JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned Counsel for the parties. 2. Petitioner is a student of Aligarh Muslim University in four year course of Bachelor of Fine Art (Painting). She successfully passed the first year with 72% marks and second year of aforesaid course with 72.7% respectively. 3. It is stated that while she was studying in third years course for Bachelor of Fine Art (Painting), she fell seriously ill and had to undergo a major surgery of liver, she was advised to bed rest and was unable to attend some of the classes of third year course thereafter on the medical grounds. As soon as she recouped and was permitted by the Doctors, she joined her class in January, 2007. 4. It appears that she was informed by her class teacher that she might not be permitted to appear in the examination as her attendance had fallen short of the required 75% attendance. However, she was permitted by the university to appear in the sessional examination conducted by the department in which she secured 75% marks and also completed all her assignment and submitted those in the department, which were mandatory and were required to be submitted before appearing in sessional examination. 5. The petitioner personally met with the Chairman on 18.3.2007 and informed her about the reason of the short fallen attendance. She also submitted an application to the Chairman for consideration of her case sympathetically for permitting her to appear in third year examination. 6. The petitioner also submitted an application dated 3.5.2004 and 4.5.2007 requesting to save her one precious year as she was not able to attend some Illrd year classes, which was beyond her control. She also requested to permit her to appear in the annual examination of Bachelor of Fine Art third year academic session 2006-07, which was scheduled to be held from 21st April, 2007. 7. The application of the petitioner was forwarded to the Dean Faculty of Fine Art by the Chairman, Department of Fine Art for sympathetic consideration of the case of the petitioner on medical and humanitarian ground as she had a good academic career. In turn the Dean Faculty of Fine Art forwarded the case of the petitioner to the Controller of Examination to look into her case with positive consideration. 8. In turn the Dean Faculty of Fine Art forwarded the case of the petitioner to the Controller of Examination to look into her case with positive consideration. 8. Thereafter the petitioner appeared in the annual examination, which was scheduled to start from 21st April, 2007 onward. She was permitted to appear in all the practical papers i.e. of Landscape painting on 21.4.2007, Portrait Painting on 22.4.2007, Mural Making on 25.4.2007, Life Drawing on 4.5.2007, Pictorial Composition on 5.5.2007 and Outdoor Sketching on 7.5.2007. 9. The petitioner is aggrieved by the fact that when she went to appear in the only Theory Paper of Indian Paintings combined with Aesthetics examination on 11.5.2007, she was not permitted to go into the examination Hall. Thus, she was restrained from appearing in the aforesaid examination by the University in her last paper. 10. She was thereafter also not allowed to appear in the back paper and as she was not attend the class of 2007-08 of Bachelor of Fine Art IV year. 11. Accordingly the petitioner has come in this petition. 12. The contention of the learned Counsel for the respondent University is that the petitioner’s case was considered by the Delay Condonation Committee herein referred to as the Committee in its meeting held on 28.3.2007 in the office of Dean of Faculty of Art for consideration the case of short fall in attendance of all students in light of Rule 2, Chapter XVII of the Ordinances (Academic). The Committee prepared three list of such students i.e. A, B and C. List ‘A’ contained the case of those students whose attendance was above 75%, list ‘B’ contained the cases of those students whose attendance was below 75% and upto 65% and list ‘C was of those students, whose attendance was below 65%. The attendance of the petitioner being 51% for remaining more than three months in Hospital fell within the ambit of list ‘C’. The relevant minutes of meeting in respect of the students in list C is as under : “List C : Attendance below 65%.—The Committee considered the cases of candidates having attendance in the above range and recommended that the students belonging to List C may not be allowed to appear in the examination.” 13. The relevant minutes of meeting in respect of the students in list C is as under : “List C : Attendance below 65%.—The Committee considered the cases of candidates having attendance in the above range and recommended that the students belonging to List C may not be allowed to appear in the examination.” 13. The respondents has then placed reliance upon paragraph 8 (c) of the counter-affidavit, which is as under : “that the matter of the petitioner was placed before Condonation Committee constituted by the Vice Chancellor of Faculty of Arts for consideration of shortage of attendance of the students. The case of the petitioners fall within ‘List C of the recommendation of the Condonation Committee. Hence they are not entitled to claim the benefits of the proviso to Rule 2, Chapter XVII of the Ordinances (Academic). The attendance of the petitioner was found below 65% and therefore the committee has recommended that the petitioner whose attendance was below 65% may not be allowed to appear in the examination. The Vice-Chancellor had approved the recommendation of the Condonation Committee for the Faculty of Arts on 28.3.2007 and accordingly, the petitioner was not allowed to appear in the examination.” 