Deen Dayal Upadhyaya College vs.ayushi Sethi and Ors. - Court Judgment

* + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:

17. 11.2017 Pronounced on:

21. 11.2017 REVIEW PET.425/2017, CM APPL.36526/2017 IN LPA5822017 DEEN DAYAL UPADHYAYA COLLEGE ........ Petitioner

Through: Ms. Beenashaw. N. Soni, Advocate. Versus AYUSHI SETHI AND ORS. ........ RESPONDENTS

Through Dr. Ashutosh, Advocate, for Review... Petitioner

. Sh. Mohinder. J.S. Rupal, Advocate, for University of Delhi. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUNIL GAUR MR. JUSTICE S. RAVINDRA BHAT % 1. The Deen Dayal Upadhyay College [hereafter referred to as “the College”]. had appealed against the decision of the learned Single Judge dated 25.08.2017, allowing the writ petition preferred by seven of its students. The College had refused permission to the students to appear in the fourth semester examination of B.Com (Hons) course [hereafter referred to as “the examination”]., on 09.05.2017. Learned Single Judge, after considering all the pleadings and the relevant Ordinances of the University, held that the refusal to permit the students to appear in the REV. PET.425/2017 Page 1 of 9 examination was not correct and issued appropriate directions in that regard. This Division Bench, by its decision of 12.09.2017, reversed the learned Single Judge’s judgment.

2. The writ petitioners/students appear to have approached the Supreme Court by appeals through Special Leave which were, after some hearing, permitted to be withdrawn. They have, therefore, approached this Court for a review of the judgment dated 12.09.2017.

3. Dr. Ashutosh Pratap Singh, learned counsel for the writ petitioners argues that the Division Bench in its judgment ignored and did not take into account the material part of the regulations which mandated at least five days’ clear notice to the students, as to enable them to represent against their likely exclusion on the basis of shortage of attendance. Particular emphasis is placed upon Ordinance VII(2)(e) which reads as follows: not less than two “ORDINANCE-VII(2) (a) A candidate for the Semester I/II/IV Examination shall not be deemed to have satisfied the required conditions of attendance unless s/he has attended, in all the subjects taken together, the lectures/practical/presentation/tutorial required to be attended. Provided that a student of the Semester I/III/V who does not fulfill the required conditions of attendance, as above, but has attended, in all the subject taken together, not less than 40 percent of lectures/practical/presentations during the respective semester, may at the discretion of the Principal of the College concerned, appear for the ensuring semester examination; but such a candidate shall be required to make up the deficiency at lectures and practical, in the next semester of the same academic year. thirds of REV. PET.425/2017 Page 2 of 9 to appear Provided that a student of the I/III/V semester who does not fulfill the required conditions of attendance as above, but has attended in all the subjects taken together, not less than 40 per cent of the lectures/practical/presentation/tutorials, held during the respective semester, may at discretion of the Principal of the College concerned, be allowed to appear at the ensuing examination provided that she/he makes up the deficiency of the said attendance by combining the attendance of the previous semester in the ensuing semester. Provided further that the Principal of the College concerned may permit a student in an examination notwithstanding that the student has not fulfilled the attendance requirement, if in the opinion of the Principal, such student shall make up the deficiency in the succeeding academic year. Provided further that a student of the VI semester shall be allowed to appear at the VI semester examination, if by combining the attendance of the three academic years, the candidate has put in two-thirds of attendance, in all the subjects taken together, held during the respective years. XXXXXX (e) A College shall notify on the notice board the final attendance position of each of its students within five days of the dispersal of the classes in the last session of the academic year. Not later than five days, thereafter, a student may, by an application to the Principal of the college, claim benefit of exclusion of lectures under sub-clause (a) above on grounds to be specified and accompanied by the relevant documents. All such applications submitted within time shall be considered and disposed of by the Principal of the College at least 3 days prior to the commencement of the examination, in which the students is intending to appear.” XXXXXX XXXXXX REV. PET.425/2017 Page 3 of 9 4. It is contended that the record in this case clearly points to the fact that classes ended on 27.04.2017 and that if the college were to legitimately exclude any student, not less than five clear days’ notice was necessary in this regard. Learned counsel relies upon the following portion of the college’s counter affidavit: “6. The college administration after compilation of attendance of all the courses declared the list of 184 students with short attendance and displayed the said list on the college website on 5.5.2017. Subsequently on 8.5.2017 a revised list of 172 students with short attendance was displayed.” It is urged that 6th May was a Saturday and 7th May was a Sunday 5. and that in fact on 7th May, many students were allowed to appear in the practical examinations and that the admit cards were to be issued on 08.05.2017. It was on that day that the students were informed the first time that they were ineligible to appear in the theory papers due to shortage of attendance, scheduled to being on the next day, i.e. on 09.05.2017. Learned counsel contended, therefore that ex-facie there was non-compliance with the relevant ordinances, i.e. Ordinance VII(2)(e) inasmuch as the students were notified later. Furthermore, in terms of the prescribed norms, the College had to notify attendance records of each students every month which too was not complied with. It is urged by Sh. Ashutosh Pratap Singh, learned counsel that the reasoning of this Court to the extent it overlooks these materials facts, is untenable. He also urges that the rationale for upholding the College’s actions in excluding the attendance record by Dr. Abha Wadhwa cannot be upheld and that the College did not act in a bona fide manner. It is highlighted that the writ petitioners/students would be gravely prejudiced if they are denied the REV. PET.425/2017 Page 4 of 9 relief. It is also contended that the onward promotion or onward progress of the students in later academic years is not dependent on attendance alone and that the concerned students can continue in the next year.

