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Mahendra Singh and Six ors. Vs. the University of Jodhpur - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petitions No. 2137 and 6 Ors.
Judge
Reported in1981WLN18
AppellantMahendra Singh and Six ors.
RespondentThe University of Jodhpur
DispositionPetition dismissed
Cases ReferredJ. P. Kulshrestha v. Allahabad University
Excerpt:
.....examination of other recognised universities/boards and the students who passed the first year examination of the three years' degree course of jodhpur university in the matter of admission td part ii of the three years' degree course and with regard to additional qualification i.e. passing an examination in general english and general hindi as compulsory subjects.;the mere fact that some students were admitted in the past under similar situations cannot adversely affect the power of the university of jodhpur to enforce the provisions of the amended ordinance no. 35. the university is empowered to prescribe qualifications for admission to part ii of the three years' degree course and it has prescribed a qualification that only those students who have passed intermediate..........subjects and such students shall not be awarded the bachelor's degree unless they pass the first year general english/general hindi-sugam hindi examination. it was further stated that the ordinance dated july 7, 1978, issued under section 24(1) of the act is illegal and beyond the scope of the said section read with section 7(6) of the statutes of the university. apart from this, the ordinance is discriminatory and against the national policy.8. mr. h. m. parekh, learned counsel for the respondents, on the other hand, contended that the vice-chancellor of the university in exercise of his emergency powers under section 12(5) of the act is not empowered to exercise the legislative functions of enacting or repealing the ordinance for which an elaborate procedure has been laid down by.....
Judgment:

Kalyan Datta Sharma, C.J.

1. Heard learned Counsel for the petitioners and Mr. H. M. Parekh, Advocates, appearing on behalf of the respondents at the of admission.

2. These writ petitions--7 in number--have been filed under Article 226 of the Constitution of India for obtaining the following reliefs:

(1) that by an appropriate writ or order, the University of Jodhpur may be directed to withdraw the notification dated July 31, 1980, issued by the Registrar and Ordinance No. 35 of the University of Jodhpur may be struck down and it may be ordered that the petitioners be admitted in Second Year T.D.C. Classes of the Jodhpur University;

(2) that any other appropriate writ, order or direction that may be considered just and proper in the circumstances of the case may be issued; and

(3) that the costs of the writ petitions may be awarded to the petitioners.

3. It will not be out of place to mention that in writ petition No. 2248 of 1980 filed by Mahendra Singh against the University of Jodhpur, an additional relief is claimed that as the proviso to Ordinance 35(1) is discriminatory and anti-national it may be declared invalid and the amendment in the Ordinance dated July 7, 1978, being in violation of the statutory provisions, may be declared illegal and without jurisdiction.

4. As common questions of law arise for determination in all these 7 writ petitions, I propose to dispose them of by one order at the admission stage.

5. As all these writ petitions are based almost an identical facts, I do not think it necessary to mention the facts of each petition. Suffice it would be, to narrate the facts of Civil Writ Petition No. 2248 of 1980 filed by Mahendra Singh against the University of Jodhpur. In the aforesaid writ petition, the petitioner stated that he passed his Intermediate Examination in Arts in the year 1979-80 from the Board of Secondary Education, Madhya Pradesh, Bhopal. After passing Intermediate Examination, the petitioner filled form for admission to Second Year T.D.C. Classes of the University of Jodhpur this year in pursuance of a notification issued by the University on July 1, 1980, for admission of students to the Second Year T.D.C. classes. It was further urged that upon inquiry made by the petitioner, it was revealed that as per notification dated July 31, 1980, only those students would be give in admission in Second Year T.D.C. who have passed Intermediate Examination with General English, General Hindi as compulsory subjects. Hence, the petitioner had no other option, but to invoke extraordinary jurisdiction of this Court by way of this writ petition on the grounds mentioned therein.

