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P. Jayanidhi and ors. Vs. Government of Andhra Pradesh, Represented by the Secretary Health Department, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1885 of 1964
Judge
Reported inAIR1966AP30
ActsOsmania University Revised Charter, 1947 - Sections 25, 26(2), 27 and 28; M.B.B.S. Examination Revised Rules - Rule 5
AppellantP. Jayanidhi and ors.
RespondentGovernment of Andhra Pradesh, Represented by the Secretary Health Department, Hyderabad and ors.
Appellant AdvocateP. Babulu Reddy, Adv.
Respondent AdvocateV.K. Vaidya, Adv., ;O.A. Reddy, Adv. for ;3rd Govt. Pleader and ;M. Venkateswarlu, Adv. for ;B.V. Subrahmanyam, Adv. General
DispositionPetition allowed
Excerpt:
.....by students to compel respondents to permit them to appear for examination as rule 5 passed by academic council was without authority - whether rule 5 framed by osmania university valid - rule 5 does not relate to any matter specified in sections 27 and 28 - academic council acted in excess of its power while making rule 5 as it was not regulation which was subject to approval of university council - held, impugned rule invalid. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been..........and unduly harsh. they also challenge the validity of the rule by pointing out that the academic council which made that rule had no right or authority to pass it. the first respondent in this writ petition is the government of andhra pradesh represented by the secretary, health department, hyderabad. respondents 3 to 5 are the principals of the osmania medical college, gandhi medical college and the kakathiya medical college, respectively. this writ petition is resisted mainly by the osmania university represented by its registrar (second respondent), the stand taken by the university is that rule 3 mentioned above is good and valid and cannot therefore be taken exception to by the petitioners. it is also stated on behalf of the university that the rule is neither.....
Judgment:
ORDER

Gopalakrishnan Nair, J.

1. This writ petition under Article 226 of the Constitution is preferred by eight students of the Medical Colleges in the Telangana area to compel the respondents by Mandamus to permit them (Petitioners) to appear for the ensuing First M. B. B. S. examination to be held by the Osmania University (Second Respondent.) Peti-tioners 1 and 5 are students of Osmania Medical College, Petitioner 4 is it student of Kakatiya Medical College, Warangal and the other petitioners are students of Gandhi Medical College, Hyderabad. All of them joined their respective Medical Colleges in the year 1959. The entire course of studies they had to undergo was to last six years. This course is called the 'Integrated Medical Course'. The first year of this course is known us Pre-medical year and the students have to pass a University examination at the end of that year. All the petitioners passed that examination. Then they came in the second year of the Integrated Medical course.

At the end of that year they had to write the terminal examination which is also called the 'House Examination'. The petitioners passed that examination also. At the end of the third year they have to write the First M.B.B.S. examination. None of the petitioners passed that examination though each or them appeared more than once for the examination, in the course of two years. The result of this, according to Rule 5 of the First M.B.B.S. Examination Rules of the second respondent-University, is that none of the petitioners can now continue his medical studies and has to leave the Medical College. This result is complained of by the petitioners as grossly unreasonable and unduly harsh. They also challenge the validity of the Rule by pointing out that the Academic Council which made that Rule had no right or authority to pass it. The first respondent in this writ petition is the Government of Andhra Pradesh represented by the Secretary, Health Department, Hyderabad. Respondents 3 to 5 are the principals of the Osmania Medical College, Gandhi Medical College and the Kakathiya Medical College, respectively. This writ petition is resisted mainly by the Osmania University represented by its Registrar (second respondent), The stand taken by the University Is that Rule 3 mentioned above is good and valid and cannot therefore be taken exception to by the petitioners. It is also stated on behalf of the University that the Rule is neither unreasonable nor harsh because it is designed to maintain a high standard of Medical education and to ensure that Medical degrees are conferred only on really deserving candidates. The 5th respondent who is the Principal of the Kakathtya Medical College, Warangal in his counter affidavit says that he is bound by Rule 5 which was made by the University. He also deals specially with the 4th petitioner who was a student of his college. It is not however necessary to go into the details of this individual case.

