Principal, Patna College, Patna, &
Ors Vs. Kalyan Srinivas Raman [1965] INSC 195 (24 September 1965)
24/09/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1966 AIR 707 1966 SCR (1) 974
CITATOR INFO:
RF 1968 SC 453 (8)
ACT:
Patna University Act, 1951 (2,5 of 1951), s. 34(b)--Regulations
framed under--Regulation 4 requiring 75% attendance in lectures, tutorials
and/or practicals in each subject-Percentage whether to be taken together in
all these or separately.
Certiorari--High Court when should interfere
with decision taken by educational authorities.
HEADNOTE:
The respondent who was d student in the
college of which the appellant was the Principal, was declared non-eligible to
appear at the B.A. Part I examination of the Patna University because his
attendance an Geography practicals was only 24% whereas the percentage required
under Regulation 4 framed by the Academic Council of the University was 75%. He
filed a writ petition under Art. 226 and obtained from the High Court interim
orders directing the authorities to allow him to appear at the examination.
On the merits the High Court held that under
Regulation 4 the percentage of attendance in lectures tutorials and/or practicals
in a particular subject had to be taken together and not separately and so
taken the respondent's percentage in the subject of Geography as a whole was
66%. The shortage being less than 15% it was open to the ViceChancellor under
Regulation 5 to condone it . The High Court therefore by a writ of certiorari
quashed the order of the first appellant declaring the respondent non-eligible
for appearing at the examination. and directed the authorities to refer the
question of condonation of shortage in attendance to the Vice-Chancellor and if
it was condoned to declare respondent's result. The appellants came to thin
Court against this order by special leave.
HELD: (i) The requirement of 75% attendance
in lectures tutorials and practicals has to be read disjunctively and not by
taking them all together. Otherwise it will be possible for a student in
certain subjects to complete the percentage required by attending all the
lectures and no tutorials at. all. This could not be the intention in framing
the Regulation and would not be in keeping with the methodology of modern
education which lays great stress on tutorial and practical work. [980 G; 981F]
(ii) It is true that the second clause of Regulation 4 requires that the
percentage in question shall be calculated on the total number of lectures,
tutorials and practicals delivered and provided during the session; but the
provision is in the nature of a mere corollary to the main provision prescribed
by Regulation 4, and if the requirement as to 75% attendance has been
prescribed separately in relation to lectures. tutorials and/or practicals the
second clause must be read accordingly. Thus read it only means that when the
percentage is determined with reference to lectures, tutorials and practicals
what has to be taken into account is the total number of lectures delivered, or
tutorials or practicals held during the session. [981 G, H] 975 (iii) the
petitioner filed his petition under Art. 226 only on the evening before the
examination had to begin although he could have filed it earlier. In the
circumstances it would have been better if the High Court hadnot passed interim
orders. Even on the merits, where the question is One of interpreting a
regulation framed by the Academic council of a University the High Court should
ordinarily be reluctant to issue a writ of certiorari where it is plain that a
regulation is capable of two constructions and it would generally not be
expedient to reverse a decision of the educational authorities on the ground
that the construction placed by the said authorities on the relevant
regulations appears to the High Court less reasonable than the alternative
construction which it is pleased to accept. [985 B-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 743 of 1965.
Appeal by special leave from the judgment and
order dated may 14, 1965 of the Patna High Court in Civil Writ Jurisdiction
Case No. 345 of 1965.
C.K. Daphtary, Attorney-General, R. N. Sinha
and S. P. Varma, for the appellants.
Basudev Prasad, K. Rajendra Chaudhri, and K.
R. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. This appeal raises a short question about the construction
of Regulation 4 of the Regulations framed by the Academic Council of appellant
No. 3, the Patna University, under S. 34(b) of the Patna University Act, 1951
(Bihar Act XXV of 1951). The respondent Kalyan Srinivas Raman was a student who
appeared at and passed the test examination held by the Patna College for
sending up students for the University examination B.A. Part 1. His name was
shown in the list of candidates who were eligible to appear for the said
University Examination and this list was published on March 26, 1965 by the
college authorities.
