Patna High Court
All India Students Federation vs The State Of Bihar & Ors on 20 April, 2016
Author: Anjana Mishra
Bench: Anjana Mishra
THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3834 of 2016
===========================================================
All India Students Federation through Abhishek Anand, Member, Bihar State
Council, son of Sri Satish Chandra Jha, Resident of village Baliya P.O.- Tisi-nar-
Sam P.S Benipatti Distt Madhubani.
.... .... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. The Vice Chancellor Patna University, Patna.
3. Principal Women's College Patna.
.... .... Respondents
===========================================================
Appearance :
For the Petitioner : Mr. Dinu Kumar, Advocate
Mr. Rajesh Kumar Singh, Advocate
Mr. Santosh Kumar, Advocate
Ms. Ritika Rani, Advocate
For the Respondent No.1 : Mr. Pushkar Narain Shahi, AAG-10
For the Respondent No.2 : Mr. Vivekanand Pd. Singh, Advocate
Mr. Jitendra Singh, Senior Advocate, Amicus Curiae
===========================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date: 20-04-2016
"The task of the modern educator is not to cut down
jungles, but to irrigate deserts."
C. S. Lewis,
British Author of Chronicles of Narnia.
1. The role of teachers in building a society of
noble souls, the exercise of punitive powers by the teachers and
the scope of their quasi parental role in relation to their
students are some vital aspects, which this case confronts us
with.
Patna High Court CWJC No.3834 of 2016 dt.20-04-2016
2/33
BRIEF FACTS: -
2. The present litigation has been brought before
us at the instance of Sri Abhishek Anand, on behalf of All India
Students Federation (in short AISF), in public interest. The AISF
is a student organization, which seeks to raise the voice of
students on the theme of collective conscience. The petitioner
has prayed for a fair conduct of examinations of Graduation
Part II and Part III of the Patna University after accepting fees
and forms of more than three hundred students of Patna
University, who have fallen short of attendance for the Calendar
year 2015-16, which was scheduled to be held, for Part III, in
the month of February, 2016, and, for Part II, in the month of
March, 2016. The prayer made before this Court is for a
direction to the Vice Chancellor of the Patna University and the
Principal, Patna Women's College, to ensure that the students
may be permitted to appear at the examinations
aforementioned after condoning the shortage in the required
75% attendance in classes. The Students' Federation has
further sought for a direction to the Principal, Patna Women's
College, to hold extra classes for the students of Graduation
Part III and Graduation Part II for attaining the minimum
required 75% attendance as prescribed by the guidelines of the
respondent University in order to enable a student appear at
the examinations.
Patna High Court CWJC No.3834 of 2016 dt.20-04-2016
3/33
3. A further prayer has been made by the
petitioner for issuing direction to the respondents, especially,
the Vice Chancellor of the Patna University, to exercise his
discretion in the light of Memo No. 487, dated 20.03.2006,
which provides for relaxation/condonation of attendance to the
extent of 15% in the cases of serious illness or other
unavoidable circumstances.
4. According to the averments made in the
present writ petition, one of the principal causes for the
shortage of attendance, in case of some students, was because
of the agitation of the students, who demanded action against
one Sanjay Dutt, an Associate Teacher of Women's College,
Patna, who was allegedly involved in physical assault, on
14.08.2015, on one of the female students of Patna Women's College and against whom, Kotwali P.S. Case No. 566 of 2015, for offences under Sections 354 and 354(d) of the Indian Penal Code, had come to be registered on 15.09.2015,.
5. Aggrieved by the incident aforementioned, the students of Patna Women's College moved the authorities of the College demanding action against the said teacher. When their demand was not responded to by the authorities of the Women's College, the students raised the issue before the authorities of the State, including the Hon'ble Chancellor and the Vice Chancellor of the Patna University, seeking appropriate Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 4/33 action against delinquent teacher and adherence of safety measures for protection of the girl Students.
