Gujarat High Court
Bimal Patel vs Pushkar
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
BIMAL PATEL DIRECTORV/SPUSHKAR SANTOSHKUMAR MEHROTRA....Respondent(s) C/LPA/1488/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1488 of 2012 In SPECIAL CIVIL APPLICATION NO. 9911 of 2012 With LETTERS PATENT APPEAL NO. 1590 of 2012 In SPECIAL CIVIL APPLICATION NO. 10536 of 2012 With CIVIL APPLICATION NO. 13397 of 2012 In LETTERS PATENT APPEAL NO. 1590 of 2012 With LETTERS PATENT APPEAL NO. 1591 of 2012 In SPECIAL CIVIL APPLICATION NO. 9914 of 2012 With CIVIL APPLICATION NO. 13401 of 2012 In LETTERS PATENT APPEAL NO. 1591 of 2012 With LETTERS PATENT APPEAL NO. 1592 of 2012 In SPECIAL CIVIL APPLICATION NO. 9974 of 2012 With CIVIL APPLICATION NO. 13407 of 2012 In LETTERS PATENT APPEAL NO. 1592 of 2012 With LETTERS PATENT APPEAL NO. 1593 of 2012 In SPECIAL CIVIL APPLICATION NO. 10532 of 2012 With CIVIL APPLICATION NO. 13409 of 2012 In LETTERS PATENT APPEAL NO. 1593 of 2012 With LETTERS PATENT APPEAL NO. 1594 of 2012 In SPECIAL CIVIL APPLICATION NO. 9912 of 2012 With CIVIL APPLICATION NO. 13410 of 2012 In LETTERS PATENT APPEAL NO. 1594 of 2012 With LETTERS PATENT APPEAL NO. 1595 of 2012 In SPECIAL CIVIL APPLICATION NO. 9915 of 2012 With CIVIL APPLICATION NO. 13411 of 2012 In LETTERS PATENT APPEAL NO. 1595 of 2012 With LETTERS PATENT APPEAL NO. 1596 of 2012 In SPECIAL CIVIL APPLICATION NO. 10751 of 2012 With CIVIL APPLICATION NO. 13413 of 2012 In LETTERS PATENT APPEAL NO. 1596 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
========================================================= BIMAL PATEL, DIRECTOR & ANR Versus PUSHKAR SANTOSHKUMAR MEHROTRA & ORS.
=========================================================Appearance:
MR S.N. SHELAT, SR. COUNSEL with MR. NIKUNT K RAVAL, ADVOCATE for the Appellants MR BHARAT T. RAO for respondents.
========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :
22/02/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. All these eight Letters Patent Appeals filed by the Gujarat National Law University [GNLU] were heard analogously as these are directed against a common judgment dated 17th October 2012 passed by a learned Single Judge of this Court by which His Lordship partly allowed eight Special Civil Applications filed by eight different students of GNLU by passing the following directions:
61.
For the foregoing reasons, writ petitions being S.C.A. Nos.9911/2012, 9912/2012, 9914/2012, 9915/2012, 9974/2012, 10532/2012, 10536/2012 & 10751/2012 are partly allowed and;
The impugned communications sent to the petitioners by the respondents, via Email dated 25.06.2012, 26.06.2012, 19/20.07.2012 are quashed and set aside and the respondents are directed to permit the petitioners to appear in their respective backlog papers of the End-semester on payment of usual Fees in the next ensuing Odd / Even End-Semester Examination.
The additional condition specified in Rule 4.3 of the Examination Rules, 2011, which provides that the student has to secure Goodness marks in order to become eligible to appear in the End-semester Examination, is quashed and set aside.
Rule 7.14 of the Examination Rules, 2011, which provides that a student has to complete the entire course within the maximum period of seven years from the date of admission at the University is also quashed and set aside.
The respondents shall place the issue regarding applicability of the Rule of Detention , which finds place in Rule 7.2(b) of the Examination Rules, 2011, before the General Council of the University for reconsideration.