On March 29, 1965, however, a notice was put
up on the notice-board by appellant No. 1, the Principal of the Patna College,
indicating that the respondent was not eligible to be sent up for the said
University Examination, 1965 and that his roll number had been included in the
list published earlier due to a clerical mistake. The respondent felt aggrieved
by this notice and filed a writ petition in the Patna High Court on Sunday, the
18th April, 1965 and presented it to the learned Chief Justice of the High
Court at his residence. By this writ petition, the respondent prayed for a writ
of mandamus, or for any appropriate order or direction for quashing and
canceling the notice issued by appellant No. 1 on the 29th March, 1965;
976 he further prayed for an appropriate
order or direction to appellant No. 1; the Vice-Chancellor of the Patna
University, appellant No. 2; and appellant No. 3 to permit him to appear at the
said University Examination.
The learned Chief Justice received the writ
petition and directed that the same should be heard by a Bench of two Hon'ble
Judges of the said High Court at night.
Accordingly, the Division Bench heard the
said writ petition at the residence of one of the two learned Judges and passed
an interim order admitting the writ petition and directing.
that pending its hearing, the respondent
should be permitted to appear at the said Examination, but that his result
should not be published until disposal of his application.
It appears that the writ petition itself had
not been sworn to andno vakalatnama had been filed when it was presented to the
learned Chief Justice and was subsequently admitted by the Division Bench.
After passing the interim order, the Division Bench directed that the
respondent could get the affidavit sworn and vakalatnama filed the next day.
In obedience to the said interim order,
appellant No. 1 forwarded the respondent's application to appellant No. 3,
though he made it clear that the respondent had not attended adequate number of
practical classes and his record of practical work was not satisfactory and as
such, be did not fulfill the requirements of the relevant Regulations. As a
consequence, the respondent was allowed to appear at the said Examination.
The appellants then appeared before the High
Court and resisted the respondent's claim. They urged that the relevant
Regulations did not justify the respondent's contention that he was eligible to
appear at the said Examination and they contended that the impugned notice
issued by appellant No. 1 was fully justified.
The learned Judges who heard the writ
petition have, however, rejected the contentions raised by the appellants in
regard to the construction of the relevant regulations and have held that under
the said regulations, it was obligatory on appellant No. 2 to have considered
the question whether the deficiency in the respondent's attendance in the
practicals of Geography should be condoned or not. That is why the High Court
has directed that a writ in the nature of certiorari should be issued to quash
the impugned notice, and that a writ in the nature of mandamus should be issued
to the appellants directing them to act in accordance with regulation 5 in the
light of the construction placed 977 by the High Court on the said regulation.
The High Court has also ordered that if the shortage in the respondent's
attendance was condoned by appellant No. 2, the respondent's result in the
examination which he had taken under the interim order of the Court will be
published; otherwise his appearance at the said examination will have to be
ignored.
It is against this order that the appellants
have come to this Court by special leave; and so, the principal point which
arises for our decision in the present appeal is whether the High Court his
properly construed Regulation 4.
The relevant facts are not in dispute. In
Geography, the respondent attended 73 out of 93 lectures, 15 out of 20
tutorials, and 6 out of 25 practicals. His percentage of attendance taken
separately was 75, 75, and 24; but if the said percentage was taken together,
it would come to 66.
The respondent's case was that under Reg. 4,
he is required to keep at least 75 per cent attendance at lectures, tutorials
and practicals all taken together, and that the requirement of 75 per cent
attendance has not to be satisfied disjunctively by reference to lectures,
tutorials and practicals. -On the other hand, the appellants argued that the
requirement of about 75% attendance has to be satisfied by a candidate in
reference to lectures, tutorials and practicals taken separately, and not collectively;
and unless that requirement is satisfied, the student does not become eligible
to appear for the examination, subject to this that the shortage in attendance
may be condoned as provided by the relevant regulations and in that case, the
student may be permitted to appear at the examination. It is common ground that
if the interpretation for which the appellants contend is accepted, the notice
issued by appellant No. 1 would be valid; on the other hand, if the
interpretation for which the respondent contends is upheld, the order passed by
the High Court could not seriously be challenged, because on the construction
suggested by the respondent and accepted by the High Court, the shortage in
attendance, which is proved, could have been condoned by the Vice-Chancellor if
he thought it fair and reasonable to do so'; and it is not disputed that the
matter about condoning the shortage in attendance of the respondent was not
referred to the Vice-Chancellor and he has not decided the question as to
whether the said shortage should be condoned.
