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Mary Philipose Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 3461 of 1980-K
Judge
Reported inAIR1981Ker149
ActsKerala University Act, 1957 - Sections 19, 24, 24(2), 25, 38, 39 and 41; Kerala University First Statutes, 1977; Constitution of India - Articles 14 and 226; Evidence Act, 1872 - Sections 115
AppellantMary Philipose
RespondentState of Kerala and ors.
Appellant Advocate P. Radhakrishnan and; M.M. Mathew, Advs.
Respondent Advocate Govt. Pleader and; V. Bhaskaran Nambiar, Adv.
DispositionPetition allowed
Cases ReferredDr. Paul Jayan v. University of Kerala.
Excerpt:
constitution - admission - sections 19, 24, 24 (2), 25, 38, 39 and 41 of kerala university act, 1957, kerala university first statutes, 1977, articles 14 and 226 of constitution of india and section 115 of evidence act, 1872 - petitioner who had passed indian school certificate (isc) denied admission for m.b.b.s for reason that isc not equivalent to pre-degree which is required eligibility for admission for m.b.b.s. - petitioner had completed bsc. degree course for which pre-degree is required eligibility for admission - said fact shows that previously university had treated isc as equivalent to pre-degree by virtue of statute relating to faculty of science - respondents failed to show anything to prove their case - held, petitioner proved to be eligible to secure m.b.b.s. admission. -.....bhat, j.1. petitioner sought admission to the i year m. b. b. s. course in the medical colleges of kerala state in the year 1980-81, claiming to be qualified for such admission. after an elevan year course of study sponsored by the university of cambridge local examinations syndicate, she passed the indian school certificate examination (i. s. c.) in 1976 in the i class, securing high marks in mathematics, physics, chemistry, biology and other subjects. she joined the b. sc. degree course in one of the colleges in kerala and in the examination held in march-april 1980 by the kerala university (3rd respondent). passed in the i class securing high marks. she had taken chemistry main and mathematics and physics subsidiary subjects for her degree course. admission to the 1st year m. b. b. s......
Judgment:

Bhat, J.

1. Petitioner sought admission to the I year M. B. B. S. course in the Medical Colleges of Kerala State in the year 1980-81, claiming to be qualified for such admission. After an elevan year course of study sponsored by the University of Cambridge Local Examinations Syndicate, she passed the Indian School Certificate Examination (I. S. C.) in 1976 in the I Class, securing high marks in Mathematics, Physics, Chemistry, Biology and other subjects. She joined the B. Sc. degree course in one of the Colleges in Kerala and in the examination held in March-April 1980 by the Kerala University (3rd respondent). passed in the I Class securing high marks. She had taken Chemistry main and Mathematics and Physics subsidiary subjects for her degree course. Admission to the 1st year M. B. B. S. course was sought on the basis of Ext. P4 prospectus for 1980-81. The petitioner was provisionally selected for admission to the 1st year of the M. B. B. S. course and a list of provisional allottees was duly published. Thereafter, she received Ext. P5 memo dated 17-9-1980 from the Principal of the Trivandrum Medical College (2nd respondent) requiring her to produce a certificate from the concerned University, namely, Kerala University to the effect that she has passed an 'examination equivalent to pre-degree with eligibility for admission for M. B. B. S.'. She was further required to produce the certificate on or before 24-9-1980 failing which, she was informed, the provisional selection given already will stand cancelled. She unsuccessfully tried to get such a certificate. She applied to the 2nd respondent for extension of time. It is alleged in the petition that the third respondent--Kerala University does not issue, such a certificate in the case of students who DESS the eleven year I. S. C, course. Hence, she filed this O. P. seeking a writ of certiorari quashing Ext. P5 and a writ of mandamus directing the respondents to declare her to be eligible for admission to the M. B, B. S. course and directing them not to cancel the provisional selection given to her but to admit her in the M. B. B. S. course in one of the Medical Colleges in Kerala during 1980-81. In an interlocutory application, this court stayed the operation of Ext. P-5 and directed that one seat be reserved for the petitioner.

2. Petitioner contends that she has passed I. S. C. examination after an eleven year course, that treating it as an equivalent of P. D. C. examination she was admitted in B. Sc. degree course, that she completed the same and now respondents wrongfully refuse to treat I, S, C, examination as equivalent to P. D. C, examination with eligibility to medical course. Respondents contend that a pass in the I. S. C. 'examination, though sufficient to secure admission 'to the B. Sc. degree course, is not sufficient to secure admission to the I year M. B. B. S. course unless the candidate studies for one year in the pre-degree course and passes examinations in the three science subjects as optional sub-jests in Part II (i). Admittedly petitioner did not study one year in the Pre-degree course and did not pass examinations in the three science subjects of P. D. C. course.

