BANARAS HINDU UNIVERSITY v. SHASHWAT VIKRAM GUPTA — 1996 DIGILAW 690 (ALL)

These three special appeals arise out of common judgment passed by the learned Single Judge permitting the petitioner-respondent to appear in the remaining papers of B. Com. Part III examina tion being conducted by the appellant No. 1 subject to the order which may be passed by the Academic Council of Banars Hindu University. 2. The question relates as to whether the student who is a regular student of Banaras Hindu University (in short the University) is entitled to appear in the examination when his requisite attendance is short as pres cribed under the Ordinance or Orders passed by competent authorities of the University and when his attendance is short, in what circumstances he shall be entitled to appear in the examination. The University has issued an Ordinance governing admission, courses of study, examination and further matters relating to Bachelor of Hons. Degree Course under the Faculty of Commerce. 3. Para 5 (a) of the Ordinance provides that a student shall be deemed to have pursued a regular course of study provided he or she has attended atleast 75% of the classes actually held in all the papers and also makes provision for condonation of shortage of percentage in attendance not exceeding 5% in each subject due to certain reasons mentioned therein. Paragraph 5 (c) provides that the Academic Council shall have power to condone the deficiency of attendance but only for cogent reasons. Para graphs 5 (a) and (c) read as under ; "5 (a) A student shall be deemed to have pursued a regular course of study provided he/she has attended at least 75% of the classes actually held in all the papers of his/her examinations provided the Principal/dean of the College/faculty concerned may con done shortage of percentage in attendance not exceeding 5% in each subject due one or more of the following reasons involving absence from classes ; (i) Participation in N. C. C. /n. S. S. /n. S. O. camps duly support ed by a certificate. (ii) Participation in University or College Team Games or r-State or Inter-University tournaments duly supported a certificate from the secretary of the University Athletic Association or President of the College/faculty Athletic Association concerned. (iii) Participation in Educational Excursions conducted on working days certified by the Principal/dean of the College/ Faculty or the Head of the Department. These excursions shall not include those organised for a class as a whole. (iii) Participation in Educational Excursions conducted on working days certified by the Principal/dean of the College/ Faculty or the Head of the Department. These excursions shall not include those organised for a class as a whole. No credit will be given for excursions conducted in holi days. University Deputation for Youth Festival certified by the Principal/dean of the College/faculty concerned. (v) Prolonged illness duly certified by the Medical Officer or the ( Superintendent S. S. Hospital of the Banaras Hindu University. . . . . . . . . . . . . . . . . . (c) The Academic Council shall have power to condone any deficiency of attendance but only for cogent reasons. " The factual back drop under which the petitioner-respondents were debarred from appearing in B Com. Hons. Examination may be briefly stated. All the petitioner-respondents are students of B. Com. Course. B. Com. Course is comprised of three years course with semester system of examination The S result of B. Com. Part II Examination was declared on 12th January 1996 The petitioner-respondents were admitted to third year course on 18th January 1996. The academic session was closed on 30th 1996. The Respondents had submitted their examination form for in the third year examination on 17th April, 1996 which was to from 9-5-1996. The Admit Card for appearing in the examination was to be issued on 8th May, 1996. On the said date the petitioners were not issued Admit Cards on the ground that there was shortage of attendance. 4. S. V. Gupta filed writ petition No. 16875 of 1996 on the allegation that his attendance was in fact, not short. He had attended the classes and secondly ha was not informed of the shortage of attendance prior to 8th May and which has caused prejudice to him Anurag Singh filed writ Son No 17182 of 1996 He also denied that there was shortage of attendance. In paragraph 6 of the writ petition a further stand was taken that there were various irregularities in taking classes by lecturers and taking attendance by them. V. K. Sharma filed writ petition No. 17336 of 1996 further claiming the benefit of condonation of shortage of percentage in the attendance to the extent of 5% in each subject as provided under Para 5 (c) of the Ordinance, referred to above. V. K. Sharma filed writ petition No. 17336 of 1996 further claiming the benefit of condonation of shortage of percentage in the attendance to the extent of 5% in each subject as provided under Para 5 (c) of the Ordinance, referred to above. The learned Single Judge took the view that the petitioners were deprived of the opportunity of approaching the Academic Council by not being informed about the deficiency in attendance in time and these petitioners have a right to make a representation in accordance with Para 5 (c) of the Ordinance and permitted to appear in the examination subject to the order which may be passed by Academic Council. The appellants have filed special appeals against the order of learned Single Judge. 5. We have heard Sri V. B. Upadhyaya, learned counsel for the appellants and S/sri Sidheshwari Prasad, Aditya Marain and Amarjit Singh, Advocates for the respondents. 6. The main thrust of the submission of learned counsel for the appel lants is that the petitioner- respondents were not entitled to appear in the examination as there was shortage in the attendance as prescribed by the Academic Council in its meeting dated 26th April, 1996. It decided that the minimum percentage of attendance shall be fixed at 60% and there was no scope to condone the deficiency in the attendance. The decision of the Academic Council was also approved by the Executive Council in its resolu tion dated 30th April, 1996. A copy of the minutes of the meeting of the Academic Council has been annexed as Annexure-2 to the affidavit accom panying the stay application which reads as under : " (7) Considered the minimum attendance requirements in respect of the students appearing in the various examinations of the University during the session 1995-96. After a good deal of discussions, it was resolved that it be recom mended to the Executive Council that- (i) the minimum attendance required for appearing at various examinations of 1996 under all the Faculties excepting the Faculty of Law and Institute of Medical Sciences, be fixed at 60 per cent. " 7. After a good deal of discussions, it was resolved that it be recom mended to the Executive Council that- (i) the minimum attendance required for appearing at various examinations of 1996 under all the Faculties excepting the Faculty of Law and Institute of Medical Sciences, be fixed at 60 per cent. " 7. We are not deciding the question as to whether the Academic Council by taking decision in its meeting can fix minimum percentage of attendance in contravention of Para 5 (a) of the Ordinance but it is clear that the decision of the Academic Council reducing the percentage of attendance for the purpose of the examination as provided under Para 5 (a) of the Ordinance from 75% to 60% does not take away the right of the Academic Council to condone any deficiency of attendance for cogent reasons under Para 5 (c) of the Ordinance. There may be various reasons under which a student could not have attended the classes and if Academic Council feels taking into consideration such circumstances and other relevant factors, may decide to condone the deficiency. The learned counsel for the respondent contend that the petitioners submitted representation but that was not entertained and there was no occasion for the Academic Council to consider such representation for exercising the power under Para 5 (c) of the Ordinance. 