S.K. Mal Lodha, J.
1. This is a petition by Vinod Kumar Purohit under Article. 226 of the Constitution of India praying for the following reliefs:
(1) That the University of Jodhpur (here in after referred to as 'the University') may be directed to issue syllabus to the petitioner
(2) That the University may be directed to conduct Final Examination in Law for the year 1983 of the petitioner in accordance with Ordinance 358 of the University as existed on the date when the petitioner took admission in the First year in Law.
2. The petitioner sought admission in Three year Degree Course in Law in 1980. The admission, examination, etc. to Three Year Degree Course in Law are governed by Ordinance 353 to 367 of the University. Mr. M.R. Singhvi. learned Counsel for the petitioner has referred to Ordinance 356 in para 4 of the writ petition relating to First Examination in Law. According to the Syllabus, at the time of petitioner's admission in Three Years Degree Course in Law, the Scheme of Examination provided that the Final Examination in Law in each subject shall carry 100 marks, out of which 90 marks will be given in written papers in each subject and 10 marks in each paper will be given for sessionals. The petitioner passed his First Examination in Law. He took admission in Second Year in Law in 1981. During the course of studies in the Second Year as a regular student, the petitioner submitted his sessionals & was awarded marks. The petitioner could not appear in Second Examination in Law on account of illness. The petitioner appeared in the Second Examination in Law in 1982 and was declared successful. In the marks-sheet (Ex 2) which was given to the petitioner, the marks obtained by him in 1981 in Second Examination in Law were not carried forward in each written paper. In cl. (b) of the Permission Letter of Examination, it was mentioned that the examination of the petitioner will be held in accordance with the Syllabus issued for the year 1981/82. Having come to know that policy of 10% marks for sessionals has been abolished, the petitioner submitted a representation dated April 3, 1983, the copy of which has been filed as Ex. 5.
3. After seeking admission in the Third Year in Law, the petitioner filed SB. Civil Writ Petition No. 1723 of 1982 against the University of Jodhpur. Show cause notice was issued to the University of Jodhpur and the writ petition was decided on October 5, 1982. In that writ petition, the petitioner prayed for the following reliefs:
(i) The order Ex. 5 dated August 4, 1981 passed by the Vice-Chancellor of the University in exercise of powers vested in him under Section 12(5) of the Jodhpur University Act be quashed.
(ii) The University be directed to issue a fresh marks-sheet for the LL.B. Part II examination adding the marks obtained by the petitioner in the respective subjects vide Ex. 2 after making necessary mathematical calculations.
(iii) The University be directed to allow the petitioner in final Year Examination under the same set of examination as was held out in the syllabus which was given to him at the time of his admissions in Part I Exam.
4. The learned Judge did not grant reliefs No. (i) and (ii). In regard to relief No. (iii), he observed as under while dimissing the writ petition summarily on October 5, 1982:
As regards the third relief, the submission of Shri Singhvi is that in the final year LL.B. examination going to be held in the year 1983, the University is going to abolish the scheme of sessional marks and that the aforesaid decision of the University cannot be made applicable to the petitioner who joined the LL.B. course in 1960 when provisions for sessional marks was there for the final year examination also. The petitioner has not placed on record any order to show that the system of sessional marks will not be applicable to the final year LL.B. examination in the year 1983. On the other hand, the syllabus for the year 1982 which has been produced by Shri Singhvi shows that in the final year examination of 1982 the provisions for the sessional marks were there. In the circumstance, it cannot be assumed that in the final year examination of 1983, the system of sessional marks will not be there. In case the University passes an order abolishing the sessional marks in the final year examination 1983, it will be open to the petitioner to challenge the legality of the said order.
