Delhi High Court
Nandini Dutta And Others vs University Of Delhi And Others on 11 July, 2013
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, Chief Justice, Veena Birbal
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11.07.2013
+ WP (C) No. 822/2011
DELHI UNIVERSITY TEACHERS
ASSOCIATION AND ANOTHER ... Petitioners
Versus
UNIVERSITY OF DELHI AND ANOTHER ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr V.K. Rao, Sr Advocate with Mr Saket Sikri
And Mr Sudeep Dey, Advs.
For the Respondents : Mr Parag P. Tripathi, Sr Advocate with Mr M.J.S. Rupal,
Ms Monisha Handa and Mr Arunabh Ganguli, Advs. for DU.
AND
+ WP (C) No. 2764/2011
NANDINI DUTTA AND OTHERS ... Petitioners
versus
UNIVERSITY OF DELHI AND OTHERS ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Colin Gonsalves, Sr Advocate with Mr Tariq Adeeb, Adv.
For the Respondents : Mr Parag P. Tripathi, Sr Advocate with Mr M.J.S. Rupal,
Ms Monisha Handa and Mr Arunabh Ganguli, Advs. for DU.
Mr Mayank Manish, Adv. with Mr Amitesh Kumar for UGC.
Mr Sachin Dutta, CGSC for UOI.
For the Intervenors : Mr Prashant Bhushan, Adv. with Ms Pyoli, Adv.
WP (C) Nos.822/11 & 2764/11 Page 1 of 88
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED, ACTING
CHIEF JUSTICE
HON'BLE MS JUSTICE VEENA BIRBAL
JUDGMENT
BADAR DURREZ AHMED, ACJ Reliefs Sought:-
1. In these writ petitions, the petitioners have sought the quashing of the decision of the Academic Council (AC) dated 05.06.2009 and that of the Executive Council (EC) dated 26.06.2009, whereby it was decided to introduce the semester system in the undergraduate courses of the University of Delhi for the Academic Year 2010-11. The decision of the AC dated 13.05.2010 approving the semester system for 12 undergraduate courses for the Academic Session 2010-11 is also under challenge. So, too, are the circulars dated 25.05.2010 and 26.05.2010 issued by the Registrar, University of Delhi with regard to the above mentioned 12 undergraduate courses and Notification dated 14.06.2010. It is also prayed that the letter dated 01.10.2010 issued by the Vice-Chancellor, University of Delhi be quashed as being illegal and in violation of Section 23 of the Delhi University Act, 1922 (hereinafter referred to as 'the said Act').
2. Apart from the above, it is also prayed that the notification dated 19.04.2011 issued by the Deputy Registrar (Academic) notifying the undergraduate students' admission process to be followed in the Academic Session 2011-12 is to be quashed. Quashing of the decisions taken in the WP (C) Nos.822/11 & 2764/11 Page 2 of 88 meeting of the Academic Council on 25.04.2011 and the Executive Council on the same date are also sought to be quashed. The petitioners have essentially sought for a direction to be issued to the respondents to roll back / discontinue the semester system and to follow the Annual System which was earlier being followed in the University.
Facts:-
3. The Chairman, University Grants Commission (UGC) addressed a letter dated 31.01.2008 to the Heads of Central, State and Deemed Universities and institutions of higher learning in the country, including the Vice-Chancellor of Delhi University. By virtue of the said letter, it was informed that the UGC in its 11th Plan Proposals and Strategies had taken a number of new initiatives which involved steps for reforms in higher education. It was also indicated that while the UGC had set up a Committee to work out an action plan to give effect to the academic reforms in the arena of, inter alia, the semester system, it was felt that the Central Universities should take a lead in this regard. It was, therefore, urged on behalf of the UGC that the process of implementing the academic reforms as incorporated in the 11th Plan of the UGC be initiated by the universities. It was also indicated, inter alia, that:-
"4. Annual examination with emphasis on external written examination needs to be reformed. We can make a beginning by introducing Semester System. Similarly, we have to gradually move to a system which emphasises on continuous internal assessment and reduces the written examination component to a reasonable level. Duration of the semester, number of contact hour per paper, per semester and relative WP (C) Nos.822/11 & 2764/11 Page 3 of 88 weightage of continuous internal assessment and semester- end examination needs to be prescribed unambiguously."
4. It was also stated in the said letter that the process of implementing, inter alia, the above reform should be undertaken on a priority basis and that the UGC was committed to extend all the necessary support and assistance in this endeavour. It was also emphasized that the reforms were long overdue and could not afford any further delay. However, the UGC reiterated that the universities (which included the Delhi University) were autonomous institutions and had necessary freedom to experiment with new ideas and adopt processes which they considered appropriate for promoting relevance, quality and excellence and equal access, within the broad framework of the national policy. Thus, it was indicated that while the reforms be initiated on a priority basis, the concerned university may also combine the same with other best practices which the university had evolved over a period of time and found useful in the promotion of relevance, quality, excellence and equal access in higher education.
5. The Academic Council of the University in its meeting held on 28.02.2008 considered the report of the Reforms Committee for Post- Graduate Education and, inter alia, resolved after due deliberations that the recommendations of the Committee in principle be accepted and be recommended to the Executive Council for approval. One of the recommendations was that the semester system should be introduced in all the courses at the post graduate level in the University of Delhi. This was followed by the meeting of the Executive Council on 02.05.2008 wherein the above recommendations made by the Academic Council with regard to, WP (C) Nos.822/11 & 2764/11 Page 4 of 88 inter alia, the introduction of the semester system in all courses at the post- graduate level were accepted. In the meeting of the AC held on 07.10.2008, it was proposed that the semester system be implemented for undergraduate courses of the University with effect from the academic year 2010-11. It was noted in the minutes of the meeting under Item 2.6.6 that this proposal would necessitate the preparation of a detailed syllabus and scheme of examination for the semester-based undergraduate courses before 31.12.2009. It was noted that for this purpose, the relevant Committees would have to start their work with immediate effect.
6. With reference to the AC meeting of 07.10.2008, the Vice- Chancellor, University of Delhi sent an open letter dated 16.10.2008 to all the Principals, faculties and students of the University of Delhi on the issue of introduction of the semester system for the undergraduate programmes. It was observed that in the meeting of the Academic Council, it was felt that extended / extensive consultations were required as there could be difficulties in implementation of the semester system and that the difficulties needed to be identified and taken into consideration. The said letter also contained the arguments which were advanced before the implementation of a semester system at the undergraduate level from the academic session 2010-11. Those arguments were as under:-
"Semester system and Credit system are in conformity with global practices and standards and will facilitate student exchange and better appreciation of our degrees.
Semester system and Credit system will allow movement across universities within India and outside India.WP (C) Nos.822/11 & 2764/11 Page 5 of 88
Semester system will allow more inter-disciplinarity.
Students will work throughout the year rather than through periods of leisure and hyper activity.
Regular exams would lead to continuous evaluation.
Semester system has been successfully operating in India in many premier institutes like the IITs and many universities like JNU and the University of Hyderabad. Some of the courses at the University of Delhi are being taught in a semester mode.
Semester system is going to be implemented uniformly at the postgraduate level in the University of Delhi from 2009 and needs to be implemented at all the levels and in all the courses for uniformity."
7. In the said letter, it was also indicated that the suggestions and feedback be sent within three weeks or so. The AC meeting was to be held on 20.03.2009. Agenda item 2.6.8 related to the AC resolution No.31 dated 07.10.2008 pertaining to the introduction of the semester system for undergraduate courses with effect from the academic year 2010-11. However, the meeting was disrupted by some elected members and no resolution pertaining to the semester system was passed on that date.
8. By a letter dated 21.03.2009, the Chairman, UGC sent a copy of the Action Plan for academic and administrative reforms to the Vice- Chancellor of the Delhi University. The said letter indicated that the Action Plan outlined the main steps which needed to be considered and adopted in respect of, inter alia, the semester system. In this letter, the Chairman, UGC reiterated that while education system in the country had evolved over a period of time and had developed academic practices which WP (C) Nos.822/11 & 2764/11 Page 6 of 88 the universities and educational institutions had found useful. It was, therefore, suggested that the institutions should undertake the suggested reforms keeping in view their own experiences with the best practices, but within the framework of UGC recommendations and guidelines on academic reforms. Importantly, it was emphasised that the UGC expected that the universities, colleges and other institutions would draw up a road map with an action plan in a time bound manner, subject to a maximum of two years. The action plan for academic and administrative reforms, inter alia, provided for the semester system as under:-
"1. Semester System:
For long, educational institutions have had the format of academic session, spread over 10 to 12 months. This format suffers from several limitations, which is why most institutions of higher education in Western Europe and Northern America follow a semester-based system. The semester-system goes far beyond being a 'time-format'. It enlarges curricular space, and encourages and supports accelerated learning opportunities for all concerned. Further, it has the ability to accommodate diverse choices that dynamic and motivated students may like to have.
In India, too, several professional and technical institutions have adopted semester system. Reportedly, it is working satisfactorily. Given this, it is time that the semester system is made mandatory for all the institutions of higher education in India, and all the universities are asked to switch over to the semester system. The implementation of a semester system calls for several interconnected and coordinated steps that will have to be undertaken by the universities and colleges. These are as follows:
Deliberation and resolution on the semester system in appropriate academic bodies of the institution at different WP (C) Nos.822/11 & 2764/11 Page 7 of 88 levels to develop a time-line.
Decision on the number of student-faculty contact hours during a semester in different programmes, that is, certificate, diploma, undergraduate and postgraduate. M. Phil. and Ph. D. students also to do course work (see Annexure I).
Re-configuration and revision of curricula (while the quantum of instructional work of faculty members remains about the same, the number of papers or credits would be twice as many).
Determining the amount of work to be completed for credit points to be earned by the students in undergraduate, postgraduate, M. Phil and Ph. D. Programmes.
Decision on the time-distribution on class room-work, field-work, laboratory-work, workshop practice and/or other curricular work. Distribution will vary from subject to subject.
The implementation of semester-system may be completed within two calendar years in all the central universities, and within three years in all the state universities."
From the above also, it is apparent that the action plan required the implementation of the semester system to be completed within two calendar years in all the central universities and within three years in all the state universities.
9. On 12.05.2009, the Vice-Chancellor sent a letter to all the Academic Council members indicating that he had received a large number of WP (C) Nos.822/11 & 2764/11 Page 8 of 88 responses to his earlier communication dated 16.10.2008 from students, teachers, staff councils, staff associations and college departments. The responses were placed in a compact disc and had been collated in the form of an excel spreadsheet which were placed in the disc. In addition, there were several responses, which were in the form of letters which had been scanned and had been included in the said CD which was enclosed with the letter dated 12.05.2009. The said CD also contained a summary of key issues that figure in the responses received by the Vice-Chancellor. The said summary, inter alia, provided as under:-
"Student feedback Students have largely welcomed the proposal of introducing the semester system and have advanced a number of reasons in support of it. Many students feel that the semester system will lighten the examination load since they would not be confronted with as vast a syllabus as in the annual examinations. In comparison with the annual system, students perceived the semester system to be conducive to more regular and continuous/consistent learning and evaluation, with a better focus on the program they have opted for. Courses like the Bachelor of Business Studies was especially mentioned as an example of how good undergraduate teaching in the semester mode can be, wherein students study throughout the year rather than only during the last two or three months. Some students have requested that interdisciplinary courses be incorporated in the programmes with the introduction of the semester system. The need to reorganize subject content as a precondition to its introduction was pointed out. That the semester system would help those students who are interested in studying abroad was mentioned as well, especially if a credit system, which has global currency is implemented. Better placement opportunities too were pointed out as a positive outcome of such a system.WP (C) Nos.822/11 & 2764/11 Page 9 of 88
A few concerns were raised by students. These related, on the one hand, to the ability of the examination system to cope with the enhanced evaluation load. On the other hand, the success of the semester system being closely related to adequate time being available was pointed out, and some felt that it would overburden them. Some students were under the impression that the system of examination would become an internal one, leading to a lack of uniform standards. Anxiety about the possibility of less time for extracurricular activities was also expressed. Staff Councils, Departments and Teachers' feedback The reactions from teachers in Staff Councils were mixed about the desirability and the issues that needed to be tackled for the implementation of a semester system. On the positive side, it was felt that the semester system. On the positive side, it was felt that the semester system would considerably reduce the burden of the students as they will have to prepare only for a semester at a time and this would reduce the mental anxiety which students have to currently go through. This in turn would improve academic results. The semester system would help to introduce more options in the syllabus because of the bifurcation of the courses. This will help students to learn and specialize in diverse fields at an early stage. The semester system aims at an integrated program whereby students can aim for dual degrees. There would also be an increase in the variety and number of papers. A broad-based system with credits will provide the students increased mobility. The semester system would mean that all college teachers will have to take up the work of paper evaluation and this should result in timely announcement of the results. Teachers would get more time (i.e. a longer December break) to do their research etc. On the other hand, several concerns were expressed. To begin with, it would be laborious to create two college timetables in one year as a semester system would necessitate. There is a major concern regarding the ability of the examination system to cope with the increase in the evaluation load. The loopholes in the current system where annual examinations eat up several months need to be seriously addressed. One needs to make sure that the introduction of the semester system does not deprive students of WP (C) Nos.822/11 & 2764/11 Page 10 of 88 opportunities for participation in co-curricular activities. The new academic calendar needs to take care of the schedule of vacations, academic sessions and examinations in a well balanced way. Concern was expressed by some regarding lack of infrastructure in the colleges. The desirability of a blueprint with regard to the introduction of the semester system has been expressed. Some feel that semester system is successful in those universities where the teacher has complete freedom of designing the course and carrying out student evaluation and where there is a favourable teacher- student ratio. There are suggestions that the semester system should first be completely implemented at the postgraduate level before implementing the system at the undergraduate level. In a semester system, it may be difficult for students of the first semester who are admitted late to a course to cope as the admission process in the first year continues till at least a month after the beginning of the new session. Some felt that interdisciplinarity has nothing to do with a semester system since both interdisciplinarity and a credit system can be implemented even in an annual mode. Moreover, interdisciplinarity does not arise from a semester system per se without a corresponding change in mindset. The proposal has been described as a philosophical move away from intensive and extensive instruction since it would change the quantum that is to be taught to students in a fixed time frame. That the University would not permit reevaluation of answer scripts in a semester mode was mentioned as well. Worry was expressed that if the semester courses are not proportionately reduced, the papers would become too lengthy to be covered in the available time. Some colleagues fear that this is an insidious plan by the university to divide different colleges and could be a move to finally delink colleges from the university. This is perceived as a severe blow to the autonomous structure of the university. That there is interdisciplinarity already existing in the form of concurrent courses was also pointed out.
