Inder Dev Dua, J.
1. These two petitions (Civil Writs Nos. 2437 and 2806 of 1964) under Articles 226 and 227 of the Constitution have been referred to a larger Bench by my learned brother P.C. Pandit, J because the impugned orders are likely to affect the petitioners' careers inasmuch as they would be permanently declared unsuitable for the profession of Engineering in any College affiliated to the Punjabi University, Patiala
2. Facts as alleged in Civil Writ No. 2437 of 1964 may briefly be noticed Rajinder Kumar Sharma petitioner claims to have joined the Thapar Engineering Institute, Patiala in the year 1961 for the session 1961-62. It may be noted that at that time, this Institute was affiliated with the Punjab University. He passed the first year examination held in November 1962 from the Punjab University securing first division after clearing the compartment of Part I and regular examination of Part II. The second year session had already started in July 1962. The petitioner was. however, after great difficulty, permitted to join the second year class in January, 1963 under the order of the Principal of the Institute. The petitioner appeared in the final examination of Part 1 of second year in April, 1963. This examination was also held by the Punjab University. For Part II, the petitioner was not issued any roll number by the Principal because it was alleged that he had failed in workshop practice sessional i.e., internal assessment. According to the petitioner's averment, this sessional failure in workshop practice was due to the fact that the batch in which the petitioner was included, when joining the Institute, bad not been given any workshop practice in the summar vacation of 1962. The petitioner again joined second year in July, 1963 and sat for the final examination of second year in April, 1964. The result of this examination was declared in July, 1964 and the petitioner was declared to have failed in the examination because of his failure in workshop sessional. The petitioner got second division in Part I and got compartment ill two papers in Part II. He was however, allowed to join third year class provisionally on 15-7-1964. It may here be pointed out that according to the return or the written statement filed on behalf of the respondents, with the establishment of the Punjabi University at Paliala, the Thapar Engineering Institute at Patiala became affiliated with that University. The petitioner bad appeared in the final examination of Part I of second year with the Punjab University Chandigarh in April, 1963 but he could not clear the said examination. In so far as the second Engineering Part II examination is concerned, this was conducted by the Punjabi University. Patiala, in April. 1963 and the petitioner along with two other candidates, namely Shri Jatindar Parkash and Shri Raj Kumar Gupta were granted special permission by the Syndicate of the Punjabi University. The Principal of the Thapar Institute, respondent No 3 in this Court, submitted the admission forms of the petitioner and the other two candidates just mentioned and the petitioner was allotted roll number 49 which was forwarded by the Punjabi University to the Principal The Principal, however, did not issue the roll number slip to the petitioner because his sessional marks were deficient not only in workshop practice including practical training during summer vacation, but also in the following other five subjects.
1. Theory of Machines and Prime Movers.
2. Strength of Materials. 3. Surveying II
4. Engineering Drawing & Design (Civil) and
The Principal of the Institute, Respondent No. 3, informed the petitioner that he could neither have the roll number nor could he sit for the examination because his sessional marks were deficient in some of the subjects. The petitioner notwithstanding this information, entered the examination hall and sat for the examination making a wrong representation to the Centre Superintendent that he had lost the roll number issued by the Principal. The petitioner also applied for a duplicate roll number by depositing Re. 1 with the Centre Superintendent. This misrepresentation was subsequently discovered and the Principal, respondent No. 3 informed the Punjabi University in June, 1963. As a consequence, in the result notification dated 15-9-1963, the petitioner's result was shown as cancelled because he had been declared by respondent No. 3 ineligible for taking the examination.
