JUDGMENT
Arun Tandon, J.
1. Heard learned Counsel for the parties.
2. These eight writ petitions raise common questions of facts and law and therefore, are being decided by means of this common judgment. Civil Misc. Writ Petition No. 13692 of 2007 (Nuzhat Sufaira v. Vice-Chancellor, Allahabad University and Ors.) is being treated to be the leading case and the facts recorded in this judgement are with reference to the same.
3. Parties have exchanged their affidavits and agree that the writ petition may be finally disposed of at this stage.
4. Petitioner Nuzhat Sufaira, was admitted to B.A. Three Years degree course of the Allahabad University in the year 2003-04 as a regular student. B.A. Part-I examination of the relevant academic year of the petitioner took place in the year 2004. Petitioner papered but failed in one of the subjects, namely, English. As per the Ordinances she appeared as Ex-student in the said subject in the examination of the year 2005. However, since the petitioner was caught using unfair-means, her examination was cancelled under the order of the University dated 10 th March, 2006. Petitioner thereafter obtained admission as an ex-student of the University in respect of academic session 2006-07. She deposited requisite fee on 13 th November, 2006 and made an application for change of the subject of English. Application was allowed and in place of subject English, she was permitted to appear in the changed subject ‘Persian Language. Petitioner deposited requisite examination form and fee with the University. The examinations in respect of the academic year 2006-07 were notified by the University to be held in the month of March, 2007 onwards. Petitioner was not issued an admit card. She therefore, filed her representation dated 8 th March, 2007 before the Controller of Examination. Allahabad University, Allahabad. On the representation so made, an endorsement has been made to the following effect:
B.A-1 o”kZ 2007 dh eq[; ijh{kk esa HkwriwoZ ijh{kk ds :Ik es izos’k fy;k gS fu;e ds vuqlkj ;g Nk=k 2007 esa ijh{kk esa ugh cSB ldrh gS A
5. Petitioner has therefore, filed this writ petition for being permitted to appear in the University examination of B.A. Part-1 of the year 2007 as an ex-student.
6. A counter affidavit as well as a supplementary counter affidavit has been filed on behalf of the Allahabad University.
7. In paragraph Nos. 3 and 4 of the supplementary affidavit, it has been stated that under Chapter XXXV of the Ordinances as per the Allahabad University Calender of the year 1987-88, a candidate who has failed once in a degree examination of University, or was prevented from appearing in the examination on the ground of illness and other causes, is entitled to be admitted, in the examination of the year subsequent without attending regular course of study (commonly known as ex-student), provided he fulfils other conditions. A period five years was provided for taking subsequent examinations following the year in which the candidate had failed for the first time.
8. In paragraph-6 of the counter affidavit it has been stated that the period five years was too long a period for permitting the failed students to appear in subsequent examinations of the University as an ex-student and in fact created a situation, wherein a student became entitled to continue as an student of the University at the under-graduate course itself for a period of 18 years (having regard to the fact that under graduate level is a three years decree course and six attempts were permissible under the said Ordinances.
9. The Examination Committee of the University, therefore, reviewed the matter and vide resolution No. 10 dated 5 th January, 2002 resolved that a student, who has failed in the University Examination can be permitted to appear as an ex-student for a maximum of two years, with a further condition that the candidate must pass three years degree in six years and two years degree in four years. A copy of the resolution of the Examination Committee dated 5 th January, 2002 has been enclosed as Annexure-CA3 to the Counter Affidavit. Thereafter the Examination Committee in its meeting dated 24 th October, 2002 vide Resolution No. 4 resolved to suggest necessary amendments in Clause 1 (ii) of the Ordinances governing readmission to University Examinations under Chapter XXXV of the calender of the year 1987-88 referred to above w.e.f. Academic session 2002-03. Similar amendments were also suggested vide Resolution No. 3 in respect of Clause-10 of Chapter XXVI.
