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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.56637/2016 AND WRIT PETITION NOs.56639-43/2016 (EDN-EX)
BETWEEN:
MISS. ATHIJAMMA THAZWEENA
D/O ABDUL SAMAD
AGED ABOUT 18 YEARS
R/A CAI-CO-ROAD
INDIRANAGAR, ULLALA
D.K. DISTRICT – 575 023.
KOTTAKKAR HOUSE.
MR. SHAHEZAN M.,
S/O MOHAMMED SHERIEFF
AGED ABOUT 18 YEARS
R/A SHERIEFF MANSION
K.C.NAGAR, POONAM ROAD
POST TALPADY, MANGALORE
D.K.DISTRICT–575 023.
MR. MOHAMMED MARZOOK
S/O MUNAWAR
AGED ABOUT 18 YEARS
R/A KUKKAJE, MANCHI POST
BANTWALA TALUK
MANGALORE, D.K.- 574 323.
MR. USAMA
S/O. LATE FAKRUDDIN BAWA
AGED ABOUT 18 YEARS
R/A MADAKKA SAIT, AMBALAMOGARU POST
MADAKKA, MANGALORE
D.K.-575 024.
MR. MOHAMMED ASFAK
S/O S.A.KHADER
AGED ABOUT 19 YEARS
R/A RAMALKATTE HOUSE
THUMBE POST, BANTWALA TALUK
D.K. – 574 143.
MR. MOHAMMED SHAHID
S/O MOHAMMED ARBI KUNHI
AGED ABOUT 19 YEARS
R/A YASMIN MANZIL
SHERMA LINE BEERI
KOTEKAR, MANGALORE
D.K.- 575 022.
... PETITIONERS (BY SRI B. LETHIF, ADV.)
AND:
STATE OF KARNATAKA
SECRETARY TO GOVERNMENT
DEPARTMENT OF HIGHER EDUCATION
VIKASA SOUDHA
DR.B.R. AMBEDKAR VEEDHI
BANGALORE – 560 001.
MANGALORE UNIVERSITY
REPRESENTED BY ITS REGISTRAR
KONAJE, NEAR DERLAKATTE
MANGALORE
D.K.DISTRICT – 575 101.
THE PRINCPAL
MILAGRES COLLEGE
HAMPANAKATTA
MANGALORE,
D.K. DISTRICT – 575 001.
… RESPONDENTS
(BY SMT. PRAMODHINI KISHAN, HCGP FOR R-1
3 SRI T.P. RAJENDRAKUMAR SUNGAY, ADV. FOR R-2 SRI DEEPAK, ADV. FOR R-3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO DIRECT THE RESPONDENTS, PARTICULARLY, R3 TO ISSUE HALL TICKETS TO THE PETITIONERS SO AS TO ENABLE THEM TO ATTEND THE III SEMESTER EXAMINATION IN BBA (II YEAR) FOR THE REMAINING SUBJECTS FOR WHICH THE EXAMINATIONS ARE NOT COMPLETED FOR THE ACADEMIC YEAR 2016-17.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING :
O R D E R
These writ petitions are filed by the students of B.B.A. course, seeking direction to the respondents, particularly, the 3rd respondent to issue Hall Tickets to enable them to attend their III Semester examinations for the remaining subjects, for which, examinations are not yet completed and also for a direction to permit them to write the subjects for which the examinations are already over in the supplementary examinations which is going to be held after announcement of the results of the ‘III’ Semester.
The case of the petitioners is that they have joined 3rd respondent-College for B.B.A. degree course in the year
4 2015-2016; they have been issued with the I.D. cards by the 3rd respondent-College after getting admission to the College by paying the requisite fees and they have completed their I and II Semesters in the said Institution. It is their further case that they are bright and intelligent students belongs to poor family, their parents are doing coolie work and they hail from remote villages. The petitioners contend that in spite of their difficulties, they have regularly attended the classes and have also maintained the records of their leave and according to them, the 1st, 2nd, 3rd, 4th, 5th and 6th petitioners were absent for 6, 15, 10, 9, 10 and 17 hours, respectively, in III semester, with valid reasons and the same was endorsed by the College Authority. It is further contended that the 3rd respondent-College abruptly intimated the parents of all the students through SMS on 23.10.2016 to collect the Hall Tickets from the College on 24.10.2016 but when the petitioners approached the College, the 3rd respondent refused to issue Hall Tickets for the examination to be held between 26.10.2016 to 15.11.2016 on the ground that the
5 petitioners have got shortage of attendance. Subsequently, on 25.10.2016 they received the statements issued by the 3rd respondent-College with regard to shortage of their attendance till 18.10.2016. They were surprised and shocked to see the statements showing shortage of attendance. Due to shortage of attendance they are not allowed to appear for the examinations. Hence, they are before this Court.
