A.K. Mathur, C.J.@mdashAll these four appeals and the stay applications arise from a common order, therefore, all these four appeals and the stay applications are disposed of by the common order. Two appeals and stay applications are from the Original Side and two appeals and stay applications are from the Appellate Side. The Appeal Nos. T. 334 and 336 of 2000 and stay applications being T. No. 333 and 335 of 2000 are from Original Side and appeals being MAT No. 869 and 870 of 2000 and stay applications being CAN No. 2274, and 2275 of 2000 are from the Appellate Side. In all these matters the sole question is that whether all the students who have not been able to secure 65% of the total attendance are entitled to appear in regular examination of LLB of 5 years duration or not. All the petitioners are students of 1st year, 2nd year, 3rd year, 4th year and 5th year and they are short of minimum required attendance i.e. 65%. Therefore, the matter was agitated by the students through their Union to the Faculty of Law as well as to the University for condonation of their attendance and to permit them to appear in the ensuing examinations of law for 1999.
2. There are two classes of cases one which is known as dis-collegiate students and the other is known as non-collegiate students. The distinction between the two classes is that dis-collegiate students are those candidates who have not even secured attendance of 55% and non-collegiate students are those who have secured 55% of the attendance and they have been given a grace of 10% attendance so as to enable them to appear in the examination. But the Syndicate of University by its resolution date 20th July, 1999 has declined to permit both these class of students to appear in the 1st, 2nd, 3rd, 4th and 5th year examination of LLB for the year 1999 who have failed to secure 65% of attendance and passed the following resolution:
That applications of candidates who are dis-collegiate as per rules, including those which had earlier been condoned by the Department on medical and other grounds, be regretted.
3. Therefore, all these students rushed to file a petition in this Court and Justice Amitava Lala by order dated 23rd July, 1999 permitted the students to appear in the examination provisionally and directed the respondent university to issue admission card and permit them to appear in ensuing examination of 1999, however, the result of the students was withheld and directed the same shall not be published without the leave of the Court. Thereafter some more petitions were filed before another Judge Justice Samaresh Banerjea and both petitions were dismissed by the Hon''ble Judge by order dated 26th July, 1999, relying on the decision of the Apex Court, though it was brought to the notice of the learned Judge about the earlier order passed by Justice Amitava Lala, however, the learned single Judge felt that the interim order does not lay down any precedence and he was satisfied that relaxation of the minimum attendance cannot be permitted and consequently dismissed the writ petition by order dated 26th July, 1999. However, subsequently, the main writ petition filed by the petitioner Manas Sarkar, Ajoy Kumar Singhania, Debnath Ghosh and Amit Jalan came up for final disposal before Justice Lala and Justice Lala after hearing both the parties passed and order on 8th March, 2000 and directed the University to declare the results of all the candidates and accordingly allowed the writ petitions filed by the petitioners. Aggrieved against this order passed by the learned single Judge dated 8th March 2000 the University has preferred the aforesaid appeals.
4. We have heard the learned counsel for the parties and perused the record. Before we enter into the controversy involved in the matter, it may not be out of place to mention the relevant provision bearing on the subject. The University of Calcutta was constituted by West Bengal Act 38 of 1979, known as University of Calcutta Act, 1979 (hereinafter referred to as the Act of 79). Section 9 deals with the powers and duties of the Vice Chancellor. The Vice Chancellor is the Principal Executive and academic officer of the University. Section 17 says that following shall be the authorities of the University:
1. The Senate;
2. The Syndicate;
3. The Faculty Councils for post-graduate studies;
4. The Council for undergraduate studies;
5. The Board of Studies;
6. The Finance Committee;
7. The Tripura Council;
Such other authorities as may be established under the Statute."
