IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-06-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN WRIT APPEAL NO.875 OF 2006 A. Arulin Ajitha Rani .. Appellant Vs. 1. The Principal Film and Television Institute of Tamil Nadu, Tharamani, Chennai 600 113. 2. The Head of the Department, Direction Department, Film and Television Institute of Tamil Nadu, Tharamani, Chennai 600 113. 3. The Academic-in-Charge Film and Television Institute of Tamil Nadu, Tharamani, Chennai 600 113. .. Respondents Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge in W.P.No.19355 of 2006 dated 30.6.2006. For Appellant : Mr.S. Thirumavalavan For Respondents : Mr.S. Rajasekar Amicus curiae : Mrs. Karthika Ashok - - - J U D G M E N T (Judgment of the Court was delivered by P.K. MISRA, J) Heard Mr. Thirumavalavan for the appellant, Mr.S. Rajasekar, Addl. Government Pleader for Respondents and Mrs. Karthika Ashok, who had been appointed as Amicus curiae to assist the court. 2. The appellant was a student in Film Direction and Screenplay writing in M.G.R.Film and Television Institute of Tamil Nadu, which is a Government institute conducting diploma courses in different fields including the Film Direction. The question relates to shortage of attendance of the appellant during the academic session of 2005-2006, between June 2005 and March 2006 to be precise. It is not in dispute that the rules and regulations relating to attendance of class envisage that a student is required to attend 80% of the classes in the year concerned. Regulations 3.2 and 3.2 are as follows:- "3.2 Requirements to appear for Examination : The Examinations will be conducted at the end of the year for the first year subjects and at the end of each semester for semester subjects by the Board of Examinations. A candidate will be permitted to appear for the Board's Examinations, only if: (i) he / she secure 80% attendance in the year / semester concerned (ii) he / she earns a progress certificate from the head of the institution for satisfactorily completing the course of study as required by the regulations, and (iii) his / her conduct was satisfactorily during the course of study. 3.3 Condonation of Attendance : The minimum overall percentage of attendance (in all subjects of the current semester / year put together) required for a candidate to become eligible to write the Board's Examination is 80%. Under extraordinary circumstances, if there exist genuine and valid reasons, the Principal of the college has been empowered by the Chairman, to condone upto a maximum of 5% shortage to a candidate, subject to the condition that he / she satisfies all the other requirements to appear for the Board's Examination. Under no circumstances a candidate with attendance less than 75% be permitted to write the Board's Examination. The condonement of 5% shortage shall not be done as a routine to all candidates, but only for genuine cases; It shall not be claimed as a matter of right by all candidates." 3. In the present case, according to the Department, the appellant was not permitted to appear at the examination as her attendance was much below the required attendance. The appellant filed W.P.No.19355 of 2006, which has been dismissed by the learned single Judge under the impugned judgment. Thereafter, initially an order was passed on 18.7.2006 dismissing the writ appeal on merits at the stage of admission. Subsequently, however, Review Appln. No. 99 of 2006 was filed. While considering such Review Application, counsel for the appellant cited before the Division Bench an earlier order of the High Court, which is reported in 2008(1) CTC 334 (KAVITHA RAJAGOPAL v. THE REGISTRAR, TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY, CHENNAI AND ANOTHER), decided on 1.12.2004, to the effect that even if there was no specific provision relating to condonation of delay, a pregnant woman was entitled to get maternity leave benefit in the concerned University and the shortage of percentage in attendance can be condoned in exceptional cases. As a matter of fact, in the aforesaid decision, there was reference to another decision of a learned single Judge reported in 1996 WLR 802 (NITHYA v. UNIVERSITY OF MADRAS). Taking into consideration the earlier decisions, the Division Bench recalled the earlier order of dismissal and directed the matter to be taken up for hearing. That is how the matter has come before us. 4. Learned counsel for the appellant has contended that in view of the International Conventions recognising the necessity to grant maternity leave to pregnant women and in order to avoid any discrimination, the shortage of attendance is required to be condoned. In the above context, learned counsel for the appellant has referred to Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, which is to the following effect :- "12(2) Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation." 4.1 Similarly, learned counsel for the appellant has also placed reliance upon the provisions contained in The Maternity Benefit Act, 1961. 4.2. Mrs. Karthika Ashok, who has been requested to act as Amicus Curiae, has also invited our attention to the aforesaid provisions as well as the decisions of the Supreme Court reported in AIR 2000 SC 1274 (MUNICIPAL CORPORATION OF DELHI v. FEMALE WORKERS (MUSTER ROLL) AND ANOTHER). 5. Part IV of the Constitution contains various Directive Principles of State Policy. Article 37 provides that the provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Article 42 envisages as under : "42. Provision for just and humane conditions of work and maternity relief.- The State shall make provision for securing just and humane conditions of work and for maternity relief." Article 51 contained in Part IV the Constitution of India refers to the necessity relating to respecting of the International Conventions. Article 253 envisages the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. 