10. This resolution of the Examination Committee was placed in the meeting of the Executive Council of the University dated 8 th March, 2003 and vide resolution Nos. 13.3 and 13.4 amendments proposed by the Examination Committee as per resolution Nos. 3 and 4 dated 24 th October, 2002, were approved and made part of the Ordinances, to be enforced from the Academic session 2002-03. Accordingly the resolution of the Examination Committee stood converted into amended Ordinances and have been suitably added in Chapter-XXXV and Chapter-XXVI A to the Ordinances of the University.
11. On the strength of the aforesaid amendments, it is stated that the petitioner, who has admittedly failed on more than two occasions, in B.A. Part-1 examination of the University has been refused permission to appear in examination of the year 2007 as an ex-student.
12. Similar are the facts in respect of other writ petitioners of connected petitions, except for the change of the subject in which the particular petitioner seeks a writ of mandamus for being permitted to appear as Ex-student. Defence taken in the connected petition by the University of Allahabad for refusing permission for appearance in the University examination of the year 2007 as an ex-student is also the same.
13. After the stand taken by the University was disclosed by way of counter affidavit, an amendment application has been filed by the petitioner for adding a formal prayer for quashing the Resolutions of the Examination Committee as well as resolutions of the Executive Council being Resolution Nos. 13.3 and 13.4 as per the meeting dated 8 th March, 2003.
14. Amendment application filed by the petitioner being formal in nature has been allowed by the Court today itself.
15. In rejoinder counsel for the petitioner submits that the amendments as suggested in the Ordinances of Chapter-XXVI A and Chapter-XXXV of the calender of the University as per the Resolution of the Executive Council dated 8 th March, 2003 are patently illegal and contrary to the provisions of Sections-25, Section 29 read with Section 52 of the State Universities Act, 1973 and therefore of legal consequence, liable to be ignored.
16. I have heard learned Counsel for the parties and have gone through the records of present writ petition.
17. It is admitted to the parties that the University of Allahabad alter being declared Central University has not framed any Ordinances on its own. Section 45 (2) of Act No. 26 of 2005 (Allahabad University Act, 2005) provides that the Ordinances as were existing on the date Act No. 26 of 2005 (Allahabad University Act, 2005) was enforced continue to be applicable in terms of Section 45 (2) of the Act of 2005 reads as follows.
Section- 45 (1) Notwithstanding anything contained in this Act and the Statutes,–
(2) Till such time as the first Ordinances are not made under Sub-section (2) of Section 29. in respect of the matters that are to be provided for by the Ordinances under this Act and Statutes the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Uttar Pradesh State Universities Act, 1973 shall be applicable insofar as they are not inconsistent with the provisions of this Act and Statutes.
18. Accordingly the ordinances enforce immediately before the establishment of the Central University continue to be applicable, so long as Fresh Ordinances are not framed by the Central University.
19. In view of the aforesaid, the contention raised on behalf of the parties have to be examined.
20. The basic issue up for consideration in the facts of the present case is as to whether the amendments as alleged to have been made in Chapter-XXVI A and Chapter-XXXV of the Ordinances of the University as per the calender of the year 1987-88 is in accordance with law and legally enforceable or not. It is not in dispute that it is only because of said amendments that the petitioners are being denied a right for appearing in the University examination of the year 2007 as an ex-student.
21. It is worthwhile to reproduce Clause-1 and 2 of Chapter-XXXV of the Ordinances of the Allahabad University as they stood prior to the amendments, read as follows:
CHAPTER XXXV
RE-ADMISSION TO UNIVERSITY
EXAMINATIONS.
Ordinances
1. Save as otherwise provided by the Ordinances elsewhere a candidate who has failed once in a University Examination or, having completed the required percentage of attendance for the examination, has been prevented from appearing by illness or other cause, may be admitted to a subsequent examination without attending the regular course of studies provided that:
(i) he remains a student of the University or of any of the Associated Colleges and further;
(ii) Provided that he takes the subsequent examination within five years following the year in which he failed last or failed to appear after completing attendance ;
22. Reference may also be had to Chapter-XXVI A which provided for appearance of the student in back-paper examination. Relevant portion Whereof as contained in Chapter-XXVIA of the calender of the University may be reproduced, reads as follows:
CHAPTER XXVI
REVISED ORDINANCES FOR THE SECOND IN THE FACULTIES OF ARTS, COMMERCE, LAW AND SCIENCE.
