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Virendra Singh Sen Vs. the Jiwaji University, Gwalior and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 335 of 1975
Judge
Reported inAIR1976MP230; 1977MPLJ32
ActsMadhya Pradesh Vishwavidyalaya Adhiniyam, 1973 - Sections 15, 15(4), 37, 38 and 40; Constitution of India - Article 226
AppellantVirendra Singh Sen
RespondentThe Jiwaji University, Gwalior and anr.
Appellant AdvocateA.B. Mishra, Adv.
Respondent AdvocateJ.P. Gupta, Adv.
DispositionPetition dismissed
Cases ReferredUnion of India v. J. N. Sinha
Excerpt:
- - 3. thus the action of the university was perfectly legal as well as justified. 3. subject to the provisions of this ordinance, the scheme of examinations, the syllabus and text books if any to be prescribed or recommended in connection with the subjects for the examination covered by this ordinance and the conditions on which the students shall be admitted to the said examination shall be in accordance with the provisions made by or under the regulations to be made by the academic council after considering the recommendations of the board of studies and the faculty concerned. 17. in this case the power to fix programme of examination in a situation for which the regulation and the ordinance do not specifically provide, was within the competence of the executive council as well as.....rania, j. 1. this is a petition under articles 226 and 227 of the constitution by a student of the jiwaji university gwalior hereinafter referred to as 'the university') for quashing the programme of b. e. examinations, which were to be held from 1st december, 1975.2. the petitioner is a student of third year b. e. (civil) in the madhav institute of technology and science, gwalior (hereinafter referred to as m. i. t. s.). he is also the convenor of the action committee of the m. i. t. s. students union, gwalior. the university published a news item (annexure b) informing the students that examinations for engineering classes will be held from 1st december, 1975. the contention of the petitioner is that this action of the uni-verity was in contravention of regulation no. 3, which lays down.....
Judgment:

Rania, J.

1. This is a petition under Articles 226 and 227 of the Constitution by a student of the Jiwaji University Gwalior hereinafter referred to as 'the University') for quashing the programme of B. E. examinations, which were to be held from 1st December, 1975.

2. The petitioner is a student of Third Year B. E. (Civil) in the Madhav Institute of Technology and Science, Gwalior (hereinafter referred to as M. I. T. S.). He is also the Convenor of the action committee of the M. I. T. S. Students union, Gwalior. The University published a news item (Annexure B) informing the students that examinations for Engineering Classes will be held from 1st December, 1975. The contention of the petitioner is that this action of the Uni-verity was in contravention of Regulation No. 3, which lays down that only two examinations will be held every year, one in November and the other in April. Accordingto him, the University has already held two examinations this year one in January and the other in July and, therefore, a third examination cannot be held. He further submitted that during this year, the session started from 28th August, 1975 and the classes of Third Year B. E. started from 18th September, 1975. It was therefore, too early to hold examinations from 1st of December, 1975. A petition of grievances was, therefore, presented by the M. I. T. S. students on 24th November, 1975. before the Principal for changing the date of examination in view of the diffculties mentioned in the petition. As no action was taken on the said petition, the students wanted to meet the Vice Chancellor, but were not allowed by the police to do so. The petitioner therefore, in his capacity as convener of the student union presented this petition praying that the programme of examination as announced by the University be quashed.

3. The petitioner had also filed an application for restraining the University not to hold the Engineering Examination from 1st December, 1975; but this application was rejected and we are told that the examinations have since been held and about 90 per cent, of the students have appeared at the said examinations.

4. In the return filed on behalf of the University it has been stated that the January examination was for the year, 1974. It was postponed repeatedly at the request of students and was ultimately held in January. Thus in the Year 1975 only two examinations were held one in July and the other in December. It is further submitted that the session commenced very late in August and classes started in September for reasons beyond the control of University and, therefore, the examination in question was held in December instead of in November as prescribed by Regulations No. 3. Thus the action of the University was perfectly legal as well as justified. The petition has been opposed on certain other grounds, which will be considered during the course of this order.

5. So far as holding of 3 examinations in one Year is concerned it has been adequately explained on behalf of the University that the examination held in January, 1975 was in fact for the Year 1974. It should have been held in November 1974, but on the persistent demand of the students for postponement, it was ultimately held in January, 1975. As for the academic Year 1975 only two examinations have been held one in July and the other in December. Since the Ordinance contemplated an examination at the end of each semester, there appears to be nothing illegal in the course adopted by the University in thecircumstances of this case and in fact Shri A. B. Mishra learned counsel for the petitioner had nothing to say about it. The main point urged by him was that the action of the University in fixing examinations from 1st of December was in contravention of Regulation No. 3 referred to above and is therefore, liable to be quashed.

