w w w . L a w y e r S e r v i c e s . i n

Salila Balakrishnan & Another v/s The Director General, National Institute of Fashion Technology, Ministry of Textiles, Government of India & Others

    W.P. Nos.15790 & 28144 OF 2011 & M.P.Nos.1, 1 & 2 of 2011

    Decided On, 21 December 2011

    At, High Court of Judicature at Madras


    For the Petitioners: M/s. G. Thilagavathi, Advocate. For the Respondents: R1 to R3 - Muthukumarasamy, Senior Counsel for P. Srinivasan, Advocate.

Judgment Text

(Prayer in W.P.No.15790 of 2011: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the third respondent to allow the petitioner's daughter Ms.Devika Arangil, student of B-Design Course at the third respondent institute to complete her second semester re-examination scheduled in the 2nd / 3rd week of July by attending the re-jury examination scheduled to commence from 30.06.2011 as prayed for by the petitioner in her representation dated 29.06.2011.

Prayer in W.P.No.28144 of 2011: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents herein to allow the petitioner, Ms.Devika Arangil, student of the B-Design Course under the third respondent institute to complete her course of study by undertaking the present semester examinations commencing on 07.12.2011 and such subsequent re-examination for the completion of her course of study.)

Common Order

1. Considering the fact that both the writ petitions are between the same parties, governing the very same issue, they are taken up together and disposed of by this common order.

2. The petitioner Ms.Devika Arangil herein is a student. Having admitted for the course of Bachelor of Design, the petitioner has duly completed her first semester. As per the regulation governing the course, a student is required to have 75% attendance for each semester.

3. The second semester commenced during the first week of January,2011 and the examinations were scheduled to be commenced on 10th May, 2011. The petitioner was informed by the third respondent about the lack of attendance for the period between 10.01.2011 to 31.03.2011. For the period from 10.01.2011 to 31.01.2011, the petitioner was having 90% and from 10.01.2011 to 28.02.2011, the petitioner was having 71% attendance. A letter dated 07.03.2011 was sent by the third respondent to the petitioner informing the said fact. Apart from the intimation sent to the petitioner's parents for the lack of attendance for the period between 10.01.2011 and 28.02.2011, that the petitioner had secured only 71% attendance, once again another intimation was sent by the respondent dated 01.04.2011 to the petitioner and to her parents for the lack of attendance for the subsequent period. Overall the petitioner has secured 73% attendance for the second semester (10.01.2011 to 06.05.2011). This fact is not in dispute.

4. It is seen from the documents filed by the respondent No.3 that the petitioner has not attended some of the classes on a particular day, resulting in variation in the attendance. Accordingly, the petitioner has not secured the minimum required attendance of 75%. She has also not secured the minimum required attendance of 65% for individual subjects in few subjects.

5. The petitioner and two other students were informed once again that they cannot write the examinations as they did not possess the required attendance. All the three students made an appeal to the Respondent No.2 through Respondent No.3. However, only one student by name Ms.Anujith was permitted to do re-rejury schedule. However, she was not permitted to write the examination. Thereafter, the decision made earlier by Respondent No.2 was reviewed and the same was withdrawn on 11.07.2011. The decision was communicated to the said student on 15.07.2011. The said decision has become final as against the said student.

6. The petitioner filed W.P.No.15790 of 2011 contending that inasmuch as the other student, by name Ms.Anujith was permitted to write the examination and consequently the re-jury schedule was also permitted, she should also be granted the same relief. This Court has passed an interim order in M.P.No.1 of 2011 dated 30.06.2011, granting interim injunction as prayed for. In the subsequent order passed on 15.07.2011, the respondents were directed to permit the petitioner to write the examinations. Thereafter, a direction was issued to the respondents to publish the results. The order of this Court passed on 14.11.2011, was kept in abeyance by an order of a Division Bench of this Court with a direction to hear the writ petitions.

7. The petitioner was allowed to go to the 3rd semester by taking into consideration of the pendency of the writ petition with interim orders. Thereafter, W.P.No.28144 of 2011 was filed seeking a direction to complete the course further.

8. The learned counsel for the petitioner submitted that the decision to review the earlier decision made pertaining to the other student by name Ms.Anujith was taken because of the filing of the writ petition. Having made such a decision, the respondents cannot deny the relief sought for by the petitioner.