14. In para 8 (d) it is averred that 10% of the minimum required attendance can be condoned on medical grounds by the condonation committee. 15. Thus, the condonation committee can only condoned the attendance of the student who attained 65% of attendance and as such for the candidates below 65% of attendance, the condonation committee recommended that they may not be allowed to appear in the examination and submitted the report for consideration of the Vice Chancellor who had constituted the Committee. 16. Learned Counsel for the respondents has then relied upon the decision rendered by this Court in writ petition No. 57001 of 2005, Sheikh Jalaluddin Mohd. v. Aligarh Muslim University, Aligarh through its Vice Chancellor as well as rendered upon the judgment of the Apex Court (2002) 9 SCC 720 , Regional Engineering College Hamirpur and another v. Ashutosh Pandey and has further urged that the petitioner has been allowed for continuation as regular student in BFA Illrd year during the current Academic Session 2007-08 by the Dean, Faculty of Arts. Thus the petitioner is continuing as a regular student of Bachelor of Fine Arts in the University. 17. Thus the petitioner is continuing as a regular student of Bachelor of Fine Arts in the University. 17. It is stated in any case the petitioner had not been granted admission in Bachelor of Fine Arts IVth year for she has failed to clear BFA Illrd year examination since she was restrained to appear in the last examination paper for the said examination on account of shortage of attendance. 18. It is also submitted that students who are detained on account of shortage of attendance cannot be allowed to appear in back paper as they have failed to attain the minimum requirement for appearing in the examination of the University and therefore the petitioner was rightly detained by the University from appearing in the theory on account of shortage of attendance, which is only 51% whereas the minimum require attendance was 75%. According to the respondents every candidate has fulfilled the minimum requirement as contained in proviso to Clause 6 of Ordinances of Bachelor of Fine Arts as contained in Chapter XXI(A) proviso to Chapter XXI(A), which is reproduced as under : “Provided further that a regular candidate, (a) who fails to fulfil the minimum attendance requirements, or (b) who having fulfilled the minimum attendance requirements fails to pass in the papers required for promotion to the next higher part, applies for registration as a regular student shall have to fulfil the attendance requirement a new for all papers of the year in which he/she is studying and notwithstanding the provisions of Clause 7, he/she shall again perform sessionals work and practicals (any marks obtained in the preceding year being disregarded) and shall appear in all the papers at the next Examination of that year. But no candidate shall be permitted to continue as a regular student for more than two years in any one class of the BFA course.” 19. In rebuttal learned Counsel for the petitioner has submitted that the scope of Delay Condonation Committee constituted by the Vice-Chancellor was only for the purpose of granting 10% attendance on medical ground to all the students who had secured 65% and above marks but below 75% marks. In rebuttal learned Counsel for the petitioner has submitted that the scope of Delay Condonation Committee constituted by the Vice-Chancellor was only for the purpose of granting 10% attendance on medical ground to all the students who had secured 65% and above marks but below 75% marks. He urged that case of the petitioner regarding short fall in attendance in the special circumstances was within the purview of the Academic Council, which had the power to condone any shortage in attendance of the student and not only upto 10% as in the case of delay condonation Committee. He has also placed reliance upon provision of Chapter XVII appended as Annexure 2 to the counter-affidavit of the University, which is also referred in paragraph 7(a) of the Counter-affidavit. Proviso 2 (a) of Chapter XVII is as under : “The attendance requirements for the Semester courses shall be the same as for the non-semester course and the details are to be prescribed by the Academic Council. Provided that the Academic Council may in special circumstances, condone any shortage in such attendance.” 20. On the strength of it he submits that Academic Council has power to condone any shortage attendance in special circumstances. 21. Learned Counsel for the petitioner then submits that it is the Academic Council before whom her case ought to have been placed for condonation of the shortage in attendance as it was beyond her control to have attended the classes in pre and post period of operation in her liver. 22. After hearing the parties and considering the record on which reliance has been placed by the parties, it appears that the Delay Condonation Committee has power in respect of all several cases to grant relaxation upto 10% of the attendance only, which is clear from the word ‘may’ not be allowed, used by the said committee in the respect of meeting dated 28.3.2007 submitted to the Vice Chancellor as well as from the averments made in the counter-affidavit 8(d) quoted above. 23. Annexure 4 to the counter-affidavit which is copy of the minutes of meeting of the Delay Condonation Committee held on 28.3.2007 upon which reliance has been placed by the Counsel for the respondent, appears to be misplaced for the purpose of condonation of delay of shortage of any attendance under Chapter 17 quoted above. 