G.M. Lodha, J.
1. Petitioner, Mrs. Kalpna Kumbhat, was a student of M. Sc. (Zoology) (Final). She appeared in the examination of M. Sc. (Final) in the year 1980. On July 8, 1980, she was hospitalised on the night intervening 7th & 8th July, 1980, where she delivered a child.
2. After her maternity period was over, she moved an application to the University of Jodhpur for permitting her to appear in the practical examination, which she could not give on 8th July, 1980 for the reasons, mentioned above. As the University failed to grant any relief inspite of repeated requests, she has approached this Court for the following relief Under Article 226 of the Constitution of India;--
(i) The University may be directed to reconvene the practical examination for petitioner and to issue fresh marksheet after adding the marks obtained in the practical examination and to award appropriate merit or
(ii) The University may be directed to allow the petitioner to appear in the practical examination in the ensuing examination
(iii) the Ex. 3 be quashed and set aside.
3. Petitioner claims to be a meritorious student having secured highest marks in M. Sc. (previous) in 1978-79. The examinations were scheduled to take place in the month of May, 1980, but the University could not implement the decision of the Head of Department of Faculty of Science. The dates were then fixed for practical examinations on 7th and 8th July, 1980, but the same were postponed to 8th and 9th July, 1980. As per details given in the writ petition, as earlier as on July 9, 1980, she moved an application mentioning that she has delivered a ehild and therefore, could not appear on 8th July, 1980. It was prayed that the practical examinations may be arranged for her again. This was accompanied by a medical certificate. When her request was turned down by letter dated the 29th July, 1980, she made another representation to the Vice-Chancellor on August 2, 1980. It was requested that her practical examinations should be taken and the result of the M.Sc. should be announced thereafter. A reminder was sent on August 14, 1980.
4. The University declared the result on August 17, 1980. The petitioner was declared to have passed the examination in Second division with 59% marks and no marks were given in the practical examinations, in which she could not appear for the reasons, mentioned above.
5. Shri M.R. Singhvi, the learned Counsel for the petitioner, made various submissions in support of the writ petition, which I would deal with after mentioning in brief, the reply of the University, which was supported by the submission of Mr. H.M. Parakh, the learned Counsel for the respondent-Jodhpur University.
6. The University has not disputed the facts, but feels helpless to help the petitioner because of absence of any such provision in the University Statutes. The resolution, dated the 30th September, 1980, (Annexure R/1) is alleged to expressly debar the holding of any re-examination, where a student fails to take an examination on account of illness or for any other personal reasons. The decision of the Academic Council and the Syndicate vide resolution, dated the 6th October, 1980, (Annexure R. 2), and resolution, dated the 1st November, 1980, (Annexure R. 3) was also relied upon by the University to show that similar prayer for holding of re-examination to accommodate who could not appear on account of unfore seen circumstances, was rejected earlier.
7. The University also objects to the interference of the Court on the premises that holding or not holding of examinations or re-examinations, is an internal matter of the University and the autonomy of the University should not be infringed by any interference from the Court. Reliance was placed on the judgment of the Supreme Court in Principal Patna College v. K.S. Raman : 1SCR974 , and Jawahar Lal Nehru University v. B.S. Norwal and Ors. : 1SCR618 .
8. The University has also submitted that ordinance 90 of the Jodhpur University Ordinances, relied upon by the petitioner, no where empowers the holding of special examinations. All that it enables, is to carry forward the fees of the student in the next examination if one cannot appear due tounforeseen or unavoidable reason, this cannot be expended to permitting re-examinations or holding of special examinations in such cases.
9. The University also invited an attention of this Court to Ordinance 37, where the petitioner can appear again, for improving her Division in the next ensuing examinations.
10. I have extracted above in a nut shell, the rival contentions of the parties in order to appreciate the controversy. The point involved is too simple and short. The sole question is, whether under the University of Jodhpur Statutes and Ordinances and whether Under Article 14 of the Constitution, the petitioner can claim a legal right for a direction to the respondent University to hold special practical examination in M. Sc. Zoology for the year 1980 for the petitioner as she could not appear on account of her hospitalisation and giving birth to a child on that very crucial day.