Let us, therefore, proceed to construe
Regulation 4. The Academic Council of appellant No. 3 is an authority whose
powers and duties have been defined by s. 22 of the Patna University Act; these
include the power of superintendence and control over Sip. C. T./65-19 978
maintenance of standards of instruction and education. The said Council is
authorised by S. 34 to make regulations about the conditions under which a
student shall be admitted to the Decree or Diploma Course and to the
examinations of the University and shall be eligible for Degrees and Diplomas.
It is in pursuance of the powers thus conferred on the Academic Council that
the relevant Regulations have been framed. These Regulations were brought into
force on the 23rd January, 1961.
Regulation 1 deals with lectures, tutorial
instruction and practical work. It provides that a college or a University
Department or an Institute shall provide for the delivery of at least so many
lectures and so many periods of tutorial instruction and practical work as may
be fixed by the Academic Council from time to time for students who are
admitted in that College or the University Department or the Institute. Proviso
(1)((1) to the said Regulation,lo lays down that in the Faculties of Arts,
Science an(,' Commerce, in any subject in which practical examination ha,,,
been prescribed, there shall be at least one practical class of two periods'
duration in the Pre-University class. For the B.A. and B.Sc. examinations in
which practical examination is Described, there shall be in each year two
practical classes per week each of two periods' duration. Proviso (40 to Reg. I
requires that except as provided in (1)(a) & (d) of this Regulation, in all
Faculties in subjects in which practical work is prescribed, every student
shall be required to do practical workprescribed by the Academic Council,
regularly and under proper supervision and the number of lectures and hours of
practical, work for each subject shall be fixed by the Academic Council after
considering the recommendations of the Faculty concerned.
This Regulation clearly brings out the fact
that the Academic Council attaches Considerable importance to the practical
workand the tutorial,; along with the lectures, and provides that the student
has to attend not only the lectures delivered, but has to do the practical work
and to attend tutorials.
Regulation No. 4 which falls to be construed
in the present appeal reads thus :"Every candidate, presented by a College
or a University Department at any University examination shall be required to
complete the regular course of study, prescribed by these regulations, in each
subject which he offers for the examination. No student shall be considered to
have completed the regular course of study in any subject unless he has
attended at least 979 seventy-five per cent of the lectures, tutorials and/or
practicals, as the case may be, delivered or provided in that subject, in one
or more colleges or University Departments admitted in that subject, and has
devoted due attention to that part of the course which consists of tutorial
instruction or practical work.
The percentage, specified above, shall be
calculated on the total number of lectures, tutorials and practicals delivered
or provided during the session".
Regulation No. 5 deals with the question of
condoning shortage in attendance; it reads thus :"In case of serious
illness or other unavoidable circumstances, a shortage of attendance at
lectures, tutorials and practicals to the extent of fifteen per cent may be
condoned.
Shortages up to five per cent shall be
considered and may, in suitable circumstances, be condoned by the Principal of
a College or the Head of a University Department or the Director of the
Institute or the Head of the Institution concerned.
Shortages exceeding five per cent but not
exceeding fifteen per cent shall be considered and may, in suitable
circumstances, be condoned by the Vice Chancellor".
The last regulation to which reference must
be made is regulation No. 7; it reads thus Every candidate for each University
Examination shall produce a certificate from the Principal of the College, the
head of the University Department or the Institute concerned of (a) good
conduct, (b) completion of the regular course of study, (e) having fulfilled
the prescribed requirements regarding attendance at lectures, tutorials and
practicals, and (d) satisfactory record of tutorial and/or practical
work".