3. Admission to Medical Colleges in the State for 1980-81 is governed by the terms of prospectus Ext. P4 issued by the Principal, Medical College, Trivandrum. Clauses 1 (a) and (b) deal with eligibility for admission and read as follows:

'1. Eligibility for admission -- (a) Candidates who have passed the pre-degree examination of the Kerala/Calicut University with Physics, Chemistry and Biology as optional subjects or an examination recognised by the Kerala/ Calicut Universities as equivalent thereto with eligibility for admission to Medical course shall be eligible for admission if they have secured an aggregate of 50% marks or above in the Science subjects (Physics, Chemistry and Biology taken together) of the pre-degree examination. Relaxation of 10% marks will be allowed to candidates belonging to Scheduled Castes/Scheduled Tribes & 5% marks to candidates belonging go Socially and Educationally Backward classes,

(b) Candidates who have qualified themselves for B. Sc. degree (three years course) of the Kerala/Calicut University or any other University recognised by the University of Kerala/Calicut with Physics/Chemistry/Zoology/ Botany/Bio-chemistry as main and one or two of the above subjects as subsidiary shall be eligible for admission without reference to their performance at the pre-degree. provided they have secured 50% marks or above in science subjects taken together subject to the relaxation of marks in favour of Scheduled Castes/Scheduled Tribes/Socially and Educationally Backward classes as in Clause 1 (a) above and subject to the following condition.

Note: A candidate who passed B. Sc, in any two of the above subjects only shall however satisfy, 1 (a) above as well.'

The prospectus makes it further clear that out of the seats allotted to the Kerala and Calicut Universities, distribution between science graduates and pre-degree candidates will be in the ratio of 3:2 and candidates who have passed B. Sc. or higher examination will be considered against the graduate quota and not against the pre-degree quota of the above seats.

4. This petition was originally heard by a Division Bench (including one of us) along with a batch of Writ Petitions Nos. 3391, 3393, 3397 and 3520 of 1980. Those other petitions related to candidates who passed B. Sc. degree examination (or higher examination) with three science subjects out of the five named science subjects, that is, Physics, Chemistry, Zoology, Botany and Biochemistry (with one subject as main and two as subsidiaries). The Division Bench held in the other petitions that the note to Clause 1 (b) of Ext. P-4 applies only to B. Sc. degree holders who have taken only two out of five science subjects and does not apply to the petitioners therein who had taken three science subjects out of five and as such they are eligible irrespective of their performance at the pre-degree stage and they are not called upon to satisfy the Condition in 1 (a) also. According to the respondents the note to Clause 1 (b) of Ext. P-4 has to be understood in the light of Ext. R-1 resolution passed by the Academic Council of the Kerala University prescribing the equivalents to pre-degree examination with eligibility for admission to medical course. It was argued before the Division Bench that the Academic Council could validly lay down such equivalents only in the form of a Regulation and not in the form of a mere Resolution, and the correctness of the decision of a Division Bench of this Court reported in Dr. Paul Jayan v. University of Kerala (1977 Ker LT 88) upholding the power of the Academic Council to pass resolutions on such matters is open to doubt. Therefore this petition has been referred to a Full Bench.

5. It is necessary to understand the scheme in Ext. P-4 for admission tothe 1st year of the M. B. B. S. course in the four Public Sector Medical Colleges in the State. We are not concerned with the special reservations made to various interests. Broadly speaking, the selection is to be on merit. Admission is to be given to candidates with two different academic qualifications, namely, those who have passed only the pre-degree examination or the equivalent and those who have passed the B. Sc. degree examination or a higher examination. The seats are to be distributed between the two categories of candidates in the ratio of 2:3. Candidates of the first category should have passed the pre-degree examination of Kerala or Calicut University with Physics, Chemistry and Biology as optional subjects or an examination recognised by either of these two Universities as equivalent thereto with eligibility for admission to medical course and they should have secured an aggregate of 50 per cent marks or above in the three science subjects taken together in the Pre-degree or equivalent examination. Candidates of the second category should have passed the three year B. Sc. degree course of the Kerala or Calicut University (or any other University recognised by either of these two Universities) with Physics or Chemistry or Zoology or Botany or Bio-Chemistry as main and any one or two of the above subjects as subsidiary and they should have secured 50 per cent marks or above in the science subjects taken together. Their eligibility is without reference to their performance at the pre-degree examination or the equivalent examination. Relaxation of marks in the case of Scheduled Castes and Scheduled Tribes etc. is not relevant in their case.

