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The Vice-chancellor, University of Calcutta and ors. Vs. Somesh Charan Chowdhury and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 95 of 1957
Judge
Reported inAIR1958Cal131,62CWN259
ActsConstitution of India - Article 226; ;Calcutta University Act, 1951 - Section 52(2)
AppellantThe Vice-chancellor, University of Calcutta and ors.
RespondentSomesh Charan Chowdhury and anr.
Appellant AdvocateE. Meyer, ;S.K. Bhattacharjee and ;Provat K. Bose, Advs.
Respondent AdvocateKasi Kanta Maitra and ;Manas Ranjan Chakravarty, Advs.
DispositionAppeal dismissed
Excerpt:
- chakravartti, c.j.1. among the second year science students ef santipur college who were sitting for their test examination in december 1956, was one somesh charan chowdhury. the examination was proceeding and the practical test in chemistry had just been concluded when the college received a communication from the registrar of the university, dated the 3rd december 1956, which said that the syndicate did not approve of chowdhury's admission to the college. chowdhury had begun his first year as a student of the santipur college, but had gone away after some time to another college with a certificate of transfer and subsequently returned. the disapproval of the syndicate had reference to the second term of his membership of the college. if the syndicate did not approve of chowdhury's.....
Judgment:

Chakravartti, C.J.

1. Among the Second Year Science Students ef Santipur College who were sitting for their Test Examination in December 1956, was one Somesh Charan Chowdhury. The examination was proceeding and the practical test in Chemistry had just been concluded when the College received a communication from the Registrar of the University, dated the 3rd December 1956, which said that the Syndicate did not approve of Chowdhury's admission to the College. Chowdhury had begun his First Year as a student of the Santipur College, but had gone away after some time to another College with a certificate of transfer and subsequently returned. The disapproval of the Syndicate had reference to the second term of his membership of the College. If the Syndicate did not approve of Chowdhury's re-admission to the College, it meant that they would not recognise him as one of its students and the consequence would be that the College would not be able to send him up for the University examination, even if he passed the Test. In spite of the intimation received from the University, however, the Acting Vice-Principal, then in charge ofthe College, allowed Chowdhury to complete his examination and by a letter, dated the 10th December 1956, made a request to the University to reconsider his case, No immediate reply was received. In the meantime, Chowdhury was found qualified on the result of the Test to be sent up for the Intermediate Examination in Science but as nothing had been heard from the University, the Acting Vice-Principal sent a telegram to the Registrar on the 28th December 1956 and asked for advice as to what he was to do. He was informed by a letter, dated the 29th December 1956, that his letter of the 10th December 1956, would be considdered by the Syndicate when it next met. It appears that thereafter, on the 31st December 1956, the Acting Vice-Principal addressed another letter to the Registrar and asked specifically if he could send up Chowdhury for the Intermediate Science Examination of 1957. On the 9th January 1957, the Registrar replied to say that the University saw no reason to re-consider the case and could not grant the permission asked for to send up Chowdhury for the ensuing I. Sc. Examination on his passing the College Test. Thus, the University finally refused both to recognise Chowdhury as a student of the Santipur College and to admit him to the Intermediate Science Examination of 1957.

2. On the 15th January 1957, Chowdhury moved this Court under Article 226 of the Constitution against the Vice-Chancellor of the University of Calcutta, the Syndicate, the Registrar, the Controller of Examinations, the University itself and the Acting Vice-Principal and Secretary of Santipur College and obtained a Rule on them to show cause why a writ in the nature of Mandamus should not issue, directing them to cancel, or forbear from giving effect to, the decision of the Syndicate, disapproving of his admission to the Santipur College and refusing him permission to deposit his examination fees or why a writ in the nature of certiorari should not issue, directing them to quash the proceedings of the meeting of the Syndicate at which the impugned decision had been taken. On the 12th March 1957, the Rule was made absolute by Sinha, J. The learned Judge ordered the issue of a writ in the nature of certiorari, quashing the directive contained in the letter of the Registrar, dated the 3rd December 1956, and the relative resolution of the Syndicate, disapproving of Chowdhuryla-admission to Santipur College and also a writ in the nature of mandamus, directing the Respondents before him not to give effect to the resolution and not to prevent Chowdhury from appearing at the University examination, if he was otherwise entitled to do so. It will be noticed that the final order corrected the very incorrect form in which the Rule had been taken out with respect to the writ of certiorari.

3. Against the order of the learned Judge, the present appeal was preferred by the University and the parties connected with it. The Acting Vice-Principal of Santipur College did not join in the appeal and has been impleaded as a Respondent along with Chowdhury. Whythe Acting Vice-Principal was made a party at all, is not too clear.

