1. This is an application for appropriate reliefs under Article 226 of the Constitution by a student of the Madhusudan Law College of the Utkal University who had appeared in the LL.B. Examination, Law Part I, held in June, 1952 and was declared to be unsuccessful. The marks obtained by him in the various subjects of that examination are as follows:
PaperSubjectMarks awardedMaximum Marks.
ILaw of Crimes and Criminal Procedure.46100IIHindu Law.60100IIIContract and torts.60100IVConstitutional Law of England and India and Evidence.59100VRoman Law and International Law.29100VIJurisprudence.55
It appears that for passing the examination a candidate should secure at least 33 1/3 per cent, marks in every paper. The petitioner had passed in all the Papers except Paper V.
On 8-9-1952, he submitted a representation to the Vice-chancellor of the Utkal University stating that in Paper V the subject for the course of study prescribed by the Academic Council was 'International Law relating to peace' and that questions 9, 10 and 11 of that paper dealt with 'International Law relating to War and Neutrality' which were outside the course of study and that the failure of the petitioner to obtain pass marks in that Paper was mainly due to the aforesaid questions having been, set on a subject that was not included in the syllabus.
He further urged that if these questions were excluded the marks obtained by him in Paper V would be more than 33 1/3 per cent, and that consequently he should be declared to have passed the examination. This representation was rejected by the University authorities in their letter No. E.C. 401 dated 19th/20th September 1952. The petitioner then filed this writ application before this Court on 15-10-52. The delay in hearing the application was due to circumstances for which the petitioner was not responsible.
2. The material facts which are unchallenged are as follows: Under the old Regulations of the Utkal University the fifth Paper in Law, Part I dealt with the subject 'Roman Law and Ancient Law.' On 28-3-1949, the Academic Council, on the recommendation of the Board of Studies (Law), substituted 'Roman Law and International Law' for 'Roman Law and Ancient Law' and further decided that the distribution of marks should be 50 for Roman Law and 50 for International Law.
The Syndicate also in its meeting held on 16-5-1949 prescribed the following two text-books for International Law, namely, (i) Manual of International Law by G. Schwarzenberger, and (ii) Law ' of Nations, an Introduction to the International Law of Peace by J. L. Brierly. The decision of the Syndicate was also based on the recommendation of the Board of Studies. (Law). These changes were directed to be given effect to from 1951.
The Academic Council again met on 17-12-1949 for determining the - course of study for the LL.B. Examination for the year 1952 and though it made some changes in respect of some other Papers no alteration was made in Paper V which continued to be 'Roman Law and International Law.' The Syndicate which met on 21-4-50 for prescribing the text-books for the 1952 examination decided that the same text-books as were prescribed for the 1951 Examination (Manual of International Law by G. Schwarzenberger and law of Nations, an Introduction to the International Law of Peace by J. L. Brierly) should continue to be the text-books for the Law Examination of 1952.
Early in September, 1950, however, there was some correspondence between the then Vice-Chancellor Sri C. M. Acharya on the one hand and one of the Law Lecturers of the Madhusudan Law College Sri M. Mohanty on the other regarding the omission of Brierly's Law of Nations from the list of text-books as the said book was not available. The Vice-Chancellor further suggested that in Schwarzenberger's Manual of International Law, Chaps. 4 and 8 may be omitted. The Board of Studies (Law) met on 9-9-1950 to consider these suggestions and passed the following resolution regarding Paper V :
'Roman Law and International law relating to Peace. Manual of International law by G. Schwarzenberger be prescribed as the only text-book and only the following Chapters be read. Chapters 1, 2, 3, 5, 6, 7, 9 (omitting History and Science of International Law and Chapters 4 and 8) J. L. Brierly's book is not available and this be omitted.'
The Syndicate met on 12-9-1950 and accepted the recommendation of the Board of Studies (Law) so far as the prescribing of the text books for International Law was concerned. The Academic Council also met on 8-12-1950 and accepted the recommendation of the Board of Studies (Law) changing the subject of Paper V from 'Roman Law and International Law' to 'Roman Law and International Law relating to Peace and decided to give effect to this change from Law Part I Examination of 1952.
