Rajib Borgohain vs Cotton College and Others

J.N. Sarma, J.—A Writ Court in exercising its discretion cannot encourage indiscipline in the society nor its decision can lead to a chaotic situation, more so, in the field of education. Bearing in mind this principle now let us go to the facts of this case.

In the amended writ application filed by a student of Cotton College, the followings are the prayers:

(i) To issue a writ in the nature of certiorari quashing the Regulations 10B and 11(iv) of the Regulation for T.D.C. B.A. Course revised in 1994 passed by the Academic Council, Gauhati University on 19.3.93.

(ii) To quash the resolution dated 30.12.97 adopted in the meeting of the Heads of the Department of the Cotton College in the Dean Office-Chamber.

(iii) To quash the notification/Circular dated 31.12.97 issued by the Dean, Cotton College, Guwahati v thereby the Petitioner was declared to be discollegiate, he was not allowed to fill up the form for final examination of T.D.C.

The Petitioner had major in History and he appeared in the Test Examination of T.D.C. Part-I and it is claimed that he passed Part-I Examination in all the subjects, but he was not allowed to fill up the form as he was declared to be discollegiate. This is Annexure-D to the writ application.

The roll number of the student in the College was 846 and he along with many others were declared to be discollegiate for want of required percentage of attendance. In the case of the Petitioner it was only in one subject, that is, in General English. It may be stated herein that Section 7 of the Gauhati University Act, 1947 provides for the authority and Academic Council is one of the authorities as mentioned in that Section. Section 14 of the Gauhati University Act, 1947 reads, inter-alia, as follows:

ACADEMIC COUNCIL - Section 14.

14(1). The Academic Council shall be the academic body of the University and shall, subject to the provisions of this Act, the statutes end the Ordinances, have the control and general regulation of and be responsible for the maintenance of standards of instruction, education, and examination within the University.

This section was substituted by Assam Act No. II of 1961 dated 6.1.61 to come into force on such date as the State Government may, by notification in the official Gazette, appoint and substituted section reads as follows:

The Academic Council. The Academic Council shall be academic body of the University and shall, subject to the provisions on this Act, the Statutes and the ordinances, have the control and general regulation of and be responsible for the maintenance of standards of instruction, education and examination within the University, and shall exercise such other powers and perform such other duties as may be conferred and imposed upon it by the Statutes. It shall have the right to advise the Executive Council on all academic matters. The constitution of the Academic Council and the terms of office of its members, other than ex-officio members shall be prescribed by the Statute.

Section 14 as amended now finds place in the Statute Book as substituted in the year 1961. The earlier Section 14 has been quoted above. So the Section gives the power to the Council to control, regulate and makes it responsible for the maintenance of standards of instruction, education and examination.

Section 14 A is as follows:

14-A. The Academic Council shall have the following powers namely:

(i) to make proposals to the Executive Council for the institution of Professorship, Readership, Lecturerships, or other teaching posts, and in regard to the duties and emoluments thereof;

(ii) to submit to the Executive Council draft Regulations regarding method and manner of conducting examinations including setting up of Moderation Boards and to award in accordance with such Regulations, Fellowships, Scholarships, Exhibitions, Medals and other rewards ;

(iii) to recommend examiners for appointments to be made by the Vice-Chancellor and report from the Facilities concerned ;

(iv) to control the University Library, to frame Regulations regarding its use, and to appoint a Library Committee under the general control of the Academic Council to manage the affairs of the Library ;

(v) to assign subjects to the Faculties ;

(vi) to assign teachers to the faculties;

(vii) to promote research within the University including the establishment of a Research Council and to require reports on such research from the persons employed therein ;

(viii) to provide for the inspection of Colleges and Halls in respect of the instruction and discipline therein, and to submit report thereon to the Executive Council;

(ix) to organise teaching in the University and to control the work of teachers, and

(x) such other powers and duties as may be assigned to it under the Statutes.

Section 23 provides for Ordinances to be framed by the Executive Council and Section 23(f) provides for ordinance with regard to the qualifying attendance required in the various courses to be framed by Executive Council. The admitted position is till today Executive Council has not framed any such Ordinance.

Section 25 provides for the regulations making power and that provides that the authorities of the University may make regulations consistent with the Act, the Statutes and the Ordinances. Section 25(i)(c) and Section 25(3) provide inter-alia, as follows:

25(1). Regulations. The authorities of the University may make regulations consistent with this Act, the Statutes and the Ordinances:

25(1)(c) Providing for all the matters solely concerning such authorities and not provided by this Act, the Statutes and the Ordinances.

25(3). The Executive Council may direct the amendment, in such manner as it may specify, of any Regulation under this Section or the annulment of any Regulations made under Sub-section (1).

So all the Authorities including Academic Council have the Regulation making power subject to above.

In the year 1986 when the T.D.C. Course was introduced on 10+2+3 pattern, a regulation was framed specifying certain things therein and mat was flamed by the Academic Council. That regulation which was framed by the Academic Council used to hold the field for all the years and the Executive Council as required did not amend or annul it u/s 25(3) as indicated above. In the year 1994 with effect from 1994 session, that is with effect from 19.10.93, a revised regulation was framed by the Academic Council with the relevant things as required and it was in this regulation that for the first time the Clause 10B was incorporated, that inter-alia is as follows:

10B. A student shall not be eligible to sit for the Part-I or Part-II examination as a regular candidate if He/she has not attended a minimum of 65% lectures delivered in each subject separately.

In Clause-11 (iv) it is incorporated as follows:

11(iv). Fulfilment of 65% of attendance at lectures delivered for each subject.

A candidate shall be sent up by the College as and when the form will be certified by the principal or Heads of the Department as follows:

(i) Eligibility of the candidates to appear at the examination.

(ii) Good conduct of the candidates.

(iii) Satisfactory progress of the candidates in studies during the course.

(iv) Fulfilment of 65% of attendance of lectures delivered for each subject.

As in this particular case the Petitioner did not have the requisite number of percentage of attendance, he was declared to be discollegiate and he was not sent up by College authority. Hence this writ application.

I have heard Shri C. Barua, learned Counsel for the Petitioner and Shri L.P. Sarma, learned Counsel for the Respondents Nos. 5 and 6 (University Authorities) and Shri K.H. Choudhury, learned Counsel for the Respondents Nos. 1 to 4.

Before I proposed further to decide this matter it may be stated herein that the Cotton College Authority did not adhere to the requirement of the regulations for T.D.C. B.A. course. They adopted their own procedure in the matter though it is doubtful whether they have such a power to deviate from the regulations. It is prescribed in Section 8 of the Regulation, it provides the minimum number of lectures to be delivered in General English. It is laid down that atleast 200 lectures shall be delivered. But only 140 numbers of lectures were delivered. So it did not adhere the regulations framed by the appropriate authority.

Shri K.H. Choudhury, learned Counsel for the College authority submits that the regulation is directory. It has no legs to stand upon because this regulation is absolutely mandatory in nature as it has laid down things to conduct the T.D.C. B.A. Course and a College authority is bound by that regulation. A College authority cannot adopt a different form of regulation/standard in case of sending up a student. If that is allowed that will create a chaotic situation, that is, what has happened in the instant case. Section 8-A of this regulation lays down how many number of lectures will be delivered in the College on the different subjects. The minimum number of lectures during the period of 2 years will be 200 in English. But in this particular case in Cotton College only 140 lectures were delivered. There is no explanation as to why the balance 60 lectures were not delivered. The College authority is expected to maintain certain amount of discipline. It cannot act according to its own decision. If that is allowed a College authority will deliver 2 or 3 lectures within the stipulated period. This is really a matter of pity. I hope that the College authority shall correct the situation and shall do the needful. In the report of the Education Commission 1964-66 it was stated "The destiny of India is now being shaped in her class rooms. This we believe it is no more rhetoric". Even Radhakrishnan Commission just after independence laid stress on increasing the number of working days and it was suggested at 180.

The next thing which is to be highlighted is that the University authority has prescribed the percentage of attendance and that is, 65% and it is also required that the College authority must issue a certificate testifying that the students have achieved the required percentage of attendance. But what is found in this particular case is that the College authority adopted a novel course adopting a resolution to the effect that the percentage of attendance for 2 years of T.D.C. were brought down to 30% and 20%. This resolution does not say where from the College authority got this power to pass such resolution deviating from the Regulation. The University is a body to lay down the conduct and other tilings for imparting education and the college authority had no bussiness to reduce it to 30% and 20%. That will also mean that the teacher will not take the minimum number of classes and they will arbitrarily without holding the minimum number of lectures shall reduce the number of attendance according to their sweet will. That cannot be done by the College authority in view of the regulation laid down by the University. That power has been given to the University and the College is bound by it. It is also not understood how the student can be sent up for examination stating that he attended 65% of the classes though really it is not so. In the affidavit by the University it is stated that the Gauhati University is not aware of any such resolution passed by the College authority and this power has not been given to the College to reduce the number of attendance. The College authority is directed in future not to do such thing and give an incorrect certificate to say the least in the examination form.