I have heard the learned counsel for the parties to the lis.
Sri B. Lethif, learned counsel for the petitioners vehemently contends that the inaction on the part of the 2nd and 3rd respondents in not issuing Hall Tickets to the petitioners on the ground of shortage of attendance is without any basis. He specifically contended that the 3rd respondent-College has not informed the shortage of attendance to the petitioners periodically. Petitioners received the statement of their shortage of attendance only on 25.10.2016 and examination commenced from
6 26.10.2016. Therefore, the petitioners are not aware of their shortage of attendance of concerned months in respect of their Semesters well in advance. He further contended that there is series of mistakes committed by the College while calculating the attendance of the petitioners. In support of his submission the learned counsel for the petitioners sought to rely on Para No.11 of the judgment of this Court in the case of Prajwal Kumar Patil v. The Rajiv Gandhi University of Health Sciences, Karnataka and Others in W.P. No.60675/2014 reported in 2015(3) AKR 258 and sought to allow the writ petitions.
Per contra, Sri T.P. Rajendra Kumar Sungay, learned counsel for the 2nd respondent-Mangalore University, Sri Deepak, learned counsel for the 3rd respondent-Milagres College and Smt. Pramodhini Kishan, learned HCGP for the 1st respondent-the State of Karnataka submit that the contention of the petitioners that they were not informed periodically for the concerned months about shortage of
7 their attendance and suddenly informed on 25.10.2016 i.e. one day before the exams cannot be accepted, since the Registry of College use to inform the parents of all the students about shortage of attendance of their children every month and to that effect document is produced before this Court along with memo showing record of leave and absence of the petitioners sent to their parents. They further contended that as per the allegations made by the learned counsel for the petitioners that there is series of mistakes committed by the College cannot be accepted, as no document is produced before this Court to prove that there was wrong calculation by the College regarding shortage of attendance of the petitioners.
It is further contended that in view of regulations 9.1 and 9.2 of the Amendment to the Regulations Governing Credit Based Semester Scheme for Bachelor Degree Programmes in the Faculties of Arts, Science and Commerce, a candidate shall be considered to have satisfied the requirement of attendance for a Semester if he/she attends not less than
8 75% of the number of classes actually held up to the end of the Semester in each of the subjects. There shall be no minimum attendance requirement for the Co and Extra Curricular activities. As per Regulation 9.2 – A candidate who does not satisfy the requirement of attendance even in one subject shall not be permitted to take the whole University examinations of that Semester and he/she shall seek re- admission to that Semester in a subsequent year. Therefore, they contended that 75% of attendance is must in view of the regulations 9.1 and 9.2 stated supra for attending the examinations. The learned counsel for the 2nd respondent sought to rely upon the dictum of this Court in the cases of PAVITRA K. BEEDE VS. REGISTRAR BANGALORE UNIVERSITY reported in KCCR-2014-3-2240; P.C. Dental College vs. Dental Council of India reported in I.L.R. 1994 KAR 1201 and Satish vs. Vice Chancellor reported in I.L.R. 1994 KAR 1191 and also the law declared by the Supreme Court in the case of Ashok Kumar Thakur v. University of Himachal Pradesh and others reported in AIR 1973 SUPREME COURT 221. Therefore, they sought for dismissal of the writ petitions.
In view of the rival contentions urged by the learned counsel for the parties to the lis, the points for consideration in the present writ petitions are: 1. Whether a direction can be issued to the University and the College to permit the petitioners who do not have required attendance to take up the Semester examination by condoning shortage of attendance in the facts and circumstances of the case?
Whether this Court can condone the shortage of attendance and permit the petitioners to take Semester examination on the ground of hardship or otherwise?
I have given my thoughtful consideration to the arguments adduced by the learned counsel for the parties and perused the entire material on record.