6. Ms. Beenashaw. N. Soni, learned counsel for the College urges that there is no merit in the review petition. It is submitted that the question of compliance with the Ordinance VII(2)(e) was never argued or highlighted. Learned counsel for the College points out that there is no averment with respect to illegality vis-a-vis non-compliance of that Ordinance in the writ petition. No doubt, the plea was taken in a rejoinder. However, before the learned Single Judge, that plea was not urged. It is also highlighted that during the hearing in the Division Bench too, this aspect was never highlighted. Learned counsel points out that each of the writ petitionsers/students had an abysmal attendance record and in the circumstances, the Principal exercised the discretion of not permitting them to appear in the examination in a judicious manner, taking into account all relevant matters. The judgment which is sought to be reviewed, was based upon the submissions made by the parties on 05.09.2017 before the Division Bench when notice was issued and with consent of learned counsel, the arguments too were heard.

7. The Court at that stage, had directed a suspension of the contempt proceedings subject to the writ petitioners furnishing affidavits as was required of them by the learned Single Judge. There is nothing on the record to suggest that the learned counsel for the petitioners had, in fact, urged the aspect which he argues in these proceedings, i.e. omission to comply with Ordinance VII((2)(e). Regardless of that aspect, this Court proposes to consider the issue on the assumption that it is a question of REV. PET.425/2017 Page 5 of 9 law which was urged but not reflected in the strict sense in the writ petition (having been urged in the rejoinder) by the students. The Court proposes to take this course of action given that the students had succeeded before the learned Single Judge and, therefore, had no occasion to articulate any grievance with respect to matters argued, but for which there was no specific finding. The provision, i.e. Ordinance VII(2)(e) facially suggests that the College is under an obligation to publish the final attendance position at least five days after dispersal of classes on the last calendar day of the academic year. The classes in this case dispersed on 27.04.2017. This meant that the final attendance position should have been notified on 02.05.2017. The College informed the position of attendance on 05.05.2017.

8. The question is whether this omission that the publication of their attendance late, i.e. after five days a vital infraction and that the consequent denial fatal omission on the part of the College and that denying them the right to participate in the examination is, therefore, vitiated.

