W.P.(C) No. 8302/2009 Page 1 of 82 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 30.04.2010 Judgment delivered on: , 2010 W.P.(C) No. 8302/2009, Vandana Kandari ……… Petitioner Through: Mr R.K.Saini, Advocate. versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 8419/2009 Aarti Meena ..... Petitioner Through: Mr R.K.Saini, Advocate. versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 13314//2009, Manas Pegu ..... Petitioner Through: Mr Mohit Jolly, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 8302/2009 Page 2 of 82 W.P.(C) No. 13354//2009 Sukriti Upadhyay ..... Petitioner Through: Mr Hari Narayan Takkar & Deepak Anand, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 13391//2009 Rajesh Kumar Gautam ..... Petitioner Through: Mr R.K.Saini, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 13400/2009 Sajili Vashisht ..... Petitioner Through: Mr. Kirti Uppal, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 8302/2009 Page 3 of 82 W.P.(C) No. 13410/2009 Samiya Singh ..... Petitioner Through: Mr. Kirti Uppal, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 13427/2009 Manpreet Kaur ..... Petitioner Through: Mr. Dinesh Agnani, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 13456/2009 Samuel S.L. Serto ..... Petitioner Through: Mr. A. Guneshwar Sharma, Advocate. Versus University of Delhi. ..... Respondents Through: Shri M.J.S. Rupal, Adv. W.P.(C) No. 8302/2009 Page 4 of 82 CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? KAILASH GAMBHIR, J. 1. “Our Colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an area of profound scholarship or enlightened research” observed Dr. Sarvepalli Radhakrishnan some decades ago. But today we have travelled a long distance since then, altering the landscape of legal education in our country. We are just marginally away from the profound scholarship and enlightened research and we must proudly admit that Dr. Radhakrishnan‟s powerful and poignant words are amenable to radical restatement today. The subject matter of the present petitions is a case of an unfortunately W.P.(C) No. 8302/2009 Page 5 of 82 prevalent trend in the now otherwise highly systemized scheme of legal education that exits today. 2. This order shall dispose of a batch of nine petitions bearing nos. 8302/2009, 8419/2009, 13314/2009, 13354/2009, 13391/2009, 13400/2009, 13410/2009, 13427/2009 and 13456/2009, filed by the petitioners who are students of different semesters in Law Faculty, University of Delhi. All these petitions raise a common question and issue as all these petitioners were detained from appearing in the semester examinations on account of shortfall of their attendance. Out of these nine cases, the petitioners in W.P.(C) No 8302/2009 and W.P.(C) 8419/2009 seek relaxation in the shortfall of the attendance under Rule 2 (9)(d) of Ordinance VII of the University Ordinance read with Article 42 of the Constitution of India to give concession of attendance in all those lectures during which period they could not attend classes being at the advance stage of pregnancy. In W.P.(C) No. 13314/2009, 13354/2009, 13400/2009, 13410/2009, 13427/2009, 13456/2009, the W.P.(C) No. 8302/2009 Page 6 of 82 petitioners claim condonation of shortfall of attendance on medical grounds, while in W.P.(C) No.13391/2009, the petitioner has claimed condonation on the ground that he could not attend the classes due to the exigency of taking care of his old grandparents. 3. Adumbrated facts of each petition are as follows:  In W.P. (C) 8302/09, the petitioner was pregnant and on 19.11.2008, she made a representation to the Professor-in- Charge of the Faculty of Law stating that since she is pregnant, she might fall short of attendance during the VIth semester commencing from January, 2010 and so in such an event she may be permitted to appear in the examinations, which representation was duly received. She gave birth to a boy on 10.1. 2009, due to which she had attendance of 54.30% as opposed to the required 66% and hence was detained from appearing in the VIth semester examination. As on date, as an interim measure she was allowed to appear in the VIth semester examination and the result was to be kept in a sealed cover subject to the outcome of the present petition. But still the university declared her result on W.P.(C) No. 8302/2009 Page 7 of 82 17.6.2009 in which she has cleared all the papers of the VIth semester securing 297 out of 500 marks.  