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2011 DIGILAW 660 (CAL)

Ayesha Shahid v. University Of Calcutta

2011-05-12

TAPEN SEN

body2011
JUDGMENT Tapen Sen, J. 1. IN this Writ Petition 19 (nineteen) Writ Petitioners have joined together with a prayer that the Respondents be directed to allow them to fill up the forms pertaining to B.A. Part-II Examinations of 2011. They have also prayed for setting aside the 3rd list published on 14/12/2011 to the extent it disqualifies them to appear in the said Examinations. They also pray that the University be commanded to extend the time for filling up the forms as a special case by relaxing the last date and not to discriminate as against the Petitioners. 2. THE petitioners claim to be regular students of Milli Alalmeen College (for Girls). They are students of the B.A. Part-II Course and they were found fit and eligible to participate in the B.A. Part-II Pass/Honours Examinations for the year 2011. They have stated that they have a common cause of action and therefore, they have joined in one Writ Petition. According to the petitioners, after the Test Examinations were over, in which they had participated and performed well, they were shocked to note from a Notice of the College being the IIIrd List, that they had been disqualified to appear in the said B.A. Part-II Examinations for 2011. They have stated that those who had failed in more than one honours or general subject, and those who were not sent up for the said Examinations, were mentioned in the 3rd list and the names of the Petitioners appeared therein also. Annexure P-1 is the said 3rd list. According to the Petitioners, it would be appear from the 3rd list that the Petitioners were mainly disqualified on the ground of less percentage of attendance and some, were however shown to have failed in some of the subjects. However, the Petitioner nos. 1,2,3,5,6,9 and 11 were disqualified because of low attendance although they had been regularly attending the College. There were however, some minor lapses in their attendance. So far as the Petitioner nos. 4,7,8,12,13,14,15,16 and 19 are concerned, they were disqualified on the ground of failure in one or two subjects. So far as the Petitioner no. 10 is concerned, she was not sent up on the ground that she had not given her IHCG and also had low percentage of attendance. Petitioner no. So far as the Petitioner nos. 4,7,8,12,13,14,15,16 and 19 are concerned, they were disqualified on the ground of failure in one or two subjects. So far as the Petitioner no. 10 is concerned, she was not sent up on the ground that she had not given her IHCG and also had low percentage of attendance. Petitioner no. 17 was shown to have been disqualified because of absence in both General Subject Examinations without any reason and attendance was also said to be low. 3. THE Petitioners have stated that one Nahid Kauser who was shown as disqualified for having failed in two general subjects and for having poor attendance, was however subsequently granted permission with a warning after having been allowed to appear in a Supplementary Examination and a notice to that effect was published on 22/3/2011 vide Annexure P-3. She was also allowed to fill up the University Registration Form. Similarly, one Shadmana Naushad, vide Roll No. 71 of the 3rd List, was initially not allowed for having failed in IHCG and also for having low attendance was however, subsequently, allowed with warning by the same notice dated 22/3/2011 as contained in Annexure P-3. Uzma Sultana placed in the 3rd list vide Roll no. 57 was similarly initially not sent up but by the same notice dated 22/3/2011 she was also allowed and permitted to fill up the University Registration Form. Shamina Khan with Roll no. 66 had also been initially not allowed vide Annexure P-1, but she was also subsequently permitted by the same Notification dated 22/3/2011, referred to above. 4. THE Petitioners filed a Representation dated 17/3/2011 addressed to the Teacher-in-Charge, vide Annexure P-2, wherein they stated that they were regularly present but the Teacher refused to take classes on one pretext or the other saying that they should not worry with their attendance as the same would be given before being sent up. Sometimes attendance was taken on loose-sheets of paper with an assurance that they would be duly marked in the attendance register. In spite of the aforementioned representation having been filed on 17/3/2011, no action was taken but the four students, named above, viz. Nahid Kauser, Shadmana Naushad, Uzma Sultana and Shamima Khan were allowed to fill up the Registration Forms for B.A. Part-II Examinations. In spite of the aforementioned representation having been filed on 17/3/2011, no action was taken but the four students, named above, viz. Nahid Kauser, Shadmana Naushad, Uzma Sultana and Shamima Khan were allowed to fill up the Registration Forms for B.A. Part-II Examinations. On 25/3/2011, the Petitioners sent another representation before the Secretary of the College, wherein they pointed out the aforementioned discrimination vis-a-vis the four students who had been picked up from the 3rd list for being allowed to fill up the Forms and requested an urgent intervention in the matter. It is stated that on the basis of the aforementioned representation, the Governing Body caused an enquiry to be made by one Professor Gholam Sarwar, who submitted his Report on 31/3/2011 vide Annexure P-5. In the said report, he stated that during discussions with Dr. Zarina Khatun, the