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Sonal V. Shah and ors. Vs. Gujarat University and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 2530 and 2779 of 1981
Judge
Reported inAIR1982Guj37; (1981)GLR934
ActsConstitution of India - Articles 14 and 226; Gujarat University Act, 1949 - Sections 11(4); Bombay General Clauses Act, 1904 - Sections 21
AppellantSonal V. Shah and ors.
RespondentGujarat University and anr.
Appellant Advocate K.N. Raval and; Bharat J. Shelat, Advs.
Respondent Advocate J.M. Thakore, Adv. General,; A.J. Patel, Asst. Govt. Pleader for;
Cases ReferredSampat Prakash v. State of Jammu and Kashmir
Excerpt:
constitution - mass promotion - section 11 (4) of gujarat university act, 1949 and articles 14 and 226 of constitution of india - resolution of executive council of university and subsequent circular giving mass promotion to students without appearing for examination challenged - university not empowered to make mass promotion of students without conducting examination -impugned resolution and circular set aside - university directed to conduct examination. - - the spectrum of activity of this university extends to professional as well as non-professional subjects. 1 had appeared at the examination held in july 1981. the petitioners contended that if it was possible for the university, to hold examinations for external students like the petitioner no, 4 and also possible to hold all.....n.h. bhatt, j.1. these two petitions by different students but against the common respondents, viz. the gujarat university and the state of gujarat, can be conveniently taken up together and disposed of by this common judgment as the questions canvassed in these petitions and also at the time of hearing were almost conamon. with the concurrence of the learned advocates appearing for the respective parties, the matters were heard together and are being disposed of by this judgment. a few facts require to be closely noted in order to comprehend the controversy which is the basis of these two petitions. the respondent no. 1, the gujarat university, is a corporate body having a perpetual succession and a common seal, capable of suing and liable to be sued by the said name. it is a body.....
Judgment:

N.H. Bhatt, J.

1. These two petitions by different students but against the common respondents, viz. the Gujarat University and the State of Gujarat, can be conveniently taken up together and disposed of by this common judgment as the questions canvassed in these petitions and also at the time of hearing were almost conamon. With the concurrence of the learned Advocates appearing for the respective parties, the matters were heard together and are being disposed of by this judgment. A few facts require to be closely noted in order to comprehend the controversy which is the basis of these two petitions. The respondent No. 1, the Gujarat University, is a corporate body having a perpetual succession and a common seal, capable of suing and liable to be sued by the said name. It is a body floated Under the Act which was Put on the statute books because it was found 'expedient' to establish and incorporate a teaching and affiliating University in the (then) Province of Bombay to be known as the Gujarat University as a measure in the decentralization and reorganization of university education in the (then) Province of Bombay vide the preamble of the Act known as 'the Gujarat University Act, 1949, being Bombay Act (No. L of 1949). The University since its establishment in the year 1949 has been clothed with certain powers which are enumerated in Sec 4 of the Gujarat University Act, 1949, hereinafter referred to as 'the Act' for brevity's sake. The University is having powers, inter alia, to provide for instructions to affiliated colleges, to undertake specialization of studies, to lay down the course of instructions for various examinations etc. Clause (12) of Section 4 of the Act specifically clothes the University with the powers to hold examinations or tests and confer degrees and diplomas on, and grant certificates to, persons who (a) have pursued approved courses of study in the University or in an affiliated college, unless exempted therefrom, in the manner prescribed by the Statutes, Ordinances, Regulations and Rules and have passed the examinations or tests prescribed by the University, or (b) have carried on research under conditions prescribed by the Statutes, Ordinances, Regulations or Rules.

2. The University has got the Governor of Gujarat as its Chancellor and there are the Vice-Chancellor and other authorities of the University. The said authorities of the University are set out in Section 15 of the Act. They are, inter alia, the Court, the Executive Council, the Academic Council and others. The Vice-Chancellor is the principal Executive and academic officer of the University and his powers are enlisted in Section 11 of the Act. The constitution of the Court is provided for in Section 16 of the Act. It is a broad based body of the University, having its members drawn from various sources. Its powers and duties are to be found in Section 18. It was in the old days known as Senate. More important from the day-to-day administration point of view are the two bodies known as the Executive Council (erstwhile Senate) and the Academic Council referred to respectively in Secs. 19 and 21 of the Act The powers and duties of the Executive Council are to be found at S. 20.It is a sort of a Managing Committee of the University. One of the powers of the Executive Council is to recommend to the Court the institution and conferment or grant of degrees, diplomas and certificates, in the manner prescribed by Statutes, to recommend to the Court the conferment of honorary degrees; to appoint examiners: and to make Provision for instruction, teaching and training in such branches of learning and courses of study. Clause (xliii) gives the residuary powers of the University to this body - the powers which -are. requisite to give effect to the provisions of this Act, or the Statutes. The Academic Council referred to above is a body, as its name suggests, is having control and general regulation of the maintenance of standards of teaching and examination with the University. The Court abovementioned frames the Statutes by virtue of powers conferred on it under Section 28 of the Act. The Executive Council. is given. power to issue Ordinances under Section 29 of the Act, and the Academic Council makes Regulations. These Statutes, Ordinances and Regulations pertain to the field of activities of these bodies.

3. It is common g1round that the Gujarat University to a large extent is affiliating Colleges. It is also admitted that every year holds examinations in various courses of studies and those who are successful at these examinations are having various degrees conferred on them. The spectrum of activity of this University extends to professional as well as non-professional subjects. Professional subjects including medicine, engineering, pharmacy etc. Non-professional courses are those pertaining to Arts, Science, Commerce, education etc. This University also grants diplomas to certain students. Thus this University is having a wide net-work of Statutes, Ordinances and Regulations in order to enable it to carry out its functions. Chapter 26 of the Ordinances deals with the details of examinations and the normal Schedule of such examinations. 0. 129 in particular deals with Conduct of Examinations. The column appended to that Ordinance sets out a number of examinations in various Faculties and the ordinary date of commencement of those examinations,

4. The petitioners Nos. 1, 2, 3 of the first petition No. 2530 of 198-1 claim to be students of brilliant 'academic career. In the beginning of 1981, i. e. the current year, they had filled in Forms for the M: A. Part I examination which admittedly was being held year after year, There had started in Gujarat an agitation of the students of Medical Colleges who were out to do away with the abolition of reservation of seats etc. This agitation had led in a substantial measure to dislocation of the normal life in the city of Ahmedabad and as a result of those disturbances, the authorities of the University were almost constrained to close down Colleges as also the University School of Social Sciences where these petitioners were prosecuting their studies. However, before the advent of the month of May 1981, this agitation was withdrawn and normalcy had returned to the city of Ahmedabad and other parts of Gujarat. An occasion, therefore, arose for the University to replan their academic terms and examinations. Ultimately, Resolution No. 116 came to be passed by the Executive Council of the respondent University on 16-5-1981 resolving, inter alia, that the examinations to be held by the University in March and April were deferred to July 1981, first and third week, in so far as the Faculty of Arts and Commerce in the first and second year were concerned. In respect of the rest of the examinations, the Vice-Chancellor was given authority to chalk out the plan. It was also resolved that the new academic year, viz. 1981-82 year, should start from 15th June as per the earlier practice and the students of the first year should be given admission to the second year and the students of the second year should be given admission to the third year on condition that they would be required to clear the examinations of the first and second years respectively under the peril of not being declared successful at the results to be pronounced normally in June 1982. Similar was the decision pertaining to the examinations of M. A. Part I and M. Com. Part I.

5. It appears that some students of the first year and second year of the Arts, Science and Commerce Faculties were agitating for their being given admission to the higher class without any examinations being held. This was Popularly known as an agitation for mass promotions. Despite that agitation the above mentioned Resolution Annexure 'A' dated 16-5-1981 was taken by the Executive Council and it was in the fitness of things, and it appears ex facie also that this would have met the requirements of academic standards without putting the students to any loss of the year because they were allowed to fill in terms in the higher class with their instant liability to clear those examinations. Had the resolution Annexure 'A' continued to hold the field, there would not have arisen any difficulty, but the trouble which has given rise to these two petitions arose thereafter. Purporting to exercise his power under Section 11(4) of the Act and in the face of the resolution Annexure W, the Vice-Chancellor of the University issued a circular letter No. 25 dated 19-6-1981 (Annexure W to the first petition) that the students of the first B. A., first B. Sc., first B. Com., second B. A., second B. Sc. and second B. Com. who had filled in their Forms for the University examinations to be held in 1981 and had paid the requisite fees and who otherwise were eligible for appearing at the examinations were as a matter of decision to be given mass promotions. It was further decided as per that circular that the students of M. A. Part I and M. Com. Part I and M. Sc. Part I who had filled in the Forms and whose terms were accepted were also to be given mass promotions. It was, however, clarified that the students who were given mass promotions as detailed above were at liberty in their discretion to appear at those, examinations (of first year B. A. and M. A. Part I etc.) to be held in October 1981. The petitioners of the first petition sought certain clarifications but got no reply. They felt that the mass promotions offered on the platter to these students adversely affected the credit and credility of the certificates or degrees ultimately' to be given by the University, that there would ensue substantial diminution in the valuation of the University certificates, that the University had no power whatsoever to totally dispense with the examinations. The petitioner No. 4 of that petition who was an external student. however, was required to appear at the examination and, in fact, the Petitioner No. 1 had appeared at the examination held in July 1981. The petitioners contended that if it was possible for the University, to hold examinations for external students like the petitioner No, 4 and also possible to hold all examinations of all classes of professional courses, there was no earthly reason why the University could not hold the examinations of students of various classes who were given the so-called mass promotions. The also contended that by compelling the external student of M. A. Part I to appear at the examination while leaving it to the Option of the regular students, discrimination was practised against the external students. The petitioners of that petition, therefore, prayed for the following reliefs:-

' (A) issue a writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction quashing and setting aside the decision at Annexure 'B' and further' directing the respondents to hold the examinations for M. A. Part I course forthwith:

(AA) declare See. 11 (4) of the Gujarat University Act, 1949, as ultra vires the Constitution:

....................................................

(C) grant such other or further reliefs as may be deemed just and proper in the facts and circumstances of the case.'

6. The petitioners of the second petition No. 2779 of 1981 are the external students studying at the M. Com. Part I and M. A. Part I' course for which examinations were to be held in July 1981. It has to be remembered that this respondent University has made provision for external students. Such students are not required to attend any classes conducted by the University or by any postgraduate centres. It is expected that they would be pr6secuting their studies on their own or with some external aid. But they are eligible to fill in the Forms and appear at the self-same examinations along . with the regular students. They also emphasized the entreatment meted out to external. s udents vis-a-vis the regular students of M. A. or M. Com. Part I. They, therefore, sought the following reliefs:-

'(a) pending admission, final hearing and disposal of this petition. to grant interim relief directing the respondent No. 1 not to hold any examination for M. A. 'Part I or M. Com Part I Course for the year 1980-81.

(b) to declare that the Petitioners and other external students are entitled to be promoted without appearing for the M. A. Part I/M. Com. Part I examination:

(c) restraining the respondents from denying promotion to the Petitioners and other external students at the M. A. Part I/M Com Part I examinations to be held for the year 1980-81;

(d) to declare that the holding of the M. A. Part I/M. Com. Part I examination only for the external students of the M. A. Part I/M. Com. Part I examination is arbitrary, capricious, irrational and is contrary to law, illegal and violative of Art. 14 of the Constitution of India and is ultra vires the Gujarat University Act, 1949;

(e) to declare that Section 11(4) of the Gujarat University Act is violative of Art. 14 of the Constitution of India and to set aside and quash the same:

(f) to declare that the respondent No. 1 has no power or authority to promote any student to any class without the holding of the appropriate examinations and that the conferment of a degree to such a student is null and void, illegal and ' ultra vires of the Gujarat University Act, 1949;

(g) to pass any other and further order as may be deemed fit and proper.'

7. It will be evident that prayer (f) of the second petition is the main prayer in the first petition. However, the emphasis of the petitioners of the second petition is on their being also exempt from appearing at the examinations and their being recipients of the mass promotions benefit accorded to regular students. At the time of hearing, however, the petitioners of this petition joined in chorus with the petitioners of the first Petition and highlighted their contention that mass promotion as a matter of fact was against the texture of this University and that their prayer for being exempted along with regular students was an alternative prayer Put forth by them.

9. Before we go to the consideration of the merits of rival contentions put forth before us, we would like to put on record our being alive to the limitations on our powers particularly when we are called upon to deal with the decisions of autonomous bodies like the respondent University. This is necessary because the Advocate General appearing for the respondent University had emphasized that in the facts and circumstances of the case, the intervention of this Court was not only not called for but was not legal also. In this connection. the latest pronouncement of the Supreme Court in the case Dr. J. P. Kulshrestha v. Chancellor, Allahabad University : (1980)IILLJ175SC , deserves to be specifically referred to. The Supreme Court in the course of the judgment observed as follows:- (at p. 2146),

'Rulings of this court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, is bound by the rule of law and cannot be a law unto itself. if the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off, but where a provision of law has to be read and understood, it is not fair to keep the court out. In Govinda Rao's case, : [1964]4SCR575 Gajendragadkar. J. (as he then was) struck the right note:-

'What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or 9rdinance and in doing so: the High Court should have shown due regard to the opinions expressed by the Board and its recommendations on which the Chancellor has acted.'

The later decisions cited before us proudly conform to the rule of caution sounded in Govinda Rao. But to respect an authority is not to worship it unquestioningly since the bhakti cult is inept in the critical field of law. In short, while dealing with legal affairs which have an impact on academic bodies, the views of educational experts are entitled to great consideration but not to exclusive wisdom. More over-the present case is so simple that profound doctrines about academic autonomy have no place here.'

We, therefore, have kept before our mind while dealing with these matters the well-settled legal Position that the respondent University is an autonomous body, that the questions that arise before this body in the course of its day-to-day or other functions are to be left to their sale decision, that this Court is not a Court of appeal over the decisions of the autonomous body like the University and that this Court's powers are confined only to seeing that the hedges of law are not overstepped.

9. Before us, Mr. Raval appearing for the petitioners of the first case canvassed the following points:-

(i) There was no power with the University or the Executive Council or the Academic Council to cancel any examination. The only power they possessed was the power to Postpone examinations.

(ii) The exercise of Power by the Vice-Chancellor under See. 11 (4) of the Act was bad at law because it flew in the face of the earlier decision Annexure 'A' of the Executive Council and secondly because there was no emergency of any nature whatsoever that would permit the vice-Chancellor to exercise his power under See. 11 (4) of the Act.

(iii) The decision annexure 'B' in the wim of the circular issued by the Vice-Chancellor on 19th June 1981 as it was disclosed to us in the course of the hearing, militated against due fairness and was arbitrary and was, therei0re, violative of Art. 14 of the Constitution of India.

(iv) Section 11(4) of the Act was ultra vires; because it provided no guidelines for the Vice-Chancellor to exercise those powers, that it did not lay down expressly or by necessary implications what an emergency is and that there was no time-limit provided for in the said sub-section for the Vice-Chancellor to place his decision before the Executive Council or the Academic Council in respect of the subject-matter of whose jurisdiction the powers were exercised by the Vice-Chancellor.

10. We propose to take up the question regarding the Vice-Chancellor's action under Section 11(4) of the Act and the alleged ultra vires character of the said provision, It is to be remembered at this stage that the Ex-Vice-Chancellor and the Registrar of the University have filed their affidavits in this petition. The State Government has also filed its affidavit denying the 'charge levelled by the petitioners of these two petitions that the decision to forgo examination was taken by the Vice-Chancellor under the undue pressure of the Government. This last-mentioned question of the Government having led the University or any of its agencies to have acted under the pressure of the Government does not require to be elaborated in any manner because on one side there was bare assertion of that fact and there was a corresponding denial of the State Government in that regard. The Vice-Chancellor's decision in the form of Annexure 'B' dated 19-6-1981 was followed by a sort of approval accorded to the Vice-Chancellor's decision. At page 32 of the first petition is the Resolution of the Academic Council being dated 1st July 1981. The said Resolution of the Academic Council when translated reads as follows:-

It is hereby resolved that the students of M. A., M. Sc., M. Com. Part I who will not appear at the optional examination of October will be given Class On the marks of four papers of Part II and in the place of marks of Part I it will be mentioned 'Promoted.'

It is further resolved that the regular students who may appear at the October optional examination will have their results declared on the aggregate marks of the October Part I examination and March-April 1982 Part II examination or only on the basis of the marks of the March-April 1982 examination as it is to the advantage of the students concerned.

It is further resolved that if the students who appear at the examination fail, in the result sheet it will be mentioned 'promoted' and no marks are to be shown.'

At Annexure 'A' of the reply at page 31, there is a resolution of the Executive Council dated 4-7-1981 and it when translated reads as follows:-

'Thereafter the Vice-Chancellor informed the House that a decision was taken to exempt the students of First Year Arts, Science, and Second Year Arts, Science and Commerce and M. A. Part I (except external Students), M. Com. Part I (except external students) and M. Sc. Part I from examination and to promote them further.

The members were also informed that no mass promotions were accorded in Pharmacy and other professional curriculum.

The meeting had taken note thereof.'

Thereafter the Academic Council had again met on 16-1-1981 and the resolution is to be found at Annexure H/2, in the first petition. By that time, present petition had already come to be filed and the learned single Judge of this Court had suggested some changes in the earlier resolution dt. 1-7-1981. They were Put before the Academic Council in the form of the letter of the Advocate of the University and the Academic Council resolved to stick to their earlier decision dated 1-7-1981. The very subject-matter had gone before the Executive Council on 17-7-1981 in. respect of the suggestion made by the very learned single Judge and there also the decision of the Academic Council was affirmed.

11. The question that now arises for decision is whether the circular letter Annexure 'B' dated 19-6-1981 issued by the Vice-Chancellor of the University remains to be his decision or whether it had come to be by ratification decision of the Academic Council and/ or the Executive Council. If it can be held in accordance with law 'that because of the ratification of these two bodies, it, for all legal purposes can be termed as a decision of those two Councils. the validity or otherwise of the decision of the Vice-Chancellor and existence or non-existence of the emergency referred to in See. 11 (4) may not arise. The resolution of the Academic Council dated 1-7-1981 and the resolution of the Executive Council dated 4-7-1981 are reproduced by us as translated by us. They, once for all, show that these two Councils which are representative bodies affixed, their seal of approval so to say to the action of the Vice-Chancellor, though, in specific terms, these' two Councils did not state that they ratified or approved the action of the Vice-chancellor which culminated in the circular dated 19-61981. Their resolutions once for all and very unequivocally show that these two Councils were in full know of what the Vice-Chancellor had done and that had taken the subsequent requisite steps to deal with the consequences of the decision of the Vice-Chancellor. This, in our opinion, must necessarily show that the Vice-Chancellor's decision had come to be at any ratified by those two bodies.

12. The Supreme Court had an occasion to deal with a situation of the type in the year 1976-77. In the case of VaranasaYa Sanskrit Vishwavidyalaya v. Dr. Raikishore Tripathi : (1977)ILLJ85SC the Supreme Court was dealing with Section 13(7) of Varanasya Sanskrit Vishwa VidyalaYa Adhiniyani (28 of 1956). which, from the discussion before the Supreme Court in the reported judgment, appears to be pari materia, if not identical with See. 11 (4) of this Act. The Supreme Court .in that case observes as follows:- (at P. 617).

'........ The emergency powers under See. 13 (7) of the Act are obviously intended for certain emergent situations necessitating 'immediate action.' Before they can be exercised it must appear that there is, in fact, such a situation as to warrant the exercise of extraordinary powers conferred underSection 13(7) of the Act. It is apparent ,that the Vice-Chancellor has to report the action taken to the authority or other body 'which in the ordinary course would have dealt with the matter.' It seems to us to be rather extraordinary that, despite these clear indications of the situation in which and the extent to which the Vice-Chancellor may exercise his emergency powers, it should have been held by the first Appellate Court and affirmed by the High Court that the Vice-Chancellor ,had a power to make an absolute. or clear appointment without any restriction or obligation to place the matter before the Executive Committee for .confirmation. We find that the Appellate Court had gone to the extent of saying that the Executive Committee bad 'no jurisdiction' or power left to consider the case. We think that this is an impossible view to take in view of the clear meaning of the words used in Section 13(7) of the Act. The object of the provision for reporting the .matter to the body which deals with it in the ordinary course could only be to leave the final decision to that body when it does meet. In other words, the power of the Vice-Chancellor was, in our opinion, confined to making a tentative decision which, whether he meant the appointment to be temporary Or permanent was subject to confirmation by the Executive Committee. Until then it was not final. When that body refused to treat the appointment as permanent and to readvertise 'he Post, it clearly indicated its intention to specify the nature of the plaintiff-respondent's appointment which it alone could do.' In the case of Vice-Chancellor, Jammu University, v. Dushinant Kumar Rampal : (1977)IILLJ1SC , sub-section (4) of Section 13 of the Kashmir and Jammu Universities Act (24 of 1969) had come to be examined. The said section is reproduced by the Supreme Court in paragraph 4 of the reported judgment. Section 11(4) of the present Act is reproduced below :

'(4) (a) In any emergency which, in the opinion of the Vice-Chancellor requires that immediate action should be taken' he shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority or body as would have in the ordinary course dealt with the matter.

(b) When action taken by the ViceChancellor under this sub-section affects any person in the service of the University such person shall be entitled to prefer an appeal through the said officer, authority or body to the Executive Council within fifteen days from the date on which such action Is communicated to him.'