6. In AIR 1997 SC 3011 = (1997) 6 SCC 241 (VISHAKA v. STATE OF RAJASTHAN) it has been observed as follows :- "7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. . . . " (Emphasis added) 7. Similarly in AIR 2000 SC 1274 (cited supra), which has been cited by the Amicus curiae, emphasis has been made regarding grant of maternity benefit to the employees. In Vishaka's case, it has not been stated that inspite of clear domestic law on the question, an international convention is required to be followed. In AIR 2000 SC 1274 (cited supra), the importance of grant of maternity relief to the employee, particularly keeping in view the provisions contained in the Maternity Benefit Act, 1961 and the provisions contained in Articles 42 and 43 of the Constitution has been emphasised. But, in none of the decisions it has been laid down that notwithstanding any specific provision available under the domestic law, International Conventions are to be implemented. 8. In the above context, the matter has to be examined. There is no doubt that every educational institution has its own rules and regulations regarding attendance of the students in the classes. It is obvious that such norms are prescribed to ensure that there is regular attendance by the students, with the expectation that by attending the classes either theory or practical, knowledge can be acquired. 9. There is no doubt that the Maternity Benefit Act, 1961 contains several provisions for extending the benefit to the pregnant women in their respective work-field. Section 2 of the Act indicates that the Act applies to (a) every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances and (b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or moire persons are employed, or were employed, on any day of the preceding twelve months. However, the proviso contemplates that the State Government may with the approval of the Central Government, declare that all or any of the provisions of the Act shall apply to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. 10. Even assuming that an Educational Institution may also come within the aforesaid provisions, there is no dispute that the State Government has not issued any notification declaring that the provisions of the Act would be applicable to the educational institutions. There cannot be any dispute regarding the requirement of grant of maternity benefit to the working women. However, the question is, in the absence of any specific provision applicable to educational institution, whether such provision can be extended. 11. We do not think that in the context in which such provisions have been made for the working women, such provisions can be ipso facto made applicable. Whether such benefit can be extended or not is essentially a policy decision to be taken by either the State Government or the Central Government. 12. In the present case, the learned counsel for the appellant has contended that by applying the above provisions and the International Conventions, the shortage of attendance was required to be condoned as had been done in two earlier occasions by the learned single Judges in the two decisions reported in 1996 WLR 802 (NITHYA v. UNIVERSITY OF MADRAS) and 2008(1) CTC 334 (KAVITHA RAJAGOPAL v. THE REGISTRAR, TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY, CHENNAI AND ANOTHER). 13. In the peculiar facts and circumstances of the case, we are unable to apply the ratio of the said decisions to the present case. Even assuming that such provisions can be made applicable, the concerned student could have availed maternity leave of six weeks before the birth of the child and six weeks after the birth of the child. From the factual position, which has been elucidated clearly in the counter affidavit filed in the Review Appln.No.99 of 2006 and even from the averment made by the appellant herself, it is apparent that the appellant had claimed to have attended the classes till 17.9.2005 and only on that day she was admitted in the hospital and the child was born on 19.9.2005. In other words, it is not the case of the appellant that she was unable to attend the classes because of the pregnancy before 17.9.2005. Similarly, the appellant has stated that she attended the classes after 15.10.2005. During the period from 17.9.2005 to 14.10.2005, 18 working days were available. Even giving full credit for those 18 days, as has been explained in the counter affidavit, the required percentage would come to about 71% (70.91%). Minimum rerquriement is 80% with provision for condonation of delay upto 5% i.e., a student having attended 75% or above, can be considered for condonation. No other power is envisaged under the rules and regulations for condonation of further period. Therefore, even assuming that such International Conventions or the provisions of the Maternity Benefit Act could be made applicable, yet the concerned student fell short of the attendance. 14. For the aforesaid reasons, we are unable to persuade ourselves to interfere with the order of the learned single Judge. The question as to whether similar beneficial provisions should be made applicable to the educational institutions is essentially a policy matter left to the wisdom of the legislature and we do not express any opinion in one way or the other. We place on record our appreciation for the valuable assistance rendered by the Amicus curiae as well as the fair manner in which the appeal has been argued by the counsel for the appellant and the respondents. 15. The writ appeal is accordingly dismissed, subject to the observation made above. No costs. (P.K.M.,J) (M.S.N.,J) 27-06-2008 Index : Yes / No Internet: Yes / No dpk To 1. The Principal Film and Television Institute of Tamil Nadu, Tharamani, Chennai 600 113. 2. The Head of the Department, Direction Department, Film and Television Institute of Tamil Nadu, Tharamani, Chennai 600 113. 3. The Academic-in-Charge Film and Television Institute of Tamil Nadu, Tharamani, Chennai 600 113. P.K. MISRA, J and M. SATHYANARAYANAN, J JUDGMENT IN W.A.NO.875/2006 27-06-2008