1. The facts in this case are shortly as follows :
2. In 1955, the petitioner was a student of the first year science class of the Santipur College. His father, Dr. Tarihi Charan Choudhury, was then the principal of that College. On January, 12, 1956 the petitioner took a transfer certificate from the Santipur College and 'got himself admitted into the 1st year science class of the Krishnagar College. He attended classes in that College and appeared at the annual examination, but could not pass, and was not promoted to the 2nd year science class. He then asked for and obtained a transfer certificate from the Krishnanagar College and this was granted with the endorsement, 'not promoted.' He then got himself admitted into the first year science class of the Santipur College on 11th July 1956. On 13th and 14th July 1956, a supplementary annual examination was held by the Santipur College, and the petitioner appeared therein and was declared as promoted to the 2nd year science class on 19th/ 20th July, 19,16. On 17th September 1956, the petitioner's father resigned his post as Principal of the Santipur College. So far as the petitioner is concerned, he continued to attend his classes and appeared at the test examination, which commenced in December 1956. On 5th December, when he had already appeared in one paper, the present Principal of the Santipur College received a letter dated 3rd December 1956, from the Registrar' of the Calcutta University, informing him that the Syndicate did not approve of the admission of the petitioner to the Samipur College, The authorities of the College however allowed the petitioner to complete the test examination. If the order of the Syndicate, conveyed through the registrar stands, the petitioner cannot appear in the ensuing Intermediate Science Examination, and hence this application.
3. The facts leading to the issue of the said letter by -the Registrar is as follows; On or about 20th July 1956, a letter was received by the Registrar, Calcutta University signed by twenty students of the Santipur College, a copy whereof is annexed to the affidavit of Jogesh Chandra Mukherjee affirmed on 13th February 1957 and marked as Exhibit 'A'. It was stated in the letter that in dealing with the case of his son, the petitioner, his father, the late Principal of the Santipur College, was guilty of favouritism. In shore, it was charged that, Dr. Chaudhuri had readmitted his son into the Santipur College against the regulations and had held a supplementary annual examination simply to promote his son to the 2nd year science class and did promote him, although the marks obtained by him did not warrant such promotion. On the 7th August 1956 the matter was referred to the Principal of Santipur College for his observation. On 14th August 1956, a reply wag received from the Principal. Thereupon the matter was referred to the Inspector of Colleges who made a report, on-26th September, 1956 to the effect that the petitioner should never have been admitted to the Santpur College and promoted to a higher class within 12 months of his failing to get promoted in the Krishnagar College.' The Registrar then referred the matter to the Syndicate. On 24th November 1956, the Syndicate resolvedthat it did not approve of the admission of the petitioner to the Santpur College. This was communicated to the Principal by a letter which he actually received on 5th December 1956. On 10th December 1956, the Acting Vice-Principal of the Santipur College replied to the Registrar, stating inter alia as follows:
(1) That the petitioner obtained his transfer Certificate from the Krishnagar College.
(2) He was admitted to the First Year Science Class of the Santipur College.
(3) He was 'not' admitted into the second year class.
(4) He sat at the Supplementary Annual Examination with other students.
(5) He had paid his tuition fees upto 31st May 1957.
(6) He had already appeared in one paper at the test examination, when the communication dated 3rd December 1956, was received.
(7) He was allowed to complete his test examination.
(8) His case might be reconsidered. : -
4. The University authorities have refused to reconsider . the matter. In his 'affidavit affirmed on 29th January, 1957, the Vice-Principal states that the petitioner set in the supplementary examination held in July 1956 and 'was declared successful and thereafter he was promoted to the second year I. Sc. Class'. So far as the facts are concerned, leading to the, action of the Syndicate, mention^ above, they are highly controversial. If the result of the application depended on such facts, it would have to be dismissed since I cannot decide on the affidavits whether there actually occurred any parental favouritism or not,
5. But, the rights of the petitioner to get a transfer, to get himself admitted to a College and to appear in an University examination, are the subject matter of statutes, regulations and ordinances which have the force of law, and it was be investigate: as to whether the Syndicate was acting in accordance with law in directing the Santipur College not to admit the petitioner, which means that the petitioner cannot appear in the ensuing Intermediate Examination in Science. Prior to the passing of the Calcutta University Act 1951, the University of Calcutta was governed by the Act of Incorporation (Act, II of 1857) and the Indian University Act (Act VIII of 1904), Under 6. 25 of the latter Act, the Senate was empowered,with the sanction of the Government, from time to time to make regulations to provide for all matters relating to the University. Section 25 (k) granted specific powers 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. The Senate made 'regulations; and Chapter XXIII deals with the admission, transfer and withdrawal of students. Regulation 7 is as follows:
'A student will be recognised 35 admitted toa College as soon as he has been accepted by the Principal, and has, where fees are required by the College, paid his admission and first month fee.'
The relevant regulation regarding transfer is regulation 26 which runs as follows:
'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 intoa higher class in another College within twelve months.'