2. The first point that arises for consideration in this Writ Petition is whether Rule 5 of the First M. B. R. S. Examination Rules framed by the Osmania University is good and valid. That Rule is as follows:

'The whole of the first M. B. B. S. examination shall be completed by a student within 2 years of his qualifying for appearance thereat; failing to do so shall necessitate his leaving the College. No readmission to the examination shall be considered.'

The first contention of the learned counsel for the petitioner is that this Rule was not passed by a competent authority and that it is therefore invalid. This contention requires a consideration of certain provisions of law which conferred right and authority on the different Bodies of the University to make Hides like the impugned R. 5. The Bodies with which we are concerned are the University Council and the Academic Council. It is common ground that Rule 5 was passed by the Academic Council at its 26th meeting held on 12-11-1955. It is also common ground that the minutes of this meeting were confirmed by the University Council at its 358th meeting on 2-2-1956. At both these points of time the law which governed the University was the Osmania University Revised Charter of 1947 thereinafter referred to as the Charter.) This Charter was replaced by Andhra Pradesh Act 9 of 1959 with effect from 2-2-1959. But we are not concerned with this Act in the present case.

3. Section 16(2)(m) of the Charter confers on the University council power to make, amend or repeal Statutes and Ordinances and to approve Regulations. Section 25 relates to the subject matter of Ordinances. Clause (c) of it authorises the making of Ordinances to provide for

'the conditions under which students shall be admitted to the courses of study prescribed by the University and to the eliminations conducted by the University and he eligible for degrees and diplomas'.

Section 26 states that the first Ordinances shall be those set out in schedule II of the Charter. Sub-section (2) of Section 26 expressly requires that Ordinance shall be made by the University Council. Sub-section (3) authorises that the University Council may make Ordinances on its own initiative or after receiving drafts from the Senate provided that the Senate shall not consider the draft of any Ordinance regarding certain specified matters. Sections 27 and 28 of the Charter deal with University Regulations. Section 28(1) provides this every authority of the University shall make Regulations providing for the giving of notice to the members of such authority of the dates and hours of meetings and of the business to be considered at the meetings and for the keeping of a record of the procee-dings of meetings. Section 28(2) enjoins that all Regulations shall be subject to the approval of the University Council which may annul a Regulation of may direct an amendment thereof in such manner as it may specify. The only other provision which requires to be noticed is clause (3) of Statute No. 1 in Schedule I of the Charter It authorises the Academic Council to propose Ordinances regarding the

'conditions under which students shall be admitted to the degree or diploma courses and the examination of the University and shall be eligible for degrees and diplomas.'

4. The case put forward by the learned counsel for the University is that Rule 5 is an Ordinance proposed by the Academic Council under clause (c) of Statute No. 1 and accepted and made by the University Council under Section 26(2) of the Charter. At an earlier stage, the University took the stand that Rule 5 was a Regulation which was made by the Academic Council and confirmed by the Syndicate. Mr. Vaidya, appearing for the University now states expressly that this stand of the University is not tenable and that he therefore abandons it. This stand appears to have been taken under the erroneous impression, (which was to a large extent induced by the statements made in the affidavit of the writ petitioners) that the impugned Rule No. 5 was made under the provisions of A. P. Act 9 of 1959 which came into force on 2-2-1959. As this view is plainly incorrect, Mr. Vaidya, very rightly states that he would put his case only on the wound that Rule 5 was made by the University Council under Section 26(2) of the Charter, in acceptance of the proposal made by the Academic council under clause (3) of Statute No. 1. Mr. Babulu Reddy for the petitioners contends on the other hand, that from no point of view can the impugned Rule be regarded as an 'Ordinance' passed by the University Council under Section 26(2) of the Charter. This is the contention on which the success or failure of the present writ petition would depend.

