CWP No.18596 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 09.02.2010 Salil Trikha Vs. Guru Nanak Dev University, Amritsar, and another CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Narender Lucky, Advocate,for the petitioner. Mr.Amrit Paul, Advocate, for respondent No.1. Mr.RS Bajaj, Advocate, for respondent No.2. PERMOD KOHLI, J. (Oral): Learned counsel for the petitioner submits that due to inadvertent mistake respondent No.2 has been wrongly mentioned as Lovely University of Law, whereas it is Lovely Institute of Law. He seeks leave of the Court to make necessary correction. Prayer is allowed. Correction is carried out in the open Court. The petitioner is a student of five years LL.B. Course having been admitted in the year 2005. While studying in 9th semester, he developed physical problem. He was examined at Jalandhar hospital. He was diagnosed with the following medical problem:- “Right Renal Findings are s/o Pelvi-Ureteric Junction Obstruction? Cause Clinical correlation and Further evaluation is suggested.” It is alleged that the petitioner consulted the Kidney CWP No.18596 of 2009 2 Hospital and Lifeline Medical Institute, Jalandhar. He was recommended to Sir Ganga Ram Hospital, New Delhi, for surgery. The petitioner approached Sir Ganga Ram Hospital, New Delhi on 17.09.2009. He was admitted in the aforesaid Hospital on 24.09.2009 and was operated upon there on 25.09.2009 for “Right PUJ Obstruction”. He remained admitted in the said hospital till 30.09.2009. The copies of the discharge summary and Bills have been placed on record as Annexure P-2. The petitioner was advised rest upto 14.10.2009. Certificate issued by Sir Ganga Ram Hospital, New Delhi, in this regard is Annexure P-4. It is stated that for undergoing various tests on account of the above mentioned medical problem, the petitioner could not attend the classes/lectures in respondent No.3 College. The petitioner has been detained by respondent No.2 on account of shortage of attendance in 9th semester and was not permitted to appear in the examination which was scheduled to be held on 30.11.2009. The petitioner made an application dated 24.11.2009 seeking indulgence of respondent No.2 for participating in the examination. Respondent No.2 has not passed any order on the application. It is under these circumstances that the petitioner has filed the present writ petition. Vide interim order dated 04.12.2009, the petitioner was permitted to appear in the remaining papers of 9th semester provisionally. However, it was directed that the result of the petitioner be not declared without the prior permission of this Court. CWP No.18596 of 2009 3 Respondent No.1 has filed its reply. The prayer of the petitioner for condonation of lectures has been opposed on the basis of the Ordinance framed by the University for Five Years Law Course. The relevant extract of Ordinance 5 the University Calendar is reproduced below:- “5. The students shall be required to attend at least 66% of the lecturers delivered in each of the subjects and also in the tutorial, moot court, practical training for being eligible to take the examination. But in exceptional cases and for reasons to be recorded, the Head of the Department, may condone the shortage in the said paper/s, if the student has attended 66% of the total lecturers delivered in all the subjects of the concerned semester.” The University has further relied upon the statutory rules framed by the Bar Council of India as contained in Annexure R-1. The relevant rule is as under:- “4. The students shall be required to put in minimum attendance of 66% of the lectures on each of the subjects as also at the moot courts and practical training course: Provided that in exceptional cases for reasons to be recorded and communicated to the Bar Council of India, the Dean of the Faculty of Law or Principal of Law Colleges may condone CWP No.18596 of 2009 4 attendance short of those required by this rule, if the student had attended 66% of the lecturers in the aggregate for semester or annual examination as the case may be.” Under the University Ordinance and the Bar Council rules, a student is required to attend, at least, 66% of the total lectures delivered in each of the subjects and also in the tutorial, moot court, practical training for being eligible to take the examination. Proviso to Rule 4 further provides that in exceptional cases, the Dean of the faculty of Law or the Principal of the Law College may condone attendance short of those required by this rule if the student had attended 66% of the lecturers in the aggregate for the semester or annual examination, as the case may be. It is, accordingly, contended that the petitioner do not fulfill the minimum required attendance and, thus, he is not eligible for appearance in the 9th semester examination. Here is a case where the petitioner was prevented from attending classes/course on account of the circumstances beyond his control. No statutory rules or Ordinance has been