6. Apart from the incidents of agitation, which led to disruption of classes for several days, some of the students fell short of requisite attendance for reasons of illness. The case, projected by the petitioner, is that even though the Principal and the Vice Chancellor had powers, under Regulation 5 of the respondent University's Regulations, to condone the shortage of attendance and permit a student to take the examinations, they flatly refused to allow the requests for condonation of the absence.
7. To be more precise, the Principal had powers to condone the attendance upto 5%, but she not only refused to exercise her discretion; rather, she also considered the prayers in those cases, where the deficit attendance was more than 5%, a power, which is vested only in the Vice Chancellor of Patna University. Thus, the petitioner has stated that not only that this is a case of improper exercise of discretion; it is equally a case of usurping the jurisdiction vested in the Vice Chancellor.
8. Responding to the averments made by the petitioner in the writ petition, respondent No. 2, namely, Vice Chancellor, Patna University, has filed a counter affidavit stating therein that those students, who had inadequate attendance in Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 5/33 terms of the norms of the University Regulations, were debarred from appearing in the examinations and even though a discretion has been vested in the Vice Chancellor to condone the inadequate attendance to the extent of 15%, such a discretion has not been exercised by the Vice Chancellor in order to maintain higher academic standards.
9. Almost similar is the plea of the Principal, Patna Women's College. She has pleaded that the attendance of the students are strictly enforced in order to ensure that prescribed course curriculum is completed before the examinations. She has further pleaded that at the end of every month, the name of the students, who are likely to fall short of attendance criterion, are notified in the Notice Board and that the parents of the students concerned are also informed about the shortfall in their attendance. According to the Principal, Patna Women's College, meetings are also held on a regular basis between the teachers and the parents to discuss the attendance issues and that whenever a case of illness is brought to the notice of the Principal, the shortfall, in attendance, is condoned by adopting a sympathetic consideration. As could be understood from the plea taken by the Principal, she downplayed the plea that due to agitation of the students, there were disruptions of classes for a number of days.
Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 6/33
10. We must, at this stage, hasten to point out that the alleged incident of assault on the female student in the College, in question, took place on 14.09.2015, but the First Information Report came to be registered on 15.09.2015, and that too not at the instance of the authorities of the College despite the fact that at the parents-Principal meet, it was the request of some of the parents that the teacher concerned should be removed.
11. We have heard Shri Dinu Kumar, learned Counsel appearing for the petitioner, and Shri Pushkar Narain Shahi, learned Additional Advocate General No. 10, appearing for the respondent No. 1. We have also heard Mr. Vivekanand Prasad Singh, learned Counsel, appearing for the respondent No.2, and Shri Jitendra Singh, learned Senior Counsel, as Amicus Curiae.
SUBMISSIONS: -
12. Shri Dinu Kumar, learned Counsel for the petitioner, has submitted that the Principal of the Patna Women's College, being taken aback by the fact that students had resorted to agitation demanding action against Sri Sanjay Dutta, decided to teach the agitating students a lesson for having participated and raised their voice against the teacher of the College. She, thus, not only passed a direction that students, who have less than 75% attendance, be debarred Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 7/33 from taking the examination, but also mechanically rejected the prayer of the students, made in terms of University Regulations, for condonation of shortage in attendance.
13. Mr. Dinu Kumar has also submitted that the University Regulations, particularly, Regulation 5, provides that the Principal would have the power to condone attendance upto 5% and beyond that, to a maximum of 15%, the power to condone the shortage in attendance vests only in the Vice Chancellor; yet the Principal, in usurping the jurisdiction of the Vice Chancellor, considered those prayers also, where the attendance was more than 5% and mechanically rejected such prayers. It is the further submission of learned Counsel for the petitioner that due to agitations in the College, for not taking any action against Sri Sanjay Dutta, classes were disrupted for many days, which also led to shortfall in attendance of many students, yet this factor was not taken into account while considering the prayers of the students to condone the attendance.