6. The note to Clause 1 (b) of Ext. P-4 lays down that a candidate who passed B. Sc. in any two only of the five science subjects, shall satisfy clause 1 (a) as well. The note serves as a proviso to Rule 1 (b) in Ext. P4, as per which B. Sc. degree holders with one of the five science subjects as main and any one or two of the science subjects as subsidiary are eligible without reference to their performance at the pre-degree or equivalent stage subject to the condition that they perform well at the B. Sc. degree stage, that is by securing 50 per cent marks or above in the science subjects taken together. In the prospectus for the previous year 1979-80, it was stated that all candidates who are B. Sc. degree holders with one of the science subjects as main or any one or two of the science subjects as subsidiary shall be eligible for admission only if they satisfied qualification requirements in Clause 1 (a) as well. The validity of such a condition occurring in the prospects for the year 1979-80 was upheld by this court in O. P. Nos. 3693, 3754 and 3769 of 1978 vide George Joseph v. Principal Medical College. (1979 Ker LT (S.N.) case No. 11 p. 8) : (AIR 1979 Ker 160), on the ground that the insistence of a minimum standard of performance in the basic subjects at the pre-degree or equivalent stage even in the case of degree candidates was only to ensure that the foundation in the basic subjects was well laid and the performance at the degree level may not afford a safe test of the proficiency in all the three basic optional subjects and the condition was reasonable and equitable. It must have been felt by the authorities that it was unnecessary to insist on a high performance at the pre-degree or equivalent stage in the case of B. Sc. degree holders who show a high performance in the three science subjects in the degree examination. That may be why in Ext. P-4 prospectus for 1980-81 the clause 'without reference to their performance at the pre-degree' was incorporated in clause 1(b). At the same time the authorities must have realised that if in the B. Sc. degree course a candidate studies only two of the five science subjects (i. e. one Main and one Subsidiary) and therefore performs well only in those two science subjects, the insistence on a performance at the pre-degree stage or the equivalent stage in the three specified science subjects, Physics. Chemistry, Biology, cannot be dispensed with. It is therefore clear that the note has been added to act as a proviso to Rule 1 (b). 7. According to the petitioner she satisfies all the conditions required for eligibility. Respondents concede that she satisfies all conditions, except one. That condition is that the I. S. C. examination which she has passed, besides being recognised as equivalent to pre-degree examination is also to be deemed as 'equivalent to pre-degree examination with eligibility for _admission to the medical course'. According to the petitioner the I. S. C. examination has eligibility for admission to medical course. The respondents contend that I. S. C. examination is equivalent to pre-degree examination only for the purpose of admission to degree course of science, arts and the like, but not for the medical degree course.

8. We will now look into the provisions of the Kerala University Act, 1974 (for short the Act) and the Kerala University First Statutes 1977 (for short the Statutes). Section 16 of the Act mentions the Senate, the Syndicate, the Academic Council and other bodies as the authorities of the University. The Act explains how these bodies are constituted and what their powers and functions are. Section 19 deals with powers and functions of the Senate. The Senate is to be the supreme authority of the University and has power to review the action of the Syndicate and the Academic Council in certain cases, the Senate is also to exercise all powers of the University not otherwise provided for by the Act or the Statutes. Section 19 (2) enumerates the various powers and functions vested in the Senate. Clause (a) mentions that the Senate has power to determine what degrees, diplomas and other academic distinctions etc., shall be granted by the University. Clause (b) mentions that the Senate has power to make, amend or repeal Statutes either of its own motion or on the motion of the Syndicate. We are not concerned in this case with the powers of the Syndicate. Section 24 of the Act deals with the constitution of the Academic Council. Section 24 (2) states that subject to the provisions of the Act and the Statutes, the Academic Council shall have control and general regulation and be responsible for the maintenance of standards of, instruction, education and examinations within the University, and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes. The powers and duties of the Academic Council are dealt with in Section 25 of the Act and these are subject to the provisions in the Act and the Statutes. These powers can be classified as follows :-- to advise the Senate and Syndicate on all academic matters, [Clause (i)], to take decisions on certain matters [(iii) to (vi) and (xii) and (xiii)], to make proposals [(vii) to (xi)], to make, amend or repeal Regulations [(ii)] and to exercise such other duties as may be conferred or imposed by the Act. Statutes, Ordinances. Regulations. Rules and bye-laws. Section 34 explains what matters are to be provided by Statutes. Section 34 (d) mentions award of degrees, by the University. Section 35 of the Act lays down the procedure for making Statutes. Section 38 explains what matters are to be covered by Regulations. Section 38 of the Act states that subject to the Act, Statutes. and Ordinances, Academic Council may make regulations regarding courses of studies and the conduct of examinations, admissions of students to the various courses of study and to examinations, appointment etc., of Boards of Studies and examinations, qualification of teachers, recognition of examinations etc. as equivalent to the examinations of the University and all other matters which are to be or may be prescribed by Regulations. Section 39 lays down the procedure for making Regulations. Regulations take effect from, such date as directed by the Academic Council and shall be laid before the Senate during its next succeeding meeting. Section 41 lays down that all Statutes. Ordinances and Regulations made under the Act shall be published in the gazette. Section 83 states that the First Statutes and First Ordinances of the University shall be made by the Government.

9. Chapter 5 of the First Statutes deals with the Senate. Section 1 of Chapter 5 explains the powers of the Senate including the power to confer degrees on persons who (unless exempted therefrom in the manner prescribed) shall have pursued a prescribed course of study in a college or institution maintained by or affiliated to the University and shall have passed the prescribed examination or examinations etc. Chapter 7 relates to the Academic Council. Chapter 38 deals with the procedure for the Academic Council to make, amend or repeal Regulations either on its own motion or on the recommendations of the Senate, the Syndicate, the Faculties or other authorities of the University. If the Regulations relate to courses of study, admission to various courses of study and examinations and certain other matters, the Academic Council shall ordinarily consult the concerned faculty. All Regulations made or repealed by the Academic Council shall be laid before the Senate during its next succeeding meeting. The Senate shall have the power to cancel or amend any Regulation as laid down in Section 19 (2) (e) of the Act. If any Regulation or amendment or repeal thereof is not so laid before the Senate, it shall lapse. The Chancellor has been given power to suspend the operation of any Regulation until the Senate has had an opportunity of considering the same.

