1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27TH DAY OF JULY 2011 BEFORE THE HON’BLE MR.JUSTICE S. ABDUL NAZEER WRIT PETITION NO.22134/2011 A/W MISC.W.NOS.7722/2011 & 7170/2011 AND 7171/2011 C/W W.P.NO.22135/2011 A/W MISC.W.NOS.7172/2011, 7173/2011 AND 7723/2011 & W.P.NO.22140/2011 A/W MISC.W.NOS.7174/2011, 7175/2011 AND 7724/2011 (EDN-EX) WRIT PETITION NO.22134/2011 A/W MISC.W.NOS.7722/2011 & 7170/2011 AND 7171/2011 Between: Pavitra K. Beede, D/o B. Karbasappa, Aged about 21 years, Vishwapriya Layout, 19th Cross, Bommanahalli, Bangalore. …. Petitioner. (common) (By Sri B.B. Patil, Adv.) And: 1 The Registrar, Bangalore University, Jnana Bharathi Campus, Jnana Bharthi Post, Bangalore – 560 056. R 2 2 The Principal, University Visvesvaraya College Of Engineering, K.R.Circle, Bangalore – 560 001. .… Respondents. (common) (By Sri Brijesh Patil, Adv.) W.P.NO.22135/2011 A/W MISC.W.NOS.7172/2011, 7173/2011 AND 7723/2011 Between: Akarsh Vishwanath, S/o D.Vishwanath, Aged about 21 years, No.457, 12th Cross, 2nd Stage, WLR, Mahalaxmi Pura, Bangalore – 560 086. …. Petitioner. (common) (By Sri B.B. Patil, Adv.) And: 1 The Registrar, Bangalore University, Jnana Bharathi Campus, Jnana Bharthi Post, Bangalore – 560 056. 3 2 The Principal, University Visvesvaraya College Of Engineering, K.R.Circle, Bangalore – 560 001. .… Respondents. (common) (By Sri Brijesh Patil, Adv.) W.P.NO.22140/2011 A/W MISC.W.NOS.7174/2011, 7175/2011 AND 7724/2011 Between: Sanjay Shetty, S/o P.S. Shetty, Aged about 21 years, 717, Subash Nagar, Govt. School Road, Nelamangala, Bangalore – 562 123. …. Petitioner. (common) (By Sri B.B. Patil, Adv.) And: 1 The Registrar, Bangalore University, Jnana Bharathi Campus, Jnana Bharthi Post, Bangalore – 560 056. 4 2 The Principal, University Visvesvaraya College Of Engineering, K.R.Circle, Bangalore – 560 001. .… Respondents. (common) (By Sri Brijesh Patil, Adv.) --- These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to quash the circular dated 10.6.2011, etc. Misc.W.Nos.7722/2011, 7723/2011 and 7724/2011 are filed under Order 6 Rule 17 of CPC for amendment, etc. Misc.W.Nos.7170/2011, 7171/2011, 7172/2011, 7173/2011, 7174/2011 and 7175/2011 are filed under Section 151 of CPC for direction, etc. These Writ Petitions & Misc.Ws. coming on for Orders this day, the Court passed the following: ORDER The petitioners had joined the University Visvesvaraya College of Engineering, K.R.Circle, Bangalore, (‘college’ for 5 short) for the study of B.E.(Civil) Engineering Course for the academic year 2008-2009. The college is affiliated to Bangalore University. It is contended that they have passed in all the subjects of 1st semester to 5th semester. The University did not permit them to appear for the sixth semester examination scheduled to be held on 11.6.2011 in view of the circular of the University dated 10.6.2011 (Annexure ‘J’ in W.P.No.22135/2011). The petitioners have called in question the legality/validity of the said circular in these writ petitions. 2. The petitioners have also filed applications- Misc.W.Nos.7722/2011, 7723/2011 and 7724/2011 for inclusion of an additional prayer in the writ petitions. The additional prayer is for quashing of the Regulations governing the Engineering course of the second respondent-college in so far as they are inconsistent with the AICTE Regulations. 6 3. The respondents have filed their statement of objections contending that as per the Regulations of the University, the petitioners have not put in 75% of attendance in each of the subjects of the sixth semester of B.E. (Civil) Engineering Course. That is why they are not eligible to appear for the said examination. The petitioner in W.P.No.22134/2011 has put in 66.16% attendance in one of the subjects. In W.P.No.22135/2011, the petitioner has put in 40% and 45% attendance in two of the subjects and the petitioner in W.P.No.22140/2011 has put in 55% attendance in one of the subjects. That is why they were not allowed to appear for the examination. 4. Sri B.B.Patil, learned Counsel appearing for the petitioners contends that as per the AICTE Regulations, a candidate has to put in not less than 75% of the aggregate scheduled periods in each of the prescribed course of theory (lectures plus tutorials) and practical (including workshop training, seminar, project, industrial training, etc.) in order to appear for the semester 7 examination. However, the Dean of the University in case of University/constituent college and Principal/Director in case of affiliated institutions may condone attendance shortage up-to 10% for reasons to be recorded in writing (owing to serious illness, calamity, participation in any game/sports/competitions with approval of the institution, etc.). The Regulations of the University is not in conformity with the AICTE Regulations. The Regulations of the University is void ab initio to the extent it is in conflict with the Regulations of the AICTE. The absence of a student to a class room lecture whenever he participates in the game/sports/competition, etc., should be condoned as it is a part of the education. It is further contended that as per the Regulations of the AICTE, attendance shall be counted seven days prior to the date of commencement of the University theory examinations. The Dean of the University/Director/Principal 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 days prior to the start of the semester end examinations and 8 simultaneously intimate the same to the controller of examinations. The Regulations of the University does not contain similar provisions. 