11. So far as the University Act, Statutes and Ordinances are concerned, the matter does not admit of much debate. The relevant Ordinance 90, relied upon by the petitioner, reads as under:
Order 90. A candidate, who from sickness or other cause, is unable to present himself for any examination, shall not receive a refund of the fee; provided that the Vice-Chancellor may, for sufficient cause, permit the candidate to present himself/herself for the next ensuing examination without the payment of further fee. In such cases, the candidate should make an application to the Registrar so as to reach him not earlier than the commencement of the examination and not later than a month after the date of the commencement of the examination, at which the candidate was to appear, requesting to with hold the fee for the next examination. In all cases of sickness, a medical certificate from qualified medical practitioner shall be attcehed to the application.
Provided further that a candidate who has already appeared at the Practical(s), only three fourths months of the Examination Fee shall be carried over.
NOTE:--The examination fee once carried over shall not be carried over for the second time.
12. A bare reading of the above would show that it contemplates a very limited contingency and the enabling power is limited to the realisation of the fees of a student who has failed to appear in the examination, for being treated as fees in the next examinations. In other words, it provides a financial relief to student. But it nowhere, directly or indirectly empowers the University authorities to hold fresh or re-examinations in such contingencies. An effort of Mr. Singhvi to interpret otherwise on the basis of precedents cannot succeed, because precedents cannot change the interpretation of the ordinance when the language is clear and unambiguous. I would deal with the fettering be attached with precedents when the application of Article 14 is discussed.
13. The resolution of the Syndicate, dated the 30th September, 1980, the relevant extract contains in Annexure R. 1, reproduced below, further clinches the issue so far as any general or residuary power for holding reexamination is concerned.--
264. Considered the recommendations made by the Academic Council held on 26th, 28th and 29th April, 1980- (Ref. Item No. 3 of the Agenda: App. X)
Further resolved that in future no re-examination should be held in any such case whether students fail to take a theory examination on account of illness or for any other personal reason.
14. A bare perusal of the above would show that whatever issues were there, records the general or residuary powers of the University in holding re-examinations: the Syndicate put a ban and prohibited holding of such re-examinations on the ground of illness or any such personal reasons of students.
15. The result of the above discussion is that so far as the University Act, its statutes, ordinances or resolutions of Syndicate or Academic Council are concerned, the petitioner cannot claim any relief on the basis of any one or all of them taken together. I have got, therefore, no hesitation in rejecting the contention of Shri Singhvi, that this Court should give such direction as prayed for on the basis of the No. 90 of the University Ordinances.
16. Next and much more important question, which now requires consideration is whether the petitioner can claim the relief by invoking Article 14 of the Constitution of India on the basis of certain precedents. The question is not very easy to answer as the impugned order of refusal of the University will have to be tested on the touch stone of reasonableness on the one hand, and equality clause on the other hand,
17. The principle of 'Reasonableness has become one of the attribute of equality or non arbitrariness protected by Article 14 of the Constitution, as would be obvious from the recent decisions of the Supreme Court.
18. In Smt Maneka Gandhi v. Union of India and Anr. AIR 1978 SC 56, their Lordships of the Supreme Court were pleased to observe in para 56 as under:
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.
19. Again in Ramana Dayaram Setty v. The International Airport of India and Ors. : (1979)IILLJ217SC , norms and standards of 'reasonableness were emphasised by their Lordships of the Supreme Court, which reads as under:.the power or diseretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and strictured by rational, relevant and nondiscriminatory standard of norm and if the Government departs from such standard or norm, in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
20. The concept of 'reasonableness' was further expanded to cover and originate from the entire scheme of the Constitution of India. Their Lordships of the Supreme Court in Kasturilal Lakshmi Reddy v. State J & K and Anr. : 3SCR1338 , emphasising this, observed as under:
The concept of reasonableness in effect provides the entire constitotional scheme. The inter connection of Articles 14, 19 and 21 analysed by this Court in Manka Gandhi v. Union of India (supra) elearly demonstrates that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and as several decisions of this Court show, this concept of reasonableness finds its positive manifestations and expression in the lofty ideal of social and economical justice which inspires and animates the directive principles. It has been laid down by this Court in E.P. Royappa v. State of Tamil Nadu : (1974)ILLJ172SC and Maneka Gandhi's case (supra) that Article 14 strikes at arbitrariness in State action and since the principle of reasonabless rationality, which is legal as well as philosophical has essentially element of equality or non-arbitrariness, is projected by this Article. It must characterise every governmental action whether it be under the authority of law or in exercise of executive power without making of law
21. The inter-connection of Directive Principles, that the concept of 'reasonableness' as envisaged Under Article 14 of the Constitution, was authoritatively summerised by their Lordships of the Supreme Court in the above judgment of M/s Kasturilal's case, in para 12 which reads as under:.The Directive Principles concretise and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 and other articles enumerating the fundamental rights. By defining the national and the constitutional goal's they set forth the standard or the norm of reasonableness which must guide and animate governmental action. Any action taken by the Government with a view to giving effect to any one or more of the Directive Principles would ordinarily, subject to any constitutional or legal inhibitions or other overriding considerations, qualify for being regarded as reasonable while an action which is inconsistent with or runs counter to a Directive Principle would prima facie incur the reproach of being unreasonable.
