Allahabad High Court
Sri J.S.S.S. Mahavidyalaya And 67 Oths. vs State Of U.P. And 3 Others on 21 December, 2016
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 33 Case :- WRIT - C No. - 12506 of 2016 Petitioner :- Sri J.S.S.S. Mahavidyalaya And 67 Oths. Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vijay Kumar Singh,Ramesh Chandra Tiwari Counsel for Respondent :- C.S.C.,Vivek Verma Hon'ble Ashwani Kumar Mishra,J.
1. Cluster of colleges affiliated to Dr. Bhim Rao Ambedkar University, Agra, (hereinafter referred to as the 'University') have filed instant writ petition, questioning jurisdiction of the University to enhance examination fee, with retrospective effect. The challenge is also laid to such enhancement, on the ground that it is discriminatory, inasmuch as a higher rate is prescribed from the students of self-financed colleges vis-a-vis aided colleges, for which there exists no justification. It is stated that the decision taken by University is violative of Article 14 of the Constitution of India, and is liable to be quashed.
2. Records reveal that Finance Committee of the University resolved in its meeting dated 9.12.2011 to increase the examination fee for graduate and post graduate examinations conducted by the University. A recommendation was made in that regard to the Executive Council proposing enhancement of examination fee in respect of government and aided colleges to Rs.1,000/-, where there is no practical examination, and Rs.1,200/- where practical examinations are to be held as per the course. In respect of self-financed colleges, the decision taken is to enhance the amount to Rs.1,500/- where there is no practical examination, and Rs.1,700/- where practical examinations are also to be held. The Executive Council met on 13.12.2011, and resolved to approve the recommendation of Finance Committee, a step towards making of statutory ordinance. The University thereafter waited for about five years before seeking approval of State Government, vide its communication dated 6.9.2016. The State Government granted approval to the decision taken by Executive Council in its meeting dated 21.12.2011 under sub-section 3(c) of Section 52 of the U.P. State Universities Act, 1973 (hereinafter referred to as the 'Act'), vide its letter dated 17th October, 2016. An emergent meeting thereafter was convened of the Executive Council on 26.11.2016. The Executive Council was apprised that decision to enhance examination fee was also enforced w.e.f. academic session 2011-2012. However, as the Executive Council is required to indicate the date, from which the ordinance shall have effect, therefore, the draft ordinance dated 13.12.2011 having been approved by the State Government on 17.10.2016 shall be enforced w.e.f. 13.12.2011. It is this decision, which is assailed in the writ petition.
3. It may also be noticed that the writ petition, as it was initially instituted on 19th March, 2016, challenged communication of Finance Officer dated 18.6.2011, as well as approval of Executive Council dated 9.6.2011, requiring enhanced examination fee w.e.f. academic session 2011-2012. It is during the pendency of writ petition that the University has sought approval from the State Government, received the approval, and held the emergent meeting dated 26.11.2016. It is by way of amendment that the subsequent actions have been challenged. Petitioners contend that ordinances being in the nature of delegated legislation can have no retrospective application. The legislature has not conferred power to frame ordinance with retrospective effect, and in its absence, retrospective effect cannot be given to a delegated legislation. It is contended that in the facts and circumstances, the action taken by the University is otherwise arbitrary, and is contrary to law.
4. The respondent University, on the other hand, contends that power exists with Executive Council to frame ordinances, and once it is granted approval by the State, the approval relates back to the decision taken by the Executive Council. It is also stated that by virtue of Section 52(5), the Executive Council has power to direct as to from which date, such ordinances shall have effect, and accordingly, it has been enforced w.e.f. 13.12.2011. It is also contended that ordinance is not a delegated legislation, and under the statutory scheme, the Executive Council is well within its jurisdiction to implement decision of enhancement of fee from a retrospective date.
