fact of an individual it cannot be a grace or slab. Here the College teacher permitted a group of students to be treated as non-collegiate in the eye of their own looking giving three months general grace which has been finally referred to the syndicate, who are the authorities. In this context, he referred to the petition of Mr. Debnath Ghosh and others by saying that the condonation is being claimed in representative category that basically destroys the fundamental concept of the condonation. He further contended that names of students of different classes have been combined together and applied for condonation of their attendance by one formula. There is no assertion of anybody that they did attend 55% and they are entitled to be considered as a matter of right for condonation. Therefore, the statement is quite clear that they are all discollegiate. On their prayer, the Head of the Department considered the illness and other compelling circumstances. This very statement destroys the fundamental concept of condonation as sought to be advanced by the learned Counsel on behalf of the petitioners that this must be discriminately (sic) and it should be based on individual merit. At the same time, all the students cannot fall ill. All the non-collegiate fees were accepted provisionally. If there is any wrong decision of the University authority, then he will be out of Court. Therefore, the University syndicate was really considering the question of discollegiate students on the basis of the rules. Therefore, there is no question of any interpretation. According to the University all of them are discollegiate. University says that students cannot by virtue of medical certificate or other things give them a lift up to 55% and then cannot treat discollegiate. A trouble started as discrimination. Something was beyond the control which University was not more willing to accept. If the syndicate is the authority who has to take decision, therefore, the decision is legal. The decision is not beyond the scope of rules and regulations. Scope and ambit of the judgment cited by the petitioner being : AIR1976SC376 distinguished. In addition thereto, he has cited another judgment reported in : (1998)6SCC215 (Maharshi Dayananda University v. Dr. Anto Joseph) in its paragraphs 6 & 7 which is in differently placed. But principally the learned Counsel cited the judgment possibly to guide the Court only to the extent of Court's interference.

45. Such submissions as made by Mr. Bhattacharya subsequently, made the learned Counsel appearing both for so-called discollegiate and so-called non-collegiate students enthusiastic in making their submissions in reply.

46. Mr. Utpal Bose learned Counsel appearing for the so-called discollegiate students specifically stated that it has now been corroborated on behalf of the University that the subsequent list was not proper. This subsequent list was made at the behest of the college authority. My case is that this is a case of arbitrariness, discrimination and on that ground alone this Court can be pleased to treat every one at par.

47. Mr. Maloy Ghosh learned Counsel appearing on behalf of one set of so-called non-collegiate students contended basically on the point that they were allowed to deposit the fees by 7th July, 1999 onwards and the decision was taken by the Syndicate on 22nd July, 1999. Therefore, their case cannot fall within the same category as the University is trying to insist before this Court. He further contended that such petitioners were granted receipts by the University upon acceptance of fees on their behalf as so-called non-collegiate students. Such receipts were granted by the University of Calcutta itself.

48. To be very frank, at one time, I was about to accept such submission of the amicus Curiae by allowing the so-called non-collegiate students as per his submission and by forwarding the matter of the so-called discollegiate students to the larger bench as a token of compromise. But his later submissions and further submissions of Mr. Bikash Ranjan Bhattacharya has drawn my attention to think about the matter twice. Further argument on the part of the University is suicidal. I was driven to think against the University and in favour of all the debarred students. Therefore, I want to discuss about the submissions of the Amicus Curiae which needed supplement by the Court along with moot part of last part of the argument of the University. It is also duty of Court to clarify ambiguities, if any, but not to fold hands.

49. It is to be remembered that discretion and mandate cannot run simultaneously. If Vice-Chancellor can apply discretion towards students then application of the Act, statute, rules and regulations, notification in connection thereto in that respect cannot be said to be mandatory. For an example, if a failed candidate apply for review and the result of review declares him pass just before the next year's examination, can he not be allowed to sit in the examination by condoning his percentage even if he has no formal attendance to be declared as non-collegiate student? The individual cases as stated at the initial stage are one for condonation on account of illness another for recording of name against different roll number, can it be said that such cases cannot be considered at all

50. My answer is if he/she can be considered and be allowed to sit in the examination by condoning the attendance by the appropriate authority even after getting percentage of attendance less than the bottom line of percentage of 55%, such bottom line also cannot be held mandatory but discretionary depending upon the circumstances of each case as per scrutiny.