In dealing with Reg. 4, it is necessary to
bear in mind two broad considerations. The first consideration is that the
modern methodology of education in all civilised countries attache,,;
considerable importance to the tutorials and the practical work done by the
student in addition to attending lectures. The tendency in modern times is to
bring the students into direct per980 sonal contact with the tutors so as to
enable the tutors to guide and coach the students individually as far as may be
possible. For that purpose, small groups of students are formed who are placed
under different tutors for different subjects. The importance of practicals has
also been wellrecognised and education does no longer depend merely upon
lectures as it used to do at one time in our country. The second consideration
which may not be Irrelevant is that ever since the present regulations were
brought into force in 1961, appellant No. 3 and colleges within its
jurisdiction appear to have consistently interpreted Re-. 4 in the manner
suggested by appellant No. 3. It is of course true that the two considerations
to which we have just referred cannot materially govern the construction of the
regulation; that must inevitably depend upon the words used by the regulation
itself; but in interpreting the words, these two considerations may not be treated
as irrelevant.
The appellants contend that the High Court
was in error in holding that the requirement of about 75% attendance had to be
considered collectively by taking, the lectures, tutorials and/or practicals
together. Their case is that the said requirement applies to lectures,
tutorials and/or practicals separately. It is plain that the words
"and/or" have been used in the regulation, because in some subjects
both tutorials and practicals are prescribed, whereas in some others either
tutorials or practicals are prescribed;
and so, the effect of the words
"and/or" is that where tutorials and practicals are both prescribed,
the requirement of 75% attendance has to be satisfied in reference to each one
of them; where, however, either tutorials or practicals are prescribed, the
said requirement has to be satisfied by reference to either ,lie tutorials or
the practicals whichever may have been prescribed in a given subject. The High
Court has, no doubt, made in emphatic finding that the relevant words used in
this regulation admit of only one construction, and that is that the
requirement of 75% attendance has to be judged by reference to lectures,
tutorials and/or practicals all taken together.
We are unable to agree. It seems to us that
in the context, it is more reasonable to hold that the said requirement must be
read disjunctively; and so, it must be satisfied by the student by reference to
lectures, tutorials and/or practices as the case may be.
In construing Reg. 4, we must have regard to
the fact that the last part of the Regulation requires that the student must
have devoted due attention to that part of the course which consists of
tutorial instruction or practical work;
and this requirement necessarily postulates
that the student has to do some practical work and has to receive tutorial
instruction.
The requirement of Reg,. 7 also emphasises
the fact that every student who can be said to have completed the regular
course of study as prescribed by Reg. 4, must satisfy the requirement as to
attendance at lectures, tutorials and practicals and must claim satisfactory
record of tutorial and/or practical work. Reg. 7(d) which we have already
cited, emphasizes, as does the last portion of Reg. 4, that every student has
to do tutorials and/or practical work, as the case may be. In other words,
where tutorials and practicals are both prescribed, the student must not only
do tutorials and practicals, but must have satisfactory record in that behalf.
Where tutorials or practicals are prescribed, a similar test has to be
satisfied.
In view of this position, it seems somewhat
difficult to accept the correctness of the conclusion reached by the High Court
that the requirement of about 750% attendance must be taken collectively. It is
clear that if the said requirement is read collectively, a student may be
entitled to claim to have completed the regular course of study without
attending any single practical or tutorial, as the case may be, if he has
attended all the lectures in a given subject. Take, for instance, the case of
English, History, or Political Science in the group for which the respondent
was studying. It is not disputed by Mr. Basudev Prasad that in these subjects
theoretically, it would be open to the student to attend the maximum number of
lectures and not to do any tutorial at all. In other words, the construction
placed by the High Court upon Reg. 4 leads to this unreasonable consequence
that attendance at the lectures alone may, in a given case, entitle a student
to appear for the examination, though he may have done no tutorial at all. In
our opinion, this could not have been the intention of the regulation. It is
true that the second clause of Reg 4 requires that the percentage in question
shall be calculated on the total number of lectures, tutorials and practicals
delivered or provided during the session; but this provision is in the nature
of a mere corollary to the main provision prescribed by regulation 4, and if
the requirement as to 75% attendance has been prescribed separately in relation
to lectures, tutorials and/or practicals, the second clause in question must be
read accordingly. Thus read, it only means that when the percentage is
determined in reference to lectures, tutorials and practicals, what has to be
taken into account is the total number of lectures delivered, or tutorials and
practicals held during the session in question. We have carefully 982
considered the reasons given by the High Court in support of its conclusion,
but we are not satisfied that those reasons justify the construction which the
High Court has placed on the material words used in Reg. 4.