4. The circumstances which led up to the Syndicate's acting against Chowdhury may now be stated.

5. Chowdhury passed the School Final Examination in the Third Division and got himself admitted to the First Year Science class of Santipur College at the beginning of the College session in 1955. The Principal of the College at the time was his father, Dr. Tarini Cha-ran Chowdhury. It appears that on a certain occasion when a Professor named Shri Arun Chandra Bose was taking the class to which Chowdhury belonged, there was some unpleasantness between him and the students and, according to one version, the Professor was even assaulted. Chowdhury was particularly accused of the assault, but while it is said on the one hand that there was great indignation among the public over this matter, it is said on the other that at an enquiry held by the then Vice-Principal of the College, Chowdhury was found blameless. Whatever the truth about that incident, it is Chowdhury's own case, as would appear from a copy of a letter, addressed by his father to the Inspector of Colleges, which has been exhibited by him, that the local atmosphere became too 'Vitiated', that it was considered expedient to send him away to another College. In fact, Chowdhury left the College where he was still in the First Year class with a transfer certificate and joined Krishnagar College, situated about twelve miles away. He continued to prosecute his studies at the latter College, but failed to pass the Annual Examination and was not promoted. Thereafter, he left Krishnagar College with a transfer certificate on which the fact that he had not been promoted to the Second Year class was noted, as required by one of the regulations of the University. With that certificate he sought admission again to Santipur College and was admitted to the First Year Science class on the 11th July, 1956. The Annual Examination of Krishnagar College was held before the Summer Vacation and when Chowdhury rejoined Santipur College, the regular Annual Examination of that College also had already taken place. But a supplementary examination for students 'who did not appear at the annual examination or could not show satisfactory result therein' wag held on the 13th and the 14th July 1956, and Chowdhury was allowed to appear at that examination. On the marks obtained by him, he was promoted to the Second Year Class.

6. It will thus be seen that having failed in the Annual Examination of Krishnagar Col-lege to which he belonged and having been refused promotion to the Second Year class, Chowdhury left the College with a transfer certificate and on re-joining the First Year class of Santipur College, was allowed only two days later to sit for the Supplementary Annual Examination which that College was holding and on being declared successful, secured promotion to the Second Year class which he hadbeen unable to obtain at Krishnagar College and that he did so without any further study.

7. On the 20th July 1956, twenty students of Santipur and Krishnagar Colleges addressed a written complaint to the Registrar of the University about the manner in which Chowdhury had, according to them, contrived to secure promotion to the Second Year class. They recalled the incident with Professor Bose and alleged that Chowdhury's father, the Principal of the College, did not punish his son for his part in the incident as he ought to have done, but his position was made so uncomfortable by public agitation that he was ultimately compelled to remove his son from the College. The complainants pointed out that at the end of his First Year class in the College to which he went, the son was found unfit for promotion to the next higher class and they alleged that, thereupon, the father had brought him back to his own College and staged a Supplementary Annual Examination only in order to enable the failed son to get promoted. Besides making those personal allegations, the complainants also raised a question of law and principle. They said:

'We, students, have the idea that a student is never permitted to sit for the same examination twice and in different institutions in the course of the same session and he can never be given promotion to a higher class in the way followed by Principal T. C. Chowdhuri.'

8. The University sent a copy of the complaint to Principal Chowdhury for his observations and his reply, dated the 7th August 1956, was received on the 14th August. The Principal said that the complaint was not a bona fide complaint by students at all but had been engineered by the disgruntled Professor Bose, who had been dismissed from the College, and his allies. The story of the assault on the Professor, he said, was a pure concoction. He said further that there was nothing abnormal in holding a Supplementary Annual Examination in 1956, because such an examination was always held at Santipur College after the Summer Vacation for the benefit of students who had either absented themselves from the regular Annual Examination or having appeared thereat, had failed to pass and that a Supplementary Examination had been held in 1955 as well. For the year 1956, the decision to hold a Supplementary Examination had been taken at the meeting of the Staff-Council, convened to consider the results of the regular Annual Examination. His son, the Principal said, was a student of the First Year class who had not been promoted at Krishnagar and therefore he was eligible for appearing at the Supplementary Examination which he took along with several other students. His results, the Principal added, justified his promotion to the next higher class and, in support of that statement, he set out the marks obtained by his son. They showed that Chowdhury had obtained fairly good marks in three subjects, good marks in Mathematics, but only 28 out of 100 in English.

9. It appears that the University also referred the matter to the Inspector of Collegesfor a report and a report was received from him on the 26th September 1956. The Inspector said that Chowdhury who had not beenpromoted to the Second Year Science class at Krisnnagar College as a result of the examination held there, ought not to have been admitted in the Santipur College and promoted to a higher class within 12 months' and that by such admission and promotion of the student, the spirit of the University Regulations and the interest of inter-collegiate discipline had both been violated.

10. It was after receipt of the Principal's explanation and the report of the Inspector ofColleges and after consideration of the matter that the Syndicate took the decision communicated to the College by the Registrar's letter of the 3rd December 1956, subsequently confirmed by the letter of the 9th January 1957. In form, the letter of the 3rd December 1956, purported to be a reply to the Principal's letter of explanation of the 7th August 1956, and it read as follows:

'Dear Sir,

With reference to your letter No, 857/56, dated 7-8-56, regarding the case of Sri Somesh Charan Chowdhury (2nd Year I. Sc.), I am desired to inform you that the Syndicate do not approve of his admission to your College.'