1(a) These Ordinances shall apply to the undergraduate and Postgraduate Degree Examinations, in the Faculties of Arts, M.Psy., HRDM, the M.Sc. Applied Geology, the M.Sc. Computer Science (Software) and the M.Tech., Electronic Engineering Examinations, with effect from the Main Examinations of 1997 or of any earlier year the declaration of the results of which had not taken place by November 9, 1996 except such of the latter for which the Second Examination was held on or before June 30, 1997.
(b) …
2. Subject to the provisions of Ordinance 1 (supra) and of the Ordinances appearing hereinafter, a candidate who, after fulfilling the conditions of eligibility for appearing at any of the Main Examinations listed in Ordinance 6 (initia), has:
(a) appeared wholly or partly for such Main Examination, but has failed thereat, or
(b) appeared for and passed such Main Examination, but is desirous of improving upon the marks secured thereat may be permitted to appear for the Second Examination in accordance with the provisions of the said Ordinance 6 in respect of the course of study concerned.
…
23. From the provisions of the aforesaid two Chapters it is apparently clear that a distinction has been maintained by the University itself in respect of subject matter of admission as an ex-student for appearance in the next year University examination vis-a-vis appearance in back-paper in the same year examination subsequent to failure in examination of a particular year. Since the dispute in the present writ petition is confined to readmission for appearing in University Examination as an ex-student in the subsequent academic year examination, the Court shall examine the issue raised with reference to such Ordinances applicable thereto only.
24. Resolution of the Examination Committee at Item No. 4 as per its meeting dated 24 th October, 2002 suggested amendments in the existing Ordinances qua admission as ex-students and proposed as quoted herein below:
bykgckn fo’ofo|ky;
fnukad 24-10-2007 dks lEiUu ijh{kk lfefr dk dk;Zo`Rr
LFkku ts0ds0 dkUQzsUl gky
Lak[;k% 6@2002
Lke;% 3-00 cts lk;adky
mifLFkr lnL;
—————————————————————————————————————————————–
lfefr us f}rh; ijh{kk ds v/;kns’kks d iquvZoyksdu ,oa lq/kkj gsrq xfBr lfefr dh laLrqfr ij fopkj fd;k vkSj fopkjksijur fu.kZ; fy;k fd f}rh; ijh{kk lacaf/kr v/;kns’kks esa fuEuor la’kks/ku fo}r ifj”kn dks vuqeksnu gsrq izsf”kr fd;k tk; A
—————————————————————————————————————————————–
4- lfefr us fo’ofo|ky; dSys.M+j ds v/;k; XXXV Readnission to University Examination ds v/;kns’k dks cSBd fnukad 5-1-2002 ds ladYi la[;k 10 ds vkyksd esa izLrqr la’kks/ku ij fopkj fd; vSkj fopkjksijkUr v/;kns’k 1ii dks fuEuor la’kksf/kr djus dh fo}r ifj”kn c dks laLrqfr dh A
provided that he takes the subsequent examination within two years following the year in which after completing attendance he failed last or failed to appear. He will however. be required to complete three/four years course in maximum period of six years and two years course in maximum period of four years.
This will come into force w.e.f. Session 2002-03.
