1. The petitioners have filed this petition under Articles 226 and 227 of the Constitution and pray for quashing the order passed by the Vice-Chancellor (Kulapati) of Ravishankar University, Rajpur (respondent No. 2) conveyed to them by the Registrar of the said University vide his letter dated 1-8-1973 (Annexure I) disqualifying them from appearing at the Final M.B.B.S. Practical Examination July, 1973.
2. The brief facts leading to this writ petition are that the petitioners are the students of Final M.B.B.S. class in the Jawaharlal Nehru Memorial Medical College, Rajpur (hereinafter referred to as 'the College'). The College is affiliated to Ravishanker University (hereinafter referred to as 'the University'). The petitioners were admitted to the Final M.B. B.S. conducted by the University in the year 1973. The petitioners had appeared in their theory papers in all the concerned subjects of the examination, but before they could appear in Practical examination, a show cause notice dated 27-7-1973 (Annexure IV) was served upon them as to why they should not be disqualified from appearing at the ensuing Final M.B.B.S. Practical Examination of July, 1973, since they threatened an examiner that if he did not pass them at the ensuing Final M.B.B.S. Examination, they would bodily injure him and thereby they were guilty of grave misconduct and breach of discipline. After considering the reply of the petitioners, the Kulapati disqualified both the petitioners from appearing at the Final M.B.B.S. Practical Examination, 1973. The petitioners have come up before this Court challenging this order which was conveyed to them through the Registrar of the University (hereinafter referred to as the impugned order). The impugned order has been passed by the Kulapati in exercise of his powers under Ordinance No. 46 of the University.
3. Learned counsel appearing for the petitioners confined his submissions to two points only. Firstly, that the Kulapati had no jurisdiction to pass the impugned order as the matter did not fall within the purview of Ordinance No. 46 of the University but under Clause 10 of Ordinance No. 6 wherein the power vests with the Executive Council. Secondly, in the alternative, it was submitted that in the absence of any regulation framed by the Executive Council delegating its powers as envisaged under Section 23 (xxxi) of the Ravishankar University Act, 1963, the Kulapati had no authority to pass the impugned order and Ordinance No. 46 which confers such powers on the Kulapati is ultra vires. On the other hand, learned counsel appearing for the respondents contended that the Ordinance No. 46 is a valid piece of legislation and in the circumstances of the case, the provisions of Sub-clause (a) (iv) of Clause I of the Ordinance No. 46 apply and not clause 10 of the Ordinance No. 6, and therefore, the impugned order cannot be challenged on any one of the counts as contended on behalf of the petitioners.
4. Having heard learned counsel of the parties, we are of the opinion that this petition has no substance and must be rejected. We shall first deal with the point whether Ordinance No. 46 is ultra vires. In that connection, we may mention here that the University was initially constituted under an Act, called 'The Ravishankar University Act, 1963' and its affairs were governed by the provisions of the said Act and Statutes, Ordinances and Regulations made thereunder. The said Act has now been repealed by the Madhya Pradesh Vishwavidyalaya. Adhiniyam, 1973 (hereinafter referred to as 'the Adhiniyam'). The University is now deemed to be the University under the Adhiniyam and all the Statutes, Ordinances and Regulations made under the Repealed Act are deemed to be Statutes, Ordinances and Regulations made under the Adhiniyam by virtue of the provisions of Section 2 (vi) of the' Adhiniyam. The Adhiniyam came into force w.e.f. 5-5-1973. It may also be mentioned before that Ordinance No. 46 was made by the Executive Council under the Repealed Act, and as such for deciding the validity of the said Ordinance, we would be required to refer to the provisions of the Repealed Act and not to those of the Adhiniyam.
5. Section 23 of the repealed Act deals with the powers and duties of the Executive Council. Sub-section (xxxi) of Section 23 authorises the Executive Council to delegate by Regulations any of its powers to the authorities mentioned therein which include Kulapati also. Section 37 relates to matters for which Ordinances may be made. Sub-section (viii) of this section mentions conduct of the examinations and Sub-section (ix) relates to the maintenance of discipline among the students of the University. Section 38 deals with the procedure for making Ordinances, Section 40 deals with the making of the Regulations for the matters mentioned therein by the authorities and other bodies of the University.