11. The letter of the 9th January 1957, was, as already stated, a reply to the Acting Vice-Principal's letter of the 10th December 1956. It ran as follows:

'Dear Sir,

With reference to your letter No. 1073/56, dated 10th December 1956, requesting re-consideration of the case of Sri Somesh ' Charan Chowdhury and praying for permission to allow him to be sent up for the ensuing I. Sc, examination on passing the College Test Examination, I am to inform you that the University regret inability to grant the prayer.'

12. It is the legality of the decision of the Syndicate as embodied in and communicated by these letters, which calls for consideration in the present case.

13. Although it is not strictly relevant to the question to be decided, I think I may state a further fact in order to complete the narration of events. On the 12th September 1956, there was an inspection of Santipur College by the Additional Director of Public Instruction, one Dr. S. K. Basu, during which some enquiry as to the alleged assault on Professor Bose and the circumstances in which Chowdhury had been promoted to the Second Year class was also made. The Principal, Dr. Chowdhury, took serious exception to the manner in which that inspection was held. He considered it personally insulting to him and oppressive to his son who, though lying seriously ill, was not spared from interrogation; and he also thoughtthat the manner in which he was openly ignored in the presence of others and even slighted and the way in which the Additional Director held secret parleys with students about the affairs of the College had created an atmosphere of indiscipline in which he could no longer continue in his office with dignity and self-respect'. Accordingly, by a letter dated the 17th September 1956, in which he gave his reasons at great length, he tendered his resignation of the office of the Principal. The resignation was accepted with effect from the 7th November 1956. It was therefore that when the Registrar's letter of the 3rd December 1956, was received by the College, Dr. Chowdhury was no longer its Principal. An Acting Vice-Principal, as has been seen, was in charge.

14. The above being all the facts which require to be slated, it will be convenient at this stage to separate the questions which do not arise for decision in the present case from the questions which do arise. Before the learned trial Judge, there was a considerable amount of allegation and counter-allegation on matters which could not possibly be decided on an application under Article 226 and some of which the learned Judge very properly excluded from consideration. Whether or not there was any assault on Professor Bose and if there was, whether Chowdhury had any part in it, is not a matter which calls for decision in this case or can be decided. Whether or not the holding of the supplementary annual examination was bona fide, is equally irrelevant. So also is the question as to whether, on the resulte shown by him at that examination, Chowdhury's promotion to the Second Year Class was justifiable. Those are matters of the internal administration of the College, involving disputed questions of fact and are not proper matters for enquiry by the Court on an application under Article 226. It might seem that at least the questions as to whether a supplementary annual examination could properly be held under the Rules and Regulations of the University and even if it could be held, Chowdhury could be properly allowed to appear at it and promoted if be passed, were questions which called for decision. Strictly speaking, as I shall show in due course, even they are not relevant, in view of the scope of the Syndicate's decision and what was actually disapproved by it. I shall, however, not leave them out altogether, since they were dealt with by the learned Judge and since they were argued before us at some length.

15. The questions are to be examined as pure questions of jurisdiction, without regard to the ethical propriety of what was done by Chowdhury or by others in his interest and on his behalf. The learned Advocate appearing for Chowdhury who put his client's case with great moderation made his position quite clear when ho submitted that he did not wish to contend for one moment that what had been done by or for his client was morally defensible and would not say that no advantage had been sought to be taken of a lacuna in the rules. But there was, he said, a lacuna, with the result that what had been done by or for his client was not forbidden, however repugnant it might be to the standard of conduct expected to be observed in the academic sphere. Ifsuch was the position, the quesion would at once arise whether a person who had been guilty of unworthy conduct, though he had kept himself within the strict bounds of tne law, could invoke the assistance of the Court under Article 226 of the Constitution, when the benefit he had procured by such conduct wassought to be taken away from him. Mr. Meyer who appeared for the University laid great emphasis on this aspect of the case. I may add that Chowdhury does not also appear to have been wholly candid in his statement of factsmade to the Court by his application. Without giving the date of his return to Santipur College, he stated in paragraph 1 of his appli-cation that on leaving Krishnagar College with a transfer certificate, he had 'again got himself admitted to the Santipur College and joined the First Year Science class and attended classes regularly'. The Acting Vice-Principal's letter of 10th December, 1956, addressed to the Registrar, a copy of which he exhibited as an annexure to his application, also stated that 'after obtaining his transfer certificate from Krishnagar College', he had been 'admitted into the First Year I. Sc. class of this College which he had fully attended'. These statements would give the impression that on rejoining the First Year class of Santipur College after his failure to obtain promotion to the Second Year class at Krishnagar, the Petitioner had gone through a regular course of study in the First Year class for some considerable time before he appeared at the supplementary annual examination. As a matter of fact, he was readmitted to the First Year class at Santipur on 11th July, 1956 and sat for the supplementary annual examination on 13th and 14th. In those circumstances, it was clearly untrue to say that after rejoining the First Year class at Santipur and before going up for the supplementary annual examination, he had 'attended classes regularly' or had 'fully attended' the First Year Science class at Santipur. If the decision of this case depended upon Chowdhury's right to appear at the supplementary annual examination or the propriety of his being allowed to do so, I would have considered these misstatements fatal to him, as also the lack of straightforwardness, amounting almost to trickery, in the manner in which he was jostled up into the Second Year class,even if the act was not illegal. But the actual point for decision is a narrower one. as I shall presently show, and on that point the conduct of Chowdhury or his patrons does not in anyway bear.

