Delhi High Court
Apoorv Yadav vs University Of Delhi & Ors. on 1 August, 2014
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No.433/2014 & CM No.10026/2014 (for stay)
Reserved on: 16th July, 2014.
Pronounced on: 1st August, 2014.
APOORV YADAV ..... Appellant
Through: Mr. R.K. Saini with Mr. Anil Kumar
Yadav, Advocates.
Versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for R-
1/DU.
Ms. Priyam Mehta, Adv. for BCI.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
MS. G. ROHINI, CHIEF JUSTICE
1. The unsuccessful petitioner in W.P.(C) No.256/2014 is the appellant
before us.
2. The appellant/writ petitioner was given admission in the L.L.B.
(3 year degree course) in Law Centre-II, Faculty of Law, University of
Delhi for the Academic Year 2013-14. However, he was not allowed to
appear for the First End Semester examinations scheduled from 30 th
November, 2013 to 16th December, 2013 on the ground of shortage of
attendance.
LPA No.433/2014 Page 1 of 17
3. Aggrieved by the same, he filed W.P.(C) No.256/2014 and the same
was dismissed by the learned Single Judge by the order under appeal dated
27th May, 2014.
4. We have heard the learned counsel for both the parties and perused
the material available on record.
5. The appellant / writ petitioner was admitted to the LL.B. three year
degree course of the respondent University in June / July, 2013. The first
semester end term examination of the said course was scheduled to
commence with effect from 30th November, 2013. However the respondent
University, finding the appellant to be not having the requisite minimum
attendance in the classes of the first semester, did not issue the admit card to
the petitioner. Though the appellant filed W.P.(C) No.7857/2013
impugning the action of the respondent University of refusing to allow him
to appear in the examination and also sought interim relief to enable him to
appear in the said examination but according to the appellant, for reasons
not attributable to him, the said application for interim relief could not be
considered till the entire examinations were over and he accordingly
withdrew the said writ petition with liberty to file afresh. The appellant
LPA No.433/2014 Page 2 of 17
thereafter, in or about January, 2014, filed the writ petition from which this
appeal arises.
6. The only argument urged by the counsel for the appellant before us is
that the appellant, in two of the five subjects of the first term had more than
70% attendance and was wrongly not permitted to take the examination in
the said two subjects and if permitted to take the examination in the said two
subjects, would be eligible for promotion to the second year of the course.
7. The counsel for the appellant has in this regard argued:
(a) that under Section 7(1)(h) of the Advocates Act, 1961, the
respondent Bar Council of India (BCI) is empowered to lay down
standards of legal education; that the standards of legal education and
recognition of degrees in law for admission as advocates as
formulated by the respondent BCI in the year 1975 in Rule 3 in
Section B of Part IV of the said rules, relating to attendance in LL.B.
course provided as under:
"Rule 3:-
The Students shall be required to put in a minimum
attendance of 66% of the lectures on each of the subjects
as also at tutorials, moot courts and practical training
course. Provided that in exceptional cases for reasons to
be recorded and communicated to the Bar Council of
India, the Dean of the Faculty of Law and Principal of
Law colleges may condone attendance short of those
LPA No.433/2014 Page 3 of 17
required by the Rule, if the student had attendance 66%
of the lectures in the aggregate for the semester or
examination as the case may be."
(b) however the Rule of the respondent University as contained in
Ordinance VII Clause 2(8) relating to attendance in LL.B. course was
as under:
"(8)(a) In the case of students studying for the LL.B.
Degree Examination, no student shall be deemed to have
pursued a regular course of study unless he has attended
at least two-thirds of the total number of lectures
delivered in each year including tutorials, seminars and
discussion classes held during the academic year in
which he has been admitted as a regular student of the
Faculty.
Provided, however, that the Dean, may for reasons to be
recorded in writing, permit a student of the 2nd or the
4th Term to take the examination if he is short by not
more than 10% of the total number of lectures delivered
including tutorials, seminars and discussion classes held
during the 1st or the 2nd year of the course, as the case
may be. Such a student shall have to make up the
deficiency in attendance of the previous year in the next
following year in which he is admitted failing which he
shall not be deemed to have fulfilled the attendance
requirements of the year:
Provided further that in cases of students who are not
admitted at the time of the commencement of the courses
dud to non-clearance of the required courses and are
admitted late after the declaration of the results of the
Supplementary examination, the attendance shall count
from the date of declaration of the supplementary
examinations results."
LPA No.433/2014 Page 4 of 17
(c) that the Division Bench of this Court in S.N. Singh Vs. Union
of India 106 (2003) DLT 329, finding the rule aforesaid of the
respondent University to be at variance with the BCI Rule, held that
the respondent University is required to bring its Rule in conformity
with the Rule of the BCI and issued a direction to the respondent
University to bring its Rules in conformity with the corresponding
rules framed by the BCI;
(d) in compliance with the aforesaid direction, the respondent
University modified its Rule as under:
"(8)(a)The students shall be required to put in minimum
attendance of 66% of the lectures on each of the subjects
as also at the moot courts and practical training course.