9. The decision made by the respondents is not a bona fide one. For the earlier decision of permitting the other student by name Ms.Anujith, to write the examination and thereafter to undergo the re-jury schedule, the petitioner cannot be put at a disadvantageous situation. Learned counsel for the petitioner further submitted that there is no order asking the respondents to continue the petitioner in the 3rd semester. Therefore, even though, the petitioner has failed in the 2nd semester, she is entitled to continue the 4th semester by declaring the results of the third semester. For such an action, the petitioner cannot be made to suffer. There is a lack of fairness on the part of the respondents and the petitioner would lose one year for the mistake committed by them. In support of her contention, reliance made upon the following Judgments:

1) The judgment of High Court of Delhi at New Delhi in W.P.(C) No.569/2010 & others (Kangana Modi & others Vs. National Institute of Fashion Technology & Another), dated 31.5.2010.

2) Director (Studies), Dr.Amebedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and Others Vs. Vaibhav Singh Chauhan reported in (2009) 1 SCC 59.

3) Dr.J.P.Kulshrestha and Others Vs. Chancellor, Allahabad University and Others reported in (1980) 3 SCC 418.

10. Per contra, learned Senior Counsel appearing for respondents submitted that the circular pertaining to the required attendance clearly stipulates that there is no question of relaxation regarding the overall attendance of 75% as per clause III of the circular. The petitioner admittedly does not come under the purview of clause (ii)(a) of the very same circular. When it is the admitted position that the petitioner did not have the attendance required for the second semester, the power of this Court under Article 226 of the Constitution of India shall not be exercised. The petitioner was not absent on various days, but for certain subjects on the very same days. The mistake committed by the respondents pertaining to the other candidates by name Ms.Anujith was rectified. The petitioner filed the Writ Petition only based upon the earlier order given in favour of the candidate by name Ms.Anujith, which was rightly withdrawn. The petitioner does not have a legal right under Article 14 of the Constitution of India, which mandates that there cannot be any equality based upon a wrong decision made. When the student is disqualified to continue the course and write the examination, this Court does not have the power to pass any interim order or final order. In support of his contention, learned Senior Counsel relied upon the following judgments:

1. Regional Engineering College, Hamirpur and Another Vs. Ashuthosh Pandey reported in (2002) 9 SCC 720

2. General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others reported in (2009) 7 SCC 205

3. The judgment of the High Court of Delhi at New Delhi in an unreported decision of the Delhi High Court in W.P.(C) No.3419/2010 dated 08.09.2010 in the case of Syed Shabeeb Raza Bilgrami & Others Vs. The School of Planning & Architecture and in an unreported decision in W.P.(C)No.7344/2011 dated 13.10.2011 in the case of Rishabak Sheonk Vs. Jamia Milia Islamia & Others.


11. Admittedly, the regulation governing the petitioner provides for the minimum required attendance. The Para-4.0 "Requirement" in Annexure5A of the Academic Manual is reproduced hereunder:

"I. A student is required to have minimum 75% attendance in total Sessions/Classes conducted during the semester to be allowed to appear in the final assessment/end semester exams/jury of the subjects.

II. A student is required to have a minimum 65% attendance in each individual subject taught in the semester to be allowed to appear in the final assessment/end semester exams/jury of the subjects. II. a) "In extreme extenuating circumstances, relaxation in attendance may be allowed to students who have overall attendance of 75% but have less than 65% attendance in upto two subjects, with lower limit of 50%, based on self-study norms in these two subjects. The students would be given special assignments related to the topics missed by them, under the guidance of the concerned faculty and based on certification of satisfactory clearance from the faculty, the students may be allowed to appear for examination. The decision will be taken by LASC under intimation to the DG before the semester Exam starts".

III. The student with shortage of attendance as per above would be issued three notices or warnings

a) After four weeks of start of semester, this would be in the form of a warning notice

b) At the time of mid-term exams, where the wrning should be stronger.

c) Two weeks before the end term exams which would specify whether the student is required to repeat the semester or would be permitted for re-exams.

IV. Uninformed absence of more than four weeks due to any causes means a loss of candidature for the student i.e. The name of the student will be struck off from the NIFT rolls.

12. It is not the case of the petitioner that she has satisfied the provisions contained in the Circular dated 22.12.2010. The records would show that Clause III of the requirement was complied with by respondent No.3, by informing the petitioner. Apart from that intimations were sent to the petitioner's parents leading to a presumption in law as they were sent by speed post.

