1. This is a petition under Article 226 of the Constitution of India. The facts which give rise to this petition are as follows:
2. The petitioner is a woman residing within the territorial limits of the Agra University, She appeared at the M.Sc. Previous Examination in Chemistry of the said University which was held in the month of March, 1955 as a woman private candidate. She was not able to secure pass marks in the theory, papers, though she passed the practical examination. In the result she was declared to have failed in the M.Sc, Previous Examination in Chemistry.
With a view to taking the M.Sc. Previous Examination again in March, 1956, the petitioner became a casual student of Agra College for the purpose of doing practical work in that College in the subject of Chemistry. On 12-9-1955 she submitted an application form for admission to the Previous Examination in Chemistry to be held in March, 1956. She was informed by the Assistant Registrar (Examinations) that her application could not be allowed in view of the alterations effected in the old Statutes.
The petitioner submitted in her petition that she was entitled to sit for the Previous M.Sc, Examination in Chemistry in March, 1956. This Court issued an interim order permitting her to sit for Examination. I understand that she has sat for the M.Sc. Previous Examination.
3. The question to be determined in this petition is whether the petitioner was entitled to sit for the Previous M.Sc. Examination in Chemistry In March, 1956. It is admitted by Dr. Astha-na, who appears for the Agra University, that, but for the alterations that had been effected in the Statutes by the Governor of Uttar Pradesh in the exercise of powers conferred by the first proviso to Sub-section (2) of S. I, Agra University (Amendment) Act, 1953 (U. P. Act No. 31 of 1953), the petitioner was entitled to sit for the M.Sc. Previous Examination in March, 1556 in Chemistry.
4. Under Chap. VIII of the New Statutes, as framed by the Governor, it is provided in Section 1 of that Chapter that external degrees may be awarded in the Faculty of Science, M.Sc., in Mathematics only. There was no such limitation in the previous Statute and a woman candidate could appear for the M.Sc. Examination in Chemistry also. Under the Agra University Act, 1926 before amendment, there was no such distinction as has been made by the Amendment Act of 1953 (U. P. Act No. 31 of 1953) between external degrees and internal degrees and the University permitted women candidates to appear for the M.Sc. Examination even though they were not members of affiliated colleges as private candidates under certain restrictions.
The new Act brought about the distinction between external degrees and internal degrees and the Statute framed by the Governor, pursuant to the power granted by the Amendment Act, limits the grant of external degrees, so far as the Faculty of Science Is concerned, to the subject of Mathematics only in M.Sc. External degrees under the Amendment Act are granted, inter alia, to women who are not studying in any of the affiliated. Colleges.
Now, if the Statute framed by the Governor which is being relied upon by the University is intra vires, then it is conceded by learned counsel for the petitioner that he has no case, but, on the other hand, if the Statute is ultra vires the power of the Governor, then obviously it can have no force and then the old Statute will have effect. This i$ conceded by Dr. Asthana.
5. The Agra University (Amendment) Act, 1953, by Sub-section (2) of Section 1 enacts as follows:
'This section and Sections 35 and 36 shall, except as herein provided, come into force at once, and the other sections shall come into force on such date, as the State Government may, by notification in the official Gazette, appoint in this behalf:
Provided that it shall be lawful, at any time after this Act has been first published in the official Gazette, for the State Government to do anything including the framing of Statutes necessary generally for securing the due constitution of University Authorities in accordance with the Agra University Act, 1926, as amended by this Act, but any University Authority so constituted shall not, subject to any order made under Section 36, come into being or commence to function until these other sections have come into force:
Provided further that any Statutes framed by the State Government by virtue of the power conferred by the preceding proviso shall continue to remain in force until they are superseded by anything done or action taken under the Agra University Act, 1926, as amended by this Act.'
6. The argument of learned counsel for the petitioner is that this proviso only empowers the State Government to frame Statutes for securing the due constitution of University Authorities in accordance with the Agra University Act, 1926, aa amended. He argues that the Statute concerning the admission of students to the M.Sc. Science Examinations is. not a Statute for securing the due constitution of University Authorities.
7. Under the unamended Act, the power to make Statutes was vested in the Senate. The Amendment Act has created a new power of making Ordinances. This power has, by Section 27-A, Sub-clause (3) of the Amendment Act, been vested in the Executive Council. The power of the Executive Council has been limited to this extent that 'no Ordinance made by it shall take effect until it has been approved by the Chancellor after considering the views of the Senate'.
By Section 27-A, Sub-clause (2) (b), the Ordinance making power extends to 'laying down the conditions under which students shall be admitted to the degree and other courses and to the examinations of the University' and gives power to make Ordinance declaring who 'shall be eligible for degrees and certificates'. It will, thus, be clear that it is by an Ordinance that the conditions under which students are to be admitted to the degree courses and to the examination are to be laid down. They are not to be laid down now by Statutes.
Under the old Act, Statutes are to be made by the Senate and that power for certain purposes is still retained in the Senate. Therefore, it is evident that the power to make Ordinance rests, in the first instance, in a different body to that in which the power to make Statutes resides. In other words, there is a clear recognized distinction between an 'Ordinance' and a 'Statute'.
In my view, this distinction has to be borne in mind in interpreting the proviso to Sub-section (2)] of Section 1 of the Amendment Act, That proviso refers only to the framing of Statutes and even if It did not clearly indicate that the power granted to the State Government for the framing of Statutes was in connection with the due constitution of University Authorities, it would have been difficult to hold that by means of a Statute that could be done which under the Amendment Act was authorised to be done by means of an Ordinance.
In my view, upon a plain reading of the Proviso to Sub-section (2), the power of the State Government is limited to the framing of Statutes for se-curing the due constitution of University Authorities. In view of what I have said above, I am compelled to reject the contention of Dr. Asthana that the proviso is very wide and empowers the State Government to make provision 'for anything' by means of a Statute.
I am equally of the view that Section 40-A has no application either. The amended Statute does not remove any difficulty in relation to the transition from the provisions of the unamended Act to the amended Act, and in any case, the Governor has not invoked Section 40-A of the Amendment Act.
8. Chapter VIII of the Statutes relates to the admission of candidates to external degrees. It must, therefore, be held to be ultra vires.
9. The result, therefore, is that the old Statutes remain in force so far- as the eligibility of the petitioner to appear for the March, 1956 examination in M.Sc. Previous in Chemistry is concerned. It is not necessary to examine the facts relating to or deal with the further argument that the petitioner having been misled by the University into thinking that she could appear for the M.Sc. Previous Examination in Chemistry, she was entitled in any case to appear for the said examination and have her result declared.
An interim writ has already issued from thisCourt as a result of which she has appeared forthe M.Sc. Previous Examination in Chemistry. I,accordingly, now issue a writ of mandamus directing the Agra University to declare her result. Iassess the costs of this petition at Rs. 51/- whichwill be paid by the University to the petitioner.