Similarly in W.P. (C) 8419/09 the petitioner was pregnant and gave birth to a female child on 16.2.2009, due to which her attendance in the IVth semester was 53% and was hence detained from appearing in the examinations. As on date, as an interim measure, this court had permitted her to appear in the said examination and the result to be kept in a sealed cover subject to the outcome of this writ petition. 4. Mr. R.K. Saini, counsel for the above mentioned two petitioners, submitted that under Article 42 of the Constitution of India by virtue of the Directive Principles of State Policy, a duty has been cast upon the State to make adequate provisions for securing just and humane conditions of work and for maternity relief and that the Government in compliance thereof enacted the Maternity Benefit Act , 1961(with special emphasis on section 4 and 6) and that the provision of Rule 2 sub rule 9(d) of Ordinance VII of the university also flows from the said Directive Principles. W.P.(C) No. 8302/2009 Page 8 of 82 He also placed reliance on the judgment of the Apex court in MCD vs. Female Workers AIR 2000 SC 1274 (with special emphasis on para 10, 24 and 30). Mr. Saini further submitted that so far Ordinance VII is concerned, the heading of the same which reads as “Conditions for admission to Examinations” itself would show that the said ordinance deals with the conditions of all the examinations which includes LLB as well. He further submitted that so far Rule 2(9) (d) of Ordinance VII is concerned, the same remained effective even after amendment in Rule 2(8) (a) after the decision of the Division Bench in S.N. Singh’s (I) case (106 (2003) DLT 329). The contention of the counsel was that so far the cases of the students of maternity leave are concerned, the said provision remained unaltered and the same continued to be applicable to all courses including the LLB Course. He further submitted that by operation of Rule 2 (9) (d) a fiction is created as if no lectures were held during the period of maternity leave of a married woman student who becomes pregnant and delivers a child during the period of her studies. Therefore by giving the W.P.(C) No. 8302/2009 Page 9 of 82 concession/benefit to a married woman student in accordance with Rule 2 (9) (d) and Rule 2 (8) (a) of University calendar relating to LLB course and Bar Council of India Rule is actually not violated in as much as both the rules require a LLB student to put in a minimum attendance of 66% in each of the subjects which obviously relates to the lectures delivered. Counsel also contended that what are the minimum lectures to be delivered by the College/University in a particular Semester/Academic year is not specified anywhere. He further placed reliance on the judgment of the Apex Court in Zee Telefilms Ltd & Anr vs. UOI AIR 2005 SC 2677 in which it was held that a decision is not an authority for the proposition which did not fall for its consideration. He also relied on the case of UOI vs. Amritlal Manchanda AIR 2004 SC 1625 where it reiterated the principle that each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant circumstance may alter the entire aspect. Counsel thus urged that in deciding such cases, one W.P.(C) No. 8302/2009 Page 10 of 82 should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. 5. Mr. Saini also placed reliance on the judgment of this Court in Seema Sharma vs. University of Delhi W.P. (C) No.9892/2006 where specifically dealing with Rule 2 (9) (d) of Ordinance VII, the court has held it applicable in the case of a married women student, irrespective of the provisions contained in the rules prior to said rules relating to the requirement of attendance in her course of study, and has held it to be the right of married women students studying in University of Delhi and holding them as a special class under Ordinance VII. Counsel also placed reliance on the following judgments: 1. Neera Gupta & Ors. vs. University of Delhi & Anr. 63 (1996) DLT 458 2. Nithya vs. University of Madras 1996 WLR 8029 (Madras High Court) 3. Mrs. Bharti Gupta vs. RITES (WPC 4798/03, Delhi High Court) W.P.(C) No. 8302/2009 Page 11 of 82 6. Coming to the other petitions, briefly the facts are as follows:  In W.P. (C) 13314/09, the petitioner is a student of Ist Semester and had 61.27% attendance. He could not attend college as he suffered from acute lambago (ailment of the lower back) and was advised bed rest for one month from 1.9.09 to 30.9.09. As an interim measure, the court allowed him to appear in the Ist semester examination and thereafter also permitted him to attend IInd semester classes and appear in the IInd semester examinations.  