25. Resolution of the Executive Council in respect of Item No. 13.4 relevant for our all purposes qua meeting No. 2 of 2003 held on 8 th March, 2003, whereby proposal of the Examination Committee dated 24 th October, 2002 is said to have been approved/accepted is being quoted herein below:
dk;Z ifj”kn dh cSBd dh dk;Zokgh dk dk;Zo`Rr%
la[;k% 02@2003
fnu] frfFk ,oa le; ‘kfuokj] fnukad 08 ekpZ]2003 iwokZUg 11-30 cts
—————————————————————————————————————–
13-4 dk;Z ifj”kn us fnukad 24-10-2002 dks lEiUu ijh{kk lfefr ladYi la[;k &4 ds vUrZxr ikfjr fuEufyf[kr izLrko ij fopkkj fd;k%
ijh{kk lfefr us viuh cSBd fnukad 24-10-2002 ds ladYi la[;k&4 ds varxZr fo’ofo|ky; dSysaMj es of.kZr v/;kns’k 34 fo’ofo|ky; dh ijh{kk es iqu% izos’k ds vkns’k 1ii ch ij viuh cSBd fnukad 05-01-2002 ds ladYi la[;k & 10 esa izLrqr la’kks/ku ds vkyksd es fopkj fd;k x;k vkSj fopkjksijkUr v/;kns’k 1ii dks l= 2002&03 ds izHkko ls fuEuor la’kks/ku djus dh fo}r ifj”kn ,oa dk;Z ifj”kn dks laLrqfr dh&
1- og ftl o”kZ esa mifLFkfr iwjk djds ijh{kk vuqRrh.kZ gks tkrk gS ;k ijh{kk essa ugh cSBrk] mlds ckn okyh ijh{kk es nks o”kksZ ds vUnj ‘kkfey gksrk gS ] rks v/;kns’k &1, ds izko/kku ds vuqlkj rFkk vkxs bl vis{kk ds v/khu l= 2002&2003 ls izHkkoh vFkkZr o”kZ 2003 dh ijh{kk fd mls lacaf/kr ikB~;dze mlds izos’k l= @ l= ds vkajfEHkd ukekadu ls rFkk lfgr &
(i) ;fn lEiw.kZ ikB~;dze dh vof/k rhu ;k pkj o”kksZ dh gks rks N% o”kksZ es] vFkok
(ii) ;fn lEiw.kZ ikB~;dze dh vfo/k nks o”kksZ dh gks rks pkj o”kksZ esa iwjk djuk gksxk A
—————————————————–
fopkjksijkUr fu.kZ; fy;k x;k fd mDr izLrko vuqeksfnr fd;k tk; A
26. From the aforesaid, it is established that the Executive Council has acted upon the recommendations of the Examination Committee and has resolved to amend the Ordinances accordingly, pertaining to the readmission to University Examination under Chapter-XXXV of the Calender of the University. It may be recorded that the learned Counsel for the University agrees that the Academic Council has neither examined the matter nor has recommended any such amendments.
27. The Court may now examine the legal provisions, which are relevant for the issue in hand.
28. Section-25 of the State Universities Act, 1973 provides for powers of the Academic Council. Section-25 so far as relevant for this petition reads as follows:
25. Academic Council…(1) The Academic Council shall be the principal academic body of the University and subject to the provisions of this Act, the Statutes and the Ordinances-
(a) …
(b) may advise the Executive Council on all academic matters including matters relating to examinations conducted by the University; and
(2) The Academic Council shall consist of the following members, namely–
(i) the Vice-Chancellor;
(ii) the Deans of all Faculties, if any;
(iii) all Heads of Departments of the University and where there is’ no department in a subject in the University, the seniormost teacher from affiliated colleges representing that subject on the Faculty concerned;
(iv) all Professors of the University who are not Heads of Departments;
(v) the Principals of constituent colleges and the Directors of Institutes, if any;
(vi) two Professors, from each constituent college, if any, by rotation in order of seniority to be determined in the manner prescribed;
(vii) three Principals of affiliated or associated colleges to be selected by rotation in the manner prescribed;
(viii) fifteen teachers to be selected in the manner prescribed;
(ix) the Dean of Students Welfare ;
(x) the Librarian of the University : and
(xi) five persons of academic eminence to be co-opted in the manner prescribed:
…
29. Section 29 of the State Universities Act lays down the constitution of the Examination Committee to be as may be provided for in the Ordinances, its functions have been provided for under Sub-section (2). Section 29 (1) and (2) relevant for our ail purposes read as follows:
29. Examinations Committee.–(1) There shall be an Examinations Committee in the University, the constitution of which shall be as may be provided for in the Ordinances.