6. The petitioners swore affidavits in support of their respective writ petitions and produced documents along with the writ petitions. In response, to the show cause notice the respondents filed their written replies wherein it was submitted that the writ petitions are not maintainable and are liable to be dismissed on the ground that the petitioners were not eligible for admission to Part II of the Three Years Degree Course, as they had not passed the Intermediate Examination with General English and General Hindi as compulsory subjects. It was further alleged in the replies that the University of Jodhpur clearly notified vide Ex. 4 dated July 31, 1980, that admission to Part II of the Three Years Degree Course shall be strictly allowed in accordance with the provisions of the existing Ordinance No. 35 as amended upto date which lays/down that the students who have passed Intermediate Examination from any recognised University/Board with General English and General Hindi as compulsory subjects shall be eligible for admission. According to the submission of the respondents some relaxations were made in the past by the Vice-Chancellor and some students who had passed Intermediate Examination from Board of Secondary Education, Madhya Pradesh, Bhopal, without having both general English and General Hindi as compulsory subjects were extended the facility of admission to Second Year T.D.C. classes of the University of Jodhpur for the session 1978-79 but the admissions given to such students were in fact illegal and unauthorised as the Vice-Chancellor was not empowered under Section 12, Sub-section (5) of the Jodhpur University Act, hereinafter referred to as the Act to repeal the amended Ordinance No. 35 which received the, assent of the Chancellor in June, 1978. In short, the reply of the respondents was that the petitioners cannot claim any legal right or any infringement thereof, as notification marked Ex. 4 was issued in accordance with the, provisions of Ordinance No. 35 as amended upto date and the University authorities are bound to act according to the provisions of the said Ordinance and no relaxation is justified simply because I in the past some relaxations were made and in pursuance thereof some students were wrongly admitted to the Second Year of the Three Years Degree Course. In support of the replies the affidavits of the Assistant Registrar were put in along with some relevant documents.

7. The main contention raised by the learned Counsel for the petitioners before me is that in the year 1978-79 Registrar of Jodhpur University issued a notification dated July 7, 1978 bearing No. JU/ACA/M/4491 by which promulgation of amendment to Ordinance No. 35 was approved with effect from June 29, 1978, but subsequent thereto the Registrar, of the University again issued a notification dated August 3, 1978, bearing No. Ju/ACA/M/765199 by which the notification dated July 7, 1978 was superseded and it was notified that the students coming after passing the Intermediate Examination from any recognised University/Board will be admitted to the Second Year T.D.C., if they Have passed the Intermediate Examination with General English, General Hindi as compulsory subjects and those students who have not passed Intermediate Examination with General English or General Hindi shall be required to take an additional paper of General English/General Hindi--Sugam Hindi of the First Year class of the Three Years' Degree Course along with the Second Year of the Three Years' Degree Course examination to make up the deficiency in these subjects and such students shall not be awarded the Bachelor's Degree unless they pass the First Year General English/General Hindi-Sugam Hindi examination. It was further stated that the Ordinance dated July 7, 1978, issued under Section 24(1) of the Act is illegal and beyond the scope of the said Section read with Section 7(6) of the Statutes of the University. Apart from this, the Ordinance is discriminatory and against the national policy.

8. Mr. H. M. Parekh, learned Counsel for the respondents, on the other hand, contended that the Vice-Chancellor of the University in exercise of his emergency powers under Section 12(5) of the Act is not empowered to exercise the legislative functions of enacting or repealing the Ordinance for which an elaborate procedure has been laid down by Section 24 of the Act. He further argued that Ordinance No. 35 could only be repealed after following the same procedure laid down in Section 24 of the Act for enacting the Ordinance and, therefore, the notification dated August 3, 1978, issued by the Registrar of the University has not the effect of repealing Ordinance No. 35 as amended upto date, as it is ultra-vires the powers of the Vice-Chancellor and in such circumstances the University authorities were bound to act in accordance with the provisions of Ordinance No. 35 as amended upto date. In support of his above contention, Mr. H. M. Parekh placed reliance on an authority of the Division Bench of this Court University of Jodhpur v. Ram Chandra Sharma As for the other Intention Mr. H.M. Parekh strenuously urged that the University of Jodhpur, in the interest of higher education, can prescribe an additional qualification that he students coming after passing the Intermediary Examination from any recognised University or Board will be admitted to the Second Year of the Three years' Degree Course if they have passed the Intermediate Examination with General English or General Hindi as compulsory subject, and, as the petitioners did not possess this additional qualification and they merely passed the Intermediate Examination without having General English arid, General English and General Hindi as compulsory subjects, their applications for admission to Three Years' Degree Course cannot be accepted. Mr. M. M. Parekh further contended that ho question of discrimination between those students who passed the Intermediate Examination from any recognised University or Board with General English or General Hindi as compulsory subjects or without having these compulsory subjects and those who passed Intermediate Examination with General English arid General Hindi as compulsory subjects does arise, because If the Univ6rsity has taken a decision in the interest of higher education that only those students who have passed Intermediate Examination from any recognised University or Board with General English and General Hindi as compulsory, subjects will be admitted to the Second Year of the Three Year' Degree Course, it cannot be said that the decision is per se wrong or discriminatory.

9. I have given by anxious consideration to the above contentions. The important question that arises for determination in these writ petitions is Whether the Vice-Chancellor, in exercise of the powers conferred upon him under Sub-section (5) of Section 12 of the Act, could repeal r supersede Ordinance No. 35, as amended upto date, governing admission of students to the course of study for Part II of the Three Years' Degree Course. Before dealing with this question in extenso reference may be made to Section 24 of the Act, Which prescribes procedure for the promulgation of Ordinances. It reads as follows:

(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 Seriate;

Provided that no Ordinance concerning admission to the University or to its examinations courses of study, schemes of examination, attendance and appointment of examiners shall be considered unless a draft of such Ordinance has been proposed by the Academic Council.

