S.N. Modi, J.
1. These two writ petitions under Article 226 of the Constitution, one by Bajrang Singh and the other by Ram Chandra have been filed against the University of Jodhpur praying that be any appropriate writ, direction or order, the notification No. Exam/227-248 Jodhpur dated April 24/25, 1975 (Ex. 1) be set aside or quashed and the request of the petitioners for getting their answer books in two subjects re-evaluated be allowed. As both these writ petitions involve common question of law and are based almost on identical facts, they are being disposed of together by this judgment.
2. The salient facts of the two writ petitions are as follows.
Bajreng Singh's writ petition.
3. Bajrang Singh appeared at the examination of the L.L.B. I year of the University of Jodhpur held. In the month of June, 1976. The result was declared on September 21, 1975. Bajrang Singh was declared on September 21, 1975. Bajrang Singh was declared unsuccessful because he failed in paper I-Law of Contract by 2 marks. He also failed in the aggregate. On September 27, 1975, Bajrang Singh applied for re-evaluation of marks in two subjects, namely, Paper I Law of Contract; and Paper II Law of Torts, but the authorities of the University of Jodhpur not only refused to make re-evaluation but also refused to supply the prescribed forms for re-evaluation on the basis of the impugned Notification.
Ram Chandra's writ petition
4. Ram Chandra appeared at the III year L.L.B. Examination of the University of Jodhpur, held in the month of June, 1975. The result of this examination was declared on September 6, 1975 and Ram Chandra was declared unsuccessful, as he failed in the aggregate, though he secured more than minimum marks prescribed in all individual papers On September 15, 1975, Ram Chandra applied for re evaluation of marks in, two subjects, namely, paper II Jurisprudence, and paper III-Civil Procedure Code, but the respondents i.e. authorised of the University refused to make re evaluation on the basis of the impugned Notification.
5. The relevant provisions of the Ordinance No. 368, under which the two petitioners prayed for re-evaluation of their answer books, read as Under,-
UNIVERSITY OF JODHPUR
It Is hereby notified that as required under Section 24(1) of the Jodhpur University Act, 1982, the Chancellor has approved that the new ordinances and amendments to the existing ordinances as specified below shall take effect from 28-4-73.
Order 368 : Add the following new Ordinance 268
ORDINANCE FOR RE-EVALUATION OF
1. Subject to Clauses (2) and (3), the following categories of candidates shall be eligible to apply for re-evaluation under the rules hereinafter provided:
(a) Any candidate who has appeared in the examination of the University of Jodhpur and who has been declared passed;
(d) Any candidate who has failed at the main examination in cot more than two papers at the LIB, level in (he Faculty of Law;
2. Notwithstanding anything in Clause 1(a) to (f) re-evaluation shall not be permitted at the following examinations:
(i) Diploma Course,
(v) Foreign Languages,
(vi) All June/Supplementary,
(vii) Practicals and Practical Training Reports
(ix) Dissertations/Project Reports/Tour Reports,
(xi) Survey Reports/Practical Training,
(xii) Viva-Voce, etc.
3. An application for re-evaluation must be made in the prescribed form to be had from the office of the Registrar and should reach the Registrar's office after being filled up along with the original mark-sheet within 21 days of the declaration of the result of the examination concerned.
4. Applications not received in the prescribed form and in the manner provided shall not ordinarily be entertained.
5. Under these Rules, provided other conditions are fulfilled, re-evaluation shall be permitted in not more than two papers under any condition whatsoever.
10. The Vice-Chancellor shall appoint two independent external examiners to re-evaluate each paper.
11. The result of re-evaluation shall be worked out by taking into account average award of the two re-evaluators provided the difference between the final mark obtained and the original mark is 10% or above, the originally obtained. Otherwise the mark given by original examiner shall stand.
Ordinance No. 368 came into force with effect from April 28, 1973 and it was in force when the petitioners filed their forms to appear at the examinations. A perusal of the above Ordinance clearly shows that under this Ordinance a candidate was eligible to apply for re evaluation of his answer books in respect of all examinations held by the University of Jodhpur except those mentioned in Section (2) of the Ordinance. It is further clear that this Ordinance permitted re-evaluation not only to those candidates who have failed in not more than two papers, but also to those candidates who have been declared successful at the examination.