3. To revert to the writ petition, the petitioner alleges to have made a representation to the Principal that the petitioner could not attend the summer vacation session of 1963 for workshop practice because he was attending the Survey camp during that period. The Principal, so proceeds the averment in the writ petition, recommended to the Punjab University that the petitioner should be given 37 marks out of 60 and 24 marks out of 40 making a total of 61 marks. The Punjab University after receiving this recommendation, wrote back to the Principal that the petitioner having completed two years could not continue his studies any further and also struck off the petitioner's name from the rolls. On a further representation through the Principal to the Punjabi University, the former recommended reconsideration of the petitioner's case. The petitioner continued attending the College till 27/28-10-64. On 6-11-1964, the petitioner requested the Principal to allow him to sit at the examination but the Principal expressed his inability to do so. It is in these circumstances and on the grounds just stated that the petitioner approached this Court on 9-11-1964 challenging the order of the Punjabi University disallowing the petitioner to sit at the examination and also striking off his name from the rolls of the College, seeking permission by way of interim relief to sit at the compartment examination and also at the examination in Part 1 of third year Engineering to be held on 11-11-1964. The impugned order has been described to be arbitrary, discriminatory, mala fide and without jurisdiction. It is pleaded that the petitioner having joined the second year in January, 1963, two years would be completed in January, 1965, with the result that Regulation No. 8 of the University could not stand in the petitioner's way. The petitioner had also not completed two years in the second year class for he had spent only three years in first and second year classes. The petitioner's academic year began only in July, 1963 when he joined the second year. It has further been averred that before striking off the petitioner's name from the rolls, no notice or opportunity was given to him to explain the position and to show cause against the removal of his name. This according to the petitioner, is violative of the recognised rules of natural justice.
4. In the written statement, two preliminary objections have been raised. In the first instance, it has been urged that the writ petition is based on wrong facts and suppression of material facts. In the second place, it has been asserted that the mutter in dispute is of administrative nature and not justiciable in a Court of law. On the merits also, it has been asserted that the petitioner had appeared in Part I of first year examination in December, 1961 but was placed in compartment. According to the then prevailing regulations, the petitioner appeared in April. 1962 in Part II of the first year along with compartment of Part I of the first year, but he was again unable to clear the compartment of Part I of the first year, with the result that he was declared to have failed in the first year. There was, however, re-modification of Part I result and the petitioner was again given compartment in Part I by the Punjab University at Chandigarh. Till this time, the petitioner was a student of the Punjab University, Chandigarh, which allowed him to appear in Part I compartment and Part II of the first year in November, 1962. In this attempt, the petitioner cleared both the parts and was declared successful by the Punjab University. Chandigarh, in first year in November, 1962. The second year session had, it is admitted, begun in July, 1962 and the petitioner along with two other candidates was allowed admission by the Principal of the Institute subject to and in anticipation of the approval of the Syndicate on the conditions that :
(1) those students clear Parts I and II examination of first year taken in November 1962 with the Punjab University, Chandigarh.
(2) shortage in attendance of Part I of second year is condoned by the Punjab University, Chandigarh and
(3) they are permitted to take Part I of second year of the Punjab University, Chandigarh, in April. 1963
The Syndicate of the Punjab University, Chandigarh, on 28-3-1963 condoned the shortage of lectures in the second examination in Engineering Part I (from July 1962 to December, 1962) and permitted the candidates to appeal in second Engineering Part I examination in April, 1963. As already noticed earlier, the petitioner appeared in the final examination of Part I second year with the Punjab University, Chandigarh. in April. 1963 but he was unable to clear the said examination. The second engineering Part II examination was conducted by the Punjabi University Patiala in April. 1963 and the petitioner along with two others was granted special permission by the Punjabi University to appear in this examination. It was at his examination that, according to the respondents, the petitioner had made a wrong representation in regard to the alleged loss of his roll number. The petitioner is also alleged to have made a statement on 12-7-1963 clearly admitting misrepresentation of facts on his part. It is not denied in the written statement that workshop training could not be arranged during the vacation of 1962 because the workshop machines were out of order and all the candidates who took the first examination in Engineering in April, 1962 and joined the second year class in 1962-63 session were accordingly awarded sessional marks in the subject of workshop practice including the workshop training during the vacation out of a maximum of 100 marks wholly on the basis of class work during the session The petitioner was one of those who were awarded these marks in this subject.
