Delhi High Court
Sukriti Upadhyay vs University Of Delhi on 4 October, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 30th September, 2010
% Judgment Pronounced on: 4th October, 2010
+ LPA 539/2010
SUKRITI UPADHYAY ..... Appellant
Through: Mr. Deepak Anand, Adv.
versus
UNIVERSITY OF DELHI ..... Respondent
Through: Mr. M.J.S. Rupal, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Calling in question the legal substantiality of the order dated 12th July,
2010 passed by the learned Single Judge in WP(C) 13354/2009, the present
intra-Court appeal has been preferred under clause 10 of the Letters Patent.
Be it noted, the learned Single Judge has disposed of the said writ petition
along with other writ petitions by a composite order.
2. The facts which are requisite to be stated are that the appellant-
petitioner (hereinafter referred to as „the appellant‟) was a student of first
semester in the LL.B course in University of Delhi and her attendance was
56%. It was pleaded that she could not attend classes as she was suffering
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from back ache and infection in the digestive system as a result of which she
was compelled to go to her hometown in Rajasthan from 1st August, 2009 to
1st September, 2009. She was allowed to take the first semester examination
and thereafter further examinations because of the interim directions of this
Court. It was contended in the writ petition that the appellant had attended
all the lectures in the subject of Law of Torts and Family Law but was
awarded only 50% and 60% attendance on account of the fact that the
attendance was marked on chit papers and not in the attendance registers and
due to the said commotion, to get the attendance marked at the end of the
lecture, many students frequently were not able to get their attendance
marked. It was averred that clause 2(9)(a)(ii) of the Ordinance VII of the
respondent-University is still applicable and, therefore, the competent
authority of the University could exercise the power of relaxation but they
have deliberately deprived the appellant the said benefit of relaxation. It was
also urged that the stipulation in the clause in question is not mandatory but
directory.
3. The stand put forth by the appellant was combatted by the University
stating, inter alia, that clause 2(8)(a) of Ordinance VII has to be read in
conjunction with Bar Council of India Rules, 1975 (hereinafter referred to as
„1975 Rules‟) and on a conjoint reading of the same, it would be graphically
clear that a student must secure 66% attendance in each subject in each
semester. It was further put forth that under the proviso to the Rules framed
by the Bar Council of India, only in exceptional cases, the Dean, Faculty of
Law / Professor-in-charge, Law Centre concerned can condone attendance
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short of those required by the said Rule, if such students have 66% of
attendance in aggregate and for that the said Dean or the Professor-in-
Charge is required to record reasons for communication of the same to the
Bar Council of India.
4. The learned Single Judge referred to the relevant clauses in the
Ordinance, the Bar Council of India Rules pertaining to the attendance and
after placing reliance on S.N. Singh v. Union of India, [106 (2003) DLJ
329], Satyendra Singh v. University of Delhi, WP(C) No. 3225/2008,
Kiran Kumar v. University of Delhi & Ors., WP(C) No. 9143/2007, Komal
Jain v. University of Delhi, WP(C) No. 8534/2008, directed as follows:
"That the petitioners in all the five writ petitions
bearing Nos. W.P.(C) 13314/2009 , 13354/2009,
13391/2009, 13400/2009 and 13456/2009 were
students of the Ist semester at the time of the filing of
the writ petitions and as an interim measure they were
allowed to appear in the Ist semester examinations and
thereafter to attend the classes of the IInd semester and
then also allowed to appear in the examinations of the
IInd semester and their results were directed to be
kept in a sealed cover. However, in W.P. (C) No.
13427/2009, the petitioner was also a student of the Ist
semester at the time of filing of the present writ petition
and was allowed to appear in the Ist semester
examination but she did not seek the interim relief to
attend either the classes of the IInd semester or to
appear in the IInd semester examinations. Be that as it
may, as this court is of the view that these six petitioners
are not entitled relaxation for the shortfall of attendance
as they were not eligible to sit for the examination of the
Ist semester, therefore they are not entitled to get
their results of the Ist or even the IInd semester
declared, in which exams they had appeared
pursuant to the interim orders passed by this court.
However, in the peculiar facts of the case at hand, these
six students would not be required to appear in the
entrance examination for admission in the Ist semester
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but would be given re-admission to the Ist semester in
this academic year beginning July,2010. However, this
order shall not be treated as a precedent."