The Reevaluation of papers shall be done by an External Examiner, having the subject sought to be reevaluated, as his principal subject of teaching.
The University shall give the benefits flowing from this judgment to all students who have been detained.
It is held that Examination Rules, 2011, which have been made effective from 01st July 2011, do not have any retrospective effect and henceforth, it shall uniformly apply to the students of all Batches studying at the University.
The provision regarding Attendance Requirements in Rule 2 of the Examination Rules, 2011 are not disturbed and accordingly, it may be made applicable to the students concerned.
2. Being dissatisfied, the GNLU has come up with these eight appeals.
3. The GNLU had detained students from being promoted from third year to fourth year (2009-2014 batch) and from fourth year to fifth year (2008-2013 batch) by resorting to Rule-67(n) of Examination Rules for non-clearing of backlog papers for the first, second and third years. In the year 2011, new Examination Rules [Rules of 2011] were introduced by the GNLU which repealed all the earlier Rules framed in the years 2006, 2008 and 2009. One of the changes introduced in the Rules of 2011 was that if a student is unable to complete the backlog of subjects of the first three years, such students should not be promoted to the 4th year, which was imposed for the first time in the Rules of 2011.
4. The writ-petitioners, some of whom were admitted in the year 2008 and others in the year 2009 for 5 years Bachelor in Law filed the writ-petitions challenging the legality of the Examination Rules and Regulations as being dehors the provisions of section 46 of the Gujarat National Law University Act, 2003 [the Act]. According to the petitioners, the Regulation No. 66 clearly states that no retrospective effect could be given to any Rule framed and it was further claimed that the Rules framed by the GNLU were not approved by the Executive Council or the General Council and that multiple Rules were made applicable to different batches and the same could not have been done as it interferes with the legal rights of the petitioners to be promoted to the 4th year even without clearing of all the papers of the first three years. According to the petitioners, the reduction of the period required for being successful in obtaining the degree within 7 years by curtailing the time from 8 years is also violative of their rights.
5. The petitioners further contended that there was conflict between Rule 66(2)(b) and Rule 66(2)(n) of the Rules introduced on 1st September 2009 inasmuch as Rule 66(2)(b) directs that the students can be promoted only on being awarded a minimum of C grade in 6 out of 12 subjects whereas Rule 66(2)(n) provides that a student can only be promoted to the 4th year if all backlog-subjects of the first three years were cleared. It was further contended that the new concept of internal marks of 40% weightage were arbitrary and violative of the fundamental rights of the petitioners and the differentiation between students having attendance-back and academic-back was improper.
6. The petitioners, therefore, prayed for the following reliefs:
(A). To issue a writ of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the rules of detention framed by the respondent which has been published on website which has been communicated to the petitioner by email dated 8.8.2011 which came into force w.e.f. 1.7.2011 as the same is illegal, arbitrary and violative of fundamental rights of the petitioner and inconsistent with the rules which are annexed with the petition and inconsistent with the Act as the same has not been approved by the Executive Council and General Council for the reasons stated in the Memo of Petition and in the interest of justice.
(B). To issue a writ of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the email/order passed by the respondent dated 26.6.2012 and 19.7.2012/20.7.2012 detaining the petitioner and barring the petitioner from promotion to the 9th semester (5th year) for the reasons stated in the Memo of Petition and in the interest of justice.
(C). To issue a writ of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction directing the respondents to give benefit of PSU visit to the petitioner so that the petitioner can clear his backlog of the sole paper for the reasons stated in the Memo of Petition and in the interest of justice.
(D). Pending admission, hearing and final disposal of this petition, to stay the execution, operation and implementation of the order email/order passed by the respondent dated 26.6.2012 and 19.7.2012/20.7.2012 detaining the petitioner and barring the petitioner from promotion to the 9th semester (5th year) and permit the petitioner to pursue him study for the 9th semester (5th year) for the reasons stated in the Memo of Petition and in the interest of justice.