6. It is not in dispute that the petitioners would have been allowed re-evaluation of their answer books, as desired by them, if the impugned notification had not been there. The petitioners have challenged the validity of this notification on the ground that under Section 12(5) of the University of Jodhpur Act, 1962 (thereinafter referred to as 'the Act'), the Vice-Chancellor had no authority to issue impugned Notification/Ordinance introducing a new system of evaluation of answer books and to repeal or supersede Ordinance No. 368 governing re-evaluation and re-assessment of answer-books.
7. In order to determine the validity of the impugned notification, it is necessary to read the notification.
THE UNIVERSITY OF JODHPUR
Dated 24/25-4- 1975.
It is hereby notified for the information of all concerned that on the recommendation of the Academic Council, the Syndicate vide its Resolution No. 4 dated 4th January,1975 has decided that the system of re-evaluation and re assessment of answer-books be discontinued from the examination of 1975 in all faculties with the exception of B.E. I, II and III (First Semester) Examination of 1975.
The Vice Chancellor has, therefore, in exercise of the powers vested in him under Section 12(5; of the Jodhpur University Act, 1962, repealed Ordinances governing re-evaluation and reassessment of answer-books subject to the exception mentioned above.
The University has also decided to introduce system of double evaluation of answer-books at all levels of the examination in all the faculties from the examination of 1975. This will, however, not apply to B.E. I, II and III (First Semester) Examination of 1975.
8. This notification consists of three paragraphs. The first paragraph narrates the fact viz., that on the recommendation of the Academic Council, the Syndicate vide its Resolution No 4 dated January 4, 1975, has decided to d is constitute the system of re-evaluation and re-assessment of answer books from the examination of 1975 in all faculties with the exception of B.E. I, II and III (First Semester) Examination of 1975. The second paragraph of this notification is important. It is this paragraph, whose validity has been challenged. A reading of the second paragraph goes to show that the Vice-Chancellor, in exercise of the powers vested to him under Section 12(5) of the Act, repealed Ordinances governing re-evaluation and re-assessment the answer books, subject to the exception mentioned in the first paragraph. The third paragraph embodies the decision of the University to introduce new system of double evaluation of answer books in all faculties subject, of course, to the exception mentioned in the first paragraph.
9. Section 12 of the Act, deals with powers and authorities of the Vice-Chancellor Sub-section (1) of Section 12, inter alis lays down that the Vice-Chancellor shall be the principal executive and academic officer of the University. Sub-section (2) of Section 12 of the Act speaks of the duty of the Vice-Chancellor to ensure the faithful observance of the provisions of the Act, the Statute and the Ordinances, and he shall without prejudice to the powers of the Chancellor possess all such powers as may be necessary in that behalf. Sub-section (3) of Section 12 of the Act empowers the Vice-Chancellor to convene meeting of the Syndicate, the Senate and the Academic Council, Sub-section (4) of Section 12 of the Act provides that the Vice-Chancellor shall exercise general control over the affairs of the University and shall be responsible for the due maintenance of discipline therein. Sub-section (5) of Section 12 of the Act reads as under,-
(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 bud get.
10. Section 14(1) enumerates the authorities of the University which are as stated below,-
(i) the Senate,
(ii) the Syndicate,
(iii) the Academic Council,
(iv) the Finance Committee,
(v) the Faculties,
(vi) the Committees of Courses and Studies, and
(vii) such other authorities as may be declared by the Statutes to be the authorities of the University.
11. Section 15 lays down that the Senate shall be the Supreme authority of the University and shall have the power to review the acts of the Syndicate and the Academic Council and shall exercise all the powers of the University not otherwise provided by the Actor the Statutes.
12. Section 16 provides that the Syndicate shall be the executive body of the University.
13. Section 17 provides that the Academic Council shall be the Chief academic body of he the University and shall, subject to the provisions of this Act, the Statutes and the Ordinances, have the control and general super-Vision and be responsible for 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.
14. Section 23 of the Act enumerates the matters on which the Ordinances may be enacted.
15. Section 24 deals with the procedure for the enactment of the Ordinances. It runs as under,-
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 the Senate:
Provided that no Ordinance concerning admission to the University or to Ms 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 b a majority of not les 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.