23. Annexure 4 to the counter-affidavit which is copy of the minutes of meeting of the Delay Condonation Committee held on 28.3.2007 upon which reliance has been placed by the Counsel for the respondent, appears to be misplaced for the purpose of condonation of delay of shortage of any attendance under Chapter 17 quoted above. It may also be noted that the decision appears to have taken as per annexure dated 28.3.2007. The petitioner was not prevented by the University to appear in all examinations held in May, 2007. However, no reason has been given in the meeting held on 28.3.2007 by the Delay Condonation Committee as to why the application/representation of the petitioner for condoning her delay was being considered by it if the Committee had no authority in the matter to any of the circumstances which had been represented by the petitioner for consideration. 24. It is apparent from perusal of the minutes of the Committee that it has on advised to any of the circumstances enumerated by the petitioner in her representation which is also forwarded for sympathetic consideration by the Chairman to the Dean. It may also be noted that the Chairman of the faculty was also a member of the Delay Condonation Committee and he had forwarded the representation of the petitioner. In fact the Committee did not at all advert itself. 25. In the circumstances, I am of the view that recommendation of the committee in so far as the petitioner is concerned, was arbitrary without any basis and authority under the statute. The condonation committee could have only considered upto 10% of the shortage of attendance on medical ground and not any percentage of shortage of attendance make in special circumstances which was beyond the control of the student and could have been considered by the Academic Council only. 26. I am also fortified the judgment in civil writ petition No. 17243 of 2003; Mohd. Nasir v. Vice Chancellor, Aligarh Muslim University, Aligarh and another, wherein it has been held by this Court that it is only the Academic Council, who is competent to condone the shortage of attendance. 27. In so far the case of Sheikh Jalaluddin (supra) relied upon by the petitioner that it was a case where there were allegation of misconduct against the petitioner and shortage had occurred in attendance of Sheikh Jalaluddin Mohd. 27. In so far the case of Sheikh Jalaluddin (supra) relied upon by the petitioner that it was a case where there were allegation of misconduct against the petitioner and shortage had occurred in attendance of Sheikh Jalaluddin Mohd. for the reason that he had been suspended by the University with effect from pending enquiry. The shortage of attendance is due to fact of her being admitted in hospital for undergoing surgery of liver was not for misconduct or for any other such reason. In fact she could bonafide attend the class undergone an operation of liver which was beyond her Controller. 28. The Court is therefore of the view that her case of the petitioner be considered sympathetically by the University as was recommended to the Dean Faculty of Arts. The Committee could have not taken a decision, which was not within their power being the matter within the purview of the Academic Council. 29. Contention of Counsel for the University that as the Delay Condonation Committee did not condone the shortage in attendance of the petitioner she was not entitled to appear in the examinations is misplaced. The case of the petitioner appears not to have been considered under 2(a) Chapter XVII quoted above. Even otherwise the petitioner was a bright student and had obtained above 70% marks in all previous examinations. She was also not restrained from appearing in the sessional examination and all practical examination in annual examination of BFA Illrd year, even after the decision of the Delay Condonation Committee. Thus it would be unfair to her to have been prevented from appearing only in the theory paper. In the case of Sheikh Jalaluddin Mohd., which is not a better case than the petitioner, liberty had been granted to him to represent the matter before Vice-Chancellor for consideration in the next meeting fixed and for passing order after consideration in accordance with law. Hence as the petitioners case is better than that of Sheikh Jalaluddin Mohd., liberty is also given to the petitioner to represent her case before the Vice Chancellor for convening meeting of the Academic Council of her case within a period of two weeks from today. 30. Hence as the petitioners case is better than that of Sheikh Jalaluddin Mohd., liberty is also given to the petitioner to represent her case before the Vice Chancellor for convening meeting of the Academic Council of her case within a period of two weeks from today. 30. As regards the 4th year semester, since the petitioner has been arbitrary and illegally restrained by the Authority from appearing in the only theory paper of B.A. 3rd year examination and has been permitted to continue as student of the University, her attendance in the continuing session be considered for 4th years examination. In case the Academic Council decides in favour of the petitioner, then in that event it is made clear that the petitioner shall have submit all her practical, sessional etc. before the final examination of BFA 4th years are held. Only relaxation which is granted to the petitioner i.e. her attendance for 4th years may also be condoned by the Academic Council, if they take a decision in favour of the petitioner. 31. The petitioner shall be communicated the decision of the academic council within a period of one week after the meeting is convened. 32. The writ petition is accordingly allowed with the aforesaid direction. 33. No order as to cost. ————