22. The maternity relief is one of the Directive Principles, argued Mr. Singhvi, and pointed out Article 42. Serious violation of Article 42 would be done too if the petitioner on account of being hospitalised at the crucial time of practical examinations due to giving birth to a child, is deprived of the examination and consequently suffers in merit, submitted Mr. Singhvi. He, in support of his contention, in order to highlight inter action and high pedestal on which the Directive Principles have been respected by the Supreme Conrt, read out the following relevant observations in addition to the above from the judgments in His Holines Keshavanand Bharti and Ors. v. State of Kerala and Ors. : AIR1973SC1461 , State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC and, U.P. State Electricity Board and Anr. v. Harishanker Jain and Ors. AIR 1979 SC 65.
23. Having built up the above bedrock, Shri Singhvi provided cemented re-enforcement to the foundation of Article 14, read with Article 42 by submitting that inspite of the tall denials and resistence put by the claims of the petitioner, the University in the past, arranged special programme examinations to Mrs. Pamila Mathur M.A. (Final) Geography, in the year 1975 on the ground of pregnancy. This was done by the letter dated 4th July, 1975, No. 12/l/Exams/(A)/2189-90. Even earlier to it, student of M.A. (Prevs) Political Science having roll number 362 was allowed such benefit in the year 1969.
24. As late in the year 1978, the Academic Council in its meeting held on 14th February, 1978 permitted Sunil Asopa of Engineering Faculty to appear in special Fourth B.E. Civil Examinations. Again, vide Resolution No. 44 dated, 5th April, 1977 of Academic Council of the University, the University permitted Shri Suresh Kumar Agarwal, Shri Ramchander Amtya to appear in IVth S.E. Civil First Semester Examination of 77 specially to be held because these students were hospitalised at the time of regular examinations held in November, 1976. The above are some of the numerous instances, wherein the Jodhpur University for much lesser unimportant reasons permitted the students to appear in special examinations. Mr. Parakh, the learned Counsel for the University, could not dispute the factual data given by Mr. Singhvi. Mr. Parakh even frequently and fairly submitted that for a student who is deprived of the examinations on account of maternity problem, no one can resist temptness of having sympathy, but there is no scope for sympathy in law. All said and done, Mr. Parakh even, himself, feels helpless to advise his client not to depart from the usual practice presumably on account of latest resolution of the Syndicate referred to above, wherein a ban has been put on such a practice.
25. On the above undisputed facts and the state of law, the sole question, which now requires to be considered, is whether this Court has also prohibited from directing similar treatment to similar situated students Under Article 14 of the Constitution, merely because the academic council or Syndicate passess different resolution at different times for similar situated persons. It is true that one or two bad precedents or unlawful actions of authority would not provide any ground to this Court to give directions for repeating or perpetuating any illegality. It is also true that stray acts of authorities cannot furnish or provide an actionable ground to citizen to invoke Article 14 of the Constitution but can it be said in the facts and circumstances, of the instant case, that all the above instances which are few of many were either stray decisions, illegally taken by the University from time to time. The instances have covered almost a decade and as is obvious, they are few of many. In the very nature of things, the petitioner cannot have access to the entire record of the University nor she can be permitted by the University to make a search or research or discover the record of the University.
26. The reasonable deduction to be drawn from the above instances, is that constantly for above a decade, the University has been permitting special examinations to be held in cases where student was deprived of the opportunity due to maternity problem or some other important unfore 'seen' unavoidable circumstances or situations. The permissions for doing so have been granted from time to time by the different authorities of the University.
