Allahabad High Court
Parvez Ahmad And Ors. vs Aligarh Muslim University, Aligarh And ... on 13 August, 1987
Equivalent citations: AIR1988ALL18, AIR 1988 ALLAHABAD 18, 1987 ALL CJ 596, 1987 ED CAS 252, (1987) UPLBEC 517
JUDGMENT K.C. Agarwal, J.
1. This petition under Article 226 of the Constitution was initially filed on 16-4- 1987 by 15 petitioners against the Aligarh Muslim University Controller of Examination, Aligarh Muslim University, Aligarh and Dean Faculty of Engineering for Mandamus directing the respondents aforesaid to permit them to appear in the Examination of B.Sc. Engineering (Final year) for the academic year 1986-87 which was going to commence on 18-4-1987 along with an application for interim order.
2. The petitioners 1 to 13 were the students of B.Sc. Engineering (final year) of Mechanical Engineering and petitioners 14 and 15 were the students of B.Sc. Engineering (Chemical) final year. They had completed their IV year. They were however, detained and were not permitted in the V year due to shortage of attendance.
3. Chapter XVII of the Academic Ordinances deals with "Examinations". Clause I of the Ordinance lays down as to who are regular students. It reads :
"(a) regular students, i.e. candidates who have undergone a regular course of study in the University or an institution maintained by the University for a period specified for that course of study."
Clause 2, which is relevant for our purposes, is as under : --
"2. A candidate shall be deemed to have undergone a regular course of study for the period specified for the course to be eligible to appear at the examination if he has fulfilled the requirements as given in the chart below."
4. The Schedule given below Clause 2 provides for the percentage of attendance of students of different subjects in order to be eligible to appear at the examination. The relevant portion of the schedule dealing with B.Sc. Engineering is mentioned below : --
Faculty Attendance Sessions requirement Lectures Practical Tutorials Seminars Engineering (B.Sc. B.E. & M.Sc.).
75% combined.
5. Clause 11(a) of the Academic Regulations (Chapter XXIV) confers power of condonation of attendance on the Condonation Committee. It provides :
"The Condonation Committee in the Faculties of Arts, Social Sciences, Science, Law, Commerce, Theology, Engineering and Technology and Medicine should not recommend the condonation of shortage in attendance in the case of a student whose actual physical attendance is less than 65% (or less than 70% in the case of Post graduate Diplomas in the Faculty of Medicine)."
6. After the Writ Petition was filed, petitioners 11, 13 and 15 were sent up by the respondents on the ground that they had been wrongly detained So far as other petitioners, are concerned, their attendance was below 65% up to which shortage could be condoned. The attendance of the petitioners was as under :
petitioner No. 1 62.5% petitioner No. 2 62.5% petitioner No. 3 53.5% petitioner No. 4 56.4% petitioner No. 5 59.8% petitioner No. 7 52.4% petitioner No. 8 59.2% petitioner No. 9 52.2% petitioner No. 10 59.4% petitioner No. 12 61.8% petitioner No. 14 49.1%
7. The Condonation Committee in accordance with Rule 11 of the aforesaid Regulation contained in Chapter XXIV of the Academic Regulations did not recommend the cases of the aforesaid petitioners and they were detained being students falling in List-C.
8. In order to ensure that the Condonation Committee followed Rule 11 of Chapter XXIV of the Academic Regulations, the Dean of various Faculties are required to send to the Controller of Examination the attendance of regular students in three lists which are : --
1. List' A'
2. List' B'
3. List' C
9. List 'C mentions the names of such students who have put in below 65% of attendance and declared 'Detained.
10. The petitioners' counsel's main argument was that since the University Grants Commission had issued direction to the Aligarh Muslim University for holding classes for 180 days and as the total number of teaching was 157 days only, the petitioners could not be held guilty of not having completed 75% required for being eligible to appear in the examination. The submission is unacceptable inasmuch as the instructions issued by the University Grants Commission were not mandatory in nature. The Commission had only expressed the desirability of holding classes for 180 days, consequently, the University having not worked for 180 days, therefore, the shortage in attendance of the petitioners was unreal, is not acceptable. Furthermore, even if the University would have worked for 180 days which was 23 more working days, most of the petitioners would have not completed the requirement of attendance of 75%. It is on the basis of 157 working days that the percentage of attendance had admittedly been calculated.
11. From paragraph 11 of the counter-affidavit, it appears that on the request of the students, the academic programme for teaching in final year examination was rescheduled and the last date for teaching was fixed 30th April, 1987.
12. The final year session commenced from Ist Sept 1986 prior to the declaration of 4th years' result so that the classes could be finished in time to enable them to apply for employment and higher studies.
13. It also appears from the counter-Affidavit that the petitioners have been informed before hand about the shortage in attendance. Procedure prevalent in the University is that the attendance of the first term counted up to Dec., 1986 was displayed on the notice board on ,20th Jan., 1987 and that the second term was counted up to Feb., 1987. This was also displayed on the notice board of 25th Mar., 1987 and despite the notices, the petitioners absented and did not complete their attendance which they were required to have in order to be eligible to appear in the examination.
14. The Universities in Uttar Pradesh are worst than others in the country. At one time, the Allahabad University was known as the Oxford of India and then the University of Lucknow was called the Cambrige of India For large number of days the Universities are closed due to strikes of students, teachers and employees. It would be for the Universities themselves to decide whether they would like to call them as such now.