There are questions that if internal marking is done, at the end of each semester, how will parity be maintained given the vast qualitative difference between the students of different colleges? Whilst the University was aiming at larger reforms, is the right kind of expertise available to implement them? Clarification was WP (C) Nos.822/11 & 2764/11 Page 11 of 88 sought about whether practical examinations would have to be conducted twice a year. The semester system will imply greater administrative work. Additionally, there is a fear that since college teachers are required to improve their academic credentials through research, there would not be enough time since much more time and energy would be consumed in conducting exams, evaluating scripts and preparing assessment results. Bifurcating the current syllabus into two may lead to the collapse of the entire system due to a lack of internal logic in the syllabus. It was pointed out that a semester system would not be able to work well with the current system of internal assessment that involves a midterm examination. Also, students, especially 3rd year students, in a semester mode, would find it difficult to appear in competitive examinations. Finally, a semester system would require a change in the University Ordinances, Rules and Regulations regarding migration/admission."
10. It may be noted at this point that, according to the petitioners, some of the members (five in number) of the AC and EC had protested by a communication dated 25.05.2009 addressed to the Vice-Chancellor that the summary was misleading. By a letter dated 29.05.2009, the Registrar of the University sent the agenda papers for the Academic Council meeting to be held on 05.06.2009. The agenda also included Item No.2.6.8 which was part of the earlier agenda for the AC meeting of 20.03.2009, which we have already indicated above, was disrupted. The said agenda Item No. 2.6.8 pertains to the AC Resolution No.31 dated 07.10.2008 pertaining to the introduction of the semester system at the undergraduate level for the academic year 2010-11. Alongwith this agenda item, a note was also circulated, wherein it was indicated that after receiving the response from the students, Staff Councils, Principals and teachers of the University, the Vice-Chancellor had again written to the students and the Faculties of the WP (C) Nos.822/11 & 2764/11 Page 12 of 88 University on 12.05.2009 explaining various important aspects, such as the rationale of the semester system. In the said note, it was mentioned that the said communication dated 12.05.2009 was accompanied by various letters received from the UGC regarding the semester system and that all these documents had been circulated to the members of the AC also and that they were requested to carry the same during the meeting. On 05.06.2009, the AC of the university met and, inter alia, passed the following resolution:-
"Resolved that the Semester System be introduced at the undergraduate level with effect from the academic session 2010-11"
11. On 16.06.2009, a special meeting of the Academic Council was convened to consider the syllabi of the semester-based post-graduate courses that were to be implemented from the academic session 2009-10. However, that meeting was disrupted as a protest was raised by some of the elected members in protest against the introduction of the semester system at the undergraduate level for the academic session 2010-11. The relevant minutes to this effect are as under:-
"Even before the commencement of the meeting, the elected members gathered in the well of the Council Hall and continued to do so during the meeting in protest against the Resolution passed in the Academic Council at its meeting held on 05.06.2009 on introduction of the semester system at the undergraduate level with effect from the academic sessions 2010-2011.
The Vice-Chancellor explained to them time and again that this was a special meeting for considering the syllabi of semester based postgraduate courses which are to be implemented from the academic session 2009-2010. Inspite of repeated requests made by the Vice-Chancellor and other WP (C) Nos.822/11 & 2764/11 Page 13 of 88 members of the Academic Council, the elected members continued to disturb the meeting."
12. On 26.06.2009, a meeting of the Executive Council (EC) was convened. In that meeting, 15 members were present. One member had expressed his inability to attend and, there were four special invitees. It was resolved in that meeting that the semester system be introduced at the undergraduate level with effect from the academic session 2010-11. In the minutes of the said meeting, it is noted that four members had dissented. In other words, the resolution was not passed unanimously, but by a majority vote with four members dissenting.
13. On 22.07.2009, the Academic Council met again to consider the syllabi for semester-based postgraduate courses starting in 2009-10. However, there was a disruption in this meeting also in protest against the resolution passed by the Academic Council at its meeting held on 05.06.2009 with regard to the introduction of the semester system at the undergraduate level for the academic session 2010-11. The minutes recorded the said disruption as under:-
"The elected members gathered in the well of the Council Hall during the meeting in protest against the Resolution passed in the Academic Council at its meeting held on 05.06.2009 on introduction of the semester system at the undergraduate level with effect from the academic session 2010-2011. The Vice- Chancellor explained to them time and again that this was a special meeting for considering the syllabi of semester based postgraduate courses which are to be implemented from the academic session 2009-2010."WP (C) Nos.822/11 & 2764/11 Page 14 of 88
14. As per the petitioners, on 05.10.2009, the Vice-Chancellor formed an Empowered Committee for the implementation of the semester system. According to the petitioners, the formation of the Empowered Committee bypassed the Academic Council and the Executive Council. However, the respondent University contended that once the Academic Council had resolved to introduce the semester system at the undergraduate level, the rest of the work, including the constitution of the Empowered Committee was well within the powers of the Vice-Chancellor and that the Empowered Committee was, in any event, purely advisory in nature and its recommendations were not binding on the Committee of Courses and Studies, the Faculty or the Academic Council. It is further stated by the petitioners that five elected members of the Academic Council resigned in protest from the Empowered Committee. Furthermore, the Empowered Committee within a period of only 5 days, that is, from 29.10.2009 to 04.11.2009 drew up the structure for semesterization.
15. On 04.03.2010, one of the petitioners [Delhi University Teachers Association (DUTA)] wrote a letter to the Staff Associations. In the letter, it was mentioned that the DUTA Executive in its meeting held on 03.03.2010 had discussed thread bare the intensification of the ongoing struggle against the semester system at the undergraduate level because inspite of many action programmes including week-long relay dharnas by various colleges, the Vice-Chancellor had not acceded to their demand. It was further stated therein that DUTA had decided to give 15th March as the deadline to the Vice-Chancellor to stop the process for implementation of the semester system, failing which DUTA would be forced into non-
WP (C) Nos.822/11 & 2764/11 Page 15 of 88submission of internal assessment marks by individual teachers to the college office, and three-days relay hunger strike-cum-dharna from 16th to 18th March in front of the Vice-Chancellor's Office. By virtue of the said letter dated 04.03.2010, DUTA also requested each Staff Association to convene its meeting to ensure complete success with respect to DUTA's action programmes.
16. On 08.04.2010, the Committee of Courses of various departments convened meetings. However, the same were disrupted by some members of DUTA.
17. On 07.05.2010, a meeting of the Faculty of Inter-Disciplinary and Applied Sciences was convened. As per the minutes recorded on 12.05.2010, the meeting was once again disrupted by some DUTA members. The minutes recorded were as under:-
"Before the chairperson could start the meeting DUTA members entered into the auditorium and did not allow the meeting to happen almost for two hours. They left the auditorium only after assurance was given by the Chairperson that B.Sc. Electronics (Hons.) syllabus in semester mode will not be placed on the table of the house.
They also had serious reservation for M.P.Ed. syllabus in semester mode and desired that it should not be placed on the table of house as serious discrepancies are there in Committee of Courses meeting.
At about 4.15 p.m. ultimately the meeting started and at the outset Chairperson welcomed the ten new members inducted into the faculty and also placed on record the appreciation of previous members about their constructive contribution to the WP (C) Nos.822/11 & 2764/11 Page 16 of 88 house. Subsequently agenda was placed on the table of the house.
1. The Minutes of the last meeting held on 22.05.2009 was tabled. The minutes were unanimously passed.
2. The syllabus of B.Sc. (Hons.) Microbiology and B.Sc.
(Hons.) Biochemistry in semester mode were tabled and discussed. The queries of some of the members were answered by respective Head of the Departments. Both the courses were passed.
3. The Chairperson read out the letter from Head of the Department of Electronic Science requesting approval for new members for Committee of Courses for the Department of Electronic Science w.e.f. 7th May, 2010 for two years, as the previous members had completed their term of two years. The new members are:
S.No. Name of the Member College
1. Dr R.P. Rishewar Sri Aurobindo
College
2. Dr I. Lalita Sri Venkateswara
College
3. Dr Mona Bhatnagar Hansraj College
4. Dr N.K. Jain Zakir Hussain
College
Meeting ended with the vote of thanks to the Chair.
Prof. AvinashiKapoor
(Chairperson)"
18. On 13.05.2010, a special meeting of the Academic Council was convened. The minutes of the meeting indicated that the Vice-Chancellor had briefed the Council that the special meeting had been convened for considering the syllabi for semester-based courses, which were to be WP (C) Nos.822/11 & 2764/11 Page 17 of 88 implemented from the academic session 2010-11. It is further relevant that some of the elected members wanted to reopen the issue of desirability and feasibility of the semester system for the undergraduate courses. The Vice- Chancellor informed the Council that the resolution for implementation of the semester system in undergraduate courses from the academic session 2010-11 had already been approved by the Academic Council by its Resolution No.10 dated 05.06.2009. However, the said elected members of the council debated the issue, which, as per the minutes, continued for many hours. It is further mentioned in the minutes that the Vice-Chancellor repeatedly requested the members to take up the agenda for consideration, but some of the members started disrupting the proceedings. However, the recommendations of the Standing Committee on Academic Matters of the Academic Council in its meeting held on 11.05.2010 were considered. It was, inter alia, resolved that the semester-based syllabi of 12 undergraduate courses in science on the recommendations of the Faculty of Science were approved. In the meeting, 90 members were present. The resolutions were passed by majority inasmuch as 27 members dissented.
19. On 15.05.2010, some of the protesting members and teachers held a sit-in strike. The Vice-Chancellor addressed a letter to them on 15.05.2010 itself requesting them to call off the sit-in. On 16.05.2010, the Vice- Chancellor again wrote a letter requesting that the sit-in be called off so that a discussion could take place in an aggression free manner.
20. On 25.05.2010, the Registrar of the University addressed a letter to all the Principals on the subject of implementation of the semester-based WP (C) Nos.822/11 & 2764/11 Page 18 of 88 syllabi for the academic year 2010-11. Through this letter, the Registrar informed the Principals that in the special meeting held on 13.05.2010, the Academic Council had approved the syllabi of 12 undergraduate courses in science which were to be implemented from the academic session 2010-11. It was, therefore, requested that immediate steps be taken for the information of the admission seeking students and that arrangements be made for prominent display of information on the main notice board and on the website of the Colleges and necessary modifications should be incorporated in the admission brochure / prospectus of the Colleges. It is the contention of the petitioners that the Resolution of 13.05.2010 passed by the Academic Council was implemented by the Registrar through this letter dated 25.05.2010 without any reference to the Executive Council.
21. By a letter dated 26.05.2010, the Registrar informed the Principals of various Colleges that the Vice-Chancellor had approved the semester-based syllabus of the B.Sc (Honours) Electronics course to be implemented for the academic session 2010-11.
22. It was contended by the petitioners that the approval given by the Vice-Chancellor was in purported use of the emergency powers under Statute 11(G)(4).
23. By a letter dated 14.06.2010, the Registrar of the University sent to all the Principals of Colleges a copy each of the revised syllabi of the said 12 undergraduate science courses approved by the AC for implementation of the semester scheme from the academic session 2010-11. Also enclosed with the said letter was a copy of the guidelines for implementation of the WP (C) Nos.822/11 & 2764/11 Page 19 of 88 semester scheme for the undergraduate science courses, as approved by the Vice-Chancellor.
24. It was contended by the petitioners that the letter dated 14.06.2010 was issued pursuant to the exercise of emergency powers by the Vice- Chancellor to amend Ordinances. It was contended that there was no stated emergency, yet the Vice-Chancellor used the emergency powers.
25. On 14.06.2010, the University issued a notification indicating the amendments to the Ordinances of the University which had been approved by the Vice-Chancellor under the emergency powers vested in him under Statute 11(G)(4) of the Statutes of the University. The amendments in the Ordinances of the University were brought about to, inter alia, cater for the semester system. As an instance, Ordinance VII, clause 2(2) contained the expression "in each academic year". This was amended to read "in each academic year or academic semester, as the case may be". It is apparent that the provision was made for the introduction of the semester system. Another illustration is to be provided by the amendment to Ordinance VIII, clause (1) wherein clause 1(b) was introduced to the following effect:-
"1(b). Examinations for the courses covered under the semester scheme shall be held at the end of each semester in accordance with the academic calendar prescribed by the Academic Council from time to time. Unless otherwise provided specifically in any other Ordinance, there will be no supplementary examination for any of the semester examinations."WP (C) Nos.822/11 & 2764/11 Page 20 of 88
26. On 12.08.2010, the Vice-Chancellor issued an order in exercise of the powers conferred under Statue 11(G)(4) of the Statutes of the University. The directions issued to the Principals were as under:-
"Now, therefore, in exercise of the powers conferred under statute 11-G (4) of the University, the Vice-Chancellor directs Principals of the colleges:
(i) To take all necessary steps for organizing teaching in the 13 under-graduate science courses in semester mode.
(ii) To prepare time-table on semester mode for undergraduate science courses as per the Academic Calendar of the University in case the Staff Council of the college has failed to prepare the time table on semester mode till date.
(iii) To prepare list of teachers, who fail or refuse to prepare time-table and/or teach in semester mode, and to treat the period of such failure or refusal as dies-non leading to stoppage of increment, deferment of promotion etc.
(iv) To submit a list of such teachers to the University.
(v) To not to release the salary of such teacher(s) for the period treated as dies-non.
(vi) To issue show cause notice to such teachers to explain why failure or refusal to teach in semester mode should not be treated as misconduct and why it should not be reported to the Governing Body of the College.
(vii) To convene meeting of the Governing Body and place the entire matter before it including reply of such teacher(s), if any, for consideration under clause 5 of Annexure to Ordinance XII for summary determination of engagement.
WP (C) Nos.822/11 & 2764/11 Page 21 of 88(viii) To submit Action Taken Report on (i) to (vii) above to the University."
These directions were issued in the backdrop that it had been brought to the notice of the University that despite the colleges being advised to organize teaching only in the semester mode in science courses, certain teachers were not teaching the undergraduate science courses in the semester mode.
27. On 13.08.2010, DUTA issued a press release indicating that the DUTA Executive in its emergency meeting held on 13.08.2010 had rejected the alleged illegal order of the Vice-Chancellor to teach according to the semester-based science courses. The press release, inter alia, provided as under:-
"The DUTA reiterates that the semester-based Science Courses declared by the VC under his emergency powers has no sanction of the University law. The DUTA is writing to all Principals and Governing Bodies explaining its position on the issues relating to semester and semester-based Courses.
The DUTA Executive has unanimously decided to meet the challenge of the Vice-Chancellor's illegal orders through collective action steps. The action steps at this stage include:
(a) Massive demonstration by teachers on Tuesday, 17 August, 2010 at the VC's office.