But some months before the aforesaid meeting of the Academic Council, the Vice-Chancellor, on 14-9-1950 addressed a letter to the Principal of the Madhusudan Law College (No. 5294) in which, inter alia, he stated 'in International Law relating to Peace only some Chapters of Schwarzenberger s Manual of International Law will be read.' This letter was written after the acceptance by the Syndicate of the change in the text books and presumably the Vice-Chancellor thought that the alteration in the course of study by the Academic Council would also follow as a matter of course.
Acting on the authority of this letter the Professor of Law, the Madhusudan Law College, issued a notice to all the students dated 21-9-50, the material portions of which are as follows :
'Changes in the Course of Studies. The following changes have been approved by the University authority in the matter of the Courses of Studies for 1951 and 1952 also. The course of studies is expected to be printed in a short time. Meanwhile the students may note the salient changes.(1) xxx xx(2) xxx xx(3) International Law relating to Peace only is covered by the syllabus.'
Again, in the notice published by the Utkal University in the Orissa Gazette dated 16-5-1952 announcing the programme for Law Part I Examination to be held in June 1952, it was stated the Paper V of Law Part I- would be 'Roman Law and International Law relating to Peace'.
3. The petitioner's main grievance is that the University authorities themselves gave wide publicity to the change in the course of study in Law Part I, Paper V and stated in unambiguous terms that said paper would deal with 'Roman Law and International Law relating to Peace' only. All the students were, therefore, under the impression that questions on International Law would be confined to that branch of International Law which related to 'Peace' and that no question would be set on the other branch which related to 'War and neutrality'. He was, however, taken by surprise when in the Examination Hall he noticed that questions Nos. 9, 10 and 11 in Paper V were set on 'War and Naturality'.
The printed question paper for law Part I, Paper V has been filed in this case (see annexure 'A'). There are fourteen questions in all of which questions Nos. 1 to 7 come under Group A which deals with Roman Law and questions Nos. 8 to 14 come under Group B which deals with International law. Questions 9, 10 and 11 deal with 'War and Neutrality'. In Group B a candidate is required to answer any three of the questions; but question No. 10 is made compulsory and 18 marks are allotted to that question.
The petitioner alleged that his failure in this Paper was mainly because of his inability to answer question No. 10 His Answer Book was produced before this Court and it appears that he obtained 29 marks out of 100 in this paper. Prior to the publication of the results it appears that the University authorities themselves were considering the advisability of giving some reliefs to the students. Mr. K. S. Murty, who is the Professor of Law of the Madhusudan Law College was the Examiner at that time and from his affidavit it appears that while awarding 29 marks out of a total of 100 to the petitioner in Paper V he further indicated in the Answer Book in parenthesis that the petitioner would have obtained 36 marks if his total marks were upgraded on the basis of his performance in respect of the other questions.
Hence the petitioner's contention that if the compulsory question No. 10 had been set on 'International Law relating to Peace' only he might have obtained pass marks, seems acceptable. If question No. 10 is wholly excluded he has secured 29 marks out of a total of 82 marks which work out to about 36 per cent.
4. The main contention of Mr. G. C. Dass on behalf of the petitioner was that the Academic Council alone was the competent authority to amend the courses of study and that when it altered the subject from 'International Law' to 'International Law relating to Peace' the Syndicate had no jurisdiction to prescribe Chapter 7 of G. Schwarzenberger's Manual of International Law which dealt with 'War and Neutrality' as one of the text books for the subject and that the paper setter who set questions on 'War and Neutrality' acted in excess' of his jurisdiction, in setting questions 9, 10 and 11. Hence, he urged that these questions should be declared to be 'ultra vires' and that they should be completely ignored in considering the performance of the petitioner in Paper V.
5. The jurisdiction of this Court under Article 226 of the Constitution over the authorities of the Utkal University was rightly not challenged by Mr. H. Mohapatra who appeared for the University. Doubtless, in -- 'Vice-Chancellor', Utkal University v. S. K. Ghosh', AIR 1954 SC 217 (A), the Supreme Court emphasised the well-known rule that in exercising powers under Article 226 the High Court should not constitute itself into an appellate authority and substitute its own judgment for the judgment of the authority whose order is under challenge before it.
