1. Both these special appeals are filed by the University of Jodhpur and they are directed against the judgment of the learned single Judge dated May 27, 1976. Since common questions of law are involved and the cases are based almost on identical facts, we propose to dispose them of by one judgment.
2. Respondents Bajrang Singh and Ramchandra Sharma appeared at the First year and Third year L.L. B. Examination of the University of Jodhpur held in the months of June. 1975. Bajrang Singh failed in paper I namely, law of Contract, by two marks, while Ramchandra was declared unsuccessful, as he could not secure the requisite number of aggregate marks prescribed by the Ordinance though he passed in all the papers Individually. Both these students applied to the University for the re-evaluation of their two papers each', but their request was turned down by the University Authorities and they were not even supplied by the University the prescribed forms for seeking re-evaluation of their answer-books. This attitude of the University was challenged by these two respondents by preferring two separate writ petitions before this Court. Those writ petitions came up for hearing before the learned Single Judge, who, by his judgment dated May 27, 1976, quashed the notification issued by the Vice-Chancellor dated 24/25-4-1975, whereby the Vice-Chancellor in exercise of the powers vested in him under Section 12(5) of the Jodhpur University Act, 1962, repealed the Ordinances governing the re-evaluation and re-assessment of answer-books, and declared that the petitioners Bajrang Singh and Ramchandra Sharma were entitled to get their answer-books re-evaluated under Ordinance No. 368.
3. Mr. Agarwal, appearing on behalf of the appellant-University, has urged that the learned Judge has erred in quashing the impugned notification including the declaration of the University that a scheme of double evaluation system of answer-books was introduced from the examination of 1975 in all the faculties except B.E. I, II and III (First Semester) Examination of 1975. According to Mr. Agarwal the University has power to introduce any system of evaluation of answer book and that system cannot be challenged by the students. In the instant case it is contended by Mr. Agarwal that the students did not actually challenge the system of double evaluation of answer-books introduced by the University, nor was there any prayer sought for questioning such a system still the learned single Judge quashed that part of the impugned Notification which related to the introduction of the system of double evaluation of answer-books. He also argued that the Vice-Chancellor has been clothed by the Legislature with the emergency powers to meet the need of the emergency and it was in the exercise of that power under Section 12 (5) of the Jodhpur University Act that the Ordinance relating to the re-evaluation and re-assessment of answer books was repealed by him. In these circumstances, according to Mr. Agarwal, students cannot pray for the re-evaluation of their answer-books after the Ordinance No. 368 was repealed by the Vice-Chancellor by issuing the impugned notification under Section 12 (5) of the Act.
4. Mr. Bhargava, appearing on behalf of the students, on the other hand pleaded that the Vice-Chancellor under the Emergency power of Section 12 (5) of the Act, cannot exercise the legislative function of enacting or repealing the Ordinances for which an elaborate procedure has been prescribed by the Jodhpur University Act, 1962 (hereinafter called 'the Act). He, therefore, argued that the repeal of Ordinance No. 368 by issuing the impugned notification dated 24/25-4-1975 is obviously ultra vires the powers of the Vice Chancellor and in such circumstances, the students could demand the re-evaluation of their answer-books in the two papers each, because the Ordinance 368 was not properly repealed by the authorities mentioned in the Act. Mr. Bhargawa, however, did not address the Court on the validity or otherwise of the system of double evaluation of answer-books introduced by the University under para 3 of the impugned notification.
5. The crucial question to be decided by us in these appeals is whether the Vice-Chancellor in the exercise of his emergency powers under Section 12 (5) of the Act could repeal the Ordinance governing the re-evaluation and re-assessment of the answer-books.
6. Section 24 of the Act deals with the procedure for the promulgation of Ordinances. It reads as follows:
'24. (1) Ordinances shall be made by the Syndicate, but no such Ordinance shall take effect until it has been approved by the Chancellor after considering the views of Senate:
Provided that no Ordinance concerning admission to the University or to its examinations, courses of study, schemes of examination, attendance and appointment of examiners shall be considered unless a draft of such Ordinance has been proposed by the Academic Council. (2) The Syndicate shall not have power to amend any draft proposed by the Academic Council under the provisions of Sub-section (1), but may reject it or return it to the Academic Council for reconsideration, either in whole or in part together with any amendments which the Syndicate may suggest:
Provided that no Ordinance affecting the income or expenditure of the University shall be made, amended, repealed or added to, unless prior consent in writing of the State Government to the draft of such Ordinance has been obtained. (3) All Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting. The Senate shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Syndicate and such Ordinance shall from the date of such resolution be void.'