6. It is not disputed before us an rightly so that the Executive Council has the power with regard to conduct and discipline of the students of the University and to make Ordinance with that regard by virtue of the provisions of Subsection (xxi) of Section 23 and Sub-section (viii) of Section 37 of the repealed Act. What is disputed before us is that the Executive Council while making an Ordinance for the purpose, cannot empower the Kulapati in that Ordinance to impose punishment for breach of conduct and discipline. This contention is raised on the basis of the provision of Sub-section (xxxi) of Section 23, which says that the Executive Council may delegate any of its powers to Kulapati by making Regulations. Since no regulation has been made by the Executive Council delegating its powers of punishment to the Kulapati, Ordinance No. 46 is ultra vires as it confers powers of imposing punishment on the Kulapati. In short to say that power of imposing punishment, which has been conferred upon the Kulapati under the aforementioned Ordinance, could not be done except by making a regulation. It is no doubt true that Subsection (xxxi) of Section 23 does empower the Executive Council to delegate its powers to Kulapati by regulations, if it may deem fit. But that cannot mean that the Executive Council could not delegate its powers of imposing punishment in the case of breach of discipline by students on the Kulapati in Ordinance No. 46. A perusal of Section 40 (1) (b) of the repealed Act clearly indicates that Regulations may be made providing for all matters which by the repealed Act, and the Statutes or the Ordinances made thereunder are to be prescribed by Regulations. Since in the present case under Ordinance No. 46 itself power has been delegated to the Kulapati by the Executive Council as the sub-delegation is permissible under the Act itself and, therefore, non-making of Regulation for that purpose as contemplated under Sub-section (xxxi) of Section 23 would not make the sub-delegation invalid. When a statute conferring power imposes certain duties and functions incidental to the exercise of the powers in such a way that they are integrally connected, a permissible delegation of the power is effective to delegate the duties and functions along with the power. Ordinance No. 46 is a legislative piece of enactment made by the Executive Council under the statutory authority for the control of discipline of students and while enacting that an authority (Kulapati) has been prescribed for taking action for breach of discipline and imposing punishment, it cannot be held that prescribing the authority was beyond the powers with regard to the delegation and as such Ordinance No. 46 is ultra vires. Delegation of its powers by the Executive Council by making regulations is an enabling provision and in the absence of that if the power has been delegated to the Kulapati under Ordinance No. 46 while making the said Ordinance for the control of discipline of students, it cannot be termed as contrary to the provisions of the repealed Act. In our opinion, Ordinance No. 46 is intra vires and not ultra vires We shall now proceed to decide the other point whether on the facts and circumstances of the case Clause 10 of Ordinance No. 6 would be applicable or Clause I (a) of Ordinance No. 46 under which the Kulapati has passed the impugned order. It cannot be disputed that if the provisions of Ordinance No. 6 are applicable to the case, the impugned order has to be quashed as under Clause 10 of the said Ordinance the power rests only with the Executive Council, We will explain presently that this Ordinance if not applicable to the case but Ordinance No. 46 applies. For deciding the controversy it is necessary to mention here relevant provisions of both the Ordinances.
Ordinance No. 6 Examinations (General)
'10. Permission to appear at a University examination may be withdrawn for conduct which, in the opinion of the Executive Council, justifies the candidate's exclusion.
In the Examination Centre, the candidates shall be under the disciplinary control of the Superintendent of the Centre and they shall obey his instructions. In the event of a candidate disobeying the instructions of the Superintendent or his insolent behaviour towards the Superintendent or any of the invigilators, the candidate may be excluded from the day's examination and if he persists in misbehaviour, he may be excluded from the rest of the examination by the Superintendent of the Centre:
Provided, that a full report of each such case shall be sent to the University on the same day and the Executive Council may according to the gravity of the offence, further punish a candidate by cancelling his/her examination and/or debarring him/her from appearing at the examination of the University for one or more years.
If a candidate is found guilty of using or attempting to use unfair means at an examination, or a report is made as to any candidate having copied either from some book or notes or from the answers of another candidate or in any other manner or of helping or receiving help from another candidate in an Examination, the Executive Council may cancel his/her examination and also debar him/her from appearing at the examination of the University for one or more years according to the nature of the offence of the candidate.