It is asserted that the Principal did not issue to the petitioner his roll number for Part II examination because his sessional marks were deficient and not because of his failure to attend workshop practice and training. Denying the petitioner's version in paragraph 5 of the writ petition, it is asserted in the written statement that the petitioner was declared ineligible for taking second year Part II examination held in April, 1963 owing to his failure in the sessional of some of the subjects and that for this reason he had to repeat the second year in 1963-64, session. The rules make it obligatory for the petitioner to attend 'workshop training which was arranged during the vacation of 1963, prior to the petitioner's repeating his second year course ' The petitioner having not complied with this compulsory requirement and having instead preceded to attend the Survey camp along with the candidates of 1961-62 batch who were eligible to take second year examination in Engineering Part II in April. 1903, to which the petitioner was not entitled, no sessional marks in workshop practice including practical training could be assigned to him without his first attending the workshop. According to the syllabus for second examination in Engineering, it was compulsory for the petitioner to attend the workshop training along with the other candidates joining second year for 1963-64 session. The petitioner was thus rightly declared to have failed in the examination held in April, 1964
It is not denied that the petitioner was allowed by respondent No 3 to join third year on 15-7-1964 provisionally pending decision on the reference made by him to the University proposing a revision of award in the subject of workshop practice including practical training during vacation' (sessional) by raising the marks from 37 to 62 out of a maximum of 100 marks. This reference, according to the respondents, was made by the Principal on misrepresentation of facts by the petitioner that he could not attend the workshop training during 1963 vacation because he had gone for Survey camp Respondent No 3 was misled in recommending the revision of award but when the real facts were disclosed to him, clarifying that the petitioner had failed in sessional work of six subjects of second examination in Engineering, Part II, held in April. 1963 and that he was required to repeat the entire course of second year including workshop training during 1963-64 session, the Principal withdrew his recommendation. The petitioner's result already declared was in the circumstances allowed to stand and his provisional admission to the third year class withdrawn.
It has in addition been averred that petitioner had been allowed to join second year course in January. 1963 and shortage in attendance from July. 1962 to January. 1963 was condoned by the Punjab University, Chandigarh, with the result that the petitioner must he deemed to have joined the course from the start of the session in July. 1962. On this basis, the petitioner failed to clear the second year Engineering course in the two academic years of 1962-63 and 1963-64. with the result that he is not entitled to continue his studies in Engineering. The petitioner's learned counsel has, to begin with, submitted that in this case the well-recognised fundamental rule of natural justice has been violated inasmuch as no opportunity was afforded to the petitioner before his name was struck off, and this fact, so proceeds the submission, is admitted by the University. In this connection, it is also emphasised that in spite of the recommendation of the Principal of the College, no marks were given to the petitioner for the sessional.
The counsel has on the point of marks for sessional, relied on regulation No. 5 of the Regulations concerned with the Second-Examination in Engineering for the purpose of Bachelor of Science in Engineering (Civil, Mechanical and Electrical) at p. 326 of the Punjab University Calendar. 1962 Vol II. and has for this submission sought support from a Bench decision of this Court in Sher Singh v. Punjab University, C. W. No 1856 of 1963. Dated 21-4-1964 (Punj). a case in which the Court was concerned with the First Professional M. B. B. S. Examination of the Punjab University. In that case, there were four examiners, one internal and three external and it appears that the four examiners had split themselves in to two sets of two examiners each for the purposes of examining the candidates and award of marks out of 25 marks. Each set of examiners noted marks on sheets of paper. Those marks of both the sets were then aggregated and written down on another rough sheet of paper. That was then transcribed on a regular form supplied by the University for the purpose. The four examiners signed that form. Another fair copy of it was prepared and that was also signed by the four examiners, but it was prepared before the final copy which was sent to the University. Later, the internal examiner in the company of the Principal of the Patiala Medical College visited the Punjab University office at Chandigarh for the moderation of the result and at that time, it was noticed that the petilioner in the reported case had been declared unsuccessful because he had not obtained the requisite marks in oral and theory combined in Anatomy. The list, however, showed 30 marks against the petitioner's name which were less than the pass marks required, some doubt was aroused in the mind of the internal examiner because, according to his recollection, the marks given by the examiners to the petitioner were more than 80. The representative of the University was asked to withhold the petitioner's result to enable him to check up his marks at Patiala from the other copy which was also signed by the four examiners and kept by the internal examiner. On going back, he discovered that the marks awarded to the petitioner were 38. The duplicate list was thereupon sent for consideration to the University.