14. Appearing as Amicus Curiae, Shri Jitendra Singh, learned Senior Counsel, has submitted, on the point of law, that when a discretion is vested in the Principal and the Vice Chancellor, they ought to have exercised their discretion in accordance with established principles; but, as the materials on record suggest, the prayers were rejected by assigning no Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 8/33 reasons or cryptic reasons. Learned Amicus Curiae has pointed out the cases of those students, who had less than 60% attendance, a shortfall, which even the Vice Chancellor could not have condoned in terms of Regulation 5, yet the Principal has condoned such attendance; whereas, even on legitimate grounds of illness and disruption of classes, the shortfall, in attendance of some students, who have 60% attendance in the class, have not been condoned. Learned Amicus Curiae has further submitted that all these matters were well within the knowledge of the Vice Chancellor of Patna University, yet he failed to look into the matter from humanitarian correct perspective as the father figure of the institution and completely ignored the powers vested in him. According to the learned Amicus Curiae, the discretion, vested by Regulation 5, is a discretion coupled with duty and not discretion simpliciter.
15. In support of his above submission, learned Amicus Curiae relied on the cases of Comptroller and Auditor General of India Vs K.S. Jagannathan and another (AIR 1987 SC 537), S.G. Jaisinghani Versus Union of India and others (AIR 1967 SC 1427), Ramji Dayawala and Sons (P) Ltd. Verssu Invest Import (AIR 1981 SC 2085), Principal, Patna College, Patna Versus Kalyan Srinivas Raman (AIR 1966 SC 707), Ashok Kumar Thakur Versus University of Himachal Pradesh (AIR 1973 SC 221), A.P. Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 9/33 Christian Medical Educational Society Versus Government of Andhra Pradesh, (1986) 2 SCC 667, Ramesh Chandra Sankla Versus Vikram Cement {(2008) 14 SCC 58}, State of Kerala Versus T.P. Roshana and another (AIR 1979 SC
765).
16. On the other hand, learned Counsel, appearing on behalf of the respondent No. 2, namely, Vice Chancellor, Patna University, has submitted that it is the discretion of the Vice Chancellor to either condone or not to condone the absence. It has been further submitted that such a discretion has never been exercised by the Vice Chancellor.
17. Learned Counsel for the respondent No. 2 has contended that in order to ensure academic discipline, regular classes are held to complete the curriculum within stipulated time frame and examinations are held with all fairness and, for those students, who fail to attend the minimum required 75% classes, it necessarily implies that they are not seriously undertaking their studies. It has been submitted, on behalf of the Vice Chancellor, that in order to maintain the minimum standard of education and to ensure quality output, since strict adherence to the rules is a must, the Vice Chancellor did not allow condonation of attendance.
18. On behalf of the Principal, Patna Women's College, it is submitted that attendance is strictly enforced and Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 10/33 any shortfall in attendance is, immediately, notified not only to the students but also to their parents. It has been further submitted, on behalf of the Principal, that in befitting cases of shortfall in attendance, a sympathetic view is adopted and absence from classes are condoned. Learned Counsel, appearing for the Principal, argued that it would be wrong to say that there were disruptions of classes for several days due to agitations and branded the agitation as sporadic incident which did not affect the conduct of regular classes.
INTERPRETATION OF REGULATIONS: -
19. The petitioner has buttressed his case in view of the Regulations, which provide for exercise of discretion by the Principal and the Vice Chancellor, as the case may be, to condone inadequate attendance and allow a student to take the examinations. The Regulations, forming the heart of the present Public Interest Litigation, thus, needs to be gone into. The relevant extracts of the Regulations are being reproduced hereinbelow;
"4. Every candidate, presented by a College of University Department at any University examination shall be required to complete the regular course of study prescribed by these Regulations, in each subject which he offers for the examination.
No student shall be considered to have completed the regular course of study in any Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 11/33 subject unless he has attended at least seventy five percent of the lectures tutorials and or practical's as the case may be, delivered or provided in that subject, one of more colleges or University Departments admitted in that subject and has devoted due attention to that part of the course which consist of tutorial instruction or practical work.
....
5. "In the case of serious illness or other unavoidable circumstances, a shortage of attendance at lecturer, tutorial and practicals to the extent of fifteen per cent may be condoned.
Shortage up to five per cent shall be considered and may, in suitable circumstances, be condoned by the Principal of College or the Head of a University Department or the Director of the Institute or the Head of the Institution concerned.