It is an undisputed fact that the petitioners have joined the 3rd respondent-College for pursuing B.B.A., during the year 2015-2016 and they have completed their I
10 and II Semesters. Thereafter, they joined III Semester/II year B.B.A., during July 2016 and the College issued I.D. cards after collecting requisite fee. According to the petitioners, they were regularly attending their classes and only on some unavoidable circumstances they did not attend the classes. It is not in dispute that, though the petitioners contend that there was no periodical intimation to them regarding shortage of attendance every month by the 3rd respondent-College and they were not aware of it till 25.10.2016 i.e. one day before the commencement of examination, the fact remains is that the documents produced by the College along with the memo clearly indicates that the College used to intimate the parents of the students every month about shortage of attendance and also mentioned that the minimum required attendance is 75% to eligible them to take Semester Examinations. The contention raised by the learned counsel for the petitioners that, there are series of mistakes committed by the College in calculating the attendance, cannot be accepted for the simple reason that the petitioners have not
11 produced any material document for the same. If it is so, the parents of the petitioners are not prevented from approaching the College to rectify the mistakes when they were issued information every month.
Based on the Amendment to the Regulations Governing Credit Based Semester Scheme for Bachelor Degree Programmes in the faculty of Arts, Commerce and Science, which affected from it was approved by the Academic Council on 13.01.2015, the Syndicate of Mangalore University while revising the fee for condonation of shortage of attendance during the meeting held on 03.12.2014 has decided not to condone the shortage of attendance and to delete the provision of condonation of shortage of attendance from the Regulations governing Bachelor degree programmes. As per the amended regulations, it is mandatory for the students to have the attendance not less than 75% of number of classes actually held up to the end of the Semester in each of the subjects and even if a candidate does not satisfy the required attendance even in one of the subject shall not be
12 permitted to take the whole University Examinations of that Semester and he shall seek re-examination in the subsequent year. It is clear from the attendance shortage list published by the 3rd respondent-College in respect of III Semester B.B.A. students from 01.07.2016 to 31.08.2016 and from 01.07.2016 to 18.10.2016 and also the communication dated 06.10.2016 in respect of the petitioners: Name of Petitioner Year of Admission Course Shortage of Attendance – subject wise 1. Atijamma Thazweena 2015-16 II B.B.A. (III Semester) 1. Business Mathematics – 63%
Commercial Law – 71%
Marketing Management– 66%
Income Tax – 68%
Corporate Accounting I – 72%.
Shahezan M. 2015-16 II B.B.A. (III Semester) Corporate Accounting I – 70%
Mohammed Marzook
2015-16 II B.B.A. (III Semester) 1. Business Mathematics – 68%
Business Economics– 68%
Commercial Law– 70%
13 4. Marketing Management– 63%
Income Tax – 67%
Corporate Accounting I – 72%.
Usama 2015-16 II B.B.A. (III Semester) 1. Business Mathematics – 67%
Business Economics – 71%
Mohammed Asfak 2015-16 II B.B.A. (III Semester) Business Mathematics – 65%
Mohammed Shahid 2015-16 II B.B.A. (II Semester) 1. Business Mathematics – 67%
Corporate Accounting I – 70%
In view of the above, it clearly depicts the shortage of attendance of the petitioners, therefore, the petitioners are not entitled to appear for the III semester/II B.B.A. Examinations in view of the Regulations 9.1 & 9.2 of the University Regulations.
The Hon’ble Supreme Court while considering the powers of the Principal to condone the deficiency in
14 lecturers in the case of Ashok Kumar Thakur v. University of Himachal Pradesh and others reported in AIR 1973 SUPREME COURT 221 at Para No.4 has held as under: “The only question that now remains is whether the petitioner’s deficiency in the matter of attendance could be condoned by any authority. The final lecture statement of the Bilaspur and Dharamsala Colleges shows that the petitioner was short of 20 lectures in Civics, of 18 lectures in Economics, of 10 lectures in History and of 8 lectures in English. Now the rules as to condoning of deficiency in the matter of attendance of lectures are to be found in Chapter XV of the Punjab University Calendar 1969. Volume III(Rules). The relevant rule is 1(a) and the material portion of it is in the following terms:
“(1) Taking into consideration the results of the House examinations:
(a) The Principal of a College affiliated in the Faculties of Arts, Science and Oriental
15 Learning may condone the deficiency in lectures as under:
(i) Upto 15 lectures in each of the Subjects;”
Since the petitioner’s deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or competence of the Principal to condone this deficiency. In our opinion this completely destroys the case of the petitioner”.