10. Chapter 16 of the Statutes deals with Faculty of Science. Paragraph 3 relates to degree of Bachelor of Science (three year course). It is mentioned that the candidates for the degree of B. Sc. shall be required to have passed the Pre-degree examination of this University or an examination accepted by the University as equivalent thereto and to have subsequently undergone the prescribed course of study in a college of this University for a period of not less than three academic years and to have passed the prescribed examinations. Chapter 21 deals with the Faculty of Medicine. Paragraph 2 of Chapter 21 dealing with the M. B. B. S. degree states that the candidates for the degree shall be required to have passed the Pre-deeree examination of this University or an examination accepted by the University as equivalent thereto and to have subsequently pursued the prescribed course of study in a Medical College affiliated to or recognised by this University for a period of not less than four and a half academic years etc, and to have passed all the prescribed examinations and to have worked thereafter as a house-surgeon for a period of not less than one year etc.

11. What is meant by 'recognised by the Kerala University as equivalent thereto with eligibility for admission to the medical course'? The effect of Clauses (1), 2 (a) and 2 (c) of Section 19 of the Act and Section 1 of Chanter 5 of the Statutes is that broadly speaking, it is for the Senate to lay down what courses of study have to be undergone and what examinations passed before degrees are conferred. Of course, within the guidelines so laid down by the Senate, it is open to the Academic Council to prescribe courses of study, to prescribe qualifications for admission of students of the various courses of study and examinations, to decide what examinations may be accepted as equivalent to those of the Kerala University etc., as can be seen from Section 25 of the Act. We have referred to the relevant paragraphs of Chapters 16 and 21 of the Statutes. In these Chapters it is prescribed that in the cases of both B. Sc. and M. B. B. S. degrees candidates should have passed the Pre-degree examination of the Kerala University or an examination accepted by the University as equivalent there-to. Turning to the other Chapters of the Statutes, we see that the same minimum qualification is prescribed in the case of practically all the degrees in the various faculties. Of course Statutes do not prescribe what optional subjects the candidate should have taken in the Pre-degree course or the equivalent course or whether any minimum percentage of marks should have been secured in the examination in order to be eligible to join the degree courses. Those are matters which lie within the province of the Academic Council to lay down as stated in Sections 25 and 38 of the Act and Chapter 38 of the Statutes. For example, it is open to the Academic Council to lay down in an appropriate way that, in order to obtain admission to the B. Sc. degree course or other decree courses the candidate should have passed Pre-degree or equivalent examination with particular subjects as optionals. This particular aspect is not important in this case since Clause 1 (a) of Ext. P-4 prospectus requires a candidate to pass Pre-degree examination in Physics, Chemistry and Biology or an equivalent examination and the petitioner in this case did take these subjects in her I. S. C. examination and secured the minimum marks contemplated.

12. Petitioner, passing the I. S. C. examination after an eleven year course was found eligible for admission to the three year course of the B. Sc decree, and was so admitted; she passed the examination and was conferred the degree. It is conceded on all hands that for the purpose of admission to the B. Sc. degree course, the Kerala University has treated the I. S.C. examination passed by the petitioner as equivalent to Pre-degree examination. This has been done on the strength of paragraph 3 of Chapter 16 of the Statutes relating to Faculty of Science. The phraseology used in paragraph 2 of Chapter 21 relating to Faculty of Medicine is identical to the phraseology used in paragraph 3 of Chapter 16 relating to Science Faculty, that is, 'to pass the Pre-degree examination of this University or an examination accepted by the University as equivalent thereto'. Once it is accented that I. S. C. examination, passed by the petitioner is equivalent to Pre-degree examination of the Kerala University for the purpose of admission Do the B. Sc. degree course, it must necessarily follow that this examination must be treated as equivalent to pre-degree examination for the purpose of eligibility to medical course in the Faculty of Medicine as stated in Chap. 21 of the Statutes, unless the Academic Council has prescribed to the contrary or has prescribed further conditions. In other words, looking only at the provisions of Chaps. 16 and 21 of the Statutes (which, by the way, are identical to the corresponding provisions in Chapters 21 and 27 of the 1972 Statutes) it is clear that what is equivalent to Pre-degree examination of the Kerala University for the purpose of admission to the B. Sc. degree course must also be treated as equivalent to the Pre-degree examination of the Kerala University for the purpose of admission to the I year of the M. B. B S. course. This conclusion is inescapable on a reading of the relevant provisions of the Statutes. Learned Advocate-General and the learned advocate for the University were unable to refer us to any other provisions of the Statutes laying down additional or other conditions for eligibility to the M. B. B. S. degree course for candidates who have passed the I. S. C. examination.

13. In paragraph 10 of the counter-affidavit filed on behalf of the first Respondent-State, it is stated, as follows:

'The qualification necessary for eligibility for admission to the medical course has been, fixed on the basis of regulation of the Indian Medical Council on this subject.......'

It is further stated that according to the Indian Medical Council Regulations candidates who have not undergone the 10 + 2 year educational course will have to undergo a one year pre-professional training before admission to the Medical College. We fail to see why this is mentioned in the counter-affidavit; for we see that the prospectus Ext. P-4 does not require any candidate to undergo one year pre-professional training, In other words, respondents themselves did not purport to follow the alleged Regulations of Indian Medical Council. Respondents have also failed to place before us copy of any statutory Regulations of the Indian Medical Council on the subject. Admission cannot be denied to petitioner on the basis of the alleged Regulation of the Indian Medical Council.

14. In paragraph 5 of the counter-affidavit filed by the third respondent-University, an extract of 'provision accepted by the Academic Council' has been given. According to this extract, a candidate like the petitioner who has passed the I. S. C. examination though eligible to join the three year degree course is not eligible to ioin the professional course unless the candidate undergoes one year of study at the Pre-degree level and pass the first and second year examinations in the concerned group of optional subjects in Part II (i) at the appropriate standard. These subjects are said to be Physics. Chemistry and Biology. Later on. 3rd respondent produced Ext. R-1 as additional evidence. Ext. R-1 purports to be an abstract of the 'Resolution' passed by the Academic Council of the University at a meeting held on 7-3-1975. We find that the extract given in paragraph 5 of the counter-affidavit of the University is copied from paragraph 4 of Ext. R-1 resolution. If Ext. R-1 is to be accepted as a valid provision and if admission is to be made on the basis of Ext. R-1 resolution, the petitioner has to fail in the case since she has passed only the I. S. C. examination as contemplated in paragraph 4 of Ext. R-1 and she has not studied one year at the Pre-degree stage and she did not pass the first and second year Pre-degree examinations in the optional subjects. If Ext. R-l is to be treated as a valid and binding provision, naturally the provisions contained in Chapters 16 and 21 of the Statutes will have to be read along with this Resolution in order to decide the question of eligibility to medical course. Reading Ext. R-l along with the Statutes, it must follow that the petitioner, though she has eligibility for admission to the B. Sc. degree course as having passed the I. S. C. examination which is equivalent to Pre-degree examination, has no eligibility to join the medical course since she does not conform to the conditions laid down in the second part of paragraph 4 of Ext R-1.

15. Learned counsel for the petitioner contended that Ext. R-1 is only a 'Resolution' passed by the Academic Council, that it is not a 'Regulation' made by the Academic Council as contemplated by the Act and the Statutes, that the matters covered by Ext. R-1 can be prescribed and dealt with only by a 'Regulation' and not a 'Resolution' and therefore the Resolution Ext. R-1 is not valid and has no binding force and cannot be taken into consideration but has to be ignored by the Court. Learned counsel for the University on the other hand contended, relying on the decision of a Division Bench of this Court in Dr. Paul Jayan v. University of Kerala, (1977 Ker LT 88) that though normally these matters are to be dealt with by a 'Regulation' passed by the Academic Council, the Council has residuary power under Section 24 (2) of the Act as per which a 'Resolution' can be passed to prescribe these matters. According to the learned counsel for the petitioner, the above decision requires re-consideration.

16. Section 24 of the Act deals with the Academic Council and Clause (2) mentions the functions and powers of the Academic Council in a nutshell, in the following way:

'The Academic Council shall, subject to the provisions of this Act and the Statutes, have the control and general regulation, and be responsible for the maintenance of standards, of instruction education and examinations within the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes.'

The powers, duties and functions of the Academic Council are explained in detail in Section 25 of the Act Clause (2) mentions the making, amending and repealing of Regulations. What is mentioned generally and in brief in Section 24 (2) of the Act has been explained in detail and categorized and oarticularued in Section 25 of the Act, as, power to give advise, power to decide certain matters, power to make proposals etc. Regulations are dealt with in Section 38 of the Act. Section 38 is a special provision dealing with the matters on which Regulations could be made by the Academic Council. Admission and the conduct of examinations and recognition of examinations of other Universities as equivalent fell within the purview of Regulations as laid down in Section 38. Sections 25 and 38 of the Act suggest that the matters covered by Section 38 could be dealt with only by Regulations made by the Academic Council and not in any other way or form.