A comparison of the See. 13 (4) of the Kashmir and Jammu Universities Act and the above provisions of the Act would show the striking similarity between these provisions in that connection, the Supreme Court in paragraph 9 observes as follows : 'The Vice-Chancellor, therefore, clearly had power under Section 13, sub-section (4) to make an order of interim suspension if he thought it necessary to make such an order in an emergent, situation which in his opinion called for immediate action. The respondent sought to contend that at the date when the order of suspension was passed, there was no emergency which called for immediate action on the part of the Vice-Chancellor and, therefore, the foundation for taking action under S. 13. sub-section (4) was wanting and the order of suspension could not be justified under that provision. But this contention cannot be entertained by us since it has not been taken as a ground of challenge in the writ petition. Whether or not there was an emergency requiring immediate action, on the part of the ViceChancellor is , entirely a question of fact and if the respondent wanted to contest the validity of the exercise of power by the Vice-Chancellor under Section 13, sub-section (4) in making the order of suspension, he should have pleaded in the writ petition that the order of suspension was outside the power conferred under Section 13, subsection (4) as there was no emergency.' In that case, it was further held that there was nothing in the Act of 1969 which militated against the vesting of the power in the Vice-Chancellor to order interim suspension of a teacher.

13. We, therefore, find in final analysis that the bodies that were entrusted with the power to deal with examinations had taken upon themselves the decision of the Vice-Chancellor and it is, therefore, too late in the day for the petitioners of these two petitions to challenge the action of the Vice Chancellor as if it is his unilateral decision without there being any emergency. It was not disputed before us that between these two bodies, viz. the academic Council and the Executive Council, the entire sphere of examinations stands distributed. As far as the conduct of examinations is concerned, it is within the purview of the Executive Council. As far as maintenance of the standards of teaching and maintenance of the standards of the examinations is concerned. it is the function of the Academic Council as per Section 22(1) of the Act. Under clause (ix) of sub-section (2) of Section 22 of the Act, the Academic Council can make Regulations regarding the examinations of the University and the conditions on which students shall be admitted to them. When both the Executive Council and the Academic Council had taken the decision of the Vice-Chancellor as the basis of their subsequent actions or decisions, it is too late in the day for the petitioners Of these two petitions to contend that Section 11(4) of the Act is ultra vires or that the Vice-Chancellor had Purported to act without any authority of law and that too, by acting in the teeth of the Executive Council's earlier resolution Annexure 'A, dated 16-5-1981. All these arguments lose their force when we find that these two Councils themselves had not only accepted the Vice-Chancellor's decision but had also approved of further steps to be taken in that regard. So~ the contentions of the petitioners that the Vice-Chancellor had purported to exercise his power under See. 11 (4) which was ultra vires or had purported to exercise his powers without there being any emergency are the pleas which are not required to be dealt with any further. In view of of this decision, we are also not required to examine the alleged ultra vires character of Section 11(4) of the Act. However, if we have to deal with this question cursorily, we have no hesti.tat4on in upholding the vires of said sub-see. (4) because of the Judgment of the Supreme Court in Jammu University v. D. K. RamPal : (1977)IILLJ1SC (supra) and also because there are enough guidelines in the said Section 11(4) as to when those powers can be exercised by the Vice-Chancellor. The guidelines are the existence of the emergency as understood by the Vice-Chancellor and reporting the matter either to the Executive Council or to the Academic Council in whose sphere the subject-matter of the ViceChancellor's decision falls.