(2) Except as provided in Sub-section (2) of Section 42, the Committee shall supervise generally all examinations of the University, including moderation and tabulation, and preform the following other functions, namely,–
(a) to appoint examiners and moderators and, if necessary, to remove them;
(b) to review from time to time the results of the University examinations and submission of reports thereon to the Academic Council;
(c) to make recommendations to the Academic Council for the improvement of the examination system;
(d) to scrutinise the list of examiners proposed by the Board of Studies, finalise the same and declare me result of the University.
30. From the aforesaid statutory provisions, it may be noticed that while constitution of the Academic Council has been provided under the Act itself including the persons who are to be co-opted therein the Academic Council Has been conferred a power to advise the Executive Council in respect of academic matters including the matters relating to examinations. The Examination Committee on the contrary has to be constituted as per the Ordinances, which is a subordinate piece of legislation, its primary job is to appoint examiners, moderators etc. and to review the results of the University examinations. So far as the improvement of the examination system is concerned, the Examination Committee has been conferred a power to make recommendations to the Academic Council only.
31. Distinction between the constitution of the Academic Council and Examination Committee are apparent on bare reading of the aforesaid two provisions. Under Section 25 (1) (b) of the State Act, it is the Academic Council alone which can advise the Executive Council in respect of matters relating to examination conducted by the University. The Examination Committee on the contrary can only make its recommendations to the Academic Council for improvement of the examination system, it logically follows that the Examination Committee on its own has no competence to advise the Executive Council in any matter except through the Academic Council.
32. At this stage reference may also be had to Section-52 of the State Universities Act, which lays down the procedure for making of the Ordinances and amendments thereto etc. Section 52 (1) and (3), which are relevant four our all purposes maybe quoted herein below:
52. Ordinance how made.–(1) The first Ordinances of each existing University shall be the Ordinances as in force immediately before the commencement of this Act insofar as they are not inconsistent with the provisions of this Act:
(3) Save as otherwise provided in this section, the Executive Council may, from time to time, make new or additional Ordinances or may amend or repeal the Ordinances referred to in Sub-sections (1) and (2):
Provided that no Ordinance shall be made–
(a) affecting the admission of students. or prescribing examinations to be recognised as equivalent to the University examinations or the further qualifications mentioned in Sub-section (1) of Section 45 for admission to the degree courses of the University, unless a draft of the same has been proposed by the Academic Council; or
(b) effecting the conditions and mode of appointment and duties of examiners and the conduct or standard of examinations or any course of study except in accordance with a proposal of the Faculty or faculties concerned and unless a draft of such Ordinance has been proposed by the Academic Council: or
(c) effecting the number, qualifications and emoluments of teachers of the University or the income or expenditure of the University, unless a draft of the same has been approved by the State Government.
(4). The Executive Council shall not have power to amend any draft proposed by the Academic Council under Sub-section (3) but may reject it or return to the Academic Council for reconsideration either in whole or in part together with any amendments which the Executive Council may suggest.
33. From Sub-section (3) of Section 52 it is apparently clear that the Existing first Ordinances of the University can be amended, repealed or new Ordinances made by the Executive Council subject to the rider under subsection 3 (a) (b) to the effect that qua the admission and University examinations, no amendments in the Ordinances can be affected unless a draft of amendments is proposed by the Academic Council.
