JUDGMENT
Vikramajit Sen, J.
1. Rule.
2. By consent of counsel for the parties, and keeping in perspective the urgency of the grievances ventilated in these petitions, they have been heard for final disposal. All of them concern the circumstances in which a student may be excused for being short of attendance and permitted to appear in the relevant examination.
3. Ordinance VII (Conditions of Admission to Examination) of the Delhi University and are reproduced for facility of reference:
“6. Attendance :
Subject to the provisions of Ordinance VII–Conditions for Admission to Examinations–a candidate for the B.A. (Honours) Part I or Part II or Part III Examination shall not be deemed to have satisfied the required conditions of attendance unless he has attended, in the main subject, not less than two-thirds of the lectures and practicals, separately, held in the College in each academic year and not less than two-thirds of the lectures and practicals, separately, held in the subsidiary subjects (taken together) in which instruction is imparted in each year.
Provided that a student of the I Year class or II Year class who does not fulfilll the required condition of attendance in subsidiary subject/s at the end of the I year and/or at the end of the II year, shall not be detained in the I/II year class, as the case may be, if otherwise eligible to proceed to the next higher class. Such a student will be eligible to appear at the examination in subsidiary subject/s concerned after putting in the requisite attendance during the subsequent year.
Provided further that in the case of a subsidiary subject in which instruction is imparted in more than one year, a student who has attended not less than 40 per cent of the lectures and practicals, separately, in the said subject during the I year, may be allowed to appear at the examination in the subsidiary subject concerned at the end of the I year subject to his making of the deficiency in attendance of the I year during the II year class. Similarly, a student who offers such a subsidiary subject and falls short of attendance in the subject concerned during the II year, but has attended not less than 40 per cent of the lectures and practicals, separately, in the said subject during the II year, may be allowed to appear at the examination in the subject concerned, if by combining the attendance of the II year in that subject with the attendance previously put in by him in that subject, he makes up the deficiency.
Provided further that a student of I year class who does not fulfilll the required conditions of attendance as provided in the main clause above, but has attended, in the main subject, not less than 40 per cent of lectures and practicals, separately, held during the I year class, may, at the discretion of the Principal of the College concerned be allowed to appear at the Part-I examination; but such a candidate shall be required to make up the deficiency of lecture and practicals, as the case may be, of the I Year, during the II Year.
Provided further that a student of the II Year class who does not fulfilll the required conditions of attendance as above, but has attended in the main subject not less than 40 per cent of the lectures and practicals, separately, held during the II year class, may, at the discretion of the Principal of the College concerned, be allowed to appear at the Part II examination provided that he makes up the deficiency of the II Year by combining the attendance of the first year class.
Provided further that a student of the II year class, who was short of attendance in the main subject at the end of the I Year Class, but was allowed to appear at the I Year examination, subject to his making up the deficiency of attendance during II year, and who has not been able to make up the deficiency, as above but has attended in the main subject, not less than 55% of the lectures and practicals, separately, held during the I Year Class and the II Year class, taken together, may, at the discretion of the Principal of the College concerned, be allowed to appear at the Part II Examination, subject to his making up the deficiency of the two years taken together, as above, during the III Year Class.
Provided further that a student of the III Year class who does not, fulfilll the required conditions of attendance as above, but has attended in the main subject, not less than 40 per cent of the lectures and practicals, separately, held during the III Year class, shall be allowed to appear at the Part III Examination, if by combining the attendance of the III Year with the attendance of I and II Years, the candidate has put in two-thirds of attendance in the main subject, separately in lectures and practicals, held during the three years.”
4. Chapter III of the Ordinances VII of the Delhi University namely, Conditions for Admission to Examinations. Rule 2 (1) states that – “no person shall be deemed to have pursued a regular course of study unless the Principal of his College/Head of Department … is satisfied that the required conditions in respect of his instruction have been fulfillled”. Sub-Rule (2) stipulates that the required conditions shall not be deemed to have been satisfied …. unless the candidate has attended not less than two-thirds of lectures and practicals … in each academic year. Sub-rule (8) (a) of Rule 2 requires that – “in the case of students studying for the LL.B. Degree Examination, no student shall be deemed to have pursued a regular course of study unless he has attended at least two-thirds of the total number of lectures delivered in each year including tutorials, seminars and discussion classes held during the academic year in which he has been admitted as a regular student of the Faculty: provided, however, that the Dean, may for reasons to be recorded in writing, permit a student of the 2nd or the 4th Term to take the examination if he is short by not more than 10% of the total number of lectures delivered including tutorials, seminars and discussion classes held during the 1st or the 2nd year of the course, as the case may be. Such a student shall have to make up the deficiency in attendance of the previous year in the next following year in which he is admitted failing which he shall not be deemed to have fulfillled the attendance requirements of the year. …” Sub-rules (9)(a)(ii), (b), (c ) and (d) of Rule 2 are of importance, which are reproduced below:
“(9)(a)(ii) The Principal of a College may consider, on the basis of the Medical Certificates produced, 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 determining 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.
