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2008 DIGILAW 649 (KAR)

Preetham Bhargav K. S. v. S. B. R. R. Mahajan First Grade College

2008-10-31

S.ABDUL NAZEER

body2008
ORDER Abdul Nazeer, J Petitioner had joined the first respondent college for the study of B.Com Degree course for the academic year 2005-2006. The first respondent-college is affiliated to the second respondent-University. The B.Com degree course is a three years course consisting of six semesters. The petitioner has completed five semesters successfully. The petitioner was issued with a hall ticket (Annexure 'B') to appear for the 6th semester examination scheduled to commence from 21.5.2008. However, he was not permitted to attend the examination on the ground that he had shortage of attendance in the 6th semester. Since several students of the first respondent-college were not permitted to appear for the said examination on the ground of shortage of attendance, it appears that the University has clarified to the college that the students who have put in more than 60% attendance can appear for the examination subject to payment of certain penalty. However, petitioner was not permitted to appear for the examination since he had less than 60% attendance in one of the subjects, namely, 'Accounting and Finance'. Therefore, petitioner has filed this writ petition seeking the following reliefs: "(i) issue a writ of mandamus directing the respondent No.1 and 2 to allow the petitioner to attend the 6th semester examination and permit him to appear for remaining examination. (ii) pass any other order or direction that this Hon'ble Court deems fit in the circumstances of the case, in the interest of justice and equity." 2. This Court has passed an interim order dated 3.6.2008 permitting the petitioner to appear for the examination subject to the result of the writ petition. The respondents were directed not to announce the result of the said examination without the leave of the Court. 3. The college has filed its objections contending that though petitioner had over all 78% of attendance, he had put in only 58% attendance in the subject' Accounting and Finance'. Therefore, he was not eligible to appear in the said examination. 4. Learned Counsel for the petitioner would contend that similarly placed students have been allowed by the respondents to appear for the examination in question. Though hall ticket was issued to the petitioner for appearing for the examination in question, he was not permitted to attend the said examination. Therefore, he was not eligible to appear in the said examination. 4. Learned Counsel for the petitioner would contend that similarly placed students have been allowed by the respondents to appear for the examination in question. Though hall ticket was issued to the petitioner for appearing for the examination in question, he was not permitted to attend the said examination. It is argued that the action of the respondents in not permitting the petitioner to appear in the examination is arbitrary and illegal. 5. On the other hand, learned Counsel appearing for the respondents submit that petitioner had put in 58% attendance in the subject' Accounting and Finance'. Having regard to the relevant Regulations of the University, he was not eligible to appear for the 6"' semester examination. It is further contended that the University has permitted the college to allow such of those students who had put in more than 60% attendance in all the subjects to appear for the examination which is in conformity with therelevant Regulations of the University. Since the petitioner had put in 58% attendance in one of the subjects, namely, Accounting and Finance, he was not permitted to appear in the examination. 6. Having regard to the rival contentions of the parties, the only question that arises for consideration is whether the respondent are justified in not permitting the petitioner to appear for the 6th semester B.Com degree course examination? 7. It is evident from the material on record that petitioner had put in only 58% attendance in one of the subjects, namely, ‘Accounting and finance’ though he had put in 78% attendance in all the subjects put together. Before deciding the question raised in this writ petition, it will be useful to notice the Regulation government the Semester System to Graduate Course, 2004 relating to attendance during the relevant point of time. The relevant Regulation are 4.1 to 4.5, which are as under; 4.1 Each semester shall be taken as a unit for purpose of calculating attendance for the Semester, if he/she has attended not less than 75% of the number of working hours/periods in each paper/subject in each semester. 4.2 Shortage of attendance up to 15% (i.e. 60% or more but less than 75% may be condoned by the Vice-Chancellor on the recommendation of the Principal of the College on payment of Fee prescribed by the University. 4.2 Shortage of attendance up to 15% (i.e. 60% or more but less than 75% may be condoned by the Vice-Chancellor on the recommendation of the Principal of the College on payment of Fee prescribed by the University. There shall be no condonation if attendance is below 60% during any semester, for any reason. 