S.K. Mal Lodha, J.
1. Against the order dated December 2, 1982 of the learned single Judge by which he dismissed the writ petition summarily, the appellant Kamlesh Kumar, who will here in after be referred to as 'the petitioner' has filed this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949.
2. It will be proper to notice relevant facts leading to this appeal in order to appreciate the points that have been canvassed by the learned Counsel for the parties before us.
3. The petitioner was admitted in Bachalor of Engineering First Annual Scheme Examination in the academic year 1980-81 in mines. He did not secure the requisite marks in Chemistry-I subject in First B.E. Annual Examination. He was, however, allowed to keep term in the next higher class i.e. Second Year B.E. He cleared the subject Chemistry-I on account of which he was allowed to keep terms. In the Second BE. Examination, the petitioner failed to secure the minimum marks in papers Chemistry-III, Civil Engineering, Mechanical Engineering ,and Electrical Engineering. He was declared to have failed as is clear from the statement of marks Obtained at the B.E. Second (Annual Scheme) Examination, 1982 (Anx. 1). He was not allowed to keep terms in the next higher class i.e. Third B.E. in respect of the aforesaid four papers. The petitioner also did not secure 45% marks in aggregate. He, therefore, filed the writ petition under Article 226 of the Constitution on November 11,1982 seeking the reliefs that it may be declared that the petitioner is entitled to keep term as per para/Clause 11 of the Syllabus 1981-82 relating to Bachelor of Engineering Five Year Integrated Course (I and II B.E.) (for short 'the Syllabus' herein) and the University of Jodhpur ('the University' hereinafter) be directed to allow the petitioner the benefit of para 11 and to grant him admission in Third B.E. and also permit him to appear in the papers in which he has failed to obtain minimum marks in Second B.E. main Examination.
4. A show cause notice was issued on November 12, 1982. The University filed reply to the show cause notice contesting the writ petition. The principal pleas raised in the reply are:
(1) that the petitioner having failed to obtain the aggregate of 45% marks as provided in para 15 read with Examination and Teaching Scheme Second B.E. Examination, he was not entitled to the benefit of the make up examination.
(2) that Para 11 of the Syllabus is to be read with para 15 and so read it was necessary for the petitioner to have obtained 45% marks in the grand total. Reliance was also placed on Sita Ram v. University of Jodhpur S.B. Civil petition No. 442 of 1982, decided on May 12,1982 by a learned single Judge of this Court.
(3) that even according to the provisions which were prevailing at the time when the petitioner was granted admission he was not entitled to the benefit of Para 11 of the Syllabus unless he got 45% marks in aggregate.
(4) that the petitioner did not make any demand of justice by making any representation to the University prior to the filing of the writ petition for the reliefs sought by him in the writ petition and, therefore, the writ petition deserves to be dismissed on this count.
(5) that the writ petition is belated in as much as the result was declared on September 4, 1982.
(6) that this being an internal matter of University, the High Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution should be reluctant to interfere in such matter, and
(7) that the Syllabus is in the nature of executive instructions and even there has been any breach of any paras/clauses of the Syllabus, it does not give any vested right to the petitioner to approach this Court in exercise of its discretionary extra-ordinary jurisdiction under Article 226 of the Constitution.
5. The learned single Judge relying on Sita Ram's case (supra) and the Syllabus for the year 1981-82 and the Examination and Teaching Scheme Second B.E. Examination dismissed the writ petition summarily. The petitioner as stated above has filed this appeal questioning the correctness of the order dated December 2, 1982 of the learned single Judge.
6. We have heard Mr. M. Mridul and Mr. R. Balia, learned Counsel for the appellants and Mr. H.M. Parekh, learned Counsel for the University.