Provided that in exceptional cases for reasons to be
recorded and communicated to the Bar Council of India,
the Dean of the Faculty of Law / Professor-in-Charge of
the Law Centre may condone attendance short of these
required by this Rule, if the student had attended 66% of
the lectures in the aggregate for the semester
examinations.
Provided further that no person shall be deemed to have
satisfied the required conditions in respect of his
instructions unless, in addition to the requirement
regarding attendance and other conditions, he has
appeared and satisfied by his performance the Professor-
in-Charge of the Law Centre in such test, written and / or
oral, as may be held by him in his discretion.
LPA No.433/2014 Page 5 of 17
The Professor-in-Charge shall have, and shall be deemed
always to have had, the power of detain a student in the
same class in which he has been studying, or not to send
him up for the University Examination, in case he did not
appear at the tests aforesaid or his performance was not
satisfactory.
The Professor-in-Charge of the Law Centre shall have
power to strike off the name of a student who is grossly
irregular in attendance inspite of „warning‟, or, when the
absence of the student is for such a long period that he
cannot put in requisite percentage of attendance."
(e) the BCI formulated new rules of legal education titled the
Rules of Legal Education, 2008 which came into force on 14 th
September, 2008 and the Rule relating to attendance therein is as
under:
"Rule 12 - End Semester Test
No student of any of the degree program shall be allowed
to take the end semester test in a subject if the student
concerned has not attended minimum 70% of the classes
held in the subject concerned as also the moot court
room exercises, tutorials and practical training
conducted in the subject taken together.
Provided that if a student for any exceptional reasons
fails to attend 70% of the classes held in any subject, the
Dean of the University or the Principal of the Centre of
Legal Education, as the case may be, may allow the
student to take the test if the student concerned attended
at least 65% of the classes held in the subject concerned
and attended 70% of classes in all the subjects taken
together.
LPA No.433/2014 Page 6 of 17
The similar power shall rest with the Vice Chancellor or
Director of a National Law University, or his authorized
representative in the absence of the Dean of Law.
Provided further that a list of such students allowed to
take the test with reasons recorded be forwarded to the
Bar Council of India."
(f) though the BCI directed all law schools / colleges to report
compliance with the aforesaid changed rule but the respondent
University has not done so as is evident from the following appearing
in the bulletin of information of the year 2013-14 (we are herein
below in addition to the rule qua attendance are also setting out the
Promotion and Re-admission Rules which also have relevance to the
subject):-
"10. Attendance Rules
All the students of LL.B. shall have to put in minimum
attendance of 66% of the lectures in each of the subjects
as also at the moot courts and practical training course:
Provided that in exceptional cases for reasons to be
recorded and communicated to the Bar Council of India,
the Dean, Faculty of Law / Professor-in-Charge of the
Law Centre concerned may condone attendance short of
those required by this Rule, if the student had attended
66% of the lectures in the aggregate for the semester
examinations.
The Professor-in-Charge of the Law Centre shall have
power to strike off the name of a student who is grossly
irregular in attendance inspite of warning, or, when the
LPA No.433/2014 Page 7 of 17
absence of student is for such a long period that he canot
put in requisite percentage of attendance.
11. Promotion Rules
(i) No student shall be promoted to the next Term, if
he / she has been detained in the examination for
shortage of attendance.
(ii) Subject to sub-rule(i) above, a student of LL.B.
First, Third or Fifth Term shall be eligible for promotion
to Second, Fourth or Sixth Term, respectively
irrespective of the number of courses in which he / she
has failed to pass or failed to appear in the First, Third
or Fifth Term examinations.
(iii) Subject to sub-rules (i) and (ii) above, a student of
LL.B. Second Term shall be eligible for promotion to
Third Term if he / she has passed in at least five papers
of First and Second Term examinations taken together
and a student of Fourth Term shall be eligible for
promotion to Fifth Term if he / she has passed in at least
fifteen papers of First, Second, Third and Fourth Term
examinations taken together.
Note:-The students eligible for admission to III/V Term
must seek admission not later than two weeks from the
date(s) of announcement of the results of LL.B. II/IV
Term Annual Examinations or within one week of
commencement of teaching, whichever is later, failing
which they will forfeit their right to be admitted to III/V
Term in the particular year.
12. Re-admission Rules
(i) There shall be no re-admission in the LL.B. First
Term under any circumstances including detention for
shortage of attendance in that Term.