Teacher-in-Charge of the College, the case of one Shahnila Sadaf, a student of B.A. 2nd year (English Honours) who, in spite of having 80 per cent of attendance and securing good marks had been debarred, was taken up, and in reply, it was pointed out by the said Teacher-in-Charge that overall attendance of all the students had been considered. Apart from saying so, the Teacher-in-Charge remained unmoved and denied to accept anything and therefore, according to the Report, it was evident that the contention of the students had some substance and accordingly, a suggestion for a thorough inspection by a neutral agency was made. Thereafter, on 6/4/2011, the Secretary of the Governing Body, lodged a complaint with the Officer-in-Charge, Beniapukur Police Station, Kolkata, wherein he stated that the Teacher-in- Charge of the College had intimated him on the same day at about 3 p.m. that the Attendance Registers of the students of the 2nd year Honours and General classes for the Session 2010-2011 had been misplaced from the staff room of the College. He also pointed out that a complaint with regard to the disappearance of the Registers had been made to the Teacher-in-Charge by the full-time and parttime Teachers of the college through a letter dated 31/3/2011 which was received in the College office on 01/4/2011. He also pointed out that a complaint with regard to the disappearance of the Registers had been made to the Teacher-in-Charge by the full-time and parttime Teachers of the college through a letter dated 31/3/2011 which was received in the College office on 01/4/2011. According to the complainant, the incident took place following the protests of the guardians of the students after declaration of the sent up results by the Teacher-in-Charge who did not allow 33 students to fill up the Forms for appearing in the B.A. Part-II Examinations, 2011 as they did not have the minimum attendance and as some of them, had failed to qualify in the internal Tests. The report also complained that the attendance registers of only 2nd year students had been misplaced following complaints from some of the students regarding marking of the attendance registers. 5. THEREAFTER, the Teacher-in-Charge wrote a letter to the Secretary of the Governing Body stating that in a very strange turn of events, the Attendance Registers of almost all subjects had disappeared from the staff room and these attendance registers were of the 2nd year honours and general courses. She also stated that despite all efforts, the Attendance Registers could not be retrieved and therefore, such fact was being brought to the notice of the Secretary, Governing Body so that necessary security arrangements/other arrangements could be made. 6. IT is stated that on 10/4/2011 a Notice was published in the Newspapers informing that Forms for B.A., B.Sc., B.Com. from authorised colleges will be accepted and the same may be submitted by 18/4/2011. On 11/4/2011, the Petitioners and other qualified students met the Teacher-in-Charge but nothing was done and they were asked to come back on Tuesday saying that she was expecting a reply from the Governing Body. According to the Petitioners, they are victims of circumstances and they have all deposited their Registration Fees for participation in the Examinations but they have been victimised and denied participation whereas four other persons, similarly situated, have been favoured. 7. BASED on the aforementioned set of facts, the Petitioners have prayed that they should be allowed to fill up the Forms and the 3rd list should be set aside. 8. AFFIDAVIT-in-Opposition has been filed by the Teacher-in- Charge (Respondent no.7). 7. BASED on the aforementioned set of facts, the Petitioners have prayed that they should be allowed to fill up the Forms and the 3rd list should be set aside. 8. AFFIDAVIT-in-Opposition has been filed by the Teacher-in- Charge (Respondent no.7). She has stated that the Writ Petition is not maintainable as the Petitioners do not have a right and that in terms of the Examination Regulations of the University to which the College is affiliated, the Petitioners cannot be allowed to participate. It is further stated that for ascertaining the standard of students to be sent up for the University Examinations, the University of Calcutta has laid down a minimum percentage of attendance for each of the students. The attendance percentage of the students had been considered till the last day of the Selection Tests held by the College i.e. 9th March, 2011. According to her, all the Writ Petitioners are governed by the University Examination Regulations and therefore, all of them were required to have at least 60 per cent attendance in each of their respective classes but unfortunately, they either failed to achieve the minimum qualifying marks or they failed to have the minimum percentage of attendance of 60 per cent. In paragraph 10, it has been stated that after conducting the Selection Tests, it appeared that out of 61 students (both honours and pass) 14 students had secured qualifying marks with requisite attendance and thus, they were enlisted in the First List and were allowed to fill up Forms. It was also found that 15 students secured qualifying marks and they were enlisted in the Second List. Out of the remaining, 29 were Collegiates and four were non-Collegiates. The Petitioners are all “Discollegiates” and the four students who were subsequently allowed, were non-Collegiates. The 3rd list contained the names of unsuccessful and discollegiate and/or noncollegiate