6. Before proceeding to deal with this question it is necessary to refer to certain provisions of the M. P. Vishwavidyalaya Adhini-yam, 1973 (hereinafter referred to as 'the Act') which have a bearing on this question. Under Section 38 of the Act the Executive Council has been empowered to make Ordinances and under Clause (vi) of Section 37 of the Act an Ordinance may provide for the conduct of Examinations. Section 40 empowers the authorities and other bodies of the University to make regulations subject to the provisions of the Act, Statutes and Ordinances.

7. The Ordinance for the Five Year integrated degree course Bachelor of Engineering Examination provides that the course of study shall extend over a period of five full academic years and the academic year shall consist of two semesters. Paragraphs 2 and 3 of the Ordinance which are pertinent to this case are reproduced below for ready reference.

'2. There will be a University Examination in all subjects of each year of the 5 Y. D. C. at the end of each semester i. e. ordinarily one in November and the other in April.

3. Subject to the provisions of this Ordinance, the scheme of examinations, the syllabus and text books if any to be prescribed or recommended in connection with the subjects for the examination covered by this ordinance and the conditions on which the students shall be admitted to the said examination shall be in accordance with the provisions made by or under the regulations to be made by the academic council after considering the recommendations of the Board of studies and the Faculty concerned.'

8. Certain regulations have been framed by the Academic Council on the recommendations of the Board of Studies and the most important regulation on which the case of the petitioner is mainly based is Regulation No. 3 which reads as under:

'3. Two examinations will be held every year one in November and the other in April. The November and April Examination will be the First semester and the second semester examination respectively for students who start the session in July.

The April and November examinations will be the First semester and second semester examinations respectively for students who start the session in December.'

9. The contention of Shri A. B. Mishra, learned Counsel for the petitioner, is that since Regulation No. 3 provides that only two examinations will be held every year, one in November and the other in April, the University could not hold an examination commencing from the 1st of December. He urged that since the programme of examinations announced by the University is in contravention of Regulation No. 3, it is liable to be quashed. Shri J. P. Gupta, learned counsel for the University urged that in the first place the programme as announced cannot be held to be in contravention of the Regulation if read as a whole. His next contention was that even if it is held that the programme was in contravention of Regulation No. 3 it cannot be struck down because it was fixed by the vice' chancellor in exercise of his emergency power under Section 15 (4) of the .Act

10. If we carefully see the language of Regulation No. 3 it would appear that although the said Regulation provides that there will be only two examinations every year one in November and the other in April, the said examinations are to be held for students who start their session in July and December respectively. It is pertinent to note that according to paragraph 1 of the Ordinance, each academic year will consist of two semesters, and there should be a University examination at the end of each semester as required by paragraph 2 of the Ordinance. The dictionary meaning of the word 'Semester' is six months. Thus two examinations in each academic year are contemplated by holding one examination at the end of each Semester.

11. As pointed out above, the examination in November is to be held for students who start their session in July while the examination in April is to be held for students who commence their session in December. There is no provision in the Ordinance or in the Regulations as to when examination should be held if the session commences in August instead of July or in January instead of December. In the instant case it is clear from the averments in the petition itself that the session started from the 28th of August, 1975. Regulation No. 3 is not applicable in terms to a case where the session commences in August instead of July. It seems that such a situation was in the contemplation of the Executive Council and that is why it made a very flexible provision in paragraph 2 of the Ordinance by laying down that the examination will be held at the end of each semester, that is, ordinarily one in November and the other in April.

12. If we read paragraph 2 of the Ordinance with Regulation No. 3, it would be clear that where the session commences in July, the University is bound to hold examination in November: but where under extraordinary circumstances the session commences in August instead of July the examination may be held later for the benefit of the students in order to give the teachers an opportunity to complete the course and the students sufficient opportunity to prepare for the examination. Thus the holdings of an examination in December for students who commenced their session in August does not appear to us to be in contravention of either the provisions of the Ordinance referred to above or Regulation No. 3 as contended by the petitioner.

13. Further it appears that when the Principal, M. I. T. S. by his letter dated 29-9-1975 (Annexure R. IV) proposed that all Bachelor of Engineering Examinations shall commence from 1-12-1975 the Vice-Chancellor treating this as a case of emergency approved the programme in exercise of his powers under Section 15 (4) of the Act. Subsection (4) of Section 15 of the Act reads as under:

'(4) If in the opinion of the Kulpati any emergency has arisen which requires immediate action to be taken, the Kulpati shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority, committee or other body as would have in the ordinary course dealt with the matter:

Provided that the action taken by the Kulpati shall not commit the University to any recurring expenditure for a period of more than three months:

Provided further that where any such action taken by the Kulpati affects any person in the service of the University such person shall be entitled to prefer, within thirty days from the date on which such action is communicated to him, an appeal to the Executive Council.'