5. After the decision of the aforesaid writ petition, the petitioner submitted a representation calling upon the University to make Syllabus for the Session 1982-83 available and to apprise him with the courses etc. As there was no response to the representation, a notice for demand of justice dated November 24, 1982 was issued, which was. received by the University on November 25, 1982. Subsequent to that, a representation dated January 10, 1983 was also submitted with a request to make the syllabus available to the petitioner and to apprise him of the Scheme of Examination, but that was also not heeded to. The petitioner has stated in para 17 of the writ petition that the Committee of Courses and Studies in Law met on December 12, 1980 and in that meeting, the minutes of the meeting held on January 14, 1980 were confirmed. The Committee of courses resolved to recommend the courses of studies and curricula in Law in the First Examination, Second Examination and Final Examination in Law for the years 1981-1982 and 1983 respectively. It is said to have recorded that sessional work would be abolished for LL.B. Part 1, Part II and Part III from 1981-1982 and 1983 respectively. The photo stat copy of the minutes has been filed marked as Ex. 9. The Academic Council held its meeting on July 11, 1981. It, vide item No. 28. resolved as under:
28. Considered the recommendations of the Faculty of law made at its meeting held on 13-3-1981 along, with recommendations. made by the Committee of Courses and Studies in law held on 12-12-80.
Refer item no. 6 of the agenda. Resolved to recommend that the recommendations of the Faculty of Law made at its meeting held on 13-3-81 along with the recommendations made by the Committee of Courses and Studies in Law so far concerning the courses and curriculum is accepted in principle that the following observations subject to the provision that these recommendations would be implemented with the existing facilities available to the department concerned. However, the details of the staff requirements and justification there of be placed before the Vice Chancellor for consideration....
The Syndicate met on July 18, 1981. It considered the recommendations of the Academic Council, made at its meeting on July 11/ 12, 1981 and deferred the consideration of the recommendations The Vice-Chancellor of the University issued an office order Ex 10 dated August 4, 1981, in exercise of his powers conferred by s. 12(5) of the Jodhpur University Act (No. (XVII of 1962 for short 'the Act') and ordered that the Scheme of Examination and Courses and Studies for the year 1981-82 would be the same as in the year prevalent in 1980-81 in view of the fact that since the Academic Council at its meeting held on July 11/12, 1981 has resolved that the recommendations of the above Faculties along with the reccommendations of the Committee of Courses and Studies in the subjects mentioned therein be accepted in principle. The Syndicate met on August 31, 1981, approved the recommendations of the Academic Council made on July 11/12, 1980, with certain observations vide item No. 166. The case of the petitioner is that Resolution No. 28 of the Academic Council was deferred by the Syndicate at its meeting which was held on August 31, 1981. As the petitioner was not apprised of the courses of studies and Scheme of Examinations, he filed the writ petition on January 31, 1983 for the aforesaid reliefs.
6. Show cause notice was issued to the University. Reply was filed contesting the writ petition on March 3, 1983. On February 14,1983, it was ordered, as agreed to by both the counsel, that the writ petition may be finally disposed of the admission state.
7. I have heard Mr. Singhvi and Mr. P. K. Lohra for the petitioner and Mr. H.M. Parekh for the University of Jodhpur.
8. It was argued by Mr. Singhvi, learned counsel for the petitioner that while exercising the power conferred by Section 12(5) of the Act, the Vice-Chancellor was not competent to repeal Ordinance 358 and so the office order 10 Ex. dated August 4, 1981, so far as it seeks to amend Ordinance 358, is bad.
9. Section 12 of the Act deals with the powers and authorities of the Vice-Chancellor. Sub-section (5) of Section 12 of the Act says that in any emergency, when, in the opinion of the Vice Chancellor, immediate action is required, the Vice-Chencelor shall take such action as he may deem necessary find 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. The power under Sub-section (5) is subject to the condition that the Vice-Chancellor cannot incur expenses not duly authorised and provided in the budget.
10. In University of Jodhpur v. Ramchandra Sharma 1976 RLW 674, it was held by a Division Bench of this Court while considering Section 12(5) of the Act that the repeal of the Ordinance is the legislative function and, therefore, the repeal can also take place after following the same procedure, prescribed for making the Ordinance and that the language of Section 12(5) makes it clear that the Vice-Chancellor under emergency powers can act on behalf of any one of the authorities, officers or body, but he cannot assume the functions of all the author ties or bodies simultaneously. It was also held that the Vice-Chancellor was not competent to repeal Ordinance 368 by issuing a notification under the emergency powers, and that to the extent to which the notification repeals Ordinance 368, it is ultra vires the powers of the Vice-Chancellor. It was observed as under:
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. In view of the aforesaid bench decision I, hold that the Vice-Chancellor could not amend Ordinance 358 by exercising powers under Section 12(5) of the Act.