7. In support of the appeal, M. Mridul, learned Counsel for the appellant has urged that the learned single Judge has committed an error in following the decision given by Agrawal, J. in Sita Ram's case (supra), in which it was held that under para 11 of the Syllabus 1980-81, a candidate must secure 45% marks in aggregate before he can claim benefit of para 11 of the Syllabus 1980-81 whereby dismissing the petitioner's writ petition under Article 226 of the Constitution. It was submitted that under para 11 of the Syllabus, by implication para 15 cannot be read as at one stage, obtaining of 45% marks in aggregate was necessary but subsequently, it was deleted and thus, there was an intentional omission. In such a situation, according to the learned Counsel, when the provision of obtaining 45% marks in aggregate was deleted, if cannot be read by implication under para 11 of the Syllabus. Further that paras 11 and 15 are to be read differently they cannot be read in a way so as to have the same meaning. On the other hand, Mr. H. M. Parekh, learned Counsel for the respondent contended that para 11 is to be read with para 15 and also with the Examination and Teaching Scheme Second B.E. Examination and if so read, it is clear that for pass, a candidate in Second B.E. Examination should obtain 45% marks in grand total, even if he has failed in not more than four units in the main examination, as for the purpose of allowing him to keep terms in the next higher class it is the requirement that he must obtain 45% marks in grand total. Besides controverting the submissions made by the learned Counsel for the appellant it was pressed for our consideration that even if, para 11 of the Syllabus is capable of two interpretations, the one,- which was taken by the University should be accepted and the Court in exercise of is extraordinary jurisdiction should not interfere with the interpretation put by the University and the Syllabus contains merely executive instructions, for, they are not under any Statute or Rules and, therefore, there being no question of vested rights, the violation of the executive instructions will not entitle the appellant to invoke the extraordinary jurisdiction of the Court under Article 226 of the Constitution. Mr. H.M. Parekh, learned Counsel for the University also submitted that for the various reasons given by Agrawal, J. in Sitaram's case (Supra), it has correctly been decided and the learned single Judge was right in dismissing the petitioner's writ petition summarily.
8. We have bestowed our anxious and thoughtful consideration to the rival submissions of the learned Counsel for the parties.
9. In order to examine the contention that it was necessary for the petitioner to have obtained 45% marks in aggregate for the purpose of keeping terms in the next higher class Third B.E, we may notice the relevant provisions of the Jodhpur University Act (No. XVII of 1962)(for short 'the Act' and the relevant Statutes framed under Section 21 of the Act and the material paras/clauses of the Syllabus.
10. Section 16 of the Act runs as follows
16. The Syndicate shall be the executive body of the University, and its Constitution and the terms of Office of its members, other than ex officio members, shall be prescribed by the Statutes.
Section 17 of the Act deals with Academic Council. It reads as follows:
17. 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 Ordinance, have the control and general supervision, and be responsible for the maintenance of standards of instruction, education and examination within the University, & 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 terms of the office of its members, other than ex-officio members, shall be prescribed by the Statutes.
Statutes 9 and 9-A are as under:
9. The Faculties shall perform the following functions:
(i) Subject to the control of the Academic Council, to organise teaching and Research Work in the Departments of Studies assigned to the Faculty.
(ii) To recommend to the Academic Council Courses of study and curricula for each examination after considering the recommendations of the Committees to courses and Studies.
(iii) To recommend to the Academic Council conditions for the award of degree, diplomas and other academic distinctions.
(iv) To co-ordinate work in subjects assigned to the Faculty.
(v) To secure co-ordination in research whenever desirable.
(vi) To recommend to the Academic Council the combination and subdivision of the Departments or the Faculties.
(vii) To make recommendations to the Academic Council on any other matter referred to them by the Academic Council.
NOTE: the matters of common interest where it might be necessary to obtain the views of more then one faculty, the Vice Chancellor may convene a joint meeting of the Faculties concerned. At such meetings the Senior most of the Deans concerned shall preside.
9A(1) There shall be a Committee of Courses and studies for each of the subjects mentioned below against the Faculties of Arts; Social Sciences, Science and Education.
(i) Faculty of Arts: English, Hindi, Sanskrit, History, Philosophy and Music.
(ii) Faculty of Social Science: Economics, Sociology, Political Science and Geography.
(iii) Faculty of Science : Physics, Mathematics, Chemistry, Zoology, Botany and Geology.