13. Merely because a relaxation was made on an earlier occasion in favour of a third party, the petitioner cannot seek the same relief as a matter of right. It is to be seen that the relaxation given in favour of the said student was withdrawn subsequently. The only ground on which W.P.No.15790 of 2011 was filed is that the other student was given the relaxation and the same should have been extended to the petitioner. The said student did not have any better right than the petitioner and, therefore, the petitioner also cannot claim any better right than the said student. In other words, when the relief given to the particular student was withdrawn , the student who seek for the said relief cannot get a better relief. A mere filing of a Writ Petition and obtaining an interim order would not give any benefit to the petitioner.

14. As rightly contended by the learned Senior Counsel appearing for the respondents, the protection available under Article 14 of the Constitution is positive in nature and therefore, it cannot be a ground for seeking a relief in a Court of law. Hence, this Court is of the view that the petitioner cannot seek a relief based upon the facts which were applied to another student. It is further to be stated that the petitioner has not come to the Court after the said student was permitted to write the examination. Admittedly, the result of the said student was withheld, which was also known to the petitioner. It is only based on the permission to the other student to undergo the re-jury, the petitioner has come before this Court.

15. The contention of the learned counsel for the petitioner that the respondents having allowed the petitioner to undergo third semester cannot oppose the relief sought for, cannot be countenanced. It is further to be seen that as per the Student Rules & Regulations namely Clause E.9.4 Requirements for Promotion the petitioner cannot get the relief. The same is extracted hereunder:

"(d) It is mandatory to pass all the Core & Non core sub with 'C' minus 'D' grade respectively for promotion to next semester"

As per the said requirement, the student cannot go to the next semester without passing the previous semester. In this case, admittedly, the petitioner has failed in the previous semester.

16. The facts would reveal that the petitioner did not have the required attendance. The question is as to whether the petitioner is entitled to write the examination for second semester. Though the regulation prohibits writing of the examination, writing it subsequently by the orders of this court and having failed the petitioner cannot claim that she should be allowed to continue her further studies. It is true that the respondents have misconstrued the orders passed by this Court and allowed the petitioner to continue the third semester. However, the said fact by itself cannot be a ground to grant a relief to the petitioner. The contention of the learned counsel for the petitioner that had the result has been published for the second semester and the petitioner would be in a position to undergo re-jury schedule also cannot be countenanced. The re-jury schedule is not a substitute for attendance. It is a process of conducting the practical examination. The circular also does not provide for such course of action by providing any alternative method to overcome shortage of attendance.

17. A similar issue was decided by the High Court of New Delhi in unreported decision in W.P.(C)No.7344 of 2011 (Rishabh Sheonk vs Jamia Milia Islamia & Others) dated 13.10.2011. Paragraphs 8 and 18 being relevant are as follows:

"8. It has been the consistent view of this court that no sympathy or leverage can be given to those students who do not care to even attend the minimum number of classes of a particular course of the colleges/institutions as per the norms and regulations. This court had the occasion to deal with the issue of shortage of attendance in the case of Vandana Kandhari & Others Vs. Delhi University 170(2010)DLT 755 where it was held that the requirement of attendance cannot be given a go by and is important for the overall development of the student. The said judgment was challenged and was upheld wherein it was held by the learned Division Bench that the quality of training which a candidate gets during the time he undergoes the course is directly proportional to the number of lectures that he attends and the failure of a candidate to attend the requisite number of lectures as stipulated by the relevant rules can legitimately disentitle him to claim eligibility for appearing in the examination. In another case W.P.(C).No.7344/2011 page 9 of 14 of Fahad Hassan vs. Jamia Milia Islamia 170(2010)DLT755, I had the occasion to deal with a batch of writ petitioners claiming relief wherein they had been detained by the respondent and I held as under:

"14. This Court has time and again, through numerous judicial pronouncements, stressed the importance of attendance in educational institutions. As the incorrigible lot of students still approaches the portals of law for seeking relief, it has but become incumbent upon this Court to reiterate in black and white the dicta of law. In the detailed judgment of this Court in the case of Vandana Kandari and Ors. V. University of Delhi:170(2010) DLT 755, while crystallizing the legal position, declined to grant relief to the students falling short of attendance in L.L.B. Course of the Delhi University. This court observed that the problem of absenteeism has taken the face of a chronic disease plaguing the edifice of the education system as the students who do not attend classes have a strong belief that they are not suffering significantly by their absence as the absenteeism does not affect their clearing the examinations with good grades. However in the same matter, relaxation of attendance was given to two students who were pregnant, but setting aside the same, the Division Bench of this Court in LPA No.662 of 2010 decided on 10.01.2010 declined such exemption as well, elucidating the legal position that in no case whatsoever, relaxation of attendance can be given.