5. The argument on behalf of the petitioners is that the resolution passed by the Academic council at its 26th Meeting held on 12-11-1955 does not contain even a remote suggestion that it was only proposing an Ordinance to be made by the University Council. I am inclined to agree with this view. The resolution by which the impugned Rule was passed by the Academic council does not contain anything which could reasonably lead to the inference that it was acting under clause (3) of Statute No.1. If the Academic Council was only proposing to the University Council that an Ordinance of a particular fond or nature might be made, the Academic Council would have couched its resolution in a very different manner.

In this connection, it is well briefly to notice the genesis of Rule No. 5. It began with the proposal of Dr. M. K. Pandit. That proposal was submitted for the consideration of the Medical College council on 26-8-1955. The council accepted the proposal and forwarded it for the consideration of the Faculty of Medicine. The Faculty of Medicine at its meeting held on 30-9-1955 recommended the proposal to the Academic Council. The Academic Council at its meeting held on 12-11-1955 resolved.

'that the following Rule as amended he added as Rule No.5 under the first M.B.B.S. Examination on page 16 of the Syllabus, and to come into force with effect from March/April 1958'.

This resolution reads as though the Academic Council was acting under the impression that it was the final authority to make Rule No.5. There is nothing in the resolution to suggest that the Academic Council realised that it could only make a proposal to the University Council and that the Rule had actually to be made by the University council at its discretion. Then we come to the part played in this matter by the University Council. At its 358th Meeting held on 2-2-1958, there were 31 items on the agenda. Item No. 9 was confirmation of the minutes of the 26th meeting of the Academic Council held on 12-11-1935. The resolution passed by the University council on 2-2-1956 was 'resolved that the minutes of the XXVI meeting of the academic council held on 12th November 1955 be confirmed.'

The proceeding before the University council or the resolution passed by it does not indicate that the University council intended to pass an 'Ordinance' in exercise of its powers under Section 26(2) of the Charter. On the other hand, this aspect of the matter appears to have been wholly absent to its mind. It appears to have proceeded on the basis that it had only to confirm the minutes of the meeting of the Academic Council held on 12-11-1955. It is well to remember that the meeting of the Academic Council had dealt with several other matters also in its meeting on 12-11-1955. The minutes pertaining to all those matters were confirmed in the same manner by the University Council by its resolution dated 2-2-1956. It cannot therefore be said that the University council in passing the resolution dated 2-2-1956 really devoted its attention to the question of passing an Ordinance. A number of matters which did not at all relate to the passing of an Ordinance by the University council were covered by the minutes of the Academic Council's meeting of 12-11-1955. All those minutes appear to nave been dealt with in the same manner by the University council. This indicates that the University council did not consider that any of the proceedings evidenced by those minutes required any special or separate treatment which it would have required had the council realised that it was a proposal from the academic council for the making of an Ordinance.

There is absolutely nothing in the Univer-sity Council's resolution to suggest even remotely that the council brought to bear its mind on the question of passing an Ordinance so as to bring into effect it provision like the impugned Rule 5. Neither the language in which the resolution is couched nor the modality adopted legitimately warrant the inference that the University council, by saying that the minutes of the Academic council were confirmed, intended to make an Ordinance under Section 26(2) of the Charter. Surely, the academic council could not have passed an Ordinance without its being aware of what it was doing. Equally, the University council would have employed appropriate proce-dure and used apt language, if it intended to make an Ordinance. The use of extremely inapt language and adoption of an almost unmeaning procedure for the purpose cannot be imputed to high body like the University council.

In this context, I should like to state that a number of Ordinances passed by the University Council before as well as after 2-2-1956 have been placed before me by the learned counsel appearing on both sides. Each one of these Ordinances is couched in perfect and unmistakable language and is cast in a mould which is significantly appropriate and formal. This is an added reason for saying that the resolution of 2-2-56 which merely says that the minutes of the Academic council are confirmed, cannot properly lead to the conclusion that the University council intended to pass an ordinance under Section 26(2) of the Charter. One Body confirms the action of another Body only when the latter Body is competent to take that action and when all that is required for its finality is the approval or confirmation of the former Body. But in a case where the former Body alone is competent to take a particular action, it cannot validly or effectively take it by merely confirming the action of another Body which is quite incompetent to take the action.