(iv) Faculty of Education-Education and Psychology.
(2) In the Faculties of Commerce, Law and Engineering, there shall be one Committee of Courses and Studies for each one of them.
(3) Committees shall consist of the following members:
(i) In the Faculties of Arts, Social Sciences, Science and Education, the Committees shall be constituted as follows:
(a) The Head of the Department who shall also be the Convener.
(b) Readers not exceeding three in number by rotation in order of seniority in case of subjects taught upto the post-graduate standard and one in case of subjects taught upto degree standard.
(c) One Lecturer by rotation in order of seniority.
(d) Two persons other than the teachers of the University having expert knowledge of the subject to be nominated by the Vice-Chancellor in consultation with the convener.
(ii) In the faculty of Commerce:
(a) The Head of the Department who shall also be the convener.
(b) Readers not exceeding three in number by rotation in order of seniority.
(c) Two Lecturers by rotation in order of seniority.
(d) Three persons having expert knowledge of the subject to be nominated by the Vice Chancellor in consultation with the convener.
(iii) In faculty of Law:
(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.
(d) Three persons having expert knowledge in the subject to be nominated by the Vice-Chancellor in consolation with the convener.
(iv) In the Committee of Courses and Studies in Engineering for B.E. degree:
(a) The Dean of the factulty shall be the convener.
(b) All Heads of the Departments of subjects assigned to the Factulty.
(c) The Heads of the Departments of Physics, Mathematics, Chemistry and English.
(d) Persons not exceeding five in number having expert knowledge in the subject to be nominated by the Vice-Chancellor in consultation with the convener.
(v) In the Committee of Courses and Studies in Engineering for postgraduate degree:
(a) The Head of the Department shall be the Convener.
(b) Two teachers other than the Head of the Department in order of seniority.
(c) Two persons other than the teachers of the University having expert knowledge of the subject to be nominated by the Vice-chancellor in consultation with the Convener.
(4) The term of members other than Ex-Officer members shall be three years.
(5) The Committee of Courses and Studies shall recommend to the faculty concerned courses of studies and curricula in their respective subjects.
We may read the relevant paras of the Syllabus, which are 7, 11, 12, 15 and 21 and they are as follows:
7. (a) The Courses of study for the Third B.E. Examination shall be separate for all branches of study. A candidate who after passing Second B.E. Examination has attended a regular course of study in a particular branch for whole academic year in the Faculty of Engineering shall be eligible to appear at the Third B.E. Examination in that branch of study.
(b) Every candidate appearing for the Third B.E. Examination in a particular branch shall be required to show competent knowledge of the subject in that branch as per examination scheme.
11. Provision for allowing to keep term.
(a) If a candidate fails in not more than four units in the main examination, he shall be allowed to keep terms in the, next higher class. For the purpose of this clause, each theory paper shill be counted as one unit and each particial and sessional be counted as one unit.
(b) There shall be a first make up examination, held each year in the middle of the session. A candidate who has been permitted to keep term in the next higher class as per Clause 11(a) above only shall be eligible to appear at the First make up examination.
Note: A candidate, who was unable to appear at some paper(s) at the main examination due to some reason, shall be considered as, having failed in that paper(s), for this purpose, and will be permitted to take up the winter examination in that paper(s) provided the number of units in which he has failed inclusive of those in which he was absent in the main examination, does not exceed four.
(c) There shall be a second make up examination, held each year during summer. Only those candidates, who fail in the first make up examination, will be permitted to take up the second make up examination.
12. (a) No candidate shall be permitted for regular study in Third B.E. unless he has cleared all the units of First B.E.
(b) No candidate shall be permitted for regular study in the Fourth B.E. unless he has cleared all the units of Second B.E.
(c) No candidate shall be permitted for regular study in the Final B.E. unless he has cleared all the units of Third B.E.
15. Award of division:
(a) First B.E. to Fourth B.E.