16. Since I 8m commenting on the application made by Chowdhury, I think I ought not to let the affidavits filed on behalf of the University pass without comment. There are two affidavits, both affirmed by one Sri Jogesh Chandra Mukherjee, the Assistant Registrar The second affidavit, affirmed on 6th March, 1957, is limited to statements of fact and no exception can be taken to its contents. But the first, affirmed on 13th February. 1957 is an amazing document, particularly as an affidavit used by a University. Not only is it unnecessarily quarrelsome and abusive, but it also affirms facts as true to the deponent's knowledge which could not possibly be so true and affirms other facts as matters of record whick could not possioly be such matters. To give but one or two instances, the Assistant Registrar affirms, as true to his knowledge, that the action of Chowdhury in paying tuition fees to Santipur College and of tne College authorities in receiving them was mala fide and he denies, from personal knowledge as he slates, that Chowdhury diligently prosecuted his studies in tne Second Year Class, as alleged or at all and even that he had been and was still lying ill at the time his application was made. Among several other tnings, the Assistant Registrar affirms it as a matter of record that Chowdhury knew his admission to Santipur College and the purported promotion to the Second Year class to be not legal and valid. One can only wish that those to whom it may fall to speak on behalf of bodies like a University and those to whom it may fall to act for them in litigation would take greater care in affirming facts and greater care to avoid statements and forms of expression which are bound to compromise the great institutions they represent.

17. Coming now to the questions which call for consideration in the case, I can find nothing in the Rules and Regulations which forbids the holding of a supplementary annual examination by a College. It is true that to ordinary notions of academic affairs, a supplementary examination would appear justifiable only when the original examination is cancelled for some good cause or when it is held for the benefit of candidates who were unable to appear at the original examination for reasons beyond their control. The propriety of holding a supplementary examination for students who absented themselves from the original examination or merely to give a second rhance to those who failed to pass it, is undoubtedly not patent. But supplementary examinations have come to be a normal feature of the examination system of the country. The University itself holds supplementary examinations and in some of its regulations, such examinations are expressly mentioned. The real enquiry, however, is whether there is anything in the rules and regulations prescribed for the Colleges which forbids the holding of supplementary. examinations by them. If supplementary examinations do not contravene any rules - and it was not shown to us that they did - it is not for us to enquire and decide in this case whether the supplementary annual examination held by Santipur College for its First Year students in 1956 was held for a good and sufficient reason. I may point out however, that if the holding of a supplementary examination was sanctioned by the Staff Council on 12th July. 1956. as the learned Judge has found, it is impossible to understand how the notice for the examination could have bee' issued on 6th July. 1956, as the Acting Vice-Principal has sworn.

18. The second question, which is whether Chowdhury was properly allowed to appear at the supplementary annual examination and promoted to the Second Year class on his passing it, is a little more complicated. The answer is to be sought in the true meaning of Clause 20 of the Ordinance relating to 'Admission and Enrolment of Students', framed by the Vice-Chancellor in exercise of the power conferred on him by Section 52(2) of the Calcutta University Act, 1951. I may observe in passing that under the provisions of the Act, the power of making Statutes is in the Senate, the power of making Ordinances is in the Syndicate and the power of making Regulations is in the Academic Council, but the Act also provides by Section 52 (2) that the Vice-Chancellor shall cause the first Statutes, the first Ordinances and the first Regulations to be framed. Before the learned Judge, the argument seems to have turned mainly on S, 26 of Chapter 23 of the Old University Regulations, more conveniently called Regulation 26, which was no longer in force at the relevant time and had been replaced by Clause 20 of the new Ordinance. That made no difference, since the language of the Regulation and the Ordinance is virtually the same. There was also some justification for it, since a further argument advanced on behalf of the University was that although the old Regulation might have ceased to be in force, there was a circular, based on its terms and issued in 1932, which was continuing independently in force by virtue of Clause 3 of the Miscellaneous Statutes framed under the new Act. A reference to Regulation 26 was therefore necessary. As the question before us was said to turn on the true effect of the above three provisions, it will be convenient to set them out at this stage.

19. The old Regulation 26 read thus :

''If a student applies for transfer who has not been permitted to continue his studies in the College owing to his non-appearance or failure at the College examinations, or who has not been allowed promotion, the fact shall be noted on the Transfer Certificate and he shall not be admitted into a higher class in another College within twelve months.'

20. Clause 20 of the Ordinance relatingto Admission and Enrolment of Students is in the following terms :

'If a student who has not been permitted to continue his studies in the College owing to his non-appearance or failure at the College examinations or who has not been promoted, applies for transfer, the circumstances of the case shall be noted on the Transfer Certificate, and the student shall not be admitted to a higher class within twelve months.'

21. It will be seen that the language of the Ordinance is the same as that of the Regulation, except that the grammar has been improved.

22. The Circular relied on by the University, bearing the somewhat curious number 'Former No. G 90 Misc.' and dated 7th July, 1932, reads as follows :

'Attention of the Head of affiliated Colleges is invited to Section 26, Chapter 23 of the University Regulations with the intimation that if a student applies for transfer who has not been permitted to continue his studies in the College owing to his non-appearance or failure at the College examinations or who has not been allowed promotion, the fact shall be noted on the Transfer Certificate and that in consonance with the spirit of the University Regulations and in the interests of intercollegiate discipline, he shall neither be admitted, nor promoted to a higher class of another College within twelve months.'

23. It will be noticed that the circular is an enlargement of Regulation 26, because to the injunction of the Regulation that a student, in the circumstances stated, shall not be admitted to a higher class within twelve months, it adds the injunction that neither shall he be 'promoted'. It will also be noticed that in his report in the present case, the Inspector of Colleges simply reproduced the language of the Circular.

24. Regulation 26 and the Circular can, in my view, be disposed of shortly. The Regulation was not in force at the relevant time and therefore reference to its terms is not relevant. The Circular was not shown to have been issued under the authority of the Senate which was the only body empowered under the Indian Universities Act of 1904 to frame regulations, laying down the rules to be observed and enforced by Colleges affiliated to the University in respect of the transfer of students. It was said that the Circular had been issued by the Syndicate, though no resolution of the Syndicate was shown, but assuming that the Syndicate directed the issue of the Circular, its contents, at the highest, were of no greater value than mere administrative instructions. So far as they went beyond Regulation 26, they could have no binding force. Nor is such force conferred on them by Clause 3 of the Miscellaneous Statutes framed under the Act of 1951 on which the University relied, for that provision, while it saves the existing practice and procedure, saves them only 'save as otherwise provided by this Act, the First Statutes, the First Ordinances and the First Regulations and subject thereto'. The matter of the position of a student who. leaves a college with a transfer certificate on his failure to obtain promotion to the next higher class is covered by one of the First Ordinances and therefore it is that Ordinance by which the matter will be governed and not by any rule of procedure outside it. The Circular must therefore be put on one side. I may add, however, that I am not at all impressed by the affidavit of the Acting Vice-Principal, affirmed on 11th March, 1957 in which he says that in spite of a diligent search, no copy of the Circular could be traced in the College files and further that no copy of the 'Handbook of information for Colleges affiliated to the University of Calcutta', which has the Circular among its contents, is in the possession of Santipur College. Since the Circular was issued in 1932 when Santipur College was not in existence, it is not unnatural that the College files do not contain a copy of it, but there is no reason why the College should not possess a - copy of the 'Handbook' which, according to the second affidavit of the Assistant Registrar, is given to every College at the time of its affiliation and was given to Santipur College in 1948. There are no grounds for disbelieving that statement in the affidavit. Whether or not the College knew of the Circular is, however, immaterial, since the Circular had no legal force and could not, in any event, prevail over the Ordinance.

25. We are thus led to a consideration of Clause 20 of the Ordinance framed under the Act of 1951, which is the only provision applicable. The terms of the clause have already been set out and it has to be seen what their effect would be on the position of Chowdhury. He was not promoted to the Second Year class at Krishnagar College and thereupon he applied for transfer. On his application, a transfer certificate was granted to him and on that certificate, 'the fact that he had not been allowed promotion was noted, as required by Clause 20 of the Ordinance. When exactly he left Krishnagar College does not appear, but since under Clause 15 (2) of the same Ordinance, a student applying for admission to a College on transfer, has to apply within a month of the date of the transfer, if he is not to pay tuition fees twice over and since Chowdhury was admitted to Santipur College on 11th July, 1956, it is right to presume that he left Krishna-gar College within a month before that date. As to what his position after the transfer was to be, the material words in Clause 20 of the Ordinance are that he was not to be 'admitted to a higher class within twelve months'. When he came back to Santipur College with the transfer certificate and sought admission there, he was admitted to the First Year Science class and therefore to the same class from which he had not been promoted at Krishna-gar and not to a higher class. So far, there was strict and complete compliance with Clause 20. But within three days of his admission to the First Year Science class of Santipur College, he was allowed to sit for the supplementary annual examination which the College was holding for those of its First Year students who had been absent from the regular examination or had failed to pass it and on the results of that examination, he was promoted to the Second Year class on 19th or 20th July, 1956. Thus, within very much less than twelve months, computed either from the date of the transfer from Krishnagar College or the date of his failure at the Annual Examination of that College which was held before the Summer Vacation, he was allowed to become a member of the Second Year class. The question is whether thereby the provisions of Clause 20 of the Ordinance were contravened.