This Court while considering the Regulation for attendance for B.A., B.Sc., B.Com. degree courses in the case of Satish Vs. Vice Chancellor reported in I.L.R. 1994 KAR 1191 held at paragraphs 9, 10 and 11 as under: “9. It is well settled that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot direct the authorities to do something which is prohibited by or contrary to law. In SANTHOSH KUMAR vs CENTRAL WAREHOUSING CORPORATION reported in AIR 1986 SC 1164 the Supreme Court has warned;
16 “Surely what may not be done under the provisions of the Act may not be done by invoking the jurisdiction of the High Court under Article 226. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute.”
Reference may also be made to recent Decision of the Rajasthan High Court in MANOJ KUMAR RAWAT AND ETC. vs SHRI KHANDELWAL VAISHYA CENTRAL SR. HIGH SECONDARY SCHOOL, JAIPUR, reported in AIR 1994 NOC 25, wherein it is held:
“In educational matters, ordinarily court does not interfere in the decisions of the authorities as the educational institutions and the Board/University are best fitted to examine the matter, Court should not normally impose its decision on them. The Regulation providing minimum 75% attendance is for the advantage of the students for a qualitative education. It also leads to a sound foundation of education at School level. The Regulations providing educational discipline should not be permitted to be violated. The Regulations of the Board are meant to be obeyed and not flouted and the Court should not
17 become a party in flouting the Regulations on the ground of misplaced sympathy towards the students. In any event, it is more a matter of policy for the Board and a facet of the system of education for the educationist to consider, which should be beyond the scope of judicial review in the present proceedings.”
Attendance is necessary to achieve academic discipline and scholastic excellence. In fact it is the foundation for any course or study. 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 himself 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 the regulatory province of Colleges and the Universities. As petitioners have admittedly not obtained the minimum percentage of attendance, this Court will neither condone the shortage nor permit the petitioners to participate in the examinations.”
This Court while considering the similar regulations in B.E. candidate in the case of Pavitra K. Beede Vs. The Registrar reported in KCCR-2014-3-2240 relying upon the Hon’ble Supreme Court Judgment in the case of Visveswaraiah Technological University and another Vs. Krishnendu Halder and others reported in (2011)4 SCC 606 at para 8: (13) and (14) and 9 held as under:
“8(13): The object of the State or University fixing eligibility criteria higher than those fixed by AICTE, is twofold. The first and foremost is to maintain excellence in higher education and ensure that there is no deterioration in the quality of candidates participating in professional engineering course. The second is to enable the State to shortlist the applicants for admission in an effective manner, when there are more applicants than available seats. Once the power of the State and the examining body, to fix higher qualifications is recognized, the rules and regulations made by them prescribing qualifications higher than the minimum suggested by AICTE, will be binding and will be applicable in the respective State, unless AICTE itself subsequently modifies its norms by increasing the eligibility criteria
19 beyond those fixed by University and the State. It should be noted that the eligibility criteria fixed by the State and the University increased the standards only marginally, that is 5% over the percentage fixed by AICTE. It cannot be said that the higher standards fixed by the State or University are abnormally high or unattainable by normal students, so as to require a downward revision, when there are unfilled seats. During the hearing it was mentioned that AICTE itself has revised the eligibility criteria. Be that as it may.
The respondents (colleges and the students) submitted that in that particular year 2007-2008) nearly 5000 engineering seats remained unfilled. They contended that whenever a large number of seats remained unfilled on account of non- availability of adequate candidates, paras. 41(v) and
(vi) of Adhiyaman would come into play and automatically the lower minimum standards prescribed by AICTE alone would apply. This contention is liable to be rejected in view of the principle laid down in the Constitution Bench decision in Preeti Srivastava (Dr.) and the decision of the Larger Bench in S.V. Bratheep, which explains the observations in Adhiyaman in the correct
20 perspective. We summarise below the position, emerging from these decisions:
(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the central body/AICTE. The term “adversely affect the standards” refers to lowering of the norms laid down by the central body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the central body/AICTE.