(b) March to Parliament/MHRD on Thursday, 19 August, 2010 from Mandi House under the joint banner of FEDCUTA and DUTA.
(c) Strike on 23 and 24 August, 2010 against the illegalities committed by the VC.WP (C) Nos.822/11 & 2764/11 Page 22 of 88
(d) Symposium on Semester and related issues on 25 August, 2010.
(e) Relay Dharna by cluster of Colleges on 26, 27 and 30-31 August, 2010 at VC's Office (from 10 AM to 2 PM)."
28. On 01.10.2010, the Vice-Chancellor wrote to all the Deans and Heads of Departments of the University stating that as per the resolutions of the Academic Council and the Executive Council, all the undergraduate courses were supposed to move to the semester mode of education from 2010. But, due to various reasons, all the undergraduate courses could not be revised so as to bring them into the semester mode for the academic session 2010-11. It was further stated in the said letter that the delay had, however, provided an opportunity for wider consultations so that the feeling of not being consulted could be taken care of. It was also stated in the said letter that the revisions with consultation would only be possible if the same were started well in time for the academic session 2011-12. In this backdrop, the Vice-Chancellor observed that a shift to the semester mode had already been cleared by the AC and EC and that it was important that resolutions adopted by these bodies were taken forward in letter and spirit. It was also observed by the Vice-Chancellor that a switch to the semester mode was also a part of the National Policy in Higher Education and that there were letters and recommendations of the UGC to this effect. The Vice-Chancellor also observed as under:-
"5. As per the University statutes and ordinances, the responsibility for modification, semesterization and revision of courses lies with two bodies namely, the Committee of Courses and the Faculty. We must follow these stipulations with clarity.WP (C) Nos.822/11 & 2764/11 Page 23 of 88
6. If some members of the Committee of Courses do not believe in semester mode or believe that no revision is required, they should voluntarily step down so as to allow other people to be part of the Committee of Courses."
xxxx xxxx xxxx xxxx xxxx "9. It should be the duty of the Committee of Courses to make sure that the widest possible consultations are made in an orderly fashion."
29. The said letter ended with the hope that the work on the semester- based revision of all the courses would be given at the earliest. However, according to the petitioners, this letter was in violation of Section 23 of the Delhi University Act, 1922.
30. In the meanwhile, a Public Interest Litigation (PIL) entitled M.R. Gupta v. University of Delhi and Others [WP(C) 7248/2010] had been filed in this court, whereby directions were, inter alia, sought that all the teachers will forthwith start teaching the new syllabi for the 13 undergraduate science courses according to the semester system as directed by the University. A direction was also sought against the teachers not to continue with any strikes / dharnas and to declare such forms of strikes as illegal or unconstitutional. A direction was also sought for the implementation of the order dated 12.08.2010 issued by the Vice- Chancellor in exercise of his powers under Statute 11-G(4) of the Statutes of the University. A Division Bench of this court passed an interim order in that writ petition on 15.11.2010. In that order, the Division Bench recognized that three questions had emerged for consideration in that writ petition. The first question was whether this Court at that juncture should WP (C) Nos.822/11 & 2764/11 Page 24 of 88 debate on the validity of the introduction of the semester system or deal with the matter as an interim measure to see that the students are taught and do not waste time. The second question was whether a writ of mandamus could be issued at all and, thirdly, whether the teachers could go on strike and not teach in the education system as introduced in the University and yet claim their salaries.
31. Insofar as the first question was concerned, the court, on 15.11.2010 directed that the legal debate with regard to the introduction of the semester system could be considered at a later stage. Insofar as the other two questions are concerned, the court was inclined to issue certain directions so that the education system in Delhi University in respect of the students, who had undertaken to prosecute their studies through the semester system, did not fall into peril. The court observed that it had to play the role of loco parentis in such a case. Accordingly, the court issued directions which, inter alia, included a direction that the teachers serving in the colleges wherein the semester system had been introduced by the University shall teach in the semester mode and not deviate from the same as most of the colleges have followed it and the students have no objection. It was also directed that, if any teacher did not cooperate in teaching as per the semester system, it would be treated as absenteeism and accordingly steps would be taken by the management and the University would be at liberty to make alternate arrangements. However, subsequently, the said WP(C) 7248/2010 (M. R. Gupta v. University of Delhi and Others) was disposed of on 08.02.2011 as nothing remained to be adjudicated in that writ petition. This was so, because on an earlier occasion, the learned counsel for the WP (C) Nos.822/11 & 2764/11 Page 25 of 88 respondents had stated, as would be apparent from para 2 of the order dated 08.02.2011, that they would take recourse to the legal mode of assailing the order or decision for introduction of the semester system in the Delhi University and till there is an order of stay or injunction by this court, they would teach in the semester mode. It was, therefore, noted in the said order dated 08.02.2011 that the earlier orders would be treated final for all purposes and that the teachers teaching in the University or the affiliated colleges shall not go on strike and shall impart education in the semester system. It was further noted in the order dated 08.02.2011 that DUTA had approached this court challenging the decision of the University in WP(C) 822/2011 (one of the petitions being decided by this judgment), wherein this court had issued notice and fixed a date for hearing. It was also observed that the decision of the University with regard to the semester mode would be debated in that writ petition, i.e., WP(C) 822/2011. Consequently, WP(C) 7248/2010 (M. R. Gupta v. University of Delhi and Others) was disposed of by virtue of the said order dated 08.02.2011 on the ground that nothing remained to be adjudicated in that petition.
32. On the same day, i.e., on 08.02.2011, a Division Bench of this court, while issuing notice in WP(C) 822/2011 [Delhi University Teachers Association and Another v. University of Delhi and Another (one of the present petitions)], observed that this court had disposed of WP(C) 7248/2010 and by way of abundant caution, it was proceeding to add that the teachers of Delhi University shall teach in the semester mode, which had been introduced or which was going to be introduced by the University, without taking recourse to strike or any other mode. It was also observed WP (C) Nos.822/11 & 2764/11 Page 26 of 88 that if the court eventually found fault or infirmity in the introduction of the semester system by the University, "it would pass appropriate equitable orders".
33. On 19.04.2011, a notification was issued by the University of Delhi notifying the undergraduate students' admission process to be followed in the academic session 2011-12. The notification, inter alia, provided that the prospectus of the college should clearly state that all undergraduate degree courses shall be taught in the semester mode in the academic session 2011-12. According to the petitioners, this notification had set the admission process in motion without any sanction from any statutory body.
34. The Registrar of the University issued a notice dated 22.04.2011 regarding the convening of a special meeting of the Academic Council on emergent basis on 25.04.2011 at 10.00 a.m. The said notice reads as under:-
"UNIVERSITY OF DELHI Delhi-110007 MOST URGENT/BY HAND No.C-I/AC/2011 Dated: April 22, 2011 NOTICE A requisition dated April 19, 2011 has been received from members of the Academic Council to convene a special meeting of the Academic Council on emergent basis to consider the following subjects:
a. To consider the recommendations of the
Faculties regarding semester based syllabi of
undergraduate courses to be implemented from
academic session 2011-12.
WP (C) Nos.822/11 & 2764/11 Page 27 of 88
b. To report action taken by the Vice-Chancellor in
connection with implementation of semester
system at undergraduate level in the academic
session 2010-11.
c. To approve drafts of amendments of ordinances
relating to implementation of semester system at
undergraduate level for consideration by the
Executive Council.
d. To consider remaining issues relating to
semesterization of syllabi at undergraduate level from the academic session 2011-12.
The Vice-Chancellor has decided to convene a special meeting of the Academic Council on emergent basis on Monday, the 25th April, 2011 at 10.00 A.M. in the Council Hall, Old Vice-Regal Lodge, University of Delhi, Delhi-110007 to consider the above subjects.
The detailed agenda papers relating to the above subjects are enclosed.
The members are requested to make it convenient to attend the meeting.
Sd/-
22.4.11 REGISTRAR To:
All Members of the Academic Council."
35. It would be apparent from the above extract that the notice was issued pursuant to a requisition dated 19.04.2011 which had been received from members of the Academic Council to convene a special meeting in order to consider the above mentioned subjects which included the recommendations of the faculties regarding the semester-based syllabi of WP (C) Nos.822/11 & 2764/11 Page 28 of 88 undergraduate courses to be implemented from the academic session 2011- 12 and to approve the drafts of amendments of ordinances relating to implementation of the semester system at the undergraduate level for consideration by the Executive Council. The petitioners allege that the notice given was very short and not all of the members of the AC received the notice. The Academic Council met on 25.04.2011 at 10.00 a.m. in the Council Hall, University of Delhi. In the said meeting, out of a total number of 134, 101 members of the Academic Council were present. In addition, there were 9 special invitees. The Academic Council considered and accepted the recommendations of the Standing Committee on Academic matters made in its meeting held on 24.04.2011 on the semester- based syllabi of various undergraduate courses as proposed by the Faculties concerned (53 courses). It was also resolved that the draft amendments indicated in the minutes in Appendix II to Ordinance V(2) of the Ordinances of the University be approved and be recommended for consideration of the Executive Council. It was further resolved that in order to implement the semesterization of syllabi of those undergraduate courses of study which had not yet been received from the Faculties, the Academic Council authorized the Vice-Chancellor to take all the necessary measures as the Vice-Chancellor may deem fit, including bifurcation of the current existing syllabi (if required), for their implementation from the academic session 2011-12. Finally, it was resolved as under:-
"06/ Resolved that the action taken by the Vice-Chancellor, in exercise of his emergency powers, under Clause (4) of the Statute 11(G) of the Statutes of the University, in respect of the following matters, be reported, recorded and confirmed:WP (C) Nos.822/11 & 2764/11 Page 29 of 88
1. In approving on 08.06.2010, the recommendations of the Committee with regard to amendments in Ordinances (II,0 VII, VIII, VIII-E & IX) related to implementation of the Semester scheme at the Under-graduate/Post-graduate level w.e.f. the academic session 2010-2011. (Appendix No. XXIII)
2. In approving on 25.05.2010, the recommendations of the Dean, Faculty of Science regarding merger of B.Sc. Applied Physical Sciences-Electronics and B.Sc. Applied Physical Sciences-Computer Science into newly designed semester based B.Sc. Physical Sciences Course.
3. In approving on 26.05.2010, the revised syllabus (semester based) of the B.Sc. (Hons.) Electronic Science as recommended by the Faculty of Inter-Disciplinary & Applied Sciences in its meeting held on 24.05.2010 for implementation from the academic session 2010-2011. (Appendix No. XXIV)
4. In approving on 26.05.2010, the recommendations of the Governing Body of Dyal Singh College and the Dean, Faculty of Science dated 02.06.2010 regarding discontinuation of the existing B.Sc. (Hons.) Applied Zoology course and introduction of the new B.Sc. (Hons.) Zoology (semester based) course w.e.f. the academic session 2010-2011.
5. In approving on 26.05.2010, the recommendations of the Acharya Narendra Dev College regarding distribution of seats of the new B.Sc. Physical Sciences Course after merger of B.Sc. Applied Physical Sciences Course and discontinuation of B.Sc. Applied Life Sciences (Sericulture) course from academic session 20102011.
1. The total seats (123) in the new B.Sc. Physical Sciences course Course Seats SC ST OBC PH GEN.
Physical Sciences with 41 6 3 11 1 20
Physics, Chemistry and
Mathematics (PCM)
WP (C) Nos.822/11 & 2764/11 Page 30 of 88
Physical Sciences with 41 6 3 11 1 20
Physics, Chemistry and
Computer Sciences
(PMCs)
Physical Sciences with 41 6 3 11 1 20
Physics, Mathematics
and Electronics (PME)
2. The B.Sc. (Prog.) Applied Life Sciences (Sericulture) Course be discontinued and the 31 seats pertaining to this course be transferred and distributed among B.Sc. (H) Botany, B.Sc. (H) Zoology and B.Sc. Life Sciences Course Course Total Seats SC ST OBC PH. GEN B.Sc. (H) Botany 31 10* 41 6 3 11 1 20 B.Sc. (H) Zoology 31 10* 41 6 3 11 1 20 B.Sc. Life Sciences 31 11* 42 6 3 11 1 21 * Seats transferred after the discontinuation of B.Sc. Applied Life Sciences (Sericulture) Course.
6. In approving on 12.06.2010 the recommendation of the Dean, Faculty of Science regarding minor changes in the sequence of papers (as below):
Course Old Scheme New Scheme
B.Sc.(H) Paper 8 - Maths and Stats. Paper 8 - Technical Writing
Botany Paper 6 - Biodiversity-II and Communication in
Mycology & English/ Computational Skills
Phytopathology Paper 6 - Biodiversity-III-
Paper 5 - Technical Archegonitae
Writing and Paper 5 - Biodiversity-II
Communication in Mycology & Phytopathology
English / Computational Paper 10 - Mathematics and
Skills Statistics
Paper 10 - Biodiversity-
III Archegonitae
WP (C) Nos.822/11 & 2764/11 Page 31 of 88
B.Sc.(H) Paper 7 - Introductory Paper 7 - Technical Writing
Chemistry Biology and Communication in
Paper 12 - Physics-II English / Computational Skills
Paper 16 - Mathematics-II Paper 12 - Mathematics-II
Introductory Biology* Paper 16 - Physics-II
Biology-II
*Minor changes in
contents have been made
B.Sc.(H) Paper 5 - Technical Paper 5 - Biodiversity-II-
Zoology Writing and Chordata
Communication in Paper 6 - Biodiversity-III-
English / Computational Choradata
Skills Paper 10 - Mathematics and
Paper 6 - Biodiversity-II- Statistics
Chordata Paper 8 - Technical Writing
Paper 10 - Biodiversity- and Communication in English
III - Chordata / Computational Skills.
Paper 8 - Maths and Stats.
B.Sc. Life Paper 3 - Technical Paper 3- Mathematics and
Sciences Writing and Statistics
Communication in Paper 6 - Technical Writing
English / Computational and Communication in English
Skills / Computational Skills.
Paper 6 - Maths and Stats.
B.Sc. Paper 4 - Biology-I Paper 4 -Technical Writing
Physical Paper 8 - Biology-II and Communication in English
Sciences Paper 12 - English/ / Computational Skills.
Computational Skills Paper 8 -Technical Writing
and Communication in English
/ Computational Skills
Paper 12 - Biology-I
Paper 16 - Biology-II
B.Sc.(H) Practicals of Paper 15
Anthropology (Biodiversity and Indigenous
Knowledge)
The nomenclature of the papers in the subject areas of English and Computing have been standardized as 'Technical Writing and Communication Skills in English' and 'Computational Skills' respectively.
WP (C) Nos.822/11 & 2764/11 Page 32 of 88The meeting ended with a vote of thanks to the Chair.
