1. The circumstances leading to the filing of the present writ petition are that Jit Singh, hereinafter referred to be as the petitioner, sought admission in the Punjab Institute of Textile Technology-cum -Industrial Training Institute, Amritsar, for which the minimum qualification was matriculation with science subjects or Higher Secondary, Part I, with science subjects, with at least 50 per cent marks. It is alleged by the petitioner that his name appeared in the waiting list at No. 1, while that of one Bubbal Walia appeared at No. 5 or so. Principal (respondent No. 3) recommended the name of Bubhal Walia for admission to the Director if Industries and Industrial Training, Punjab, through respondent No. 2. The petitioner is alleged to have represented against the said step of respondent No. 3 to the Director of Industries and Industrial Training, Punjab, as also the Minister for Industries and Industrial Training and the Chief Minister, Punjab. Eventually, the Director (respondent No. 1) passed the following order, on 18th of November 1969, in pursuance of the order of the Minister concerned, on the basis of which the petitioner was then admitted to the said course -
'Shri Bubhal Walia be struck off and admit Shri Jit Singh at his place. '
2. As a result of the above order, the petitioner was admitted, but at the time of admission the Principal directed the petitioner under duress and undue influence that he should give an undertaking in writing that in case there is any shortage of lectures and the Technical Board does not condone the same, he would not raise any claim whatsoever and then petitioner gave in writing such an undertaking simply with a view to avoid any unpleasantness and safeguard his interst of studies, but later on alleged to have made a representation to the Director and other authorities against the said coercive and harassing attitude of the authorities towards him. it is further alleged that in the month of March 1970, the Principal put up a notice to the effect that the lectures of the petitioner were short i. e. as against 448 lectures required to be attended, he had attended only 416 lectures meaning thereby that he was short of 32 lectures only up to 28-2-1970 and this led the petitioner to represent to the Chief Minister, Punjab who is alleged to have passed the following order, as contained in his letter No. 1003, dated 9-4-1970, to the Director, Technical Board -
'To be considered sympathetically, it seems there is no fault of the applicant. If so, then it is a deserving case and may be agreed to. '
The petitioner having not been informed about the action taken on his representation and the Principal not being prepared to release his roll number and the examination approaching fast, he made another representation to the Chief Minister, Punjab, who is alleged to have passed the following order, as contained in his letter No. 151, dated 30-4-1979 -
'The applicant alleges that due to wrong admission in the first instance he was ignored but it was after 3 months that the wrong admission was set aside and he was given admission, which was due to him. if this is correct then there is no fault on the part of the applicant and he should not be made to suffer. Subject to this being true and also subject to my having powers, I would like that the applicant may be allowed to sit in the test and the whole case examined afterwards. '
The petitioner, as alleged in paragraph 6 of the petition, had also made a representation (annexure 'A') to the Minister of Industries and Industrial Training, Punjab, who passed the following order in his representation as contained in his letter No. 380, dated 30-4-1970, to the Director, Technical Board, Punjab-
'As a special case the applicant should be allowed to appear in the examination. As he could not join earlier due to indecision. This fault is of the Department or the Government . '
This order, so alleges the petitioner, had its desired effect and roll No. 6258 was released to him and on the basis thereof he appeared in the first paper on 15-5-1970, but the very next day i. e. , 16-5-1970 the petitioner was informed about some communication having been received from the Director (respondent No. 1) that the petitioner cannot be permitted to appear in the examination and was, therefore, required to give an undertaking that in case the Director, Technical Education, does not agree to the condonation of the lectures of the petitioner , he would not lay any claim against the department which fact again led the petitioner to represent to the Minister of Industries, who then happened to be at Amritsar and the said Minister passed the following order on 17-5-1970, and thereby directed the Principal to let the petitioner sit in the examination provisionally -
'The applicant should be allowed to sit in the examination provisionally. Later on, the whole case may be examined on its merits. '
So the petitioner was permitted to appear in the next paper on 18-5-1970, but again when he went to appear in the third paper on 20-5-1970 and when he was abut to start his paper, the Superintendent Examination (respondent No. 4) snatched away the paper and answer book from the hands of the petitioner stating that in pursuance of orders of the Director, Technical Education, he cannot be permitted to appear in the said paper and, therefore, turned the petitioner out of the Examination Hall.
3. This unreasonable attitude of the Superintendent Examination (respondent No. 4) let the petitioner to file the present writ petition in this Court on 24-5-1970 and the petitioner secured a direction from this Court on 25-5-1970 directing the respondents to permit him to appear in the examination and so the petitioner appeared in the subsequent papers, but before the petitioner could secure the redress from this Court, he had already been made to miss some papers.
4. Two affidavits, in reply, have been filed ; one on, behalf o respondent No. 1, and the other on behalf of respondent No. 2. The crucial Paras of the petition i. e. 5 and 6 wherein the petitioner has mentioned the passing of certain orders by the Chief Minister and the Minister of Industries had been categorically admitted by respondent No. 2 and have not been denied by respondent No. 1. However, the respondents have denied that the petitioner's name was at No. 1 on the waiting list but that obviously is a false stand taken by the respondents, because the petitioner 's marks were 49. 2 per cent in Higher Secondary, Part I, examination which was the basic qualification required for admission, while that of Bubhal Walia were only 42 per cent in Higher Secondary Part II examination. In fact, as is clear from the waiting list, the list had been prepared on the basis of the marks obtained in the Higher Secondary Part I, examination with science subjects. It has been alleged by respondent No. 1 in its return that since Bhbhal Walia obtained 61 per cent marks in the Higher Secondary Part I examination, so he was placed at No. 1 on the waiting list, but obviously his obtaining 61 per cent, marks in the Higher Secondary Part I examination was absolutely an irrelevant fact, because he had not passed this examination with science subjects, otherwise there was no fun to pass Higher Secondary part II examination with science subjects. So the marks he obtained in an examination, which was irrelevant for the purpose of admission to the course in question, cannot be taken into consideration to arrive at the merit of a candidate. obviously, this fact has been mentioned only to cover an obvious bungling done by the authorities concerned in giving preference to Bhbhal Walia for admission over the petitioner, who decidedly must have stood higher in the merit list drawn up by the Principal and who ought to have stood higher on the merit list in view of his high marks.