In -- 'Veerppa Pillai v. Raman and Raman Ltd.', AIR 1952 SC 192 at pp. 195-196 (B), their Lordships pointed out that if authorities act wholly without jurisdiction or in excess of jurisdiction the High Court may, in appropriate cases, exercise its special jurisdiction under Article 226 subject of course to the limitations mentioned above. Hence, the main questions for consideration in the present case are as follows:
(i) Did the Syndicate act in excess of its jurisdiction in prescribing Chapter 7 of G. Schwarzen-berger's Manual of International Law as part of the text-book for Law Part I Examination?
(ii) Did the paper setter act in excess of his jurisdiction in setting questions on 'War and Neutrality' (questions 9, 10 and 11)?
6. At this stage it will be helpful if I summarise briefly the powers and functions of the various relevant authorities of the Utkal University. The laws of the Utkal University are to be found in
(i) The Utkal University Act, 1943;
(ii) The Statutes made by the Senate of the University under that Act; and
(iii) The Regulations made by the Academic Council under that Act.
The Senate is the supreme legislative body and under Section 8 (5) of the Act it has power to review the actions of the. Syndicate and of the Academic Council. The Syndicate is the chief executive authority of the University and one of its important functions is to prescribe text-books for the courses of study and to conduct the examination of the University (see Section 8 (6)(b) and (d) read with Section 9 (6) of the Act). The Academic Council's main functions are to prescribe the course of study and curricula and to have general control of teaching in Colleges (Section 11(1)) and to maintain a high standard of instruction everywhere.
It will thus be noticed that the Academic Council and the Syndicate are two independent authorities whose functions have been well demarcated in the Act itself. The power to prescribe all courses of study and curricula has been conferred exclusively on the Academic Council, the Syndicate's power being limited to the prescribing of text-books for the courses of study as determined by the Academic Council.'
The Syndicate has no power to determine the course of study for any examination or to modify the decision of the Academic Council dealing with such courses of study. Doubtless, both these authorities are under the general control and supervision of the Senate. But in respect of certain functions of the Syndicate even the powers of the Senate are somewhat circumscribed by Sub-section (6) of Section 8 which, however, is not very material for the present discussions.
7. In the Statutes of the Utkal University also the autonomous nature of the Academic Council is clearly maintained. Thus, in law 2 of Chapter 9 while recapitulating the powers of the Syndicate to prescribe text-books for the courses of study, to conduct the examinations and publish the results, to lay down the standard of proficiency to be required for ordinary degrees and to control all the examinations of the University it is nowhere provided that the Syndicate could either alter or modify any decision of the Academic Council regarding the courses of study or curricula.
On the other hand in law 2 of Chapter X of the Statutes, the exclusive power of the Academic Council over these matters is reiterated and it is further-provided in Law 2 (2) (c) that the Academic Council may make Regulations relating to the courses, examinations and the conditions under which students should be admitted to examinations for the degrees of the University.
In law 5 (2) and (3) of Chapter 13 of the Statutes it is further provided that no Regulation ofthe Academic Council shall be given effect to untilit is approved by the Senate. But the Vice-Chancellor is given the power to give immediate effectto any Regulation of the Academic Council evenprior to its consideration by the Senate.
Mr. H. Mohapatra on behalf of the Universityfiled a memo slating that the Resolution of therelevant Regulation and changing the heading ofLaw Part I, Paper V to 'International Law relating to Peace' was given effect to by the Vice-Chancellor on 10-2-51 and was also approved by theSenate on 28-3-51. There is thus in force a validResolution of the Academic Council prescribingthe course of study for Law, Part I, Paper V as'International Law relating to Peace'.
8. Some arguments were advanced about the precise meaning to be given to the expressions 'course of study -- 'curricula', syllabus' etc., occurring in the Act and the Statutes. For the purpose of deciding this application it is unnecessary to enter into an elaborate discussion about the precise significance of these expressions. A perusal of the Regulations of the University gives a general idea about the courses of study or curricula prescribed by the Academic Council for the various examinations conducted by the University. It may be that in respect of some examinations the Academic Council has prescribed detailed courses of study; whereas for some other examinations such as M. B. B. S. the courses of study are not so detailed but are given under general heads (see Chapter X).