(b) A College shall notify on the notice board the final attendance position of each of its students within three days of the dispersal of the classes in the last session of the academic year. Not later than five days, thereafter, a student may, by an application to the Principal of the college, claim benefit of exclusion of lectures under sub-clause (a) above on grounds to be specified and accompanied by the relevant documents. All such applications submitted within time shall be considered and disposed of by the Principal of the College at least 3 days prior to the commencement of the examination in which the student is intending to appear.
(c) The benefit of exclusion of lectures contemplated in categories (i) or (ii) of sub-clause (a) above, either separately or jointly, shall in no case exceed 1/3 of the total number of lectures delivered.
(d) In the case of a married woman student who is granted maternity leave, in calculating the total number of lectures delivered in the College or in the University, as the case may be, for her course of study in each academic year, the number of lectures in each subject delivered during the period of her maternity leave shall not be taken into account:
5. Before narrating and cogitating upon the facts of each petition I shall analyze the decisions relied upon by learned counsel for the parties. The first judgment is dated 4.2.2002, delivered by my Learned Brother Justice S.K. Mahajan, in CW 5738/2001 entitled Neha Kalra and others v. University of Delhi. The Principal of the College had refused to condone the shortage of attendance and consequently had not permitted the student to appear in the Examination. In that case Mahajan J. clarified the scope of judicial review in such like matters and took pains to state that the Court would not substitute its own decision in place of the manner in which the discretion of the Authority concerned had been exercised unless it is manifest that the discretion has been exercised arbitrarily or in a malafide manner. The argument that once the representation is made by the student and a Medical Certificate is produced along with the same, the Principal must exclude the period mentioned in such Certificate from the total number of attendance of that particular year was turned down, and it was observed that the Principal was not bound to accept the representations of the Petitioners just because a medical certificate was attached with them. The writ petition was dismissed.
6. CW 2292/2002 entitled Ms. Ambika Muttoo v. Lady Shri Ram College for Women was disposed of by my Learned Brother Justice Manmohan Sarin on April 17, 2002. In that case the Petitioner had approximately 43% attendance and she pleaded for the exercise of discretion in her favor by the Principal which permitted a student who had 40 per cent attendance to take the first year examination, subject to the candidate being required to make up the deficiency during the second year. The grounds set out by the Petitioner was that her elder sister had met with a road accident in Mauritius and had been kept in a body cast for a month. The stand of the College was that the Petitioner’s attendance worked out only to 39.4% and , therefore, the shortfall could not be condoned at all. In passing it was observed that – “i t would normally be expected that even College Authorities, would consider the case of such a student with the sympathy and consideration it deserved. Especially if the petitioner was indeed prevented from attending classes for reasons totally beyond her control, namely, attending to a bed-ridden elder sister”. Eventually my Learned Brother found that the deficiency in attendance was for a period unrelated to the days when the Petitioner’s sister was in a body cast. The writ petition was dismissed. The obiter observations cannot be relied upon by counsel for the Petitioner in the facts of the present case. It must be underscored that in both the above referred cases the Court was at pains to emphasise that the exercise of discretion by the Principal ought not to be varied by the Court or that the Rules should be ignored on sympathetic grounds.
7. In Chandigarh Administration and another v. Jagjit Singh and another, the Hon’ble Supreme Court has held that where an Authority acts in consonance with law or Rules and Regulations prescribed by it, in the absence of such rules being challenged, a Court exercising its extraordinary jurisdiction should not issue a writ of mandamus directing the Authority to act or decide matters contrary to such Rules and Regulations. The Delhi University has prescribed that every student should have 66 per cent attendance. This necessity can be temporarily waived only within the perimeters set down in the Rules and Regulations. Broadly stated a student can be allowed to appear in an examination only if it is possible for him/her to make up the deficiency in the remaining period so that the requirement of 66 per cent attendance is met. The question of sickness or accident suffered by a student will be discussed hereafter.