Students and therefore, they were all included in the 3rd list. The College Administration decided to conduct a supplementary examination so as to allow the Students who were non-Collegiates but had failed to achieve the qualifying marks in the selection tests. An urgent notice was issued on 15th March, 2011 so as to allow the dis-Collegiates and the non-Collegiates to meet their respective teachers. The said notice also declared that the non-collegiate students would be allowed to participate in the supplementary examination. An urgent notice was issued on 15th March, 2011 so as to allow the dis-Collegiates and the non-Collegiates to meet their respective teachers. The said notice also declared that the non-collegiate students would be allowed to participate in the supplementary examination. The Petitioners, being Discollegiate Students accepted the said position and did not raise any objection being fully aware of the University Regulations which debars them. 9. MR. Soumya Majumdar, learned Counsel appearing for the Teacher-in-Charge, drew the attention of this Court to Rule 26 of the Examination Regulations. Under the said Regulations, it is pointed out that a candidate attending less than 60 per cent lectures shall be declared discollegiate students and shall be debarred from appearing at the Examinations. However, non-Collegiate students having less than 75 per cent but not less than 60 per cent attendance in one or more subject, would be declared as non-collegiate students and may be allowed to appear at the concerned examinations on payment of requisite noncollegiate fees. According to MR. Majumdar, relying upon Annexure R-2, the Petitioners have all secured much less than 60 per cent attendance and therefore, they are Discollegiate Students who, as per Regulation 26, cannot be allowed to appear. Regulation 26 brought on record by the Teacher-in-Charge at page 52 of the Affidavit-in-Opposition, reads as follows: 26. a) Examination under the Three year B.A./B.Sc./B.Com. (Honours) General/Major) and B. Mus. (Hons./General) Degree Courses will be conducted in three parts : Part I, Part II and Part III with Part I Examination to be held ordinarily in June at the end of first year of study. Part II Examination to be held ordinarily in May at the end of second year of study and Part-III Examination to be held ordinarily in April at the end of third year of study. b) A candidate shall be deemed to have prosecuted a regular course of study in an affiliated College/Institution if he/she has attended at least 75 percent of the lectures delivered and 75 percent of practical classes separately held in each of his/her subjects/ groups of subjects concerned of each part of the B.A./B.Sc./B.Com (Hons./ General/ Major) and B.Mus. (Hons./General) Degree Courses. (Hons./General) Degree Courses. A candidate attending less than 75 percent but not below 60 percent of attendance in one or more subjects/groups of subjects shall be declared Non Collegiate and may be allowed to appear at the concerned examination on payment of requisite Non-Collegiate Fee. A candidate attending less than 60 percent lectures delivered and practical classes held in one or more subject(s)/group(s) of subjects shall be declared “Discollegiate” and shall be debarred from appearing at the Examination. Attendance in a subject/group of subjects shall be counted from the date of commencement of classes or admission to the course whichever is later. (Quoted) 10. THE other facts, which have been stated in the Affidavit in- Opposition, are with regard to the happening of events which are all facts and relate to what happened in the premises of the College on the 16th March, 2011, when a violent demonstration was held by the Petitioners along with outsiders and “local goons” with the aid of the local Councillor. The Teachers of the college were kept under wrongful confinement and the security of the College was put to severe jeopardy and the Teachers were threatened of physical injury etc. However, since these are questions of fact which have no bearing with the subject-matter of this Writ Petition, this Court will not unnecessarily deal nor enter into these questions of fact. The Affidavit-in-Opposition of the Respondent nos. 4,5 and 6 (The Governing Body) is also on record. This Affidavit states that the present Teacher-in-Charge, Zarina Khatun, was appointed with effect from 1/12/2010 but prior thereto one Shabina Nishat Omar was the Teacher-in- Charge. Both Zarina Khatun and Shabina Nishat Omar were appointed as lecturers in the year 2000. Shabina was senior by a few days and yet, there was incessant rivalry between the two and disputes between them we often even in the Organising Committee of the college. These Respondents have also stated that after completion of the selection tests, the results were published on 14/3/2011 (Annexure P-1) and the Teacher-in-Charge, without consulting the Governing Body or placing the report on the matter pertaining to the attendance of the students and/or their results or marks obtained by them, decided by herself disqualify the students including the Petitioners from appearing in the final B.A. Part-II Examinations on the alleged ground of shortage of percentage of attendance and securing marks below the qualifying marks. They have further alleged that the said Teacher-in-Charge had herself issued the Notice dated 15th March, 2011 without any discussion with the Governing Body for holding a supplementary Examination and the notice was never placed in the College Notice Board. They