Shortage exceeding five per cent, but not exceeding fifteen per cent, shall be considered and may, in suitable circumstances, be condoned by the Vice- Chancellor."
20. It is understood from a reading of the Regulations that with respect to attendance of students in a college, Regulation 4 lays down the general rule that a student must attend 75% of the classes during the academic session in Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 12/33 order to make herself eligible as regular student of the course. In other words, those students, who do not achieve 75% attendance during the academic session, are not considered as regular students and these students may be deprived from taking the examinations for the courses opted for.
21. The general rule, as stated above, is qualified by a proviso in the form of Regulation 5, which allows the Principal and the Vice Chancellor, as the case may be, to condone the shortfall in attendance. The criterion, for exercising discretion, is of wide amplitude, as is understood from the expression "serious illness or other unavoidable circumstances". Thus, the attendance may be condoned in order to make a student eligible as a regular student and, consequently, enable him/her to take the examinations for the course opted for.
22. The expression "serious illness or other unavoidable circumstances" refers to those circumstances where, due to illness of serious nature, the mobility of the student has been affected, or, to such other circumstances for which the student has not been able to attend the classes and those circumstances are beyond the control of student.
23. Necessarily therefore, when a student applies for condonation of the shortfall in attendance and pleads to confer on him the status of a regular student, the Principal or the Vice Chancellor, as the case may be, is required to go Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 13/33 through the circumstances, which may have been mentioned in the application of the student concerned seeking condonation in the shortage of attendance, and pass necessary orders allowing or rejecting the prayer. The assessment of the prayer, made by the student, has to be done objectively bearing in mind that Teachers do have quasi parental responsibilities. A better, proper and legal exercise of discretion is one, where the authority examines the fact, is aware of law and, then, decides objectively and rationally what serves the interest better. (Per Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC
54).
24. In the present case, the principal allegation levelled by the petitioner is that the Principal, Patna Women's' College and the Vice Chancellor, Patna University, did not exercise their discretion as vested in them by Regulation 5. To put it more precisely, the Principal exceeded her jurisdiction in dealing with condonation prayers in those instances, which she could not have condoned by virtue of Regulation 5 and, on the other hand, the Vice Chancellor, when called upon to exercise discretion, did not exercise his discretion at all.
25. As per Regulation 5, shortage of attendance up to five per cent shall be considered and may, in suitable circumstances, be condoned by the Principal of College or the Head of a University Department or the Director of the Institute Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 14/33 or the Head of the Institution concerned. Thus, the Principal has have power to condone the attendance only in those instances, where the attendance is less than 75%, but is not less than 70%.
26. Again, shortage of attendance exceeding five per cent, but not exceeding fifteen per cent, shall be considered and may, in suitable circumstances, be condoned by the Vice-Chancellor. Thus, the Vice Chancellor has had power to condone the shortfall in attendance only in those instances, where the attendance is less than 70%, but is not less than 60%.
27. The important aspects of Regulation 5 are the expressions "shall be considered" and "may, in suitable circumstances". These expressions imply that there is duty cast on the Principal and the Vice Chancellor, as the case may be, to consider the prayers for condonation of shortage of attendance and coupled with such a duty of consideration is the duty to allow condonation in suitable circumstances.