(E). Pending admission, hearing and final disposal of the petition, to direct the respondents, their agents and servants to allow the petitioner to stay in the hostel of the respondent for the reasons stated in the Memo of Petition and in the interest of justice.
(F). The Hon ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
7. As indicated earlier, the learned Single Judge has allowed eight Special Civil Applications in part by granting the reliefs mentioned above.
8. Mr. Shelat, the learned senior Advocate appearing on behalf of the appellant, at the first instance, pointed out that in paragraph 60 of the impugned judgment, the learned Single Judge has held that Rules of 2008 were invalid and cannot be relied upon since the Rules/Regulations have not been approved by the Academic Council or General Council by totally overlooking the fact that not only the Rules of 2008 but even the subsequent Rules of 2009 were repealed by the Rules of 2011 and thus, the provisions contained in earlier Rules have lost their significance.
8.1 Mr. Shelat next contends that the learned Single Judge, in paragraph 61 of the judgment, has quashed and set aside the various e-mails dated 25th June 2012, 26th June 20121 and 20th July 2012 communicating the decision of the GNLU to the students and the reasons for setting aside those communications are provided in paragraphs 32 and 33 of the judgment. Mr. Shelat disputes the correctness of the reasons assigned in those paragraphs by submitting that when the authority makes an order which is otherwise within its competence, the same cannot become invalid merely because it purports to have been issued under a wrong provision of law, if it can be otherwise shown that the authority concerned is vested with the powers under any other provisions of the Statute to pass such order. In other words, according to Mr. Shelat, the reference of a wrong nomenclature of statutory provision cannot vitiate the order which is otherwise within the power and authority.
8.3 Mr. Shelat next contends that the learned Single Judge has held that Rule 7.14 of the Examination Rules, 2011 is against the essence of Section 46 of the Act and in arriving at such conclusion, the learned Single Judge totally misread the provisions of the Act.
8.4 Similarly, Mr. Shelat criticized the findings of the learned Single Judge for striking down Rules 4, 3, 7, 14, 7.2(b) and 20 although there was no justification of interference in view of the fact that those were clearly within the province of delegated authority which enacted the Rules.
8.5 Mr. Shelat contends that the learned Single Judge, in exercise of powers under Article 226 of the Constitution of India, had no jurisdiction to reverse or invalidate the Rules which are of utmost academic importance and the Rules framed by the Academic Council have been subsequently approved by the Executive Council and the General Council of the University.
8.6 Mr. Shelat further contends that the finding of the learned Single Judge that the Rules of 2011 providing re-evaluation were discriminatory was made by overlooking the well-settled proposition of law that a mere possibility of abuse of the provisions of law does not per se invalidate the legislation which is otherwise lawfully enacted.
8.7 As regards the alleged irregularity pointed out by the Respondents in the matter of assessment of other students, Mr. Shelat contends that such contention is not available within the scope of the writ-petitions out of which these appeals arise in the absence of those students as parties in these proceedings. Moreover, according to Mr. Shelat, the petitioners themselves have taken advantage of the provisions of re-evaluation, retest and allocation of proportionate marks allotted to them in a mid-semester on the basis of learning through assistance, moot courts and memorial submissions. Therefore, it is not open to the writ-petitioners to challenge the said Rules after having unsuccessfully availed of those provisions.
8.8 Mr. Shelat lastly submits that the contention of the petitioners that the Rules relating to detention were not implemented earlier and, therefore, the detention Rules of 2011 are invalid, is not tenable in the eye of law.
8.9 Mr. Shelat, therefore, prays for setting aside impugned judgment.
9. Mr. B.T. Rao, the learned counsel appearing on behalf of the respondents, has, on the other hand, opposed the aforesaid contention of Mr. Shelat and has contended that the learned Single Judge, after consideration of the entire materials on record, rightly allowed the Special Civil Applications filed by his clients and there is no scope of interference with the most reasonable order passed by the learned Single Judge.