The next is whether the Petitioner is entitled to the relief sought for in this particular case. Shri C. Barua has placed reliance on the following decisions:

(i) Dr. J.P. Kulshreshtha and Others Vs. Chancellor, Allahabad University and Others, It has been vehemently urged by Shri K.H. Choudhury, the learned advocate for Respondents Nos. 1 to 4 that the decision to reduce the percentage taken by the College authority for the benefit of large section of student and that is a decision by an Expert Body. this Court should not interfere with a decision. On the other hand reliance is placed on the decision, wherein in paragraph 17, the Apex Court has laid down as follows:

Rulings of this Court were cited before us to hammer home the point that the Court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies. But University organs, for that matter any authority, in our system, is bound by the rule of law and cannot be a law unto itself. If the Chancellor or any other authority lesser in level decide an academic matter or an educational question, the Court keeps its hands off ; but where a provision of law has to be read and understood, it is not fair to keep the Court out. In Govinda Rao case Gajendragadkar, J. (as he then was) struck the right note:

What the High Court should have considered is whether the appointment made by Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinions expressed by the Board and its recommendations on which the Chancellor has acted. The later decisions cited before us broadly conform to the rule of caution sounded in Govinda Rao. But to respect an, authority is not to worship it unquestioning since the bhakti cult is inept in the critical field of law. In short while dealing with legal affairs which have an impact on academic bodies, the views of educational experts are entitled to great consideration but not to exclusive wisdom. Moreover, the present case is so simple that profound doctrines about academic autonomy have no place here.

The next case relied on by Shri C. Barua is 1990 (2) SCC 746 (Neelima Misra, Appellant v. Harinder Kaul Painter and Ors. Respondent), wherein paragraph 29, it has laid down the law as follows:

The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally, or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14. The principle of equality enshrined, in Article 14 must guide every state action, whether it be legislative, executive or quasi-judicial.

The next case relied on by Shri C. Barua is Amitabh Shrivastava Vs. State of Madhya Pradesh and Others, . That case is not relevant for the purpose of this case.

The next case is 1996 (2) GLJ 517:1997 (1) GLT 67 (Miss Lumbini Barua, Petitioner v. Cotton College and Ors. Respondents) wherein in paragraph-15 this Court laid down as follows:

When the authority exercise discretionary power it requires to apply its minds to the facts and circumstances of the case and if the conditions are not satisfied it will be a case of non-application of mind. The authority though might have acted bonafide the same will amount to mechanical exercise of power if it exercises that power without due care anil caution and without any sense of responsibility. In the words of Warrington LJ in RV Darlington School (1844) 60B 682):

''It may also possible that an act of public body, though performed in good faith and without any taint of corruption was so clearly founded on alien and irrelevant grounds as the outside the authority conferred upon the body and therefore inoperative.'' The exercise of power in this fashion will amount to fraud on power though not corrupt motive can be imputed.

Shri C. Barua relying on these decisions wanted to submit that this Court can exercise the power also in the field of education, once it is found that the decision taken by the authority was unreasonable and if it is found to be fraud in power. We will discuss later on that aspect of the matter. But before that let us have a look to the Clause 10B and 11 (iv) as quoted above. Shri Barua submits that the power to make provisions for qualifying the attendance as required is of Executive council that the Executive Council has not exercised the power. That power has not been given to the other authority and as such these two clauses of the Regulation should fall through, because regulations framed by the Academic Council will amount to usurping the power of the Executive Council and the Regulation framed is beyond the competence of Council. On the other hand Shri Sarma, learned Advocate for the University and Shri K.H. Choudhury, learned Advocate for the Respondents Nos. 1 and 4 urged that the power to regulate the requisite attendance can be framed by the Academic Council as Section 8 read with Section 25 provides for it, and in this connection Shri Choudhury relies on some decision wherein it is provided that if no rule is made in the field of service jurisprudence the executive instruction either to fill up the gap in recruitment rules and other things can be issued and in this connection he relies on : Sant Ram Sharma Vs. State of Rajasthan and Another, it is not necessary to go to that aspect of the matter as reading Section 14 along with Section 25 I find that the Academic Council has the power to frame the regulations and that regulation was in the field for a long time and as such, the contention of the learned Advocate for the Petitioner that the Academic Council was not competent to frame the regulation cannot be accepted. Competent means having capacity, ability or authority. If the source of power can be traced (as indicated above in the present case) the question of competency loses its relevance. The Academic Council must be held to have competence to frame the regulation from Section 14 read with Section 25 of the Act. Shri Choudhury relies on the following decisions:

(i) State of U.P. and Others Vs. D.K. Singh and Others, That was a case where the authority decided to start the session from a particular date. Some students filed an application before the Allahabad High Court for a direction that the authority be directed to hold class from an earlier date and not from the date fixed by the authority. The Allahabad High Court allowed the application. There was an appeal before the Apex Court and the Apex Court pointed out that the policy decision on academic nature should be best left to the University. A matter which has a bearing on the standard of education cannot be lightly proceeded and the Court should not play the role as an Expert in the field. Relying on this decision Shri Choudhury submits that the decision taken by the authority on this issue should not be touched. But Shri Choudhury forgets mat his client, mat is, the Cotton College authority did not adhere to the regulations of University and to give benefit to somebody it adopted its own rules and regulations in an arbitrary manner.

(ii) Krishna Priya Ganguly and Others Vs. University of Lucknow and Others, That was a case regarding admission to a medical college and the High Court allowed the writ application by giving good-bye to the rules framed by the Admission Committee. The Supreme Court pointed out that the rules framed by the Admission Committee was a matter of decision of the Academic Body and since the academic body framed the rules in a bonafide manner, there was no jurisdiction on the part of the High Court to interfere with the internal working of the Academic Institution concerned that imparted higher education. The Supreme Court pointed out that in such a matter the Court should not introduce its own opinion in such an academic matter. It was further pointed out that the Court was not competent and has no jurisdiction to import its own policy in such a matter.

(iii) Gyan Prakash Vs. Union of India (UOI) and Others, That was a case regarding an administrative policy and the Supreme Court pointed out that an administrative policy usually should not be subjected to the judicial review unless it is in violation of some of the provisions of the Constitution or law. This proposition of law has no bearing in the instant case.

(iv) State of Rajasthan Vs. Sevanivatra Karamchari Hitkari Samiti, That was a case of pension and there a particular date was fixed to give pension and the Supreme Court pointed out that cut off date has been fixed bonafide, it cannot be said to be arbitrary. Relying on this decision Shri Choudhury submits that the relaxations which were given by the College authority fixing the percentage of attendance is not unreasonable, and it was done for the interest of students. But he has failed to note that even the minimum number of lectures to be delivered as fixed by the University was not adhered to by the College authority and the authority bowed down to the unreasonable demand of the students just to placate them or to cover its own shortfalls.

(v) State of Orissa and another Vs. Radheyshyam Meher and others, That was a case with regard to the order of the authority to keep open certain Pharmacy in the vicinity of the Medical Colleges for 24 hours. That was challenged by the Pharmacists and the High Court quashed that order. There was an appeal before the Supreme Court and the Supreme Court pointed out that the intention of the State to keep open the medical stores cannot be deemed to be malafide and the High Court had no business to quash the decision of the State Government. This case also does not help the Cotton College authority. The Cotton College authority wanted to give undue benefit to some quarters in the garb of reducing the percentage of attendance as it failed to hold classes as prescribed. As indicated above they have no power to frame rules and regulations of their own and the Court cannot encourage the indiscipline and the College authority violated the regulations framed by the University which is squarely binding on it. This action of the College authority will encourage indiscipline and will amount to clear intention to avoid to do the duty imposed on them by statute or regulations.

(vi) J.R. Raghupathy and Others Vs. State of A.P. and Others, It is a case where the Supreme Court pointed out that when a decision of the authority is not unreasonable and unfair, the Court should not interfere with such a decision. This case need not detain us for a long time as I have already indicated above. If the decision of the authority is in violation of the regulations framed by the University and if a decision is taken in violation of the regulation, it cannot be urged that it is reasonable and fair decision. One can not give go-bye to the rules and urge that the action is just and proper. The College authorities do not have the power to make rules and while the competent authority framed the regulations the College authority could not have deviated from it.