28. Thus, when a prayer is made for condonation of attendance, it is not permissible for the Principal and the Vice Chancellor, as the case may be, to take a rigid stand, in the garb of general Rule, contained in Regulation 4, that, since there is lack of adequate attendance, the student will not be considered as a regular candidate. Though, it would be difficult Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 15/33 to lay down the standards for exercise of discretion, vested by Regulation 5, yet in broader terms, it can be said that while considering the prayer, the Principal or the Vice Chancellor, as the case may be, will definitely consider the specific circumstances, as pleaded to by the student, coupled with the general conduct of the student in studies, past examinations, extra-curricular activities, etc. If the student is, otherwise, disciplined and follows the norms of the College, in general, then, the discretion has to be exercised in favour of the student, for, Regulation 4 is penal in nature and the consequence of Regulation 4 and non exercise of discretion under Regulation 5 would render a student ineligible for taking the examinations. Hence, when such a penal power is vested with the Authorities, it is imperative that such penal powers be exercised with abundant care and caution. In other words, improper exercise of discretion, vested in Regulation 5, may lead to disastrous consequences and the career opportunities of the student may be marred or even ruined. Such powers are, therefore, to be exercised rarely and only for incorrigible students, whose conducts are questionable and who have faced disciplinary actions earlier. Thus, lack of adequate attendance must not be read as exclusive circumstance for debarring a student from taking his examinations. Lack of attendance, coupled with other circumstances, showing a general derelict behaviour, may be proper reason for debarring a student from Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 16/33 taking an examination.
29. In the case of Karnataka Rare Earth v.
Deptt. of Mines & Geology, (2004) 2 SCC 783, the Supreme Court, while dealing with Rule 3 of the Karnataka Minor Mineral Concession Rules, 1969, had observed that an order imposing penalty for failure to carry out statutory obligation is the result of a quasi-criminal proceeding and penalty will not, ordinarily, be imposed unless the party obliged has either acted deliberately in defiance of law or was guilty of contumacious or dishonest conduct or acted in conscious disregard of its obligation. Penalty will also not be imposed merely because it is lawful to do so.
30. It may be mentioned that Regulation 5 is punitive in nature and inherent therein are adverse civil consequences. The exercise of discretion thereunder shall have to be, therefore, in a proper and rational manner. Because of the serious consequences, which follow, when the discretion is either not exercised or exercised in a mechanical manner, the principles, enunciated in Karnataka Rare Earth (supra), squarely apply. Conversely put, the discretion cannot be exercised in those rare category of students, whose shortage of attendance cannot, in institutional interest, be condoned.
31. Thus, just because the attendance of a student has fallen below the prescribed attendance of 75%, the Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 17/33 penal consequences, as mentioned in Regulation 5, will not automatically follow in the event of a prayer made by the student citing the grounds for his absence. The Principal or the Vice Chancellor, as the case may, are duty bound to consider whether the lack of attendance was deliberate and was in conscious disregard of norms of College. In a case, when the absence from classes was not in defiance of the Authority or a deliberate conduct on the part of the student, the discretion to condone the attendance has to be, ordinarily, exercised in favour of the student in view of the severe consequences likely to follow if such discretion is not exercised.
32. A Teacher, let us bear in mind, faces the challenge of shaping the career of students so that they can become useful citizens of the Nation and, thus, contribute towards its development. In view of the responsibility cast upon the Teacher, whenever circumstances arises for taking punitive measures against a student, he has to be very cautious in his approach, because the punitive measures may ruin the career of his students. It is in this backdrop that we propose to deal with this case.
33. Let us, now, look into the stand taken by the respondents.
34. So far as the Vice Chancellor is concerned, it has been admitted that he has not exercised his discretion to Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 18/33 condone the attendance and such non-exercise of discretion was done in order to ensure academic discipline so as to complete curriculum within stipulated time frame, because those students, who fail to attend the minimum required 75% classes, it necessarily implies that they are not seriously undertaking his/her studies.
35. The Principal, Patna Women's College, though states in her affidavit, that remedial measures are adopted to remind the students of their shortfall in attendance and that even the parents are notified, it would appear from her pleadings that no specific reply has been given as to why she considered even those cases where the shortfall, in attendance, was less/more than 5%. Her pleadings do not provide any particle of material and give not even a faint indication that she ever provided counselling to students, who were likely to fall short of requisite attendance and may get debarred from appearing in the examinations concerned.