14. This brings us to the important question of this petition, viz. whether the Vice-Chancellor or the Executive Council and Academic Council had any power to dispense with the examinations at any stage of the studies. We have already referred to Section 4(12)(b) of the Act. Despite all tall talks and Utopian ideals, it has to be noted as a hard fact of life that apart from imparting education or instruction in various courses of studies and branches conferment of degrees and diplomas or grant of certificates is one of the main objects of the Universities. It cannot be gainsaid that in the material world of the society, these degrees, diplomas and certificates have their practical value and utility. Degrees, diplomas and certificates of different Universities and institutions are valued in the society differently according to the standards available in those institutions at the relevant. time and during the relevant periods, The Universities or institutions that. distribute their degrees, diplomas or certificates freely without making any adequate and strict provision for imparting instructions and without testing whether the trainees have imbibed and inculcated those instructions and learning are treated with discount. whereas the Universities and institutions which maintain strict standards are always viewed with reverence, respect and recognition. This in its turn confers on degree-holders special covetable bonus. Whether some pundit may agree in principle or not, the hard fact of life is that examinations are acknowledged as the dependable only media of ascertaining whether the trainee or student has been provided with instructions in various courses of study and various branches of learning. Talking of this Gujarat University in particular and conceding that at the post-graduate level this University itself imparts some education or training at the University level, it cannot be denied that it is by and large a University that confers degrees and diplomas on persons after holding examinations or tests. That is why clause (12) of Section 4(1) of the Act provides for the power of the University to hold examinations or tests and confer degrees and diplomas on, and grant certificates to, certain per sons. It is the mandate of law and what is left to Academic Council and Executive Council only the manner of holding examinations. Who are those Persons according to the said clause who are entitled to degrees or diplomas or certificates? Clause (a) in unmistakable terms lays down that only those persons can be recipients of degrees etc. who 'have pursued approved courses of study in the University or in an affiliated college, unless exempted therefrom, in the manner prescribed by the Statutes. Ordinances, Regulations and Rules and have passed the examinations or tests prescribed by the University.' The power is, therefore, conferred on the University by the legislature to grant degrees, diplomas or certificates after holding examinations or tests and such persons in order to be eligible for these degrees. etc., have to pass the exammatiom or tests prescribed by -the University. The word 'Precribed'occurring in this Act is not defined, but the reference to this word at various places in the body of the text of the Act shows that 'Prescribed' means prescribed by Statutes, Ordinances, Regulations or Rules. in clause (12) (b) of Section 4 itself this phrase has been used, viz. 'prescribed by the Statutes, Ordinances, Regulations or Rules'. In this connection, the Chapter No. (26) in the body of Ordinances is already referred to. Order 121 in particular provides for 'Alterations of Dates of Examinations' when in the opinion of the Executive Council there is sufficient reason for altering the dates of examinations as fixed by the Ordinances, Nowhere, either in Statutes or Ordinances, there is even indirect reference to cancellation of examinations and the omission is not accidental but is intentional. As stated by us above one of the main functions of this University is to conduct examinations and confer on the successful students who have cleared all the 'prescribed' examinations, various degrees in various Faculties of their studies O.125 itself deals with 'Exemptions' from certain examinations in certain subjects. But, there is no blanket power referring to total exemption from examinations or cancellation thereof. Even O. 129 speaks of 'Conduct of Examinations' according to schedule. Despite making very elaborate provisions for all aspects touching the examinations, the Ordinances are silent about total exemption from appearing at examinations. Ordinances 74 to 80 deal with University, terms 'and the minimum requirement for attendance of keeping terms is to be found in O. 78. Order 83-B which deals with postgraduate students in Arts, Science, Commerce etc., provides that 'No candidate for the M. A-, M. Sc., M. Com Degree Examination shall be allowed to appear at the said examination, unless (1) he has attended not less than two-thirds of the number of lectures delivered in the subject or groups of subjects in each term.' By referring to various provisions, what we have been emphasizing is that total exemption from examinations was never mooted or conceived either by the Legislature or by the original framers of Statutes, Ordinances, or Regulations. It cannot be disputed that the Executive Council and Academic Council. which are authorized to make their own ordinances & regulations can act by passing resolutions and it can be said that these two bodies. by necessary implication, had resolved to dispense with certain examinations referred to above. However, the overweening provision of law is the Act and this Act itself does not directly or indirectly confer any discretion on the University in this regard. On the contrary, the provisions of Section 4(12) presuppose the holding of examinations or tests as a condition precedent to conferment of degrees and diplomas or grant of certificates which could be made available. only to those persons who have pursued approved courses of study in the University or in the affiliated College unless exempted therefrom like external students in the manner prescribed by the Statutes, ordinances, Regulations or Rules and unless they have passed the examinations prescribed by the University. How can a student who has not passed his M. A. or M. Com. Part I examination at all and who because of these disturbances of the period between January and part of April 1981, was given option not to subject himself to appearing at those four Papers of Part I examination, be said to have become eligible for the degree in question? As stated above, the only acknowledged mode of testing the acquisition of instruction or knowledge and training is the examination. If that is done away with, despite insistence on them in the Act itself, it is to be held, as a matter of necessary and inevitable corollary, that the University, by giving on platter the option to the students to appear or not to appear at those examinations, has abdicated its necessary and compulsory functions.

15. Mr. Advocate General in this connection urged before us that it was not open to this Court to substitute its judgment for that of the, Academicians. He also invited our attention to the fact (which fact was not controverted) that at the meeting of 1-7-1981, 4-7-1981, 16-7-1081 and 17-7-1981, the vast majority of the members of the Executive Council was also present. He also urged by referring to certain known names of persons who are the members of those bodies, that they ware the academicians of repute and they were the best judges of the standards required for education. As far as broad claims go, Mr. Advocate General's submission is beyond reproach. However, when this Court finds that even. reputed . academicians are remiss in their statutory duties and have taken a decision against the provisions of Jaw or without there being any Provisions of law enabling :to grant mass promotion it becomes inevitable to say that they had fallen from their high standards and had become time-servers for the time being. After all, law is not the respecter of personalities.

16. Mr. Advocate General, however, in this connection pitched his argument., On a higher plane. He submitted very vehemently that the power 'to hold examination' carries with it the power not to hold examinations, also and to buttress his argument he pitched - his case on the provisions of Section 21 of the Bombay General Clauses Act, 1904, The said Section 21 reads as follows :

'Where, by any Bombay Act or Gujarat Act a power to issue - notifications, orders, rules or bye-laws is conferred, then that Power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued.'

The burden of his submission, therefore, was that when the Legislature clothed the University with the power 'to hold examinations', it is to be inferred that the University had the power not to argument left abstractly appears to be quite attractive; but we find that it holds no water whatsoever. The power of a public body, when it partakes of the character of a duty to certain persons, is not a power discretionary in character. A power coupled with a duty is not a matter of sweetwill or caprice of the concerned public body or authority As back as in the last century, the House of Lords had an occasion to deal with this question in the celebrated case of Jullius v. Lord Bishop of Oxford, (1880) 5 AC 214. They observed : 'The words in a statute 'it shall be lawfull, of themselves merely make that legal and , possible which their would, otherwise, be no right or authority to do. Their natural, meaning is permissive and enabling only. But there may be circumstances which may couple the power with a duty to exercise it. It lies upon those who call for the exercise of , the power to show that there is an obligation to exercise it.' Enabling words are: always compulsory where there are words to effectuate a legal right or a public duty. The exposition of this law holds good even till this day & the Supreme Court also has accepted this as the correct exposition of law.