15. However, the Hon'ble Division Bench of this Court while upholding the abovesaid order in vandana Kandari (supra) whereby relaxation of attendance was declined to seven other students, in LPA 539/2010 title Sukriti Upadhyay v. Delhi University decided on 04.10.2010 held that the quality of training which a candidate gets during the time he undergoes the course is directly proportional to the number of lecturers he attends and the failure to attend the requisite number of lecturers can legitimately disentitle him to claim eligibility for appearing in the examination.

16. In the subsequent order of this Court in the case of Gangandeep Kaur v. Govt of NCT of Delhi WPC No.2790/2010 decided on 20.10.2010 this Court held that even if it were to be held that the petitioners were prevented for bonafide reasons beyond their control from attending some of the classes, there is no explanation as to why the petitioners could not have attended all the other classes during the remaining duration so as to fulfill/secure their eligibility for attendance. Thus it has to be stated firmly here that once the student by regular letters and notices put up on the notice board of the University is made aware of his shortage in attendance compelled by whatever reason, it becomes the solemn duty of the student to try and attend all the subsequent classes to make up for the attendance so that he does not stand the risk of getting ineligible for appearing in examination. W.P.(C)No.7344/2011 page 10 of 14

17. The strict view in not granting relief to the students has been further reiterated in the recent orders by this Court in Choudhary Ali Zia Kabir v. Guru Govind Singh Indraprastha University WPC No.3129/2010 and Vibhor Anand v. Vice Chancellor, GGSIP University WPC No.3163/2010. In view of the above cited detailed judgments, it is unnecessary to burden this judgment with more reasoning.'

'18. The importance of attendance can hardly be overemphasized. The students must understand that the attending the classes is not only important in terms of their clearing the examinations but also to share their minds, aims and perspectives in life. It would be befitting to quote here the observations of the Division Bench of this Court in the case of Ahutosh Bharti and Ors. v. The Ritanand Balved Education Foundation (regd.) and Ors.'

"3. It may be noted that the grooming up and progressing of the students at the college is an important aspect for assessing the students. Their presence is a must. That system has been recognised all over the world. If the student is not attending the classes regularly, the teacher will not be in a position to watch the progress of that student. Academic authorities are best judges in the field of education to make suitable rules, regulations or ordinances. It is for the college or the University to put the conditions on the students to attend a particular number of classes so as to be satisfied that the student has attended regular classes and he has taken education at the college/school.

4. Attendance is a must. Curriculum does not mean only examination, but it includes various other aspects such as discipline, behavior in the class room with the teachers and other co-students, answering the questions, time taken for answering the questions etc. These are the relevant aspects to be taken into consid

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eration by a teacher and this can be done only if a student is attending the classes regularly. The University has prescribed 75% minimum for this purpose and it cannot be said that it is not in accordance with law or it is an arbitrary provision. 5. If any step is taken towards better educational method and standard, not only the Court should not come in the way, but must command and encourage it. Those who fail to maintain such standard round the year may lose the very valuable year of the young career, just as they lose if they fail in the examination. Matters of academic judgment are not for the courts to entertain. Better standards are required for learning and it can be only from experiences and different modalities. Educational institutions are the best judges to impose appropriate restrictions and conditions. Merely because the conditions which are imposed may be found inconvenient to some students, it cannot be challenged as being arbitrary. All the students who are appearing in the examinations have attended classes for not less than " The ratio laid down by the Hon'ble High Court of Delhi at New Delhi applies to the facts on hand. This Court cannot issue any direction contrary to the Regulations governing the education of a student. Therefore, both the Writ Petitions are dismissed. 18. It seen that the petitioner has completed the third semester. The petitioner has paid the required fees for the third semester. Even though the petitioner is not entitled for the relief sought for, it cannot be said that the third respondent was not at fault entirely. The 3rd respondent was aware of the fact that the petitioner has filed in the second semester and therefore cannot go to the third semester. If the petitioner had been informed that she would not be entitled to the benefit of the third semester, she would not have spent the time apart from paying the fees. Therefore, considering the aforesaid facts, the third respondent is directed to return the fees collected from the petitioner for the third semester. 19. Accordingly, these writ petitions are dismissed with the above observations. Consequently, connected miscellaneous petitions are closed. No costs.