IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10.11.2008 Coram: The Honourable Mr.A.K.GANGULY, CHIEF JUSTICE and The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA Writ Appeal No. 1266 of 2008 G.Pravina …. Appellant Vs. 1. The Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai – 28. 2. The Principal, Central Law College, Salem. …. Respondents Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No. 26019 of 2008 dt. 04.11.2008 praying a writ of mandamus directing the respondents to permit the petitioner to write the petitioners final year(semester)Law Examination to be held on 03.11.2008. For Appellant :::: Mr. S.Sankarasubbu For Respondent 1 :::: Mr.V.M.G.Remakkanna For Respondent 2 :::: Mr.Prem Auxilian Raj J U D G M E N T (The Judgment of the Court was delivered by Hon’ble The Chief Justice) Heard the learned counsel for the parties, including the learned counsel for the University-first respondent. 2. This writ appeal has been filed impugning a judgment of the learned Judge of the writ court dated 04.11.2008 whereby the writ petition filed by the appellant has been dismissed. The writ petitioner is the appellant in this case. 3. The case of the writ petitioner before the learned Judge of the writ court was that she is a third year student of the Central Law https://hcservices.ecourts.gov.in/hcservices/ College, Salem (hereinafter called the “said College”). Her grievance is that she is not allowed to sit for the third year examination as, according to her, permission was refused since she did not pay the donation charged by the said College. The learned Judge found that the aforesaid plea of not allowing the appellant to sit for the examination for non-payment of donation is factually incorrect. In coming to the said finding, the learned Judge relied on a Division Bench judgment of this Court rendered in W.P.No. 8667 of 2004 on 18.10.2006. The learned Judge found that the writ petitioner paid the amount of Rs.17,025/- in two instalments, initially by way of first instalment of Rs.13,025/- and then by subsequent instalment of Rs.4000/-. The said Division Bench judgment of this Court dated 18.10.2006 has been annexed in the typed set of papers filed in this proceeding. From the said Division Bench judgment, it appears that several writ petitions were heard by the Division Bench in respect of the said College and at page 21 of the typed set, it appears that the Division Bench held that the said College has fixed the fees of Rs.17,025/- for Three Year Course per annum, and there is a specific finding by the Division Bench, which runs as follows: - “There is no material brought on record to show that the fees fixed by the College is excessive or exorbitant or that the College is indulging in profiteering or commercialization.” The Division Bench also found that the fees for the School of Excellence run by Dr.Ambedkar Law College is far more than the fees fixed by the said College. Therefore, it appears that the aforesaid fee structure of Rs.17,025/- for Three Years Law Course, which was fixed by the said College, has been approved by the Division Bench of this Court. Therefore, the amount, which has been paid by the petitioner namely, the said amount of Rs.17,025/- by two instalments, was nothing but payment of tuition fees of the said College. From the typed set filed by the petitioner, it appears that the said amount was paid by the petitioner on 09.09.2008 and two receipts issued for the same have been annexed by the petitioner at pages 1& 3 of the typed set. On a perusal of those receipts nothing appears to show that the petitioner was asked to pay any donation. Therefore, the case, which has been made out in the writ petition, that because of non-payment of the donation by the petitioner, she was not allowed to appear in the examination, is not based on record and cannot be accepted by this Court. Rather on a frivolous plea, the writ petition has been filed, and this Court finds that the said plea has been rightly rejected by the learned Judge. 4. The other plea is that the petitioner has been issued a hall ticket, as a result of the issuance of the hall ticket to the petitioner by the University, the College authorities have no right to prevent the petitioner from appearing in the examination. This argument has been developed on the basis of the receipts showing payment of Rs.331/- by the petitioner towards the examination fees. The said payment was made by the petitioner on the basis of a bank challan in favour of the Registrar, Tamil Nadu Dr.Ambedkar Law University-first respondent. So far as the hall ticket is concerned, the stand of the said College is https://hcservices.ecourts.gov.in/hcservices/ that the petitioner did not attend the classes at all. The College authorities have filed a typed set and in the said typed set they have annexed two circulars dated 17.10.2008 and 24.10.2008. In the said circulars, they have given the list of students, who have earned the attendance to appear for the ensuing University Examination in November, 2008. In the first list, which has been published on 17.10.2008, the names of about 53 students have been shown, but the name of the writ petitioner is not there. In the second list, which has been published on 24.10.2008, the names of the students who have not earned the required attendance have been shown and as such, they are not qualified to write the examination in November, 2008. In the list, the name of the writ petitioner is shown. As stated earlier, the said list was published on 24.10.2008 by the Principal of the said College. Before us, the attendance register has been produced by annexing a Xerox copy of the same in the typed set. On a perusal of the attendance register, it appears that for the month of July, 2008, the writ petitioner did not attend classes even for a single day, even though classes for 13 days were held. Similarly, for the month of August, 2008, classes were held for 16 days, but the petitioner did not attend the classes even for a single day. For the month of September, 2008, classes were held for 24 days, but the petitioner did not attend classes for a single day. For the month of October, 2008, classes were held for 13 days and the petitioner attended only for 7 days out of those 13 days. Therefore, out of the total number of classes held for 66 days, the petitioner has attended only for 7 days, which is much less than the 75% required attendance. 5. Learned counsel for the University submits that even though the hall tickets are issued by the University, under the University Guidelines and Regulations, such hall tickets are issued, subject to the rules of attendance which are prescribed by the Bar Council of India and the University and the same are to be strictly adhered to before permitting the candidates to write the examination. 