The matter was apparently referred to the Syndicate of the Punjab University for decision and it was resolved that the duplicate award be not accepted. The petitioner was in the circumstances declared unsuccessful. It was on these facts that a Bench of this Court allowed Sher Singh's writ petition and the declaration made by the University showing Sher Singh to be unsuccessful in the first Professional M. B. B. S. Examination was quashed with the direction that the University could, if so advised, hold an enquiry into the award of the marks by the examiners to the petitioner in the subject in question and after hearing the petitioner, may proceed to take a decision. It is obvious that the facts of the decision cited were different, but if the decision is sought to be utilised for sustaining the contention that rules of natural justice call for obedience, then of course, it is helpful
5. The next point urged is that admittedly, there was no sessional workshop practice given to the petitioner's batch during the summer vacation of 1962. The petitioner joined second year in July. 1963 and he sat for the final examination for the second year in April. 1964. The workshop sessional was held during May and June. 1963, with the result that he could not possibly attend the summer vacation session of 1963. It has also been urged that the petitioner was in fact during that time attending the survey camp and it was for this reason that the Principal had recommended to the Punjab University that the petitioner should be given 37 marks out of 60 and 24 out of 40. making a total of 61 marks out of 100.
6. The third challenge is based on Article 14 of the Constitution on the ground that one Santosh Kumar. had spent three years in the second year and was allowed to sit in the examination of the third year in November, 1964 and one Raj Kumar Gupta. who was a class-fellow of the petitioner in second year and who also did not attend the workshop practice in the summer vacation of both 1962 and 1963. was declared successful in the workshop practice in April, 1963. Regarding this ground, our attention has been drawn to a Bench decision of this Court in Krishan Gopal v. Punjab University. C W No 1628 of 1964 : (AIR 1966 Punj 34). in which the decision of the Madras High Court in University of Madras v. Shantha Bai. AIR 1954 Mad 67. was approved and it was held that challenge under Article 14 to an act of a University is not sustainable. This decision is binding on us, and indeed, no attempt has been made to find fault with the reasoning of this decision. It has finally been contended that during regulation No. 8 of the Regulations controlling the Second Examination in Engineering at p. 327 of the Punjab University Calendar, Vol. II, 1962 Edition, the period of two years should be counted when the Thapar Engineering Institute was affiliated with the Punjabi University
7. Article 14. as I have already observed, is not available to the petitioner. In regard to the point based on sessional workshop practice, according to the return, it was obligatory under the rules for the petitioner to attend workshop training which was actually arranged during the vacation of 1963 prior to the petitioner repealing his second year course. If he was desirous of joining the second year, in our opinion, he should have taken this training and not proceeded to attend the survey. camp along with the candidates of 1961-62 batch who were eligible to take the second year examination in engineering Part II in April. 1963. to which the petitioner was not entitled. This contention of the petitioner, in our opinion, is unacceptable. The submission that two years, as contemplated by regulation No. 8 should start when the Thapar Engineering Institute was affiliated with the Punjabi University appears to me to be also unsustainable No such distinction has been brought to our notice in the Regulations or the statutory provisions which govern the petitioner's case. The charge-over from the Punjab University to the Punjabi University cannot break the continuity of the operation of the rule in question to the petitioner, and indeed our attention has not been drawn to any binding precedent or sound principle in support of the submission. On the contrary, the true purpose and object of this provision would be defeated by acceding to the petitioners contention. This ground accordingly also fails
8. The grievance that the petitioner's name was struck off the roll without any notice or opportunity of hearing or showing cause having been given to him seems to possess merit and deserves to prevail. The position in the written statement that 'All relevant facts were before the authorities and it was only a question of interpreting the regulations. The petitioner was not entitled to any hearing before passing the impugned order' is apparently misconceived. The further justification pleaded in support of this position, to quole. 'Moreover, as admitted by the petitioner in his statement (Rule 1), he was guilty of playing fraud on the authorities' is equally -- if not more misconceived. One of the elementary principles of that curious entity known as 'natural justice' is that a man has a right to be heard audi alteram partem, a maxim of almost moment in our democratic development. This rule, which is not a technical conception with a fixed content unrelated to circumstances, place and time, but which merely represents respect enforced by law of that feeling of just treatment which, as a segment of morality, runs through the entire fabric of our constitutional set-up embraces the whole notion of fair procedure and due process. The applicability of this rule is not excluded merely because the authority making the impugned order may have formed an opinion that the affected person has allegedly been guilty of some fraudulent act. To give every victim a fair hearing is just as much a sound canon of good administration as it is of good legal procedure. True, this Court cannot control administrative discretion exercised by the University authorities within proper spheres in imposing penalty in cases like the present : but it can certainly see at least that the discretion exercised is judicial and that it is not exercised without consideration of both sides of the case. Nothing is more likely to conduce to just and right decision than the habit of giving a hearing to an affected party. The elements of fair procedure are indispensable in our democratic set-up and ought to be followed in spheres of both legal and administrative justice.