But in Chapter VIII of the Regulations detailed courses of study for Law Part I and II have been prescribed and the subjects to be studied for every Paper of the examinations have been given. It was rightly not contended that the subject 'Roman Law and International Law relating to Peace' was not part of the course of study for Law Part I or else that the Academic Council had no jurisdiction to prescribe such a subject for the examination.
9. The Board of Studies is a subsidiary statutory authority created by the Syndicate for the purpose of advising the Syndicate and the Academic Council in respect of various branches of knowledge. 'Chapter XII of the Statutes describes in detail the various branches of studies for which the Board of Studies could be created and Law is one of those branches. Law 2. Charter XII further says that in selecting members of the Board of Studies the Syndicate shall select persons who are experts or others who have special knowledge in their respective subjects. Hence, it is clear that the Board of Studies (Law) consisted of gentlemen who were specialists in Law and who were fully aware of the distinction between 'International Law' on the one hand and 'international Law relating to Peace' on the other.
Doubtless, the Academic Council also consisted mostly of distinguished academicians of the State though a few laymen may also become members of the Academic Council by election from the Senate. The Academic Council also may be reasonably presumed to know the essential distinction between a subject described as 'International Law' and another subject described as 'International Law relating to Peace'.
10. G. Schwarzenberger's Manual of International Law is an elementary text-book meant to give a general idea of that branch of law for beginners. It consists of three parts; the first part alone being relevant for our purpose. That part is divided into nine Chapters of which Chapters 1, 2, 3, 4, 5, 6, 8 and 9 deal with matters which are ordinarily dealt with in any standard text-book on International Law relating to Peace (see Oppenheim, Vol. I, Edn. 7). Chapter 7 deals with 'War and Neutrality'. Some idea as to why Chapter 7 was included in the textbook is given by the author himself in para 6 of Chapter 2 under the heading 'The System of International Law.'
There he points out that though historically the law of neutrality marks the beginning of a systematic treatment of the law of peace, gradually international law became divided into two parts, namely, International Law of War (which included neutrality also) and International Law of Peace. I may quote the following passage :
'From the nineteenth century onwards, it became fashionable to give priority to the Law of Peace as compared with the laws of war and Neutrality, and to assume that, in the international sphere, war was analogous to litigation within the State. The hollowness of this view becomes apparent if it is realised that, in a system of power politics, war, is but the last resort in an ascending scale of pressure politics.
'While war may be waged for the realisation of legal claims which otherwise cannot be secured, war has been frequently used for purposes which cannot be justified morally or legally. The test of the seriousness of the pretension that peace is the normal state in international society, is whether writers define the exception by reference to the rule, that is to say, war by reference to peace. Yet writers hardly concern themselves with this hopeless task -- in a system of power politics, peace is merely a negative state i.e. the state in which subjects of international law are not at war with each other -- and concentrate on the easier task of defining the basic notion of war.
The relative importance to be attached to thelaws of war and neutrality in a systematic treatment of international law at this juncture mustremain controversial, but it seems justifiable to layless emphasis on these topics than was usual in thepre-1914 era. It appears premature, however, toeliminate the subjects altogether even from anintroductory survey of international law.'The author thus makes it clear that he devoted aChapter to War and Neutrality in his book becauseit appeared, to him to be 'premature to eliminatethese subjects altogether even from an introductory survey of International Law'.
11. All standard text-books on International Law divide the subject into two mam branches, namely, 'Peace' on the one hand and 'War andNeutrality' on the other (see Oppenheim's book on International Law, Vols. I and II, Edn. 7). It is true that in Schwarzenberger's Manual of International Law there is no separate Part or Chapter dealing with 'Peace' though there is a separate Chapter (Chapter 7) dealing with 'war and Neutrality.
But if the contents of the other Chapters are compared with the contents of any standard textbook on International Law relating to Peace there can be no doubt that all Chapters except Chapter 7 deal with International Law relating to Peace:
12. Two important questions on which the success of this application depends are those: (i) What did the Academic Council mean when it amended Regulation 4 of Chapter 8 of the Regulations by substituting 'International Law relating to Peace' for 'International Law'? (ii) Did the Syndicate act in excess of its statutory power in including Chapter 7 of Schwarzenberger's Manual of International Law in the text book prescribed for that examination
13. A Regulation of the Academic Council has statutory force being in the nature of subsidiary legislation and the general principles covering the interpretation of statutes would, therefore, apply in construing Regulation 4 of Chapter 8 of the Regulations. The principles governing the construction of an amending statute are well-known. As pointed out by the Privy Council in -- 'Abdur Ranim v. Mahomed Barkat All Shah', AIR 1928 PC 16 at p. 18 (C).