In W.P. (C) 13354/09, the petitioner is a student of Ist Semester and her attendance was 56%. On account of suffering from backache and infection in digestive system she had returned to her hometown in Rajasthan for one month from 1.8.09 to 1.9.09 and was hence debarred from appearing in the Ist semester examinations. As an interim measure, she was allowed to take the Ist semester examinations and thereafter attend IInd semester classes and also take IInd semester examinations.  In W.P. (C) 13391/09 the petitioner is a student of Ist semester and had 63.7% and was short of attendance on account of taking W.P.(C) No. 8302/2009 Page 12 of 82 his ailing old grandparents to hospital time and again. As an interim measure, he was allowed to appear in the Ist semester examinations and attend classes of the IInd semester.  In W.P. (C) 13400/09 the petitioner is a student of the Ist semester and her attendance was 50.2% due to asthma attacks and was advised rest from 5.10.09 to 30.10.09. As an interim measure, the court allowed her to appear in the Ist semester examinations and attend classes of the IInd semester and also to appear in the IInd semester examinations.  In W.P. (C) 13410/09 the petitioner is a student of Vth semester and due to suffering from dengue fever, her attendance was 61.5% as opposed to the required 66%. According to the petitioner she was marked zero attendance in the subject of Intellectual Property Laws whereas she had attended quite a number of lectures of the said subject. As an interim measure, this court had allowed her to appear in the Vth semester examinations and attend classes of the VIth semester and thereafter also to appear in the VIth semester examinations subject to the outcome of the present writ petition. W.P.(C) No. 8302/2009 Page 13 of 82  In W.P. (C) 13427/09 the petitioner is a student of Ist semester and was short of attendance as she had 62.7% due to suffering from viral. As an interim measure, the court had allowed her to appear in the Ist semester examinations.  In W.P. (C) 13456/09 the petitioner is a student of Ist semester and was suffering from acute sinusitis (frontal) due to which his attendance was 62.20%. As an interim relief, the petitioner was allowed to appear in the Ist semester examinations and consequently to attend the classes of the IInd semester and to appear in the IInd semester examinations subject to the outcome of the present writ petition. 7. In the above mentioned seven petitions, the counsel representing them jointly placed reliance on Rule 2 (9) (a) (ii) of Ordinance VII of the University Calendar. The contention of the counsel was that the said sub rule is still applicable with all force even after an amendment was brought out by the Delhi University in Rule 2 (8) (a) of Ordinance VII after bringing the same in conformity with the then Rule 3 of section B of Part IV of the Bar W.P.(C) No. 8302/2009 Page 14 of 82 Council of India Rules. The contention of the counsel was that Rule 9 of Ordinance VII deals with general students and even after the amendment brought out in Rule 8 of Ordinance VII, the said general provision cannot be rendered redundant or obliterated from the Ordinance so far its applicability to the students of LLB or LLM is concerned. 8. Mr. Mohit Jolly, counsel for the petitioner appearing in W.P. (C) No. 13314/2009, vehemently contended that this court has to interpret the said two provisions i.e. Ordinance VII Rule 2 sub rule (8) (a) and Ordinance VII Rule 2 sub rule 9(a) (ii) harmoniously. The contention of the counsel was that such interpretation would also satisfy the test of reasonableness as required under Article 14 of the Constitution of India. Counsel further submitted that any cast iron interpretation of the Statute which promotes unreasonableness must be discarded. Counsel also submitted that Rule 2 (9) (a) (ii) remained intact even after the amendment in Rule 2 8(a) which in itself manifests the intention of the university to provide relief in exceptional W.P.