6. Our attention has been drawn in this connection to page-5 of the typed set filed by the said College, which is a circular issued by the Controller of Examinations, The Tamil Nadu Dr.Ambedkar Law University and in the said Circular, it is clearly mentioned as follows: - “The Principals are further informed that the rules as to attendance as prescribed by the Bar Council of India and this University are to be strictly adhered to before issuing the Hall tickets and permitting the candidates to take the examinations.” A xerox copy of an identical hall ticket has also been annexed and on the reverse of the hall ticket several instructions have been mentioned. Instruction No.10 is as follows: - “Candidates who have earned a minimum of 75% of attendance are eligible to appear for the University examination. Candidates who have earned attendance above 66% and below 75% are eligible to appear for the examinations provided the lack of attendance is https://hcservices.ecourts.gov.in/hcservices/ recommended and forwarded for condonation by the respective College Principals on payment of the prescribed fee of Rs.500/-. In other cases no candidate eligible to appear for the University examinations.” 7. It is not in dispute that similar hall ticket has been issued to the petitioner, which contains similar instruction. On a perusal of the aforesaid instruction mentioned in the hall ticket and the circular issued by the Controller of Examinations, it is clear that mere issuance of hall ticket does not automatically allow the candidate to write the examination, unless the candidate has requisite attendance. In the counter-affidavit filed by the said College before the writ court, the said College has extracted the rules relating to attendance, and the said rules are as follows: - “A. Every student shall earn atleast 75% of the total number of working days to qualify for appearing in the University examinations. B. However the shortage may be condoned on Medical or other valid grounds by University for those candidates who have attended atleast 66% of the working days. C. Students having less than 66% of the total number of working days SHALL REDO the course.” 8. From a perusal of the above said rules, the instruction mentioned in the hall ticket and also the circular issued by the Controller of Examinations, it is clear that earning required attendance is a condition precedent to allow the candidate to sit for the examination. In the instant case, the petitioner has attended only for 7 days, whereas the University held classes for 66 days, and as such the petitioner is not entitled to appear for the ensuing examination to be held in November, 2008. 9. Learned counsel for the petitioner has referred to certain judgments in support of his contention. Reliance was first placed on a judgment of the Division Bench of Madhya Pradesh High Court in the case of Premji Bhai v. Ravishankar University, AIR 1967 Madhya Pradesh 194. In the said judgment, the learned Judges held that once the deficiency in attendance is condoned, and attendance certificate has been issued followed by admission card to the examination, there cannot be any subsequent withdrawal of permission or withholding the examination result by the Vice-Chancellor for want of attendance. Learned counsel places reliance on the observation made in paragraph-8 of the said Division Bench judgment at page 197. From a perusal of the observation, it is clear that the learned Judges held that scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued and once the admission cards are issued permitting the candidate to take their examination, there is no provision in Ordinance No.19 or Ordinance No.48, which would enable the Vice-Chancellor to withdraw the permission. In other words, the learned Judges held that discretion having been exercised in favour of the student by permitting him to appear in the examination, it was not open https://hcservices.ecourts.gov.in/hcservices/ to the Vice-Chancellor to withdraw that permission subsequently. In the instant case, as pointed above, the hall tickets were issued, subject to clearance by the College authorities of the requisite attendance, as has been discussed herein above. Therefore, the University Regulations are totally different in this case. Therefore, the decision in the case of Premji Bhai v. Ravishankar University (supra) is not applicable to the facts of the present case. 10. Similarly, the judgment of the Hon’ble Supreme Court, on which reliance was placed by the learned counsel, rendered in the case of Sri Krishnan v. Kurukshetra University, reported in 1976 (1) SCC 311, also proceeds on a similar reasoning. In that case, it was held that University Ordinance empowers the authorities to withdraw the certificate regarding attendance before the examination. But this could be done only before the examination takes place. Once, the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and thereafter, the student cannot be refused admission subsequently for any infirmity, which should have been considered before allowing the student to appear in the examination. In the case of Sri Krishnan the facts were that notice regarding shortage of attendance about the candidate was twice put up on the notice board and the University was aware of it. Therefore, it cannot be said that the student committed any fraud on the University. If neither the Head of the Department nor the University authorities took care to scrutinize the admission form, then in that case there is no question of fraud having been committed by the student on the University. Once the University authorities allowed the student to appear for the examination along with those infirmities of shortage of attendance, the University has no power to withdraw the candidature of the applicant or withhold his result. The principles, which have been laid down by the Hon’ble Judges in the aforesaid judgment, are based virtually on Principles of Estoppel. But in the instant case the factual position is totally different. The hall tickets have been issued with clear stipulation that they are issued subject to the clearance of attendance by the college concerned, and the same is reiterated in the circular issued by the Controller of Examinations, and on the instructions mentioned on the reverse of the hall ticket and also in the Regulations of the University. Therefore, factually, the case, which have been decided by the Madhya Pradesh High Court and by the Hon’ble Supreme Court have no bearing on the issue raised in the instant case. 11. Learned counsel for the petitioner also relied on a Single Bench Judgment of the Calcutta High Court in the case of Manas Sarkar v. University of Calcutta, AIR 2000 Calcutta 251. In that case, it appears that once the University accept attendance fee for shortage of attendance for non collegiate students and allow them to sit in the examination, subsequent non-speaking orders by syndicate of University disallowing such students to sit in the examination is illegal. As already pointed above, the factual position in the instant case is totally different. Therefore, the ratio in the case of Manas Sarkar is not attracted to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ 12. For the reasons aforesaid, we hold that there is no merit in the appeal and the appeal is liable to be dismissed and is according dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pv/ Copy to: 1. The Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai – 28. 2. The Principal, Central Law College, Salem. 1 cc to Mr.S.Prem Auxilian Raj, Advocate, Sr.No.62474 W.A.No. 1266 of 2008 SCD(CO) EM/18.11. https://hcservices.ecourts.gov.in/hcservices/