5. Questioning the correctness of the impugned order, it is submitted by
Mr.Deepak Anand, learned counsel for the appellant that the learned Single
Judge has fallen into error in his interpretation of clause 2(9)(a)(ii) of the
Ordinance VII of the University by holding that the same is not applicable to
the students prosecuting LL.B course though the same has not been
amended. It is urged by him that if the clauses engrafted in the Ordinance
are read in a purposeful manner, they would not convey that that obtaining
of requisite percentage of attendance is mandatory. The learned counsel
would submit that it is directory in nature and the Dean or the Professor of
the faculty has the power to relax and in the case at hand, the appellant
deserved relaxation as under compelling circumstances she had to leave for
her hometown.
6. Mr. Rupal, learned counsel appearing for the University, submitted
that after the 1975 Rules have come into existence covering the issue
pertaining to the students having requisite percentage of attendance as a
condition precedent for appearing in the examination, the Clause 9(2) of the
University Ordinance would not govern the field as the University has to be
governed by the 1975 Rules. The learned counsel further submitted that the
question of mandatory or directory nature of the clauses in the Ordinance
does not call for interpretation in view of the fact that in praesenti the 1975
Rules govern the sphere of attendance, which have been framed under The
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Advocates Act, 1961. It is his further submission that the students who
prosecute the study of law have to understand the significance and
importance of the course and should not take it lightly under some pretext or
the other.
7. In this context, we may refer to Ordinance VII of the respondent-
University. The said Ordinance deals with conditions for admission to
examinations. The learned counsel for the appellant has invited our
attention to the clauses 8 and 9 of the ordinance. Clause 8 deals with what
should be the requirement of minimum attendance for a student. We think it
apt to reproduce the said clause in entirety:-
"(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 those
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. The
Professor-in-Charge shall have, and shall be deemed
always to have had, the power to 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.
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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.
(b) In the case of students studying for the LL.M. Part I
Examination, no student shall be deemed to have pursued
a regular course of study unless:-
(i) he has attended not less than two-thirds of the total
number of lectures delivered during the
academic year in which he has been admitted as a
regular student, and
(ii) he has submitted not less than seven essays of the
requisite standard as prescribed by the Dean
during the academic year.
(c) In the case of student studying for the LL.M. Part II
Examination, no student shall be deemed to have pursued
a regular course of study unless he has attended at least
ten of the seminars conducted for the LL.M. Part II
classes, five of which must have been attended before he
appears at the examination in the written papers.
Note : (i) The term „Lectures‟ referred to in (b) above
will include lectures and discussion classes.
(ii) In determining the exact number of the
minimum requisite attendance, i.e., two-thirds of
lectures, tutorials, seminars, moots, etc., fraction
shall be ignored.
Clause 9 deals with how certain relaxations can be granted to students
in case of short attendance. The said clause is reproduced hereinbelow:-
"(9) (a) Subject to the provisions of sub-clauses (b) and
(c)
(i) In the case of a student who is selected as a
member of the N.C.C. to participate in the annual
N.C.C. Camps or is deputed to undertake Civil
Defence Work and allied duties or in the case of a
student who is enrolled in the National Service
Scheme and is deputed to various public
assignments by or with the approval of the Head of
the institution concerned or a student who is
selected to participate in sports or other activities
LPA No. 539 of 2010 Page 6 of 14
organized by the Inter-University Board or in
national or international fixtures in games and
sports approved by the Vice-Chancellor or a
student who is required to represent the University
at the Inter-University Youth Festival, or a student
who is required to participate in periodical
training in the Territorial Army or a student who is
deputed by the College to take part in Inter-
College sports or fixures, debates, seminars,
symposia or social work projects or a student who
is required to represent the College concerned in
debates and other extra-curricular activities held
in other Universities or such other activities
approved by the Vice-Chancellor for this purpose,
in calculating the total number of lectures etc.
delivered in the College, or in the University, as
the case may be, for his course of study in each
academic year, the number of lectures etc., in each
subject delivered, during the period of absence for
that purpose shall not be taken into account.
(ii) The Principal of a College may consider, on the
basis of the Medical Certificates produced,
exceptionally hard cases of students who had
fallen seriously ill or had met with an accident
during the year disabling them from attending
classes for a certain period, with a view to
determining whether the lectures etc. delivered
during the said period, or a part thereof, could be
excluded for purposes of calculation of attendance
of the year and decide each case on its own merits.
(b) A College shall notify on the notice board the final
attendance position of each of its students within three
days of the dispersal of the classes in the last session of
the academic year. Not later than five days, thereafter, a
student may, by an application to the Principal of the
college, claim benefit of exclusion of lectures under sub-
clause (a) above on grounds to be specified and
accompanied by the relevant documents. All such
applications submitted within time shall be considered
and disposed of by the Principal of the College at least 3
days prior to the commencement of the examination, in
which the student is intending to appear.