placed before this Court which may deal with a situation like this. No rule or law is intended to over look the genuine problem of the human beings. These rules apply in normal situations and do not deal with the abnormal situation like the present one where a candidate has suffered on account of the medical problems which were beyond his control. The question is whether the University Ordinance and the Bar Council rules relied upon by the respondents are mandatory in nature leaving no room for any kind of relaxation under any circumstances or CWP No.18596 of 2009 5 these rules do admit any abnormal situation like the present one and could be relaxed in appropriate cases. From the perusal of Ordinance 5 of the University Calendar as also the Bar Council Rules, it appears that requirement is 66% attendance in each subject. It is further specified that where in a particular subject the attendance is less than the prescribed, the competent authority specified therein has the powers to relax the same provided the student has 66% attendance in aggregate of all the subjects. It is, thus, clear that if in any particular subject, the attendance is below 66%, relaxation is permissible. No minimum limit in such eventuality has been prescribed. The competent authority may condone the attendance in any particular subject if the aggregate is 66% to any extent. The object of the rules is to ensure the regular study of student to enable him/her to acquire sufficient knowledge of the subjects/course of study. However, the question is, in a case where a student is otherwise reguar, but on account of the unfortunate incident like the accident/illness or any other like situation, is prevented from attending the classes, whether he should be punished for no fault of his or in appropriate cases where the authorities or the Courts are satisfied, relaxation could be granted. In a similar situation while considering the provisions of Bihar Building (Lease, Rent and Eviction) Control Act, the Hon'ble Supreme Court has interpreted the provisions so as to give a meaningful interpretation to the legislative intent depending upon the circumstances. The provisions of Section 11A of the aforesaid Act enjoined a duty upon tenant to deposit the rent within a specified period failing which the defence of the tenant is to be struck off. The question whether such a provision should be construed as mandatory with no scope for relaxation or in appropriate cases the provisions could be taken a CWP No.18596 of 2009 6 directory. The Hon'ble Supreme Court in the case of Ganesh Prasad Sah Kesari and another Vs. Lakshmi Narayan Gupta, A.I.R. 1985, Supreme Court, 964, while considering the provisions of Section 11A of the Act aforesaid, observed as under:- “Ordinarily the use of the word “Shall” prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well established that the court wile considering whether the mere use of word “shall” would make the provision imperative, it would ascertain the intendment of the legislature and the consequences flowing from its own construction of the word “shall”. If the use of the word “shall” makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands. If the word “shall” is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to CWP No.18596 of 2009 7 relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order. To illustrate, if the tenant while he was on the way to the court on the 15th day to deposit the rent for the just preceding month as directed by an order under Sec.11A, met with an accident on the road and could not reach the court before the court hours were over, should be he penalised by his defence being struck off. Even if the court is satisfied that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident, would the court be powerless to grant him relief. This illustration would suffice to disclose the intendment of the legislature that it never used the word “shall” to make it so imperative as to render the court powerless.” The petitioner has placed on record the medical certificate Annexure P-4 wherein the Doctor has categorically recommended medical leave of the petitioner from 17.09.2009 to 14.10.2009 which comes to 26 days. The petitioner is short of 16 lectures from the minimum required. He has completed 50 per cent lectures. If the credit of the dates from CWP No.18596 of 2009 8 17.09.2009 to 14.10.2009 is given, then the petitioner makes up the deficiency in the lectures. Keeping in view the medical evidence which remains un- rebutted, the present petition is allowed. The petitioner is granted the benefit of illness from 17.09.2009 to 14.10.2009 on the basis of the certificate issued by Sir Ganga Ram Hospital, New Delhi. The petitioner shall be permitted to continue with the course. His provisional permission to participate in the 9th semester examination is hereby regularised. Let the result of the petitioner for 9th semester be declared accordingly. 09.02.2010 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES