i myisan Banch THE HIGH COURT 7 OF CHHATTIHGARH AT BILASPUR WRIT APPEAL No.3 9 6 ' OF 201 1 i VERSUS Pragya Pawer, D/o Shri Rajaram Pawar) aged about 19 years, student ofB. C. A Part—I, R/o Kapil Nagar, Sarkanda, Bilaspur District Bilaspur (Chhattisgarh) Monika Nayak, D/o Shri Dinesh Kumar Nayak, aged 19 years, student ofB. C. A Part—I, R/o Nootan Chowk, Nivedita Hostel, Bilaspur DistBilaspur (Chhattisgarh) 3. F“ Yamini Manikpuri,D/o Shri Budhram Manikpuri, aged 19 years, student of B. C. A Part—I, R~74o Qtr. No. A~278, Basant Vlhar Colony Bilaspur DistBilaspur (Chhattisgarh) / a 4. Marnta Dewangan,D/o Late Pawan Dewangan, aged about 19 years, student of B. C. A Part—I, R/o Post — Javalpur Dist Janjgir— Champa (CG) 5. Rakhi Srivas, D/o Shri Panchram Srivas, aged about 19 years, student 01B. C. A Part—I, R/o Avind Nagar, Bandhwapara, Sarkanda, Bil’aspurDist Bilaspur (CG) Pooja Somawar) D/o Shri Prakash Somawar, aged about 19 years, student of B. C. A Part—I, R/o New Sarkanda, ~r Bilaspur (Chhattisgarh) RESPONDENTS[ 1. “ PETITIONERS W 2. f P . APPELLANTM 1. @ruvchasidas RESPONDENTS University Bilaspur through Registrar, Bilaspur (Chhattisgarh) / 2. Examination Controller, Guru Ghasidas University Bilaspur (Chhattisgarh) 7. Shruti Pandey, D/o Shri Rajkumar Pandey, aged about 19 y€arS, student of B. C. A Part—I, R/o Avind Nagar, Bandhwapara, Sarkanda, Bilaspur,Dist Bilaspur (CG) 8/ Rashmi Singh , D/o Shri Ramgopal Singh, aged about 19 years, student of B. C. A Part—1, R/o Bangalipara Street No.3, Sarkanda, Bilaspur (Chhattisgarh) 9. “ Nivedita Singh, D/o Shri D. S. Thakur, aged about 19 years, student of B. C. A Part—I, R/o Kapil Nagar, Sarkanda, Bilaspur District Bilaspur (Chhattisgarh) 10. ( Reena Thakur, D/o si M. S. Thakur, aged about 2O years, student of B. Ct A Part—II, R/o 5/38 Rajkishore Nagar, Bilaspur District Bilaspur (Chhattisgarh) 11. / Mamta Rathore, D/o Shri §§3§$3g U. S, Rathore , aged about 20 years, student of B. C. A Part~II, R/o Bangalipara Street No.3, Sarkanda, Bilaspurww (Chhattisgarh 121 Neetu Shrivastava,D/o Shri K. Shrivastava, aged about 20 years, student of B. C. A Part—II, R/o 5/ 10, Chandan Awas Rajkishore Nagar Bilaspur (Chhattisgarh) a f. Anjau Yadav, D/o Shri Ramesh Yadav, aged about '20 years, student of B. C. A Part—II,R/o New DLS College, Bilaspur (Chhattisgarh) 14f Rajeshwari Nayak,D/0 Shri Dinesh Kumar Nayak, aged 20 years, student of B. C, A Part~II, R/o Nootan Chowk, Nivedita Hostel, Bilaspur DistBilaspur (Chhattisgarh) > m /w& / Mamta Sahu, D/o Shri R. S. Sahu, aged about 20 years, student of B. C. A Part—H, R/o A NTPC, Seepat Bilaspur (Chhattisgarh) /, 16. 15. / Neetu Dhangar, D/o Shri Videshiram Dhangar, aged 20 years, student of BCA~II R/o Near Gayatri Mandir Chatidih, Bilaspur (CG) 17. (’Nsdam Verma, D/o Shri R. K. Verma , aged about 20 years, student of BCA—II R/o Nikhileshwaram Awasiya Parisan Chatidih, Bilaspur (Chhattisgarh) 18.“/Ishwari Sahu, D/o Shri Ramnarayan Sahu, aged 2O years, student of BCA—II R/o Indira Vihar, Bandh’para Sarkanda, Bilaspur District Bilaspur (Chhattisgarh) 19. Kavita Bahidar, D/o Shri R. S. Bahidar, aged about 21 years, student of BCA-—IH R/o Nootan Chowk, Nivedita Hostel, Bilaspur,[CG) Lalita Sahu, D/o Shri Chandrabhanu Sahu aged 21 years, student of BCA—III R/ 0 Nootan Chowk, Nivedita Hostel, Bilaspur, (CG) 21/ Shobha Manikpuri, D/o Shri L D Manikpuri, aged about 21 years, student of BCA—III R/o Postal Colony, RK Nagar Bilaspur (Chhattisgarh) 22. 23. Bhagyashri Sahu, D/o Shri R. S. Sahu, aged about 21 years, student of BCA—Ill R/o Gali No.3, Bangalipara, S‘arkanda, Bilaspur (CG) Shraddha Deewan, D/o Shri Srikant Deewan,aged about 21 years, student of BCA—HI R/o Surajmukhi 32, RK Nagar Bilaspur District Bilaspur (Chhattisgarh) 20. r whthh Ashtha Mishra, D/o Shri Ashwani Mishra, aged about 21 years, student of BCA~III R/o Village Birkoni, Dist. Bilaspur (Chhattisgarh) 25. Manju Yadav,D/o Shri Maitu Ram Yadav, aged about R/o 21 years, Satbahiniya student of Mandir, BOA—III ‘ ;’ ‘ Bandhwapara, Bilaspur (Chhattisgarh) Sarkanda, 3" / 26.“ Alka Mishra, D/o Shri C. S. Mishra, aged about 21 years, student of BCA—HI ‘R/o Gah' No.3, Jorapara Road, Sarkanda, Bilaspur (CG) 27. Richa Jain, D/o Shri Vijay Kumar Jain, aged about 21 years, student of BCA—IH R/o Rajkishore Nagar, Ph.l Bilaspur (Chhattisgarh) 28./Priya Dewangan, D/o Shri C,B.Dewangan, aged about 21 years, student of BCA-IH R/o Sivni (Naila), Janjgir DistJanjgir—Champa (C.G.} / 29. Gajal Rathore, D/o Shri N. P. Rathore,” aged about 22 years, student of BCA~III R/o Sivni (Naila), Janjgir w Dist.Janjgir~Champa (co) 30/ Nilophar Khan, D/o Shri Kalamuddin Khan, aged about 21 years, student of B.C. A~III R/o Adarsh Chowk, Mangla Bilaspur (Chhattisgarh) 3 l. Vijya Laxmi Bhosle, D/o Shri R. R. Bhosle, aged about 21 years, student of B.C. A—IH R/o Besides Hanu Traders, C/o §anat Dubey, Sarkanda, f Bilaspur (Chhattisgarh) 32. Tripti Tiwari, D/o Shri Chandrika Prasad Tiwari, aged about 21 years, student of BCA 111, R/o Near Satya / Showroom, Arvind Marg Sarkanda, Bilaspur (C.G.) “ J 33. Vinita Patel, D/o Baldau PateL aged 21 years, student of B R/o Gali No.3, Bangal Sarkanda,‘ Bilaspur 34. State of Chhattisgarh Through the Secretary, Higher Educ Department, Mantralaya, Dau Kalyan Singh Bhawan, X 35. Shaskiya Mata Sabari Naveen Kanya Mahavidy RESPONDENTS (Raipur (Chhattisgarh) Shri about CA—IH ipara, (CG) ation Though Principal, Seepat XRoad, Bilaspur (Chhattisgarh) 36. Smt. Sunanda Maravi, Assistant Lecturer (Hindi Section)Shaskiya Mata Sabari Naveen Kanya Mahavidyalaya, Though Principal, Se Road, Bilaspur (Chhattisgarh) SGARH alaya, epat XE COURT RULES 20077 WRIT APPEAL UNDER SECTION 2 (11 OF CHHATTI HIGH COURT APPEAL TO DIVISION BENCH ACT, 2006 READ WITH RULE 15 OF CHHATTISGAR HIG x 8 (10)\\ H H HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: gon’ble Dr. I. M. Ouddusi 85 Hon’ble Mr‘ G. Minhaiuddin. JJ. JUDGMENT AND ORDER FOR CONSIDERATION K ., j Sd/- I.M.Quddusi , Judge _I;ION’BLE MR. JUSTICE G. MINHAJUDDIN Sd/- :G. Minhajuddin Judge POST FOR ORDER ON 5ft December, 2011 V I , , y ”Ia D/x) ‘IPS a JUDGE 02.12.2011 I‘1 / ~. _ Writ Aggeal No. 396 of 2011 Appellants Guru Ghasidas University, Bilaspur another Versus Respondents {69 HIGH COURT OF CHHATTISGARH : BILASPUR W. A. No. 396 of 2011 WRIT APPEAL UNDER SECTON 2 (i OF THE CHI-IATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH ACT, 2006 READ WITH RULE 158 (10) OF THE CHHATTISGARH HIGH COURT RULES 2007 DB: Hon’ble Dr. I. M. Quddusi, t 85 Hon’ble Mr. G. Minhajuddin, JJ. Shri Ashish Shrivastava, Advocate for the appellants. Shri Prateek Sharma, Advocate for the respondents No. 1 to 33. Shri Vinay Harit, Deputy Advocate General for the respondent No. 34. None for the respondent No.35. Shri P. S. Koshy, Advocate for the respondent No.36. JUDGMENT AND ORDER (Passed on this 5% day of December, 201 1 ) Per Dr. I.M.Quddusi, J. l 1. This writ appeal has been filed by Guru Ghasidas University, Bilaspur (for short ‘the University’) against the impugned order dated 8th August, 2011, passed by the learned Single Judge in W. P. (C} No. 1568/2011 (Pragfa Pawar 8L 32 others Vs. State of Chhattisgarh 8r, others) and other connected matters (Writ Petition (C) Nos. 1580, 1581, 1626 and 1673 of 2011). 2. For the purpose of brevity, the appellants would be referred to as ‘the University’, the respondents No. 1 to 33 would be referred to as ‘the petitioners’, respondent No. 34 would be referred to as ‘the State’, respondent No. 35 Shaskiya Mata Shabri Naveen Kanya / Appellants Respondents [£0 Mahavidyalaya would be referred to as ‘the college’ and the respondent No. 36 (Smt. Sunanda Maravi) would be referred to as ‘Assistant Lecturer’. Brief facts, in nutshell, necessary for disposal of this writ appeal are that the petitioners are the regular students of the college duly affiliated with the University for the academic session of 2010—2011 of BCA Part I, II 8a III. The petitioners filled up their application forms in the month of October, 2010, which were duly accepted by the College as well as the University and after due scrutiny, the admit cards were issued. In the meantime, the Assistant Lecturer of Hindi Subject (Smt. Sunanda Maravi) had filed a complaint on 18—2-2011 to the college and directly sent a copy thereof to the University stating that the attendance of the students/petitioners of above mentioned classes in one subject i.e. Hindi is short and surprisingly at the fag end, acting upon the complaint, the University conducted a unilateral enquiry without affording an opportunity of hearing to the petitioners and without passing any formal order, decided Vide impugned order dated 7—3—2011 (Annexure P/ l) in the meeting of Academic Council of the University, thereby debarring the petitioners from appearing in the annual examinations which were scheduled to start from 10-3—2011 and informed the college Vide order dated 8—3-2011 (Annexure P/2), pursuant to which certain directions were issued by the college without any jurisdiction. The impugned action has been taken without consultation with the State. Further, vide impugned order dated 15—3-2011 (Annexure P/3) it was communicated to the Deputy Secretary, State of Chhattisgarh, Higher Education Department by the University that the Academic A4H, W Council of the University in its meeting dated 14.3.2011 h affirmed the impugned orders dated 7-3—201 l and 8.3.201 1. Being aggrieved, the petitioners filed the writ petition on 18.3.2010 for setting aside of the impugned orders dated 7—3—201 1, 8—3-201 1, 15—3—201 1 and further sought a direction to the authorities to allow the petitioners to appear in the annual examination of their respective classes in the academic session 2010—1 l. Learned Single Judge, having regard to the facts situation, dealt with in detail, vide interim order dated 22.3.2011 directed that the petitioners shall be allowed to appear in the examinations, which was to commence from 24.3.201 l. The case of the petitioners in the writ petition was that they had made several complaints in regard to the conduct of the Assistant Lecturer of Hindi subject and that is why, with malafide intention, she made the complaint to the college as well as to the University. For short attendance, if any, in one subject only, the liability and responsibility was on the college administration and the Assistant Lecturer of Hindi subject, wholmaintains the attendance register. There was no fault on the part of the petitioners and the attendance of the petitioners was proper and satisfactory in all other subjects, except Hindi subject. In a whole academic session 75% attendance is required if the classes are taken for more than 180 days. The College administration had informed the University about practical and extra classes, whereby the attendance of the petitioners/students has crossed the limit of minimum required attendance. Further, during the pendency of the writ petition with the consent of learned counsel appearing for the parties Vide order dated r4 t W 12.7.2011 learned Single Judge constituted a Committee, headed by a retired Hon’ble High Court Judge to enquire in to the matter and submit its report within seven days. Relevant paragraphs of the order reads as under : “Having regard to the allegations in respect of the attendance of the students in respondent College (Shashkiya Mata Shabn' Nayeen Kanya Mahavidlaya), whereunder the students have been denied permission to appear in the examination, with the consent of learned counsel appearing for the parties, Shri Justice Vijay Kumar Shriuastava, Retired Judge, High Court of Chhattisgarh Bilaspur, is requested to be the Chairman of the Committee to enquire into the allegations and counter allegations. " “The Committee headed by Shri Justice Shrivastava, shall be comprising of Registrar, Guru Ghasidas University (for short “the University”, Shri B. L. Goel, Additional Director, Department ofHigher Education 85 Shri Sunil Otwani, Advocate.” a............. Needless to say that an opportunity of hearing may be afforded to all the concerned parties. ” The aforesaid Committee held seven sittings and submitted the enquiry report on 19.7.2011. It is evident that an independent report was also submitted by Dr. M.S. K. Khokhar on 19.7.2011 itself. After receipt of the above reports, vide order dated 28.7.2011 it was directed to supply copy of both the reports to all the counsels, appearing for the parties and they were granted liberty to submit their response. lO. Thereafter, learned Single Judge vide common impugned order dated 8th August, 2011 allowed the writ petitions, holding that the contention of the University that there was short attendance in other subjects is rejected; The separate/independent report submitted by the Registrar of the University is not acceptable; w There was no infirmity in the report submitted by the committee, as the report has considered all the aspects of the matter and has clearly come to the conclusion that there was no short attendance and the students have participated, but due to manipulation and ulterior motive of the Assistant Lecturer the petitioners were reported to be in short attendance of the required percentage as per Ordinance No.6; and the petitioners have satisfied the basic requirements of attendance and thus they shall be treated as regular students for the examination wherein they had already appeared. The result of the examination shall be declared forthwith within a period of one week so that the petitioners could not be deprived of admission to further higher courses. 11. We have carefully perused the facts situation and the materials on record, which have been dealt with by learned Single Bench in its order. It would be profitable for us to quote paragraphs 3 to 38 of the impugned order, wherein the facts situation have been dealt with and the observations have been made by learned Single Bench. The same are quoted as under : 3. The facts, in brief, as projected by the petitioners, are that the petitioners are the regular students of respondent No.3 — Shashkiya Maata Shabri Naveen Kanya Mahavidyalaya (for short ‘the respondent college’) duly affiliated with the respondent No.2 — Guru Ghasidas University (Central) (for short ‘the respondent University? for the academic session of 2010—11 of BA/BCA/B.Com. Part I, II & III. Accordingly, the students filled up their application forms in the month of October, 2010, which were duly accepted by the respondent College as well as the respondent University. After due scrutiny, the admit cards were issued. In the meantime, the respondent No.5 has filed a complaint on 18-2—2011 directly to the W/ respondent University stating therein that the attendance of the students of above mentioned classes in one subject i.e. Hindi is short and surprisingly at the fag end acting upon the complaint, the respondent University conducted an unilateral enquiry without aj70rding an opportunity of hearing to the petitioners and without passing any formal order, decided vide impugned order dated 7—3—2011 in the meeting of Academic Council of the respondent University thereby debarring the petitioners from appearing in the annual examinations scheduled to be started from 10—3— 2011 and informed the respondent college vide order dated 8-3-2011 whereby certain directions have been issued by the respondent No.4 without any jurisdiction. The impugned action has been taken without consultation with the respondent State . Despite all the above, vide impugned order dated 14—3— 201 1 the Academic Council of the respondent University had affirmed the impugned order dated 7—3-2011 and also issued the fresh schedule of examinations of above mentioned classes, which were to be started from 24-3- 2011. The meeting of the Academic Council of the respondent University was held on 19—3—2011 & 21—3- 2011, copies of the proceedings were served upon the respondent college on 22—3—201 1 whereby it was decided that the final examination of above mentioned classes of the respondent college are suspended and would be declared separately, whereas the examination of all above mentioned classes of other colleges affiliated to the respondent University will be conducted as per the schedule starting from 24—3—2011. It is alleged by the petitioners that the said impugned action was taken by the Academic Council of the respondent University without application of mind for no rhyme or reason and have no jurisdiction to pass such order. In fact, the Executive Council alone is competent to take decision with regard to conduct of the examinations or cancellation of any examination. Thus, these petitions. er. , Shri Shawna, learned counsel appearing for the petitioners, would submit that the impugned orders are bad, illegal and arbitrary and) as such, the same are in violation of Articles 14, 16 & 21 of the Constitution of India The attendance of the petitioners in all other subjects is proper and satisfactory, therefore, particularly short attendance in Hindi subject of all the students is itself unbelievable and there is no reason for the students not to attend Hindi classes only. In fact, earlier the petitioners/students made several complaints against the respondent No.5 stating that the respondent No.5 never attended the classes and always tried to bunk her classes. Only to take the revengeful action, the respondent No.5 filed the complaint against the students with mala fide intention. Even the respondent No.5 is habitual in making complaints without any rhyme or reason. . Shri Sharma would further submit that the Principal of the respondent College stated that the respondent N045 was also responsible for the short attendance of the petitioners. The impugned action has been taken behind the back of the petitioners. Shri Sharma would next submit that the attendance register was maintained by the respondent No.5 and deliberately the attendance of the petitioners has not been marked by her. As per the ordinance, the attendance is not properly calculated with regard to the petitioners. The attendance is to be counted on the basis of classes, not on the basis of subject. Even otherwise, after issuing the admit cards and receiving the payment offees, the respondent University cannot take u— turn without affording an opportunity of hearing to the petitioners at the fag end, before commencement of the examination. As per Ordinance No.5, Executive Council of the respondent University is the competent authority to take decision. . Shri Moorthy, learned Dy. Advocate General appearing for the State, would submit that the enquiry committee was constituted and the Additional Director, Department of Higher Education was directed to hold an enquiry into the issue of short attendance of the students in the respondent college. The Additional director was not permitted to examine the original papers, as the University authorities declined to produce the same before him, thus, he could not complete the enquiry. . Shri Shriuastava, learned counsel appearing for th respondents No.2 & 4/Uniuersity, would submit that pursuant to the complaint dated 18—2-201 1 made by the respondent No.5 to the respondent College and a copy thereupon endorsed to the respondent University with regard to short attendance of students of BA/B.Com./BCA Part I, II & III, in Hindi subject, the respondent University constituted a two member committee to enquire into the short attendance of the students. The enquiry committee visited the respondent college on 6—3—2011 and after going through the relevant records, prepared the chart vide Annexure — R2/2 and submitted the report. On the basis of the said report and afterfollowing the due process, the impugned orders were passed by the respondent University in accordance with law. . Shri Shrivastava would further submit that the authorities of the respondent University found that the students have failed to secure minimum attendance of 75% after condonation of 15%, 60% separately in each subject of the course. The impugned action has been taken by the respondent University after complying with the basic principles of natural justice. Thus, the same are legal, valid, just & proper. It is further submitted that the petitioners’ attendance was short of even 60% not only in Hindi, but in other subjects also. Ms. Shastri, learned counsel appearing for the respondent No.5, would submit that the respondent No.5 is an Assistant Lecturer (Hindi). She belongs to Scheduled Tribe category and she is a strict Lecturer. The respondent No.5 is suffering from cancer and the treatment is going M e The respondent No.5 has not made any complaint against the students and she has simply informed the Principal of the respondent College vide letter dated 18—2- 201 1 about the short attendance of the students and copy of the same was endorsed to the respondent University. Thereafter, the authorities after considering the facts and circumstances of the case, initiated appropriate proceedings and passed the orders. Except making submission with regard to short attendance of the students in Hindi subject, the respondent No.5 has never misused her authority. Ms. Shastri would further submit that the respondent No.5 prepared the attendance register properly and attended the classes of her subject regularly, but the students have never appeared in her classes. In fact, in the complaints dated 15-9—20] 0, 1 7-9—2010 & 1 1-1 1—2010 were made against the respondent No.5, the details of the complainants are missing. Even the Principal of the respondent college is acting against the respondent No.5. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. There is no dispute that minimum attendance required to appear in the examination after condonation of 15% by the University is 60% both in lecturers delivered and in the practical held separately in each subject of the course. On the question that the Academic Council has no jurisdiction, the respondent University has justified the decision. Under proviso to Section 28 of the Central Universities Act and Statutes 2009 (for short “the Act and Statutes 2009”) whereunder the present respondent University came into existence, it is clearly prescribed in the first proviso that till such time as first Ordinances are not so made, in respect of the matters that are to be provided for by the Ordinances under this Act and the Statutes, the relevant provisions of the Statutes and the Ordinances 10 HQ made immediately before the commencement of this Act under the provisions of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 shall be applicable in so far as they are not inconsistent with the provisions of this Act and the Statutes. Under clause 1 of Ordinance No.5 (conduct of examinations) it is provided that all arrangements for the conduct of examinations to be held by the University shall be made by the Registrar in accordance with such directions as may be issued by the Executive Council in consultation with the Academic Council. Under clause 8 of Ordinance No.5 (conduct of examinations) it is specifically provided that the Executive Council may cancel an examination at all centres if it is satisfied that there has been a leakage of question papers or any other irregularity which warrants such a step. Ordinance No.6 {Examinations (General)} defines the ‘Regular candidate’ and admission of a regular candidate to an examination of the University. Clause 2 (1) provides that no regular candidate shall be admitted to an examination of the University unless he (i) has been enrolled as a student in a University Teaching Department, School of Studies or College in accordance with the Provisions of the Ordinances; (ii) possesses the minimum academic qualification for admission to the examination to which he seeks admission and has prosecuted a regular course of Study for that examination; (iii) has been enrolled as a student of the University; (iv) satisfies all other provisions, applicable to him, of this Ordinance and any other Ordinances governing admission to the examination to which he seeks admission. It appears that the power has been exercised under Part 2 of Ordinance No.6 {Examinations (General)} where it is for the University to take decision. Thus, it cannot be held that to satisfy the qualification for admission of a regular candidate to an examination of the University has to be decided by the Executive Council only. 11 In the case on hand, the enquiry, as pleaded by the respondent University, was held and it was reported that the petitioners were short of 60% of attendance in Hindi. Thus, they were debarred from appearing in the examination. The decision was taken by the standing committee of the Academic Council on 7—3—20] 1, which was communicated by letter dated 8—3-2011. The subsequent letter dated 15—3—2011 of the Registrar and the amended resolution