# Kumar Gandrva and others v. The Principal, Madan Mohan Malviya Engineering College, Gorakhpur and others

- **Citation:** (2003) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-04
- **Case number:** Civil Misc. Writ Petition No. 27582 of 2002
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-gandrva-and-others-v-the-principal-madan-mohan-malviya-engineering-40049
- **Pages:** 7

## Headnote

Constitution of India, Article 226 -
Education of B. Ech - Ist year- not
permitted to appear in examination on
the pretext- shortage of attendance than
60%-
pursuant
to
interim
order-
permitted to appear in IInd semester-
direction issued to declare the result -
circular dated 30.5.2002 not brought to
the knowledge of the college concern- in
similar circumstances other student less
then 60% attendance- already permitted
to appear in further examination but
debarring petitioner- held- arbitrary.

Held- Para 15

Court at the time of initial hearing of the
matter has permitted the petitioners to
appear in their respective examinations
of
IInd
semester
and
now
on
examination of the fact it is a clear case
in which it can be safely said that the
respondents have acted in an arbitrary
and
discriminatory
manner,
the
petitioners are entitled to get relief from
this Court so prayed in this petition. At
the same time it will be also the concern
of the Vice Chancellor, U.P. Technical
University who has issued the circular
dated 30.5.2002 reference of which has
come in the preceding paragraphs to
again issue circular to the concerned
institution under its control to do the
needful
in
furtherance
to
earlier
instructions which is clearly bonafide,
pious and in the best interest of the
students at large who are the future of
our society.
Case law discussed:
1987 UPLBEC-517,
JT 2000 (10) SC -216,
AIR 1995 SC-705
W.P.No. 8426 /02 decided on 25.2.2002

## Text

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1 All] Kumar Gandrva & others Vs. The Principal, M.M.M. Eng. College, Gorakhpur & ors.
17
argument of the learned counsel cannot be
accepted. There is unrebutted statement of
the opposite party and Sri Mohan Lal.
Their
statements
have
not
been
challenged in the cross-examination and
no evidence was produced in rebuttal. The
notice of the opposite party was not
replied.

Therefore, the learned trial court
rightly believed the unrebutted evidence
of the opposite party.

18. I do not find any ground to
interfere in the judgment and decree of
the trial court.

19. The revision fails and is hereby
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.12.2002

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 27582 of 2002

Kumar Gandrva and others ...Petitioners
Versus
The Principal, Madan Mohan Malviya
Engineering
College,
Gorakhpur
and
others

 ...Respondents

Counsel for the Petitioner:
Sri H.R. Misra

Counsel for the Respondents:
Sri Rakesh Upadhyaya
Sri Neeraj Tiwari

Constitution of India, Article 226 -
Education of B. Ech - Ist year- not
permitted to appear in examination on
the pretext- shortage of attendance than
60%-
pursuant
to
interim
order-
permitted to appear in IInd semester-
direction issued to declare the result -
circular dated 30.5.2002 not brought to
the knowledge of the college concern- in
similar circumstances other student less
then 60% attendance- already permitted
to appear in further examination but
debarring petitioner- held- arbitrary.

Held- Para 15

Court at the time of initial hearing of the
matter has permitted the petitioners to
appear in their respective examinations
of
IInd
semester
and
now
on
examination of the fact it is a clear case
in which it can be safely said that the
respondents have acted in an arbitrary
and
discriminatory
manner,
the
petitioners are entitled to get relief from
this Court so prayed in this petition. At
the same time it will be also the concern
of the Vice Chancellor, U.P. Technical
University who has issued the circular
dated 30.5.2002 reference of which has
come in the preceding paragraphs to
again issue circular to the concerned
institution under its control to do the
needful
in
furtherance
to
earlier
instructions which is clearly bonafide,
pious and in the best interest of the
students at large who are the future of
our society.
Case law discussed:
1987 UPLBEC-517,
JT 2000 (10) SC -216,
AIR 1995 SC-705
W.P.No. 8426 /02 decided on 25.2.2002

(Delivered by Hon'ble S.K. Singh, J.)