12. The next contention raised on behalf of the petitioner is that Ordinance 358 governig the final Examination in Law has not been amended which amongst others, provides that the Examination in each subject shall carry 100 marks out of which 10 marks will be assigned for the sessional work done in the tutorial classes and as such the petitioner is governed by it, as it existed at the time of his admission. He has confirmed the aforesaid contention to the Final Examination in Law, 1983. Mr. Parekh, learned counsel for the University, vehemently opposed this contention on the ground that the Committee of Courses at its meeting held on December 12, 1980, recommended that the sessionals be abolished, inter alia, for the Final Examination in Law from 1983 and the Academic Council vide its Resolution dated July 11/12, 1981, approved the recommendations made by the Committee of Courses and so the aforesaid Resolution will prevail over Ordinance 358 in view of Statutes 9, 9A and Section 17 of the Act. He submitted that it is not necessary to amend Ordinance 358 for the purpose of abolishing 10% marks in sessionals.
13. In these circumstances, the important question that arises for determination is whether the recommendations of the Courses of Commutes, approved by the Academic Council, prevails over Ordinance 358.
14. In order to answer this question, it is necessary to examine the relevant sections of the Act, Statutes and Ordinances, having bearing on it.
15. Section 17 relates to Academic Council, it is as under:
The Academic Council shall be the Chief Academic body of the University, and shall, subject to the provisions of this Act, the Statutes and the Ordinances, have the control and general supervision, and be responsible lor the maintenance of Standards of instruction education and examination 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. It shall have the right to advise the Syndicate on all academic matters. The constitution of the Academic Council and the term of office of its members, other than ex-officio members, shall be prescribed by the Statutes.
Section 21 lays down that subject to the provisions of the Act, the Statutes may provide for all or any of the matters mentioned therein. Section 21(k) provides that all other matters which by this Act are required to be, or may be, provided for by the Statutes Section 23 deals with the Ordinances. It lays down that subject to the provisions of the Act and the Statuses, the Ordinances may provide for the courses of study to be laid down for all degrees, diplomas and certificates of the University. Col. (f) thereof lays down that the conduct of examinations, including the term of office and manner of appointment and the duties of examining bodies, examiners and moderators may be provided by the Ordinances. Section 24 provides how Ordinances are to be made, According to it, the Ordinances are to be made by the Syndicate. According to proviso to Sub-section (1) of Section 24, no Ordinance relating to Examinations can be considered unless it is approved by the Chancellor.
16. The relevant Statutes, which require notice are Nos. 9 & 9-A. Statute 9 deals with the functions of the Faculty. The functions of the Faculty of Law, according to Statute 9 (ii) is to recommend to the Academic Council, Courses of Studies & Curricula for each examination after considering the recommendations of the Committee of Courses & Studies. According to Statute 9-A. (2) in the Faculty of Law, there shall be one Committee of Courses & Studies, and that Faculty, according to Statute 9-A(3)(iii) the Committee consists of (a) the Head of the Department who shall also be the convener, (b) Readers not exceeding two in number by rotation in order of seniority; (c) One lecturer by rotation in order of seniority and (d) Three persons having expert knowledge in the subject to be nominated by the Vice-Chancellor in consultation with the Convener. Statute 9-A(5) says that the Committee of Courses and Studies shall recommend to the Faculty concerned Courses of Studies and Curricula in their respective subjects.
17. Ordinance 358 lays down that a candidate for the Final Examination in Law shall present himself for the examination the subjects mentioned there in and that the examination in each subject shall carry 100 marks, out of which 90 marks will be assigned for the written examination in a paper of three hours duration and the remaining 10 marks will be given for sessional work done in the tutorial classes.