The question of delegation and the principle of adopting or ratifying the action of the delegate has no ANalogy whatsoever to the instant case. The powers entrusted by the Charter to be exercised by the University Council under Section 26(2) cannot be delegated by it to the Academic Council. Such delegation would be invalid and the exercise of the power by the delegate would equally be invalid, in the instant case, there is not even an invalid delegation by the University council to the Academic Council. Therefore, the question of delegation by the University council and the subsequent ratification by it of the action of the delegate (academic council does not arise in this case. By confirming a resolution of the academic council the University council cannot be said to have made an Ordinance under Section 26(2) of the Charter. To hold otherwise would be attributing to the University council an intention, the existence of which is not borne out by the facts and circumstances.

Further, an instrument like an ordinance must be drawn up an unequivocal and express language and to effectuate an intention made obvious by the language employed. A procedure of accepted special formality usually attends its birth. In the instant case, none of these things is present. Looked at from any angle, I am not satisfied that it can reasonably be said that the University council, by merely saying that it confirmed the minutes of the Academic Council, passed or intended to pass an Ordinance under Section 26 (2) of the Charter.

6. It is then asked why the University council should have confirmed the minutes of Academic Council. It is almost vain to seek to answer this question because if would involve a needless attempt to probe into the unknown intention and unexpressed mind of the University council. Nonetheless, I am inclined to think that the University council probably thought that by passing the resolution making the impugned Rule 5, the Academic council passed a regulation under section 28(1) of the Charter and submitted it for the approval of the University council under section 28(2). If this were so, the Academic council clearly overlooked the crucial fact that the impugned Rule 5 far exceeded the scope of its Regulation making powers under Sections 27 and 28(1) of the Charter. These sections leave no room for doubt or debate. They are expressed in precise and clear words which prominently delimit the area of the power of the Academic council to make Regulations under the Charter. It is plain that impugned Rule 5 does not relate to any of the matters specified in Section 27 or 28. Therefore, if the academic Council acted under the impression that it was making a Regulation for being submitted for the approval of the University council, it was acting in excess of its powers under Sections 27 and 28 of the Charter. Besides, the resolution of the Academic council did not at all indicate that it purported to send up its resolution for the approval of the University council under section 28(2). If it was not a Regulation that the Academic Council intended to make, it had no power or authority under the Charter to make it. I have already stated that the resolution of the Academic council cannot reasonably be construed or understood as a proposal to the University council for the making of an Ordinance under Section 26(2). I have also said above that the resolution passed by the Univer-sity council cannot be regarded as tantamount to the passing of an Ordinance. Thus, I do not think that Impugned Rule 5 can be upheld as valid.

7. Before leaving this topic, I would also like to mention that every one of the Ordinances made by the University council is assigned a separate number; but the resolution of the University council dated 2-2-1956, apart from not being called an Ordinance, is not also assigned a separate number, I have already adverted to the form and the nature of the Ordinances passed by the University Council before and after 2-2-1956. In no case has the peculiar procedure followed on 2-2-1956 been adopted by the University council for making an Ordinance. All these considerations lead me to the conclusion that impugned Rule 5 which is not grounded on the provisions of the Charter and which was not brought into being in accordance with the requirements of the Charter, cannot be permitted to operate against the petitioners in the instant case. In other words, the petitioners are entitled to ignore impugned Rule 5 which being invalid, cannot bind them or indeed any other person. If this be so, there is absolutely nothing else which prevents the petitioners from being permitted to appear for the ensuing First M.B.B.S. Examination. If, in the absence of any valid prohibition under law, the authorities prevent the petitioners from taking their examination, it will be a case of acting in violation of law and in excess of authority. The respondents have therefore to be compelled by Mandamus to forbear from standing in the way of the petitioners appearing for the ensuing first M.B.B.S. examination, provided of course they am otherwise qualified to sit for the examination. Putting it in slightly different words, impugned Rule 5 should not be used against the petitioners so as to prevent them from taking the ensuing First M.B.B.S. examination. A Mandamus to this effect will issue to the respondents.

8. In the circumstances of this case, I make no order as to costs.


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