1. The prayer in this petition is for
issuance of writ in the nature of
mandamus commanding the respondents
to permit the petitioners to appear in the
examination of II Semester of B. Tech. Ist
year which has already commenced and
further to permit the petitioners to appear
in
the
examinations
of
those
subjects/papers of the aforesaid Semester
in which they could not appear. There is
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18 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
another prayer for issuance of writ in the
nature of certiorari quashing the notice
dated 7.7.2002 (annexure no. 1 to the writ
petition) so far as it relates to the
petitioners.

2. As the pleading between the
parties is complete, as prayed matter has
been heard and is being decided on
merits.

3. Pleading as has been set forth in
the
writ
petition,
counter
affidavit,
rejoinder
affidavit,
supplementary
affidavit
and
supplementary
counter
affidavits have been examined.

4. Heard Sri H.R. Mishra, learned
Advocate
who
appeared
for
the
petitioners,
Sri
Ramesh
Upadhyaya,
learned Advocate who appeared for the
respondents 1/2 Sri Neeraj Tiwari, learned
Advocate
who
appeared
for
the
respondent no. 3.

5. The question which emerges on
the pleadings and during submission of
the counsel for the parties which requires
attention of the Court is that whether in
the facts of the present case the
respondents
1/2
in
debarring
the
petitioners
from
appearing
in
the
examination in question has taken correct
decision? The facts of the present case
runs in very norrow campass and for the
purpose of adjudication they can be
summarized thus. All the petitioners
happen to be regular students of B. Tech.
Ist year (II Semester) in Madan Mohan
Malviya Engineering College, Gorakhpur
(hereinafter referred to as the college). It
appears that petitioners were required to
secure at least 60% attendance for being
permitted to appear in the examination
and as the petitioners lacked, the
impugned exercise by the respondents 1/2
came
into
existence
making
the
petitioners aggrieved to approach this
Court.

6.

Learned
counsel
for
the
petitioners submits that action on the part
of the respondents in debarring the
petitioners from appearing in the II
semester examination besides illegal,
unjust is also arbitrary and discriminatory.
It is pointed out that the respondents 1/2
were required to take precaution and to
ensure
the
required
percentage
of
attendance, and they were required to
intimate the students in the end of the
month and also to make a query about the
reasons of their absence and in the event
the student do not take care, the parents
were required to be informed. It is argued
that inspite of the circular/letters issued by
the Vice Chancellor of the U.P. Technical
University, as no such steps were
undertaken, the action on the part of the
respondents in debarring the petitioner is
not justified.

7. Learned counsel further submits
that even otherwise also the respondents
in the similar set of facts have permitted
several students similarly situated, to
appear in their respective examination
whose attendance was less than 60%
cannot be permitted to act in the
discriminatory manner by debarring the
petitioners.

8. Learned counsel who appeared
for the respondents 1 and 2 in response to
the aforesaid submission submits that as
the petitioners have not secured the
required attendance , they cannot claim as
a matter of right permission to appear in
the examination and the action on the part
of the respondents being in conformity
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1 All] Kumar Gandrva & others Vs. The Principal, M.M.M. Eng. College, Gorakhpur & ors.
19
with the Rules in this respect, petitioners
are not entitled to get any relief. It is
further argued that the information which
is to be given to the petitioners or to their
parents in respect to the shortage of their
attendance as argued by the learned
counsel on the basis of circular issued by
the U.P. Technical University cannot give
strength to their claim as the said circular
has no statutory force. Learned counsel
further submits that only two students
were permitted to appear in their
respective examinations although they
could not secure required percentage of
attendance but it was on undertaking
given by them, that in the event they do
not improve in the subsequent semester
they will not be permitted to continue.