8. Learned counsel for the appellants next contended that the ; Council, on a representation being made has a power to condone deficiency of attendance of cogent reasons but where the dispute relates as to whether there was shortage of attendance, that question cannot be examined by the Academic Council. The respondents have raised a dispute percentage of attendance in the various classes. 9. The percentage of attendance can be verified from the record main tained by the Head of the Department of the University, and normally where some allegation of mala fide or other reasons has been made, the record- of the department concerned is to be accepted. In case there is a dispute, the matter can be decided by the Vice-Chancellor or still there is a dispute, it can be considered by the Academic Council. There is no forum prescribed for determining such disputes under the Ordinance. The Acade mic Council has been entrusted with the power to condone the deficiency of attendance for cogent reasons and it may consider this aspect also. 10. There is no forum prescribed for determining such disputes under the Ordinance. The Acade mic Council has been entrusted with the power to condone the deficiency of attendance for cogent reasons and it may consider this aspect also. 10. The last submission of learned counsel for the appellant is that till the matter is decided on the representation of the respondents, they should not be permitted to appear in the examination. In Para 12 of the affidavit filed on behalf of the appellant, it has been stated that there are many students who have been debarred from appearing in the examination on account of shortage in percentage of their attendance ; therefore if a few of such students are permitted to appear in the examination which has commenced since 9th May, 1996, it will create disturbance in smooth functioning of the examination and other students will also insist that they should be permitted to appear in the examination on the ground that they are also disputing the fact of their shortage of attendance. 11. The main question for consideration is whether, in the facts and circumstances of the case as discussed in the foregoing paragraphs, the petitioner-respondents should have been permitted to appear in the exami nation before their representations were considered and deficiency in their attendance was condoned by the Academic Council. 12. As noted earlier, the examination commenced from 9th May, 1996 and it will be over on 31st May, 1997. The writ petitions were filed on 13th May, 1996 and the impugned judgment/order was passed by the learned Single Judge on 16th May, 1996. By then, examination in two papers had already been held and the petitioners had not appeared in them. It is also not in dispute before us that the petitioners could, in no case, pass the examination without appearing in the papers in which the examination was already over by the date of the order of the learned Single Judge. It is stated by the learned counsel for the petitioner-respondents that even though this Court passed the order, the petitioners have not been permitted to appear in the examination. In the meantime, examination in two more papers is over and only two theory papers are left. 13. It is stated by the learned counsel for the petitioner-respondents that even though this Court passed the order, the petitioners have not been permitted to appear in the examination. In the meantime, examination in two more papers is over and only two theory papers are left. 13. It is relevant to note here that the appellants, in the affidavit filed in support of the stay application in the appeals, have categorically stated that even if the question raised in the appeals are decided against the University and the decision of the University does not find favour with the Court, the appellants will allow the petitioner-respondents to appear in all the papers of the examination and the academic year of the petitioner-respondents will not be wasted on account of the aforesaid decision of the University. Reiterating this position, Sri V. B. Upadhyaya, appearing for the appellants, submitted that in case the Academic Council takes a decision to condone the deficiency in attendance of the petitioners, the University will hold a special examination in all papers for them and that examination will be taken as a part of the regular examination held between 9th May and 31st May, 1996. In these circumstances, in our considered view, the learned Single Judge was not right in directing the appellants to permit the petitioners to appear in the remaining papers of the examination before the Academic Council considered their representations for condonation of deficiency of attendance. Grant of such permission in such circumstances is contrary to the provisions of the Ordinance and the decisions of the Academic Council. 14. Keeping in view the fact situation of the case and the interest of the petitioners and necessity of academic discipline in the University, it would be apt and proper to direct disposal of the representations of the petitioner respondents by the Academic Council within a specified time and direct the appellants to hold special examination for the petitioner-respon dents whose deficiency of attendance is condoned by the Academic Council, at undertaken by the appellants. This arrangement, in our view, will not only be in accordance with the provisions of the Ordinance and the deci sions of the Academic Council but will also avoid any serious prejudice to the petitioners in the event of condonation of deficiency of their attendance. 15. This arrangement, in our view, will not only be in accordance with the provisions of the Ordinance and the deci sions of the Academic Council but will also avoid any serious prejudice to the petitioners in the event of condonation of deficiency of their attendance. 15. Accordingly, it is ordered that the petitioners will submit their representations in the matter to the Vice-Chancellor of the University within ten days. On receipt of the same, the Vice-Chancellor will take steps to place them before the Academic Council as early as possible not lather than four weeks from the last date of receipt of representations. If the Academic Council condones the deficiency of attendance of the peti tioner-respondents or any of them, the appellants will hold special exami nation for them within one month and this examination will be taken as a part of the regular examination held from 9th May, 1996. 16. In the result, the special appeals are allowed and the order of the learned Single Judge if modified in the manner and terms indicated above. There will be no order as to costs. Appeal allowed. .