Smt. Malladi Harsha Rao Vs Jawaharlal Nehru Technological University, Kakinada and Sri Mittapalli Institute of Technology for Women

@JUDGMENTTAG-ORDER

Noushad Ali

1. Heard Sri Sricharan Telaprolu, learned counsel for the petitioner and Sri A. Najeeb Khan, learned Standing Counsel for the 1st respondent-University.

2. Even though the 1st respondent-University has not filed Counter-Affidavit, the learned counsel for the petitioner insisted for hearing pleading urgency in the matter. The learned Standing Counsel, however, made his submissions based on the instructions received from the University.

3. The petitioner has challenged her detention in the first Semester of the 4th year B.Tech. course pursuant to the notice, dated 15-10-2011, of the Principal of the 2nd respondent-College.

4. Before considering the various contentions as raised, the following are the facts:

The petitioner joined the 2nd respondent-College in B.Tech. course in the academic year 2008-09. She completed three years. During the 3rd year of the course she was married and conceived. The 4th year course commenced from 13-6-2011. She gave birth to a child on 28-6-2011. She did not attend the classes in July, 2011, due to pregnancy. She is said to have attended all the practical classes and appeared for internal examinations. However, she could not put in the requisite attendance of 75%. Therefore, she was detained in the first Semester of the 4th year and she was not permitted to write the first Semester examinations of the 4th year course.

5. The case of the petitioner is that the total working days for a Semester is around 100 days, out of which the petitioner attended the college for 60 days. However, the case of the 1st respondent-University is that the attendance was calculated on the basis of number of classes attended by the petitioner in each subject and in aggregate, her final attendance percentage is 37.4%. This attendance included the presumptive attendance including the midexaminations.

6. The following are the details of the attendance:

With reference to above cited reference 2, this is to inform you that the following are the subject wise attendance particulars of Smt. Malladi Harsha, Regd. No. 08MK1A0439 who is IV B.Tech. I Sem Student of our college.

As per the university norms adding two mid examinations attendance i.e. total 84 periods, she got Total Classes held: 572. Total Classes attended: 214.

Hence her final attendance percentage is 37.4 (calculated attendance subject wise as per university regulations).

The period of IV B.Tech. I Sem. class work commenced as per direction of JNTUK i.e. from 13-06-2011 to 22-10-2011 (including mid examinations).

7. Even though it has been pleaded that the petitioner attended 60 days out of 100 days, no material is produced in support of the said contention. Be that as it may, even if it is taken as correct, the percentage would be 60%. Therefore, I proceed to consider irrespective of the conflicting versions as to the percentage of attendance. As noticed, according to the petitioner her percentage of attendance is 60%, whereas, according to the 1st respondent-University, the percentage is 37.4%.

8. In order to appreciate the contention whether the petitioner satisfied the required attendance, it is useful to extract the relevant provisions. The 1st respondent-University has framed regulations, namely, Academic Regulations 2008. Regulation 5, which relates to the Attendance Requirements, is as follows:

i. A student shall be eligible to appear for University examination s if acquire s a minimum of 75% of attendance in aggregate of all the subjects.

ii. Condonation of shortage of attendance in aggregate upto 10% (65% and above and below 75%) in each semester or 1st year may be granted by the College Academic Committee.

iii. A student will not be promoted to the next semester unless he satisfies the attendance requirement for that present semester/1st year, as applicable. They may seek re-admission for that semester/1st year when offered next.

iv. Shortage of Attendance below 65% in aggregate shall in NO case be condoned.

v. Students whose shortage of attendance is not condoned in any semester/ 1st year are not eligible to take their end examination of that class and their registration shall stand cancelled.

vi. A stipulated fee shall be payable towards condonation of shortage of attendance.

9. A perusal of the aforesaid Regulation unequivocally show that a student, in order to be eligible to appear for the examinations, should have minimum of 75% attendance in aggregate of all the subjects and the shortage of attendance is condonable up to 10% i.e. 65% and above in each semester and the said condonation may have to be granted by the College Academic Committee. Clause (iv) of Regulation 5 is very categorical that shortage of attendance below 65% in aggregate shall in no case be condoned. The Regulation mandatorily provides that while attendance of 75% is required with a condonation of 10%, no further condonation of below 65% attendance is permissible.