26. The learned trial Judge has held that there was no contravention of Clause 20. He has laid stress on the word ''admitted' and observed that what Clause 20 plainly means is that if a student fails in the annual examination of his College, is not promoted and thereafter leaves the College with a transfer certificate, he shall not, on presenting himself with the certificate before another College, be 'admitted', that is to say, taken into, the next higher class within twelve months, because if he is allowed to join the higher class, he skips an examination, which is not permitted. 'But I see nothing inherently immoral', adds the learned Judge,

'in his getting admitted to the same class in another College, appearing in the examination of that College, passing it and being promoted. If that is against the policy of the University authorities, Clause 20 should be amended by adding the words 'or promoted' after the word 'admitted'.'

27. On behalf of the University, it was contended by Mr. Meyer that the word 'admitted' should not be read as limited to the first admission on transfer, but should be construed as including admission on promotion. According to him, a student was not admitted to a class only when he was directly taken in, when he was allowed to enter a class on promotion from the next lower class, then too he was ''admitted'. On behalf of Chowdhury it was submitted by Mr. Maitra that the larger meaning contended for by Mr. Meyer could not be ascribed to the word 'admitted', as occurring in Cl, 20 of the Ordinance, first, because it was not etymologically admissible and secondly because no construction of the word could be adopted which would mean and involve that the Ordinance-making authority had exceeded its powers. The learned Advocate pointed out that under Section 21 (p) of the Act, the Syndicate was authorised only 'to make Ordinances regarding the admission of students to the University' which, according to him, clearly contemplated the first admission. Mr. Meyer's reply to the last argument was that the present Ordinance had not been made by the Syndicate but was one of the First Ordinances made by the Vice-Chancellor under the special powers conferred on him by Section 52 (2) of the Act.

28. I cannot say that the word 'admitted' does not create a difficulty, nor can I read the Act as having intended that in framing the First Statutes, the First Ordinances and the First Regulations, the Vice-Chancellor was not to pay regard to the respective jurisdictions of the Senate, the Syndicate and the Academic Council, as defined in Ss. 18, 21 and 27. The limited connotation of the word 'admitted', if taken literally, appears to have been realised by the Syndicate, for when it issued the Circular of 1932 and added therein the words 'and promoted', it spoke of 'the spirit of the University Regulations' and not their letter. Yet I think that although the Ordinance has not succeeded in expressing its meaning clearly,still, when repeating the language of Regulation 26, it says that, in the circumstances stated, a student 'snail not be admitted to a higher class in anoiner College witnin twelve months', what it intends to say is that, for twelve months, he shall remain in the class from which he failed to obtain promotion and shall not, during that period, be allowed admission to the next higher class. I do not overlook the fact that the period of twelve months, prescribed by the Ordinance, creates another, though a comparatively minor, difficulty, but to that matter I shall advert later. Apart from that difficulty which does not bear directly on the present question, it seems to me that Clause 20 of the Ordinance does not intend to forbid merely a direct and immediate admission of a failed student to the next higher class of anotner College when he presents himself there with a transfer certificate, but intends equally to forbid his promotion to the next higher class before he has again gone through the full course of study in the same class for another academic year. The learned trial Judge thinks that the bar contained in Clause 20 does not apply to a case when a student, on failing in the annual examinationof his College, gets himself admitted to the same class of another College, appears in theexamination of that College and on passing it, is promoted. It would certainly not apply to a case where such a student is promoted on the results of the regular annual examination of his new College in which he appears after attending the same class in that College for the next academic year but, with respect, I cannot see how the bar, properly regarded, can be thought to exclude a case when such a student is allowed to appear in an examination at his new College within two or three days of his admission to the same class there and promoted on the results of that examination. The very circumstances of the case of a student, leaving his College on his failure to obtain promotion and joining another class, seem to me to make it impossible, if things are done rightly, that he should be considered eligible lor immediate appearance in another annual examination and promoted if he passes it.