51. Secondly, the Division Bench judgment in W.P. No. 573 of 1998 (University of Calcutta v. Sujata Dutta), which was followed by another Single Bench, is not similarly placed with this case. One is action in personem another is action in rem. In such judgment, facts of both the sides were available and the Division Bench was given anxious consideration of the fact by observing that 'Most unfortunately the attendances by the First Respondents in the classes were so poor that even upon exercise of discretionary power by the authority concerned, they could not be made eligible to sit for the examination as non-collegiate candidates. At least the First Respondents have failed to establish by any material whatsoever that even upon relaxation of the rule of attendance by 10% of the lectures delivered they could be allowed to sit for the examination as non-collegiate students'. The college authority was strict in not regularising the attendance. Matter was referred to pro Vice-Chancellor (Academic) of the University, in turn, he sent the matter to under Graduate Council, which sent a term of High Officials and Controller of Examination to inspect and report. Record was inspected and report was given on the basis of the individual cases.

52. Therefore, there was checking of individual gate-pass even to enter into the arena and the product is refusal from the very inception. But in the instant case, a set of students were allowed to deposit the fees and the receipts were granted and other set of students were principally allowed not only by the college but also Faculty of Law of the University in so many words and lastly the Syndicate is (sic) one hand withdrawn such final gate-pass by treating them with others at par who are yet to get such final gate-pass by an action in rem. Therefore, such non-speaking order by a stroke of pen has mixed reaction of principles analogous to Promissary Estoppel and legitimate expectation and specially when the same is not detachable as per the University itself is illegal. Therefore, such illegality gives rise to the petitioners to invoke writ jurisdiction of the Court with various specific back-ground, which are unrefuted and undenied.

53. A further part of the Division Bench judgment of this Court is necessary to be considered. According to the Division Bench. Sub-Section (2) Section 52 of the Calcutta University Act, 1951 was reintroduced in the New Act which is as follows :

'No student shall be considered to have prosecuted a regular course of study in any subject for any examination unless he has attended at least 75% of the lectures delivered and at least 60% of the tutorial classes held in that subject. The Syndicate in special cases may relax the rule for attendance up to 10% of the total number of lectures delivered.'

54. The subject notification being CSR/ 10/99 dated 24th May, 1999 as issued after such Judgment incorporated such part therein even by giving saving clause in respect of LLB Course. Composition and power of the Syndicate under the Act of 1979 does not speak about authority in this respect at best speaks about Post-Graduate Law which is not the subject matter herein. Therefore, power of Syndicate is under dispute. Even thereafter, if by way of a necessary implication of the Act and Judgment of the Division Bench, I come to the conclusion that Syndicate has power it is not understood as to why in individual cases test of further relaxation of the rule for attendance up to 10% of the total number of lectures will not be accommodated. Why no scrutiny or inspection of record and furnishing the record will be made available as done in the case before the Division Bench. Everyone cannot be party to the fraud or sharp practice. Therefore, how equal treatment can be made by punishing all of them in the manner of debarring from giving examinations. If all are aggrieved by one order they can join their hands in raising grievance before the Court of Law. Moreover, the minimum percentage even after condonation cannot be regarded as mandatory by virtue of the power of relaxation of the Syndicate, if any, as introduced by the Division Bench itself. If it is not then the power of the Syndicate is also under dispute. Therefore, I agree with the Amicus Curiae to the extent that the idea is to give further result not to cause any inconvenience. Here the broder question is involved.

55. Hence taking into totality of the circumstances, I do believe that I shall apply the test of maxim semper in dubiis benigniora praeferenda meaning thereby in all doubtful matter, the beneficial should be preferred. Therefore, I have to draw a line in favour of the petitioners. Hence all the students who were disallowed by the University are treated at par by giving preferential value in their favour.

56. Therefore, the appropriate authority of the University is directed to release the results, which are being withheld immediately.

57. All the writ petitions are, thus, disposed of and will be governed by this judgment and order along with the W.P. No. 22181 (W) of 1999 (Amit Kumar Jalan v. University of Calcutta) and W.P. No. 22182 (W) of 1999 (Debnath Ghosh v. University of Calcutta) filed in the Appellate Side.

58. No order as to costs.

59. Prayer for stay is made, considered and refused.

60. All parties will be entitled to have a xeroxed certified copy of the judgment and order upon usual undertaking.

61. However, all parties are to act on a signed copy minutes of the operative of this judgment upon usual undertaking and subject to satisfaction of the Officer of the Court about putting in requisitions for certified copy of this judgment as well as the drawing up and completion of the order.


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