(C) No. 8302/2009 Page 15 of 82 deserving cases in terms of Rule 2 (9) (a) (ii) of Ordinance VII. Counsel also submitted that no directions were given by the Division Bench of this court in S.N. Singh’s case(I) to the University to amend Ordinance X-C in such a manner so as to make Rule 2 (9) (a) (ii) inapplicable to the LLB course. He further submitted that the amended rule does not in any manner suggest that the same has to be read in isolation as a self- contained and independent provision or that the same negates and nullifies the operation of other rules including the said Rule 2(9) (a) (ii). In support of his arguments counsel placed reliance on the judgment of this court in Manjit Singh vs. University of Delhi W.P. (C) 7652/2008. Counsel further submitted that it is a settled law that every clause of statute should be construed with reference to the context along with other clauses of the Act and a harmonious construction of such conflicting clauses is to be given so as to give a purposeful interpretation to the same. Counsel thus submitted that Rule 2 (8) (a) cannot be construed in a manner so as to render Rule 2 (9) (a) (ii) otiose and dead letter. W.P.(C) No. 8302/2009 Page 16 of 82 Counsel thus urged that the interpretation sought to be given by the university is per se unreasonable whereas the interpretation canvassed by the counsel for the petitioner would not only be just, reasonable and sensible but the same would also give real intendment of the university in enacting the said Rule 2 (9) (a) on the Statute Book. In support of his arguments, counsel placed reliance on the following judgments. 1. Newspapers Ltd. vs. State Industrial Tribunal, U.P. & Ors. AIR 1957 SC 532 2. M. Pentiah 7 Ors. vs. Muddala Veeramallappa & Ors. AIR 1961 SC 1107 3 . M/s Gammon India Ltd. vs. Union of India & Ors. AIR 1974 SC 960 4. Mysore State Road Transport Corporation vs. Mirja Khasim Ali Beg & Anr., AIR 1977 SC 747. 5. O.P. Singla & Anr. vs. U.O.I. & Anr., 1984 (4) SCC 450. 6. Philips India Ltd. vs. Labour Court, Madras & Ors., 1985 (3) SCC 103. 7. Shrimant Shamrao Suryavanshi & Anr. vs. Pralhad Bhairoba Suryanvanshi, 2002(3) SCC 676. 8. Tinsukhia Electric Supply Co.Ltd. vs. State of Assam & Ors., AIR 1990 SC 123. 9. Anwar Hasan Khan vs. Mohd. Shafi & Ors., 2001 (8) SCC 540. 10. Andhra Bank vs. B. Satyanarayana & Ors., AIR 2004 SC 4007. 11. Nandkishore Ganesh Joshi vs. Commissioner, Municipal Corporation of Kalyan & Dombivali & Ors., AIR 2005 SC 34. W.P.(C) No. 8302/2009 Page 17 of 82 12. Nelson Motis vs. UOI, AIR & Anr. 1992 SC 1981. 13. Nathi Devi vs. Radha Devi Gupta, 2005 (2) SCC 271. 14. Kailash Chandra & Anr. vs. Mukundi Lal & Ors. AIR 2002 SC 829. 15. Krishan Kumar vs. State of Rajasthan & Ors., AIR 1992 SC 1789. 16. Madanlal Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills Ltd. & Ors., AIR 1962 SC 1543. 17. Sultana Begum vs. Prem Chand Jain, AIR 1997 SC 1006. 18. State of Gujarat & Ors. vs. Dilipbhai Nathjibhai Patel & Anr., 1998 (3) SCC 234. 19. D.Saibaba vs. Bar Council of India & Anr., AIR 2003 SC 2502. 20. Lalit Mohan Pandey vs. Pooran Singh & Ors.,2004(6) SCC 626. 9. Mr. Deepak, counsel appearing in W.P. (C) 13354/09 alleged that the petitioner had attended all the lectures in the subject of Law of Torts and Family Law but was awarded only 15% and 60% attendance on account of the fact that the attendance was marked on chit papers and not duly on attendance registers and hence in the commotion to get the attendance marked at the end of the lecture many students frequently were not able to get their attendance marked. He further submitted that the attendance rules in the Information Bulletin of the Faculty of Law clearly states that the Professor-In- W.P.(C) No. 8302/2009 Page 18 of 82 Charge shall have the power to strike off the name of a student who is grossly irregular in attendance in spite of warning, or, when the absence of a student is for such a long period that he cannot put in requisite percentage of attendance. His contention was that the word “shall” used in the said attendance rules is only directory in nature and not mandatory and hence the Professor- In-charge is not under compulsion by virtue of this rule to strike off the name of each and every student, but the said power is discretionary and under exceptional circumstances he can exercise such power. In support of his arguments, counsel placed reliance on the judgment of the Apex Court in Union of India & Ors. vs. A.K. Pandey (2009) 10 SCC 552 where it was held that negative and prohibitory words are indicative of the legislative intent when the statute is mandatory and in the present case as the word “shall” in the attendance rules is not followed by any negative words hence the said rule word only be directory in nature and not mandatory. Counsel also placed reliance on the following judgments: W.P.