First Class : If he secures a minimum of 60 percent.Second Class : If he secures a minimum of 50 percent.Pass Class : If he secures a minimum of 45 percent.(b) Final B.E. For the declaration of Final B.E. result, marks shall be totaled up as follows:
First B.E. 25 percent of the marks secured. Second B.E. 50 per cent of the marks secured. Third B.E. 75 percent of the marks secured. Fourth B E. 100 percent of the marks secured. Final B.E. 100 percent of the marks secured.
(c) For the students admitted into III year either from the Diploma stream or by migration for the declaration of Final B.E. result, marks shall be totaled up as follows:
Third B E. 75 percent of the marks secured.
Fourth B.E. 100 percent of the marks secured.
Final B.E. 100 percent of the marks secured.
(d) For determining merit position of the candidates at the final year level the marks obtained by them in the III, IV and Final Year as described above shall only be considered.
A candidate shall be awarded a degree with Honors if he secures a minimum of 70 percent of aggregate marks.
A candidate shall be awarded a degree with First Class if he secured a minimum of 60 percent of aggregate marks.
A candidate shall be awarded degree with Second Class if he secures a minimum of 50 percent of aggregate marks.
The rest of the successful candidates will be awarded Pass Class.
21. A candidate failing in the subjects of humanities group shall be eligible for provision to keep terms, as in Clause 11. However, these subjects shall be in addition to the four units mentioned in 11(a). He shall have to pass in this group in subsequent years, when the examinations are held for regular students. His Fourth B E. examination result shall be declared and he shall be admitted to Final B.E. class only when he passes this group.
In para 7, the words 'after passing' have been used. In para 11, the words fails in not more than four Units' and 'eligible to appear' have been used. In para 12, the expression used is 'cleared all the Units'. In para 15, the words 'pass' class have been used. Para 21, inter alia, contains the expression 'eligible for provision to keep terms.' Now let us advert to Examination and Teaching Scheme, Second B.E. Examination, which is as follows:
Examination and Teaching Scheme
SECOND B.E. EXAMINATION
(Common for all Branches)
A. Written Papers Hours Week Exam. Marks
L T/P Hours
Ch 201 A Chemistry III 2 3 100
Ma 201 A Mathematics IV 2 1/2 3 100
Ma 202 A Matematics V 2 1/2 3 100
Ph 201 A Physics III 2 3 100
CE 201 A Civil
Engineering 4 4 150
EE 201 A Electrical
Engineering 2 3 100
ME 201 A Mechanical
Engineering 2 3 100
16 1 750
B. Practical and Sessionals
Ch 202 B Chemistry
Laboratory 2 50
PH 202 B Physics 2 50
CE 202 Surveying (Field
work and plotting) 3 100
EE 202 B Electrical
Laboratory 2/2 50
ME 202 B Enginearing
(Machine Drawing) 4 100
ME 203 B Workshop Practicals 2 50
ME 204 B Mechanical
Laboratory 2/2 50
C. Humanities Group
ES 201 C English and
Social Science 2(E), 2(S) 100
D. Home Examination 100
16 20 1400
Grand Total : 36 Hours
For a pass, a candidate must obtain:
(a) 35 percent in each written papers
(b) 50 percent in each of the practical and sessionals and Humanities group.
(c) 45 percent in the Grand total.
Para 11 contains provisions for allowing to keep terms in the next higher class. Each theory paper is counted as one unit and each practical and Sessional is also counted as one unit. It lays down that in order to enable a particular candidate to keep term in the next higher class, he should not fail m more than four units. According to para 11(b), the first make up examination is to be held each year in the middle of the session and a candidate who has been given benefit of ATKT (allowed to Keep Term) in the next higher class as per para 11(a) is eligible to appear of the first make up examination. In our opinion, para 11 confers advantage on or benefit to those candidates of B.E. who not failed in not more than four units in the main examination and they are allowed to keep term in the next higher class where by making them eligible to appear at the first make up examination which is held in the middle of the session. Para 11(c) provides for a second make up examination to be held each year during summer and only those candidates who failed in the first make up examination are permitted to take up the second make up examination. The words 'for a pass' as used in Examination & Teaching Scheme Second B.E. Examination have not been used in para 11 What is provided in para 12(a) is that a candidate shall not be permitted for regular study in Third B.E. unless he has cleared all the units of First B.E. An additional advantage/benefit has also been conferred by para 21 to a candidate for keeping terms in accordance with para 11 even if he has failed in the subjects of humanities group as these subjects have been mentioned in addition to the four units mentioned in para 11 and such a candidate is only required to pass in the subjects of humanities group in the subsequent years when the examinations are held for regular students and his Fourth B.E. examination result shall be declared and he shall be admitted to Final B.E. only when he passes this group. Para 15 deals with award of Division and for 'pass class', a candidate is required to secure a minimum of 45%.Under para 15(b) for the purpose of declaring the result of final B.E., the mode and manner of marks to be totaled have been provided. So far as Second B.E. is concerned, it lays down that 50% marks should be secured.
11. Para 24 of the Syllabus of the year 1979-80 contained a provision that for being allowed to keep terms to the next higher class, a candidate not only must not fail in more than two groups of written papers or any two practical or one group of written papers or one practical only, but he must also obtain 45% marks in aggregate, Para 11 of the Syllabus does not contain a provision regarding 45% in the Grand Total. Thus there is an omission in regard to securing of 45% in grand total in para 11 of the Syllabus of 1980-81 & 1981-82. The submission of Mr. M. Mridul, learned Counsel for the appellant is that the Authority prescribing the Syllabus for the years 1980-81 and 1981-82 made a deliberate departure from what was in the Syllabus of 19-79-80 by omitting the condition, of obtaining 45% marks in aggregate. According to him, there is a specific omission in this regard in the later Syllabus of 1980-81 and 1981-82 thus, it is a case of intentional omission.
12. In S. Naryanaswami v. G. Ganeerselvam : 1SCR172 , it was observed as under:
The omission by the Constitution makers or by Parliament to prescribe graduation as a qualification of the candidate for the graduates' constituency is deliberate and the Court cannot infer such a qualification as necessary by resorting to a presumed legislative intent as it would amount to adding it to those expressly laid down which is not generally permissible.
(Emphasis is ours)
In Crawford's Construction of Statutes (1940 Edn.), it has been stated:
Where the Statute's meaning is clear and explicit words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed, might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would there by be advanced, or a more desirable or just result would occur. Even where the meaning of the Statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute.
We may also mention that in the Syllabus of 1982-83 B.E. Five Year Integrated Course relating to First and Second B.E. it has amongst others been provided that if a candidate fails in not more than four units in the main examination, and if he/she gets an aggregate, of 46% he/she shall be allowed to keep terms in the next higher class. Learned counsel for the appellant also cited Vastulal v. Liquidator P.C. Bank Ltd 1961 ILR (11) Raj. 16 wherein it was held as under:
There is a presumption that the legislature means different things by different phraseology.
Adopting the reasoning given by the Supreme Court in S. Narayanswami's case : 1SCR172 and in the light of the Syllabus 199-80 and 1982-83, we are of opinion that there was an intentional omission on the part of the A have authority prescribing Syllabus that it was not necessary for a candidate to obtained 45% marks in aggregate in order to enable him to keep term in the next higher class as envisaged by para 11 of the Syllabus.
13. There is another aspect of the matter, if the contention of Mr. H.M. Parekh, learned Counsel for the University that in order to take advantage/ benefit of being allowed to keep term in the next higher class in accordance with para 11 of the Syllabus, a candidate should not only fail in more than four subjects but should also obtain 45% in aggregate, is accepted, it would mean that such a candidate must secure 45% of marks in aggregate at two stages (1) 45% marks in aggregated in order to keep term in the next higher class (Third B.E.) in accordance with para 11, and (2) for pass in Second B.E. Examination, he must secure 45% in the grand total, which in our opinion is not contemplated.
14. Here, we would like to say a few words in connection with Sita Rani's case (supra) which was followed by the learned Single Judge in the order under appeal. We may say with utmost respect that para II of the Syllabus of 1980-81 has not been correctly interpreted. It is clearly mentioned in Sitaram's case (supra) that in para 11 there is no expression that a candidate should secure 45% marks in the aggregate in order to be allowed to keep the term for the next higher class. In order to take advantage/benefit of para 1 of the Syllabus, it is not necessary to secure 45% in aggregate and our reasons for saying so are : (1) that it is not permissible to read in para 11 of the requirement 'for a pass' that a candidate must obtain 45% in the grand total, (2) that the requirements of securing 45% marks in aggregate was there in the Syllabus in the year 1979-80 but it was so deleted in the subsequent Syllabus 1980-81 and 1981-82, and (3) that the provisions contained in para 11 cannot be read so as to infer what is mentioned in the Examination and Teaching Scheme Second B. E Examination and para 15 of the Syllabus. As the Authority prescribing Syllabus has used different words/expressions in paras 11 and 15 and Examination and Teaching Scheme Second B.E. Examination, the hypothetical illustrations mentioned by the learned Judge in Sitaram's case (supra) cannot be availed for interpretation of para 11. It may also be mentioned that Sitaram's case (supra) is also distinguishable on facts. Be that as it may, we regret, that we cannot subscribe to the view taken by Agrawal J, in Sitaram's case (supra) that a candidate must secure 41% marks in aggregate in order to allow him to keep term in the next higher class.
15. Having considered paras 7, 11, 12, 15 and 21 of the Syllabus, we are of opinion that the petitioner is entitled to keep term in the next higher class Third B.E. according to para 11 and also to get admission in Third B.E. & to appear in the papers in which he has failed as he has failed in four units only. It was not necessary for him to have obtained 45% marks in the grand total for the purpose of allowing him to keep term in the next higher class Third B.E. under para 11.
16 Mr. H.M. Parekh, learned Counsel for the University however, urged that the University has interpreted para 11 that securing of 45% marks in Grand Total is necessary in order to enable to allow a candidate who has not failed in not more than four subjects to keep term in the next higher class and as such, the interpretation so put by the University should be respected. He further submitted that as securing of 45% marks in aggregate is implicit in para 11 of the Syllabus and the being a possible interpretation, due regard should be shown by the this Court and opinion so expressed should not be interfered. He referred to University of Mysore v. Govind Rao : 4SCR575 , wherein it ws laid down as under:
What the High Court should consider is whether the appointment made by the Chancellor on the recommendation of the Board had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should show due regard the opinion expressed by the Board and its recommendation on which the Chancellor has acted.
Reference was also made to Jawaharlal Nehru University v. B.S. Narwal : 1SCR618 wherein it was held that the Court should not interfere where the qualified academic authorities decided to remove a student from the University on the basis of assessment of his academic performance under Article 136 of the Constitution. Our attention was invited to Mahendra Singh v. University of Jodhpur 1981 WLN 18 wherein it was observed as under:
It is not for the High Court to sit in judgment over the educational policy of the University of Jodhpur especially when the impugned qualification for admission to part II of the Three Year's Degree Course laid down in the amended Ordinance No. 35 by the University is neither unreasonable, nor discriminatory.
17. No plea was taken in the rep y to the show cause notice that any interpretation has been put by the competent authority of the University in respect of para 11 of the Syllabus. Learned Counsel for the University was specifically asked to point out from the reply to the show cause notice whether any such plea was taken in it. What the learned Counsel pointed out to us was that a plea has been taken that this was internal matter of the University and, therefore, the Court should be reluctant to interfere with it. He drew out attention to the interpretation and meaning of para 11 which has been stated in the reply and also to the statement of the marks obtained in B.E. Second (Annual Scheme) Examination, 1982 (Anx. 1) which was filed by the petitioner with the writ petition, in which the petitioner has been shown having failed in four written papers and aggregate as he has not obtained 45% of marks in the Grand Total. By production of Anx. I, it cannot be said that the competent authority of the University has interpreted para 11 Be that as it may, we have already held that the interpretation put in Sitaram's case (supra) or for that matter, in the statement of marks obtained in Second B.E. (Annual Scheme) Examination 1992 (Anx. 1), relating to para 11 of the Syllabus, is not warranted by language used in para 11 of the Syllabus and as it is clearly contrary and in breach of its language it is open to this Court to correct the mistake that has crept in interpreting para 11 of the Syllabus. The authorities relied on by the learned Counsel for the University are of no assistance. The contention being devoid of force is rejected.
18. It was also argued that the Syllabus of 1981-82 contains merely executive instructions and is administrative in nature 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 and therefore, there is no question of interfering with the result of the petitioner that he has failed in Second B.E. Examination.
19. Reliance in this connection was placed on Gir Raj Prasad Kaushi v. State of Raj. 1979 RLW 493, wherein while dealing with the right of admission to medical college, it was observed by the Division Bench (Jaipur Bench) of this Court that the Rules framed by the State Govt. are of administrative nature, that these rules have no statutory force and that infringement of these rules is not justifiable in a Court of law. It was further held that a writ of mandamus cannot be issued to enforce the rules framed by the State Government.
20. Our attention was invited to a decision in Vijay Mehta v. State 1973 (1) SLR 910 where a question arose whether the petitioner in that case has legal or statutory right to compel the State Government to appoint a commission of enquiry even when there is a definite matter of public importance. It was held that in view of the well settled provisions relating to the issuance of a writ of mandamus under Article 226, the petitioner had no right under the Commission of Enquiry & therefore, he could not maintain the writ petition. Reference was also made to M.C. Khandelwal v. Chairman, Board of Section Education : (1975)ILLJ228SC , where in a learned single Judge had occasion to consider the question relating to the re-evaluation of answer-books of student/examinee. It was held that in the absence of statutory provisions or the rules, it cannot be accepted that the right of re-evaluation is an inherent right of a student and the High Court can enforce such an inherent right by issuing writ against the respondents.
21. In Union of India v. K.P. Joseph 1973 (1) SLR 910, it was held that there are administrative orders which confer right and impose duties and it is because an administrative order can abridge or take away right that have imported the principle of natural justice of audi alteram partem into this area. In that case office memorandum No. 2(54) 58/5801/D(Civil) providing for certain benefits to exmilitary personnel or re-employment on the basis of their length of actual military service conferred a right relating to conditions of service was sought to be enforced as of right.
22. The question of statutory provision having the force of law and administrative instruction was examined in Smarjit Singh v. State of Punjab : (1975)ILLJ228SC wherein the memorandum dated October 25, 1963 relating to the Integration of Provincial Civil Medical Service and Public Health Service in Punjab up for consideration. It was observed as follows:
It is true that Clause (2)(ii) of the memorandum dated 25th October, 1965 was not a statutory provision having the force of law and was merely an administrative instruction issued the State Government in exercise of its executive power. But that does not present any difficulty, for, it is now well settled by several decisions of this Court that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can in exercise of its executive power issue administrative instructions providing for recruitment and laying down conditions of service. Vide B.N. Nagarajan v. State of Mysore (1966) 3 SCR 682 : 0043/1966 : (1967)ILLJ698SC & Sant Ram Sharma v. State of Rajasthan 1968 (1) SCR-111 : AIR 1977 SC 1910. It was therefore, competent to the State Government to issue Clause 2(ii) of the memorandum dated 25th October, 1965 in exercise of its executive power laying down the principle to be followed in adjusting inter seniority of the officer in the integrated service.
A Full Bench of this Court in Virendra Kapur v. University of Jodhpur 1964 RLW 328 was concerned with Section 39 of the Jodhpur University Act & Regulation 39 there of Section 39 of the Jodhpur University 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 & each case will have to be decided on its own facts & circumstances; but when a case for interference is clearly made out, where valuable rights of a student are adversely affected 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 the just rights of the party aggrieved, we would be falling 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.