17. There is a vital difference between Regulations made and ordinary Resolutions passed by the Academic Council. A Resolution by the Academic Council is not subject to any particular procedure; but the making of a Regulation is subject to the special procedure prescribed in Sections 19, 39 and 41 of the Act. Every Regulation has to be laid before the Senate during its next meeting. Senate has the power to cancel or amend a Regulation after giving an opportunity to the Academic Council to state its opinion on the proposed cancellation or amendment. Every Regulation has to be published in the Gazette. Failure to place a Regulation before the Senate is visited with serious consequences as seen from Chapter 38 of the Statutes. Such a Regulation shall lapse. Chapter 38 also provides that until the Senate has had opportunity of considering a Regulation it is open to the Chancellor to suspend the operation of the Regulation. These provisions indicate that a Regulation made stands on a different footing than a mere Resolution passed by the Academic Council. The approval of the Academic Council, without any ex post facto approval of Senate or publication in Gazette, is sufficient to lend validity to a Resolution. However, that is not sufficient in the case of a Regulation. A Repulation requires approval of the Senate and publication in the Gazette. The purpose of these provisions is self-evident. Certain specified matters affecting candidates seeking admission to courses, examinations, teachers seeking employment and the recognition of examinations of other Universities are to be dealt with by Regulations as stated in Section 38 of the Act. These are important matters affecting not only the academic standards of the University but also the academic life and future of candidates and teachers. Therefore, a special procedure involving approval by the supreme body of the University or at any rate absence of disapproval bv the body followed by publication in the Gazette is insisted upon in the case of Regulation. It is thus clear that there is a vital difference between a 'Regulation' and a 'Resolution'. It is conceded that Ext. R1 is not a Regulation and was not placed before the Senate nor published in the Gazette.

18. Learned counsel for the University contended that Section 38 of the Act does not make it mandatory that matters mentioned therein must be dealt with by 'Regulation,' and it is always open to the Academic Council to deal with these matters by 'Resolutions.' There is no doubt that in relation to any matter not covered by Section 38 of the Act, the Academic Council is competent to take decisions in the form of Resolutions. There are a number of matters covered by Section 25 of the Act which do not come within the purview of Section 38 of the Act, for example, making proposals, arranging coordination of studies, constitution of Council of Students, giving advise to the Senate and Syndicate as mentioned in Clauses (i), (viii) to (x), (xii) and (xiii) of Section 25 of the Act. These could be made by Resolutions.

19. Dr. Paul Jayan's case (1977 Ker LT 88) related to admission to postgraduate medical course of the Kerala Universty. The Academic Council by way of 'Resolution' had prescribed the examinations which will have to be taken by the students of post-graduate course. Courses of study and conduct of examinations fall within Clause (a) of Section 38 relating to Regulations. It was therefore argued that such a matter could be prescribed only by a Regulation and in the absence of a Regulation, the proposed examination was illegal. This argument was met with the contention that the power of making a Regulation under Section 38 of the Act is only an enabling power which the Council may or may not exercise and exanimations could be prescribed even otherwise. The Division Bench observed as follows:--

'Section 24 (2) gives the Academic Council, the power of control, and general regulation of, and responsibility for, the maintenance of standards of instruction, education and examination within the University. This power is in addition to the exercising of such other power, and the performance of such other functions conferred or imposed by the Statutes. It must also be remembered that under the provisions of Chapter X, Statute I of the First Statute, the Academic Council is ordinarily to meet once in six months; and, as and when required by the Vice-Chancellor. In the nature of things, it seems to us, it would be very necessary to vest in such a body as the Academic Council, meeting only at comparatively long intervals, a general and residuary power regarding the control of examinations and the maintenance of standards in connection with the affairs of the University, such as is provided for by Section 24 (2) of the Act. It seems to us too, that the existence of statutory power to frame regulation and to specifically prescribe matters connected with the examinations of the University does not necessarily detract from the existence of a general or residuary power in respect of these matters, so long as such Regulations have not been framed by the Academic Council............'

After relying on Kallar Cardamom Auction Co. v. Cardamom Board (1973 Ker LT 290) the Division Bench upheld the decision of the Academic Council even though it was not in the form of 'Regulations'.

20. We have carefully cone through the decision in Kallar Cardamom Auction Co. v. Cardamom Board (1973 Ker LT 290). In that case the Bench had to construe the Cardamom Act 1955 and decide whether the Cardamom Board can exercise powers only if there are pre-existing rules regulating its activity. The Bench held that the Board could exercise powers even in the absence of pre-existing rules. The decision does not appear to be of any assistance in deciding the controversy in the present case.

21. The Division Bench in Dr. Paul Jayan's case (1977 Ker LT 88) gave three reasons for its conclusion; firstly, that Section 21 (2) Rives the Council a residuary power in addition to the powers conferred by the Statutes; secondly, that the Academic Council is a body which ordinarily meets once in six months and such a body must be taken to have a general and residuary power regarding control of examinations and maintenance of standards; and thirdly, the existence of power to frame regulations does not detract from the existence of a general and residuary power in regard to these matters. Having carefully considered the provisions of the Act and the Statutes, we respectfully disagree with the reasoning adopted by the Division Bench, 22. Section 24 of the Act deals with the Academic Council. Clause (2) only indicates the purpose for which the Legislature has provided for constitution of Academic Council and describes the powers and duties of the Council as control and general regulation and responsibility for maintenance of standards of instruction, education and examinations and to exercise such other powers and perform such other duties as may be conferred by the Statutes. It may be noted that the clause refers only to three different aspects, that is. standards of instruction, standards of education and standards of examinations, besides, of course, other powers and duties which may be conferred by the Statute. Section 25 of the Act explains in greater detail the powers and duties of the Academic, Council. We find that maintenance of standards of instruction, of education and of examinations are covered by Clauses (iii) to (xiii) of Section 25. Clause (i) relates to the advisory jurisdiction. Clause (ii) relates to the power to make regulations and the residuary power conferred by the Act. Statute. Ordinances, Regulations etc. Clause (xiv) refers to other duties and powers which may be conferred by Statutes. Section 24 (2) is only a general provision dealing with powers and duties of Academic Council, while Section 25 is a special provision regarding such powers and duties. Section 25 particularizes, explains and categorizes the powers and duties. Section 24 (2) has to be read subject to Section 25. Section 24 does not and cannot postulate any power or residuary power not mentioned in Section 25. We are therefore unable to agree that Section 24 (2) confers on the Academic Council any additional or residuary power not contemplated by Section 25 of the Act.