(C) No. 8302/2009 Page 19 of 82 1. Avanija Sundaramurti vs. University of Delhi & Anr. 139(2007)DLT 220 2. Neera Dadhwal vs. Deepak Paintal And Ors W. P. ( C ) No. 17455/2006 (Delhi High Court) 3. State of Haryana & Anr. vs. Raghubir Dayal (1995) 1 SCC 133 4 . Lachmi Narain etc. vs. Union of India & Ors AIR 1976 SC 714 10. Mr. Kirti Uppal, counsel for the petitioner in W.P.(C) No. 13410/2009 submitted that the petitioner was assigned zero attendance by the teacher in the subject of Intellectual Property Laws, although the petitioner did attend quite a number of lectures in the said subject. Counsel also submitted that the said averment of the petitioner has not been refuted by the Law Faculty as no separate counter affidavit has been filed by the Law Faculty in this regard and no reliance can be placed so far the affidavit filed by the Registrar representing the University of Delhi is concerned. He alleged that from a bare perusal of the attendance sheet of the petitioner produced in the court during the course of arguments it seems that the same has been manipulated/overwritten. Counsel further submitted that the W.P.(C) No. 8302/2009 Page 20 of 82 petitioner had in her representation dated 19.11.2009 specifically asked for the official attendance which was not given to the petitioner. Counsel for the petitioner strongly placed reliance on the judgment of this court in the case of Avijit Bhushan vs. University of Delhi 136 (2007) DLT 441, where the court took into consideration the amended Rule 8 (a) and judgment of the Division Bench in S.N. Singh I case along with the promotion rules and gave directions to the university to promote the students to the IIIrd semester as the court found that there was no requirement of attaining 66% attendance in the IInd semester for securing promotion to the IIIrd semester. Counsel also contended that the university failed to observe the principles of natural justice as no show cause notice was given to her before taking such a harsh decision of detaining the petitioner and have thus violated the law laid down in the case of Avijit Bhushan. 11. Mr. Deepak and Mr. Kirti Uppal vehemently contended that the respondents have misinterpreted the attendance and promotion rules as the shortage of attendance of the petitioners W.P.(C) No. 8302/2009 Page 21 of 82 cannot be equated with the notion of “gross irregularity” as the university has disdainfully erred in meaningful appreciation of the said term in the light of its analysis by this court in the case of Avijit Bhushan. 12. Counsel for petitioner in W.P. (C) 13400/2009 and 13427/2009 alleged that the petitioners have been discriminated as the university later reduced the required attendance to 63% and other students have been allowed to appear in the examinations. Similarly, in W.P. (C) 13391/2009, the petitioner alleged that the mandatory requirement of 66% was later reduced to 64% and the petitioner had 63.7% of attendance and should have also been given the benefit of the said relaxation. Counsel also claimed relaxation in view of the Apex Court judgment in the case of Union Of India vs. Satya Prakash (2006)4 SCC 550 and of this court in case of Madan Mohan vs. GGSIPU W.P.(C) 13035/2008 where 0.5% has been rounded off to 1%. 13. Mr. A Guneshwar Sharma, counsel appearing for the petitioner in W.P. (C) 13456/2009 submitted that by mere W.P.(C) No. 8302/2009 Page 22 of 82 displaying the shortage of attendance at the threshold of the examination, when the student will not be having an opportunity to make up the same, cannot be termed as a justified act on the part of the respondents. He further submitted that in the event of the petitioner being detained, he will lose one academic year and will not be able to pursue his law studies at all because of the provision of Rule 12 of the ordinance which states that there shall be no readmission in the LLB first term under any circumstances including detention for shortage of attendance in that term and hence the petitioner would have to again appear in the entrance examination for seeking admission in the first year. 14. Mr. Rupal, counsel for the respondent, University of Delhi submitted that so far the LLB students are concerned, under Ordinance VII Rule 2(8) (a) read with Bar Council of India Rules, the student must secure 66% attendance in each subject in each semester. Counsel further submitted that under the proviso of the said rule, only in exceptional cases, the Dean, Faculty of Law/Professor In-charge of Law