5. On the other hand, Sri Brijesh Patil, learned Counsel appearing for the respondents submits that petitioners have not put in 75% of the attendance in one or two subjects of the sixth semester. That is why they were not permitted to appear for the sixth semester examination. It is argued that the Regulations of the University is not in violation of the Regulations of the AICTE. The University has fixed higher minimum qualification of attendance by prescribing 75% minimum attendance in each of the subjects for appearance of a student for the examination. It is further contended that though there is no requirement of law that the petitioners should be informed about the attendance in the class room, the students were informed from time to time the shortage of attendance in the class room. 9 6. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record. 7. Before adverting to the rival contentions of the learned Counsel for the parties, it is necessary to note the Regulations of the AICTE and the Regulations of the University relating to attendance requirement. The Regulations of the University in this regard is as under: “D. ATTENDANCE: D.1 A candidate shall undergo the prescribed course of study in the University Visvesvaraya College of Engineering, Bangalore University. D.2 A student shall attend a minimum 75% of the total number of classes held in each of the subject (Theory, Drawing and Practical) in each Semester. 10 D.3 A candidate not obtaining 75% of the attendance as stated in D.2 shall not be permitted to take the concerned semester examination. D.4 Candidate having less than 75% attendance in any subject have to repeat that particular semester along with the regular students of that semester during next academic year. D.5 The basis for the calculation of attendance shall be the period prescribed by the University by its calendar.” The Regulations of the AICTE is as under: “3.2 ELIGIBILITY: 3.2.1 In order to eligible to appear in any semester examination, a candidate must have had his Examination form submitted to the Registrar through the Principal of his/her College/Institute along with the following certificates signed by the Principal: (i) of good character; 11 (ii) of having remained on the rolls of the College, and (iii) of having attended not less than 75% of the aggregate scheduled periods, in each prescribed course of Theory (Lectures plus Tutorials) and Practical (including Workshop raining, Seminar, Project, Industrial Training, etc.); (iv) Provided that no candidate shall be eligible to appear in higher semester examination unless he has already fulfilled attendance requirement in the immediately lower semester; (v) The Dean of the University in case of University/constituent college and Principle/Director in case of affiliated institutions may condone attendance shortage up-to 10% in the total for reasons to be recorded in writing (owing to serious illness, calamity, participation in any game/sports/competitions with approval of the institution, etc.).However, under no circumstances, a student who has an aggregate attendance of less than 65% in a semester shall be allowed to appear in the semester end examination. (vi) Attendance shall be counted seven days prior to the date of commencement of the University theory examinations. Dean of the 12 University/Director/Principal 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 days prior to the start of the semester end examinations and simultaneously intimate the same to the controller of examinations. (vii) In case any student appears in the examination by default, who in fact has been detained by the institute, his/her results shall be treated as null and void.” 8. A comparative study of the Regulations would clearly indicate that clause Nos.(v) and (vi) of the AICTE Regulations are not incorporated in the University Regulation. Therefore, the question for consideration is whether the University has fixed higher minimum standard and whether the Regulations of the University is in conflict or at variance of the Regulations of the AICTE? 9. It is well settled that the University can fix eligibility criteria higher than those fixed by the AICTE in order to maintain 13 excellence in higher education. In Dr.PREETHI SRIVASTAVA AND ANOTHER VS. STATE OF MADHYA PRADESH AND OTHERS – AIR 1999 SC 2894, the Constitution Bench of the Apex Court has held that the State may, for admission to the Post- graduate Courses lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education. 10. In STATE OF TAMIL NADU & ANOTHER VS. S.V.BRADHEEP (MINOR) AND OTHERS – AIR 2004 SC 1861, the Hon’ble Supreme Court has held that if higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, it cannot be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it. 14 11. In a recent judgment, the Apex Court in VISVESWARAIAH TECHNOLOGICAL UNIVERSITY & ANOTHER VS. KRISHNENDU HALDER & OTHERS – (2011) 4 SCC 606, has held thus: “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 courses. 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 recognised, 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 beyond those fixed by 15 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. 14. 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 principles 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 16 correct 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. 17 (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 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 18 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.” 12. 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 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 19 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 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 20 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. 13. 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 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. 21 14. In view of the dismissal of the writ petitions as above, Misc.W.Nos.7722/2011, 7170/2011, 7171/2011, 7172/2011, 7173/2011, 7723/2011, 7174/2011, 7175/2011 and 7724/2011 do not survive for consideration. They are accordingly disposed of. No costs. . Sd/- JUDGE. BMM/-