Arvind Gupta vs University of Delhi and Another

Sachar, J.

(1) This petition challenges the action of the respondent University in not having permitted the petitioner to take sixth semester of the LL.B. Examination because of the shortage of the attendance in lectures .Chapter Ii of Ordinance V of University of Delhi ,Vol. I Calendar (to be called the Calendar) provides for various courses of study including the Bachelor of Laws (LL.B). Ordinance Vii (2) lays down the condition for admission to examinations and provides that no member of the University shall be admitted to any examination for a post-graduate degree unless he has pursued a regular course of study as hereinafter prescribed for not less than two academic years. "The candidates for the various examinations are required to pursue regular course of study as indicated by sub-clause (3) of Ordinance VII. LL.B. has been prescribed three academic years (six terms). Clause 8 (a) of Ordinance Vii further lays down that in case of students studying for LL.B.Degree Examination, no student shall be deemed to have pursued a regular course of study unless he has atlended at least two-thirds of the total number of lectures delivered in each year ......... .held during the academic year in which he has been admitted as a regular student of the Faculty .There is exception in the proviso which provides that the Dean may permit a student of the 2nd or the 4thterm to take the examination if he is short by not more than 10 per cent of the total number of lectures delivered including tutorials etc. during the 1st or the 2nd year of the course. However, such a student shall have to makeup 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 fulfilled the attendance requirement of the year. The petitioner at the end of the IV semester was short in attendance of (20) lectures. Apparently these were less than 10 per cent of the total number of lectures delivered and he was, Therefore permitted to take the 4th semester examination subject to his giving an undertaking to complete the deficiency in the fifth semester. At the end of the fifth semester, the petitioner was still short of attendance in lectures, inasmuch as he had attended only 24 out of 101 lectures instead of 66. But he was not detained because of the rule requiring the counting of attendance for the entire academic year, which in this case was to be of 3rd year (5th and 6th terms combined). However, when the time for examination for sixth semester came ,the petitioner was, it is the common case, after giving the benefit of medical certificate, short by 29 lectures of a total of 5th and 6th semester combined apart from the shortage of 20 lectures carried forward from the end of 2ndyear, thus making a total shortage of 49 lectures. Of course it is common case that the petitioner had attended more than 2/3rd of lectures if only lectures of 6th term alone were counted. The University, however, in view of this position refused to send his name for examination because be was deemed not to have pursued the regular course of study ,inasmuch as he had not attended 2/3rd of lectures during the academic year i.e. 3rd year, which means 5thand 6th terms''. It is at that stage that this petition was filed and we permitted the petitioner to take the examination for the 6th term subject to the decision of the main writ petition. The result was, of course, directed to be withheld .The petition is now for final disposal before us.

(2) The stand of the University is that the petitioner has to take his 6th term examination in April, 1981 but he must attend requisite lecture in 5th, and 6th terms in the current year .It is, of course, conceded that the petitioner''s result of 5th semester will not be cancelled and he will retain the benefit of his successful passing. This stand is consistent with the position as found in Appendix Ii of the Ordinance relating to Bachelor of Laws to be found in the Instructions to applicant in Bulletin of Information for 1977-78 of Campus Law Centre, page 14 at page 16 where in para 9it is laid down that when a student. .... .has been detained for shortage of attendance, the result of any examination taken by him at the end of First, Third and Fifth terms of the academic year, shall not be cancelled. This will at no stage ,relieve the student of his obligation to put in the requisite attendance as per rules. The case of the University, Therefore, is that in terms of Ordinance VII(1) a student cannot be admitted to the examination for a degree unless he has pursued a regular course of study. The requirement, according to the University is two-fold (a) of passing the examination at the end of each semester and(b) of having attended at least two-thirds of total number of lectures delivered during the academic year.