8. In CW 2211/2002 entitled Nitin Pant and others vs. University of Delhi and others, decided by my Learned Brother Justice Manmohan Sarin on 18.4.2002 the same provisions came up for consideration since the Petitioners Nitin Pant and others were disallowed to take the examination because of shortage in attendance. The contention was that the Petitioners who had devoted all their times and energy for obtaining excellence in sports and earning laurels for their college should accordingly be accorded most lenient and beneficial treatment. It was held that the decision of the Staff Council cannot prevail over the University Grants Commission Guidelines or the provisions of the Ordinances of the University. The writ petition was dismissed. There is therefore no clear precedent which prescribes that an illness or accident of a person other than the student concerned must be taken into consideration before exercising the discretion of containing the delay. The Rules are explicit and relate the reasons for seeking a remission or contention in shortage of attendance to the student himself. Merely because two separate eventualities, which may arguably overlap with each other, viz. falling seriously ill and meeting with an accident, have been separately articulated does not lead to the inference or construction that such misfortunes visited on members of the student’s family would also be relevant. Furthermore it cannot be ignored that it is incumbent for the student to apply immediately on the illness being cured or the accident being recovered from. Therefore as soon as and not later than one week, the student recommences attending lectures/classes, he must file such an application. This requirement is not waived by the Rules enjoining the college to notify those students who are running short of attendance by placing their names on the notice board. This is an altogether different circumstance. Furthermore, the Principal does not have untrammeled powers or discretion to condone absence contrary to the Rules. For instance if the student has less than 40 per cent in the First Year, or less than 55 per cent in the Second Year, the Principal would have no discretion in the matter. The only possible avenue for relief is the exclusion altogether of a certain period, so long as it does not exceed 1/3rd of the session. I find it difficult to be convinced that a sympathetic approach is called for where students keep away from classes, keeping in views the extent of Government funding in University studies.
9. I shall now deal with the individual Writ Petitions.
Civil Writ No. 2553/2003
10. The Petitioner’s allegation is that due to the illness of his mother he is entitled to the benefit of exclusion of that period in determining shortage in attendance. This is not a reason envisaged by the Ordinances. Furthermore in the present case the Petitioner’s mother was receiving outpatient treatment and it is difficult to appreciate why only the Petitioner was expected to look after and not her husband, i.e. the Petitioner’s father. Even if the illness/hospitalisation of the mother is taken into consideration, an application to this effect ought to have been filed as soon as she had recovered and the Petitioner had commenced attending classes. The Rules do not contemplate the ground of remission where attendance is intermittent or interspersed. If this were so, the Rules would be liable to be grossly misused. No grounds exists for the exercise of the extraordinary jurisdiction vested in this Court under Article 226 of the Constitution. However, it must be noted that the Rules have been transgressed by the Principal inasmuch as the Petitioner Representation dated 2.4.2003 was not disposed of by him within the prescribed time i.e. at least three days prior to the commencement of the examination in which the student is intending to appear. This amounts to dereliction of duty and it is expected that it will not recur in the future.
Civil Writ No. 2826/2003
11. In this case the Petitioner came to learn that he had only 45 per cent attendance and hence was not eligible to sit in the examination on 21.4.2003. On the following date he submitted a medical certificate to the college on which he was allegedly assured of being allowed to sit in the examination. In this case it appears that for 1st and 2nd year the Petitioner had attended only 45.43 per cent or 51.33 per cent and therefore fell below the 55%. Although it has been pleaded that the Petitioner was suffering from HepatIT is from October, 2002 to December, 2002, no medical certificate was produced Along with an application on his presuming attending lectures. The Petition is without merit and is dismissed, however, as in Writ Petition No. 2826/2003 it was to be expected that the Petitioner’s Representation ought to have been answered three days prior to the examination. No grounds exists for the exercise of the extraordinary jurisdiction vested in this Court under Article 226 of the Constitution.
Civil Writ No. 2991/2003.
12. It is alleged that the Petitioner had suffered medical complications and a threat of miscarriage for which she was admitted in hospital on 4.1.2003 and was advised strict bed rest from 4.1.2003 to 3.2.2003. Despite her problems she has stated that she has attended classes during this period. On 16.4.2003 she was informed that she had only 48% attendance. Prior thereto on 10.4.2003, the Petitioner had submitted Hospital Discharge Summary Along with other related certificates. She was, however, not permitted to appear for the final examination despite a recommendation by the Dean, Students Welfare, Delhi University. In essence the Petitioner prays that the period in which she was advised bed rest should be totally excluded on the one hand, but her attendance during this very period should nonetheless be taken into consideration while computing her attendance. This argument is devoid of logic or merit. It is also to be noted that the application for seeking the exclusion of the period when the Petitioner was advised bed rest has not been filed as soon as the Petitioner resumed attending classes. In fact it has also been noted above that the Petitioner had, on her own showing, attended lectures during this very period. No grounds exists for the exercise of the extraordinary jurisdiction vested in this Court under Article 226 of the Constitution.
13. The Writ Petitions are accordingly dismissed.