It is only necessary to mention that under Chapter IV of the regulations, the executive government of the University is vested in the Syndicate, but it must conduct the affairs of the University inter alia in accordance with the regulations (Reg. 12) framed 'ay the Senate. Under Regulation 13, the Syndicate may from, lime to time recommend to the Senate such Regulations as' may be desirable. It had however, no power to ignore or vary any such regulation. It is stated that under the authority of the Syndicate, a circular was issued to affiliated Colleges, being 'Former No. C-90-Misc. dated 7th July 1932'. It runs as ' follows:
'Attention of the Head of affiliated Colleges is invited to Section 26 Chapter XXIII 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 examination 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 inter-collegiate discipline he shall neither be admitted nor promoted to a higher class of another College within twelve months,'
It is stated that this circular is based upon a resolution of the Syndicate, but no such resolution, has been placed before me. The respondent No. 6 states that no such circular can be traced in the College records. I do not for a moment day that the course recommended by the Syndicate, is not the right or proper policy to be adopted. But it goes far beyond the regulations prescribed by the Senate and is therefore not legally binding. Under such circumstances, regulation 26 merely prohibits admission to a higher class, but does not prohibit admission to the same class and promotion to a higher class after an examination. I cannot find any power in the Syndicate to extend the scope of the regulations. It could have recommended to the Senate that regulation 26 be extended, but it could not by itself add to it.
6. Coming now to the Calcutta University Act 1951, we find that the Senate has been granted the power to make statutes and amend or repeal the same. The Syndicate has been given power to make ordinances, and amend or repeal the same. The Academic Council has been granted power to make regulations.
7. Under S, 52 (2), the first Vice-Chancellor has been given the power with the approval of the Chancellor to frame the first statutes, ordinances and the first regulations of the University. In exercise of this power, the Vice-Chancellor has framed the first ordinances relating to the admission 2nd enrolment of students. Clause 20 of the ordinance corresponds to regulation 26 and runs as follows:
'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 circumstance of the case shall be noted on the Transfer Certificate, and the student shall not be admitted to a higher class in another college within twelve months.'
8. For the purpose of this application I have to construe this clause in the ordinance. It was necessary to mention the earlier regulation because the learned Standing Counsel appearing on behalf of the respondents relied upon it and a circular issued by the Syndicate relating to it. We have already seen how the earlier regulation 26had been worded by the Senate, and how the Syndicate tried to explain it. If this explanation was the correct one, it could have been incorporated in this first ordinance but was not. Under the present Act, the Syndicate is in a much better position, because it can frame an ordinance itself. But no attempt has been made to change Clause 20, set out above.
9. I now come to the wordings of Clause 20. All that the clause requires is that if a student fails in one college and is not promoted, he should not be admitted to a higher class in another college within 12 months. The intention appears to be quite clear. If a student failing in the annual examination of one college gets transferred to a higher class in another college then he skips an examination, which is not permitted. But I see nothing inherently immoral 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'.
10. So far as the supplementary examination of the Santipur College is concerned, it does not appear to be a fact that it was held simply in order to qualify the petitioner for promotion. The holding of the examination was sanctioned by the Staff Council on 12th July 1956 and a number of students appeared in it. It is true that the petitioner got, 28 -marks in English, but I have failed to discover any rules whereby this would prevent a student from being promoted. The petitioner got very good marks in mathematics and fairly good marks in all science subject. Under such circumstances, it appears to be entirely discretionary for the principal or the appropriate college authorities to declare a student as successful, or not, and the vice-principal definitely swears that the petitioner was successful and had been promoted. In fact, the fact of his promotion was not challenged before me. What was argued is that the petitioner and his father, cleverly got round the prohibition contained in Clause 20. This, it is argued, is a fraud upon the statute.
11. The Expression. 'Fraud upon a Statute' is a very high sounding 'expression. If the letter of a statute permits a certain- course of action, it is difficult to describe it as a fraud upon the statute. If that course of action is no. longer desired, the statute should be changed. To permit an action and then to call it illegal, cannot be supported. In the present case, if the respondents had immediately objected to the admission of the petitioner, he could have done something about it; but it is neither fair nor just to have allowed him to continue attending classes for the whole year and then stop him while in the 'middle of his test examination. The learned Standing Counsel has not also been able to show me any rule whereby if a student has been lawfully admitted into the college by a principal, the Syndicate can refuse to 'approve' the admission. Subject to the rules and regulations, the matter of admission is a matter of discretion with the principal. On the other hand, this refusal to approve carries with it, serious consequences for the petitioner. He will not be allowed to sit in the University examination, although he has duly attended classes, paid his fees and passed his test examination. I must mention that the learned Standing Counsel relied on Clause 3 of the miscellaneous statutes etc. which rims as follows:
'Save as otherwise provided by this Act, the First Statutes, the First Ordinances, and the FirstRegulations and subject thereto the practice and procedure in the University shall continue in force until altered, repealed or amended.'
12. This carries us no farther, because thematter is covered by a regulation, repealed and,substituted by an. ordinance, and as such there isno question of practice and procedure involved.There is therefore no lawful foundation for theaction taken by the respondents. This rule musttherefore be made absolute. A writ in the natureof certiorari will issue quashing the directive contained in the letter of the Registrar dated 3rdDecember 1956 and the relative resolution of theSenate disapproving of the admission of the petitioner into the Santipur College and there will bea writ in the nature of mandamus directing therespondents not to give effect thereto, and notto prevent the petitioner from appearing in theUniversity examination if he is otherwise entitledto do so. I have not the slightest doubt that theUniversity authorities were impelled by the highestof motives, and there will be no order as to costs.This will not affect orders for costs already made.