4.3 A candidate who does not satisfy the requirement of attendance shall not be eligible to take examination of the concerned semester, nor is eligible to get admission to the next semester. 4.4 A candidate who fails to satisfy the requirement of attendance in a semester shall repeat that semester when offered in the immediate subsequent year. This facility shall be available only for Two times in the entire course. 4.5 In the case of a candidate who represents his her institution/University, Karnataka State/Nation in Sports/NCC/NSS/Cultural or any official activities shortage of attendance up to a maximum of 15 days in a semester may be condoned, based on the recommendation and prior permission of the Head of the Institution concerned. In extraordinary cases, to encourage talented students, shortage of attendance up to a maximum of 25 days or actual in a semester may be condoned, based on the recommendation and prior permission of the Head of the Institution concerned. 8. It is clear from the aforesaid Regulations that each semester has to be taken as a unit for the purpose of calculating attendance and a student has to put in not less than 75% of the number of working hours/periods in each paper/subject in each semester in order to qualify to appear in the examination. It is also clear that the Vice-Chancellor of the University is empowered to condone shortage of attendance up-to 15% on the recommendation of the Principal of the college on payment of the fee prescribed by the University. The Regulations also make it clear that there shall be no condonation, if attendance is below 60% during any semester for any reason. A candidate, who does not satisfy the requirement of attendance, is not eligible to take examination of the concerned semester. The Regulations also make it clear that a candidate who fails to satisfy the requirement of attendance in a semester shall repeat that semester when offered in the immediate subsequent year. A candidate, who does not satisfy the requirement of attendance, is not eligible to take examination of the concerned semester. The Regulations also make it clear that a candidate who fails to satisfy the requirement of attendance in a semester shall repeat that semester when offered in the immediate subsequent year. It is only when the candidate, who represents his/her institution/University, State of Karnataka/Nation in Sports IN CCINSS/ Cultural or any Official activities, shortage of attendance up-to a maximum of 15 days in a semester may be condoned, based on the recommendation and prior permission of the Head of the Institution concerned. 9. Attendance is necessary to achieve academic discipline and scholastic excellence. It is the foundation for any course of study. That is why the University has provided for a minimum attendance in a semester. What may not be done under the Regulations of the University cannot be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution. Article 226 is not meant to avoid or circumvent the process of law and the provisions of the statute. It is settled that Court does not interfere with the decisions of the authorities as the educational institutions and the Board/University are best fitted to examine the matter. The Court should not normally impose its decision on them. The Apex Court in the case of ASH OK KUMAR THAKUR vs UNIVERSITY OF HIMACHAL PRADESH & OTHERS, has held that if student's deficiency in the matter of attendance exceeds 15 lectures in each of the subjects, it is beyond the jurisdiction and competence of the Principal to condone the deficiency. It has been further held that where the Principal was empowered to condone the deficiency in attendance to a particular limit, but student's deficiency in attendance exceeded the prescribed limit of condonable deficiency, it was beyond the jurisdiction or competence of the Principal to condone such excessive deficiency. This Court in the case of SATISH vs VICE CHANCELLOR>, has held that attendance is necessary to achieve academic discipline and scholastic excellence. Recognising its importance, the Regulations provide for a minimum attendance and also provide for exercise of discretion by the Vice Chancellor, to condone a further shortage in given circumstances. Beyond that limit, the Vice-Chancellor him self has no power to condone the shortage. Recognising its importance, the Regulations provide for a minimum attendance and also provide for exercise of discretion by the Vice Chancellor, to condone a further shortage in given circumstances. Beyond that limit, the Vice-Chancellor him self has no power to condone the shortage. In such a case, it is neither advisable nor permissible for Courts to exercise their extra-ordinary jurisdiction to condone shortages beyond permissible limits thereby setting at naught academic control and discipline and interfering in a matter which is purely within there regulatory province of Colleges and the Universities. In UNION OF INDIA & ANOTHER vs KIRLOSKAR PNEUMATIC CO. LTD.3, the Apex Court while dealing with the power of the High Court to issue writs under Article 226 has held that the power conferred by Articles 226/227 being designated to effectuate the law, to enforce the rule of law and to ensure the several authorities and organs of the State act in accordance with law, it cannot be invoked for directing the authorities to act contrary to law. In K.S. BHOIR vs STATE OF MAHARASHTRA & OTHERS', the Apex Court has again held that it is not permissible for the High Court to direct an authority to act contrary to the statutory provisions. 