(2) The Syndicate shall not have power to append 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 Ordinaries has been obtained.

(3) All Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting. The Senate shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Syndicate and such Ordinance shall from the date of such resolution be void.

Ordinance No. 35 before its amendment was as follows:

No student shall be eligible for admission to the course of study for part II of degree course unless he/she has passed Part I Examination of the T.D.C. Part II Examination of this University or First Year T.D.C. Examination of the Universities situated in the State of Rajasthan.

Provided that such of the students as have pursued a regular course of study and have passed the Intermediate Examination from any recognised Board/University and are otherwise eligible be given admission to Part II Class of the degree Course from the session 1970-71 after they have qualified in the test to be conducted by the respective Faculties (other than Faculty of Engineering).

Note: Candidates who have passed Junior Diploma Course in Secretarial and Business Training Part II shall be eligible for admission to Part it of the degree course in the faculty of Arts, Social Sciences and Commerce only.

Front a bare perusel of this Ordinance it appears that, before its amendment, students who had pursued a regular course of study and had passed intermediate Examination from any recognised Board/University and were otherwise eligible were given admission to Part II of the Three Year's Degree Course from the session 1970-71 after they had qualified the test to be conducted by the respective faculties other than the Faculty of Engineering. Then Ordinance No. 35 was amended vide notification dated July 7, 1978. It reads as follows:

THE UNIVERSITY OS JODHPUR.No. Ju/ACA/11/4491 Dated 7.7.78NOTIFICATION

It is hereby notified that the Chancellor under Section 24(1) of the Jodhpur University Act, 1962 has approved1 promulgation of amendment to the following Ordinance with effect from 29th June, 1978.

Ordinance 35

No student shall be eligible for admission to the course of study for Part II of degree course unless he/she has passed (Part 1) Examination of the T.D.C. Part II examination of this University.

OR

I-Year T.D.C. of Universities of Rajasthan

OR

Intermediate Examination from any recognised University/Board with General English and General Hindi as Compulsory subject. The candidates who have passed the Intermediate public examination of the Board of Intermediate Education Andhra Pradesh Hyderabad be admitted to First Year T.D.C. Classes.

Note: Candidates who have passed Union Diploma Course in Secretarial and business training Part II of the Degree Course in the faculty of Arts, Social Sciences and Commerce only.

Registrar

Tie learned Counsel appearing on behalf of the petitioners could not succeed in showing that the elaborate procedure laid down under Section 24 of the Act for making amended Ordinance was not followed in this case. Hence, the attended Ordinance came into force after the Chancellor had approved the proposal com through the various channels mentioned in Section 24 of the Act.

10. In view of tins legal position, this amended Ordinance could be supers tided or repealed only after following the procedure prescribed for enacting the Ordinance under Section 24 of the Act. The notification bearing No. Ju/aca/M/78 dated August 3, 1978, issued by the Registrar of the University of Jodhpur at the instance of the Vice-Chancellor allowing admission to students coming after passing the Intermediate Examination from any recognised University/Board to the Second year T.D.C. if they have passed the Intermediate Examination with General English or General Hindi as compulsory subjects could not have, therefore, the effect of repealing or superseding the amended Ordinance No. 35 before the notification bearing No. Ju/aca/M/78 dated August 3, 1978, was issued, the Chancellor had not approved any proposal coming through various bodies mentioned in Section 24 of the Act for superseding or repealing, or modifying the amended Ordinance No. 35. It is, therefore, not open for the petitioners to contend that the notification dated August 3, 1978 issued by the Registrar at the instance of the Vice-Chancellor has superseded or repealed the amended. Ordinance No. 35 which came into force with effect from 29, 1978 and so they were entitled to admission to Part II of the Three Year's Degree Course as they had passed the Intermediate Examination from recognised Board with General English or General Hindi as compulsory subjects and as the candidates who had not passed the Intermediate Examination with General English or General Hindi, could at the most be required to take additional papers of General English and General Hindi-Sugam Hindi of the first Year Class of the Three Years' Degree Course along with the Second Year of the Three Years' Degree Course to make up the deficiency in these subjects.