This aspect has been pointed out by this Court more than once. It is a sound rule of law and of public administration that drastic power may be exercised only with due consideration for those who may suffer and its actual practice is bound to improve the technique of decisions by the University authorities and to help them to avoid the temptation to overlook the other side of the case. The general gain at least in promoting the citizens' faith in the democratic way of life must far outweigh the possible plea of administrative convenience, which is generally speaking, a weak plea. The necessity of preserving judicial temper and treating the matter in a judicial spirit, in other words, exercising a judicial mind in cases like the present, cannot be too strongly emphasised, and it can be ignored only at the cost of weakening on: democratic way of life.
9. I would accordingly allow this petition only to the extent that I quash the order striking off the petitioner's name from the roll, which has been done without giving him an opportunity of hearing. It would certainly be open to the authorities to do so in accordance with law and in the light of what has been stated above. In other respects, this petition fails and is dismissed. In the peculiar circumstances of the case. There would be no order as to costs.
CW No 2806 of 1964
(After stating the facts and the grounds the judgment continues as under )
10-12. During the arguments, reliance has been placed on behalf of the petitioner on Article 14 of the Constitution and it is submitted that a private candidate cannot be treated differently and that such differential treatment amounts to unconstitutional discrimination. The students from other Colleges having also been exempted from the vacation training, to insist on such training in the case of the petitioner, is also discriminatory. The University being a creature of statute, is an 'authority' within the contemplation of Article 12 of the Constitution and, therefore. 'State' within the meaning of Article 14. Reliance has in this connection been placed on Ashalata v. M.B. Vikram University. AIR 1961 Madh Pra 299 and P.M. Bramadathan v. Cochin Devaswom, Board. AIR 1956 Trav Co. 19 (FB). This argument is sought to be fortified by reference to Article 41 of the Constitution which contains a directive principle for the Government to make effective provision to secure the right to education.
13. But, as already noticed a Bench decision of this Court which has approved the decision in AIR 1954 Mad 67. is binding on us, and indeed no convincing reason has been shown why we should not follow it. Similar view has been taken in Smt. Ena Ghosh v. State of West Bengal, AIR 1962 Cal 420 and B.W. Devadas v. Selection Committee, Karnatak Engineering College, AIR 1964 Mys 6.
14. But this apart, differential treatment is constitutionally discriminatory only if it exists between comparable persons, which has not been established on this record. Indeed, even on facts, no discrimination has been made out against the petitioner because the rules and regulations are being enforced against him which are applicable to all similarly placed in all essential respect.
15. The challenge on the ground of violation of the rule of natural justice of affording a hearing is also devoid of merit. This rule, based as it is on the sacred maxim audi alteram partem is not a technical rule and has its roots in the conception of fair procedure and due process. The legal aspect has already been discussed at some length and it is unnecessary to cover the same ground over again. In the case before us, I am unable to hold that the petitioner had a right to a prior hearing on the question of declaration of his result and that such declaration without the prior hearing must be struck down as violative of this rule. The point of view in favour of the petitioner was, in any event presented in the recommendation of respondent No. 2 and finally the petitioner's own representation, detailed as it is, was also taken into account, though after wards. On the facts and circumstances of this case, consideration of the subsequent representation, in my opinion also fully complies with this rule of natural justice. There is accordingly no constitutional infirmity made out in the present case, and no violation of the rule of natural justice of hearing can be said to have prejudiced the petitioner.
16. In the result, this petition fails and is dismissed but without costs.
P.C. Pandit, J.
17. I agree.