9. Learned counsel who appeared
for the respondent no. 3 submits that so
far the respondent no. 3 is concerned it
has no major role in the matter as it is on
receipt of the list of the students they just
release/issue admit cards to the college
and it is to be issued by the college to the
students after verifying their required
attendance and other formalities subject to
which the admit card is to be issued to
students. Learned counsel submits that so
for the issuance of circular by the Vice
Chancellor of the Technical University, as
argued by the learned counsel for the
petitioners, is concerned, that appears to
have been issued in the interest and
welfare of the students at large and
although that have no statutory force, as
the Vice Chancellor has issued the same
in the interest of discipline that should
have been taken care of, although the
petitioners cannot insist for any relief in
the event the respondents 1/2 have not
adhered to the instructions so contained in
the said circular. Learned counsel for the
respondent no. 3 further submits that on
the facts of the present case, petitioners
are not entitled to get any relief and the
petitioners cannot compel the authorities
to condone shortage in attendance and
even on the plea of discrimination , no
relief is to be given o them. In support of
his submission learned counsel has placed
reliance upon the decisions as has been
reported in 1987 UPLBEC 517 (Parvez
Ahmad and others vs. Aligarh Muslim
University, Aligarh and others) JT 2000
(10) SC 216 (Regional Engineering
College, Hamirpur and another vs.
Ashutosh Pandey) and AIR 1995 SC 705
(Chandigarh
Administration
and
another vs. Jagjit Singh and another),
Learned counsel has further placed
reliance on the decisions given in Civil
Misc. Writ Petition No. 8426 of 2002
Ankur Sharma Vs. The Examination
Controller and another; decided on
25.2.2002, Civil Misc. Writ Petition No.
21110 of 2002 Abu Rehan vs. Aligarh
Muslim University, Aligarh and others
decided on 8.8.2002 and Civil Misc. Writ
Petition No. 14253 of 2002 Pushpendra
Singh vs. Aligarh Muslim University,
Aligarh and others decided on 5.7.2002.

10. In view of the aforesaid
submission as has come on the record
there appears to be dispute about the fact
that the petitioners could not secure the
required percentage of attendance. Now
the question is that whether this Court is
to condone the shortage in attendance or
even to give a direction to the concerned
authority to do the same. The question
appears to have been settled as is clear
from several decisions as has been placed
by the learned counsel who appears on
behalf of the respondent no. 3. It has been
held by the learned Single Judge of this
Court in the case of Ankur Sharma
(supra) that in the event due to shortage of
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20 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
attendance University or the college
refused to allow the student to appear in
the examination such decision should not
be interfered with by the court, on
idealistic, sentimental suggestions made
by the counsel. Observation in this respect
as is contained in this respect in the
aforesaid decision is quoted as under :-

"If due to shortage of attendance the
University and college refused to allow
these
students
to
appear
in
the
examination due to shortage of their
attendance, then such decision should not
be interfered with by this Court on
Idealistic sentimental suggestions made
by the learned counsel for the petitioners
during the course of his argument."

11. In another decision given by this
Court in the case of Pushpendra Singh
(supra) the same view has been taken.
Observation as has been made in the
aforesaid judgment is hereby quoted :

"the
extent
to
which
general
condonation of shortage of attendance
would be granted is a matter essentially of
the Academic Counsel to decide upon
various factors. In the writ petition there
is no averment, which may indicate that
the decision of the Academic Counsel
fixing the ceiling of general condonation
of shortage attendance was arbitrary.

12. Following the decision as has
been given in the case of Pushpendra
Singh (supra) this Court in another writ
petition filed by Abu Rehan (supra) has
taken the same view. In another decision
as has been given by the Division Bench
of our own court in the case of Parvez
Ahmad (supra) it has been laid down that
rule of prudence requires that Court
should hesitate to dislodge decisions of
the academic body. The Apex court in the
decision given in the case of Regional
Engineering
College,
Hamirpur
and
another (supra) has also ruled that the
principal has no power to condone
shortage of attendance and in another
decision of the Apex court as given in the
case of Chandigarh Administration and
another Vs. Jagajit Singh and another
(supra) it has been laid down that even on
the ground of discrimination petitioner
cannot be entitled to get the relief.

13. On a scrutiny and analysis of the
aforesaid cases as has been referred by the
learned counsel who appears for the
respondent no. 3 there appears to be
distinction in so far as the facts of the
present case are concerned which is being
discussed hereinafter and thus in the light
of the distinction which is being drown,
any hurdle may not come in the way of
the petitioners. In view of the various
decisions, reference of which has been
given above, it appears that the Apex
Court as well as this Court has approved
the decision of the academic bodies in the
matter of condonation of shortage of
attendance and has given preference to
their views but at the same time the court
should not feel that the decisions so taken
by the concerned authorities in any
manner is arbitrary and discriminatory
and thus in the event the interference is
required that should not be only on the
basis
of
idealistic
and
sentimental
suggestions. It is thus clear, on the
examination of the facts of all the cases
referred above that in the event the action
of the concerned authorities if is found
arbitrary or discriminatory the court can
always take note of and can issue
appropriate orders. Various observations
laying down the guidelines on the subject
as are contained in the judgments referred
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1 All] Kumar Gandrva & others Vs. The Principal, M.M.M. Eng. College, Gorakhpur & ors.
21
above, for arriving at this conclusion and
for taking this view in this judgment will
be useful to be quoted here in sequence :

"then such decision should not be
interfered with by this court on idealistic,
sentimental suggestions made by the
learned counsel for the petitioner during
the course of his argument." (Civil Misc.
Writ Petition No. 8426 of 2002).