15. On the basis of statistics it was written in one of the Articles that on an average the Universities open for 98 days in a year. Reasons are not necessary for us to be stated.
16. The petitioners' counsel did not dispute about the shortage of percentage in attendance but claimed that they were discriminated with others in the matter of condonation. The learned counsel took the illustration of petitioners 11, 13 and 15 and urged that they had been sent up although their cases were of similar nature as those of the petitioners, whereas the petitioners had been unjustifiably and illegally detained. The mistake in calculation of attendance of petitioners 11, 13 and 15 have been mentioned in one of the affidavits filed by the petitioners. We have already pointed out above that these persons were petitioners them selves initially.
17. In paragraph 39 of the counter-affidavit of the Aligarh Muslim University elaborate and detailed reasons have been mentioned explaining as to how was the shortage in attendance of these persons condoned. We have examined ourselves those cases and found that, the charge of discrimination made against the Aligarh Muslim University by the petitioners is unjustified. There were legitimate grounds for condoning the shortage. Even if the attendance was calculated minutely, it could not be said that any favour was done to them while condoning the same.
18. Counsel for the petitioners relied on some of the decisions on the, point of discrimination.
19. In our view, discrimination envisaged under Art 14 of the Constitution is conscious discrimination and a discrimination arising out of over sight is no discrimination.
20. It was said by the Supreme Court in i State of Orissa v. Durga Charan Das, AIR 1966 SC 1547, that it could not be contended that because a mistake was committed in one case, the same should be allowed to continue in other cases.
21. The above proposition of law should be applied in the instant case in the light of the statutory regulation which empowers the Condoning Committee to condone shortage in attendance. If the statutory regulation provided any specific number of days of work required to be put in inorder to be eligible to appear in the final year examination, the calculation has to be made in accordance with the same. The University has to take decision with regard to detaining of students or condoning of shortage by applying uniform standard. In that view of the matter, it has to be allotted year to year without discrimination. In the instant case, we have found that the petitioners failed to establish that they have been discriminated by the respondents and that the treatment meted out to them in the matter of condonation is not uniform.
22. In Sanjeev Coke Manufacturing Co. v. Bharat Cooking Coal Ltd., AIR 1983 SC 239, it was said by the Supreme Court that:
"If in the process of nationalisation some units are left out in the earlier stages, either because it is so planned or because of some mistake, it cannot be said that there has been a violation of Article 14."
23. Two cases to which strong reliance had been placed by the petitioners' counsel are reported in Vishnu Das Hundumal v. "State of M.P., AIR 1981 SC 1636 and Purshottam Das Tandon v. State of U. P., AIR 1987 All 56. In the first case, the Supreme Court recorded a finding that the State was guilty of hostile discrimination by adopting a hostile attitude towards the petitioners before them. In the other the finding was that leases of Nazul land in civil lines, Allahabad were renewed by the State Government of some persons whereas those of others rejected. The Division Bench held that discrimination could not be made on basis of status of lessees. The two cases are, therefore, distinguishable.
24. We have, however, already held, in the instant case that on the basis of the facts brought by the petitioners, that discrimination had not been established All the students were treated' alike and shortage was condoned in cases which attracted the power of condonation committee. The Committee did not discriminate by condoning shortage in attendance of some students.
25. It was emphasised by Sri S.N. Verma, the petitioners' counsel that some of the students who have filed the present writ petition were position holders and, therefore, denying to them the opportunity to appear at the V year would entail hardship not only to them but also to their parents. That may be true, but as a Court we are unable to find out any provision applicable in the matter of, condonation which could be stretched in support of the petitioners' case. Requirement of attending classes in Engineering need not be emphasised. It is a matter of common knowledge that the government spent lacs and lacs over education of the students in Engineering classes. The requirement of 75% attendance is universally laid down in all the Engineering colleges. Once the Court intervenes by saying that shortage in attendance can be condoned, we do not know the limit at which it would stop. To condone shortage by laying down different percentage in attendance can be provided for but doing so would amount to legislation. It is the legislation which the Courts must not do as law prohibits them to do so: The requirement of attending classes is also connected with discipline. To give a different interpretation of 75% which is being followed in the University for the last several years would result in indiscipline.
26. We desired the petitioners' counsel to tell us any provision of law under which the Vice Chancellor would be asked to reconsider the question of shortage in attendance of the petitioners, but counsel was unable to do so.
27. In America, attendance of classes depends on the will and desire of the students and not one on the basis of shortage intendance is detained from appearing in the examination. That may be so, but what is prevalent in America does not help us in interpreting the Ordinance with which we are concerned in the present case. The interpretation would mean what we have found above.
28. Sri Dilip Gupta, learned counsel for the University, has argued that it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies and has urged that the present case deserves no interference in exercise of jurisdiction under Article 226 of the Constitution. In support of his argument, the learned counsel has relied on a decision in Dr. J. P. Kulshreshta v. Chancellor of Allahabad University, AIR 1980 SC 2141 and University of Mysore v. H. H Annaiah Gowda, AIR 1965 SC 491. We find substance in his submission.
29. For what we have said above, we reject the writ petition. No order as to costs.