9. This Court does not agree with the argument. The lapse on the part of the College is only of three days. Were the cases of the respondents/review petitioners in the present case short of attendance marginally, the omission of the kind they highlight could have been of some significance. However, their attendance record – which has been reproduced in the main body of the judgment of the Division Bench dated 12.09.2017 show that there was significant shortage in the case of each of them. The main judgment has discussed the scope of the Principal’s discretion and held that the exercise of discretion has to be judicious and REV. PET.425/2017 Page 6 of 9 based upon the facts of the case. The facts of the case in the present instance in so far as the exercise of discretion by the College Principal was concerned, the Court recorded as follows: in “21. The Ordinance, no doubt, accords for leniency and permission to forgo the specific attendance requirements, even in the absence of the minimum of 40% attendance, upon a conjoint and harmonious reading of all the provisos to that provision. However, this is subject to the exercise of discretion: “if in the opinion of the Principal, such student shall make up the deficiency the succeeding academic year.” The subsequent provisos only clarify that calculation of two thirds’ attendance can be made even by taking into account subsequent semester/year requirements, provided overall 66.7% attendance (of all classes) can be achieved by the student.

22. In this case, the data relied upon by the students’ counsel, extracted above, reveals that Divya Gupta had attended 465 out of 996 classes in four semesters (46.68% overall); Ruchika had attended 596 out of 976 classes in four semesters (61.06% overall); Ayushi Sethi attended 425 out of 990 classes in four semesters (42.92% overall); Rimpy attended 507 out of 976 classes in four semesters (51.94% overall); Devender Rana attended 484 of 994 classes in four semesters (48.69% overall); Abhinav attended 523 of 963 classes in four semesters (53.31% overall) and Vinay Verma attended 433 out of 981 classes in four semesters (44.13%). XXXXXXXX25 The terms of the Ordinance are that students who are unable to comply with the prescribed attendance requirements (whether it is 40% or below) may to be permitted to appear for the ensuing semester examination is based on the discretion of the Principal. During the hearing of the appeal, it was contended that the Principal acted in an arbitrary manner in allowing some students (Tanvi Jain and Raj, who were allowed to appear in the exams and had been promoted last year despite REV. PET.425/2017 Page 7 of 9 having attendance below 26.7%, and they were given grace attendance because of extra curricular activities), to appear, despite shortage of attendance, and detaining the respondents. Those cases and their particulars are not before the Court. Moreover, negative equality claims cannot be grounds for permitting the students to be promoted to the next academic year, when the Ordinance provides definite guidelines regarding the same; this has been highlighted in a catena of decisions………………… XXXXXXXX26 The fact that two other students - Tanvi Jain and Raj, who were allowed to appear in the exams and had been promoted last year despite having attendance below 26.7%, (they were given grace attendance because of extra curricular activities), and that other students were granted the benefit of additional attendance and had their shortage of attendance condoned, cannot be grounds for urging the same treatment for the students. Furthermore, this Court is not called upon to judge the merits of exercise of that discretion, which may have been justified or not depending on the circumstances.

10. Likewise, the writ petitioners’ reliance upon the attendance record for 18 classes in respect of the subject - E-filing of returns - was contrary to the college’s record – a fact brushed aside by the learned Single Judge. Given these, the Division Bench concluded that the exercise of discretion by the Principal was not arbitrary or lacking in bona fides.

11. The Court is of the opinion that the above findings could in no way be different or significantly influenced by that because of the date when the publication of the attendance took place in the present case - on 05.05.2017. The late publication was by a mere three days. It is not the students’ case that in all other respects, the attendance records were inaccurately recorded in the college records. REV. PET.425/2017 Page 8 of 9 12. Having regard to the totality of these facts, the Court further is of the opinion that the other questions with respect to the appreciation of the decision in the impugned judgment and the question of prejudice cannot be a subject matter of review as that would amount to re-appreciation of findings – an appellate exercise that cannot be undertaken in review.

13. For the above reasons, the review petition cannot succeed and is accordingly dismissed. S. RAVINDRA BHAT (JUDGE) SUNIL GAUR (JUDGE) NOVEMBER21 2017 REV. PET.425/2017 Page 9 of 9