"On the facts and circumstances, it cannot
be said that the exercise by the
respondents
is
arbitrary
and
discriminatory in any manner." (Civil
Misc. Writ Petition No. 21110 of 2002).

"In the present case the petitioner neither
pleaded nor proved such discrimination."
(Civil Misc. Writ Petition No. 14253 of
2002).

"In the instant case the petitioner failed to
establish
that
they
have
been
discriminated by the respondents and that
the treatment meted out to them in the
matter of conditions is not uniform."
(1987 UPLBEC 517).

"In the order in favour of the other person
is found to be contrary to law or not
warranted in the facts and circumstances
of the case, it is obvious that such illegal
or unwarranted order cannot be made the
basis of issuing a writ petition compelling
the respondent- authority to repeat the
illegality or to pass another warranted
order." (AIR 1995 SC 705).

14. After referring to the aforesaid
quotations, to support the view that the
court may interfere in the matter, in the
event it is found that discrimination is a
conscious one and not by mere oversight,
reference can be made to the decision by
Division Bench of our own Court in the
case of Khalid Ahansar Haq and another
vs. Aligarh Muslim University and
another (1995 UPLBEC 1514) in which it
has been held that if the University permit
a candidate having shortage of attendance
to appear in the examination, debarring
others who fell in the some category is
discriminatory and those students were
allowed to appear in the examination. In
another decision as has been given by
this court in the case of Parvez Ahmad
(supra) the Division Bench in para 19 and
20 has observed as thus :

"19.
In
our
view,
discrimination
envisaged under Article 14 of the
Constitution is conscious discrimination
and a discrimination arising out of over
sight is no discrimination.
20. It was said by the Supreme Court in
State of Orisa vs. Durga Charan Das AIR
1966 SC 1547, that it could not be
contended that because a mistake was
committed in one case, the same should
be allowed to continue in other cases."

15. In view of the aforesaid , on
examination of the facts of the present
case there appears to be no dispute about
the fact that two students namely
Abhishek Srivastava of the second year
Computer Science and Gaurav Anand
Srivastava of the Ist year Computer
Science whose attendance was less than
60% were allowed to appear in their
respective examinations. This aspect has
been clearly pleaded on behalf of the
petitioner in para 5 and 6 of the
supplementary affidavit which in fact
stands admitted in the reply which is
contained in paragraphs 3 and 4 of the
supplementary counter affidavit dated
13.10.2002 sweard by Sri Ausaf Ahmad,
Legal Assistant of the college. The
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22 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
respondents have taken stand that the
aforesaid students were permitted to
appear in the examination after taking
undertaking that they will improve in the
next semester. In view of the above it is
clear that permission to other students to
appear in examination, having less than
60% attendance is neither by oversight or
by way of mistake, rather that was a
conscious act. In view of the aforesaid, it
appears that the present case is covered by
the clear exceptions in which interference
can be made and is well within the limit
of the jurisdiction/discretion of this Court
as provided under Article 226 of the
Constitution. There is another aspect of
the matter from which also controversy
can be viewed. The counsel who appears
for the U.P. Technical University has
clearly admitted and in fact counsel
appearing for the respondent 1 and 2 also
admits that a circular has been issued by
the Vice Chancellor by which all the
colleges were commanded to ensure the
proper attendance of the students for
which a guideline was provided to the
effect that students in the event of
shortage of required attendance are to be
called upon to explain and thereafter if
they do not improve even the parents
were required to be informed in this
respect. Copy of the aforesaid circular
dated 30.5.2002 has been annexed as
annexure no. 1 to the supplementary
affidavit filed by the petitioners clearly
indicates that the aforesaid circular was
issued after having good deliberations
with the concerned authorities of the
college/institutions who are under the
control of the Technical University which
clearly means that it has been issued in
their full knowledge and with their
concurrence. Although for the sake of
argument it may be accepted that the
aforesaid circular has not statutory force
but at the same time none of the
respondents have taken any plea before
this Court that the aforesaid Circular has
not been issued with due deliberation or
the same is not in their knowledge and
thus in the event the aforesaid circular
takes care of the interest of the students
and in fact it was issued as a matter of
caution, related to the discipline and also
with an intention to improve the merit of
the students, the respondents 1/2 and all
the other colleges/institutes were required
take its care. Although petitioners may
not be permitted to take any plea of their
lapses but at the same time as this Court
at the time of initial hearing of the matter
has permitted the petitioners to appear in
their respective examinations of IInd
Semester and now on examination of the
fact it is a clear case in which it can be
safely said that the respondents have acted
in on arbitrary and discriminatory manner,
the petitioners are entitled to get relief
from this Court so prayed in this petition.
At the same time it will be also the
concern of the Vice Chancellor, U.P.
Technical University who has issued the
circular dated 30.5.2002 reference of
which has come in the preceding
paragraphs to again issue circular to the
concerned institution under its control to
do the needful in furtherance to earlier
instructions which is clearly bonafide,
pious and is in the best interest of the
students at large who are the future of our
society.