17. In the case of L. Hirday Narain v. Income-tax Officer, Bareilly : [1970]78ITR26(SC) , which was a case arising under the Indian Income-tax Act, 1922, exercise of power to rectify an error apparent from the record is conferred upon the Income-tax officer in aid of enforcement of a right. The Supreme Court observed that an Income-tax Officer concerned with assessment and collection of revenue and conferred with the power to rectify the order of assessment is bound to see that injustice to the assessee or to the revenue is avoided. It is further observed that 'It is implicit in the nature of the power and its entrustment to the authority invested with quasi-judicial function under the Act, that to do justice it shall be exercised when a. mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceedings.' The Supreme Court overruled the decision of the High Court and held that the High Court was in error in assuming that the exercise of power was discretionary and the Income-tax Officer could even if the conditions for its exercise were shown to exist decline to exercise the power. In this case, the above-mentioned judgment of the House of Lords was quoted 'with approval. As the Supreme Court has noted '........there may be something in the nature of the thing empowered to be done something in the object for which it is to be done, some thing in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. ' These words extracted from the Bishop of Oxford's case (1880-5 A. C. 214) (supra) were quoted with approval by the Supreme Court which said that if the object for which the power is conferred is for the purpose of effectuating a right, there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf. To the same effect is the law laid down by the Supreme Court in the case of State of Bihar v. D. N. Ganguly, AIR 1958 S, C. 1018, where the Supreme Court clearly negatived the contention that the appropriate Government which was clothed with the power to make a reference under' the Industrial Disputes Act had got the power to cancel or supersede it, obviously because such a power is meant for the benefit of some persons. In the case of Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd., AIR 1950 SC 218, the five Judges' Bench of the Supreme Court held that the power to make a reference under S. 57 of the stamp Act is not only for the benefit of the revenue but enures also for the benefit of the party affected by the assessment and that it was a power coupled with a duty cast on him, as a public officer to do the right thing and when an important and intricate question of law in respect of the construction of a document arises, as a public servant it is his duty to make the reference. If he omits to do so, it is within the power of the Court to direct him to discharge that duty and make a reference to the Court.

18. Mr. Advocate General in this connection had invited our attention to the Craies on the Statute Law, Seventh Edition, Page 284. In particular, he invited our attention to the opinion of the author that 'Statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that 'it shall be lawful,' etc., or that 'such-and-such a thing may be done.' 'Prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject-matter to which they are applied, or in any other' part of the statute, to show that they are meant to be -imperative.' He then invited our attention to the case of Narain. Dass v. Karam Chand. AIR 1968 Delhi 226, which is a case regarding the cancellation of the commission suo motu by the Court. It is truism to state that where a power to issue an order is conferred by a statute, that power includes a power exercisable in like manner, to vary or rescind that order on the principle laid down in S. 21 of General Clauses Act. The learned Judge of the Delhi High Court, however, has made it clear that the said power is confined to a case of an earlier order dealing with a procedural aspect to which no finality could be attached. This case, therefore, stands on its own facts where the power to issue commission was a procedural matter within the judicial discretion of the concerned judicial Officer. The second case of Ravi Kiran Jain v. Bar Council of U. P. : AIR1974All211 deals with the procedural aspect of holding election under the provisions of the Advocates Act (1961) read with Rules under Bar Council of Uttar Pradesh Rules (1958). In our view this decision dealing with procedural aspect of a duty to hold election can hardly render any assistance to the case of the University. The third case sought to be relied upon is of Sampat Prakash v. State of Jammu and Kashmir : [1969]2SCR365 , The question that cropped up before the Supreme Court in that case pertained to Article 370 in its application to Jammu and Kashmir. It was held in that case that the President could validly pass Constitution (Application to J. and K.) orders in 1959 and 1964 extending time for giving protection to any law relating, to preventive detention in Jammu and Kashmir against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution, when the constitutional provision itself ' conferred on the President certain power and from the very nature of things. it appeared to be discretionary. The whole argument put forth on behalf of the petitioners was negatived by the Supreme Court. In our view, this judgment hardly renders any aid to the contention of the respondents.

19. The close examination of all the above quoted exposition of law makes it clear as a matter of general proposition of law that if any power is conferred on a Public authority to enable that authority to discharge its duties to a citizen or to the public at large, that authority -cannot refuse to exercise those powers on the specious plea that to exercise the power or not to exercise the power in within its discretion or sweet will. In Procedural or peripheral matters, such 'enabling provisions are to be treated as discretionary; but, in matters of substance in matters of Public concern, they are to be treated as the mandate of law that cannot be escaped by involving claim that Power is an enabling one which Power may or may not be wielded by the authority concerned. Let us -test the facts of this case in the light of the above settled legal Position. The degrees or diplomas conferred by this University have a useful social purpose to be served. Day in and day out, we come across the Provisions of rules and regulations which Jay down that acquisition of a particular kind of degree is a requisite qualification for a person to be qualified for a certain public appointment or for a certain public assignment. Recognised University degrees and diplomas, therefore, have -to serve public purpose apart from serving the individual needs of examinees or candidates. A University cannot arrogate to itself the claim that it will not conduct examinations and will not confer degress or diplomas or grant any certificates. If this Gujarat University itself adopts such a course. it will be denuded much of its significance and utility if it does not reach a moribund state. When the University, therefore, is clothed with the power to hold examinations and then confer degrees on those persons who have cleared examinations, the power, is not a matter of its sweet will or discretion or caprice but it is a matter of its duty to be discharged within certain frame-work. A holder of a First Class Degree of this University will not have only the satisfaction of being superior to others who have cleared the examination with Second Class or Third Class, but, in the practical day-to-day life, such a First Class student will stand to gain. Let us take one illustration of an M. A. student. He has passed both Part I and Part II examinations with First Class marks. The recipient of this mass Promotion bounty may in his discretion choose to appear only at the M. A.-II examination with four papers. Having been required to prepare intensively only for four papers, he will obviously have an upper age over the former student. A student who gets First Class marks on the aggregate, total of marks in the eight papers, and a student who gets First Class on the basis of aggregate marks of only four papers, cannot besaidt6beon par and still, this University wants to treat both of them on par. This is the direct outcome of its unauthorized action of giving mass promotions in the case of M. A. students.