10. Coming to the facts of the present case, material on record clearly discloses that petitioner has put in 58% attendance in the subject 'Accounting and Finance'. It is not the case of the petitioner that he has put in more than 60% of attendance in the said subject. A combined reading of the aforesaid Regulation would clearly indicate that in order to appear in the examination in question, a student has to attend not less than 75% of the number of working hours/period in each paper/ subject in each semester. The Vice-Chancellor is empowered to condone shortage of attendance up-to 15%. Therefore, petitioner has to attend not less than 60% of number of working hours/periods in each paper/subject in each semester after condonation of shortage of attendance up-to 15% by the Vice-Chancellor. Merely because the petitioner has put in over all 78% attendance, he is not eligible to appear in the examination in question. A candidate, who does not satisfy the requirement of attendance, shall not be eligible to take the examination of the concerned semester as a whole nor is he eligible to get admission to the next semester. Merely because the petitioner has put in over all 78% attendance, he is not eligible to appear in the examination in question. A candidate, who does not satisfy the requirement of attendance, shall not be eligible to take the examination of the concerned semester as a whole nor is he eligible to get admission to the next semester. Since the petitioner has not put in required attendance in one of the subjects, the respondents are right in not permitting the petitioner to take the examination in question. 11. The contention of the learned Counsel for the petitioner that the students, who are similarly placed have been permitted to appear in the examination is without merit Petitioner has not produced any materials to show that a student, who has put in less than 60% of attendance in one of the subjects, has been allowed to take the examination in question. As noticed above, this Court cannot direct the respondents to permit the petitioner to appear for the examination contrary to the relevant regulations. Even if the respondents had allowed a student for the examination in question, who has not put in the required percentage of attendance to appear, this Court cannot permit the petitioner to appear for the examination on the ground of discrimination. Two wrongs do not make a right. It is settled that a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is the existence of similar legal foothold. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is the existence of similar legal foothold. In SATISH's case (supra), this Court has held that no one has aright to claim performance of an unlawful or illegal act The jurisdiction under Article 226 is not intended to perpetuate illegalities, but to strike at them On the ground that grant of benefit of an illegality to only a few would amount to discrimination, a Court cannot direct anAuthority to repeat the illegality or extend the benefit of the illegality to others, If a person who has a legal right is denied the benefit of it, while others having a similar right are given the benefit of such right, then there is discrimination, and a mandamus may be issued to ensure that he also gets a similar benefit But, if a person who does not have a right is given a benefit contrary to law, then the illegal act itself will be struck down and there can never be a mandamus to repeat the illegal act to favour others, In UNION OF INDIA & ANOTHER vs INTERNATIONAL TRADING CO. & ANOTHER, it has been held as under: "Even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty-two vessels are concerned, but it cannot come to the aid of the respondents. Two wrongs do not make a right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality, the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality" 12. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality, the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality" 12. I do not find any merit in this writ petition. In the result, writ petition fails and it is accordingly dismissed. Therefore, the petitioner is not entitled for declaration of the results of the examination taken by him pursuant to an interim order dated 3.6.2008. However, the first respondent is directed to permit the petitioner to repeat the 6th semester of B.Com degree course scheduled to commence in the month of January, 2009. No costs.