The said sub-section empowers the Vice-Chancellor to take such action as he deems necessary in case there is an emergency subject to the condition that he should report his action to the appropriate officer or authority which would have in the ordinary course dealt with the matter.

14. Sub-section (5) of Section 15 of the Act provides that on receipt of the report the authority concerned, if it does not approve of the action taken by the Vice-Chancellor, shall refer the matter to the Chancellor whose decision shall be final. Sub-section (6) lays down that the action taken by the Kulpati under Sub-section (4) shall be deemed to betaken by the appropriate authority until it is set aside by the Chancellor on a reference made under Sub-section (5) or is set aside by the Executive Council on an appeal under the second proviso to Sub-section (4). There is nothing to show that the action of the Vice-Chancellor was not approved either by the authority concerned or any appeal was filed against the action taken by him to the Executive Council, In these circumstances the action of the Vice-Chancellor is not open to challenge in these proceedings particularly because it was within the competence of the authorities of the University, namely, the Academic Council and the Executive Council.

15. Shri A, B. Mishra, learned counsel for the petitioner, urged that from the material on record it cannot be inferred that any emergency had arisen justifying the exercise of emergency powers.

16. In Shivnarayan v. Vice-Chancellor, University of Sagar (AIR 1960 Madh Pra 208), a Division Bench of this Court while considering Sub-section (4) of Section 14 of University of Sagar Act which is in pari materia with Sub-section (4) of Section 15 of the Act, held that it is the Vice-Chancellor alone who has the power to decide whether an emergency has arisen which calls for action and the Court cannot enquire into the existence of the emergency and the propriety of the action of the Vice-Chancellor. A similar view was taken by this Court in Pra-kash v. Principal, S. B. R. P. Arts College, Bilaspur (1965 Jab LJ 405) = (AIR 1965 Madh Pra 217). We are in agreement with this view. In our view the Vice-Chancellor is the sole Judge of the existence of the emergency calling for immediate action and his discretion in the matter is not open to judicial review. The only limitation on his power to act in an emergency is that he cannot under the cloak of an emergency usurp to himself the powers which the University authorities have not under the Act or the statutes or ordinances.

17. In this case the power to fix programme of examination in a situation for which the Regulation and the Ordinance do not specifically provide, was within the competence of the Executive Council as well as the Academic Council and, therefore, the Vice-Chancellor could exercise the powers of these authorities in the matter in an emergency. His action also appears to be bona fide.

18. We, therefore, hold that the programme of examination in question is not illegal and is, therefore, not liable to be quashed on that ground; but we would like to observe that the University should take necessary steps to see that the scheme of' examinations as contemplated by the Ordinance and Regulations is adhered to both in letter and spirit. The session should ordinarily commence in July and December as contemplated by the provisions of the Ordinance and the Regulations referred to above. The entire system of teaching goes out of gear if the session commences late in August or September and this is what the students are bound to resent because holding of extra classes is not an adequate substitute for regular classes throughout the session commencing from July or December as the case may be. The students cannot be expected to digest all that they are taught by intensive teaching by holding extra classes during a short period. After each lesson they should have time to study and digest what they are taught before undertaking another lesson. It is true that only a few of the students have come to this Court with a complaint; but that does not mean that others have no grievance. We would, therefore, expect the University authorities to bear this aspect in mind so that students may have been taught and be well prepared for the examination. It appears that in the instant case the notification regarding the examination was published in the news-papers late in November while the examination was going to commence from the 1st of December, 1975. This is not fair because the students did not get sufficient time to prepare for the examination.

19-20. With the aforesaid observations, we hereby dismiss the petition; but direct that there shall be no order as to costs and security amount shall be refunded to the petitioner.

P. S. :-- My learned brother, Bhachawat, J. has taken considerable pains over this case by discussing at length the scope of the emergency powers of the Chancellor in the light of certain decisions of the Supreme Court, even though the matter was not discussed at the bar.

21. It is almost settled that whenever a power is conferred on any authority under a statute, it is meant to be exercised bona fide for the purposes thereof; and any action taken by the authority in exercise of such power can be struck down by this Court if it is mala fide or amounts to abuse of the power. It appears to me that the action of the Vice-Chancellor, in the circumstances of the case, cannot be said to be mala fide,

22. It is obvious that the second proviso to Sub-section (4) of Section 15 of the Act is not attracted to this case and a reference thereto in paragraph 14 of my order was through inadvertence. I am grateful to my learned brother for pointing out this mistake.