34. From the scheme of the State Universities Act, as noticed herein above, it may be safely recorded that Examination Committee on its own has no competence to recommend any amendment in the existing Ordinances relating to admission/conduct of the examinations of the University. The Examination Committee can at best make recommendation to the Academic Council for its consideration in the existing examination system. It is only the Academic Council, which has power to advise the Executive Council in respect of admission as well as examination of the University. Proviso (a) and (b) to Sub-section (3) of Section 52 leave no room to doubt that no amendment in the existing Ordinances can be made pertaining to the admission/conduct of the examination of the University, unless a draft of the same has been proposed by the Academic Council. Reasons for the same are also obvious, inasmuch as the Academic Council of the University consists of Vice-chancellor, Deans of all Faculties, all Heads of Departments of the University and where there is no department in a subject in the University, the seniormost teacher representing that subject on the Faculty concerned, Professors of the University who are not Heads of Departments, Principals of constituent colleges and the Directors of Institutes, two Professors, from each constituent college, if any, by rotation in order of seniority to be determined in the manner prescribed, three Principals of affiliated or associated colleges to be selected by rotation in the manner prescribed, fifteen teachers to be selected in the manner prescribed, Dean of Students Welfare, etc. etc. It may be recorded that the Academic Council is the largest body consisting of experts in the field of education. The State Legislature in its wisdom has therefore, conferred a power upon the Academic Council only to submit a draft for any amendments to be made in the Ordinances affecting admission and University examinations. The Examination Committee cannot suggest any amendments in the existing Ordinances under the Act and therefore, Executive Council could not have acted upon the resolution of the Examination Committee dated 24 th October, 2002 and the resolution of the Executive Council in respect of Item No. 13.4 is patently illegal and inoperative in eyes of law.
35. At this stage it may also be recorded that the learned Counsel for the University has fairly stated that the first Ordinances as well as existing Ordinances as contained in Chapter-XXXV pertaining to readmission to the University Examination of the Calender of the University had been framed by the Academic Council, inasmuch as according to the learned Counsel for the ; University the Examination Committee has been constituted for the first time ; under the provisions of State Universities Act, 1973 and prior to it there was no Examination Committee in-existence. It necessarily follows that the Ordinances as contained in Chapter-XXXV of the calender of the University of the year 1987-88, were framed by the Executive Council in response to a draft submitted by the Academic Council alone, and for this reasons also any amendment in the Ordinances so framed under a draft of the Academic Council could have been amended under a draft proposed by the Academic Council only.
36. The importance, which has been attached to the decision of the Academic Council, which is to be inform of a draft, submitted to the Executive Council is further apparent from Section 52, Sub-section (4), which lays down that the Executive Council shall have no power to amend the draft of the Academic Council. The Executive Council has to reject it as a whole or return the same to the Academic Council for reconsideration either in whole or in part together with any amendments which the Executive Council may suggest. Meaning thereby that the Ordinances in respect of subject matters, which are required to be proposed in form of draft by the Academic Council cannot be altered or amended by the Executive Council in any manner, it can refuse to accept the draft, but no amendment in the same can be made by the Executive Council, it can only suggest amendments to the Academic Council.
37. From paragraph-15 of counter affidavit filed on behalf of respondent No. 3 read with minutes of the meeting of the Committee constituted by the Vice-Chancellor dated 23 rd February, 2007 (Annexure-7 to the counter affidavit), it is clear that the amended provisions as per the decision of the Executive Council dated 8 th March, 2003, were directed to be enforced strictly only from the examination of 2007 onwards. This also signifies that prior to 2007 examinations, the University was not acting upon the amendments as per the resolution of the Executive Council dated 8 th March, 2003.
38. In this legal background there being no draft submitted by the Academic Council suggesting any amendments in the existing Ordinances pertaining to readmission to the University examinations, the resolution of the Executive Council being Resolution No. 13.4 of the meeting dated 8 th March, 2003, is not in conformity with Section 52 (3) of the State Universities Act, and therefore, inoperative in. the eyes of law. This resolution of the Executive Council being Resolution No. 13.4 of the meeting dated 8 th March, 2003 is declared honest. Accordingly it is held that the Ordinances as applicable prior to the’ resolution of the Executive Council dated 8 th March, 2003 as per the calender of the University of the year 1987-88 will continue to hold the field and are binding upon the University Authorities.
39. The Allahabad University is not justified in refusing permission to the petitioners for appearing in the University Examinations of the year 2007 as ex-students based on the Resolution No. 13.4 dated 8 th March, 2003.
40. All the writ petitions are allowed. The University is directed to ensure that the petitioners of all the writ petitions are permitted to appear in the University examination of the year 2007 as ex-students. In case the University examinations of the year 2007 have already been held, the University shall ensure that all the petitioners along with other similar situate students are permitted to appear in the back-paper examinations of the University of the year 2007 in their respective subjects treating them to be ex-students.