5. Before proceeding further, it would be appropriate to notice relevant provisions contained in the Act of 1973, which deals with the matter in issue. Section 3 of the Act provides for incorporation of Universities, which shall constitute a body corporate by the name of that University. Section 7 of the Act provides for powers and duties of the University. Sub-section 14 of Section 7 confers power upon the University to demand and receive such fees and charges, as may be fixed by the ordinances. Sub-section 14 of Section 7 of the Act is extracted hereinafter:-
"7. Powers and duties of the University.- The University shall have the following powers and duties, namely-
(14) to demand and receive such fees and other charges as may be fixed by the Ordinances:"
Section 19 of the Act defines authorities of the University. Sub-clause (a) thereof provides the Executive Council to be an authority of University in following words:-
"19. Authorities of the University.- The following shall be the authorities of the University-
(a) the Executive Council;"
Section 20 of the Act lays down the constitution of the Executive Council, whereas Section 21 contemplates its powers and duties. Section 21 (1) (iii) of the Act is reproduced:-
"21. Powers and duties of Executive Council.- (1) The Executive Council shall be the principal executive body of the University, and subject to the provisions of this Act, have the following powers, namely-
(iii) to make, amend or repeal Statutes and Ordinances;"
Being the principal executive body of the University and subject to provisions of the Act, the Executive Council has the power to make, amend or repeal statutes and ordinances. Section 51 of the Act of 1973 provides for ordinances. Relevant part thereof is extracted below:-
"51. Ordinances.- (1) Subject to the provisions of this Act and the Statutes the Ordinances may provide for any matter which by this Act or the Statutes is to be or may be provided for by the Ordinances.
(2) Without prejudice to the generality of the provisions of sub-section (1), the Ordinance shall provide for the following matters, namely-
(a).....................................
(j) the fees which may be charged by the University or by an affiliated or associated college for any purpose;
(o) all other matters which by this Act or the Statutes are to be or may be provided for by the Ordinances."
Section 52 of the Act embodies the procedure, according to which ordinances are to be framed. Section 52 of the Act is reproduced:-
"52. Ordinance how made.- (1) The first Ordinances of each existing University shall be the Ordinances as in force immediately;y before the commencement of this Act in so far as they are not inconsistent with the provisions of this Act:
Provided that for the purpose of bringing the provisions of anysuch Ordinances into accord with the provisions of this Act and the Statutes, the Chancellor may by order make such adaptations and ,modifications of the Ordinances whether by way of repeal, amendment or addition as may be necessary or expedient and, provide that the Ordinances shall as from such date as may be specified in the order have effect subject to the adaptations and modification so made by any such adaptation or modification shall not be called in question.
(2) The First Ordinances of the Universities of Kumaun and Garhwal and of any other University to be established after the commencement of this Act shall be made by the State Government by notification in the Gazette.
(2-A) ......
(2-B) ......
(2-C) ......
(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 recognized as equivalent to the University examinations or the further qualifications mentioned in sub- section (1) of Section 45 for admission to the degree curses 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 of any course of study except in accordance with a proposal of the Faculty or Faculties concerned and unless a draft of such Ordinances has been proposed by the Academic council;
(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 part together with any amendments which the Executive Council may suggest.
(5) All Ordinances made by the Executive council shall have effect from such date as it may direct and shall be submitted as soon as may be to the Chancellor.
(6) The Chancellor may, at any time signify to the Executive Council his disallowance of such Ordinances other than those referred to in clause Scheme of Administration (c) of the proviso to sub-section (3) and from the date of receipt by the Executive Council of intimation of such disallowance, such Ordinance shall become void.
(7) The Chancellor may direct that the operation of any Ordinance other than those referred to in clause Scheme of Administration (c) of the proviso to sub-section (3) shall be suspended until he has an opportunity of exercising his power of disallowance. An order of suspension under this sub-section shall cease to have effect on the expiration of one month from the date of such order."
6. A Division Bench of this Court in Special Appeal No.5 of 2015 (M.J.P. Rohilkhand University Vs. Self Financed Colleges Welfare Association), decided on 3.8.2015, had examined the imposition of fee by the University, as well as the manner in which it could be charged. It was held that fee could be imposed by the University incorporated under the Act of 1973, only by framing an ordinance. Relevant observations made by Division Bench in that regard reads as under:-
"In the present case, the Development fee which is being charged from the students of self financed institutions clearly does not fulfill the description of a fee of an examiner under clause (viii) of Section 21 (1). While undoubtedly the Executive Council has the power to regulate and determine all other matters concerning the University and its constituent and affiliated colleges, this power has to be exercised in accordance with the provisions of the Act, Statutes and Ordinances. Under Section 51 (1) subject to the provisions of the Act and the Statutes, the Ordinances may provide for any matter which by the Act or the Statutes is to be or may be provided for by the Ordinances. Without prejudice to the generality of that power in sub-section (1), clauses (a) to (o) to sub-section (2) of Section 51 provide for the matters in respect of which Ordinances can be framed. Clause (j) to sub-section (2) of Section 51 covers the fees which may be charged by the University or by an affiliated or associated college for any purpose. Hence, fees which can be charged by the University or, for that matter, by affiliated or associated colleges have to be regulated by Ordinances under Section 51 (2) (j). The proviso to sub-section (3) of Section 52 stipulates that no Ordinance can be made effecting the income or expenditure of the University, unless a draft thereof has been approved by the State Government. A draft Ordinance proposing to enhance the fees of the University would therefore require the approval of the State Government before the Ordinance is made effective. Admittedly no Ordinance has been made for the levy of a Development fee. Hence, having adverted to the legal position which was expounded by the learned Single Judge, we see no reason to differ with the view which has been taken."