Bhachawat, J.

I read with great advantage the lucid and well-expressed order of my learned brother Raina. J. Albeit I concur with conclusion, since the strands of my reasoning differ, I have to append my separate opinion.

23-24. I need not repeat the facts as all the relevant facts are succinctly presented in the order of brother Raina, J.

25. The petitioner, who has filed this petition, is the student of 3rd Year B. E. (Civil). As is evident from the averments made in paragraph 5 of the petition, he alleges to have been authorised by the student community of the Madhav Institute of Technology and Science. Gwalior vide Annexure E, dated 25-11-1975 and to have filed the present petition under that authority on behalf of that Student Community. It is averred in the return dated 12-12-1975 on behalf of respondents 1 and 2 (hereinafter referred to as the 1st return) and duly supported by affidavit to which there is no denial by a counter-affidavit on behalf of the petitioner, that there are 1000 students in the College. From the resolution, Annexure E, it is unequivocally clear that in the meeting, in which the resolution, Annexure E, was passed out of the 1000 students on roll, only 72 students were present. This clearly indicates that the vast majority of the students was not opposed to the holding of the examination from 1st December, 1975. This impression gets reinforced from the uncontroverted averments in paragraph 3 of the 1st return and paragraph 1 (ii) the supplementary undated return on behalf of the University, filed on 18-12-1975 (hereinafter referred to as the 2nd return) that 90% of the students were agreeable for the examination to be held in December and that they have actually participated in the examination. For the aforesaid reason, it can safely be held that the petitioner does not represent the Student Community of the College and is not entitled to file the present petition on behalf of them.

26. Even in face of the aforesaid view, it can well be contended that at any rate, the present petition is competent on behalf of the petitioner himself. True: so far as the competence to present the present petition on behalf of the petitioner himself alone is concerned, the contention deserves credence; but even then the petition--without going into other merits--deserves to be dismissed on the short ground of delay.

27. The present petition was presented on 27-11-1975. There is an averment in the 1st return that announcement regarding the commencement of the examination from 1-12-1975 was made on 11th October,1975 and the petitioner himself had filled in his form for the examination and paid the fees therefor on 28-10-1975 which was the last date for filling in the form with late fee according to the announced programme of examination. If the petitioner genuinely felt aggrieved, he could have immediately, after the announcement of the programme, filed the petition. Not only that the petitioner did not file the petition challenging the examination programme, immediately after the announcement of the programme, but he acquiesced in it by filling in his form on 28-10-1975 which was the last date on payment of late fees. The cause of this delay has not been explained, much less satisfactorily, in the petition. In the particular circumstances of this case where the interests of the student Community of the aforesaid College are involved and whose interests, especially of those who were agreeable for the examination in December and have actually participated in it are to be affected, petition filed at the nick of the examination deserves to be rejected only on the ground of delay. I would like to say here that in a petition for writ, all material facts have to be correctly disclosed. The facts that the programme was announced on 11th October, 1975, 90% of the students were not only not opposed, but agreeable for the examination and that the petitioner himself had filled in the form on 28th October, 1975 were material facts which had a bearing on the fate of the petition. The concealment of these material facts provides an additional ground for rejecting this petition.

28. The contentions and counter contentions raised by the learned counsel for the parties are subsumed in the following questions which are being formulated by me:

(i) Whether the holding of examination in question commencing from 1st December, 1975 is in contravention of Regulation No. 3 contained in the Book intituled a 'Faculty of Engineering Courses of Studies and Prescribed Books for the Examination of 1975 B. E. (Five-Year Integrated Degree Course) and M. E.' published by the Registrar, Jiwaji University, Gwalior (M. P.) under the heading 'Regulations' (which is reproduced hereinafter), which provides that the two examinations will be held every year, one in November and the other in April.

(ii) Whether the programme of examination in question cannot be questioned as the order therefor has been passed by the Kulpati in exercise of his powers under Section 15 (4) of the Madhya Pradesh Vishwavidyalaya Adhiniyam. 1973 (hereinafter referred to asthe Adhiniyam) as in his opinion an emergency had arisen.

To put it differently, whether the orders passed by Kulpati in exercise of powers under Section 15 (4) of the Adhinivam are not liable to judicial examination, i. e. are not justiciable.

29. I shall deal with the aforesaid questions ad seriatim.

30. The Regulations which are published in the aforesaid book, we were told by the learned counsel for the University, were framed by the Academic Council of the University on the recommendations of the Board of Studies. The counsel for the petitioner also did not dispute this.