36. Though a dispute has been raised as to actual number of students, who have been debarred from taking their examinations, yet, irrespective of the stand taken by the respondents, as to the actual number of students, who were prohibited from taking the examinations, it would appear from the pleas taken by the Vice Chancellor and the Principal that the reasons assigned by them are omnibus in nature, for instance, Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 19/33 inter alia, "in order to ensure academic discipline, to complete curriculum within stipulated time frame, for those students who fail to attend the minimum required 75% classes it necessarily implies that they are not seriously undertaking his/her studies". The grounds, so taken, particularly, by the Vice Chancellor and the Principal are basically the objective behind Regulation 4. It is with a view to achieve higher standards of academic career that Regulation 4 provides for a minimum of 75% attendance. However, in no circumstances, it would mean that those students, who fail to attend the minimum required 75% classes, a necessary inference can or most be drawn that they are not seriously undertaking their studies. Such an inference would render the provisions of Regulation 5 otiose.
37. It is, therefore, necessary that the case of each student be decided on its own merit and the decision be taken, on parameters, noted hereinbefore, on the question as to whether condonation should or should not be allowed. If, on the other hand, the Principal or the Vice Chancellor, as the case may be, takes an uninformed and cryptic decision refusing the prayer or takes a flat decision that students, who have not been able to achieved the prescribed 75% attendance, are not to be treated as regular students and fee for their examinations are not to be, consequently, accepted, it would be a clear case of non-application of statutory discretion as vested by Regulation Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 20/33
5.
38. Now, so far as the inseparable, inseverable relationship between discretion and reasons are concerned, the Supreme Court, in Mc Dermott International Inc. v. Burn Standard Co. Ltd., reported in (2006) 11 SCC 181, clarified the rationality behind providing of reasons and it observed the principle as follows:- ". . . Reason is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action.
39. Again, in State of Orissa v. Dhaniram Luhar, reported in (2004) 5 SCC 568, the Supreme Court, while dealing with a criminal appeal, insisted that the reasons in support of the decision, form cardinal principle and the High Court should record its reasons, while disposing of the matter. The relevant observations were as under:
"8. Even in respect of administrative orders Lord Denning, M.R. In Breen v. Amalgamated Engg. Union observed: "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice."
"Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 21/33 objectivity.
(Emphasis is supplied)
40. Further, in S.G. Jaisinghani vs Union of India and others (AIR 1967 SC 1427), the Supreme Court, at para No. 14, held that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law, from this point of view, means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know, where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey - "Law of the Constitution" - Tenth Edition. Introduction ex.).
41. What follows is that if the decision lacks reason, it not only amounts to denial of justice, but also renders the decision subjective. Subjectivity in the decision-making process leads to arbitrariness and any arbitrary action is considered to be an infringement of fundamental rights as enshrined under Article 14 of the Constitution of India. Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 22/33
42. It would be, therefore, proper to go through some of the admitted facts, in this case, in order to ascertain whether discretion have been properly exercised or not.
43. Some of the observations made by the Principal, Patna Women's College, while considering the prayers of the students for condonation of shortage of attendance, are being reproduced below;
(i) As against the application, dated 1.2.16, of Sweta Singh, a student of BBA Part III bearing Roll No. 60, the Principal has merely remarked as follows
- "75 + 25%. 25% means 100 & more classes. (2 days shouldn't be an issue what did you do with 100 & more classes?"
(ii) As against the application, dated 9.1.16, of Sweta Singh, the same student, submitted along with medical test report for dengue, the note of the Principal states as follows "This is Jan, 2016. Not applicable now"
44. It is found from the records that attendance of Sweta Singh is shown to be 68.98%. Thus, not only cryptic reasons were given for rejecting the prayers, but the discretion exercised by the Principal was beyond the scope of powers vested in her in view of Regulation 5, as noticed hereinbefore. Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 23/33 The attendance of Sweta Singh, being below 70%, the power to condone her attendance lay with the Vice Chancellor and the proper course for the Principal should have been to forward the application to the Vice Chancellor for consideration. Instead of forwarding the application to the Vice Chancellor, the Principal assumed a jurisdiction, which was not vested in her by law.
45. Another instance, which is also admitted and is revealed from the record, is the application of Alia Tanzeen, a student of BBA Part III bearing Roll No. 13. Her attendance, too, is shown to be 67.35% and accordingly the Principal had no power to condone her attendance as the power stood vested in the Vice Chancellor.