(ii) A student who has been detained for shortage of
attendance or for applying late for admission in Second,
Third, Fourth, Fifth or Sixth Term shall be eligible for
LPA No.433/2014 Page 8 of 17
re-admission in the same Term in which he / she had
been detained provided (a) he / she seeks readmission
before commencement of teaching in the relevant Term;
(b) his / her conduct has been satisfactory; and (c) he /
she shows sufficient cause for his / her discontinuance of
studies or for not having put in the requisite percentage
of attendance to the satisfaction of a Committee
consisting of the Dean, Faculty of Law and the
Professors-in-Charge of the Law Centres.
(iii) An applicant who has failed in examination or
failed to appear at the examination and who is otherwise
eligible to appear at the examination as an ex-student,
shall not be admitted as a regular student. In exceptional
cases, however, where such an applicant is a foreigner,
studying under the Cultural Scholarship Scheme of the
Government of India, etc., re-admission may be allowed.
(iv) In respect of an applicant seeking re-admission,
his previous record shall be carefully scrutinized at the
concerned Law Centre."
(g) that the rule of BCI is couched in negative language; it does not
mean that a student having 70% attendance in the subject has to be
allowed to take end semester examination in that subject.
8. The contention of the counsel for the appellant is that as per the BCI
Rules of the year 2008, the appellant is entitled to appear in the end
semester examination in a subject in which the appellant has minimum 70%
attendance and the respondent University, wrongly applying its own rules
prescribing 66% aggregate attendance, is not permitting the appellant to
LPA No.433/2014 Page 9 of 17
appear in the examination of two of the subjects in which the appellant has
70% attendance. Reliance in this regard is also placed on Sukriti Upadhyay
Vs. University of Delhi MANU/DE/2600/2010 (DB) also laying down that
the BCI rules will prevail over the rules of the respondent University.
9. Per contra, the counsel for the respondent University has contended:
(i) that the respondent University is always entitled to have higher
standards than the minimum laid down by the BCI. It is informed that
the National Law University (NLU), Delhi has instead of 70%
attendance in a subject, prescribed attendance of 75%;
(ii) that besides the Attendance Rules, the Promotion Rules (supra)
as set out herein above from the Bulletin of Information, provide that
no student shall be promoted to the next term/semester if he / she has
been detained in the examination for shortage of attendance and the
appellant having been so detained, in any case was not entitled to
promotion to the second term;
(iii) it is yet further contended that yet another rule of the
respondent University as also set out herein above provides that there
shall be no re-admission in the LL.B. first term under any
LPA No.433/2014 Page 10 of 17
circumstances including detention for shortage of attendance in that
term; the challenge to the said rule was negated in the order dated 10 th
May, 2012 of the Division Bench of this Court in W.P. (C)
No.41/2012 titled Samadhiya Vevek Kumar Vs. University of Delhi.
10. We have considered the rival contentions.
11. The only question for adjudication in our opinion is, whether the rule
of the respondent University requiring a student to have 66% attendance in
the aggregate is inconsistent with the rule aforesaid of the BCI. If there is
any inconsistency, in accordance with the judgments in S.N. Singh and
Sukriti Upadhyay (supra), the BCI rule will prevail.
12. The rule aforesaid of the BCI places a prohibition against appearing
in the end semester examination in a subject in which 70% of the classes
have not been attended. The BCI in the rules framed by it has not dealt with
the aspect of promotion from one semester to another or re-admission in a
semester. No other rule of the BCI in this regard has been cited. The power
of the respondent University to regulate promotion and re-admission
otherwise is not under challenge. Only if the BCI has also framed rule
regulating the same aspect of legal education, is the rule of BCI to prevail
LPA No.433/2014 Page 11 of 17
over the corresponding rule of the University. We, in the BCI Rules, are
unable to find anything which can be said to prevail over the rule of the
respondent University requiring a student to have a minimum of 66% of the
attendance in aggregate.
13. We may note that the respondent BCI in its counter affidavit filed to
the writ petition, has stated, i) that the BCI rules provide for minimum
standard of legal education and the universities and / or institutions can set
higher standards of education in conformity with the minimum standards of
legal education as prescribed by the BCI; ii) that the criteria for promotion
from one semester to the next semester are governed by the rules /
regulations made by the respective universities and / or institution; and, iii)
that the BCI has no role to play with the internal rules framed by the
University with regard to promotion of student from one semester to another
as long as those rules are in conformity with minimum standards as set out
in the BCI rules.
14. On the contrary, the first proviso to the BCI Rule, by permitting
relaxation of the prohibition contained in the main rule on the condition that
the student concerned has attended 70% of the classes in all the subjects
taken together, also suggests the BCI Rule to be also requiring 70%
LPA No.433/2014 Page 12 of 17
attendance in aggregate of all the subjects. That also follows from the rule
requiring minimum 70% attendance in each subject.