20. Mr. Advocate General, however, in this connection Put forth an ingenious argument. Perhaps realising that the cancellation of examinations might be hit by the dereliction of duty on the part of . the University, he alleged that the University had not cancelled the examination but had made it only optional. This is only an euphemistic way of describing what in practical life will be cancellation of the examination. Firstly, to a regular student of M. A. First Year, it will not be at all obligatory to appear at that examination and earn the degree by proving his fitness only in four subjects. Such a student is free to appear in M. A. Part I examination in October 1981, but this is left with no significance because he is given an option to tag or not to tag his marks at M. A. Part f examination and the marks of the M. A. II examination. Is this the decision then of the student concerned or of the University? Looking to the trend of our younger generation, not being properly led by the leading academicians, who want to appease the momentary impulses of immature students, it is reasonable to infer that a vast majority of -such students would exercise the option not to appear at the examinations and thus make the alleged action a matter of mockery. Even if a few and far between students think of appearing at such examinations in October 1981, they would not ordinarily put their heart into it because they are told well in advance that the marks they procure at this examination of M. A. Part I will be reflected in their total evaluation if and only if it was to their advantage and that if it was to their detriment in any manner whatsoever, it will not be taken note of. Is this the standard of academicians to be adopted? Are they not expected to decide the questions falling with in their pious domain themselves? They cannot leave the question to the vagaries of unfortunate youngsters having no proper guidance from their high-ups in the academic world. So, we have no manner of doubt whatsoever that this alleged optional examination is nothing but a device, intended or unintended, to deceive the legal scrutiny of their action. Could not these academicians in the charge of the Academic Council and in the charge of Executive Council ably guide, assisted by the Vice-Chancellor, that stick to examination, Even by courting some displeasure they were required to stick to their earlier decision of 16th May 1981. Could they not know that if they could hold examinations for all professional courses, if they could hold examinations for the degree examinations, there was nothing to prevent them from holding the similar examinations for the First Year and Second Year students of Arts, Science and Commerce and for M. A., M. Com., and M. Sc. Part I examinations To us it appears that these persons on whose shoulders lay a heavy responsibility of guiding the younger generation, on whom depended the credit of the degrees, diplomas and certificates of these Universities, became remiss in their duties because they were out to please some element of the student world or they had not the courage to face the outburst of temper of a few misguided souls. It is expected of highly placed persons to be even unpopular when they are out to discharge their public duties. All tall talks of academicians concern fall flat when we remember that it was only for this year that this expediency was resorted to. This on the contrary, would show that even according to these academicians, examinations (which are cancelled) are requisite for maintaining standards of education but they were done away with only in 1980-81. This is nothing short of time-serving attitude of those academicians.

21. Mr. Advocate General had also invited our attention that the formal amendment of the Ordinance was on the anvil so as to regularize the mass promotion. As we have held that the University has no power to do away with examinations, requisite for conferment of degrees or diplomas or granting of certificates, this question is not required to be examined by us.

22. In the above circumstances, we cannot but hold that the decision of the Vice-Chancellor ratified or approved by he Academic Council and Executive Council in giving mass Promotions was a decision bad at law and without any authority of law and, therefore, it is to be treated as non est for all purposes. The action of giving mass Promotions is, therefore, declared by us to be bad at law and as a corollary the University is bound to hold examinations for those courses of study including M. A. and M. Com. Part 1. As the new term has already commenced, it is open to the University to make a provision that the students who are allowed to keep terms in the higher class would be liable to clear the earlier examinations before the results for higher examinations are declared to their advantage.

23. This brings us to the question of discrimination. When we have held that the giving of mass promotion itself is bad the question of discrimination does not require to be dealt with at all. This question would have arisen only if we had held that the decision to give mass promotion was a legal one and as a corollary was required to be extended to the external students as well. We, therefore, do not think it at all necessary to examine this question.

24. In the above view of the matter, we pass the following order :

Special Civil Application No. 2530 of 1981 :

Special Civil Application is allowed. We quash the. order or decision contained in. Annexure 'B', the circular letter issued by the Vice-Chancellor pursuant to his decision purporting to have been taken by him under Section 11(4) of the Gujarat University Act, 1949, which decision had come to be ratified or approved by the Academic Council and the Executive Council of the University and we further direct -the respondent University to hold the examination for X A. Part I and all other examinations without mass promotions which were ordered to be given. Rule is accordingly made absolute in Special Civil Application No. 2530 of 1981.

Special Civil Application No. 2779 of the petition is allowed by declaring that the respondent had no power or authority to promote any student to any class without holding appropriate examinations. Rule is accordingly made absolute.

25. In both the matters, the respondent shall pay the costs of the petitioners and bear their own . The State of Gujarat to bear their own costs.

26. The learned Advocate General appearing for the Gujarat University applies under Art. 133(1) of the Constitution for leave to appeal to the Supreme Court. In our opinion, the point Of law involved in this case is a substantial question of law of general importance and it is better that it is decided by the Supreme Court so that the law is settled finally for all times. Under these circumstances, leave under Art. 133(1) is granted.

27. Operation of the order passed by us is stayed for a period of three weeks to enable the University to obtain appropriate orders from the Supreme Court.

28. Petition allowed.


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