46. No different is the case of Prashansa Gautam, a student of BBA Part III bearing Roll No. 69. Her attendance is shown to be 60%; yet the Principal went on to consider her prayers and rejected it, whereas she did not possess the power to even consider the application on merit.
47. Apart from the few instances, which we have noted as catalogued above, for the sake of appreciating the mode and the manner in which discretion under Regulation 5 has been exercised, we find from records the case of a student, who had only 54% attendance; yet Principal has allowed her to take the examinations, a power not even vested in the Vice Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 24/33 Chancellor.
48. The instances, as we have noted above, shows a glaring case of usurption of jurisdiction by the Principal, Patna Women's College, which did not belong to her. At the same time, from the stand taken by the Vice Chancellor, it is crystal clear that he has completely abdicated his authority and jurisdiction, which stood vested in him.
49. Whatever reasons have been assigned by the Principal for rejecting the prayer for condonation of absence is irrelevant and immaterial, when the Principal had no jurisdiction to condone the absence in the cases of those students, who ran short of attendance to the extent of less than 70%. What would be relevant and material, in the cases, where the attendance is less than 70%, is the reason assigned by the Vice Chancellor for refusing to condone the absence of the students. It is clear from the averments made by the Vice Chancellor and also of Patna University that the Vice Chancellor did not exercise his discretion to condone the absence under the misconceived perception of law that any such condonation would be adverse to a system, which seeks to achieve academic excellence. When the discretion stood vested in the Vice Chancellor, coupled with a duty, then, he ought to have considered each case, on its own merits, for the purpose of arriving at a just, proper and legally sustainable decision. However, as have been noticed, the Vice Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 25/33 Chancellor completely failed to do so inasmuch as the Vice Chancellor has refused to condone the absence for the reasons, which are general and omnibus in nature.
50. In the present modern world, when a student's attention remains attracted to multiple events taking place around him or her, steps, for counselling to correct every such conduct, which would mar his or her future, must be taken by the teachers, in general, and the Principal, in particular; or else, a proper and effective education system cannot be had. Colleges are not supposed to be manufacturing students merely with high academic records without making them good human beings. A college is not only meant to ensure good academic achievement by its students, but also ensure that a student becomes a good human being, because without a good human being, he would not be a good citizen and would, therefore, instead of being useful to the society and the nation, may become a cause of its destruction. Hence, the Principal or a teacher has to be mindful of his or her duty to take care of his/her students in such a manner that they become useful citizens and, therefore, has to treat the students with sensitivity, utmost care and humane approach so that they blossom into good noble souls. Apposite it would be to reproduce here the history of Patna Women's College as found in the link http://patnawomenscollege.in/index.php/about- Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 26/33 us/hiistory.html.
"Patna Women's College was founded in 1940 by Bishop B.J. Sullivan S.J., Bishop of Patna and Mother M. Josephine A.C. Superior General of the Apostolic Carmel. It was the first institution of higher learning opened to cater to the educational needs of women in Bihar. Bishop Sullivan, the founder, named it Patna Women's College and presented it as a gift to the Women of Bihar, thereby placing at their disposal an opportunity for higher education. It was Bishop Sullivan's firm belief that the upliftment of Bihar lay in liberating its womenfolk by providing them with opportunities for higher education, in other words, by empowering them."
(Emphasis is added)
51. Empowerment comes with education and not with denial thereof. Branding regular students as non-regular students and thereby denying them the right to take examinations, without objectively considering their pleas, is likely to be a regressive step.
RELIEF(S): -
52. Much as we desire not to interfere with the academic atmosphere of an educational institute, we are drawn, out of our sheer obligation to maintain the letter and spirit of the Constitution of India and the regulations of the respondent Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 27/33 University to do what we propose to do. Having so observed, we must not be understood to have been swayed by emotions. Hence, we would like to make a reference to the limitations in the issuance of writ of mandamus.