(R.K. Sinha) (Dinesh Singh)
Registrar - Secretary Vice-Chancellor - Chairman"
36. On the same day, that is, in the afternoon of 25.04.2013, a special meeting of the Executive Council of the University was held at 5.30 p.m. In that meeting, 16 members of the Executive Council were present alongwith 5 special invitees. In the said meeting, it was resolved that the recommendations of the Academic Council made in its special meeting held on 25.04.2011 publishing the draft amendments in Appendix-II to Ordinance V(2) of the Ordinances of the University be approved. The draft amendments were made in order to replace the existing syllabi of the 53 undergraduate courses of the study as also the 13 undergraduate courses in science which had been approved by the Vice-Chancellor earlier. Insofar as this resolution was concerned, one member had dissented. There was another resolution (Resolution 04), whereby it was resolved that the action taken by the Vice-Chancellor in exercise of his emergency powers under clause 4 of Statute 11-G of the Statutes of the University in approving, on 08.06.2010, the recommendations of the Committee with regard to amendments in Ordinances (II, VII, VIII, VII-E and IX) relating to implementation of semester scheme at the undergraduate / postgraduate level with effect from the academic session 2010-11 be reported, recorded and confirmed. Insofar as this resolution was concerned, two members dissented.
37. Resolution No. 05 confirmed the Resolution of the Academic Council, whereby the Academic Council had resolved that in order to WP (C) Nos.822/11 & 2764/11 Page 33 of 88 implement the semesterization of the syllabi of those undergraduate courses of study, which had not yet been received from the Faculties, the Academic Council authorized the Vice-Chancellor to take all the necessary measures as the Vice-Chancellor may deem fit, including bifurcation of the current existing syllabi (if required) for their implementation from the academic session 2011-12. Two members had dissented to this Resolution. It is apparent that all the above resolutions were passed by a clear majority.
38. Thereafter, WP(C) 2764/2011 (Nandani Dutta and Others v. University of Delhi and Others) was filed. It was contended, as would be noticed from the order dated 28.04.2011 in these petitions that the other writ petition [WP(C) 2764/2011] had purportedly been filed as the petitioners therein feared an impediment to their going on 'peaceful protest'. In the order dated 28.04.2011, a Division Bench of this court observed:-
"...We are at a loss to understand when the matter is sub-judice and we are addressing the lis, why should there be any need and cause for 'peaceful protest'. There can be difference of opinion, but that has to be expressed with dignity and virtuosity which is expected from a teacher."
As such, the court directed as under:-
"In view the aforesaid, we hope and trust that the teachers of the university do not disrupt teaching schedules or harbour the notion of 'peaceful protest' by teaching outside the classrooms or in tents, but follow the semester system as per our previous directions. Interest of the students and the institution is paramount. If they have any grievance, they can file an WP (C) Nos.822/11 & 2764/11 Page 34 of 88 application in the pending cases or even seek review of the earlier order."
39. By virtue of another interim order dated 16.05.2011, a Division Bench of this court, in the present writ petitions, inter alia, directed as under:-
"8....we command that all the teachers of the University of Delhi and all colleges affiliated to the said University shall cooperate in all aspects and teach in the semester mode and not proceed on the path of deviation which would, in the slightest manner, bring them in the net of the violators of the orders of the Court, for the order of Court has to be treated with respect regard being had to its sanctity in a country governed by Rule of Law."
The Division Bench also observed:-
"9....We may clearly state here that which system will be in the interest of the students may not be a facet to be gone into in these writ petitions as this Court is not an expert in that regard and the academic matters are to be decided by the competent authorities of the University after following due procedure of law. What would be delved into by this court is whether the introduction of the semester system has been done in accordance with the provisions of the University Act and the statutes framed thereunder or not. Pending the same, we repeat our command so that no teacher or staff shall pave the path of deviancy...."
40. The petitioners herein filed special leave petitions being SLP (Civil) 1553-54/2011 before the Supreme Court against the said order dated 16.05.2011 passed by a Division Bench of this court. However, on 30.05.2011, the said Special Leave Petitions were dismissed as withdrawn.
WP (C) Nos.822/11 & 2764/11 Page 35 of 8841. On 08.07.2011, a meeting of the Academic Council was convened. 88 members were present alongwith 6 special invitees. In the said meeting, the minutes of meeting of the Academic Council held on 09.11.2009, 13.05.2010 and 25.04.2011 were confirmed. However, there was one dissent with regard to the minutes of the meeting of 09.11.2009, 18 dissents with regard to para 2 of the preface to Resolution No. 03 of the minutes of meeting of 13.05.2010 and 4 members dissented with regard to a certain aspect of the syllabus of history, as noted in the minutes of meeting dated 25.04.2011. In other words, the minutes of the meetings held on 09.11.2009, 13.05.2010 and 25.04.2011 stood confirmed by majority.
42. In the same meeting of 08.07.2011, the Academic Council also took on record the report on the Action Taken on the Minutes of the meetings of the Academic Council held on 09.11.2009, 13.05.2010 and 25.04.2011. The Academic Council also considered and accepted the recommendations of the Standing Committee on Academic Matters at its meeting held on 07.07.2011 on the semester-based syllabus of several undergraduate courses. Resolution No. 12 of the Academic Council meeting held on 08.07.2011 approved the draft amendments in Appendix-II to Ordinance V(2) of the Ordinances of the University for consideration of the Executive Council. By virtue of Resolution No. 16, the Academic Council resolved that the action taken by the Vice-Chancellor in exercise of his emergency powers under clause (4) of Statute 11(G) of the Statutes of the University in respect of the various matters enumerated in the minutes be reported, recorded and confirmed.
WP (C) Nos.822/11 & 2764/11 Page 36 of 8843. By virtue of Resolution No. 21, the Academic Council resolved that all the departments, who had so far proposed incomplete or provisional semester based undergraduate syllabi must submit the complete syllabi to the respective Faculties and that the Faculties must recommend the same to the Academic Council as early as possible, but not later than 30.09.2011.
44. The meeting of the Academic Council was followed by a meeting of the Executive Council on 09.07.2011. In this meeting, 17 members were present alongwith 6 special invitees. By virtue of Resolution No. 149, the Executive Council approved the recommendations of the Academic Council made in its meeting held on 08.07.2011 with regard to amendments to Appendix-II to Ordinance V(2) of the Ordinances of the University. By virtue of Resolution No. 156, the emergency action taken by the Vice- Chancellor in exercise of his powers under clause (4) of Statute 11(G) of the Statutes of the University, the Executive Council resolved that the same be reported, recorded and confirmed. By a notification dated 20.07.2011, the University notified the amendments to the Ordinances and Appendices to the Ordinances of the University passed by the Executive Council in its meeting held on 25.04.2011 and 09.07.2011.
45. Thereafter, on 24.08.2011, the Court of University held its meeting. All the amended Ordinances relating to the semester system at the undergraduate level were placed before the University Court as required by section 31(4) of the said Act. In the said meeting, it was recorded that the University had successfully transited to a semester-based mode of learning for all programmes of study at the undergraduate as well as postgraduate WP (C) Nos.822/11 & 2764/11 Page 37 of 88 level and it was resolved under Item No.11/(a) that the various amendments to the Ordinances and Appendices to Ordinances for the period from 26.03.2010 to 09.07.2011 be adopted. Out of 250 members present, 7 members submitted a written dissent. However, by clear majority, the University Court approved the various amendments to the Ordinances and Appendices to Ordinances as approved by the Executive Council in its meeting held on 25.04.2011 and 09.07.2011.
46. By a letter dated 05.09.2011, the Registrar of the University of Delhi informed the Government of India, Ministry of Human Resource Development (Department of Secondary and Higher Education), New Delhi about the amendments to the Ordinances and Appendices to the Ordinances of the University. In purported compliance of the provisions of Section 31(4) of the said Act, the said information with regard to the amendments to the Ordinances and Appendices to the Ordinances of the University were sent for information of the Visitor of the University.
47. By another letter dated 05.09.2011, the Registrar, University of Delhi requested the Assistant Controller, Government of India, Department of Publications, Civil Lines, Delhi for publication of the amendments in the Ordinances of the University in the Gazette of India, Part-III Section 4. This was followed by a letter dated 15.11.2011 by the Registrar to the Government of India, Ministry of Human Resources Development (Department of Higher Education), Shastri Bhawan, New Delhi with regard to whether the amendment to Section 32 of the Delhi University Act, 1922 WP (C) Nos.822/11 & 2764/11 Page 38 of 88 was in force or not and whether it was necessary for the amendments to the Ordinances to be published in the official Gazette of India.
The Scheme of Provisions:
48. The Delhi University Act, 1922 established and incorporated a teaching and affiliating university at Delhi. Section 3(1) of the said Act stipulated that the first Chancellor and the first Vice-Chancellor of the University and the first members of the Court, the Executive Council and the Academic Council and all persons, who may subsequently become such officers or members, so long as they continue to hold such office or membership, shall constitute a body corporate by the name of "The University of Delhi". By virtue of Section 7(1) of the said Act, all recognized teaching in connection with the university courses are required to be conducted under the control of the Academic Council by the teachers of the University and such teaching is to include lecturing, laboratory work and other teaching conducted in accordance with any syllabus prescribed by the Regulations. Sub-section (3) of Section 7 stipulates that the authorities responsible for organizing such teaching shall be prescribed by the Statutes. Sub-section (4) of Section 7 of the said Act mandates that the courses and curricula shall be prescribed by the Ordinances and, subject thereto, by the Regulations.
49. Section 17 of the said Act lists the authorities of the University. They are:-
(1) The Court;
(2) The Executive Council;
WP (C) Nos.822/11 & 2764/11 Page 39 of 88
(3) The Academic Council;
(4) The Finance Committee;
(5) The Faculties; and
(6) Such other authorities, as may be declared by the Statutes
to be the authorities of the University.
50. Section 21 of the said Act stipulates that the Executive Council shall be the Executive Body of the University and its constitution and the terms of office of its members, other than ex-officio members, shall be prescribed by the Statutes. Similarly, Section 23 of the said Act provides that the Academic Council shall be the Academic Body of the University and shall, subject to the provisions of the said Act, the Statutes and the Ordinances, have the control and general regulation, and be responsible for the maintenance of the standards of instruction, education and examination within the University, and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes. It further provided that the Academic Council shall have the right to advice the Executive Council on all academic matters and that the constitution of the Academic Council and the term of office of its members, other than ex officio members, shall be prescribed by the Statutes. Section 28 of the said Act indicates the matters which may be provided for by the Statutes. Such matters include the constitution, powers and duties of the Court, the Executive Council, the Academic Council, the Finance Committee and such other bodies as may be deemed necessary to be constituted from time to time. It also includes the establishment and abolition of Faculties, Departments, Halls, Colleges and Institutions as also all other matters which are provided for under the said Act or may be provided for by the Statutes. Section 29(2) empowers the Executive Council to make new or WP (C) Nos.822/11 & 2764/11 Page 40 of 88 additional Statutes or to amend or to repeal the Statutes from time to time, subject to certain limitations prescribed in the provisos thereto.
51. Section 30 of the said Act outlines the matters, subject to the provisions of the said Act and the Statutes, which may be provided for by the Ordinances. Those matters include the courses of study to be laid down for all degrees, diplomas and certificates of the University, the conduct of examinations and the management of colleges and other institutions founded or maintained by the University. It also includes all other matters which may be provided for by the Ordinances in terms of the said Act or the Statutes. Section 31(1) of the said Act empowers the Executive Council to amend, repeal or add to the existing Ordinances. However, Section 31(1)(ii)(b) stipulates that no Ordinance shall be made affecting the conditions, mode of appointment or duties of examiners or the conduct or standard of examinations or any course of study unless a draft of such Ordinance has been proposed by the Academic Council. Sub-section (2) of Section 31 further stipulates that the Executive Council shall not have the power to amend any draft proposed by the Academic Council under sub- section (1), but may reject the proposal or return the draft to the Academic Council for reconsideration, either in whole or in part, together with any amendments which the Executive Council may suggest.
52. Section 32(1) of the said Act provides that the authorities of the University may make Regulations consistent with the Act, the Statutes and the Ordinances (a) laying down the procedure to be observed at their meetings and the number of members to form a quorum; (b) providing for WP (C) Nos.822/11 & 2764/11 Page 41 of 88 all the matters which, by the said Act, the Statutes or the Ordinances, are to be prescribed by the Regulations; and (c) providing for all other matters solely concerning such authorities or committees appointed by them and not provided for by the said Act, the Statutes or the Ordinances. Initially, Section 32 comprised of only three sub-sections. However, by virtue of the Delegated Legislation Provisions (Amendment) Act, 2004, sub-sections (4) and (5) were added to Section 32 of the said Act. Those sub-sections read as under:-
"(4) Every Statute, Ordinance or Regulation made under this Act shall be published in the Official Gazette;
(5) Every Statute, Ordinance or Regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the Statute, Ordinance or Regulation or both Houses agree that the Statute, Ordinance or Regulation should not be made, the Statute, Ordinance or Regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Statute, Ordinance or Regulation."
53. The composition of the Executive Council is provided for by Statute 5(1). From the same, it can be discerned that the Executive Council would consist of 22 persons. Statute 5(4) stipulates that 7 members of the Executive Council shall form a quorum. Statute 6(1) stipulates that the Executive Council shall, subject to the control of the Court, have the WP (C) Nos.822/11 & 2764/11 Page 42 of 88 management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for. Statute 7(1) indicates the composition of the Academic Council. It includes the Vice-Chancellor, Pro-Vice-Chancellor, Dean of Colleges, Deans of Faculties, Heads of Departments (other than Deans of Faculties), etc. It also includes five students of the University of whom 1 should be a research student, 2 post-graduate students and 2 under- graduate students. Statute 7(3) stipulates that 30 members of the Academic Council shall form a quorum. Statute 9 pertains to the various Faculties of the University. Statute 10 stipulates that the Faculties shall have such powers and shall perform such duties as may be assigned to them by the Statutes and the Ordinances and shall, from time to time, appoint such and so many Committees of Courses and Studies in different branches of knowledge as may be prescribed by the Ordinances. The Faculties are required to consider and make such recommendations to the Academic Council on any question pertaining to the respective spheres of work as may appear to them necessary or on any matter referred to them by the Academic Council.