The High Court appears to have taken the view
that its conclusion about the effect of Reg. 4 is supported by the old
regulation which was superseded in 1961. The old regulation was 1(7); it read
thus "1. A College or a University Department admitted in any University
examination shall provide for the delivery of at least so many lectures and for
at least so many periods of tutorial instruction and practical work as may be
fixed by the Academic Council from time to time for students who take Lip that
subject, provided that(7)in order to qualify to appear at any of the University
examinations in any Faculty a candidate shall be required(i) to attend at least
75 per cent of the lectures delivered in each subject offered by him for such
University examination, (ii)to attend in each subject at least 75 per cent of
the tutorials classes, of the Moot Courts and of the practical classes, as the
case may be;
(iii)in the case of I.A., I.Sc., I.Com.,
B.A., B.Sc., and B.Com. examinations, to secure marks not less than 25 per cent
out of the total marks of 3 periodical examinations in each subject within two
years, subject to the condition that a candidate should secure 20 per cent of
the marks allotted for the practical examination.
Regulation 5 of the said old Regulations
reads thus "(1) No student shall be considered to have completed the
regular course of study in any subject for the I.A., I.Sc., I.Com., B.A.,
B.Sc., and B.Com. examinations unless he has satisfied the conditions laid down
in clause 7 of regulation 1 of this Chapter and ,or examinations other than
these, unless he has attended at least 75 per cent of the lectures, tutorials
and practicals, as the case may be, delivered in that subject, in one or more
Colleges or University Departments admitted in that subject, and has devoted
due attention to that part of the course which consists of tutorial instruction
or practical work;
(2)The percentage, specified in clause (1),
shall be calculated on the total number of lectures delivered during the
prescribed session".
It would be noticed that under Reg. 1(7) read
with Reg. 5 of the old Regulations, the position was that with regard to the
examinations specified in the first part of Reg. 5 (1), the requirement as to
75% attendance was expressly specified separately in reference to the lectures,
tutorial classes, Moot Courts, and the practical classes, as the case may be.
Sub-clauses (i) & (ii) of cl. (7) of Reg.
1 are quite clear and unambiguous in that behalf. with regard to the other
examinations falling under the latter part of Re-. 5(1), however, the position
was that Reg. 1(7) was not made applicable to them just as it was made
applicable to the examinations mentioned in the first part; and so, Reg. 5(1)
compendiously prescribes the requirement as to 75% by putting the lectures,
tutorials and practicals all together.
The context shows that the requirement as to
75% attendance by reference to the lectures, tutorials and practicals which is
prescribed for this latter category of examinations, was not of a different
character at all. This requirement bad to be satisfied by reference to each one
of them, viz., the lectures, tutorials and practicals as the case may be.
Instead of repeating sub-clauses (i) &
(ii) of Reg. 1(7), Reg. 5(1) merely for the sake of convenience, has compressed
the said two clauses into one clause; and so, we think the High Court was in
error in assuming that under the old regulations with regard to this latter
class of examinations, the requirement as to 75% attendance was in any way
different from the same requirement in regard to the examinations mention-Id in
the first part of the said regulation.