Provided that when the University intends to award any of the penalties mentioned in this Ordinance it shall give an opportunity to the candidate concerned to show cause in writing, within a week from the date on which the letter is served on him, as to why the proposed penalty may not be imposed on him, and shall consider the explanation, if any, if filed within the specified time, before awarding the penalty.
The Executive Council may cancel the examination of a candidate and/or debar him/her from appearing at an examination of the University for one or more years, if it is discovered afterwards that the candidate was in any manner guilty of misconduct in connection with, his/her examination and/or was instrumental in the tampering of University records including the answer-books, marks-sheets, result charts, diplomas and the like.
The Executive Council may delegate its power to the Kulapati to deal with cases covered under this Ordinance.
The Executive Council may cancel the examination of a candidate and/or debar him/her from appearing at an examination of the University for one or more years, if it is discovered afterwards that the candidate had obtained admission to the examination by misrepresenting facts or by submitting false certificate or by forging documents.'
Ordinance No. 46 Discipline of Students
'1. When a student of the University Teaching Department or a College or a Non-Collegiate Student has been guilty of grave misconduct or persistent idleness or breach of discipline within or outside the precincts of the University or College or U.T.D. or at an University Examination Centre or his action and behaviour towards teachers, officers or authorities of the University has been such which amounts to misconduct:--
(a) the Kulapati may, according to the nature and gravity of the offence impose one or more of the following punishments:
(i) suspend from attending classes temporarily pending enquiry into his conduct or impose a fine;
(ii) expel; or
(iii) rusticate for a period to be determined by the Kulapati;
(iv) disqualify such a student from appearing at one or more examinations of the University.
7-8. So far as Ordinance No. 6 is concerned, the heading indicates the purpose. It lays down the conditions for the appearance of candidates in various examinations of the University and also other connected matters including the misconduct of candidates during the examination and penalties that can be imposed by the Executive Council for that. The first paragraph of Clause 10 authorises the Executive Council to withdraw the permission already granted at a University examination for conduct of a candidate which justifies his exclusion. The wordings indicate that this exercise of power relate to a time before appearance at the examination. It is further clear from the opening words of the paragraph 'Permission to appear' and the contents of the subsequent paragraphs. The second and third paragraphs deal with the situations in the Examination Centre and penalties that can be imposed. The fourth paragraph contains punishment for using or attempting to use unfair means at an examination. The sixth paragraph relates to the discovery afterwards that the candidate was in any manner guilty of misconduct in connection with his/her examination and/or was instrumental in the tampering of University records. Similarly, the eighth paragraph relates to punishments if it is discovered after the examination is over that the candidate had obtained admission to the examination by misrepresenting facts or by submitting false certificate or by forging documents. Thus, we are of the opinion that the first paragraph of Clause 10 relates to the exercise of power prior to the time when a candidate appears in an examination. In the present case, according to the learned counsel for the petitioners, the allegation regarding their conduct relates to the incident outside the precincts of the University and it is with reference to the examination and, therefore, action, if any, that could be taken, was permissible under the first paragraph of Clause 10 of Ordinance No. 6. But in the present case since the petitioners had already appeared in theory papers, first paragraph of Clause 10 would not be attracted as we have already held that it relates to a time before candidates appear in the examination. In such a situation, Clause 10 will have no application and the submission of the learned counsel for the petitioners has to be rejected.
9. On the facts and circumstances of the case, there is no manner of doubt in our mind that Ordinance No. 46 is applicable. The heading of this Ordinance is 'Discipline of Students' and it embraces a very large field regarding conduct and discipline of students including breach of the same within or outside the precincts of the University or College and behaviour towards teachers, officers or authorities of the University as is clear from the contents of Clause I. It seems that this Ordinance has been made with good intentions for giving effective control to the Kulapati over the students, which is necessary in the present times, looking to the deteriorating discipline amongst that class. Who is to be blamed for that we need not ponder over that subject as that is not necessary for us here to elaborate.
10. Before parting with the case, we would like to mention that the finding of grave misconduct and breach of discipline as held proved against the petitioners by the Kulapati was not challenged before us.
11. In the result, the petition is dismissed with costs. Counsel's fee Rs. 100, if certified. The remaining security amount, if any, shall be refunded to the petitioners.