18. It was rightly not disputed that the provisions contained in the Act prevail over the Statutes that are made under Section 22 of the Act and that Statutes prevail over the Ordinance in as much as Section 23 of the Act clearly provides that subject to the provisions of the Act and the Statutes, the Ordinances may provide for all or any of the matters specified therein. Learned counsel for the University referred to Parmjeet Kaur and anr. v. Punjabi University AIR 1982 NOC 304. Full report was not made available, but it has been stated therein while considering Section 17(1) of the Punjabi University Act (No, XXXV of 1961) that the Ordinances framed by the Syndicate have to be subject to the statutes and the provisions of the Act. It was held in that case that if the Statutes as well as the Ordinances both provide for the same matter, then what is provided for in the Statutes has to prevail, and that similarly any thing prescribed in the syllabus cannot possibily override any clear cut provisions of the statutes. According to the learned counsel for the University. Ordinance 358 even if not repealed or amended, cannot be availed of by the petitioner in as much as according to Section 9 of the Act, the Committee of Courses of Studies has recommended to the Academic Council that the policy of assigning 10% marks for sessional work should be abolished for I L B. Parts I, II and III in the examinations for the years 1981, 1982 and 1983 respectively. On the basis of Parmjit Kaur's case AIR 1982 NOC 304, it was submitted that similarly syllabus cannot be of help to the petitioner. Section 24(1) of of the Act provides that Ordinances are to be made by the Syndicate and the Ordinance so made becomes effective after the approval of the Chancellor who is required to consider the views of the Senate. Under the proviso-ion Ordinance concerning examinations and courses of Study and Scheme of examination can be considered by the Syndicate unless draft of such ordinance has been proposed by the Academic Council. It is thus clear that Ordinance358 was made by the Syndicate. The Syndicate at its meeting held in on August 31, 1981, deferred consideration of the matters referred in Resolutions No 26, 27 and 28 dated July 11/12, 1981 vide Minutes Ex. 11. It may be stated that Resolution No. 28 is with respect to abolition of 10 marks for sessional work. In these circumstances, it cannot be said that Resolution No. 28 of the Academic Council accepting recommendations of the Committee of Courses and Studies will prevail over Ordinance 356.
19. It may be mentioned that Ordinance 358 has not been repealed or amended. The procedure for making the Ordinance is provided under Section 24 of the Act and according to University of Jodhpur's case 1976 RLW 674, the same procedure is applicable for repealing Ordinance.
20. From what has been stated above, it follows that for Final Examination in Law, 1983, the petitioner will be governed by Ordinance 358.
21. Now, I may examine the argument whether any legal right has has been created in favour of the petitioner by Ordinance 358 which as stated above, provides for marks for sessional work in each paper and if so whether that legal right has been infringed so as to entitle the petitioner seek mandamus.
22. I had occassion to consider Ordinance 356 to 361, Om Parakash v. University of Jodhpur and Ors. S.B. Civil Writ Petition No 776 of 1981 & other 17 writ petitions, decided on July 10, 1981, in which S.N. Jain v. State of Haryana : 2SCR361 and J. M. Demi v. Roshan Kumar : 3SCR58 were considered, it was held that it is elementary though it is to be restated that no one can ask for a mandamus without a legal right and that there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus and that a person so denied a legal right by someone who has a legal duty to do something or to abstain from doing something. In those cases, the writ petitions were allowed and necessary directions under Ordinances 360 and 363 were issued.
23. A Division Bench of this Court, of which I was also a member, had considered Sections. 6 and 1/ of the Act, Statutes 9 and 9-A and the Syllabuses 1-82 for B. E. Degree Course in Kamlesh Kumar Khatri v. University of Jodhpur (D.B. Civil Spl. Appeal No 720 of 19 2, decided on Feb. 4, 1983). in that case, on behalf of the University, a contention was raised that syllabus of 1981-82 contains merely executive instructions and it is administrative in character and as such any action taken under it cannot be challenged by filing a writ petition in as much as the petitioner cannot claim any vested right in its violation. Samrit Singh v. State of Punjab AIR 1975 SC 980 and Union of India v. K.P. Joseph 1973 (1) SLR 910 were also considered by the Division Bench. The contention was repelled & it was held that these are administrative orders which confer right and impose duties and it is because an administrative order can abridge or take away rights that have imported the principle of natural justice of audi alterm partun. into the case.