54. Statute 11-G deals with the powers of the Vice-Chancellor. Since there has been controversy with regard to the exercise of the powers by the Vice-Chancellor in these petitions, it would be appropriate to set out the entire Statute 11-G which reads as under:-
"11-G. - (1) The Vice-Chancellor shall be the principal Executive and Academic Officer of the University and shall take rank in the University next to the Pro-Chancellor. He shall be the ex-officio Chairman of the Executive Council, the WP (C) Nos.822/11 & 2764/11 Page 43 of 88 Academic Council and the Finance Committee, and shall, in the absence of the Chancellor and the Pro-Chancellor, preside at the Convocation to confer degrees. In the absence of the Chancellor and the Pro-Chancellor, he shall also preside at the meetings of the Court. He shall be entitled to be present at and to address any meeting of any authority or other body of the University but shall not be entitled to vote thereat unless he is a member of such authority or body.
(2) It shall be the duty of the Vice-Chancellor to see that the Act, the Statutes, the Ordinances and the Regulations are duly observed and he shall have all powers necessary for that purpose.
(3) He shall have the power of convening meetings of the Court, the Executive Council and the Academic Council and shall perform all such acts, as may be necessary to carry out or further the provisions of the Act, the Statutes and the Ordinances.
(4) If, in the opinion of the Vice-Chancellor, any emergency has arisen which requires that immediate action should be taken, the Vice-Chancellor shall take such action as he deems necessary and shall report the same for confirmation at the next meeting to the authority which, in the ordinary course, would have dealt with the matter:
Provided further if the action taken by the Vice- Chancellor is not approved by the authority concerned he may refer the matter to the Visitor whose decision thereon shall be final:
Provided further that where any such action taken by the Vice-Chancellor affects any person in the service of the University, such person shall be entitled to prefer, within thirty days from the date on which he receives notice of such action, an appeal to the Executive Council.WP (C) Nos.822/11 & 2764/11 Page 44 of 88
(5) The Vice-Chancellor shall exercise general control over the affairs of the University and shall give effect to the decisions of the Authorities of the University.
(6) All powers relating to the proper maintenance of discipline, in the University shall stand vested in the Vice-
Chancellor."
55. Ordinance V of the Ordinances deals with the University degrees, diplomas and certificates. Article 1 of Ordinance V stipulates that there shall be courses of study in the University for the degrees, diplomas and certificates specified therein. These include pass courses, honours courses, masters courses, M. Phil, diploma courses and certificate courses, both at the undergraduate and postgraduate level. Article 2 of Ordinance V stipulates that the respective courses of study for each of the degrees, diplomas and certificates shall be those as set out in Appendix-II to the Ordinances. Regulation No.1 of the Regulations concerning the Executive Council stipulates that the meetings of the Executive Council shall be convened by the Vice-Chancellor at any time. It is, however, provided that if a requisition is sent by any five members of the Executive Council for convening a special meeting, the Vice-Chancellor shall convene the special meeting on a date fixed by him and that at such meeting only such subjects as the signatories to the requisition have set forth in the requisition shall first be forwarded and disposed of. Regulation No.2 of the said Regulations stipulates that the Registrar shall, ordinarily, issue notice to each member of the Executive Council at least 7 days before each meeting of the Executive Council. A copy of the agenda would also be sent alongwith the notice. However, in case of emergent meetings, the Vice-Chancellor may suspend WP (C) Nos.822/11 & 2764/11 Page 45 of 88 or modify the operation of this rule. Regulation No.3 of the said Regulations stipulates that at all the meetings of the Executive Council, 7 members shall form a quorum. Regulation No.14 of the said Regulations provides as under:-
"14. Every question shall be decided by a majority of the votes of the members present. It shall be in the option of the Chairman to decide the manner in which the votes of the members shall be recorded."
Regulation 15 provides as under:-
"15. In the case of equality of votes, the Chairman shall have the casting vote in addition to his vote as member."
56. There are regulations pertaining to the Academic Council. Regulation No.1 thereof stipulates that meetings of the Academic Council shall be convened by the Vice-Chancellor at any time. However, any 10 members of the Academic Council may submit a signed requisition for convening a special meeting of the Academic Council. Thereupon, the Vice-Chancellor is required to convene a special meeting on a date fixed by him. At such special meetings, only such subjects as the signatories to the requisition had set forth in the requisition shall first be brought forward and disposed of. Regulation No.2 stipulates that the Registrar shall, ordinarily, at least seven days before each meeting of the Academic Council issue to each member thereof a notice convening the meeting and a copy of the agenda thereof. It is further provided that in the case of emergent meetings, the Vice-Chancellor may suspend or modify the operation of this rule. Regulation 7 stipulates as under:-
"7. All proposals brought forward for the consideration of the Academic Council, shall be decided by majority of votes.WP (C) Nos.822/11 & 2764/11 Page 46 of 88
The Chairman may decide that any matter may be so decided by a secret ballot or by the show of hands at his discretion."
57. Regulation 10 of the Regulations pertaining to the Academic Council provides that all the rules of the Executive Council not inconsistent with these rules shall mutatis mutandis, apply to all meetings of the Academic Council and, Regulation No.11 stipulates that the Chairman may give his own vote and on equality of votes, he shall possess a casting vote.
Challenges:-
(A) Re: Meeting of the Academic Council on 05.06.2009
58. The petitioners submit that in the meeting held on 05.06.2009, no resolution was passed with regard to introduction of the semester system to be introduced at the undergraduate level from the Academic Session 2010-
11. It was contended that the Resolution was not put to vote. From the minutes of the meeting of 05.06.2009 of the Academic Council, we find that as per Resolution 3, the minutes of the meeting of the Academic Council held, inter alia, on 07.10.2008 have been confirmed. We have already indicated that on 07.10.2008, it had been proposed that the semester system be implemented for the undergraduate courses of the University with effect from the academic year 2010-11. So, this got confirmed by Resolution No.3 in the meeting of 05.06.2009. Apart from that, Resolution No.10 specifically records that it was resolved that the semester system be introduced at the undergraduate level with effect from the academic session 2010-11.
WP (C) Nos.822/11 & 2764/11 Page 47 of 8859. Resolution No.7 pertaining to the Academic Council, as indicated above, requires that all proposals brought forward for the consideration of the Academic Council shall be decided by a majority of votes. The Chairman (Vice-Chancellor) had the power to decide as to whether any matter was to be decided by a secret ballot or by the show of hands at his discretion. We do not agree with the submission made by the learned counsel for the petitioners that there was no resolution passed in the meeting held on 05.06.2009 to the effect that the semester system be introduced at the undergraduate level from the academic session 2010-11. This is belied by the record. Such a resolution had been passed. We also do not agree with the submission made by the learned counsel for the petitioners that the Resolution was not put to vote. The mere fact that no dissents were recorded, does not mean that the resolution was not put to vote. From a reading of the minutes of the meeting of the Academic Council held on 05.06.2009, it appears that the resolution was carried unanimously. Consequently, the challenge to the decision taken on 05.06.2009 by the Academic Council fails.
(B) Re: The meeting of the Executive Council held on 26.06.2009
60. In this meeting, as per the minutes, under Resolution No. 03, the Executive Council had resolved that the semester system be introduced at the undergraduate level with effect from the Academic Session 2010-11. We have already noted earlier that 4 members of the Executive Council, who were present on that day, recorded their dissent to the said resolution. We have also indicated above that, as per Regulation No. 14 pertaining to WP (C) Nos.822/11 & 2764/11 Page 48 of 88 the Executive Council, every question is to be decided by a majority of votes of the members present. Furthermore, it is open to the Chairman (Vice-Chancellor) to decide the manner in which the votes of the members shall be recorded. On that date, i.e., on 26.06.2009, 15 members of the Executive Council were present. As such, the quorum of 7 members stipulated under Statute 5(4) stood satisfied. Out of those 15 members, apparently 4 members dissented to the said Resolution being passed. In other words, the majority, that is, 11 members, were in favour of the Resolution. We do not agree with the submission made by the learned counsel for the petitioners that there was no voting at the meeting. We have already indicated that as per Regulation No. 14 of the Regulations dealing with the Executive Council, it was open to the Chairman (Vice-Chancellor) to decide the manner in which the votes of the members shall be recorded. The manner chosen by the Chairman was to record the dissents. Since only a minority dissented, it is obvious that the majority approved the Resolution. Therefore, the Resolution of the Executive Council to the effect that the semester system be introduced at the undergraduate level with effect from the Academic Session 2010-11 is valid.
(C) Re: The Academic Council meeting held on 13.05.2010
61. The meeting of the Academic Council held on 13.05.2010 was a special meeting which had been convened for considering the syllabi of the semester-based courses, which were to be implemented for the academic session 2010-11. As mentioned in the minutes, some of the elected members wanted to re-open the desirability and feasibility of the semester WP (C) Nos.822/11 & 2764/11 Page 49 of 88 system in undergraduate courses. It was informed by the Vice-Chancellor that the Resolution for implementation of the semester system in undergraduate courses from the Academic Session 2010-11 had already been approved by the Academic Council by its Resolution No. 10 dated 05.06.2009. However, some of the elected members of the Council debated the issue which continued for several hours, as per the minutes. The recommendations of the Standing Committee on Academic Matters of the Academic Council made in its meeting held on 11.05.2010 were considered and it was resolved to accept the recommendations set out in Resolution No.3. In effect, the semester based syllabi of 12 undergraduate science courses had been approved. It was further resolved that consequential amendments / additions / modifications, if any, be made in the Ordinances. It is pertinent to note that in this meeting, 27 members dissented to the aforesaid Resolution. The members present in that meeting were 90 in number apart from 8 special invitees. We have already noticed that the quorum for a meeting of the Academic Council, as per Statute 7(3), is 30. Therefore, the meeting was validly held. Since 27 members dissented, they constituted a minority of the 90 members present. It may be a substantial minority, yet it was a minority. The majority were in favour of the Resolution which ultimately came to be passed. Therefore, we do not see any merit in the challenge made by the petitioners to the validity of the Resolution passed in the special meeting of the Academic Council held on 13.05.2010.
WP (C) Nos.822/11 & 2764/11 Page 50 of 88(D) Re: letters / circulars dated 25.05.2010 and 26.05.2010 issued by the Registrar, University of Delhi
62. The letter dated 25.05.2010 pertains to the 12 undergraduate science courses, the syllabi for which had been approved by the Academic Council in its special meeting held on 13.05.2010. The letter dated 26.05.2010 pertains to another science undergraduate course [B.Sc. (Honours) Electronics]. The Vice-Chancellor had approved the semester-based syllabus of that course for the academic session 2010-11 onwards. By virtue of both these letters, the Principals of the various colleges were requested to take all necessary steps for information of the admission seeking students and it was also indicated that all the approved syllabi of the semester-based undergraduate courses were being uploaded on the website of the University so that prospective students may be informed accordingly. The objections against these two letters are that they were issued by the Registrar of the University of Delhi without the matter having travelled from the Academic Council to the Executive Council. The challenge to these letters is also with regard to the use of the emergency powers under Statute 11-G(4) of the Statutes by the Vice-Chancellor. It was contended that the said emergency powers were wrongly invoked without there being any state of emergency. However, it may be noted that the exercise of the emergency powers by the Vice-Chancellor were subsequently ratified by the Academic Council in its meeting held on 25.04.2011. In that meeting, the Vice-Chancellor's approval on 08.06.2010 of the recommendations of the Academic Council with regard to amendments in Ordinances (II, VII, VIII, VIII-E and IX) relating to the WP (C) Nos.822/11 & 2764/11 Page 51 of 88 implementation of the semester scheme at the undergraduate level with effect from the academic session 2010-11 were approved. Apart from this, the revised syllabus (semester based) of the B.Sc. (Honours) Electronic Science as approved by the Vice-Chancellor based on the recommendations of the Faculty of Inter-Disciplinary and Applied Science in their meeting held on 24.05.2010 for implementation from the academic session 2010-11 was also confirmed. Statute 11-G(4) requires that, if in the opinion of the Vice-Chancellor, any emergency has arisen which requires that immediate action is to be taken, the Vice-Chancellor is permitted to take such action as he deems necessary, but is required to report the same for confirmation at the next meeting to the authority which, in the ordinary course, would have dealt with the matter. The first proviso to Statute 11-G(4) stipulates that if the action taken by the Vice-Chancellor is not approved by the authority concerned, he may refer the matter to the Visitor, whose decision thereon would be final. The Academic Council had, in its special meeting of 13.05.2010 approved the syllabi of the 12 undergraduate science courses to be implemented from the academic session 2010-11. The Vice-Chancellor approved the syllabus of an additional undergraduate science course. In the normal course, the change in the course of study, which includes the syllabi of these courses, ought to have been done by amendment of the Ordinances under Section 31 of the said Act. The Ordinances of the University could be amended, repealed or added to at any time by the Executive Council. Section 31(1)(ii)(b), as pointed out earlier, provides that no Ordinance concerning the conduct or standards of examinations or any course of study could be made by the Executive Council unless and until a draft of such Ordinance had been proposed by the Academic Council. Furthermore, WP (C) Nos.822/11 & 2764/11 Page 52 of 88 Section 31(2) stipulates that the Executive Council did not have the power to amend any draft proposed by the Academic Council, but could reject the proposal or return the draft to the Academic Council for reconsideration, either in whole or in part, together with any amendments which the Executive Council may suggest. These provisions make it clear that the Ordinances of the University, which, inter alia, provide for the courses of study, could only be amended by the Executive Council. However, no such amendment could be carried out without a proposal from the Academic Council. In the present case, what had happened was that the Academic Council had made the proposal for the amendments in the Ordinances, inter alia, with regard to the introduction of the semester based syllabi for the 12 undergraduate science courses. The Vice-Chancellor added a 13th course while approving the syllabi as recommended by the Faculty of Inter- disciplinary and Applied Sciences. Thereafter, on the directions of the Vice-Chancellor, in exercise of his powers under Statute 11-G(4) of the Statutes, the Registrar requested the Principals of colleges by virtue of the said letters dated 25.05.2010 and 26.05.2010 to take all necessary steps for the admission seeking students and also to bring about necessary modifications in the admission brochures / prospectus of the respective colleges.
63. Normally, the proposal of the Academic Council ought to have been placed before the Executive Council before the changes in the courses of study could be brought about and or implemented. However, the Vice- Chancellor had the power in emergency situations to take immediate action, subject to his reporting the same for confirmation at the next meeting to the WP (C) Nos.822/11 & 2764/11 Page 53 of 88 authority, which, in the ordinary course, would have dealt with the matter. The next meeting of the Academic Council was held on 25.04.2011. We have already pointed out that the action of the Vice-Chancellor in exercise of his emergency powers under Statute 11-G(4) of the Statutes was confirmed by the Academic Council in its meeting held on 25.04.2011. Thereafter, in a special meeting of the Executive Council held in the afternoon on 25.04.2011 by virtue of the Resolution No. 04, it was resolved that the action taken by the Vice-Chancellor in exercise of his emergency powers under clause (4) of the Statute 11-G of the Statutes of the University, in approving on 08.06.2010, the recommendations of the Committee with regard to amendments in Ordinances relating to implementation of the semester scheme at the undergraduate / postgraduate levels with effect from the academic session 2010-11 be reported, recorded and confirmed. In other words, the Executive Council confirmed the action of the Vice-Chancellor in invoking the emergency provision of Statute 11-G(4) of the Statutes. Since the action taken by the Vice-Chancellor was approved, there was no question of any reference being made to the Visitor, as indicated in the first proviso to the said provision. Thus, the objection taken by the petitioners that the emergency powers had been wrongly invoked by the Vice-Chancellor cannot be sustained in view of the fact that the Academic Council as well as the Executive Council approved of such action on the part of the Vice-Chancellor. Consequently, the issuance of the letters dated 25.05.2010 and 26.05.2010 cannot be faulted.