7. According to the provisions of this section Ordinance made by the Syndicate, shall not take effect until it has been approved by the Chancellor alter considering the views of the Senate. The proviso to the section further provides that no Ordinance concerning admission to the University or to its examinations, courses of study, schemes of examination, attendance and appointment of examiners shall be considered unless a draft of such Ordinance has been proposed by the Academic Council. This provision of the Act shows that before an Ordinance can take effect the proposals must be adopted by the Syndicate and they should then be placed before the Chancellor, who will accord his consent only after taking into consideration the views of the Senate.
8. It is not disputed that Ordinance No. 368 deals with the schemes of examination and, therefore, it could be made only after the proposal was initiated by the Academic Council. Mr. Agarwal has candidly conceded before us, and in our opinion rightly so, that the Ordinance can be repealed only after following the procedure prescribed for enacting the Ordinance as laid down in Section 24 of the Act. He also admitted that till the impugned notification was issued on 24/25-4-1975 the Chancellor had not accorded his consent for the repeal of Ordinance No. 368 nor was it discussed till then by the Senate. This fact is not disputed that Ordinance 368 was repealed in accordance with the provisions of Section 24 only after the approval for repeal was accorded by the Chancellor in November 1975. These facts show that at the time when the two respondents raised the demand of re-evaluation of their papers Ordinance 368 was not properly repealed. The case of the University is that the Ordinance 368 was not in force on the day the application for re-evaluation was made by the respondents, because the notification issued by the Vice-Chancellor on 24/25-4-1975 under Section 12 (5) of the Act, had the effect of repealing the said Ordinance, as the impugned notification issued after the Academic Council had moved the proposal to repeal the same and the Syndicate had accepted the said proposal. But it is not disputed that further formalities which were necessary to be followed, namely, consideration of the proposal by the Senate and the approval of the Chancellor, had not been complied with.
9. Section 12 (5) of the Act no doubt confers emergency powers on the Vice-Chancellor to meet emergency situations, but from this provision of the law it is not possible to say that the Vice-Chancellor under this power can assume legislative function conferred by the Act on various bodies or functionaries under the law. Section 12 (5) of the Act reads as follows:--
'12 (5). In any emergency, when, in the opinion of the Vice-Chancellor, immediate action is required, the Vice-Chancellor shall take such action as he may deem necessary and shall at the earliest opportunity report the action taken to the officer, authority, or body who or which in the ordinary course would have dealt with the matter but nothing in this sub-section shall be deemed to empower the Vice-Chancellor to incur any expenditure not duly authorised and provided for in the budget.'
10. A perusal of this section indicates that the section has conferred this emergency power on the Vice-Chancellor to meet emergency situation by taking such action on behalf of some other authority, officer or body, who could not immediately meet to take the stock of the situation, but a rider has been put on this and it is that immediately after taking an action under this Section the Vice-Chancellor shall report the matter to the officer, authority or body concerned on whose behalf he had to act to meet the emergency situation. The power to make Ordinance does not vest in one authority. Section 24 lays down an elaborate procedure for making the Ordinance, and it takes effect only after the Chancellor had approved the proposal coming through the various bodies mentioned in Section 24 of the Act. The re-peal of the Ordinance, as conceded by Mr. Agarwal, is the legislative function and therefore, the repeal can also take place after following the same procedure, prescribed for making the Ordinance. That language of Section 12 (5) makes it clear that the Vice-Chancellor under emergency power can act on behalf of any one of the authorities, officers or body, but it cannot assume the functions of all the authorities, officers or bodies simultaneously. If for the sake of argument the contention of Mr. Agarwal is accepted that under emergency powers functions of all the authorities, officers or bodies can be used by the Vice-Chancellor, even then it is not spelled out from the language of Section 12 (5) that the Legislature wanted to confer on the Vice-Chancellor the legislative function so as to make or repeal the Ordinance. The Vice-Chancellor, in our opinion, was not competent to repeal the Ordinance 368 by issuing a notification under the emergency powers. To the extent to which the notification repeals the Ordinance 368, it is ultra vires the powers of the Vice-Chancellor and, therefore, the order of the learned single Judge quashing the notification so far as it relates with the repealing of the Ordinance No. 368 cannot be said to be erroneous.
11. We were taken through both the writ petitions and specially our attention was drawn to the prayer clause of these two petitions. The petitioner-respondents never challenged the new system of double-evaluation of answer-books, nor was any prayer incorporated in the prayer clause to get this system declared illegal. During the course of arguments Mr. Bhargava did not address the Court on the question that the system of double-evaluation of answer-books was, in any manner, illegal. We, therefore, feel that so far as para 3 of the impugned notification is concerned, the notification cannot be said to be void, as it was within the competence of the University to have introduced any system for evaluation of the answer-books, which might be considered by the authorities concerned as conducive for carrying out the scheme of examination.