31. The Adhiniyam expressly makes the Statutes subject to the Adhiniyam, Ordinances subject to the Statutes and Regulations subject to the Adhiniyam, Statutes and Ordinances.

32. The provisions contained in Sections 35 to 40 of the Adhiniyam provides for the scope and the authority competent to frame Statutes, Ordinances and Regulations. The competence to frame the Ordinances except the 1st Ordinance is vested in the Executive Council as provided by Section 38 of the Adhiniyam. According to Clauses (iii) and (vi) of Section 37 of the Adhiniyam, the provision regarding the examinations leading to the degrees, diplomas and certificates of the University and the conduct of examination falls within the scope of Ordinances.

33. The Ordinance published in the book referred to in paragraph 6 provides as to when the examinations shall ordinarily be held. The relevant provisions of this Ordinance are reproduced below:

'2. There will be an University Examination in all subjects of each year of the 5 Y. D. C. at the end of each semester i. e. ordinarily one in November and the other in April.

3. Subject to the provisions of this Ordinance, the scheme of examinations, the syllabus and text books if any, to be prescribed or recommended in connection with the subjects for the examination covered by this ordinance and, the conditions on which the students shall be admitted to the said examination shall be in accordance with the provisions made by or under the regulations to be made by the academic Council after considering the recommendations of the Board of Studies and the Faculty concerned.'

34. On a plain reading of Clause 2, what is imperative according to it is that there should be an examination at the end of each semester. The word 'semester' is not defined either in the Adhiniyam or any of the Statutes or Ordinances or Regulations. Thus, the dictionary meaning has to be ad-opted. The dictionary meaning of the word semester as given in the Webster's New World Second College Edition is '1. a six month period; half year 2. either of the two terms, of about eighteen weeks each, which usually make up a school or college year'. Keeping in view this dictionary meaning, the examination at the end of each semester means at the end of each term. According to sub-clause (i) of Clause 1 of the aforesaid Ordinance which reads thus:

'(i) The course of study shall extend over a period of five full academic years and the academic year shall consist of two semesters.'

there are two semesters, i. e. two terms each consisting of the half year of the academic year. I would, therefore, iterate that according to the fore-quoted Clause 2, what is mandatory is the holding of examination at the end of the semester. The months of examinations mentioned in this Clause have been prefaced with the word 'ordinarily'. Had the intention been to make it a wooden rule that the examinations should be held only in November and in April, the use of word 'ordinarily', which is destructive of that intention, would not have been made.

35. Regulation No. 3 referred to hereinabove reads thus:

'3. Two examinations will be held every year, one in November and the other in April. The November and April Examination will be the First semester and the second Semester examinations respectively for students who start the Session in July.

The April and November examinations will be the First Semester and the second Semester examinations respectively for students who start the session in December.

36. On a correct reading of the fore-quoted Regulation also, its true interpretation is nothing other than what I have concluded about the Ordinance Clause 2. According to this Regulation also, the holding of examinations in November and April is preconditioned with the month of the commencement of the Sessions. This is evident from the governing expression 'for students who start the session in July' and 'for students who start the session in December'. This interpretation makes sense also. One cannot be oblivious that situation may arise due to which the session may not start in July or December, or even when the session commenced as scheduled, for similar reason, it may not be possible to hold examination immediately at the end of the semester. It would be of significant relevance here to state that in the instant case itself on petitioner's own showing, the session did not begin in July and began in August. The draftsmen of the Ordinance and Regulations have displayed practical wisdom. The relevant Clause of this Regulation has to be read to contain flexibility regarding the months of examinations. This apart, even assuming that the language employed in the fore-quoted regulation makes it mandatory that examinations are to be held in November and April, the regulation to that extent is invalid and cannot be given effect to. In view of what I have said in paragraph 9 of this order, the Regulations rank below the Ordinances and it cannot be inconsistent with the Adhiniyam, the Statutes >and the Ordinances and as such, in case of any clash between the Ordinance and Regulation, the latter has to be made to stand down.

37. In the light of the aforesaid discussion, the contention of the learned counsel for the petitioner that the holding of the impugned examination is in violation of the fore-quoted Ordinance and Regulation is repelled and the question No. (1) is answered in the negative. The question as to who is the authority competent to fix it is a different one. As observed by Raina, J. in paragraph 17 of his order, the power to fix programme of examination in a situation for which the Regulation and the Ordinance do not specifically provide, was within the competence of the Executive Council as well as the Academic Council. The true effect of the fore-quoted Regulation No. 3 is that it is imperative that there must be two examinations in each academic year, one after each semester, ordinarily one in November and the other in April provided that the academic year commences in July.