WP (C) Nos.822/11 & 2764/11 Page 54 of 88(E) Re:- Notification dated 14.06.2010 issued by the Deputy Registrar (Counsel), University of Delhi
64. By virtue of the notification dated 14.06.2010, the amendments to the Ordinances of the University approved by the Vice-Chancellor under the emergency powers vested in him under Statute 11-G(4) of the Statutes were notified for information and necessary action. The approval of the Vice- Chancellor, as mentioned above, was granted on 08.06.2010. That approval, was in furtherance of and in exercise of the emergency powers under Statute 11-G(4) of the Statutes. We have already mentioned above that the exercise of the emergency powers by which the amendments to the Ordinances had been approved by the Vice-Chancellor invoking his emergency powers had been ratified and confirmed both by the Academic Council and the Executive Council in the subsequent meetings held on 25.04.2011. In other words, the action taken by the Vice-Chancellor was confirmed by the concerned authorities under the said Act. The plea taken by the petitioners was that the Vice-Chancellor had invoked the emergency powers to amend Ordinances though there was no stated emergency and, in fact, there was no emergency. However, it was contended on behalf of the University that there were attempts at disrupting the meetings and that there was a full-fledged campaign which had been undertaken by some teachers, who were members of DUTA, to derail the process of implementation of the semester based system in the University from the academic session 2010-11 onwards. It was also contended that time was short inasmuch as the academic session 2010-11 was to start in July-August 2010 and the Academic Council had approved the amendments to be brought about in WP (C) Nos.822/11 & 2764/11 Page 55 of 88 the syllabi of the undergraduate courses on 13.05.2010. The students had to be notified and the admission process had to be undertaken immediately. It is for this reason that the Vice-Chancellor approved the amendments to the Ordinances of the University in order to implement the semester based course of study for the 13 undergraduate science courses. In any event, it was for the Academic Council and the Executive Council to confirm or not to confirm the action taken by the Vice-Chancellor under Statute 11-G(4). Both these authorities under the said Act have, as pointed out above, ratified and confirmed the said action on the part of the Vice-Chancellor in their meetings held on 25.04.2011. Therefore, the challenge to the notification dated 14.06.2010 is also not sustainable.
(F) Re:- The letter dated 01.10.2010 written by the Vice-Chancellor to all the Deans and Heads of Departments, University of Delhi
65. This letter has been challenged by the petitioner as being violative of Section 23 of the Delhi University Act. The said provision stipulates that the Academic Council shall be the academic body of the University and shall, subject to the provisions of the said Act, the Statutes and the Ordinances, have the control and general regulation and be responsible for the maintenance of the standards of instructions, education and examination within the University and shall exercise such other powers and perform such other duties as may be confirmed or imposed upon it by the Statutes. The Academic Council has the right to advise the Executive Council on all academic matters. We are unable to comprehend as to how the issuance of the letter dated 01.10.2010 contravenes Section 23 of the said Act. All that WP (C) Nos.822/11 & 2764/11 Page 56 of 88 the Vice-Chancellor has done by the said letter is to reach out to the Deans and Heads of Departments, University of Delhi to undertake the work of moving to the semester mode of education. This request has been made in the backdrop of the fact that the shift to the semester mode had already been cleared by the Academic Council and the Executive Council in their meetings held on 05.06.2009 and 26.06.2009, respectively. It was also pointed out in the said letter dated 01.10.2010 that the switch to the semester mode was also a part of the National Education Policy in higher education as per the recommendations of the University Grants Commission. Point No.5 in the said letter dated 01.10.2010 mentioned that as per the University Statutes and Ordinances, the responsibility for modification, semesterization and revision of courses lies with two bodies, namely, the Committee of Courses and the Faculty. The Vice-Chancellor stated in the said letter that these stipulations must be followed with clarity and that, as mentioned in point No. 6 of the said letter, if some members of the Committee of Courses did not believe in the semester mode or believe that no revision is required, they should voluntarily step down so as to allow other people to be part of the Committee of Courses. It is apparent from a reading of Statute 10 of the Statutes that the Faculties shall have powers and shall perform such duties as may be assigned to them by the Statutes and Ordinances and shall, from time to time, appoint such and so many Committees of Courses and Studies in different branches of knowledge as may be prescribed by the Ordinances. It is the Faculties which shall consider and make recommendations to the Academic Council on any question pertaining to their respective spheres of work as may appear to them necessary or on any other matter referred to them by the WP (C) Nos.822/11 & 2764/11 Page 57 of 88 Academic Council. Therefore, the Vice-Chancellor was not wrong in stating that the responsibility of the modification, semesterization and revision of courses lay with the Committee of Courses and the Faculties. The said letter only expresses a desire that the resolutions passed by the Academic Council and Executive Council with regard to semesterization ought to have been implemented and for this purpose, the Faculties and the Committee of Courses were required to undertake the exercise of revision of the syllabi. Therefore, we are of the view that the letter dated 01.10.2010 does not, in any way, contravene the provisions of Section 23 of the said Act.
(G) Re:- Notification dated 19.04.2011
66. The challenge to the notification dated 19.04.2011 is essentially to point No. 10 thereof which reads as under:-
"10. The prospectus of the college should clearly state that all undergraduate degree courses shall be taught in semester mode in academic session 2011-12."
The said notification dated 19.04.2011 essentially notifies the undergraduate students' admission process to be followed in the academic session 2011-12. Out of 18 points mentioned in the notification only one (Point No. 10) is being objected to. The other points relate to general prescriptions with regard to the admission process which includes issues such as the form for admission, the cut-off marks, eligibility criteria, open days, etc. By virtue of Point No. 10 of the said notification, colleges are only notified that the prospectus should clearly state that all the undergraduate degree courses would be taught in the semester mode in the WP (C) Nos.822/11 & 2764/11 Page 58 of 88 academic session 2011-12. The decision to shift to the semester mode had, as mentioned earlier, already been taken by the Academic Council in its meeting on 05.06.2009 and by the Executive Council in its meeting on 26.06.2009. Resolution No. 03 of the Executive Council meeting held on 26.06.2009, clearly mentioned that the semester system be introduced in the undergraduate level with effect from the academic session 2010-11. As mentioned above, in the academic session 2010-11, 13 undergraduate science courses were introduced under the semester mode. By virtue of the said notification dated 19.04.2011, the colleges were notified that the prospectus should clearly state that all the undergraduate degree courses would be taught in the semester mode in the academic session 2011-12. This direction is not contrary to the decisions and resolutions of the Academic Council and the Executive Council. The learned counsel for the petitioner submitted that how could such a direction be given when the syllabi itself of all the undergraduate courses had not been approved. The answer to this, as provided by the respondents is that the question of approval of syllabi of these courses was on the anvil and in anticipation thereof, but, pursuant to the earlier resolutions of the Academic Council and the Executive Council, the colleges had been notified to ensure that the prospectus of each college should clearly state that all the undergraduate degree courses would be taught in the semester mode in the academic session 2011-12. In this backdrop, we agree with the submission made by the learned counsel for the respondents and find that the challenge on the part of the petitioners to this notification is untenable. The notification only carried forward the resolutions of the Academic Council and the Executive Council, which, in fact, were for the academic session 2010-11 onwards.
WP (C) Nos.822/11 & 2764/11 Page 59 of 88(H) Re:- The special meeting of the Academic Council and the Executive Council held on 25.04.2011
67. The challenge to the meeting of the Academic Council, which was held in the morning of 25.04.2011, is that the notice of the meeting was issued only on 22.04.2011 and the said notice was received by members of the Academic Council only on 23rd and 24th of April, 2011. It is further submitted that the documents running into over a thousand pages relating to 54 courses of undergraduate study were to be looked into and this was practically and humanly impossible. All these documents have allegedly been considered in the said meeting of the Academic Council and resolutions have been passed in half a day. Therefore, it was contended that the Academic Council mechanically passed the resolutions and approved the courses of study under the semester system for all the undergraduate courses in the University. It was also contended that, while some members (six in number) recorded their dissent on the decisions of the meeting, there was no proper voting which was the requirement of law. Therefore, according to the petitioners, the resolutions passed in the meeting of the Academic Council on 25.04.2011 were vitiated.
68. We have already noted that the special meeting of the Academic Council had been called upon a requisition dated 19.04.2011 from some members of the Academic Council. The meeting was called on an emergent basis to consider various subjects, which included the recommendations of the Faculties regarding semester based syllabi of the undergraduate courses to be implemented from the academic session 2011- WP (C) Nos.822/11 & 2764/11 Page 60 of 88
12. The action taken by the Vice-Chancellor in connection with the implementation of the semester system at the undergraduate level in the academic session 2010-11 was also to be reported. The drafts of the amendments of Ordinances relating to implementation of the semester system were also to be considered and approved. The detailed agenda papers were enclosed with the said notice. On the side of the respondents, it was submitted that the question of introduction of the semester system was in contemplation since 2008 and it was not something which had been conjured up overnight. It was submitted that the semesterization issue was a live one and it had been well-debated both within the various committees of the University and without. Even press conferences and agitations were held. Therefore, it was not as if the issue was not within the knowledge of the members of the Academic Council. In any event, the Academic Council had approved the syllabi and the introduction of the semester based system for all the undergraduate courses from the academic session 2011- 12 onwards in its meeting held on 25.04.2011. Consequently, it was submitted on behalf of the University that there was nothing wrong with the meeting of the Academic Council on 25.04.2011 and the resolutions passed therein.
69. We have already pointed out above that the notice for the meeting was issued on 22.04.2011 on the basis of a requisition. It was an emergent meeting. The plea taken by the petitioners that very short notice was given, would not be of any relevance in view of the fact that 101 members of the Academic Council were present in the said meeting alongwith nine special invitees. Furthermore, only six members had dissented to the decisions WP (C) Nos.822/11 & 2764/11 Page 61 of 88 taken in the meeting. In other words, the vast majority of the members of the Academic Council voted in favour of all the proposals and decisions taken in the said meeting. It may be relevant to note that Regulation 7, pertaining to the Academic Council, clearly stipulates that all the proposals brought forward for the consideration of the Academic Council, shall be decided by a majority of votes. The said Regulation also stipulated that the Chairman may decide that any matter may be so decided by a secret ballot or by the show of hands at his discretion. Thus, the fact that there was no balloting as such, does not, in any manner, indicate that there was no voting. When the minutes of the meeting take note of the fact that six members had dissented, it is apparent that the others had not. None of the members, who have not dissented, have come forward to say that the proceedings of the meeting held on 25.04.2011 were inaccurately recorded. It is obvious that in the Academic Council, as in any other body, there may be many occasions when decisions are not unanimous. In such situations, as indeed in democracy, the decisions have to be taken by majority. Those who dissented or those persons who align themselves with the dissenters cannot be permitted to overturn the decision of the majority of members present. Thus, the submission that the voting was improper and, therefore, it was not valid and binding, is not tenable.
70. The above meeting of the Academic Council was followed by the meeting of the Executive Council in the afternoon. As pointed out earlier, 16 members were present apart from 5 special invitees. By virtue of Resolution No. 03, the recommendations of the Academic Council made in its special meeting held on 25.04.2011 proposing the draft amendments in WP (C) Nos.822/11 & 2764/11 Page 62 of 88 Appendix-II to Ordinance V(2) of the Ordinances of the University was approved. The existing syllabi of a number of courses with the revised semester-based syllabi was also approved. Insofar as Resolution No. 03 was concerned, one member had dissented. Resolution No. 04 of the Executive Council, inter alia, confirmed the action taken by the Vice- Chancellor in exercise of his emergency powers under Statute 11-G(4) of the Statutes in approving, on 08.06.2010, the recommendations of the Committee with regard to amendments in Ordinances relating to the implementation of the semester scheme with effect from the academic session 2010-11. Insofar as this Resolution was concerned, two members had dissented. It was further resolved by virtue of Resolution No. 05 that in order to implement the semesterization of syllabi of those undergraduate courses of study which had not yet been received from the Faculties, the Academic Council authorized the Vice-Chancellor to take all necessary measures as the Vice-Chancellor would deem fit for their implementation from the academic session 2011-12. Two members had dissented in respect of this Resolution No. 05. It will thus be seen that, as in the case of the Academic Council, even in the Executive Council, only a minority of the members had disapproved and / or dissented from the decisions taken therein.
71. Regulation 14 of the Regulations pertaining to the Executive Council clearly stipulates that every question shall be decided by a majority of votes of the members present and that it shall be at the option of the Chairman to decide the manner in which the votes of the members shall be recorded. The Chairman had noted the dissents and that, according to us, would be in WP (C) Nos.822/11 & 2764/11 Page 63 of 88 compliance with Regulation 14 of the Regulations pertaining to the Executive Council. Only a minority had dissented to the decisions and, therefore, the decision of the majority would hold. None of the members, who were part of the majority decision have come forward before this court to state that the minutes were not recorded accurately or that there was no voting on the resolutions. Consequently, the challenge to the two meetings of the Academic Council and the Executive Council held on 25.04.2011 must fail.
(I) Re:- The amendments to the Ordinances and Appendices to the Ordinances of the University not having been laid before each House of the Parliament
72. The petitioners have contended that as the Ordinances and the Appendices to the Ordinances had been amended, that ought to have been laid before each House of the Parliament as required under Section 32(5) of the said Act. It was argued that since the amendments were not laid before each House of the Parliament, they would have no legal effect and ought to be declared as invalid.