have also stated that without any discussion with the Governing Body, only four candidates were allowed to appear in the supplementary examination in the form of viva-voce though there was no authority to issue a notice for supplementary examination. According to the Governing Body, the Teacher-in-Charge claimed that she took a supplementary examination of only four students and allowed to them to fill up the forms though other similarly placed students were not given any such opportunity. According to the Governing Body and its Members, this was done by the Teacher-in-Charge without any intimation to the Governing Body and without any permission from the Governing Body. 11. IT is thus, evident from the Affidavit of the Governing Body that the Teacher-in-Charge acted in a manner that was not expected because any action that the Teacher-in-Charge takes must be with the support of the Governing Body. When the Governing Body itself comes forward with an Affidavit saying that the Teacher-in-Charge had taken all these decisions on her own, then, this Court is compelled to take the view that she acted unilaterally and arbitrarily. IT is further evident that there is an element of discord and disharmony between the Teacher-in-Charge and the Governing Body. We should not forget that we are dealing with an educational institution where the primary focus is on the welfare and education of young children. The Teachers are supposed to be their torch bearers. Discipline therefore, is not only expected of the students but it is equally expected of the teachers and if there is disharmony and/or discord between the Governing Body and the Teacher-in-Charge all that can be said is that this is an extremely painful and an unfortunate situation. 12. The Teachers are supposed to be their torch bearers. Discipline therefore, is not only expected of the students but it is equally expected of the teachers and if there is disharmony and/or discord between the Governing Body and the Teacher-in-Charge all that can be said is that this is an extremely painful and an unfortunate situation. 12. HOWEVER, at the same time, what cannot be lost sight of is that while the allegations of the Teacher-in-Charge are that the Petitioners have been declared discollegiate on the basis of shortfall in attendance, the Governing Body, on the other hand, have stated in paragraph 4(xiii) that to solve the problem of the students, the Governing Body, on 22nd March, 2011 had requested the Teacher-in-Charge to issue Forms to all Students but she refused to do so and asked the Governing Body to instruct her in writing. Accordingly, the President of the Governing Body, by letter dated 27th March, 2011, requested the Teacher-in-Charge to issue the necessary forms. But even then she did not comply. In the instant case this Court notices that four candidates, out of the same 3rd list, were declared non-collegiate and were allowed to appear in a supplementary examination. So far as these four students are concerned, this Court notices that so far Nahid Kauser is concerned, the remark is that she had failed in two general subjects and her attendance was low. So far as Shadmana Naushad is concerned, the remarks are that she had failed in IHCG with extremely low attendance. So far as Uzma Sultana is concerned, the remarks are that she was absent in Examinations without any reason and also had low attendance. So far as Shamima Khan is concerned, the remark is that there was low attendance. What was the extent of the low attendance has not been indicated. Was it below 60 percent “Or was it above 60 percent” “Or was it below 75 percent” There is also no explanation as to how failed candidates were given the benefit of a sudden supplementary exams that appear to have been held clandestinely and without knowledge to the Governing Body because the statements made in their Affidavit-in-opposition is that the Teacher-in-charge had herself issued the Notice dated 15.3.2011 without discussions with the Governing Body for holding such supplementary exams. Consequently, this Court is of the view that the entire process of “picking out” four candidates from the same list and allowing them the benefit of supplementary exams was undertaken in a discriminatory, mechanical, arbitrary and routine manner. As a result, this Court is of the view that these Petitioners also deserve the benefit of a supplementary examination which must be held by the Respondents and if they secure better marks and if they perform well, then they should be allowed to fill up the Forms. This Court is conscious of the fact that the University Regulations clearly make out a certain percentage of attendance but in the instant case, the 3rd list does not indicate the percentage of attendance either of the Petitioners or of the four candidates who have been favoured. It merely says “low” attendance. Therefore, the same cannot be of much assistance to the case of the Teacher-in-charge and cannot also be believed. 13. UNDER these circumstances and considering the stand taken by the Members of the Governing Body, this Court is of the view that the Petitioners deserve a second opportunity. The Writ Petition is accordingly disposed of by directing the University as well as the College authorities to enable the Petitioners to sit in a supplementary examination and if they perform well, they should be allowed to fill up the forms. The Writ Petition is accordingly disposed of. Upon appropriate Application(s) being made, urgent Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.