7. Sri G.K. Singh, learned Senior Counsel for the petitioners, contends that as per the statutory scheme, the Executive Council can propose an ordinance, to be in the nature of draft, based upon the recommendation of Finance Committee, and send it for approval to the State Government. Once the draft is approved by the State Government, the ordinance itself comes into being, and thereafter the Executive Council shall specify a date, from which it shall have effect. Learned Senior Counsel contends that Executive Council exercises delegated authority, while framing ordinances, which is a legislative function. It is contended that the Act has not conferred power of making ordinance retrospectively, and in view of the law settled, it is not permissible for the University to retrospectively implement such decision. It is stated that in case the impugned action is allowed to stand, it would occasion failure of justice, since students from the session 2011-2012 onwards have mostly passed and left, and it would be impossible for the colleges to collect such amount from them.
8. Sri Gajendra Pratap, learned Senior Counsel assisted by Sri Vivek Verma for the respondents, submits with conviction that University is a peculiar institution, in which power to frame ordinances vests in the Executive Council, and the Act merely recognizes this existing authority. It is contended that the ordinances are not a piece of delegated legislation, and as such, the prohibition curtailing retrospectivity in the context of a delegated legislation, in absence of express enabling provision, would have no applicability. It is stated that sub-section (5) of Section 52 permits the Executive Council to specify date, from which ordinance shall be effective. It is argued that once approval has been received from the State Government, it would relate back to the date of framing of the ordinances.
9. Learned counsels for the parties on the aforesaid questions have placed reliance upon certain judgments, which may conveniently be referred to, at this stage. Sri Gajendra Pratap has relied upon a judgment in Vice Chancellor, Utkal University Vs. S.K. Ghosh, reported in 1954 AIR (SC) 217, wherein the nature of University came to be examined by the Apex Court, in following words in para-16:-
"16. The reason for the stricter rule laid down in the cases cited before us is that though an incorporated body like an University is a legal entity it has neither living mind nor voice. It can only express its will in formal way by a formal resolution and. so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution. If its rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given notice so that he can attend and express his views. Individual assents given separately cannot be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed.
Hence, an omission to give proper notice even to a single member in these circumstances would invalidate the meeting and that in turn would invalidate resolutions which purport to have been passed at it. But this is only when such inflexible rigidity is imposed by the incorporating constitution.
The position is different when, either by custom or by the nature of the body or by its constitution and rules, greater latitude and flexibility are permissible. Each case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same body certain things, such as routine matters, can be disposed of more easily and with less formality than others. It all depends on the nature of the body and its rules."
10. Reliance is further placed upon a judgment of this Court in Gyanandra Vir Singh Vs. Vice Chancellor, University of Allahabad and others, reported in 1963 AIR (Allahabad) 596. Para-16 of the decision, which deals with powers of Executive Council of making ordinance and specifying date of its commencement, is relied upon, which reads as under:-
"16. The functions of the Executive Council have been described in Section 20 of the Allahabad University Act. The Executive Council shall be the executive body of the University. It will be noticed that the Executive Council is essentially an executive body. It is not a legislative body. Yet Section 33 of the Ad has conferred on the Executive Council the power to frame Ordinances. The function of the Executive Council under Sub-section (1) of Section 33 is legislative- in character. Sub-section (3) of Section 33 lays down that having made an Ordinance under Sub-section (1) of Section 33, the Executive Council has also to give a direction about the date of commencement of the Ordinance. Both the elements of delegated legislation and conditional legislation are involved in the plan of framing Ordinances under Section 33 of the Act. Although the function of the Executive Council under Sub-section (1) is legislative in character, it does not follow that the mere act of fixing a date for commencement of an Ordinance is also legislative in character. It is the general practice of legislatures to authorise some executive authority to fix a date for the commencement of an Act, The provision of Sub-section (3) of Section 33 is of that character. We have seen that the Executive Council is essentially an executive body. There shoud, therefore, be no difficulty in treating the fixation of date under Sub-section (3) of Section 33 as an administrative act by an authority, which is essentially an executive body."
11. Reliance is also placed upon a judgment in Ram Bilas Vs. University of Allahabad and another, reported in 1982 UPLBEC 469, wherein following observations have been made in paras-7, 8 and 9:-
"7. Having heard learned counsel for the parties at some length we find no merit in the above argument. In the first place we find no warrant for holding that there is any kind of vested right in regard to the right to apply for revaluation in the sense that is accrues from the date of the examination. If, however, there is a provision for applying for revaluation, the occasion for exercising that privilege or right arises earliest only upon the declaration of the results of the examination. In the second place assuming that the privilege to apply for revaluation is some kind of right in a broader sense, in our opinion, the norms or the standards or the method of revaluation and redetermination of the results can by no means be regarded as matters relating to a substantive right. These are matters pertaining to procedure and the power to make Ordinances in respect thereto can be found in section 51(2)(c) of the U.P. State Universities Act. The University has not, in regard to the examinations in question taken away right to apply for revaluation altogether. It has merely altered by the Ordinances enacted on 6-5-1980, the methodology for determining the results upon revaluation.
8. Thus, in either view of the matter, the submission that some kind of substantive rights of the petitioners have been affected by the change in the Ordinances has to be rejected.
9. Further more, under Section 52(5) of the aforesaid Act, the Executive Council has been expressly invested with the power to determine the date with effect from which the Ordinance made by it shall have effect. Sub-section (5) of section 52 reads thus:-
"All Ordinances made by the Executive Council shall have effect from such date as it may direct and shall be submitted as soon as may be to the Chancellor."
The submission, therefore, that the Executive Council had no power to give the Regulations retrospective effect cannot be accepted. Still further, as would be found from the facts mentioned below in most of the petitions the results of the examinations themselves were announced after 6-5-1980 and as therefore, mentioned above, the occasion to apply for revaluation arose only thereafter. At that time admittedly the new Ordinances had come into existence. In one case- that of Gopalji Shukla, the examination itself was held after 6-5-1980."
12. The respondents have further placed reliance upon a judgment of the Apex Court in Graphite India Ltd. and another Vs. Durgapur Projects Ltd. and others, reported in 1999 (7) SCC 645. Relevant portion of paras-17 and 18 of the judgment reads as under:-
"17. ........ This Court then said "nevertheless, once the approval is given, all the previous acts done or actions taken in anticipation of the approval get validated and the publications made under the Act thereby become valid".
18. It would thus appear that in the present case when approval was granted by the State Government by its letter dated April 27, 1992 the approval relates back and the revision would be effective from April 8, 1991. ......."
13. On the other hand, reliance is placed by the petitioners upon a Division Bench judgment of this Court in Brij Bhushan Singh Vs. Regional Higher Education Officer, reported in 2005(5) AWC 5121, to contend that making of ordinance is a legislative act. Relevant portion of para-12 of the report is extracted herewith:-
"12. ....The statute of particular Universities including that of the Gorakhpur University, which is before us, is framed under Section 49 read with Section 50 of the U.P. State Universities Act, 1973. These statues are in the nature of subordinate legislation. In our opinion, when subordinate legislation falls to be construed, such construction is to be based on a" whole reading of the subordinate legislation itself. If the subordinate legislation is in conflict with the superior legislation under which it has been framed, then and in that event, the superior legislation shall prevail. ......"
14. Petitioners have also placed reliance upon the judgments of the Apex Court in Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh, reported in 2007(5) SCC 77; Mahabir Vegetable Oils (P) Ltd. and another Vs. State of Haryana and others, reported in 2006 (3) SCC 620; and State of Rajasthan and Others Vs. Basant Agrotech (India) Limited, reported in 2013 (15) SCC 1.
15. In light of the submissions made, following questions arise for consideration in the present writ petition:-
(i) What is the nature of ordinance framed under the Act of 1973 ? Is it in the nature of subordinate legislation, or making of ordinance is an exercise of inherent power vested in the Executive Council?
(ii) Whether the Executive Council can direct commencement of ordinance from a date prior to making of the ordinance itself?
(iii) Whether the University is justified in prescribing different structure of examination fee for students of same course, depending upon the nature of institution i.e. government and privately aided colleges vis-a-vis self-financed colleges?
Question No.(i):-
16. It is in the context of provisions of law, noticed above, that the controversy needs to be resolved. The University can demand and receive fee and other charges, as are fixed by the ordinances. Section 52 provides the manner of making ordinances. By virtue of sub-section (1), the first ordinances of each existing University is retained to the extent that they are not inconsistent with the provisions of 1973 Act. The respondent Agra University was established under the Agra University Act, 1926 (U.P. Act No. VIII of 1926), which stood repealed, by virtue of Section 74 of the Act of 1973. The Court is informed that ordinances had been framed earlier under the Act of 1926, but it provided for a much lesser amount payable as examination fee. It is alleged that University is not receiving any financial support from the government, and considering the peculiar financial status, it was found imperative to enhance examination fee. For such purposes, powers conferred under sub-section 3 of Section 52 has been invoked. Sub-section (3) empowers the Executive Council to make new or additional ordinances, or amend or repeal the existing ordinances protected under sub-section (1) of Section 52 of the Act of 1973. However, no ordinance affecting income or expenditure of the University can be made, unless a draft of same has been approved by the State Government. It is thereafter that sub-section (5) of Section 52 comes into being, and the ordinances made shall have effect from such date, as it may direct and shall be submitted as soon as may be to the Chancellor.
17. The provisions and scheme of the Act would be a safe guide in determining as to whether the ordinances framed by the University are a piece of delegated legislation, or they are made by the Executive Council, exercising its inherent powers, as suggested by respondent University. The Act of 1973 is enacted by the State Legislature exercising its jurisdiction to enact laws regarding Universities in the State, by virtue of Entry 25 of concurrent list. Broad framework relating to incorporation, regulation and management of University is provided in the Act itself. Various authorities have also been created under the Act, and their functions and powers are also laid. Many aspects relating to actual functioning of University is left by the legislature to be filled by way of statutes and ordinances etc. This apparently is done by the legislature with the object of delegating its authority in favour of bodies specified, to work out details within the legislature policy outlined in the Act. This is an accepted facet of exercise of legislative power. Being the highest authority of the University, which consists of persons from field of academia, the legislature had thought it proper to delegate specified issues to be provided by way of ordinance by the Executive Council, and once such power is exercised by it, it remains in the nature of delegated legislation. The Division Bench in Brij Bhushan Singh (supra) has also observed that making of statutes is in the nature of subordinate legislation. Apex Court in St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education, reported in 2003 (3) SCC 321, in Paras-10 and 10-A, has been pleased to elaborate it in following words:-
"10. A Regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and Regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming in to force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power conferred by the Statute are supporting legislation and have the force and affect, if validly made, as the Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram AIR 1975 SC 1331.
10-A. It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (Eighth Edition 2000 at page 839) :
"Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation. .....""
18. It is not disputed before this Court by the respondents that framing of statutes falls in the realm of delegated legislation. What is questioned, is the framing of ordinance. Section 51 provides for ordinances and Section 52 contemplates the manner of its making. Sub-section 2 of Section 51 permits the State Government to frame first ordinances for the University of Kumaon and Garhwal and of any other University that may be established, after commencement of the Act. Although sub-section 2 has no direct applicability in the facts of the present case, but it has relevance for the purposes of determining the nature of ordinance itself. The legislature has delegated its function upon the State Government to make ordinances, which are to be notified in the gazette. The language employed in sub-section 2 is a clear expression of legislature's intent to delegate its authority of making ordinance upon the subjects specified. The fact that such ordinance is required to be notified is also indicative that exercise of power is essentially legislative in character. This Court in Gyanandra Vir Singh (supra) has noticed the composition of Executive Council, as essentially being an executive body. However, when this executive body frames ordinances, it is held to be exercising a function, which is legislative in character. The position is further clarified that only such existing ordinances shall continue in so far as it is not inconsistent with the Act. It is, therefore, clear that after enactment of 1973 Act, the ordinances are to continue, only to the extent that it is in-conformity with the scheme of 1973 Act. The jurisdiction to make new or additional ordinances, or amend or repeal the ordinances referred to in sub-sections (1) and (2) is clearly indicative that ordinances have to be as per the scheme of the Act itself, and are to be made in the manner specified. The legislature while conferring authority upon the Executive Council to make ordinances has expressly provided that ordinances, which relate to income or expenditure of the University cannot be made, unless a draft of it has been approved by the State Government. The extent and manner of exercise of power to make ordinance has been circumscribed, and jurisdiction of the Executive Council is made subject to approval by the State Government. In such scheme, it would be difficult to countenance argument of Sri Gajendra Pratap that the Executive Council exercises its inherent powers while making ordinance, and that its making is not a legislature function. It would be appropriate at this stage to observe that legislature while delegating its function has not conferred any provision, which may suggest, even remotely, that the delegate is conferred power to make ordinance with retrospective effect.
19. The judgment of Apex Court in Mahabir Vegetable Oils (P) Ltd. (supra), holding that it is a fundamental rule of law that no statute shall be construed to have a retrospective operation, unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication has been consistently followed. Paragraphs 41 and 42 of the judgment is reproduced:-
"41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof.
42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (See West v. Gwynne)."
Relying upon the judgment in Mahabir Vegetable Oils (P) Ltd. (supra), the Apex Court in Vice Chancellor, M.D. University (supra) held as under in Paragraph 21:-
"21. The Act does not confer any power on the Executive Council to make a regulation with retrospective effect. The purported regulations, thus, could not have been given retrospective effect or retro-active operation as it is now well-settled that in absence of any provision contained in the legislative Act, a delegatee cannot make a delegated legislation with retrospective effect."
20. So far as judgment in Graphite India Ltd.(supra) relied upon by the respondents is concerned, it would be appropriate to notice that reliance was placed therein upon a previous decision of the Apex Court in U.P. Avas Evam Vikas Parishad Vs. Friends Coop. Housing Society Ltd., reported in 1995 Supp. (3) SCC 456, which related to exercise of power under the U.P. Avas Evam Vikas Parishad Adhiniyam. While considering the question of approval by the State Government, the Apex Court considered the scheme of the Act to hold that prior approval was not a pre-condition for further steps, and therefore, once the approval is granted, it would relate back to the decision already taken. It was in that context that the Apex Court held that in case approval is there, all previous act or action taken in anticipation of approval get validated, and the publication made under the Act thereby become valid. The Hon'ble Apex Court was otherwise concerned with the performance of function under an agreement, in which approval was not to be a pre-condition under the scheme. The facts, therefore, are quiet distinct and the ratio laid therein would have no applicability here.
21. The Division Bench judgment of this Court in Ram Bilas (supra), which has been heavily relied upon by Sri Gajendra Pratap needs to be dealt with, at this stage. The Division Bench in Ram Bilas (supra) was dealing with amendment introduced in regulations framed under the Act, which was found to be procedural in nature. The Division Bench held that the ordinances had come into existence on 6.5.1980, whereas results were declared thereafter. The change effected was regarding method of revaluation to be allowed by the University, which was procedural, and had not effected any substantive right. Law is settled that a legislation, which is procedural in nature can be retrospective, and therefore, the Division Bench was right in holding that the ordinance could be framed from a previous date. The law in that regard stands reiterated in a recent decision of the Apex Court in District Collector, Vellore District Vs. K. Govindaraj, reported in 2016 (4) SCC 763. Para-13 of the report is reproduced:-
"13. As mentioned above, though the legislature has plenary powers of legislation within the fields assigned to it and can legislate prospectively or retrospectively, the general rule is that in the absence of the enactment specifically mentioning that the legislation or legislative amendment concerned is retrospectively made, the same is to be treated as prospective in nature. It would be more so when the statute is dealing with substantive rights. No doubt, in contrast to statute dealing with substantive rights, wherever a statute deals with merely a matter of procedure, such a statute/amendment in the statute is presumed to be retrospective unless such a construction is textually inadmissible. At the same time, it is to be borne in mind that a particular provision in a procedural statute may be substantive in nature and such a provision cannot be given retrospective effect. To put it otherwise, the classification of a statute, either substantive or procedural, does not necessarily determine whether it may have a retrospective operation. In Maxwell v. Murphy, Dixon, C.J. formulated the aforesaid procedure in the following words:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption."
In Maxwell on the Interpretation of Statutes, 12th Edn. the statement of law in this regard is stated thus:
"Perhaps no rule of construction is more firmly established than thus - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, "involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. "
In Francis Bennion's Statutory Interpretation, 2nd Edn, the statement of law is stated as follows :
"The essential idea of legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law."
In Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 the SC observed as thus : (Para 25 of AIR) "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."
In Smt. Dayawati v. Inderjit (AIR 1966 SC 1423, in Para 10, it is held thus :
"Now as a general proposition, it, may be admitted that ordinarily a Court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Coke whose maxim - a new law ought to be prospective, not retrospective in its operation - is off-quoted, Courts have looked with dis-favour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance."
In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : (1994 AIR SCW 3699 : AIR 1994 SC 2623 : 1995 Cri LJ 517) Apex Court laid down the ambit and scope of an amending Act and its retrospective operation as follows :
"(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished:
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in Operation unless otherwise provided, either expressly or by necessary implication."