5. Section 21 deals with the constitution of Syndicate. Section 22 deals with the power and duties of the Syndicate. Section 22(xix) empowers the Syndicate to make regulation for conduct of examination etc. Section 22 (xix) which is relevant for our purpose reads as under:
22. Powers and duties of the Syndicate. Subject to the provisions of this Act, the Syndicate shall exercise the following powers and perform the following duties: -
xxxx
(xix) To make regulations regarding the conduct of examinations held by the University and the condition under which student may be admitted to different courses of studies and the examinations held by the University;
6. Section 24 deals with the power and duties of the Faculty Council for post-graduate studies. Section 25 deals with the council for undergraduate studies. Section 26 deals with the power and duties of the council for undergraduate studies. Clause 26 (xiv) deals with the collection of fees of examination and condonation of short percentage for appearing at an examination as non-collegiate student, mark sheet, late admission, change of examination center, scrutiny of answer script and change of name or surname and any other charge for registration and migration of students and grant of diplomas, certificates or any other documents at such rate as may be prescribed by the Syndicate. Syndicate in its exercise of power under Clause (xix) of section 22 framed the necessary regulation for conduct of the examination and laid down the minimum percentage of attendance for appearing in the examination and that was issued by under Notification No. CSR/10/99 dated 24th May 1999, which reads as follows:
It is notified for information of all concerned that the Syndicate at its meeting dated 16.2.99 approved the continuity of existing provisions of the Regulations with regard to the minimum percentage of attendance in the classes required for being eligible to appear at the examinations in different courses of studies under this University as mentioned herein below:
|
Sl. Name of |
Minimum percentage of attendance |
Minimum percentage of condonation |
|
1. B.A./B.Sc./B.C. (General/Hons./ Vocational) |
75 |
60 |
|
2. M.A./M.Sc./M.Com |
65 |
55 |
|
3. M. Phil |
75 |
65 |
|
4. B. Ed |
75 |
65 |
|
5. LLB |
65 |
55 |
|
6. B. Tech/M. Tech |
65 |
No provision for con donation of short percentage. |
|
7. B. Tech/M. Tech. |
65 |
No provision for con donation of short percentage |
7. It is further notified for information of all concerned that for all other courses of study except those mentioned hereinabove and for those for which separate regulations are in vogue, the minimum percentage of attendance as mentioned in C.U. First Regulations framed under the Calcutta University Act, 1951 will be applicable. The said provision runs as follows :
No student shall be considered to have prosecuted a regular course of study in any subject for any examination unless he has attained at least 75 percent of lectures delivered and at least 60 percent of the tutorial classes held in the subject.
The Syndicate in special cases may relax the Rule for attendance upto 10 percent of the total number of lectures delivered.
The above will take immediate effect.
8.According to this notification issued by the University of Calcutta for LLB classes the minimum percentage of attendance was 65% and minimum percentage of attendance for condonation was 55%. Syndicate reserved the right in a special case to relax attendance upto 10% of the total number of lectures delivered. This was brought into force with immediate effect. Therefore as per this notification of the Syndicate minimum attendance for appearing in the LLB examination was that the students should have attended minimum of 65% of the lectures and only relaxation was permitted by the Syndicate to the extent of 10%. As per this clause the minimum attendance which was insisted for the relaxation was the candidates should have at least attended 55% of the lectures and the Syndicate in special case could relax upto 10% of the attendance i.e. the candidate should have a minimum percentage of attendance for condonation i.e.55%. A bare reading of this notification makes it clear that the students for appearing in the LLB examination for 5 years course i.e. from 1st year to 5th year should have attended at least minimum of 55% of the total lectures and only 10% relaxation could be given by the Syndicate in exceptional cases. The power to relax in the special case has been conferred on the Syndicate and none else. This consonance is also subject to levy of fees of Rs. 50/-. The notice was issued for admission to the LLB course for 1998-99 on 22nd June 1999 by the Faculty of Law and it stated that all the students who have already secured 65% of the total lectures delivered were declared collegiate for appearing in all the ensuing LLB examination of 1999. It was also announced that the list of non-collegiate candidates was published in which students who have attended 55% and above but less than 65% of the total number of lectures delivered were provisionally allowed to sit for their respective examination of the ensuing LLB examination, 1999 as non-collegiate candidate and they were directed to pay a sum of Rs. 50/- as non-collegiate fee. Thereafter from time to time some more lists of the candidates as non-collegiate was issued. Then some of the dis-collegiate students agitated the matter and in that connection, some correspondence transpired with the department of Faculty of Law and Vice Chancellor of the Calcutta University. On 12th July, 1999 a communication was sent by the Faculty of Law of University of Calcutta that the department of law has