29. The position may be examined a little more closely. Annual examinations of a College are held at the end of the academic year and therefore a student who seeks transfer from his College on not being promoted, will do so at the time or at the beginning of the next academic year. He has taken the annual examination of his College, has failed to pass it and. he carries a transfer certificate which bears on it an endorsement to the effect that he has not been promoted. There can be no doubt that Clause 20 at least requires that when such a student seeks admission to another College, his first admission shall be to the class from which he failed to obtain promotion. But when he is admitted to that class, he will be admitted as one of the students who are beginning that class and not as a student who has come to the end of it and become eligiblefor an examination for promotion to the next higher class. Ordinarily, there will be no such student in the College, because those who are left over from the last year's class, not having been promoted, will be in the same position as fresh men or students promoted from the next lower class, all beginning, or beginning again, their studies in the particular class witn the beginning of the academic year. But even if, at the College which a failed student of another College joins with a transfer certificate, there is a supplementary annual examination of the class yet to be held and even if failed students of the College are allowed to appear in it, he cannot be allowed to appear, because as a student of the College from which he has come, he is a student who has not been promoted and with regard to whom it has been decided that he is to remain in the same class for another year and as a student of the College to which he has come, he is a student who is beginning the class. The position will become clearer if instead of a supplementary annual examination, one considers the matter by reference to a regular annual examination. Suppose for some reason the annual examinations of a College are delayed, but when a student comes to it with a transfer certificate from another College, having failed in the annual examination and having been refused promotion there and he is admitted to the same class, can it be for one moment said that he also can be allowed to sit for the regular annual examination of his new College and promoted, if he passes it? If such a thing be allowed to happen, Clause 20 of the Ordinance will be set completely at naught. I am accordingly of opinion that what Clause 20 really intends to provide is that when a College has decided not to promote a student, full effect shall be given to that deci-sion and if the student leaves the College with a transfer certificate, the decision shall be shown on the certificate and no College shall permit his entrance into the next higher class within twelve months. It is not intended that the provision can be avoided by allowing the student to appear in a premature examination.

30. The learned trial Judge has observedthat there is nothing inherently immoral in a failed student getting admitted to the same class in another College, appearing in an examination of that College, passing it and being promoted. If the examination taken and passed by such a student be the normal examination held by the new College at the end of the now academic year, there will undoubtedly be nothing immoral in his being promoted on passing it; but if the examination be such an examination as Chowdhury was allowed to take in the present case, I must, with respect, disagree with the learned Judge. I am glad to be able to say that the learned Advocate, appearing for Chowdhury, himself was of. the view that even if there was a lacuna in the expression of the relevant rule, as in his submission there was, the exploitation of the lacuna for securing an unfair advantage whichthe rule certainly did not intend to permit, was morally reprehensible and was not, for those who valued integrity in the academic sphere, a very pleasant phenomenon to contemplate. If wnat was done in this case was proper, a student failing to pass the annual examination of his College and leaving it with a transler certificate, need not, in his search for immediate promotion, limit himself only to one otner College, if he is so fortunate as to find the annual or supplementary annual examinations of a number of Colleges still due and sufficiently spaced out in time, he may go from one College to anotner, appearing in the examination and failing and then passing on to the next to overtake the examination there, till he finds a College which will pass him. So may a College, after its regular annual examination is over, hold a supplementary examination and invite to it lailed students of all otner Colleges, who have only to come with a transfer certificate and get themselves formally admitted to the same class in order to quality for admission to the examination. I am unable to hold that there would be nothing improper or immoral in failed students thus circumventing the rules or in a College thus trafficking in examination.

31. I must point out, however, thatalthough I am reaching the same conclusion as to the real intention of Clause 20 of the Ordinance as was contended for by Mr. Meyer, I am not reaching it through the word 'admitted', but doing so from an examination of the position of a failed student who joins another College with a transfer certificate. The inadequacy of Clause 20 as an expression of what appears to have been the real intention of the framer of the Ordinance remains. So remains the point in the very pertinent observation of the learned Judge that if by Clause 20 of the Ordinance, the University intended to lay it down that a failed student, leaving his College with a transfer certificate, was not only not to be admitted to the next higher class within twelve months, but was also not to be promoted, it might be expected to adopt the language of the Circular of 1932 and not repeat the language of the old Regulation 26. That the framer of the Ordinance is a University makes it particulary regrettable that a rule framed by it to regulate the rights and disabilities of a certain class of students and the course to be followed by the Colleges in regard to them, should not be expressed in clear and unambiguous language. In spite of its deficiencies, however, if the decision in the present case turned on the true meaning of Clause 20, even as it stands. I would have to consider whether it had nevertheless succeeded in comprising within its ban the promotion of a failed student of another College within twelve months. But for reasons presently to be stated, that question does not call for decision. I may observe however, that there can be no question that, in any view. Clause 20 is obscure and the University authorities will be well-advised to consider whether they should not amend its language.

32. Before I leave Clause 20, I ought to explain the difficulty I. have already mentioned which appears to have been created by its laying down a time-limit of twelve months. The starting point of the period has not been indicated and therefore when the period will end is not clear. But it could not possibly have been intended that even if a failed student joined the same class of another College after obtaining a transfer and even if after reading in that class for the full session, he passed the promotion examination at the end of it, he would still not be entitled to be promoted to the next higher class. The time limit, however, may stand in his way for a certain length of time. Though the starting point of the twelve months is not expressly stated, it can only be either the date on which the student concerned was declared unsuccessful at the annual examination of his College and not promoted or the date on which he took his transfer from that College. The interval between that date and the date on which he becomes entitled to be promoted on passing the annual examination of his new College may in a case well be less than twelve months. In such a case, if the rule in Clause 20 of the Ordinance is to be strictly applied, he will have to wait till twelve months are completed.