12. As regards para 1 of the impugned notification it can be said that this is an introductory part and it relates only to the recommendation of the Academic Council and the decision of the Syndicate taken vide resolution No. 4 dated 4th January, 1975. This part of the notification does not violate any statutory provision. It cannot therefore be quashed, because it has a direct connection with para 3 whereby the University by issuing the said notification has introduced a system of double-evaluation. In this view of the matter we feel that the learned single Judge has erred in quashing the entire notification dated 24/25-4-1975, In our opinion only para 2 of the said notification can be quashed as the powers to repeal the Ordinance 368 governing the re-evaluation and re-assessment of answer books, did not vest in the Vice-Chancellor and, therefore, para 2 of the notification was ultra vires the power of the Vice-Chancellor.
13. It brings us to the second question whether the respondents in both these appeals can claim re-evaluation under Ordinance 368. Bajrang Singh who had appeared at the first L.L.B. examination, had failed only in one paper, namely, Law of Contract, but he applied for re-evaluation of his two papers, viz., paper No. 1 -- Law of Contract and paper No. 2 -- Law of Torts. Ram Chandra Sharma, who appeared at the third year LL.B. examination, failed in aggregate. He also applied for re-evaluation of his two papers. It is clear from the judgment of the learned single Judge that the University had accepted this position that if the Vice-Chancellor was not competent under Section 12 (5) of the Act to repeal the Ordinance then both the respondents were competent for the re-evaluation of their answer-books as desired by them under Ordinance 368, This position, which was taken before the learned single Judge, was, however, not adhered to by Mr. Agarwal before us. Mr. Agarwal argued that even if Ordinance 368 was not properly repealed by the Vice-Chancellor by issuing the impugned notification, both the respondents cannot claim for re-evaluation, as it is Bajrang Singh alone who has failed in one subject only, who is entitled to get re-evaluation and that too only in one subject. We regret that we cannot allow the University to change its stand regarding the re-evaluation of the answer-books of both the respondents. When the University had not disputed the respondents' right to get their answer-books re-evaluated in case the impugned notification was declared invalid, it will not be fair on the part of the University to change its stand at the appellate stage. As the scope of the application of Ordinance 368 to both the respondents was not challenged before the learned single Judge, we cannot permit the University to raise a new dispute before us in appeal. We have held that the second para, of the impugned notification repealing Ordinance 368 was not valid and therefore, the directions issued by the learned single Judge for the re-evaluation of the two papers of each of the respondent cannot be interfered with in the appeal filed by the University, specially when the University had not raised any dispute regarding the right of the respondents to get their answer-books re-evaluated under Ordinance 368.
14. It is now not disputed that Ordinance 368 was repealed in accordance with the provisions of the Act by the Chancellor on 29-11-1975, but before it was repealed by the Chancellor it (Ordinance 368) was very much in vogue and it held the field and, therefore, the respondents could apply for the re-evaluation of their answer-books under the provisions of said Ordinance 368.
15. It was also argued by Mr. Agarwal that respondent Ramchandra Sharma, who did not fail in any individual paper but failed only in the aggregate, cannot put up his claim for re-evaluation of his two papers under the provisions of Ordinance 368 because according to him only those students, who have failed in not more than two papers at the L.L. B. examination, at the faculty of law, were eligible to apply for re-evaluation under Ordinance 368. Mr. Agarwal reads para, (d) of Clause (1) of Ordinance 368 in the manner that only that candidate, who has failed in one or two papers, can claim re-evaluation but if a candidate has failed in the aggregate he cannot be eligible to make an application under Ordinance 368 for the re-evaluation of his papers.
16. As pointed out above this dispute was never raised by the University before the learned single Judge. It would not be proper for us to permit Mr. Agarwal to raise a new point in appeal. We, therefore, do not want to enter into this new controversy. In this view of the matter the direction issued by the learned single Judge that respondents Bajrang Singh and Ram Chandra Sharma both were entitled to get their answer-books in two subjects re-evaluated does not call for any interference at our hands. Since the directions of the learned single Judge may go a long way to make the life of the two candidates, who had applied for re-evaluation, we are inclined to take this technical view that disputes not raised before the learned single Judge shall not be permitted to be raised for the first time before us.
17. The result is that the appeals of the University in these two matters are partly allowed and it is held that paras 1 and 3 of the impugned notification dated 24/25th April, 1975, are valid. Para No. 2 of the said notification is, however, quashed as being ultra vires the powers of the Vice-Chancellor of the University of Jodhpur. Both the respondents can, therefore, lawfully claim for the re-evaluation of the two papers for which they made application to the University under Ordinance 368. Looking to the circumstances of the case we leave the parties to bear their own costs throughout.