But assuming for the sake of argument that
the said requirement was different in regard to the latter category of
examinations'. it is not easy to see how that can support the conclusion that
the present Reg. 4 has assimilated all the examinations to the said latter
class of examinations in Reg. 5 (1 ) by prescribing that 984 75% attendance
need not be in relation to the lectures, tutorials and practicals separately,
but should be in relation to all the three taken collectively. In our opinion,
having regard to the context, it would be more reasonable to hold that the
present regulation, prescribes the requirement as to 75% attendance in
lectures, tutorials and/or practicals separately in relation to all the examinations.
Mr. Basudev Prasad has sought to rely on
regulation 9 contained in Chapter VI of the Examination Regulations which deal
with B.A. Part I Examination of the Three-year Degree Course in Arts. The said
regulation provides that in order to pass the Degreepart I examination, a
candidate must obtain not less than 30 percent of the total marks in each
subject and 33 percent the aggregate. He argues that the provision of Re-. 9
would support the respondent's case that it could not have been the intention
of Regulation 4 to require that the regular course of Study contemplated by it
postulates 75 per cent attendance at lectures tutorials and/or practicals taken
severally and not conjointly. We are unable to see how the provision made by
Reg. 9 dealing with the examinations can be material in construing the words
used in Reg. 4. Therefore, we do not think Mr. Basudev Prasad is right in
contending that Reg. 9 of the Examination Regulations Supports the respondent's
case.
It appears that before the writ petition was
filed by the respondent in the present case, his father Mr. C. K. Raman,
I.C.S., wrote a long letter on April 11, 1965 to appellant No. 1 inviting him
to reconsider his decision in the case of his son and to allow his son to take
the University examination in question. In this long communication which is
argumentative, the respondent's father has adopted a tone which indicates that
he attempted to throw his weight about in persuading appellant No. 1 to cancel
the impugned notice.
Appellant No. 1 promptly replied to the said
communication and informed the respondent's father that he had referred the
case of the respondent to the Vice-Chancellor with a statement of his
attendance together with his letter for such action as he thought best under
the circumstances.
Appellant No. 1 added that the
Vice-Chancellor had decided that it was not possible to accept the request made
by the respondent's father as the University regulations did not permit the
same.
It would be recalled that the impugned notice
was published on March 29, 1.965, and the letter written by the respondents
father on the 11th April was replied by appellant No. 1 on the 985 12th April.
Even so, the respondent did not file his writ petition until Sunday, the 18th
April; and as we have already mentioned, the writ petition was presented at the
bungalow of the Chief Justice and was heard for admission and interim orders on
Sunday night. It is true that if justice demands that the Court should receive
a petition even on Sunday, the Court should and ought to accept the petition;
but having regard to the fact that the petitioner postponed the filing of the
application until Sunday ( 18-41965) night, and other relevant circumstances to
which we have already adverted, we think it would have been better if the High
Court had not passed an interim order on the said night as it has done. It is
hardly necessary to emphasise that in dealing with matters relating to orders
passed by authorities of educational institutions under Art. 226 of the
Constitution, the High Court should normally be very slow to pass ex parts interim
orders,. because matters falling within the jurisdiction of the educational
authorities should normally be left to their decision, and the High Court
should interfere with them only when it thinks it must do so in the interests
of justice. Even on the merits, we think we ought to point out that where the
question involved is one of interpreting a regulation framed by the Academic
Council of a University, the High Court should ordinarily be reluctant to issue
a writ of certiorari where it is plain that the regulation in question is
capable of two constructions, and it would generally not be expedient for the
High Court to reverse a decision of the educational authorities on the ground
that the construction placed by the said authorities on the relevant regulation
appears to the Hi Court less reasonable than the alternative construction which
it is pleased to accept. The limits of the High Court's jurisdiction to issue a
writ of certiorari are well-recognised and it is, on the whole, desirable that
the requirements prescribed by judicial decisions in the exercise of writ
jurisdiction in dealing with such matters should be carefully borne in mind.
In the result, the appeal is allowed, the
order passed by the% High Court is set aside and the writ petition filed by the
respondent is dismissed. Under the unusual circumstances of this case, we
direct that the respondent should pay the costs of the appellants throughout.
Appeal allowed..
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