published several lists of collegiate and non-collegiate students for appearing at the ensuing LLB examination, 1999. But several applications have been received from students who have been found dis-collegiate for permission to sit for the LLB examination. The said communications was put up before the Vice Chancellor for his consideration. The Vice Chancellor on 13th July 1999 regretted it thereby that the request was rejected. Again another letter was sent on 14th July, 1999 to the Vice Chancellor by the Faculty Department of Law, Calcutta University and informed that the complaint regarding irregularity/partiality committed by members of the teaching staff in preparation of lists of collegiate and non-collegiate students and acceptance of medical certificates submitted by the concerned students/candidates was objectively considered by the teachers of the Department of Law and no partiality or discrimination was made. It was also mentioned that medical certificates had been accepted by the teachers of the Department of law keeping in view the University regulation, which stipulate 65% attendance for being collegiate and 55% attendance after condonation for being non-collegiate. It was also mentioned that regulation is silent about acceptance or non-acceptance of medical certificate therefore the Committee of Teachers of Faculty examined that and accepted which were genuine. Therefore, it was decided to take medical certificate to be good ground for condonation. Then again on 16th July 1999 another communication was sent to the Vice Chancellor and it was reiterated that the condonation of attendance on medical ground was considered by all the whole time teachers of the Department of Law. It was also pointed out that in view of the absence of the specific guidelines and looking to the gravity of the situation the teachers of the Law Department decided to condone attendance on medical ground. Then all these matters were ultimately placed before the Syndicate on its meting on 20th July, 1999 and the Syndicate resolved to reject the applications of the candidates who were dis-collegiate as per rules and including those who have been earlier condoned by the Department (Law Department) on medical and other grounds.
9. Therefore, so far as dis-collegiate candidates are concerned who have not secured a minimum of 55% attendance even the Syndicate also has no power to relax. So far as non-collegiate candidates are concerned who have secured 55% of the attendance then the Syndicate has a power to relax to the extent of 10% attendance. But strangely enough in the present case it appears that the so called committee of the teachers of the Law Faculty took upon themselves to condone the attendance on medical ground which power they did not possess.
10. It is very unfortunate that Law Department of the University of Calcutta has acted in a most cavalier fashion and without there being any power to condone even 10% of the attendance has done it, taking a shelter that since there is no guideline therefore they condoned the minimum attendance. The learned counsel for the appellant University has submitted in fact first teachers granted three months condonation enmasse to bring them to level of 55% on medical ground and permitted them to appear in examination on payment of fees of Rs. 50/-. These fact emerges from memorandum of appeal of the University in MAT No. 870 of 2000 (University of Calcutta v. Debnath Ghosh). This was objected by other side that University has not filed the reply to writ petition and they cannot raise these facts in memo of appeal. Be that, as it may, the fact remains that teachers of Faculty of Law had no jurisdiction to condone the delay. When these facts were brought to the notice of the Syndicate they regretted and did not permit these students to appear in examination. Students filed the present writ petitions and the learned single Judge permitted them provisionally whereas another learned single Judge took a very strong exception and dismissed the writ petition. Subsequently, the learned single Judge, Justice Amitava Lala after hearing the arguments allowed the writ petitions of all the petitioners and directed the University to release the result of the examination.
11. We have heard the learned counsels for the parties and perused the record and we cannot resist from lamenting the state of affairs of the Law Faculty of the Calcutta University. It shows that majority of the students have not attended the classes and the lectures, this serious problem was even not attended by the University authorities. It is not understandable that the authorities of the University were not aware of the state of affairs. It is equally unfortunate that the lecturers of the Faculty of Law who have no power to condone the shortage of attendance or authority to permit any grace of attendance acted in most unfortunate manner. They arrogated the power, which they did not possess. This act on the part of the Law Department of Calcutta University and its teachers was totally unauthorized, illegal and arbitrary. From the notification, which has been reproduced above, it clearly transpires that it is only the Syndicate and the Syndicate is competent to grant a 10% relaxation in a special case. It is not that this notification was not in the knowledge of the Faculty of Law. The Faculty of Law had full knowledge about this notification still they acted contrary to it. In such a state of affairs we are firmly of the opinion that the decision taken by the Syndicate not to permit dis-collegiate and non-collegiate students who were permitted by the Faculty on so called medical and other grounds was fully justified.