38. I would now turn to the consideration of question No. (ii) as formulated by me in paragraph 6 of this order. In the instant case, the examination programme in question has not been fixed either by the Executive Council or the Academic Council, but by the Kulpati vide his order dated 10-10-1975, which is reproduced below:--

'Keeping in view the fact that the date about commencement of examinations will have to be notified immediately and till then the meetings of Boards of Studies cannot be called, an emergency has arisen which requires immediate action to be taken. If the date of commencement is not notified immediately there would be unrest amongst the students. I, therefore, direct that the examinations will commence on 1-12-1975 as proposed by the principal. This action be reported to the Boards of Studies at their next meetings,

Sd/- G. N. Tandon,

10-10-1975.'

(Extracted from File No. B. E./Exam-9/75((Previous No. B. E./7 + 8)- of Examination Section of Jiwaji University, Gwalior, which was produced before us).

39. It was contended by the learned counsel for the University that the Kulapati was competent to pass the aforesaid order in exercise of his powers under Sub-section (4) of Section 15 of the Adhiniyam and relying on the Division Bench decisions of this Court in Shivnarayan v. Vice-Chancellor, Sagar University (AIR 1960 Madh Pra 208) and in Prakash v. Principal, S. B. R. P., College 1965 Jab LJ 405 = (AIR 1965 Madh Pra 217), it was further contended that this order is not open to judicial review. Raina, J. has agreed with the view taken by this Court in the aforesaid decisions and observed as under:--

'In our view the Vice-Chancellor is the sole Judge of the existence of the emergency calling for immediate action and his discretion in the matter is not open to judicial review. The only limitation on his power to act in an emergency is that he cannot under the cloak of an emergency usurp to himself the powers which the University authorities have not under the Act or the Statutes or Ordinances.'

40. I agree with the latter part of the observation of Raina, J. as to the extent of the power exercisable by the Kulapati under the aforesaid sub-section, but as regards the earlier part of the observation. I am unable to persuade myself to agree with the view that the power of the Kulapati is absolute. In the light of the view I have taken in para. 5 of this order, I do not propose to dilute much on this point. I shall just allude to it.

41. For an intelligent understanding: of the question involved, it would be useful to reproduce Sub-sections (4), (5) and (6) of Section 15 of the Adhiniyam as follows:--

'(4) If in the opinion of the Kulapati any emergency has arisen which requires immediate action to be taken, the Kulapati shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority, committee or other body as would have in the ordinary course dealt with the matter.

Provided that the action taken by the Kulapati shall not commit the University to any recurring expenditure for a period of more than three months:

Provided further that where any such action taken by the Kulapati affects any person in the service of the University such person shall be entitled to prefer, within thirty 'days from the date on which such action as communicated to him, an appeal to the Executive Council.

(5) On receipt of a report under Sub-section (4) of the authority, Committee or body concerned does not approve the action taken by the Kulapati it shall refer the matter to the Kuladhipati whose decision thereon shall be final.

(6) The action taken by the Kulapati under Sub-section (4) shall be deemed to be the action taken by the appropriate authority until it is set aside by the Kuladhipati on a reference made under Sub-section (5) or is set aside by the Executive Council on an appeal under the second proviso to Sub-section (4).'

42. On a bare reading of the underlined portion of the aforesaid sub-sections, it becomes evident that the power exercisable by the Kulapati is open to scrutiny by the Committee or Body competent to deal with the matter in the ordinary course and by the Kuladhipati.

43. The decisions of this Court referred to in paragraph 17 of this order relate to the consideration of Sub-section (4) of Section 14 of the University of Saugar Act, 1946 (hereinafter referred to as Saugar Act) to the extent it is quoted in decisions only.

44. At this stage, it would be pertinent to reproduce the relevant observations of the fore-referred earlier decisions of this Court: (i) AIR 1960 Madh Pra 208.

'Under Section 14 (4) of the University of Saugar Act, 1946, the Vice-Chancellor is empowered to take immediate action in any emergency without reference to the Executive Council. That sub-section provides:

'The Vice-Chancellor may, in any emergency which in his opinion requires that immediate action should be taken, take such action as he deems necessary, and shall at the earliest opportunity report his action to the authority which in the ordinary course would have dealt with the matter.'