23. It is true that Academic Council is a body which normally meets once in six months as laid down in Section 19 Chapter 7 of the Statutes. It is open to the Chancellor to convene a special meeting of the Academic Council within the period of six months. We have already pointed out that it is the Senate which is the supreme authority in the University and not the Academic Council. Even Regulations of the Academic Council are subject to modification at the hands of the Senate and suspension at the hands of the Chancellor. The comparatively long interval between, any two meetings of the Academic Council would not spell out a general and residuary power in the Council in the matter of control of examinations and maintenance of standards etc.

24. Even assuming that the Academic Council has such, a general and residuary power, the exercise of the power in regard to matters covered by Section 38 of the Act dealing, with regulations can only be in the form of Regulations. Section 38 of the Act is not an enabling provision. It is true that Section 38 lays down that 'Academic Council may make Regulations'. In regard to certain matters covered by Section 38, it may not be necessary to frame Regulations during a particular period or in regard to- certain matters it may not be necessary to frame Regulations immediately. That is why the word 'may' and not 'shall' has been used. But whenever the Academic Council desires to take decisions in matters covered by Section 38 of the Act. these decisions can only be in the form of Regulations. In this sense, the word 'may' has, the effect of 'shall'.

25. It has to be noted that neither Section 25 of the Act nor any other provision in the Act states that all matters covered by Section 25 of the Act could be decided by Resolutions. Right to take decisions in the form of Resolutions is only a general provision. Among the various matters enumerated in Section 25 of the Act, certain matters are carved out for special treatment in Section 38 of the Act and in regard to these matters Section 38 of the Act contemplates a special mode of taking decisions, i. e. by making Regulations. Regulations are subject to special procedure and special treatment. Such a special provision is made in regard to matters covered by Section 38 of the Act in view of the importance of those matters which we have already highlighted. We are therefore of the view that Section 38 of the Act detracts from any general or residuary power in the Academic Council to decide in regard to matters covered by Section 38 of the Act in any form other than the form of Regulation. With great respect, we are constrained to hold that the view taken in Dr. Paul Jayan's case (1977 Ker LT 88) is not correct and the same is hereby overruled. We hold that matters covered by Section 38 of the Act could be provided for only by Regulations.

26. Ext. R1 is not a Regulation. It is only a Resolution. It deals with a matter which is required by Section 38 of the Act to be dealt with only by a Regulation. Therefore Ext. R1 has no binding force and has to be ignored for the purpose of testing the eligibility of the petitioner to secure admission to the medical course. If Ext. R1 is ignored, one can only fall back on the Statutes. We have already held that in the light of the Statutes petitioner must be deemed to have passed an equivalent examination. (I. S. C.) with eligibility to the medical course.

27. The petitioner was asked to obtain a certificate from the University only on the basis that she does not have such eligibility. The stand taken by the respondents regarding eligibility of the petitioner fails, and the petitioner is entitled to the reliefs claimed by her.

28. We will briefly refer to two other contentions raised by the petitioner which do not find favour with us. Petitioner has raised a plea of estoppel as Ground C of her petition. According io her, she has been admitted for the B. Sc. degree course treating the I.S.C. examination as equivalent to Pre-degree examination and hence the respondents are estopped from taking a different stand now. Estoppel arises only if there has been a representation by the persons sought to be estopped and the person setting up estoppel has shifted her position to her detriment on account of the representation. There is no case for the petitioner that there was a representation made to her when she joined the B. Sc. degree course that thereby she will acquire eligibility to join medical course.

There is no averment in the petition that even when she joined the B. Sc. degree course her intention was to ultimately join the medical course, and under the belief that eligibility to B. Sc. dearee course is the same as the eligibility to medical course she joined the B. Sc. degree course. There is also no averment in the petition regarding detriment which she will suffer. The necessary ingredients constituting estoppel have not been averred or established in the case.

29. Ground O of the petition pleads violation of Article 14 of the Constitution on the ground that the same examination i. e. I. S. C. examination, has been treated differently for the purpose of admission to B. Sc. degree course and admission to the 1st year M. B. B. S. course. However, the averments in the petition are extremely laconic in this matter and do not contain the basis necessary to constitute a proper plea. Wisdom and commensense lequire that the court should leave decisions of academic matters to experts who are more familiar with these problems than the court. In technical matters like this, where, after a proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications, a competent academic authority takes a decision, particularly on the basis of recognition of an expert body, courts, uninformed of the relevant data and unaided by technical insights necessary for the purpose of determining the position, would not lightly disturb the decisions of the academic authorities. As already stated, the necessary data is not before the court. There is no contention that different equivalents have been fixed on the basis of extraneous or irrelevant considerations or guided by mala fides. This plea has to fail.