24. The Full Bench of this Court in Virendra Kapur v. University of Jodhpur 1964 RLW 328, was concerned with Section 3 of the Act & Regulation 38. Section 3) of the Act was amended by the Jodhpur University (Removal of Difficulties) Order, 1963 with retrospective effect. The Full Bench ruled as under:
While interference with the decision of an autonomous body like a University should be made sparingly and with due caution no absolute rule can be laid down in this regard and each case will have to be decided on its own facts and circumstances; but when a case for interference is clearly made out, where valuable rights of a student are adversely effected without lawful reason and there is a plain miscarriage of justice and there is no other adequate means of redress available, there would be sound justification for the Court to interfere to safeguard of just rights of the party aggrieved, we would be failing in discharging a duty which has been laid upon us by the very Constitution of our country if we declined to set things right even in cases of this type merely on the consideration that our doing so is likely to interfere with its domestic policy or internal affairs
25. In K. L. Rajpurohit v. University of Jodhpur 1982 WLN 502, a learned Judge of this Court had considered Ordinance 216-D, 216-E, 217-A, 218, 219 and 224 of the University. It was held that non-observance of Ordinancas 216-D & 216 E has resulted in passing an order deterimental to the interest of the petitioner and the petitioner has got a legal right under Ordinance 216-D for claiming that first a date for viva-voce test must be fixed and then only the matter should go before the Research Board under Ordinance 219. In that case, the writ petition was accepted and it was held that the petitioner's legal right has been infringed and that it was a fit case where interference should be made at that stage. It is abundantly clear that the petitioner has a valuable right to be governed by Ordinance 358 which is being infringed.
26. It was submitted by Mr. H.M. Parekh that there no question of any infringement of the petitioner's right in as much as instead of maximum 90 marks in each written paper & 10 marks for sessional, total 100, now maxi-in each written paper are 100. In this connection, he referred to Jagan Singh v. S. T. A. . In that case, it was laid down as under:
Assuming for argument's sake, that the non-petitioner No. 2, Sagruddin, had no locus standi to file an appeal or revision before the State Transport Appellate Tribunal against the order of the Regional Transport Authority dated May 27, 1978, the fact remains that the said order of the Regional Transport Authority is illegal and if we were to allow this writ petition and set aside the impugned order by the State Transport Appellate Tribunal, the result would be that the illegal order of the Regional Transport Authority would be restored. It may be noted that there has been no failure of justice in the present case and we would be justified in refusing to interfere unless we are satisfied that the justice of the case requires it. We are of opinion, that having regard to the facts of the case and the law bearing on the subject, we should decline to interfere.
The decision is not relevant in this case. There is no question of restoration of illegal order and for that purpose to see whether there has been any failure of justice.
27. In this case, I have already held above that the petitioner has a right under Ordinance 358 to have 90 marks in each written paper and 10 marks for sessional as Ordinance 358, admittedly, has neither been repealed nor amended in accordance with the procedure provided under the Act and Resolution No. 28 dated July 11/12, 1980 of the Academic Council, amongst others, abolishing sessional work for the final Examination in law in 1983 cannot replace it. Learned Counsel for the petitioner informs that the final Examination in Law will commence from June 15, 1983 and he does not press for issuance of syllabus to him. In these circumstances, it is not necessary to grant the relief to the petitioner that the University should issue syllabus governing final Examination in Law--1983.
28. The result is that the writ petition as filed by the petitioner is allowed to this extent that in the ensuing final Examination in Law, 1983, each subject shall carry 100 marks, out of which 90 marks will be assigned for the written examination in the paper of three hours duration and the remaining 10 marks will be assigned for sessional work according to Ordinance 358 of the Jodhpur University. Learned counsel for the parties inform that the final Examination in Law-1983 will commence from June 15, 1983.
29. The University of Jodhpur is directed to take necessary steps for assessment of marks for sessional work before the commencement of the final Examination in Law.
30. Learned Counsel for the University submits that operation of this order may be stayed for ten days. 1 consider it proper to stay the operation of the order for ten days.