From the decisions cited at the bar what can be said is that the Court should be slow to interfere with the decision taken by the academic authority. But at the same time the maxim of law is to amplify its remedies, and without usurping jurisdiction, to apply its rules, to the advancement of substantial justice. The principle upon which Courts act is to enforce the rights of a person and to administer justice to a person who can make out the claim, redress his grievance by enlarging the legal remedy if necessary in order to do justice. A decision of an educatioji body/institution may not be readily touched, the Court definitely should be slow in such a situation, but if it is absurd/perverse, against established principles of law, the Court is bound to step in. No absolute shelter can be afforded to such a decision. It is always undesirable to draw a hard and fast line limiting the power of the Court to do justice. No doubt the Court will exercise its discretion and that discretion as pointed out by Coke must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful, but legal and regular. The Judge must remember that undeserved sympathy brings more evils on its trail. It should further be borne in mind that no man can take help of his own wrong or default. If a man wants to enforce his right, he must perform his corresponding/co-related duty, as rights and duties are the both sides of the same coin. Clamour for right being oblivious of duty must notied tolerated with closed eyes, more so when a person claims equitable relief. A relief (equitable) which will have disruptive effect upon the educational system or will set at naught procedure or will encourage indiscipline must be refused. This institution is also accountable to the society at large and the broad requirements of the society cannot be thrown to the wind to grant relief to a person who does not adhere to the rules of the game. A Writ Court must not make a situation topsy turvy. One of the object of the education is to mould a disciplined citizen and make him conscious of his duties. A student has the duty to attend class as prescribed and without doing so he cannot make a tall claim to be sent up for examination. If that is allowed that will be a body blow to the system and procedure. The whole edifice will collapse. I do not feel pity for this student but can well conceive the misery and mental agony of the parents. But at the same time it is equally well settled that hard facts cannot make bad laws.

Here is a case, where a student attended only 21 classes out of 140 classes held as is evident from the affidavit-in-opposition filed by the Dean of the College and if he is allowed to be sent up for examination others also will make a bee line making such claim. A relief can be granted when the decision can be justified on principle and precept, it must be tested on the anvil of being just, it must be a decision according to ''Rule of law'' and not according to length of the foot of the Court. Relief is moulded by the Court to uphold the cause of justice and not to toy with according to individual whims and fancy. Justice sumps up all virtues in itself.

In that view of the matter, there is no merit in this writ application and it is dismissed.

Before I part with the record, I shall like to highlight some unsavoury things which have come to the notice of the Court in connection with this case. I give below these things and I direct with all humility at my command to take corrective measures.

The University authority by prescribing certain things in the regulation, closed its eyes and did not find out whether the College adhered to it or not. The minimum number of lectures were prescribed, the number of lectures to be attended by a student to be sent up for examination has been prescribed at 65%. But in Cotton College in English (the subject with which we are concerned) instead of delivering 200 minimum lectures only 140 classes were held and the percentage of attendance on the wisdom of the College authority has been brought down to 30% and 20%. The University simply feigned ignorance about it in their affidavit. The regulation as held earlier is mandatory in nature. Is it not the duty of the University to enforce and adhere to its own regulation ? The answer invariably is in positive. So in future the University shall direct each College to submit the class routines to it to find out and determine whether provisions have been made for classes as prescribed. The University shall also inspect the Colleges from time to time to determine whether classes are held or not. That will be a step for the betterment of the system as a whole.

The Cotton College is a premier institution of the State. It has a glorious past and certainly a glorious future. But because of erosion of work culture of few persons it should not be brought down to rags. It is a pity that even the minimum number of lectures were not delivered. Everyone bows before a teacher, pays respect to him, he occupies a place of honour in the society and certainly it will not be an illusory expectation to demand sincerity and dedication from him. May be because of ''Bundh'' and other things allotted classes may not be held, but it is highly desirable that teachers should make all attempts to reach the minimum target by holding classes on the available working days. One need not bury himself in the debris of erosion of work culture. The College has no power and business to bring down the percentage of attendance as prescribed by the University. The College must adhere to the regulation strictly. The action of the College authority in sending up students for examination with less than 65% attendance is in violation of Clause-11 of the Regulation, and to say the least is not a correct certificate, but a subterfuge.

Send a copy of this judgment to the D.P.I., Assam, Guwahati as well as Minister, Education, Government of Assam, Dispur, Guwahati-6, to apprise them of the position of the premier College of Assam.