73. We have already set out the provisions of Section 32(5) of the said Act. It would be noticed that, undoubtedly, the said provision, uses the word "shall" and, as is often the case, when such a word is used in a situation, it is usually regarded in the mandatory sense. But, as is well- settled, the mere use of the word "shall" does not make a provision mandatory. The court is required to ascertain the real intention of the Legislature by looking at the entire scope of the statute. The Supreme WP (C) Nos.822/11 & 2764/11 Page 64 of 88 Court in State of Uttar Pradesh v. Babu Ram Upadhyay: AIR 1961 SC 751, while considering the expression "shall", observed that for ascertaining the real intention of the Legislature, the court may consider, inter alia, the nature and the design of the statute and the consequences which would flow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom and, above all, whether the object of the Legislature will be defeated or furthered. As observed in Atlas Cycle Industries Limited v. State of Haryana: 1979 (2) SCC 196, two considerations for regarding the provision as directory are:-
"(1) Absence of any provision for the contingency of a particular provision not being complied with or followed; and (2) Serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provision."
74. In this light, if we examine the provisions of Section 32(5) of the said Act, we find that there is an absence of any provision having been made for dealing with the contingency where the Statute, Ordinance or Regulation is not laid before each House of Parliament as indicated in Section 32(5) of the said Act. Furthermore, on a plain reading of the provisions of Section 32(5) of the said Act, we find that the condition of laying before Parliament is of a kind which is known as laying subject to a negative resolution. In WP (C) Nos.822/11 & 2764/11 Page 65 of 88 the context of Section 32(5) of the said Act, it means that after the Statute, Ordinance or Regulation is laid before each House of Parliament, as prescribed, if both houses of Parliament agree in making any modification in the Statute, Ordinance or Regulation or both Houses agree that the Statute, Ordinance or Regulation should not be made, then, the Statute, Ordinance or Regulation "shall" thereafter have effect only in such modified form or be of no effect, as the case may be. In other words, if we construe the provisions of Section 32(5), upon a simple reading thereof, it would appear that every Statute, Ordinance or Regulation made under the Act would be valid until it is modified or annulled by both Houses of Parliament. And, if a modification takes place, the Statute, Ordinance or Regulation would, after such modification, have effect only in the modified form. In case both Houses of Parliament agree that the Statute, Ordinance or Regulation should not be made, then, after this decision on the part of both Houses of Parliament, the Statute, Ordinance or Regulation would be of no effect from that date onwards. It is apparent and evident that till the modification is made by the Houses of Parliament or till the Houses of Parliament decide that the Statute, Ordinance or Regulation should not be made, the Statute, Ordinance or Regulation in question would continue to have effect and would be valid. This is specifically made clear by the ending words of Section 32(5) of the Act itself, wherein it has been indicated that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Statute, Ordinance or Regulation.
WP (C) Nos.822/11 & 2764/11 Page 66 of 8875. Therefore, going by the principles of interpretation, as indicated above, we feel that the requirement of placing the amendments to the Ordinances in question before the Houses of Parliament is only directory and not mandatory. We have come to this conclusion because of the simple language employed in the said provision itself. We have also arrived at this conclusion, because there is an absence of any provision in the said Act dealing with the contingency where the Statute, Ordinance or Regulation is not laid before each House of Parliament. Furthermore, we are also of the view that if we hold the amendments to the Ordinances and the Appendices to the Ordinances to be invalid on account of non-compliance of Section 32(5) of the said Act, serious general inconvenience and prejudice would result to the general public and the students and teachers' community in particular. We are fortified in this view taken by us by the Supreme Court decision in the case of Atlas Cycle Industries (supra) as also by the decisions which we shall refer to presently.
76. The first of such decisions is that of a Constitution Bench of the Supreme Court in the case of Jan Mohammad Noor Mohammad Bagban v. State of Gujarat and Another: AIR 1966 SC 385. The Constitution Bench was considering the provisions of Section 26(5) of the Bombay Agricultural Produce Markets Act (22 of 1939), which required that the rules made under Section 26 of that Act "shall" be laid before each of the Houses of the Provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the Official Gazette, be deemed to have been modified or rescinded accordingly. We WP (C) Nos.822/11 & 2764/11 Page 67 of 88 can immediately say that the provisions of Section 26(5) of the said Bombay Act of 1939 are quite similar to the provisions of Section 32(5) of the said Act. In this context, the Supreme Court observed as under:-
"18. Finally, the validity of the rules framed under the Bombay Act 22 of 1939 was canvassed. By Section 26(1) of the Bombay Act the State Government was authorised to make rules for the purpose of carrying out the provisions of the Act. It was provided by sub-section (5) that the rules made under Section 26 shall be laid before each of the Houses of the Provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the Official Gazette, be deemed to have been modified or rescinded accordingly. It was urged by the petitioner that the rules framed under the Bombay Act 22 of 1939 were not placed before the legislative Assembly or the legislative Council at the first session and therefore they had no legal validity. The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out of World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946. Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under Section 26(1). It is true that the legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does WP (C) Nos.822/11 & 2764/11 Page 68 of 88 not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. Granting that the provisions of sub-section (5) of Section 26 by reason of the failure to place the rules before the Houses of Legislature were violated, we are of the view that sub-section (5) of Section 26 having regard to the purposes for which it is made, and in the context in which it occurs cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of Section 64 of the Gujarat Act 20 of 1964 they continue to remain in operation."
(underlining added)
77. From the above extract, what is noteworthy is the observation of the Supreme Court that while the Legislature had prescribed that the rules shall be placed before the Houses of the Legislature, the failure to place the rules before the said Houses did not affect the validity of the rules, merely because they had not been so placed. The Supreme Court held the provisions of Section 26(5) of that Act to be directory and not mandatory and held that the rules, even though they had not been laid before each of the Houses of the Provincial Legislature in the manner indicated in Section 26(5) of that Act, would be valid and continued to remain in operation.
78. In Hukam Chand Etc. v. Union of India and Others: 1972 (2) SCC 601, the Supreme Court was considering Section 40(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which was as under:-
"(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a period of thirty days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making WP (C) Nos.822/11 & 2764/11 Page 69 of 88 any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."
79. It is apparent that the said Section 40(3) is virtually identical to the provisions of Section 32(5) of the said Act. While considering that provision, the Supreme Court approvingly referred to certain passages from the Sixth Edition of Craies on Statute Law in the following manner:-
"13. The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act. It would appear from the observations on pp. 304 to 306 of the Sixth Edn. of Craies on Statute Law that there are three kinds of laying--
(i) laying without further procedure;
(ii) laying subject to negative resolution;
(iii) laying subject to affirmative resolution.
The laying referred to in sub-section (3) of Section 40 is of the second category because the above sub-section contemplates that the rule would have effect unless modified or annulled by the House of Parliament...."
It is obvious that in the present case also, the kind of laying prescribed under Section 32(5) of the said Act would be of the second category, that is, "laying subject to negative resolution". From this, it follows that the amendments made to the Ordinances would have effect unless modified or annulled by the Houses of Parliament.
WP (C) Nos.822/11 & 2764/11 Page 70 of 8880. This brings us to consider the decision of the Supreme Court in Atlas Cycle Industries Limited (supra). Here, the Supreme Court was considering the provisions of Section 3(6) of the Essential Commodities Act, 1955 which ordained that every order made under that Section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be, after it is made. The Supreme Court considered the use of the word "shall" and cautioned that it would be well to remember that the use of that word was not conclusive and decisive of the nature and that the court had to ascertain the true intention of the Legislature, which was the determining factor and that ought to be done by looking carefully to the whole scope, nature and design of the statute. The other observations with regard to the considerations which have to be kept in mind in order to determine whether a provision was mandatory or directory have already been dealt with by us above and we need not repeat the same. The Supreme Court referred to its earlier decision in Hukam Chand (supra) and noted that there were three kinds of laying which were generally used by the Legislature. After noticing the three categories of laying, the Supreme Court held that insofar as Section 3(6) of the Essential Commodities Act, 1955 was concerned, it merely provided that every order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made. The Supreme Court held that the requirement as to laying contained in that provision fell within the first category, that is, simple laying and was directory and not mandatory. Thereafter, the Supreme Court in Atlas Cycle WP (C) Nos.822/11 & 2764/11 Page 71 of 88 Industries (supra) referred to the Constitution Bench decision in Jan Mohammad (supra). It also referred to a decision of the Andhra Pradesh High Court in the case of D.K. Krihsnan V. Secretary, Regional Transport Authority, Chittoor: AIR 1956 Andhra 129 and approved of the observations therein. One of the observations made in the said decision of the Andhra Pradesh High Court, was that where a statute makes the laying of a rule before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there was no difficulty as, in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceased to have force from the date of non-compliance with the condition subsequent. In the present case, we find that the laying of the Statutes, Ordinances and Regulations before the Houses of Parliament is not a condition precedent for the validity of the Statute, Ordinance or Regulation. Thereafter, the same would have to be regarded as directory and not mandatory. It would also be pertinent to note that in Atlas Cycle Industries (supra), the Supreme Court also noted the observations of the High Court of Madhya Pradesh in Mathura Prasad Yadava v. Inspector General, Railway Protection Force, Railway Board, New Delhi: (1974) 19 MPLJ 373, which were to the following effect:-
"What then is the consequence of failure to lay the regulation? ... A correct construction of any particular laying clause depends upon its own terms. If a laying clause defers the coming into force of the rules until they are laid, the rules do not come into force before laying and the requirement of laying is obligatory to make the rule operative so the requirement of laying in a laying clause which requires an affirmative procedure will be held to be mandatory for making the rules operative, because, in such cases the rules do not come into force until they are approved, whether with or without modification, by Parliament. But in case of a WP (C) Nos.822/11 & 2764/11 Page 72 of 88 laying clause which requires a negative procedure, the coming into force of the rules is not deferred and the rules come into force immediately they are made. The effect of a laying clause of this variety is that the rules continue subject to any modification that Parliament may choose to make when they are laid; but the rules remain operative until they are so modified. Laying clauses requiring a negative procedure are, therefore, construed as directory. The matter is put beyond controversy by the decision of the Supreme Court in Jan Mohd. v. State of Gujarat. Our conclusion, therefore, is that the laying requirement enacted in Section 21(3) of the Act is merely directory: It logically follows that failure to lay Regulation 14 has no effect on its validity and it continues to be effective and operative from the date it was made."
81. It is apparent from the above extract that in the case of a laying clause which requires a negative procedure, the coming into force of the rules is not different and the rules come into force immediately on the date they are made. We have already indicated that Section 32(5) of the said Act is a provision stipulating a laying clause which requires a negative procedure. That being so, the same has to be construed as being directory and not mandatory. As observed in the above extract, the matter has been put beyond controversy by the decision of the Supreme Court in Jan Mohammad (supra).
82. We only need to refer to one more decision of the Supreme Court in the case of Quarry Owners Association v. State of Bihar: 2000 (8) SCC 695, wherein the decision in Atlas Cycle Industries (supra) was followed. The Supreme Court went a stage further and held that when a statute requires the placement before Parliament, it is an obligation of the concerned authority to place the Statute, Ordinance or Regulation before WP (C) Nos.822/11 & 2764/11 Page 73 of 88 each House of Parliament. Though, despite such a provision, if this obligation is not carried out, it would not mean that the Statute, Ordinance or Regulation was invalid, at the same time, the provision ought to be complied with. Therefore, the Supreme Court directed that even if the concerned authority had not done so, it should, after the decision of the court, do so by placing the same before each House of Parliament at the earliest. In that case, a notification dated 28.09.1994 had not been placed before each House of the State Legislature as required under Section 28(3) of the Mines and Minerals (Regulation and Development) Act, 1957. While holding the notification to be valid, the Supreme Court directed that if the same had not been placed, as required under Section 28(3) of that Act, the State Government ought to do so at the earliest. The exact words used by the Supreme Court in giving such directions were, inter alia, as under:-
"(e) In this case the impugned notification dated 28-9-1994 has not been placed as required by sub-section (3) of Section 28 of the Act. The State Government is directed to do so now at the earliest.
(f) However, non-placement of the said notification would not invalidate the same, as this requirement is only directory..."
83. For all these reasons, we are of the opinion that the fact that the amendments to the Ordinances and the Appendices thereto had not been laid before each House of Parliament in terms of Section 32(5) of the said Act would not invalidate the said amendments to the Ordinances. However, taking the cue from the Supreme Court decision in Quarry WP (C) Nos.822/11 & 2764/11 Page 74 of 88 Owners Association (supra), we direct that the Delhi University to comply with the requirements of Section 32(5) at the earliest.
(J) Re:- Non-publication of the amendments made to the Ordinances and the annexures thereto
84. It was contended by the learned counsel for the petitioners that Section 32(4) had been inserted in the said Act by virtue of the Delegated Legislation Provisions (Amendment) Act, 2004. Section 32(4) of the said Act stipulated that every Statute, Ordinance or Regulation made under the Act "shall" be published in the Official Gazette. In this backdrop, it was submitted that since the amendments to the Ordinances and the Annexures thereto, had not been published in the Official Gazette, the amendments could not have taken effect in law and, therefore, the semester system could not have been followed in law. Strong reliance was placed by the learned counsel for the petitioners on the Supreme Court decision in the case of Rajendra Agricultural University v. Ashok Kumar Prasad and Others:
2010 (1) SCC 730.
85. At this point, it would be pertinent to recall the factual scenario insofar as the question of publication is concerned. There are two aspects to publication. The first is with regard to the amendments being brought to the notice of the student community as also the colleges and teachers falling under the umbrella of the Delhi University. Insofar as this kind of publication is concerned, there cannot be any manner of doubt that all the colleges and institutions under the Delhi University were aware and well- informed of the change to the semester system. The students were equally WP (C) Nos.822/11 & 2764/11 Page 75 of 88 informed about this through, inter alia, the prospectus issued by each of the colleges at the time the students were seeking admission. Thus, insofar as publication of this kind is concerned, there is no doubt in our minds that all the individuals concerned had knowledge and had been informed through such publication about the introduction of the semester system.
86. The second kind of publication is the one referred to as publication in the Official Gazette in terms of Section 32(4) of the said Act. Insofar as publication in the Official Gazette is concerned, it is an admitted position that this has not been done as yet. However, it must be recalled that by a letter dated 05.09.2011, the Registrar of the University had sent a letter to the Assistant Controller, Government of India, Department of Publication requesting the publication of the notification taken out by the University on 20.07.2011 regarding amendments to the Ordinances and Appendices to Ordinances of the University passed by the Executive Council at its meetings held on 25.04.2011 and 09.07.2011. The Registrar of the University had requested that the same be published in the Gazette of India, Part-III, Section 4 and also stated that the payment would be made by the University after receipt of the bills. Alongwith the said letter, the Registrar had enclosed a soft copy as well as a hard copy both in English and Hindi of the said notification dated 20.07.2011. In response, the Government of India, Department of Publication, sent a letter dated 07.09.2011 to the Registrar of the University informing it of the notification rates and also the formatting that was required. In addition, the Registrar was asked to send a letter from the Ministry of Human Resource Development authorizing the said publication.