According to this provision, it is the Vice-Chancellor and the Vice-Chancellor alone who is concerned, and the intention of the framers of the Act is to leave the Vice-Chancellor the power to decide whether any emergency exists which calls for immediate action. The Court cannot enquire into the existence of emergency or the propriety of the action taken by the Vice-Chancellor without reference to the Executive Council. In this connection the observations made by the Supreme Court in Vice-Chancellor, Utkal University v. S. K. Ghosh, AIR 1954 SC 217 as to the limits of the power of the High Court to interfere in the decisions of an incorporated body like a University are pertinent.'

(ii) 1965 Jab LJ 405 = (AIR 1965 MP 217).

'Now, Section 14 (4) is as follows:

'The Vice-Chancellor may, in any emergency which in his opinion requires that immediate action should be taken, take such action as he deems necessary, and shall at the earliest opportunity report his action to the authority which in the ordinary course would have dealt with the matter.'

It will be seen that under this provision the Vice-Chancellor can act only in a matter which any authority of the University is competent to deal with and if, in the opinion of the Vice-Chancellor, there is an emergency which requires immediate action in the matter without reference to the University authority concerned. The Vice-Chancellor is no doubt the sole judge of the existence of any emergency calling for immediate action and this Court cannot inquire into the existence of emergency or the propriety of the action taken by the Vice. Chancellor without reference to the University Authority. But this Court can certainly examine the legality of the action taken in the purported exercise of the power under Section 14 (4) and see whether the Vice-Chancellor has taken action in a matter which any of the University authorities was competent to deal with. The Vice-Chancellor cannot under the cloak of an emergency usurp to himself the powers which the University authorities have not under the Act, or the University Statutes or Ordinances.'

The Saugar Act was not made available to us: it cannot be said whether it contained provisions similar to the second proviso of Subsection (4) and Sub-sections (5) and (6) of Section 15 of the Adhiniyam reproduced here inabove. In view of this, these decisions cannot he relied upon for the view that the power of the Kulapati under Sub-section (4) of Section 15 of the Adhiniyam is absolute. With utmost respect, I would say that Raina, J. has also not considered this aspect: of course he has referred to these provisions in a different context.

45. I shall also deal with this point, ignoring the second proviso to Sub-section (4) and Sub-sections (5) and (6) of Section 15 of the Adhiniyam, and taking into consideration only the below-quoted Sub-section (4) of Section 15 of the Adhiniyam:

'(4) If in the opinion of the Kulapati any emergency has arisen which requires immediate action to be taken, the Kulapati shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority, committee or other body as would have in the ordinary course dealt with the matter.'

It cannot be gainsaid that in view of the underlined portion in the aforesaid sub-section, the formation of the opinion by the Kulapati purely a subjective process and the law has provided for the opinion of the Kulapati and not of the Court.

46. The matter that when the formation of the opinion is subjective is it liable to judicial review; if so to what extent and under what circumstances, had arisen before the Supreme Court in Barium Chemicals Ltd. v, Company Law Board (AIR 1967 SC 295), Rohtas Industries Ltd. v. S. D. Agarwal (AIB 1969 SC 707) and in Rampur Distillery and Chemical Company v. Company Law Board (AIR 1970 SC 1789) and the principle discernible from all these decisions is that such opinion cannot be challenged except on the grounds of mala fide; but if in reaching such opinion, the relevant legislation is misapprehended or relevant material is ignored from consideration or irrelevant material is considered, the jurisdiction of the Court to examine the opinion is not excluded. Thus, in the setting and background of the principles enunciated in the fore-quoted authorities, it can well be said that the order of the Kulapati under Sub-section (4) of Section 15 of the Adhiniyam, bearing in mind that provision, only to the limited extent quoted above is liable to the limited scrutiny as indicated above. The same conclusion is re-inforced by a decision of their Lordships of the Supreme Court in Union of India v. J. N. Sinha, AIR 1971 SC 40 which involved the consideration of the Fundamental Rule 56 (j) which read thus:

'Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.

(i) if he is in Class I or class II Service or post the age limit for the purpose of direct recruitment to which is below 35 years, after he has attained the age of 50 years,

(ii) In any other case after he has attained the age of 55 years.

Provided that nothing in this Clause shall apply to a Government servant referred to in Clause (e) who entered Government service on or before 23rd July, 1966 and to a Government servant referred to in Clause (f).' (Quoted from AIR 1971 SC 40).

The relevant observation in the decision is reproduced below:

'8. Now coming to the express words of Fundamental Rule 56 (j), it says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.'