11. The learned Counsel appearing on behalf of the petitioners further contended that the notification dated August 3, 1978, though appears to have been issued by the Registrar, was actually issued by the Vice-Chancellor under his emergency powers conferred on him by Sub-section (5) of Section 12 and so it has the effect of superseding or repealing the amended Ordinance No. 35. The above contention also is devoid of substance. It is no doubt true that Sub-section (5) of Section 12 clearly provides that in any emergency the Vice-Chancellor is empowered to take immediate action as he may deem necessary, but, in my opinion, he cannot make or repeal the ordinance for which elaborate procedure has been prescribed under Section 24 of the Act and Ordinance could be made only after the Chancellor had approved the proposal coming through the various bodies mentioned in the aforesaid Section In support of my above view I may rely upon a Division Bench Authority of this Court University of Jodhpur v. Ramchandra Sharma (supra), wherein the following observations were made by their Lordships on this point:

The Vice-Chancellor, in our opinion, was not competent to repeal the Ordinance 368 by issuing a notification under the emergency powers...

Assuming for the sake of arguments that the Vice-Chancellor could supersede, modify or repeal the amended Ordinance No. 35 by taking any action on behalf of the various bodies mentioned in Section 24 of the Act who in the ordinary course would have dealt with the matter, it was obligatory upon him to report the matter to the various bodies concerned on whose behalf he had to act to meet the emergency situation. The learned Counsel for the petitioners could not show that the action taken by the Vice-Chancellor in causing notification No. Ju/aca/M/78 dated August 3, 1978, to be issued by the Registrar had been reported to the Chancellor and various bodies mentioned in Section 24 of, the Act. A rider has been put on the emergency powers of the Vice-Chancellor under Sub-section (5), of Section 12 of the Act inasmuch as he is bound to report the action taken at the earliest opportunity to the officer, authority or body who or which, in the ordinary course, would have dealt with the matter. Hence, in my opinion, no right accrues to the petitioners for admission to the Second Year of the Three Year's Degree Course from notification dated August 3, 1978, issued by the Registrar, at the instance of the Vice-Chancellor of the University, because, unless the amended Ordinance No. 35 is modified, superseded or repealed after following the procedure prescribed for enacting the Ordinance in Section 24 of the Act, it remains in force and the petitioners are not entitled to admission to Part II of the Three years' Degree Course, without passing the Intermediate Examination from recognised Board with both General English and General Hindi as compulsory subjects. The respondents, therefore, committed no error in taking decision that admission to Part II of the Three Years' Degree Course shall be strictly accordingly to the provisions of the Ordinance No. 35 as amended upto date, for such students only who have passed the Intermediate examination from any recognised University/Board with both General English and General Hindi as compulsory subjects.

12. The learned Counsel for the Petitioners further urged that the provi- I am unable to subscribe o this view, because amendment made in Ordinance No. 35 is in the interest of higher education as the University appears to be of the view that it is necessary that only those students who have passed Intermediate Examination with General English and General Hindi as compulsory subjects should be admitted to Part II of the Three Years' Degree Course if the quality of those who take to higher education is to improve. There is no discrimination Between those students who passed the Intermediate Examination of other recognised Universities/Boards and the students who passed the First Year Examination Of the Three Years' Degree Course of Jodhpur University in the matter of admission to Part II of the Three Years' Degree Course and with regard to additional qualification i.e. passing an examination in General English and General Hindi as compulsory subjects. It cannot, therefore, be contended that by enforcing the amended Ordinance No. 35 the University of Jodhpur is denying equality before the law.

13. As for the contention that in the past the University of Jodhpur admitted persons like the petitioners even though the amended Ordinance No. 35 was in force, it may be observed that the mere fact that some students were admitted in the past Under similar situations cannot adversely effect the power of the University of Jodhpur to enforce the provisions of the amended Ordinance No. 35. The University is empowered to prescribe qualifications for admission to Part II of the Three Years' Degree Course and it has prescribed a qualification that only those students who have passed Intermediate Examination from any recognised University/Board with both General English and General Hindi as compulsory subjects will be eligible for admission to Part II of the Three Years' Degree Course, in the interest of higher education and as the petitioners did not possess this qualification and merely passed the Intermediate Examination, without having passed examination in both these compulsory subjects, their applications for admission to Part II of the Three Years' Degree Course cannot be considered. Apart from this it is not for this court to sit in judgment over the educational policy of the University Jodhpur, especially when the impugned qualification for admission to Part II of the Three Years' Degree Course laid down in the amended Ordinance No. 35 by the University is neither unreasonable, nor discriminatory, but, on the other hand, appears to have been prescribed in the interest of higher education to improve the quality of those who take to higher education. Reference in this connection may be made to a recent authority of the Supreme Court reported as J. P. Kulshrestha v. Allahabad University : (1980)IILLJ175SC , wherein their Lordships were pleased to make the following observations:

Rulings of this court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, is bound by the rule of law and cannot be a law unto itself. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the court out...

14. The result of the above discussion is that these writ petitions have no force and are hereby dismissed summarily. No order as to costs.


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