'If is a sound rule of interpretation to take the words of a statute as they stand and to interpret them ordinarily without any reference to the previous state of law on the subject or the English law upon which it may be founded; but when it is contended that the legislature intended by any particular amendment to make substantial changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended.'
These principles would apply with equal force in construing the amendment made by the Academic Council.
But there is another rule of statutory interpretation which should also be emphasised at this stage. Here the law-making authority was not a body of laymen like an ordinary legislature but consisted of men of great learning with high academic distinctions fully conversant with the subjects with which they were dealing. Moreover, they were acting on the recommendation of the Board of Studies which itself was composed of a body of legal experts.
Hence, when the Academic Council used such expressions as 'International Law' or 'International Law relating to Peace' it is obvious that it was using expressions which have a well defined connotation in legal circles. These expressions are technical words which should be understood with some reference to the common understanding of them which prevailed among those who had treated more or less scientifically such subjects. (See Craies on Statute Law, Edn. 5, p. 155).
It can, therefore, be safely inferred that the Board of Studies (Law) and the Academic Council were fully aware that 'War and Neutrality' would not ordinarily be included in a subject dealing with International Law relating to Peace. The Academic Council changed the subject from 'International Law' to 'International Law relating to Peace' and it is inconceivable as to what it intended to effect by the change unless it is assumed that it intended to omit 'War and Neutrality' altogether from the subject. This construction of Regulation 4 of Chapter VIII follows as a necessary consequence of the construction of amending Regulation bearing in mind the principles given above.
14. The Board of Studies was an advisory body both to the Syndicate and to the Academic Council in respect of matters within their respective jurisdiction. That is to say, it advised the Syndicate in prescribing text-books for courses of study and it advised the Academic Council in determining or amending the courses of study. It was the Board of Studies which by its Resolution dated 9-9-1950 started the confusion, while recommending the change of the subject of Paper V to 'International Law relating to Peace' it included Chapter 7 and omitted chapter 8 of Schwarzenbergcr's Manual of International Law in the text-books to be prescribed for the examination.
It may be that the Board of Studies intended that Chapter VII should be omitted and not Chapter VIII and due to oversight or clerical mistake a wrong number was given to the Chapter that was intended to be omitted from the book. It is, however, unnecessary to speculate as to how the inconsistency between the subjects of Paper V and the Chapter of the text-book prescribed for that subject arose. The Syndicate and the Academic Council appear to have accepted their recommendation in respect of matters within their respective jurisdiction.
Where there is an inconsistency between the decision of the Academic Council and that of the Syndicate, the Academic Council's decision alone will prevail inasmuch as it is within its exclusive jurisdiction to prescribe the courses of study. In exercising its statutory power of prescribing textbooks the Syndicate cannot go beyond the courses of study prescribed by the Academic Council and if it does so its action will be in excess of its jurisdiction.
For example, if the Academic Council prescribes Hindu Law of Inheritance and Succession alone for the Law Examination and the Syndicate is prescribing text books for that subject includes Chapters dealing with Hindu Law of Marriage its action will be clearly in excess of its jurisdiction. Hence, the inclusion of Chapter 7 of Schwarzenberger's Manual of International Law in the textbook for International Law relating to peace is in my opinion in excess of jurisdiction of the Syndicate and must be disregarded.
15. Mr. Mohapatra, however, urged that the subject 'International Law relating to Peace' might incidentally refer to 'War and Neutrality' also as the two are closely interlinked and that the subject 'International Law relating to Peace' should not be legalistically construed as to rigidly exclude even an elementary or introductory treatment of 'War and Neutrality'. In support of this argument he relied on the fact that the books of reference on that subject as prescribed by the Syndicate on 16-5-49 were:
(i) Oppenheim -- Peace War.
(ii) Schwarzenberger -- International Tribunals, Vol. I.
(iii) Briggs Cases on International Law.