It would be clear from Sub-section (1) of Section 24 of the Act that an Ordinance concerning examinations and appointment of examiners cannot be made a draft of such Ordinance has been proposed by the Academic Council, accepted by the Syndicate, and approved by the Senate and the Chancellor. In the present case, the impugned Notification/Ordinance, which undoubtedly relates to examinations held by the University does not fulfil the conditions of Sub-section (1) of Section 24 of the Act. Admittedly, the impugned Notification/Ordinance was neither put for consideration of the views of the Senate nor approved by the Chancellor. The impugned Notification/Ordinance is thus, prima facie, invalid. The University has, however, taken the, stand that in exercise of the authority considered by Section 12(5) of the Act, the Vice Chancellor was competent to issue the impugned Notification/Ordinance. The sole questions therefore, that arises for consideration is whether the Vice-Chancellor was competent to issue the impugned Notification? A reading of Sub-section (5) of Section 12 of the Act would go to show that it empowers the Vice-Chancellor to take touch action as he may deem necessary in any emergency when, in the opinion of the Vice-Chancellor, immediate action is required. The first question therefore that arisen is whether there was any emergency necessitating the issue of the impugned Notification/Ordinance. I find co circumstances in the present case suggesting that there was any emergency to issue the impugned Notification/Ordinance shows that on the recommendation of the Academic Council, the Syndicate vide its solution No. 4 dated January 4, 1976 has decided that the system of re-evaluation and re-assessment of answer books b: discontinued from the examination of 1975 in all faculties with the exception of B.R. I, II, and III (the First Semester) Examination of 1975. The impugned Notification/Ordinance was issued by the Vice-Chancellor after three months and 20 days of the passing of the said resolution by the Syndicate. This is nothing to suggest that during this long period of three months and twenty day, the Vice-Chancellor could not have convened the meeting of the Senate and obtain its approval as well as the approval of the Chancellor, as required under Section 24(1) of the Act, The impugned Notification having been passed without any emergency, it was beyond the powers of the Vice-Chancellor to issue the same under the garle of Section 12(5) of the Act.
16. A further perusal of Section 12(5) reveals that in case any action is taken by the Vice-Chancellor, under Section 12(5) of the Act, the Vice-Chancellor, at the earliest opportunity, has to report the action taken by him to the officer, authority or body, whom or which, in the ordinary course, would have dealt with the matter. This latter part of Sub-section (5) of Section 12 of the Act clearly shows that the authority of the Vice-Chancellor to take action in emergency is limited only to such matters which, in the ordinary course, were required to be dealt with by an officer or authority or body. In other words, the provision contained in Section 12(5) is not designed to enable the Vice-Chancellor to act as a substitute for all statutory bodies or authorities of the University. As pointed out above, making of Ordinances or repeal of the existing Ordinances concerning schemes of examinations and appointment of examination said appointment of examiners required the proposal from the Academic Council, its adoption by the Syndicate, and its approval by the Senate as well as by the Chancellor. The Vice Chancellor; in my opinion, had co authority to act; as a substitute for all these authorities, and make a new Ordinance or to repeal the existing Ordinance. In this view of the matter, the Vice Chancellor has certainly exceeded his authority in issuing the Notification in question.
17. The learned Counsel for petitioners has also challenged the validity of the Notification/Ordinance in question on two more grounds; firstly that Section 12(5) of the Act does not authorise the Vice-Chancellor to incur any expenditure not duly authorised and provided in the budget; and secondly, that the Academic Council or the Vice-Chancellor or the Syndicate could not issue impugned Notification/Ordinance without obtaining prior consent of the State Government as it affected the expenditure of the University. The reply of the respondents in respect of first ground is that there is no allegation in the writ petition that by issue the impugned Notification, the Vice-Chancellor has incurred any expenditure not duly authorised and provided in the budget. In respect of the second ground, it is submitted on behalf of the respondents that the petitioners have no loous standi to raise this contention. According to the learned counsel, the only competent person to raise this objection is the State Government and none-else. Since I have found the impugned Notification/Ordinance to be ultra vires of the powers of the Vice-Chancellor, I need not go into the merits of these allegations.
18. In the result, I allow both these writ petitions and quash the impugned Notification/Ordinance Ex. 1. I further order that the petitioners Bijrang Singh and Ram Chandra are both entitled to get their answer-books in two subjects re-evaluated as per provisions of Ordinance No. 368. The parties shall bear their own costs in both the writ petitions.