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

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

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

(6) Mr. Gupta then drew our attention to the booklet Principles and Mechanics of the Semester System, brought out by the University Grants Commission in 1971 and brought to our notice the chapter on Aligarh University which says that the requirement of attendance at both postgraduate and the undergraduate levels has been dispensed with .We, however do not know whether the Aligarh University is still continuing this system. Mr. Gupta wanted to emphasise that the rule requiring attendance of lectures is required in laboratory and tutorial classes and. Therefore, the question of attendance was of no such significance in the case of the petitioner who is a student of LL.B The effort of Mr. Gupta was obviously to convince us that the requirement of attending lectures was of no consequence as to judge the merit of a student. Though at first Mr.Gupta urged the extreme proposition that the requirement of lectures should be held to be an irrelevant consideration he was willing to modify presumably to make it more acceptable by suggesting that though the University may insist on making the shortage of lectures, but without detaining on this account a student from taking the examination. So interpreted it would mean that the petitioner should have been allowed to take 6th term examination and then required to make up the deficiency of lectures in the next year, and degree will be given only after he had made up the deficiency of lectures. Now the argument suffers from the obvious following by asking us not to give effect and interpret the ordinance as it is, but to reframe and reword the ordinance so as. according to Mr. Gupta''s thinking more in attune with modern thinking on the subject. We find ourselves unable to entertain these suggestions for more than one reason. The view that attendance of lectures should not be insisted upon is not universally accepted. Thus in this very booklet the Vice Chancellor of Meerut University ,as stated there is some force in the argument that attendance should not be insisted upon, on the plea that it is achievement which is important and not the attendance, it must however be kept in view that unless objective tests are introduced, the yard-stick will have an inevitable tendency towards diminution to suit the level of achievement .. .. another result will fall in enrolment especially in the faculties of Arts, Commerce, Law and Education. and there will be little justification in maintaining institutions with all the expensive paraphernalia without ensuring their adequate use. He has also warned that once the process of waiver starts, sooner than later the demand for permission to appear as private candidate will have to be conceded. It will thus be seen that the view that attendance of lectures are not relevant to the studies are not such a satisfactory view that there are not reasonable doubts as to its application. The university in the counter affidavit has denied that the rule requiring attendance of a student in two third of the lectures makes the Rule absurd. The requirement to attend a certain percentage of lectures delivered is not only to enable a student to acquire requisite proficiency in the subject for the examination but also to ensure that a student who is pursuing a regular course of study requires a discipline of education and a disciplined outlook towards his classes, courses and the academic life. We cannot say that this view of the university is palpably groundless or without any merit. Unless the requirement laid down by the University is discriminatory, this court would not substitute its own views to that of the University. It must also be recognised that the academic discipline will be best preserved by all concerned including the Executive and even the courts abstaining from encroaching upon the autonomy and internal discipline within the portals of university and academic institutions after all they are temples of learning. We may also in this connection note the observations of the Supreme Court in a very recent case Civil Appeal 311511978 decided on 4/09/1980wherein the court observed: "The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the courts perhaps are least qualified to judge.

(7) It seems to us that the University has covered a number of situations. It is seen that the penalties are not provided for shortage in each semester so that the student if for unavoidable reasons does not attend the requisite lectures he can attend the lectures in the next semester. The petitioner is beneficiary of this rule because he was short at the end of the 4th semester and also at the end of the 5th semester and would not have been allowed to take the examination of 4th and 5th semesters had the rule not provided this flexibility. The petitioner was fully aware of this rule as is clear from the undertaking given by him on 12/04/1979 at the end of the 4th semester wherein he undertook to make up the deficiency in the next year and also further undertook that he will not be allowed to take the examination at the end of the next academic year unless the shortage was made up. The question of making up the deficiency of lectures in the subsequent year can only be available in the first two years. It cannot arise at the end of third year. Once a student has been found at the end of the sixth term not to have the requisite number of attendance to his credit, he is deemed to have not pursued the regular course of study with the result that he will have to take the sixth, term again next year (of course subject to the benefit that the fifth semester examination will not stand cancelled). We cannot find any logic nor can we so twist the rules as to accept the petitioners contention that even when a student is short in lectures at the end of a 6th semester he should be permitted to take the examination subject to his completing the lectures in the subsequent year. This is against the verywording of the Ordinance and we cannot re-write the same. We thus cannot find anything wrong in the action of the university in not having permitted the petitioner to take the 6th semester examination and also requiring him to complete the requisite number of lectures in the next year.