12. We regret that the view taken by the learned single Judge in the present case does not appear to be correct. The learned single Judge has drawn adverse inference on non-filing of affidavit in opposition by the University. He, therefore, observed that the number of allegations made in the writ petition remained uncontroversial. It was also observed that only 319 out of 1500 students were declared collegiate and the rest were declared non-collegiate and dis-collegiate and not permitted to appear in examination because of the lack of requisite attendance. The learned single Judge applying the principle of maxim semper in dubiis benigniora praeferenda meaning thereby in all doubtful matter the beneficial interpretation should be preferred and he accordingly allowed the, writ applications of all the petitioners. Though attention of the learned single judge was drawn to the various decisions of the Apex Court but the learned single Judge did not feel persuaded. It was also observed that the students were provisionally admitted as non-collegiate students on payment of fees of Rs. 50/- therefore the students have reasonable expectation.
13. After giving the best of our consideration we are of the opinion that the view taken by the learned single Judge is against all settled principles of law as enunciated by the Apex Court in the series of decisions. In this connection, reference may be made to the case of
1. Occasional aberrations such as these, whereby ineligible students are permitted, under Court orders, to undertake Board and/or University examinations, have caught the attention of this Court many a time. To add to it further, the Courts have almost always observed that the instance of such aberrations should not be treated as a precedent in future. Such casual directions by the Court is nothing but an abuse of process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust that unless the High Court can justify its decision on principle and precept, it should better desist from passing such orders, for it puts the ''Rule of Law'' to a mockery, and promotes rather the ''Rute of man''.
14. In the case of
There is no dispute that the institution in which these students had perused their studies have not yet received any affiliation from the Central Board of Secondary Education, who is the appellant in these appeals. Under the byelaws of the Board only regular students of affiliated schools with the Board are entitled to appear in the Secondary School Examination and the Senior Secondary School Examination conducted by the Board. Since the institutions in which the respondent students have prosecuted their studies are admittedly not affiliated to the Board but the students have been allowed to appear at the examination pursuance to the interim direction of the Court, which is in contravention of the Rules and Regulations of the Board, the question that arises for consideration is : whether the High Court was justified in issuing these impugned directions ? This question no longer remains res integral. This Court in several cases deprecated the practice of allowing students to appear provisionally in the examinations of the Board or the University and then ultimately regularizing the same by taking a sympathetic view of the matter. In the case of
We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that kept coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates that by an accurate assessment of even the prima facie legal position such orders couldn''t be allowed to stand. The Courts should not embarrass academic authorities by themselves taking over their functions.
15. In the case of
We might not have interfered had this been an isolated case but we find though from reading the orders which have been placed on the record that though the impugned order stated that it was not to be treated as a precedent, it has been followed repeatedly by the High Court and by Courts below. It appears then that it is necessary to interfere to uphold the sanctity of the requirements of the Medical Council of India and the University. These requirements are laid down to ensure that the full period of training necessary for acquiring the qualification is completed and it is in the public interest that they are not lightly deviated from.
The University was not obliged to give the first respondent exemption for 30 days'' absence because the leave it gave the first respondent contemplated a full training period by having to repeat it. The first respondent fell short of the required training period at least by 42 days. He must, therefore, appear and pass the next examination.
16. Our attention was invited to an unreported decision of the Division Bench of this Court in APOT No. 282 of 1998 (judgment dated 11.9.98) there also the Division Bench of this Court did not approve of permitting students to take up the examination who were short of attendance. Attention of the learned single Judge was also invited to this decision but the learned single Judge distinguished the same on facts.
17. The learned counsel for the respondents tried to submit that in fact the Syndicate was not called upon to decide the question of non-collegiate students as the same was not before them and the only question before them was with regard to dis-collegiate students. Therefore, the resolution of the Syndicate should only be confined to the dis-collegiate students. This submission of the learned counsel is not correct. After reading all the communications in sequence it transpires that the cases of both the students i.e. dis-collegiate as well as non-collegiate were before the Syndicate and the resolution of the Syndicate was that they do not approve the relaxation with regard to dis-collegiate students and including those who had been earlier condoned by the department on medical and other grounds. Therefore, the Syndicate was called upon to decide the fate of both dis-collegiate and non-collegiate students. In fact the expression "those which had earlier been condoned by the Department on medical and other grounds, be regretted" clearly shows that this relates to non-collegiate students. The Department has condoned the shortage of the attendance by accepting medical and other grounds, these relates to non-collegiate students. Therefore, the contention of the learned counsel for the respondents/petitioners that the University was called upon to decide the fate of dis-collegiate students and not non-collegiate students is not correct.