(ii) The observation in para 41(vi) of Adhiyaman to the effect that where seats remain unfilled, the State authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE even though he is not qualified according to its standards, is not good law.
(iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would
21 cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is not to ensure that all seats in colleges are filled, but to ensure that excellence in standards of higher education is maintained.
(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain health ratio between the total number of seats available in the State and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations.
Coming to the facts of the present case, admittedly the petitioners in W.P.Nos.22135/2011 and 22140/2011 have put in attendance from 40% to
22 55%. Even if this Court accepts the contentions of the learned Counsel for the petitioners, they are not eligible to appear for the examination in question. In W.P.No.22134/2011, the petitioner has put in 66.16% of attendance. She has not put in 75% attendance in all the subjects as per the requirement of the Regulations of the University. The AICTE Regulations provides for condoning the attendance shortage up to 10% in the total for the reasons to be recorded in writing owing to serious illness, calamity, participation in any game/sports/competitions with approval of the institution, etc. The University Regulations do not contain a similar Regulation. The University Regulations have made it mandatory that in order to appear for the examination in a particular semester, a student has to put in 75% attendance in all the subjects of the said semester. The standard fixed by the University is consistent with promoting higher standards. It does not have an adverse effect on the standard of education. It is not in variance or in conflict with the standard fixed by the AICTE for appearance in the examination. As per the AICTE Regulations, the Dean of the University/Director/Principal of the college as the case may be shall announce the names of all students who are not found eligible to appear in the semester end examinations atleast seven calendar
23 days prior to the start of the semester end examinations and simultaneously intimate the same to the controller of examinations. The contention of the petitioners is that the Principal of the College has not informed the shortage of attendance as provided in the said Regulations of the University. It is clear that the petitioners do not have 75% attendance in all the subjects of the 6th semester. Merely because the Principal of the college has not informed them the shortage of attendance, they cannot be allowed to appear for the examination. The attendance is necessary to achieve the academic discipline and scholastic excellence. It is the foundation for any course of study. A student has to undergo requisite training to acquire knowledge, learning, discipline in the prescribed manner. That is why the University has made minimum attendance in each subject as essential for eligibility to appear for the examination. When the Regulations of the University do not provide for condoning the attendance shortage, this Court cannot direct the University to act contrary to law.
HAVING carefully considered the arguments of the learned Counsel at the Bar, I am of the view that prescribing 75% minimum attendance in each of the subject is a higher standard prescribed
24 by the University with a view to achieve excellence. In my opinion, the said Regulation is neither contrary nor at variance with the Regulations of the AICTE. There is no merit in these writ petitions. They are accordingly dismissed.”
Though an attempt is made by the learned counsel for the petitioners to rely on the judgment of this Court in the case of Prajwal Kumar Patil Vs. The Rajiv Gandhi University of Health Sciences, Karnataka and others reported in 2015(3) AKR 258, wherein it was a case where the institution was not at all circulated the shortage of attendance to the petitioners who are regular in other periods. This Court held, if it is informed to the student that he has shortage of attendance periodically, then definitely he could have attended the classes regularly or sought for rectification in marking the attendance etc. In those circumstances, this Court held the attendance of shortage can be condoned. The said case pertains to M.B.B.S. students. The Regulations to the M.B.B.S. and the Regulations to B.A., Bsc. and B.Com are entirely different. The facts of the said case has no application to
25 the facts and circumstances of the present case. Admittedly, in the present case the 3rd respondent-College has intimated the parents of the petitioners periodically about the shortage of the attendance of the petitioners.
For the reasons stated above, the first point raised in the present writ petition has to be held in the negative holding that this Court cannot direct the College or the University to permit the petitioners who do not have the required minimum attendance to take examination by condoning the shortage of attendance. The point No.2 has to be answered in the negative holding that this Court cannot condone the shortage of attendance and permit the petitioners to take part in the semester examination on the ground of hardship or otherwise, when the Regulations at 9.1 and 9.2 stated supra does not permit to condone the delay.
For the reasons stated above, the petitioners have not made out any ground to grant relief sought for in
26 exercising the powers under Articles 226 and 227 of the Constitution of India.
Accordingly, the writ petitions are dismissed.
Sd/- JUDGE
Sbs*