10. In the instant case, the petitioner has put in only 37.4% and even if the statement of the petitioner that she attended 60 days out of 100 days is accepted, she does not satisfy the requirement of 65% attendance.

11. The learned counsel for the petitioner, however, submits that absence of the petitioner is on account of her pregnancy and the same requires humanitarian consideration. Reliance is placed on a judgment of the High Court of Madras in Nithya Vs. University of Madras, and Others, and another judgment of the High Court of Rajasthan in Mrs. Kalpana Kumbhat vs. University of Jodhpur 1981 WLN UC 51.

12. The learned Standing Counsel submits that since the Regulations do not provide for any type of contingency including the maternity reasons, the shortage of attendance of the petitioner cannot be condoned. Reliance is placed on the judgments rendered by the Division Benches of this Court in B. Yugandhar Vs. Principal, Kuppam Engineering College and Another, ; M. Sunil Chakravarthy and Others Vs. Principal Sreekalahasteeswara Institute of Technology and Another, and K. Pradeep Vs. Jawaharlal Nehru Technological University, Hyderabad and Others, and a judgment of the apex Court in Ashok Kumar Thakur Vs. University of Himachal Pradesh and Others,

13. In A.K. Thakur''s case (supra), the apex Court held 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 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.

14. The Division Bench in Yugandhar''s case (supra) considered the very same Regulations and citing the judgment of the apex Court in A.K. Thakur''s case (supra), held as follows:

(8) In view of the aforementioned judgments, it must be held that the Court cannot issue a judicial fiat to the respondents to admit the appellant in I semester examination of the 4th year and thereby violate the mandate of Regulation 5 of the Academic regulations.

(9) We are further of the view that even if the benefit of Regulation 5(ii) was to be extended to the appellant, he would not have been able to achieve the requirement of minimum 75% attendance in aggregate. Therefore, the learned single Judge did not commit any error by refusing to entertain his prayer and we do not see any reason to differ with him.

15. In Sunil Chakravarthy''s case (supra) while dealing with the same Regulations, the Division Bench held as follows:

(4) Since nobody has power to condone the attendance below 65% therefore, it should be assumed that even this court cannot order such a condonation. Something which is prohibited by the Regulations cannot be subject-matter of a mandamus.

16. Again, in Pradeep''s case (supra), this Court considered the said regulation and declined to condone the delay of even 1%.

17. The aforesaid judgments clearly held that the regulations do not provide for any condonation of attendance below 65% and no amount of judicial fiat can give relief to the petitioner.

18. In the light of the aforesaid judgments, I am not inclined to accept the judgment of the High Court of Madras in Nithya''s case (supra), ft may be true that Article 41 of the Constitution of India, which contains Directive Principles of State Policy which are not enforceable, but which may at the most be taken as guidance for good governance, cannot take precedence over the statutory provisions unless the Statutes themselves provide for such situations. Furthermore, in that case there appears to be a provision for condoning the delay in non-semester subjects up to 50% for the purpose of promoting the students for the next academic year.

19. In the judgment of the High Court of Rajasthan in Kalpana Kumbhat''s case (supra), the Court considered the question as to whether the petitioner therein could claim a legal right for a direction to the University to hold special examinations as the petitioner could appear earlier on maternity grounds and while answering the said question in the negative, has interfered only on the ground of discrimination.

20. I am, therefore, of the opinion that the above stated judgments do not support the case of the petitioner.

21. It is true that in the instant case, the petitioner made a mild attempt to show that some students were granted condonation of attendance below 50% but the petitioner has not given any example or cited any particular case details.

22. Attendance is an important factor in the maintenance of educational standards. Educational standards cannot be maintained unless a student attends the classes at least for a minimum period. The standards cannot be sacrificed on any pretext, much less by extending sympathy and condoning the attendance. No discrimination can be alleged if it is uniformly applied to all the students irrespective of the gender in order to maintain standards.

23. For the aforesaid reasons, I am of the view that the impugned notice dated 07-10-2011 of the Principal of the 2nd respondent-College detaining the petitioner in the first Semester of the 4th year B.Tech. course is perfectly legal and the writ petition is devoid of merits and the same is accordingly dismissed, at the stage of admission. No costs.