18. It was also contended by the learned counsel for the respondents/writ petitioners that the students have already appeared in the examination and the result is only required to be declared. Therefore, this time it may be permitted on humanitarian ground. The submission of the learned counsel for the writ petitioners cannot be countenanced for the simple reason that the law has been declared by the Apex Court time and again and it has not been followed by authorities. One has to call it a day and we call it a day. No more this kind of indulgence by authorities or by Courts. These emotional pleas will frustrate the whole purposes of alleviating the standard of teaching be it law or any other subject. We regret that the view taken by the learned single Judge in the present case is wholly unwarranted and it was against decisions of the Apex Court and therefore it cannot be countenanced.
19. It is too well known to everybody that legal education in our country is in a very lamentable state of affairs. Time and again this anxiety has been shown from various quarters especially by the Hon''ble Chief Justice of India as well as by the Law Commission. In this connection it will not be out of place to reproduce the recommendation of the Law Commission of India way back in 1958 in its 14th report highlighted the deteriorating condition of the standard of the legal education obtaining in the country and portrayed a dismal picture and observed:
The portals of our law teaching institutions-manned by part-time teachers-open even wider and are accessible to any graduate of mediocre ability and indifferent merits. It is not surprising that in this chaotic state of affairs in a number of these institutions there is hardly pretence at teaching.... This character is followed by Law examinations held by the Universities, many of which are mere tests of memory and poor ones at that, which the students manage to pass by scramming short summaries published by enterprising publishers.... The result, a plethora of LLB, half baked lawyers, who do not know even the elements of law and who are let loose upon society as drones and parasites in different parts of the country.
20. This was the picture depicted in 1958 since then the situation has worsened. A committee was appointed headed by the then Chief Justice of India, Shri A. M. Ahmedi in 1993 in the Chief Justice'' Conference and that Committee has also observed:
Broadly, it was accepted that the general standard of the law colleges in the country and of the students was deteriorating day by day. It was also suggested that the standard of new entrants into the Bar leaves much to be desired.
21. The committee had suggested that the legal profession should be treated as professions like medical and engineering courses. Therefore, this 5 years'' course was designed and in that connection the Bangalore Law School was established then another school at Madhya Pradesh was established and various other States have started 5 years'' law course. But this 5 years'' law course is being sought to be defeated by students who have not even attended 65% of lectures delivered then what good could this bring to the legal education and consequently to the profession. This 5 years law course is being sought to be frustrated by permitting this kind of indulgence to the students that they may not attend 65% of the lectures and they may be permitted to appear in examination on grounds like medical and other grounds then the whole purpose of improving the standard of legal education will be frustrated. The relaxation should be granted only in exceptional cases and not in mass scale as has been granted. The attention of the members of the Bar and of the Branch has all through been to upgrade and uplift the teaching of law in order to improve the profession. A very glaring example has been cited by the petitioner that one police sergeant who did not attend 5% of the lectures was sought to be cleared by the Faculty and in another case of Mohammed Boiai Hossain Chowdhury who only attended 9 lectures and he was also permitted to be treated as non-collegiate student. What can be more sadder state of affair than this. We are constrained to hold that the action of the Faculty of Law of Calcutta University is most unfortunate, arbitrary, unwarranted and without jurisdiction. The Vice Chancellor of Calcutta University should take appropriate action for such unauthorized act by the Faculty of Law of the, University of Calcutta and put the legal education in its proper perspective.
22. An attempt was made by one of the counsels for the petitioners to submit that when the notification remained dormant for a long time therefore if it was to given effect to then a fresh notification should have been issued. This argument is only mentioned for its rejection. Once the law is there and it does not cease to be law simply because it has not been implemented in right earnest. However, this is not the case here. This notification was issued on 24th May 1999 therefore this argument has no merit to stand.
23. Hence as a result of the above discussion we are of the opinion that the writ petition filed by the petitioners have no merit and should have been rejected at the thresholds as was done by Justice Banerjea by his order dated 26th July, 1999. Hence we allow the appeals filed by the University of Calcutta being MAT Nos. 869 and 870 of 2000 and T. Nos. 334 and 336 of 2000 and dismiss the writ petitions. In the facts of the above case there will be no order as to costs.
A. Kabir, J.
24. I agree.
Appeals allowed.