WP (C) Nos.822/11 & 2764/11 Page 76 of 8887. On 28/29th September, 2011, the Registrar wrote to the Director, Government of India, Ministry of Human Resource Development inquiring as to whether the amendments to Section 32 of the said Act, whereby sub- Sections (4) and (5) had been inserted, were in force or not. The Registrar requested that the University should be informed of the status regarding the enforcement of the said amendment alongwith due authorization to the University of Delhi for publishing the amendments which take place from time to time in the Official Gazette of India. On 15.11.2011, a reminder was sent by the Registrar to the Director, Government of India, Ministry of Human Resource Development with regard to the information sought concerning the status of the enforcement of the amendment to Section 32 of the said Act and also the letter authorizing the University of Delhi to publish amendments to the Ordinances in the Official Gazette. However, there was no response to the aforesaid letters of the Registrar and as a result, the amendments to the Ordinances and the Appendices thereto did not get published in the Official Gazette.
88. We have to examine as to what is the effect of non-publication of the amendments to the Ordinances and to the Appendices thereto in the Official Gazette. The first Provision that we have to examine is Section 32(4) of the said Act which stipulates that every Statute, Ordinance or Regulation made under the said Act shall be published in the Official Gazette. Section 32 initially only provided for regulations. Subsequently, sub-sections (4) and (5) have been added by virtue of the Delegated Legislation Provisions (Amendment) Act, 2004 and, it is obvious that these provisions relate not WP (C) Nos.822/11 & 2764/11 Page 77 of 88 only to regulations, but also to Statutes and Ordinances. What needs to be examined is whether sub-section (4) of Section 32 is a condition precedent for the validity and legal effect of an amendment to an Ordinance. It also needs to be examined as to whether sub-section (4) is mandatory or merely directory.
89. In order to answer these questions, it would be necessary to examine the provisions of Section 31 of the said Act in some detail. Section 31 provides for the manner in which Ordinances are to be made. The said provision in its entirety reads as under:-
"31. Ordinances how made. - (1) The Ordinances of the University as in force immediately before the commencement of the Delhi University (Amendment) Act, 1952 (5 of 1952), may be amended, repealed or added to at any time by the Executive Council:
Provided that--
(i) no Ordinance shall be made affecting the conditions of residence or discipline of students, except after consultation with the Academic Council;
(ii) no Ordinance shall be made--
(a) affecting the admission or enrolment of students or prescribing examinations to be recognised as equivalent to the University examinations, or
(b) affecting the conditions, mode of appointment or duties of examiners or the conduct or standard of examinations or any course of study;
unless a draft of such Ordinance has been proposed by the Academic Council.
WP (C) Nos.822/11 & 2764/11 Page 78 of 88(2) The Executive Council shall not have power to amend any draft proposed by the Academic Council under the provisions of sub-section (l) but may reject the proposal or return the draft to the Academic Council for reconsideration, either in whole or in part, together with any amendments which the Executive Council may suggest.
(3) Where the Executive Council has rejected the draft of an Ordinance proposed by the Academic Council, the Academic Council may appeal to the Central Government and the Central Government may, by order, direct that the proposed Ordinance shall be laid before the next meeting of the Court for its approval and that pending such approval it shall have effect from such date as may be specified in the order:
Provided that if the Ordinance is not approved by the Court at such meeting, it shall cease to have effect.
(4) All Ordinances made by the Executive Council shall be submitted, as soon as may be, to the Visitor and the Court, and shall be considered by the Court at its next meeting and the Court shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Executive Council, and such Ordinance shall from the date of such resolution cease to have effect.
(5) The Visitor may, by order, direct that the operation of any Ordinance shall be suspended until he has had an opportunity of exercising his power of disallowance and any order of suspension under this sub-section shall cease to have effect on the expiration of one month from the date of such order or on the expiration of fifteen days from the date of consideration of the Ordinance by the Court, whichever period expires later.
(6) The Visitor may, at any time after an Ordinance has been considered by the Court, signify to the Executive Council his WP (C) Nos.822/11 & 2764/11 Page 79 of 88 disallowance of such Ordinance, and from the date of receipt by the Executive Council of intimation of such disallowance such Ordinance shall cease to have effect."
90. We have, while considering the provisions of the Statute in the earlier part of this judgment, briefly referred to the provisions of Section 31(1)(ii)(b) as also to sub-section (2) of Section 31. What needs to be understood is that the Ordinance or an amendment to an Ordinance is made by the Executive Council. The Ordinance of the type whereunder there is any change to any course of study cannot be made or amended by the Executive Council, unless a draft of such Ordinance has been proposed by the Academic Council. This is clear from proviso (ii)(b) to Section 31(1) of the said Act. Sub-section (2) of Section 31 clearly stipulates that the Executive Council shall not have the power to amend any draft proposed by the Academic Council. But, it may reject the proposal or return the draft to the Academic Council for reconsideration, either in whole or in part, together with any amendments which the Executive Council may suggest. Sub-section (3), deals with a situation where the Executive Council rejects the draft of an Ordinance proposed by the Academic Council. That has not happened in the present case and, therefore, we are not concerned with it. The Executive Council has approved the draft of the Ordinance proposed by the Academic Council and, therefore, it is sub-section (4) which would apply. That provision requires that all Ordinances made by the Executive Council shall be submitted, as soon as may be, to the Visitor and to the Court, and shall be considered by the Court at its next meeting and the Court shall have the power by a resolution passed by a majority of not less than two / thirds of the members voting to cancel any Ordinance made by WP (C) Nos.822/11 & 2764/11 Page 80 of 88 the Executive Council and such Ordinance shall, from the date of such resolution, cease to have effect.
91. In the present case, as already indicated in the narration of facts, the Court of the University met on 24.08.2011, whereby through a clear majority, it approved the various amendments to the Ordinances and the Appendices to the Ordinances, as approved by the Executive Council in its meetings held on 25.04.2011 and 09.07.2011. What is of importance is that if the Court were to resolve by a majority of two / thirds to cancel any Ordinance made by the Executive Council, such an Ordinance would cease to have effect "from the date" of such resolution by the Court. In other words, the Ordinance made by the Executive Council would be effective from the date the Executive Council approves it and would continue to have effect unless it is cancelled in the manner indicated in Section 31(4) of the said Act by the Court and would only be ineffective from the date on which the Court so resolves. This provision makes it clear that the Ordinance or an amendment to an Ordinance made by the Executive Council takes effect when the draft of the Ordinance, as proposed by the Academic Council, is approved by the Executive Council. It does not require any further act to be completed for the purposes of giving effect to the Ordinance or the amendment to the Ordinance made by the Executive Council.
92. This view is fortified by a reading of the provisions of sub-sections (5) and (6) of Section 31. Under sub-section (5), the Visitor has the power to direct that the operation of any Ordinance shall be suspended until he has had an opportunity of exercising his power of disallowance. Under sub-
WP (C) Nos.822/11 & 2764/11 Page 81 of 88section (6), the Visitor may, at any time, after an Ordinance has been considered by the Court, signify to the Executive Council, his disallowance of such Ordinance, and from the date of receipt by the Executive Council of the intimation of such disallowance, such Ordinance shall cease to have effect. This again amply demonstrates that though the Visitor has the power of disallowing an Ordinance or an Amendment to an Ordinance, such Ordinance or Amendment, as the case may be, would cease to have effect only from the date of receipt by the Executive Council of intimation of such disallowance. Clearly, till that date, the Ordinance would be effective in law. This also indicates that an Ordinance becomes effective in law as soon as it is made by the Executive Council in the manner prescribed in Section 31 of the said Act.
93. In this backdrop, if we examine the provisions of Section 32(4), which prescribes a requirement of publication in the Official Gazette of every Statute, Ordinance or Resolution made under the Act, it becomes abundantly clear that this is not a condition precedent. The non-publication in the Official Gazette would not impinge on the validity of the Ordinance, which has to be determined in the context of Section 31 of the Act.
94. The learned counsel for the petitioners had, as pointed out above, placed reliance on the decision of the Supreme Court in the case of Rajendra Agricultural University (supra). That case, in our opinion, is distinguishable. In Rajendra Agricultural University (supra), Section 36 of the Bihar Agricultural Universities Act, 1987 stipulated as to how the statutes of the University were to be made by the Board of Management. It WP (C) Nos.822/11 & 2764/11 Page 82 of 88 is in that provision itself that it is provided that all Statutes made under the Act shall be published in the Official Gazette. In other words, Section 36 of that Act, which was a specific provision relating to "the manner" in which statutes are to be made, by itself stipulated that the statutes shall be published in the Official Gazette. It is in that context that the Supreme Court, in that case, did not accept that the statute contained in the notification in question came into effect or became enforceable even in the absence of publication in the Official Gazette. That decision of the Supreme Court was rendered on the premise that the publication in the Official Gazette was a part of the process of making the statute. This would be apparent from the following extract from that decision:-
"19....But once the law lays down that publication of a Statute in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfillment of the requirement to make public the Statute by publication in the Official Gazette becomes mandatory and binding."
In the present case, we have already noted that publication of the Ordinance in the Official Gazette was not a part of the process of making the Ordinance.
95. In order to understand and appreciate the need for publication, of a piece of delegated legislation, it would be instructive to examine the Supreme Court decision in Harla v. The State of Rajasthan: AIR 1951 SC
467. In that case, the Supreme Court was concerned with the question of validity of the Jaipur Opium Act, 1924, which was purportedly enacted by a Council of Ministers to look after the Government and Administration of WP (C) Nos.822/11 & 2764/11 Page 83 of 88 the Princely State of Jaipur, during the Maharaja's minority. The resolution, which purported to enact the said Jaipur Opium Act, was passed by the Council of Ministers on 11.12.1923. The question before the Supreme Court was whether the mere passing of the resolution without promulgation or publication in the Official Gazette, or other means to make the Act known to the public, was sufficient to make it law. The Supreme Court was of the opinion that it was not. In doing so, the Supreme Court observed that natural justice required that before a law could become operative, it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is or, at the very least, there must be some special rule or regulation through which such knowledge could be acquired with the exercise of due and reasonable diligence. The said Jaipur Opium Act had provisions with penal consequences. In this backdrop, the Supreme Court further observed that the thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution, without anything more, is abhorrent to civilized man. The Supreme Court observed that in the absence of any law, rule, regulation or custom, a law cannot come into being in this way and promulgation or publication of some reasonable sort is essential. The Supreme Court also noticed the distinction between enactment by Parliament and the orders, resolutions, notifications passed under delegated legislation. While the former was, by its very nature public, the latter could be hidden from the public. It was, therefore, considered necessary that WP (C) Nos.822/11 & 2764/11 Page 84 of 88 reasonable publication of some sort ought to be there in the case of delegated legislation.
96. These observations, were, of course, in the absence of any particular mode of publication. Where the mode of publication is indicated, that mode ought to be followed. But, we still have to see whether the publication in that mode was directory or mandatory. Before we come to that, it would be appropriate to reiterate that the present case is not one of no publication. The allegation is not that the people did not know about the amendments. In fact, the topic of the amendments was a hotly contested issue and there were public agitations and demonstrations by the petitioners in the context of the introduction of the semester system. Moreover, the entire student body as well as the teaching community were well-aware of the amendments and the introduction of the semester system. Thus, there was publication. But, not in the manner indicated in Section 32(4) of the said Act. Here, too, we must point out that insofar as the University is concerned, it had requested the Department of Publication, Government of India, to publish the same in the Official Gazette and had also requested the Ministry of Human Resource Development, Government of India to issue the authority letter for the said purpose. Therefore, it cannot be said that the University had not taken steps towards publication in the Official Gazette. It is another matter that, apparently, in the confusion of whether Section 32(4) of the said Act had come into operation or not, the amendments to the Ordinances and the Appendices thereto did not get published in the Official Gazette.
WP (C) Nos.822/11 & 2764/11 Page 85 of 8897. We have already noticed the decision of the Supreme Court in Atlas Cycle Industries (supra) while considering the issue with regard to laying the amendments before Parliament in the context of Section 32(5) of the said Act. In that decision, the question of whether the use of the word "shall" ipso facto meant that the provision was mandatory was considered and, the Supreme Court held that the use of the word "shall" is not conclusive and decisive of the matter and the court has to ascertain the true intention of the legislature, which is the determining factor, and that must be done by looking carefully to the whole scope, nature and design of the statute. It is in this backdrop that we have considered the provisions of Section 31 of the said Act in detail. As pointed out above, the amendments to the Ordinances and the Appendices thereto would take effect immediately upon approval by the Executive Council. Of course, the Court or the Visitor could reject or disallow the same, as the case may be. But, that would take effect only from the date of the rejection or the communication of the disallowance to the Executive Council. In other words, the amendments would be valid till they were either rejected or disallowed in terms of Section 31 of the said Act. In order to ensure the validity of the amendments, nothing further was required to be done. The issue of publication in the Official Gazette would not affect the validity of the Ordinance made by the Executive Council under Section 31 of the said Act.
98. We must also remind ourselves of the observations of the Supreme Court in Atlas Cycle Industries (supra) to the following effect:-
WP (C) Nos.822/11 & 2764/11 Page 86 of 88"20. Thus two considerations for regarding a provision as directory are: (1) absence of any provision for the contingency of a particular provision not being complied with or followed, and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provision."
99. We notice that in the present case, there is an absence of a provision for the contingency of the requirement of publication in the Official Gazette not being complied with or followed. We also are of the view that serious general inconvenience and prejudice would result to the general public and, in particular, to the teaching and student community if the amendments to the Ordinances are declared invalid for non-compliance by the Government of the requirement of publication in the Official Gazette. In this light, the provisions of Section 32(4) in the context of the amendments to the Ordinances and to the Appendices to the Ordinances have to be considered to be directory and not mandatory. Therefore, in our view, the non- publication in the Official Gazette would not make the amendments to the Ordinances and the Appendices to the Ordinances invalid in law. However, as in the case of laying before the Houses of Parliament, here too, we direct that the Amendments to the Ordinances and Appendices thereto be published in the Official Gazette within two months.
Conclusion
100. In view of the foregoing discussion, all the challenges set up by the petitioners fail. We have consciously not been drawn into the debate as to WP (C) Nos.822/11 & 2764/11 Page 87 of 88 whether the semester system is more appropriate than the annual system or vice-versa. The reason for this is clear. The courts are ill-equipped to comment on such matters or arrive at value judgments. These are matters for experts in the field of education. We have examined the matters from the stand point of law and have reached the conclusion that the writ petitions are liable to be dismissed. They are dismissed but, in the circumstances, without any order as to costs.
BADAR DURREZ AHMED, ACJ VEENA BIRBAL, J JULY 11, 2013 dutt/as WP (C) Nos.822/11 & 2764/11 Page 88 of 88