33. I may now turn to the short point which is really the only point involved in the case. The basic decision of the Syndicate which Chowdhury is challenging in these proceedings is the decision communicated by the Registrar by his letter of 3rd December, 1958 and it is a decision to the effect that the Syndicate did not approve of Chowdhury's admission to Santipur College. The subsequent decision to refuse permission to the College to sent up Chowdhury for the ensuing I. Sc. Examination on his passing the College Test was merely consequential. The only point to consider, therefore, is whether the Syndicate had. any jurisdiction or legally valid ground to disapprove of the very admission of Chowdhury to Santipur College and make that disapproval the ground of refusing permission to the College to send him up for the University examination as one of its students. I am entirely unable to see that the Syndicate had any such jurisdiction or ground. The student had failed in the annual examination of Krishnagar College and was not promoted to the Second Year class. He left Krishnagar College with a transfer certificate which had endorsed on it the information that he had not been promoted. On that certificate he was admitted at Santipur College to the First Year Science class which was the same class from which he had not been promoted at Krishnagar. Under Clause 11 of the Ordinance, a student is not ordinarily to be allowed to take a transfer to another College, except st the end of the academic year. The student in the present case took his transfer st the end of the academic year after the annual examination had been held. Every rule contained in the Ordinancehaving been observed, no question of the Syndicate's approval. of the students' admission to Santipur College at all arose and the purported disapproval of the admission was wholly without jurisdiction. There is no rule or regulation under which a student's admission to a College requires the approval of the Syndicate. It may be that if some rule relating to admission to a College has not been complied with by a student, the Syndicate may approve of his admission in the sense of condoning the non-compliance, though power, to relax the rules does not seem to have been expressly conferred on it. But otherwise, the question of the admission of a student to a college is entirely for the college authorities. It can by no means be said that the Syndicate's disapproval in the present case covered disapproval of the student's subsequent promotion to the second year class, for, the language of the Registrars' letter which communicated the decision, furnishes no warrant for any such supposition. Clause 20 of the Ordinance at least speaks of admission to a higher class, which provides some scope for an argument that the admission to a higher class which is forbidden by the clause includes admission on promotion. But the syndicates' decision does not even speak of the disapproval . of the student's admission to a higher class but speaks only of his admission to the College and therefore there is no ground for saying that it was disapproval of his promotion to the higher class which was meant, though the expression used was 'admission to a higher class'. Here, the disapproval is fundamental and it is disapproval of the very admission of the student to Santipur College. Indeed, the first affidavit of the Assistant Registrar refers extensively to the circumstances in which Chowdhury had left Santipur College and the circumstances in which he had returned or had been brought back; and after saying that 'the whole act of transfer of the petitioner from the Krishnagar College was illegal and mala fide', the Assistant Registrar says that, among other things, the Syndicate had taken into consideration the matter of the student's transfer from Krishnagar to Santipur. There is thus every reason to think that the Syndicate really intended to disapprove of the student's admission to Santipur College itself and it did not make any reference to his admission or promotion to a higher class, because by disapproving of his very admission to the College, it was striking at the root of his rights and claims. In any event, it is disapproval of admission to the College which the decision speaks of and it speaks of nothing else. In those circumstances, I am clearly of opinion that the rules relating to a student's admission to a College on transfer having all been observed to the letter, the Syndicate, in still taking it upon itself to disapprove of the student's admission to Santipur College, was purporting to exercise a jurisdiction which it did not possess and if it disapproved of the admission on extraneous grounds, as it must have, it was concerning itself with matters which were beyond its province andproceeding on grounds not valid in law. Since the refusal of permission to Santipur College to send up the student for University Examination was consequential to the disapproval of his admission to the College, it is equally indefensible. The decisions of the Syndicate, being what they are, could not therefore be allowed to stand and they were rightly quashed by the learned Judge.

34. In the result, I uphold the order of the learned Judge, though not on the grounds given by him. I would also add that the learned Judge having quashed the resolution of the Syndicate and the directive contained in the Registrar's letter by a writ of certiorari, it was, in my view, not appropriate or necessary that the appellants and respondent No. 2 should have been directed by a writ of mandamus not to give effect to decisions or orders which stood quashed by him.

35. For the reasons given earlier, the appeal fails and is dismissed. I agree with the learned trial Judge that the University acted from the highest of motives and would add that the advantage which the respondent sought to protect by these proceedings was not an advantage very properly gained, as his own learned advocate frankly conceded. There will therefore be no order for costs.

Das Gupta, J.

36. I agree.


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