In K. S. Paripoornan v. State of Kerala (1994) 5 SCC 593 @ p. 636 : (1995 AIR SCW 1004 : AIR 1995 SC 1012), Apex Court while considering the effect of amendment in the Land Acquisition Act in pending proceedings held thus in Para 47 thereof as:
''''...In the instant case we are concerned with the application of the provisions of Sub-sec. (1-A) of S.23 as introduced by the Amending Act to acquisition proceedings which were pending on the date of commencement of the Amending Act. In relation to pending proceedings, the approach of the Courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the fiction was commenced and this is so whether the law is change before the hearing of the case at the first instance or while an appeal is pending ( Halsbury's Laws if England, 4th Edn. Vol. 44, para 922)."
In the case of Mithilesh Kumari and another, vs. Prem Behari Khare, AIR 1989 SC 1247, the Apex Court in Para 21 of its judgment held as under:
"A retrospective operation is not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of past transaction, or impair contracts, or impose new duty or attach new disability in respect of past transactions or considerations already passed. However, a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The general scope and purview of the statute and the remedy sought to be applied must be looked into and what was the former state of law and what the legislation contemplated has to be considered. Every law that impairs or takes away rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole may relate to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. The question is whether on a proper construction the legislature may be said to have so expressed its intention".
In view of the aforesaid discussions, it is held that framing of ordinance is exercise of delegated legislation, and is subject to such restrictions as inhers in a subordinate legislation.
Question No.(ii):-
22. The second question formulated does not pose much difficulty, once the provisions of Section 52 are analyzed minutely. The scheme itself lays that the Executive Council can make a draft of ordinance, which affects the income and expenditure of the University. Such draft can be made on the basis of a recommendation made by the Finance Committee. With the approval of draft, the ordinance itself comes into being. The draft remains in the realm of a still borne, so long as it is not approved by the State Government. The statutory scheme is, therefore, clear that it is with the grant of approval that the ordinance itself comes into being. The ordinance imposes liability of paying higher examination fees in respect of examinations held in the past. It is settled that imposition of a liability is in the realm of substantive law. Once such liability is imposed in respect of past transactions, it would have to be backed by express legislative intendment. No such express intendment is shown to exist in this case. Sub-section 5 of Section 52 and its implication has to be viewed in this light. Executive Council while performing its function to specify the date of commencement of ordinance can commence an ordinance, which has lawfully come into being. The ordinance must exist in law on the date when it is enforced, and not prior to it. This is particularly so as the Act of 1973 does not expressly contain any provision that an ordinance can be framed with retrospective effect. The Apex Court in a recent decision in State of Rajasthan (supra), while examining the issue of retrospectivity of a subordinate legislation, referred to a Constitution Bench judgment in A. Thangal Kunju Musaliar Vs. M. Venkatachalam Potti. Paras 28 and 29 of report is relevant for our purposes, and is reproduced:-
"28. In A. Thangal Kunju Musaliar20 the Constitution Bench, apart from other facets, was dealing with the validity of the Notification dated 26-7-1949 as it had brought the Travancore Taxation on Income (Investigation Commission) Act into force with effect from 22-7-1949. The said notification was challenged on the ground that it was bad as it had purported to bring the Act into operation from retrospective effect. It was urged that the Government could not, in the absence of express provision authorising in that behalf, fix the commencement of the Act retrospectively and further the courts disfavoured retrospective operation of laws which prejudicially affect vested rights.
29. Repelling the said submission, the Constitution Bench stated thus: (A. Thangal Kunju Musaliar case20, AIR p. 258, para 39) "39. ... No such reason is involved in this case. Section 1(3) authorises the Government to bring the Act into force on such date as it may, by notification, appoint. In exercise of the power conferred by this section the Government surely had the power to issue the notification bringing the Act into force on any date subsequent to the passing of the Act. There can, therefore, be no objection to the notification fixing the commencement of the Act on 22-7-1949 which was a date subsequent to the passing of the Act.
So the Act has not been given retrospective operation, that is to say, it has not been made to commence from a date prior to the date of its passing. It is true that the date of commencement as fixed by the notification is anterior to the date of the notification but that circumstance does not attract the principle disfavouring the retroactive operation of a statute."
After so stating, Their Lordships proceeded to advert to the aspect whether the notification was retrospective or not and in that regard ruled thus: (A. Thangal Kunju Musaliar20, AIR p. 259, para 39) "39. ... The operation of the notification itself is not retrospective. It only brings the Act into operation on and from an earlier date. In any case it was in terms authorised to issue the notification bringing the Act into force on any date subsequent to the passing of the Act and that is all that the Government did.""