In the result, we allow the writ petition, and quash Ext. P5 memo. We hold the petitioner is eligible for admission to the First Year of the M. B. B. S. course in 1980-81. We issue a writ of mandamus directing the respondents not to cancel the provisional selection given to the petitioner and further to admit her to the course in one of the Medical Colleges in the State this year. The petition is allowed in this manner: parties are directed to suffer costs.

Subramonian Poti, Ag. C.J.

30. I have subscribed to the judgment drawn up by my learned brother Bhat, J. But I would like to add a few words of my own.

31. For admission to the First Year M. B. B. S. Course and the First Year of the B. Sc. degree course the same basic qualification -- pre-degree or an examination recognised as equivalent --has been prescribed by the First Statutes. The Statutes envisage only declaration of equivalent of Pre-degree and not of equivalent for a specific purpose. If a qualification other than Pre-degree is therefore good enough for admission to B. Sc. course it should, be good enough for admission to First Year M. B. B. S. course too. It is to meet this that the University has relied on an Academic Council resolution marked Ext. R1. This resolution purports to fix different qualifications for admission to B. Sc. and admission to First Year M. B. B. S. Will such a resolution of the Academic Council be operative as a rule prescribing qualifications for admission of students to the said courses ?

32. Section 25 (2) of the Kerala University Act enumerates the functions of the Academic Council. Besides functions such as initiating proposals (25) (ix) and rendering advice in certain academic matters (25) (i) it is called upon to exercise functions such as prescribing course of studies, prescribing qualifications of teachers and prescribing qualifications for admission of students, functions which would normally call for decisions in the form of rules of general application. It is only natural that such prescription must be by rules which would receive due publicity. The Act in Section 38. envisages framing of regulations in such matters. Such regulations differ from other decisions of the Academic Council in as much as regulations are to be made, amended or repealed in accordance with procedure prescribed by the Statutes, the Regulations are to be laid before the Senate at the next succeeding meeting and they are to be published in the Gazette. The obligation to frame Regulations is limited to certain of the matters enumerated in Section 25. namely, matters specifically enumerated in Section 38 of the Act, 'Admission of students to the various courses of study and to the examinations' is one of them. In matters which fall outside the purview of Section 38 though within Section 25 of the Act, Regulations are not contemplated. Resolutions by the Academic Council would be good enough. If this be the correct understanding of the powers and functions of the Academic Council Ext. R1 which is merely a resolution and not a Regulation--admittedly it has not been laid before the Senate or published in the Gazette--would not be operative in respect of a matter falling within Section 38, a matter in respect of which the Act envisages a Regulation of the Academic Council. It would therefore be of no consequence and the fate of candidates, to whom it is sought to be applied, ought not to be affected by it.

33. Though the above approach appears to be logical a different view on this question is seen to have been taken by a Division Bench of this Court in Dr. Paul Jayan v. University of Kerala. 1977 Ker LT 88 and that has evidently occasioned the reference of this case to the Full Bench.

34. In Dr. Paul Jayan's case Section 24 (2) of the Kerala University Act was construed as providing a general and residuary power in the Academic Council regarding the control of examinations and the maintenance of standards in connection with the affairs of the University despite the conferment of statutory powers on the Academic Council to frame Regulations in such matters. The Academic Council ordinarily meets only once in six months and this, it appeared to the learned Judges of the Division Bench, had a bearing on such construction. A residuary power, is a power to be exercised in respect of matters concerning which no specific provision is made. When specific provision is made in the Act as to the mode and manner of exercise of a function to read a general provision in the Act such as Section 24 (2) of the Kerala University Act as enabling exercise in the same matter without adherence to such mode and manner may not be rational. Such an approach would mean that the Academic Council is obliged to make Regulations in matters specified in Section 38 of the Act which Regulations have to be placed before the Senate and published in the Gazette, but the Academic Council can, in the same matter, merely pass resolutions. which would be equally Mood. If a residuarv power is vested in the Academic Council under Section 24 (2) such power would be exercisable in respect of matters not specifically covered bv the special provisions of the Act and not in respect of matters concerning which the Act provides for the mode and manner of action. The fact that the Academic Council normally meets only once in six months does not appear to have any relevance in the matter of construction of Section 24 (2) of the Act. Therefore, with great respect to the learned Judges of the Division Bench in Dr. Paul Jayan's case, we should hold that the law has not been rightly stated in the said decision.

PER COURT

35. Counsel for the 3rd respondent, the Registrar University of Kerala. has made an oral application under Article 134A of the Constitution for certificate for leave to appeal to the Supreme Court. We find no substantial question of law of general importance which needs to be decided by the Supreme Court arising in this cases. Leave declined.


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