(c) the benefit of exclusion of lectures contemplated in
categories (i) or (ii) of sub-clause (a) above, either
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separately or jointly, shall in no case exceed 1/3 of the
total number of lectures delivered.
(d) in the case of a married woman student who is
granted maternity leave, in calculating the total number
of lectures delivered in the College or in the University,
as the case may be, for her course of study in each
academic year, the number of lectures in each subject
delivered during the period of her maternity leave shall
not be taken into account:
Provided that Post-graduate Degree students
under the Faculty of Medical Sciences who apply for
maternity leave either in I year or in II year, may be
allowed the maternity leave for a period not exceeding 3
months in an academic year but such students will be
required to complete the duration of the course as
regular students as required in the Ordinance and the
students will be permitted to submit the thesis or to take
the written examination, as the case may be, in January
instead of August that year."
8. Rule 3 of the 1975 Rules reads as follows:
"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 the
Principal of law colleges may condone attendance short
of those 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"
9. On a perusal of the aforesaid Rule, it is quite clear that a student is
required to have the minimum attendance of 66% of the lectures on each of
the subjects as also on tutorials, moot courts and practical training course.
The exception that has been carved out is that if the student has 66%
LPA No. 539 of 2010 Page 8 of 14
attendance of the lectures aggregate for the semester or examination, as the
case may be, the Dean of the Faculty of Law and the Principal of law
colleges may condone attendance short of those required by the Rule. The
learned counsel for the parties fairly stated that the case of the present
appellant does not fall in the said exceptional class.
10. The question that falls for consideration is whether Rule 3 of the 1975
Rules or the Statutes framed by the University pertaining to obtaining of
percentage of attendance would prevail. It is not in dispute that the
Ordinance of the University deals with matters relating to admission to the
university, transfer of students from one course to the other, migration of
students, conditions for admission to examination, conduct of examination
and various other aspects. In the case of S.N. Singh (supra), the Division
Bench noticing the stipulation in the relevant clauses in the Statute VII and
the Rule framed by the Bar Council of India has held as follows:
"28. Since the Bar Council of India recognises the LL.B.
Degree Course of the University of Delhi and the Bar
Council of India is a statutory body constituted under the
Advocates Act 1961 and is empowered to lay down
standards of legal education, University of Delhi would
be required to bring its rules in conformity with the rules
of the Bar Council of India."
Eventually, the Division Bench directed as under:
"37. For future, directions contained above, namely, no
relaxation would be given from the requirement of
clearance of 5 or 15 papers as the case may be for
promotion to the third and fifth term shall be adhered to
by the University. Further, the attendance rules shall be
amended by the University of Delhi and shall be brought
in conformity with the attendance rules framed by the
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Bar Council of India. The permissible relaxation would
be as per the rules framed by the Bar Council of India
and manner of exercise shall be as so framed there
under."
11. In Kiran Kumari (supra), another Division Bench of this Court
referred to the decisions in Baldev Raj Sharma v. Bal Council of India &
Ors., 1989 Supp. (2) SCC 91, Bar Council of India & Another v. Aparna
Basu Mallick & Ors., (1994) 2 SCC 102, S.N. Singh (supra) and expressed
the view as under:
"13. In the light of the above, we find it difficult to
appreciate as to how the requirements of 66% in each
subject or as a condition of eligibility for appearance in
the examination or the requirement of 66% attendance in
the aggregate for purposes of granting the benefit of
condonation in the shortfall can be said to be either
illegal or arbitrary. The decisions delivered by the
Supreme Court and by this Court to which we have
referred above have in our view authoritatively held that
the LLB course was a professional course in which the
candidates have to ensure regular attendance of lectures
and those who do not attend the stipulated percentage of
lectures would not even be eligible for enrolment as
members of the Bar. Such being the importance given to
the attendance of lectures, there is no question of the
requirement stipulated by the Rules being either
irrational, unconstitutional or illegal in any manner.
The quality of training which a candidate gets during the
time he undergoes the course is directly proportional to
the number of lectures that he attends. The
failure of a candidate to attend the requisite number of
lectures as stipulated by the relevant rules can
legitimately disentitle him to claim eligibility for
appearing in the examination.
14. That brings us to the contention vehemently urged by
Mr. Mittal that insistence upon 66% lectures in the
aggregate as a condition precedent for the exercise of the
power of condonation was irrational, for it amounts to
empowering the competent authority on the one hand and
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denuding him of that power on the other. We do not think
so. What is the minimum percentage of lectures which a
candidate must attend in each subject or on the
aggregate is a matter on which the academic bodies like
the University and the Bar Council of India are entitled
to take a decision. If in the opinion of the Bar Council
and the University, a candidate cannot be said to have
taken proper instructions or meaningfully undergone the
course, unless he attends a minimum of 66% lectures in
the aggregate, this Court cannot but respect that opinion.