16. For the reasons stated above, this
writ petition succeeds and is allowed. The
impugned
notice
dated
7.7.2002
(annexure no. 1 to the writ petition) so far
as it relates to the petitioners is hereby
quashed and as the petitioners have
already appeared in their B. Tech. Ist year
(II semester examination) the result of the
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1 All] Rama Shankar Pandey Vs. Ram Raj and others
23
petitioners
shall
also
be
declared
forthwith so that they may be entitled to
join/attend the next semester and to
proceed with their studies in accordance
with law. So far papers in which the
petitioners
could
not
appear
the
respondents 1/2 will do the needful in
accordance with law.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5 DECEMBER, 2002

BEFORE
THE HON'BLE B.K. RATHI, J.

First Appeal From Order No. 660 of 2002

Rama Shanker Pandey
...Appellant
Versus
Ram Raj and others
 ...Respondents

Counsel for the Appellant:
Sri Bharat Ji Agarwal
Sri S.D. Singh

Counsel for the Respondents:

Motor Vehicles Act 1988- Section 173
(3)- Appeal filed without depositing the
amount as per provisions of new Act-
pleas taken by the appellant about the
date of cause of action as well as the pre
condition of deposit is under 173 of the
new Act while the Appeal has been filed
under
section
110-B-
can
not
be
sustained-

Held- para 6

In view of this decision of the Apex Court
which is directly on the point, the
argument of the learned counsel cannot
be accepted and it is also not necessary
for me to consider in detail the law laid
down in the above referred case.
Case law discussed:
1933 Suppl (2) SCC-724
1987 (3) SCC-516
AIR 1955 SC-84
AIR 1953 SC-21

(Delivered by Hon'ble B.K. Rathi, J.)

1. This appeal has been preferred
against the award given by the Motor
Accident claims Tribunal Chitrakoot. The
stamp reporter has reported that the
amount as required under the proviso of
Section 173 (3) as condition precedent for
admission of the appeal, has not been
deposited. The deposit is pre-condition for
the admission of the appeal.

2. I have heard Sri Bharatji Agarwal,
learned Sr. Advocate assisted by Sri S.D.
Singh for the appellant.

3. It has been argued that the
accident in this case took place on
15.1.1984 when the old Motor Vehicles
Act (herein after referred to as the Act)
was in force. That the new Act was
enforced from 1.7.1989 and thereafter the
application for compensation was moved.
It has been argued that right to claim
compensation accrued under the old act
and the same has been protected under
Section 6 of the General Clauses Act. It
has therefore been argued that the claim
petition shall be considered to have filed
under Section 110-A of Motor Vehicles
Act, 1939. That the proceedings also took
place under the said Section and therefore
the appellant has right to appeal under
Section 110-D of the said Act. That the
appeal has not been filed under Section
173 of the new Act of 1988 and therefore,
the proviso to Section 173 of the new Act
does not apply.

4. The learned counsel in support of
the argument has referred to Section 6 of
the General Clauses Act and has argued
that the right has accrued which is