(8) We had heard the matter on 23/07/1980 when we were informed by Mr. Gupta that the petitioner wanted to move the University for condensation of shortage of attendance .When the matter came up again on 20/08/1980 Mr. Gupta informed us that the matter was still under consideration of the University authorities. We had permitted the petitioner to take the examination of 6th semester during the pendency of the writ petition, which was naturally subject to the decision of the writ petition. As we are now today dismissing the writ petition in the normal course ,the result would be that the 6th term examination he has taken by the petitioner would become infructuous and of no use. We had directed the withholding of The result. So, we do not know whether the petitioner has passed or not. Ordinance X-C permits the Academic Council to grant exemption from operation of any of the requirements including the attendance of lectures subject to certain requirements. Of course, it is for the Academic Council to decide finally on the representation made bythe petitioner. But we see that it would help the Academic Council in its decision if before deciding the matter it finds out whether the petitioner has been successful in the 6thsemester examination which he took in pursuance of our direction .If the petitioner has failed then nothing more is to be done. But if the Academic Council finds that the petitioner has passed the 6th semester which he took inpursuance of the direction of this Court, the Academic Council may seriously consider whether granting of exemption to the petitioner and condoning the shortage of the attendance of lectures in exercise of its power under Ordinance X will not meet the ends of justice. We may in this connection note that Mr. Gupta told us that as the matter was still pending the petitioner did not want to take a change ,with the result that he joined the fifth semester. We were also told that the petitioner has attended more than 2/3rd of the lectures given in the fifth semester. Thus the petitioner has complied with the requirement of Ordinance Viii (1) (8) so far as the fifth semester is concerned Of course, if the Ordinance is to be applied in its strictness the petitioner will be required to attend the lectures in 6thsemester and only permitted to take the examination of the6th semester in 1981. But we do feel that if the petitioner has passed in the 6th semester examination which he has taken and considering that the petitioner has attended more than 70 per cent of the lectures in the 6th semester in the last year, the Academic Council may well consider whether the ends of justice and the requirement of discipline have not been sufficiently met by the petitioner especially now thathe has attended requisite lectures of the fifth semester. It may also be noted that if the petitioner had complied with the regulation he would have obtained his degree in 1980July, but because of the shortage of lectures and the present litigation even if the Academic Council now grants him exemption the petitioner would have been delayed by about six months in getting his degree. The Academic Council may also consider if it wishes to be very technical that incase petitioner has passed the sixth semester examination, he may be awarded the degree in April, 1981 on the basis of result of sixth semester which he took in May. 1980.Thus he may not be asked to take the examination again. Thus the requirement of the University will be met inasmuch as the petitioner would have attended the requisite lectures of fifth semester in 1981; he has already completed the requisite requirement of the sixth semester and the result of May, 1980 examination could be the basis for giving him the degree but only in 1981. Thus the result will be that the requirement of the University that the petitioner should get the degree in April, 1981 will be met but at the same time it will not require the petitioner to undergo further purposeless lectures in the sixth semester and also not require him to undergo unnecessary strain and nervous experience of again having to take the sixth semester examination .This will broadly serve both the requirements of the discipline insisted upon by the University and also be a warning to the students that the regulation of the requirement of attendance of lectures cannot be ignored with impunity .Of course, it is not our purpose to tell the Academic Council as to what decision it should take because the matter is in its discretion and we do not wish to anticipate it. We have only indicated the various courses open to it in the recognition that sometimes considerations of mercy rather than insistence upon rigid and inflexible application of the rule will better serve the purpose for it hasn''t been well said :

" THE quality of mercy is not strained -In dropped as the gentle rain from heaven upon the place beneath, it is twice blest. It blessed him that gives, and him that takes."

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

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