In matters relating to academics and standards of
education, the Court would show deference to the
opinion of the academicians unless a case of patent
perversity is made out by the petitioners. The present is
not, however, one such case where the requirement of the
rule can be said to be so perverse or irrational as to call
for the intervention of this Court. As a matter of fact, the
minimum percentage of lectures having been fixed at
66%, still gives to the students freedom to
miss or abstain from 34% of the such lectures. That is a
fairly large percentage of lectures which a student may
miss for a variety of reasons including sickness or such
other reasons beyond his control. No student can
however claim that apart from 34% lectures which he is
entitled to miss even without a cause, the shortage to
make up 66% should be condoned if he shows good
cause for the same."
12. In Smt. Deepti v. Vice Chancellor, University of Delhi, WP(C) No.
18051/2006 decided on 20.04.2007, a learned Single Judge of this Court has
observed as follows:
"11. The main difference between the amended and un-
amended provision is that while the un-amended
provision pertained to the number of lectures
delivered in a year, after amendment the provision
relates to the number of lectures in each of the subjects
and has reference, in the proviso, to the
aggregate of lectures for the "semester examination".
Thus, the Ordinance, by virtue of the said amendment,
was sought to be brought in line with the
provisions of Clause 3 of Section B of Part IV (Standards
of Legal Education and Recognition of Degrees in Law
LPA No. 539 of 2010 Page 11 of 14
for admission as Advocates) of the Bar Council of
India Rules. The implication of this amendment is that
rather than requiring an average of 66% attendance in
the year, students preparing for the LL.B. Degree
must attend 66% lectures in each subject in order to be
eligible to sit for semester examinations.
12. Unfortunately, somewhat of a dilemma has emerged.
Although the University amended clause 2 (8) (a) of the
Ordinance VII to be consistent with The Bar Council of
India Rules, it did not bring about any change in Clause
2(8) (b) or 2 (9) (a), (b), (c) or (d) of the said Ordinance.
This has created an apparent inconsistency in the
language of the attendance rules. It seems that although
amended clause 2 (8) (a) requires calculation of
attendance on a subject-wise semester-wise basis, Clause
2 (8) (b) (albeit pertaining to the LL.M. Programme) and
Clause 2 (9) (which refers to all courses in general and
is not limited to the courses offered by the Law Faculty)
continue to refer to attendance calculated on a yearly
basis. There is no doubt that the piecemeal
amendment brought about by the University in the
Ordinance has introduced a certain degree of
confusion."
13. We entirely agree with the aforesaid pronouncement of law. The
University would have been well advised to compartmentalize the clauses in
the Ordinance or put it differently so that such a situation could have been
avoided, but the same has not yet been done. Be it noted, the learned
counsel for the University submitted with all fairness that that the 1975
Rules have to prevail and clause 9 of the Ordinance VII does not apply to the
students who prosecute LL.B course. We have already accepted the said
submission. As has been indicated earlier, the appellant has obtained 56%
of attendance. That apart, she does not come within the relaxation clause.
Thus, extension of benefit of relaxation does not arise.
LPA No. 539 of 2010 Page 12 of 14
13. Before parting with the case, we are obliged to state that the field of
legal education has its own sacrosanctity. With the passage of time, the field
of law is getting a larger canvas. A well organized system for imparting of
education and training in law has become imperative. In a democratic
society where the rule of law governs, a student of law has a role to play.
Roscoe Pound has said "Law is experience developed by reason and applied
continually in further experience". A student of law has to be a dedicated
person as he is required to take the study of law seriously as pursuit of law
does not countenance any kind of idleness. One may conceive wholesome
idleness after a day‟s energetic and effective work. An active mind is the
mother of invention. A student prosecuting study in law, in order to become
efficient in the stream of law, must completely devote to the learning and
training. One should bear in mind that learning is an ornament to continuous
education and education fundamentally is how one engages himself in
acquiring further knowledge every day. If a law student does not attend
lectures or obtain the requisite percentage of attendance, he cannot think of
taking a leap to another year of study. Mercy does not come to his aid as
law requires a student to digest his experience and gradually discover his
own ignorance and put a progressive step thereafter.
15. In view of the aforesaid, we perceive no error in the conclusion
arrived at by the learned Single Judge and accordingly we concur with the
same. Thus, the inevitable result is the dismissal of the appeal which we
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direct. In the facts and circumstances of the case, there shall be no order as
to costs.
CHIEF JUSTICE
MANMOHAN, J.
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