- (1.) AFTER qualifying a competitive test the petitioner was admitted to three years M.B.A. (Executive) Course conducted by the respondent University. The petitioner qualified first year of the Course concerned, however, he was not permitted to appear in the second year examination, thus, seeking a direction for the respondents to permit him to face the examination, this petition for writ is preferred. As per the petitioner no reason was given by the respondents for not permitting him to appear in the examination concerned, which were to be commenced from 29.10.2009.
(2.) IN response to the notice to show cause a reply has been filed by the respondents stating therein that the petitioner was not allowed to appear in the examination as he failed to put in at least 75% attendance, as required under the University Ordinance. As per scheme of the M.B.A. (Executive) Course, no candidate shall be considered to have pursued for regular course of study, unless he/she is certified by the Director of the institute (respondent No.3) to have attended 75% of the total number of lectures, tutorials, seminars, case discussions, personality development sessions, workshops and presentations conducted in each semester during the course of study. It is also stated that this Court in SBContempt Petition No.87/97, arising out of a public interest litigation, (SBCivil Writ Petition No.455794, Damodar Prasad Goyal v. Smt. P.L. Kushwalia & Ors., decided on 24.10.1997), prescribed certain guidelines required to be adhered to ensure attendance of students to 75%. The petitioner, if would have been permitted to appear in the examination, then that would have been in contravention of the directions given by this Court. A Specific statement is also made by the respondents that by a general notice dated 6.6.2009 all the students of M.B.A. (Executive) Part-I, II and III were advised by the Director of the institution to note their attendance, in view of the fact that 75% attendance is compulsory for becoming eligible to take the University examination as a regular student. IN rejoinder the petitioner has disputed issuance of notice dated 6.6.2009 and also urged that no care and caution was taken by the institute, even as per the directions given by this Court in Damodar Prasad Goyal's case (supra) for proper maintenance of the attendance. It is asserted that before declaring the petitioner ineligible to appear in the examination concerned the respondents should have asked explanation from the petitioner and also should have given a notice being a necessary requirement of the principles of natural justice. Heard counsel for the parties. As per Ordinance 144 of the Rajasthan University Ordinance a candidate shall be required to put in a minimum of 66% attendance in each paper (theory and practical separately, wherever prescribed) to enable him to appear in the examination. A power is available to the respondents for condonation of shortage in attendance as per Ordinance 145 and Ordinance 145-A(iii). Beside the provisions above, this Court in Damodar Prasad Goyal's case (supra) provided certain guidelines to ensure attendance to students to 75% and those are as follows:-A.To ensure attendance of students to 75%. 1. The constituent colleges or affiliated colleges or the Departments of University, where the students are getting the education shall ensure that 75% of the attendance is given by each of the student and the application form for appearing in the examination are sent by the Principal/Head of Department concerned after verifying from the record. If it is found at any point of time that a false certificate is given or proper verification is not done then such person who has issued the certificate would be liable for disciplinary action by the respondents. 2. If a particular student is absented for 10% of the total number of attendance which are expected in a year then the concerned college/department would inform the parents of such students of his absence. Steps would be taken to remove the name of such student after the absence of 25% of the expected classes in a session to cancel his admission. 3. The respondents would see that in no case relaxation is given for appearing in the examination where the student has not completed 75% of the attendance. 4.The Head of the Department/Principal would make surprise visits of the lectures being rendered by the concerned teaching staff and to see as to how many students are present in class. 5. The attendance register shall be regularly and properly maintained and the information is sent by the concerned Principal or Head of the Department monthly within 10 days from the end of each month. If the information is not sent to the University the concerned Principal or Head of Department would be liable for departmental inquiry and disciplinary action. True it is, as per Ordinance 144 read with guidelines prescribed by this Court in Damodar Prasad Goyal's case (supra) a candidate is required to have 75% of attendance, however, the attendance is required to be verified from record by Principal/Head of Department (in present case that is Director of the respondent institute). While ensuring attendance of students to 75%, it is obligatory for Head of Department/Principal (Director of the respondent No.3 in present case) to maintain attendance registers and further to take necessary advisory steps in the event a student is lacking requisite attendance. In the present case the students are not the freshers or students of teen age but the executives, therefore, an advise regarding lacking attendance was not required to be given to their parents but certainly to themselves. The respondents admittedly before restraining the petitioner from appearing in the examination concerned have not sought his explanation and also never informed him personally for deficiency in required attendance. Mere giving of general advise in no way can be compared with a personal and individual notice. It is correct that no specific provision is pointed out by counsel for the petitioner putting an obligation upon the respondents to follow any specific procedure before restraining the petitioner to appear in the examinations on being lacking attendance, but the doctrine of audi alterm pertem is an inherent one and that is always required to be adhered, if any action is taken effecting civil rights of a person adversely. In the present case the petitioner was admitted in a three years course, he already qualified first year examination, he was participating in internal test and other necessary activities, thus, it was essential for the respondents to seek his explanation before restraining him from appearing in the examination concerned, specially in the circumstances that this Court in the case of Damodar Prasad Goyal's case (supra) while providing steps to ensure attendance to 75% also prescribed certain guidelines for Head of the Institutions to be observed, if a person is lacking attendance. Much insistence is given by counsel for the respondents on the notice dated 6.6.2009, but that is of no consequence. As a matter of fact the notice concerned does not bear any number and the place of its affixing. Be that as it may, the notice aforesaid in no manner can be treated as an individual notice to the petitioner before restraining him from appearing in the examinations. It is also stated by counsel for the respondents that the examinations concerned have already taken place and, therefore, no direction can be given to permit the petitioner in the examination aforesaid. I am not at all convinced with the argument so advanced. If the respondents have detained the petitioner illegally from appearing in the examination, then this Court is neither helpless nor hapless in molding the relief to meet the ends of justice. It is pertinent to note that the petitioner is undergoing the course of M.B.A. (Executive) and this course is meant for the persons who are in employment and want to acquire expertees for advancement of their career. The petitioner and the students alike cannot be treated at par with general regular students. The students like petitioners deserve to be treated at a different pedestal by considering their matured status. As a matter of fact they are undergoing a professional qualification in addition to their existing employment and as such are putting extra labour. There may be hundred circumstances restraining and compelling them not to be as regular as other general students in class room studies and, therefore, while determining their attendance a generous approach deserves to be adopted by the educational institutions, like the respondent No.3. If any student is lacking attendance then at the first instance the institution should make all efforts to get the same completed by adopting remedial measures such as holding holiday classes, supplementary classes or by any other mode considered appropriate by the institution. In the present case I do not find any such approach at the part of the respondent institution for filling in deficiency, if any occurred by the petitioner in attending regular classes. Totality of circumstances demands for acceptance of the petition for writ and, therefore, the same is allowed. The respondent University and the respondent No.3 are directed to provide an opportunity of hearing to the petitioner and if the deficiency of attendance is upto 20% from statutory requirement of 66% attendance then an opportunity be given to the petitioner to satisfy the same by holding additional classes. The respondents are further directed to hold special examinations of M.B.A. (Executive) second year enabling the petitioner to avail the same. Such examination is required to be conducted within a period of one month after holding required additional/supplementary remedial classes. The entire process as scheduled above is required to be completed as expeditiously as possible, preferably within a period of three months from today. No order to costs.;