23. An Act or an ordinance, which has come into being, alone can be enforced from a particular date, and something, which is yet to be borne, cannot be enforced. In the facts of the present case, approval to the ordinance has been granted by the State Government only on 17th October, 2016, and therefore, that is the day when ordinance itself was born. It is only after this date that Executive Council can announce its commencement, and not prior to it. It is reiterated that no provision exists in the Act, which may convey that ordinance can be given an retrospective effect, and it cannot be inferred from Section 52(5) as its object is different. It is otherwise settled that once the ordinances have been framed, it can be left to the discretion of Executive Council to enforce it even later. I am of a definite opinion that under the legislative scheme, retrospective effect cannot be given to an ordinance, by relying upon provisions of Section 52(5) of the Act. It is otherwise settled that when law requires a thing to be done in a particular manner, it has to be done in that manner alone, and all other modes are barred. Law in this regard stands settled by pronouncement in Taylor Vs. Taylor, (1876) 1 Ch D 426, as followed in Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; State of Uttar Pradesh Vs. Singhara Singh, AIR 1964 SC 358; and Prabha Shankar Dubey Vs. State of Madhya Pradesh, AIR 2004 SC 486. The second question is answered, accordingly.
24. The last question has already been answered by this Court in Writ Petition No.46324 of 2011 (C/M Public Degree College and others Vs. State of U.P. and others), decided on 29.8.2012, following observations made are reproduced:-
"Having heard learned counsel for the parties and having perused the records and the stand of the University, this Court does not find any justification for having a different structure of examination fee for the students of the self-financed institutions at a a higher rate. To my mind there is no rational nexus with the object sought to be achieved namely the examination fees which is in relation to examinations that are common for the self-finance institutions and aided institutions. In the absence of any rational basis for the discrimination, the equality clause as contained under Article 14 of the Constitution of India appears to have been infringed by the University by imposing different fee for the same courses and for the same examination. The status of the institution has no bearing on the nature of the examinations that are common for aided and self-financed institutions. No other material adverse to the petitioners has been placed to draw an inference otherwise. To the contrary the decision of the Finance Committee for the Session 2012-13 vindicates the stand on discrimination raised by the petitioners."
25. I am in respectful agreement with the view expressed in the aforesaid judgment. The respondent University, in the facts of the present case, has also not produced any material, which may justify a differential treatment being granted to the students of self-financed colleges. No valid distinction can be drawn between the students of self-financed colleges and aided colleges, when it comes to demand of examination fee from them. In absence of any justifiable circumstance placed on record, I am inclined to hold that differential treatment granted by University vis-a-vis students of self-financed colleges is wholly unjustified, discriminatory, and is hit by Article 14 of the Constitution of India. The third question is answered, accordingly.
26. The matter needs to be examined on other aspects also. If the enhancement of fee is allowed retrospectively, the University will be entitled to demand fee from the session 2011-2012 itself. Although Sri Gajendra Pratap contends that it is only in respect of students of the session 2015-2016 that University proposes to enhance the examination fee, but this would not suffer. This Court is examining as to whether in law, a decision can be sustained, which requires students/institution to be compelled to pay enhanced fee. If the decision is upheld, the University would be entitled to demand such fee. It would, however, not be possible for the institution to pay such amount, as such students may have passed out, and the institution would retain no control over them in the matter of payment of examination fee. There is otherwise no valid reason as to why such decision be allowed to be given a retrospective application. This Court further finds that although draft ordinances were framed in the year 2011, but the University chose to sent it for approval of State after five years i.e. in June, 2016. There is absolutely no reason brought on record by the University in such inordinate delay. Having hoped over the matter for five years, the University appears to have woken up suddenly, and armed with approval of State is now trying to give it a retrospective application. This act on part of University cannot be counted. It may otherwise be noticed that some of the other Universities, which have also been granted approval by the State Government on the same date, have taken a decision to enforce ordinances prospectively.
27. In view of the discussions aforesaid, the writ petition succeeds and is allowed. The ordinance made pursuant to approval of the State Government, dated 17.10.2016, in so far as it is made effective from 13.12.2011, vide decision of Executive Council dated 26.11.2016, is declared contrary to the provisions of the Act of 1973, and is accordingly set aside. The University, however, shall be entitled to charge the enhanced fee w.e.f. 26.11.2016. It is further provided that the University shall not be entitled to charge fee at a higher rate from students of self-financed colleges and students of such colleges shall also be liable to pay fee at par vis-a-vis students of Government and aided colleges.
Order Date :- 21.12.2016 Anil (Ashwani Kumar Mishra, J.)