47. In the light of the aforesaid discussion, question No. (ii) is answered in the affirmative.

48. The Kulapati is the principal administrative and academic officer of the University. Sub-section (2) of Section 15 of the Adhiniyam which reads thus:

'(2) It shall be the duty of the Kulapati to ensure that this Act, the Statutes, the Ordinances and the Regulations are faithfully observed and he shall have all powers necessary for this purpose.'

casts an obligation on the Kulapati to ensure that the provisions of the Adhiniyam, Statutes, Ordinances and Regulations are faithfully observed.

49. According to dictionary meaning, 'emergency' means a sudden, generally unexpected occurrence or set of circumstances demanding immediate action. It was very much in the knowledge of the Kulapati that the academic year had commenced in the instant case in August and as such, it was not possible to hold the examination in November. Thus, in the instant case, it was not a sudden or unexpected occurrence. There seems to be no conceivable reason as to why the Kulapati should not have taken steps in time to call the meeting of the concerned Council for fixing the examination programme, and should have waited till the Principal of the College reminds him about it, The provisions of Section 15 of the Adhiniyam cannot be intended to permit the Kulapati to himself create an emergency so as to usurp the power which ordinarily under the provisions of the Adhiniyam, Statutes, Ordinances and Regulations, vest in the authority or Body or Committee provided therein. As such, it is doubtful that the exercise of the power by the Kulapati in the instant case can be said to be bona fide- It would be of significant relevance here to state that the Kulapati, without making any effort for calling the meeting ofthe concerned Council makes a dogmatic statement in the impugned order that the meeting cannot be called. Section 15 (4) of the Adhiniyam permits the formation of the opinion of emergency from the circumstances existing, but does not permit the imagination of the circumstances for forming that opinion about emergency. Nothing has been placed on record to indicate why the meeting could not be called. From Letter No. B. E. (Exam./3637, dated 29th September, 1975) from the Principal, Madhav Institute of Technology and Science, Gwalior to the Registrar of the University (Page 29 of the Paper Book) and the Office Note dated 24-9-1975, it is seen that the question of the examination programme was initiated in September, 1975. There is no material in this record (University's above referred file No. B. E./Exam.9/ 75) that an attempt to call the meeting of the concerned Council was even made. Hence, there is a total absence of the material to support the statement in the impugned order of the Kulapati that the meeting could not be called. If on fixing an immediate date for the meeting, notices were issued and on that date, the meeting could not be held, the thing would have been different. The only ground, according to the impugned order of the Kulapati for formation of opinion as to existence of emergency is 'the meetings of Board of Studies cannot be called' and for which, us observed earlier there is no material,

50. Brother Raina, J. has also observed in paragraph 14 of his order that: 'There is nothing to show that the action of- the Vice-Chancellor was not approved either by the authority concerned or any appeal was filed against the action taken by him to the Executive Council. In these circumstances, the action of the Vice-Chancellor is not open to challenge in these proceedings particularly because it was within the competence of the authorities of the University, namely, the Academic Council and the Executive Council'. With due respect, I would say that there is no appeal provided against the order in question of the Kulapati. The right of appeal is given to a person who is in the service of, the University and against whom an order is passed under Sub-section (4) of Section 15 of the Adhiniyam. Further, there is neither an averment in either of the returns, nor there is any material placed on record that the matter has been placed before the meeting of the Boardas directed in the impugned order of the Kulapati much less before the Council concerned. Had it been placed on record that the matter was already placed before the Council concerned and it had not indicated its disapproval in any manner whatsoever within a reasonable time, it could well be said that it has attained finality. In absence of any such material which it was the duty of the University to place, because in case the matter was in fact referred to the concerned Council, the material must be with the University this Court by putting a seal of finality to the order in question on the ground of presumed approval of the Academic Council or the Executive Council would be placing the concerned Council in an embarrassing situation with regard to its independent action on the order in question.

51. Looking to the important question of law of general importance of the powers of the Kulapati under Section 15 (4) of the Adbiniyam and the extent of the Court's power to examine its validity involved in the matter, I would have liked the matter to be placed before the Hon'ble the Chief Justice with a request for placing it before a larger Bench, but first for the reason that I am agreeing in conclusion with Brother Raina, J. and second the gap in the commencing of the session and the holding of the examination is in keeping with the scheme of the fore-quoted regulation. Ordinarily, when the sessions commence in July, examinations are to be held in November. In the instant case, the session has begun in August and the examination which is held in December meets the required gap. Thus, no prejudice as such is caused to the students and, therefore, there is no justifiable reason to invoke the extraordinary powers of this Court to interfere with the impugned order of the Kulapati.

52. In the result, the writ petition is dismissed,

BY THE COURT

53. The petition is hereby dismissed. There shall, however, be no order as to costs in the circumstances of the case. The security amount shall be refunded to the petitioner,


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