27. Obviously, the University Act, or the statutes no where prohibits such practice. Tt is true that on a plain reading of Ordinance 90, it is difficulty to hold that it contemplates expressly granting of such permissions. However, in the matter of internal administration of the University, the University authorities have got wide general residuary powers, apart from the express mandates of the Act or the statutes or the ordinances. I have, therefore, got no hesitation in holding that when the University allowed the students to appear in the special examination of the law, and it cannot be permitted as any illegal act. That being so, if the University would have decided to permit the petitioner to appear in the practical examinations which he could not avail of because of her maternity problem, there would have been no illegality as such.
28. The second test about the earlier decisions, whether being stray isolated now requires determination. As narrated above, at least five to six instances, that data have been given by the petitioner and not disputed and denied by the respondent. In the very nature of things, as discussed above, the petitioner cannot prepare an exhaustive list because of information access to the record of the University, it was for the University to have provided an exhaustive list for last 10 years or 20 years which it has failed to do. The only presumption from such withholding of the information by the University is that such cases are numerous and the instances given by the petitioner of 5 or 6 are illustrative and not exhaustive. They cannot be permitted as stray cases or isolated exceptions which may not be treated as practice or usages or precedents. I am, therefore, of the view that the instances cited by the petitioner, are not stray cases but they depict a general practice or trend of the University authorities and provide proof of their actions in similarly situated circumstances and cases to similar students in the past. That being so, equal protection clause and equality of the opportunity guaranteed under the Constitution & also contained the preamble as well as fundamental rights would become illusory and remain confined, to the book cells and slabs of the libraries, both of law courts and the Parliament, if this Court shirks in its duty as 'Watchdog' of the Constitution to provide relief to the equally situated citizens functioning in similar conditions and circumstances but who are treated unequally and hostile discrimination is the practice against them. It matters little where such discrimination by an executive fiat or absence of different resolutions by the same institutions of the University on different times for discriminating between equals and similarly situated citizens. Mr. Hastimal Parakh could not explain why the University allowed Mrs. Pamila Mathur and disallowed Mrs. Kalpana Kumbhat, petitioner, both of whom were students of the University and claimed benefit on account of maternity problem. Mr. Hastimal had no answer why Sunil Asopa, Suresh Kumar Agrawal, Ram Chandra Aditya were permitted to appear in special examinations because they were deprived of appearing in the regular examinations on account of hospitalisation by the University and in contradistinction to it, Kalpana Kumbhat, petitioner a meritorious student who could secure 59% even after losing the opportunity of appearing in the practical examinations due to giving birth to a child on that very crucial night, is being disallowed from appearing in practical examination again. It is well known that holding of practical examination is comparatively easy and can be done at any time in comparison to the written examination. It has also come on record that the University changed the dates of practical examination from time to time and therefore, the deprivation of the petitioner from appearing any such examinations was also due to the delaying of the University. In such a situation, University should have acted in a more rational way by having liberal humanitarian approach. The University's syndicate and academic council should be more considerate to the Constitution for whose betterment they exist, & should not put up the robes of law courts to deprive the Constitution from their just duty.
29. The plethora of precedents and repeated dictum of law laid down by their Lordships of the Supreme Court have insisted on the attribute of the reasonableness as integral part of equal protection clause of Article 14. It would be unnecessary to repeat and extract from the paragraphs, already reproduced above, to bring home this point which is well established and well recognised in this year of 1981. All that can be said, is that the petitioner has been treated unequally and rather unequally amongst class and though similarly situated with others and similarly placed, she has been discriminated on the technical thin line and pretext of a ban put by the Syndicate resolution which fails to fulfill the test of reasonableness and smacks of arbitrariness.
30. The resultant position is that the writ petition deserves to be accepted. The refusal of the University to hold special practical examination for the petitioner in M. Sc (Zoology), in the 1980 cannot be sustained and is consequently quashed. The Jodhpur University and other respondent are directed to immediately hold a practical test of M. Sc. (Zoology) for the examination of 1980 for the petitioner and then as a logical and legal corollary to add number obtained by the petitioner in such practical examination to her marksheet. Consequently, this writ petition is accepted, as indicated above, without any order as to costs.