15. We have also considered whether the rule of the respondent
University requiring a student to have 66% aggregate attendance in all the
subjects of a semester, to be able to appear in the examination even in the
subject in which the student may have 70% or more attendance can be said
to inconsistent with the rule aforesaid of BCI placing a bar on allowing any
student to take the end semester test in a subject in which the student has not
attended minimum 70% of the classes. Though on first blush it may appear
to be inconsistent because the BCI Rule appears to be permitting a student
to appear in a subject in which the student has attended 70% of the classes
and the respondent University rule not permitting so far the reason of the
student not having 66% aggregate attendance in all subjects but on deeper
consideration, we conclude otherwise. BCI is concerned only with a student
not acquiring a degree in law without attending classes and has laid down a
standard of 70%. BCI is not concerned with promotion from one semester
to another and which falls in the domain of the University. University in
this regard has provided that without 66% aggregate attendance in all
subjects, cannot take the test/examination in any one subject even and
LPA No.433/2014 Page 13 of 17
consequently cannot be promoted to the next semester. For the first
semester it is further provided that there can be no re-admission also in first
semester; the student will have to go through the process of seeking
admission all over again. It will thus be seen that the rule of the University
providing for 66% aggregate attendance operates in a different arena than
the rule of the BCI which is only concerned with taking exam without
having 70% attendance in the subject concerned. We are of the view that
there can be no inconsistency/repugnancy between the two rules if the field
of operation and effect thereof is in different fields. We are also of the
opinion that the rule of the BCI is in the nature of a prohibition against
appearing in the end semester test/examination in a subject without
attending minimum 70% classes thereof rather than a licence to appear in
such test/examination. Had the rule of the BCI been in a language
"entitling" a student to take test/examination in a subject in which the
student had attended minimum 70% classes, it could have been said that the
rule of the University also requiring the student to have 66% aggregate
attendance takes away the right given to the student under the BCI Rule. It
is the settled principle of law of interpretation of statutes that it has to be
interpreted from the language thereof.
LPA No.433/2014 Page 14 of 17
16. The Supreme Court in State of U.P. Vs. Daulat Ram Gupta (2002) 4
SCC 98 held that the expression "inconsistent" means lacking consistency,
not compatible with. Similarly in Basti Sugar Mills Co. Ltd. Vs. State of
U.P. (1979) 2 SCC 88 the definition of inconsistent as "mutually repugnant,
contradictory, contrary, the one to the other so that both cannot stand and
the acceptance of one implies abrogation of the other" was accepted. Yet
again in M. Karunanidhi Vs. UOI (1979) 3 SCC 431 the test of "absolutely
irreconcilable" and "a situation where it is impossible to obey one without
disobeying the other" was propounded and it was held that where there is a
possibility of both operating in the same field without coming into collision
with each other, there cannot be said to be any repugnancy. Applying the
said test also, no case of inconsistency / repugnancy requiring us to hold the
rule prescribed by the respondent University to be bad owing to the BCI
Rule is made out. The Supreme Court in Vijay Kumar Sharma Vs. State of
Karnataka (1990) 2 SCC 562 undoubtedly cautioned that there may be
cases where it is possible to obey both by obeying the more stringent of the
two and thereby not resulting in inconsistency if a narrow test thereof were
to be adopted and it was held that if the effect of one is of nullifying the
other it would still be a case of inconsistency / repugnancy. But even if the
LPA No.433/2014 Page 15 of 17
said test is applied we do not find a case of the BCI Rule being nullified by
the rule of the respondent University to be made out.
17. We thus conclude that there is nothing inconsistent in the BCI rule to
the rule of the respondent University requiring a student to have 66%
attendance in aggregate. The said rule of the respondent University will
thus have a full play and a student even if having more than 70% attendance
in a subject, would not be entitled to appear in the end semester examination
in that subject also if does not have attendance in aggregate in all the
subjects of 66%.
18. The counsel for the appellant has invited our attention to para no.9 of
the counter affidavit aforesaid of the BCI where it is inter alia stated "that
under the aforesaid rule of the BCI, a student shall be allowed to take end
semester test in the student concerned has attended minimum of the 70%
classes held in the subject concerned and also in the moot court etc." and
has contended that as per the BCI, its rule creates a right in favour of the
student to take the examination in the subject in which the student has more
than 70% attendance.
LPA No.433/2014 Page 16 of 17
19. Though undoubtedly the BCI has stated so in its counter affidavit but
reading of the counter affidavit in entirety does not show the version of the
BCI to be any different from our interpretation of the rule aforesaid.
20. We, therefore, do not find any merit in the sole ground urged before
us. The appeal is accordingly dismissed.
21. Needless to state that the examinations which the appellant was
permitted to take by way of interim orders in the writ petition are rescinded.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
AUGUST 01, 2014 kks/gsr..
LPA No.433/2014 Page 17 of 17