Learned Counsel for the appellant urged that the various paras of the Syllabus are statutory provisions. He invited our attention to Sections 11 and 17 of the Act and Statutes 9 and 9-A. We do not consider it necessary to examine this question whether various paras of the Syllabus are statutory provisions, for, even if, the Syllabus contains executive instructions or it is administrative in nature, the interpretation of para 11 as put by the learned Counsel for the University, if found to be not warranted by its language, can be challenged by the petitioner and corrected by this Court and thus, any action taken there runder is justiciable in Court of law. We may usefully refer to Mrs. Priti Prabha v. Dr. C.P. Singh ILR (1968) (27) Raj. 712 wherein the Division Bench made the following observations:
A court of law should not too readily interfere with the internal working of a University, which is an autonomous body without adequate care and caution. But at the same time, when the University may be found to be acting clearly in breach of its own rules & regulation, or in excess of its lawful authority or contrary to a provision of the Constitution, then the High Court cannot abdicate its duty of stepping in and calling it to perform its lawful duty under the obligation which has been imposed upon the Court by the Constitution of the country as enshrined in Article 226 thereof.
In State of M.P. v. Ram Raghubir Prasad AIR 1979 SC 888, it was observed:
Language permitting the appropriate interpretational canon must be purpose-oriented. Therefore, the expression 'syllabi' must be so interpreted as to fulfil the purpose of Sections 3 & 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered under the heading maintained, so that they may offer textbooks for such courses. If there is total failure here the elements of syllabi may well be held to be non-existent, even though experts might claim otherwise. The law is what the judges interpret the statute to be, not what the experts in their monopoly of wisdom assert it to be.
In K.L. Rajpurohit v. University of Jodhpur 1982 WLN 592, a learned single Judge of the Court had occasion to consider Ordinances 216-D, 216-E, 217-A, 218, 219 & 224 of the Ordinances of University of Jodbpur. It was held that the non-observance of Ordinance 216-D & Ordinance 216-E has resulted in passing an order detrimental to the interest of the petitioner & the petitioner has got 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 the 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, thus, clear that even in the matter of executive instructions or instructions which are administrative in nature, if the right of a person is affected, the Court, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution, can grant appropriate relief to the aggrieved party.
23. The upshot of the above discussion is that we are unable to sub-scribe to the view taken in Sitaram's case (supra) and hold (1) that in order to obtain the advantage/benefit of para 11 of the Syllabus of 1981-82, it is not necessary for a candidate/examinee who has failed in not more than four units in the Second B E. Examination to obtain 45% marks in grand total for the purpose of allowing him to keep terms in the next higher class (Third B.E.), (2) that the interpretation put in the reply of the University on para 11 of the Syllabus that a candidate should obtain 45% marks-in aggregate being clearly contrary to and is breach of its language, can be challenged by an aggrieved candidate/examinee and corrected by this Court, and (3) that even if the Syllabus of 1981-82 contains executive instructions or it is administrative in nature, the petitioner appellant who is an aggrieved candidate cannot be denied the right available to him under the Syllabus &, therefore, any action taken there under is justiciable in court of law and it is open to scrutiny by this Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution.
24. The result is that we allow this appeal and set aside the order dated December 2, 1982 of the learned single Judge, by which, he had dismissed the petitioner-appellant's writ petition summarily. We hold that the petitioner-appellant is entitled to keep terms in the next higher class (Third B.E.) according to para 11 of the Syllabus of 1981-82 and to get admission in Third B.E. He will be entitled to appear in the papers, in which he has failed to obtain the minimum requisite marks in Second B.E. make up Examination.
25. An ad-interim order was passed on January 6, 1983 in D.B. Civil Misc. Stay petition No. 677 of 1982 in this Special Appeal, by which the respondent (University of Jodhpur) was directed to accept the forms of the petitioner-appellant for Admission, Examination and keep the terms in Third B.E. As we have held that the petitioner-appellant is entitled to keep terms in Third B.E. according to para 11 of the Syllabus of 1981-82 and also to the benefits there under, the University will allow him to sit at Third B.E. Examination as per the Syllabus of 1981-82.
26. In the circumstances of the case, we leave the parties to bear their own costs.