These books of reference were not changed when the subject was amended in 1950.
This argument overlooks the fact that the Resolution of the Academic Council dated 8-12-1950.purported to 'change' the previous Regulation 4 dealing with the subject and not to introduce a new subject. Prior to that date the subject was International Law' and the test-book prescribed for the subject was Sehwarzenberger's Manual of International Law which though mainly dealing with International Law relating to Peace, also briefly dealt with International Law relating to War and Neutrality as an introductory survey in Chapter 7,
The Academic Council with full knowledge of the contents of that book purported to change the subject by limiting it to 'Peace' only. Full effect should be given to the words 'relating to Peace' inserted by the amendment made by the Academic Council in its Resolution dated 8-12-50. It is impossible to give full effect to these limiting words unless 'War and Neutrality' be excluded altogether from the course of study for the students.
16. The University authorities also acted under the impression that an important change had been made by the amendment, The Professor of Law of the Madhusudan Law College issued a public notice to all the students as early as 21-9-50. Similarly, in the Gazette notification of 16-5-1952 the subject was described as 'International Law relating to Peace'. It is true that the Resolution of the Syndicate prescribing the various Chapters of Sehwarzenberger's Manual of International Law was passed on 12-9-1950 and at that time the Syndicate could not anticipate the amendment which was made by the Academic Council on 8-12-50.
But after the Academic Council had passedthe amendment of 8-12-50 and effect had beengiven to it by the Vice-Chancellor on 10-2-51 theSyndicate should have re-examined the questionand omitted Chapter 7 from Sehwarzenberger'sManual of International Law prescribed as thetext-book for the examination and should also havemade consequential changes in the list of booksof reference. This was, however, not done withthe result that the paper setter thinking himselfbound by the text book prescribed by the Syndicate set questions on 'War and Neutrality' also. Iwould, therefore, take the view that questions 9,10 and 11 of Paper V are ultra vires as beingoutside the course of study for that. Paper as prescribed by the Academic Council.
17. It was then urged by Mr. Mohapatra that as more than two years have elapsed since the date of examination, considerable inconvenience would be caused to several students and also to the University if the writ application of the petitioner be allowed now and that this Court should not exercise its discretion in favour of the petitioner. This argument also does not appeal to me.
The petitioner applied to this Court very promptly on 15-10-52 as soon as his representation was rejected by the University authorities. He is not responsible for the subsequent delay in the hearing of this application. There can be no doubt that serious prejudice has been caused to him by setting questions on a subject that was excluded from the course of study. His marks in other subjects of Law Part I are very satisfactory and in fact in two of the subjects, namely, Hindu Law and Contract and Torts he has secured distinction.
He, therefore, appears to be a good student and would in all probability have passed the examination easily but for the fact that a compulsory question (question No. 10) was set from a subject for which no student was prepared. It will notbe fair to reject the application merely because some inconvenience is likely to be caused to the University authorities. The number of other students who may possibly try to take advantage of this decision for the purpose of reviewing the results of the examination is not likely to be large as, by now, most of them would have either got themselves fixed up elsewhere or passed in the succeeding examinations.
So far as this Court is concerned, this is the only application that is pending and if on merits the petitioner has a good case he should not be deprived of his remedy merely because of the delay.
18. I have given anxious consideration to the question about the nature of the direction that this Court can issue under Article 226 of the Constitution in the peculiar circumstances of this case. Obviously, this Court cannot take upon itself the functions of the Syndicate and declare the petitioner to have passed the examination in Law Part I, Paper V. This is a matter to be considered by the Syndicate.
All that this Court can say is that questions Nos. 9, 10 and 11 are ultra vires and should be completely ignored. It is left to the University authorities to take further appropriate action under the provisions of their Law.
19. I would, therefore, order that a direction should issue to the Vice-Chancellor and other members of the Syndicate of the Utkal University under Article 226 of the Constitution declaring questions Nos. 9, 10 and 11 of Law Part I, Paper V of the June Examination of 1952 to be ultra vires and directing the Syndicate to reconsider the representation of the petitioner dated 8-9-1952 in the light of this declaration and dispose of the same according to law. The petitioner is entitled to costs of this application. Hearing fee is assessed at Rs. 100/-.
20. I agree.