53. In Ashok Kumar Thakur Vs University of Himachal Pradesh (AIR 1973 SC 221), the Supreme Court, in view of the fact that the attendance of the appellant was less than the minimum permissible limit to take the examination, answered the only question before it, which was as to whether the deficiency, in the matter of attendance, could be condoned by any authority and held that it could not be done as it would be beyond the jurisdiction or competence of the concerned authority to condone this deficiency. The relevant observations read as follows;
"5. Considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. Since the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favour of the petitioner even if the petitioner had succeeded in making out a case for condonation. In our opinion, the appeal must fail on this short point. Much as we regret the unfortunate Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 28/33 fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the High Court, and dismiss the petitioner's appeal. We, therefore, do so. In the circumstances of this case, however, we are making no order as to costs."
54. Again, in A.P. Christian Medical Educational Society Vs Government of Andhra Pradesh, reported in (1986) 2 SCC 667, the Supreme Court, in para No. 10, held as follows:
"Shri K.K. Venugopal, learned
Counsel for the students who have been
admitted into the MBBS course of this
institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the Medical college established by the Daru-Salaam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University.
Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interests of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 29/33 the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."
55. Thus, by invoking the powers to issue a writ of mandamus, this Court cannot direct the Principal to condone the attendance of those students, who have less than 70% attendance nor is it permissible for this Court to direct the Vice Chancellor to condone the attendance of those students, who have less than 60% attendance.
56. At the same time, we must also note the evolution of the law on the writ of mandamus in the form of pronouncement of Supreme Court, in Comptroller and Auditor General of India vs K.S. Jagannathan (AIR 1987 SC 537), wherein the Supreme Court, with respect to exercise of discretionary powers by the authorities, held that though the High Courts in India, exercising their jurisdiction under Article 226 of the Constitution of India, have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 30/33 Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or, in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case, a High Court can, in the exercise of its jurisdiction, under Article 226 of the Constitution of India, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and, in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions, which the Government or the public authority should have passed or given, had it properly and lawfully exercised its discretion.
57. It is, therefore, not only permissible, but may become necessary, in a given case, for the High Court to issue, by invoking its extraordinary jurisdiction under Article 226 of the Constitution of India, a direction to the authority concerned how to exercise its discretion and/or the manner in which the discretion ought to have been exercised. The relevant Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 31/33 paragraph of Comptroller and Auditor General of India (supra) is being reproduced as follows:
"19. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226 issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 32/33 (Emphasis is supplied)
58. The present case reveals an extremely sad approach of educationists. In such an emergent case, as the one at hand ─ when every moment is painful to pass ─ if the Court delays or hesitates to step in and issue appropriate directions, the consequences would be too disastrous inasmuch as it may severely shake the confidence of the people in the ability of the Courts to maintain rule of law and do justice. Hence, in view of the fact that the announcement or publication of the result of the examinees, who have already appeared in their respective examination, has been stayed by this Court, any further delay may cause immeasurable harm to the candidates, who have already appeared as examinees in their respective examinations.
59. We, therefore, direct that the Principal, Patna Women's College, to condone the attendance of all those students, who have inadequate attendance to the extent of 70%. We also direct the Vice Chancellor, Patna University, to condone the attendance of those students, who have inadequate attendance up to 60%. All these students be allowed to appear in their respective examinations within a period of 15 days from today. The results of the examination of the students, who have already appeared in their respective examinations, be published and declared along with the results Patna High Court CWJC No.3834 of 2016 dt.20-04-2016 33/33 of examinations of those students, whose inadequate attendances have been directed to be condoned by us. The entire result shall be declared within the scheduled date so that the students do not suffer any further. Upon publication of the results, the Vice-Chancellor of the Patna University and the Principal, Patna Women's College, shall lay before this Court a comprehensive report so as enable this Court to give such further direction(s) as may be warranted by the facts and attending circumstances of the present case.
60. The respondents, particularly, the Vice Chancellor, Patna University, and the Principal, Patna Women's College, are hereby directed to lay separate status report before this Court within a week from today as regards the steps, which may be taken by them in compliance of the directions, which have been issued above.
(I. A. Ansari, ACJ)
Anjana Mishra, J: I agree.
N.A.F.R. (Anjana Mishra, J)
Pawan/-
U