5. The learned counsel for the respondents has urged that since the petitioner's lectures fell short and the short-fall was not condoned even by the Director, who himself was only competent to condone a short-fall of 10 per cent marks (sic) so in view of the rules, he was not eligible to be admitted for examination and in support of his submission he has placed reliance on Note 2 to Rule 4 of the Examination Rules of the State of Board of Technical Education, Punjab. It was further alleged that at the time of admission the petitioner had given an undertaking that in case his lectures fell short of the required number and the Board and the Director did not condone the short-fall. Then he would lay no claim against the department and in view of that clear cut undertaking, he has no reason to feel aggrieved if his short-fall in lectures has not been condoned by the Director and he has not been permitted to take the said examination.
6. The reply of the petitioner to the two submissions noted above is simple and his case is that he having been permitted to appear in the said examination by the Minister of Industries. Who is the Government and who had clearly ordered that if there had been any short-fall in his lectures it was due to the fact that he was not given permission for admission in time, which was either the fault of the Government or that of the department, so any shortfall in his lectures had been condoned by the Minister, incharge of the department, who is the final authority, and in view of his clear orders, the Director had no authority to stop the petitioner from taking up the examination.
7. As regards the undertaking given by the petitioner, the learned counsel submits that any undertaking given by the petitioner was a superfluous and unnecessary one, because anybody who took admission did so subject to the rues and so to give up what a person does not have carried no meaning.
8. The plea of the respondents that the petitioner cannot make a grievance if he is not allowed to appear in the examination, in view of the undertaking given by him at the time of admission, in my opinion, has no merit because the moment the short-fall in his lectures was condoned by the Minister, he had acquired a fresh right to appear in the examination and any undertaking alleged to have been given by him lapsed as a result of the aforesaid order of the Minister. So the crucial question that requires determination is as to whether the short-fall in the lectures in the case of the petitioner had been condoned or not.
9. The learned counsel for the respondents has urged that under the rules the Principal is authorised to condone the short-fall of 5 per cent, of lectures and the Director is authorised, under the rules, to condone a short-fall of another ten per cent i. e. , if a candidate's lectures fall short of seventy per cent, then even the Director is not authorised to condone the short-fall. The learned counsel goes on to submit that since under the rules only the Principal and the Director are authorised to condone the short-fall, so any other authority, even the Minister, has o jurisdiction to condone the short-fall in lectures of a student.
10. It is admitted on both sides that the rules have been framed by the Technical Education Board which itself a creation of an executive order of the Government , and the Minister of Industries is the Chairman of the said Technical Education Board. it is now beyond the pale of controversy that a Minister is the head of the department and is the final authority of his department and has the requisite authority to pass any executive order concerning his department. Since a Minister can pass any valid order concerning his department and the Examination Rules of the State Board of Technical Education, Punjab being the creation of an executive order, so by yet another executive order the said rules can be amended and altered. Hence any order passed by a Minister to the extent it is contrary to the rules will automatically supersede those rules to that extent or, in the alternative, would operate as an exception to the said rules. I, therefore, hold that the order of the Minister of Industrial and Technical Education permitting the petitioner to appear in the examination automatically condones the short-fall in the lectures and lifts the prohibition against the petitioner from taking the said examination and the Director, obviously, has no authority thereafter to stop him from appearing in the said examination.
In this view of mine, I am supported by a decision of this Court in Gurdev Singh Sidhu v. The State of Punjab, 1969 Ser LR 695 (Punj). The facts of that case are that on a representation made by the petitioner the Chief Minister, Punjab, ordered that he may be promoted as officiating Superintendent of Police for six months and that a special report about his work and conduct may be submitted to the Government for that period. under the said order of the Chief Minister, Punjab, the petitioner was promoted as Additional Superintendent of Police, Ferozepore, on trial basis, vide order, dated 5-7-1968. And he took charge of that post on 29-7-1968, but on return of Shri Brijinder Singh, an I. P. S. cadre officer, from leave, the petitioner was reverted to the post of the Deputy Superintendent of Police. It was contended that by this reversion after about a month he had not been allowed to show his wroth for a period of six months as ordered by the Chief Minister. On the consideration of these facts, the learned Judge observed -
'Inasmuch as he has been deprived of that opportunity in accordance with the order of the Chief Minister, that order has been contravened and the order of reversion therefore, cannot be sustained. In my opinion, the Inspector General of Police could not act contrary to the orders of the Chief Minister who was the head of that department at the time the order was made. '
Since the petitioner missed some papers for no fault of his, I consider it just and proper to direct the respondents to arrange to examine the petitioner in those papers in the supplementary examination, which I am told by the parties is due to take place sometime in the month of November 1970, and thereafter declare the result of the petitioner after taking into consideration his performance in the other papers in which he appeared earlier, as also the papers in which he is now to appear. Meanwhile, he be allowed to continue his studies in the higher classes.
11. Before parting with the case it may be observed that the manner in which the petitioner has been harassed by the concerned authorities leave bad taste in the month. I earnestly hope such harassment, which smacks of personal vendetta, would not occur again.
12. For the reasons recorded above, this writ petition succeeds and the same is allowed with costs. Counsel's fee Rs. 100/-.
13. Petition allowed.