9.1 According to Mr. Rao, Section 46 of the Gujarat National Law University Act empowers the Executive Council of the University to frame Regulations within the meaning of the said Section and such Regulation could be framed only for the purpose of administration and management of the University, and the said provision did not empower the University to detain students in their respective years of study or to restrict the period of study to 7 years. According to Mr. Rao, the Regulations framed by the Appellant were beyond the province of Section 46 of the Act.
9.2 Secondly, Mr. Rao contends that the Regulations framed attained statutory force only after those are approved by the Executive Council and thereafter, ratified by the General Council. Mr. Rao submits that the Examination Rules of 2008 framed by the respondent No.1 was approved by the academic council but were never approved by the Executive Council nor ratified by the General Council, and, therefore, the same cannot be brought into force.
9.3 Mr. Rao further contends that the Rules framed by the respondents are inconsistent with the other provisions of the Rules. Mr. Rao points out that under the Examinations Rules of 2008, there is no provision for detention because under Rule 67(b), the basic requirement for getting promotion to the next year is that the students must obtain atleast C grade in 6 subjects out of the total number taught in a year. However, Mr. Rao continues, Rule 67(n) is conflicting with Rule 67(2) as it provides that the students shall have to pass all the subjects before promotion to the 4th year and no carryover was permitted to the 4th year. By referring to the above two Rules, Mr. Rao contends that those two Rules cannot coexist, and, therefore, Rule 67(n) is liable to be quashed.
9.4 Mr. Rao next contends that the Examination Rules of 2008 had been made effective from 31st July 2008 and therefore, the Examination Rules of 2011 which have been made effective from 1st July 2011 cannot be made applicable to the students of 2008 batch and onwards. Mr. Rao points out that in the University, there are 5 sets of Rules prevailing for the examination, viz. (i). the General Regulation, (ii). the Regulations made effective from 31st July 2008 for the students from 2004 to 2007 batches, (iii). the Regulations made effective from 31st July 2008 for all batches of students admitted from 2008 onwards,
(iv). the Regulations framed from 1st September 2009, and, (v). the Rules made effective from 1st July 2011. According to Mr. Rao, the petitioners are unaware of the commencing period of these Rules and its applicability upon the various batches of the students.
9.5 Mr. Rao further contends that the action of the appellants of applying Rule 4.3 of the Examination Rules of 2011 to the students and declaring them of having an academic back in a particular paper is arbitrary and contrary to the provisions of Regulation 66. He submits that there is no provision in Regulation 66 which provides or authorizes the appellants to pass direction as to the academic back.
9.6 Mr. Rao further submits that the appellant-University was treating similarly situated students by asking them to take repeat examinations separately on the ground of academic back or attendance back. By referring to the aforesaid facts, Mr. Rao contends that there cannot be two examinations for similarly situated students and thus, the action of the appellants was arbitrary.
9.7 Mr. Rao lastly contends that under the Act, there is no mention about any Rules regarding detention and thus, by making the provisions in the examination Rules for detention, the University has acted beyond the power of delegation given in the Act.
9.8 Mr. Rao, therefore, prays for dismissal of the appeals.
10. Therefore, the question that arises for determination in these appeals is whether in the facts of the case, the learned Single Judge was justified in passing the order impugned.
11. After hearing the learned counsel for the parties and after going through the materials on record, we find that section 46 of the Act authorized the Executive Council to make Regulations consistent with the provisions of the Act to provide for administration and management of the University. Sub-section 2 of Section 46, however, puts a restriction upon the Executive Council not to make, amend or repeal any Regulation affecting the matters enumerated in sub-sections (a) to (g) mentioned therein without the concurrence of the Academic Council. Sub-section (c) speaks of condition and modes of appointment of examiners, conduct or standard of the examination and course of study, however, with prior concurrence of the Academic Council.
12. In the case before us, it appears that it was the Director of GNLU who framed the Examination Rules of 2011 effective from 1st July 2011. Subsequently, the same was placed before the Academic council and the Academic Council approved the same and after such approval, the same was placed before the Executive Council which also approved the amended Rules and ultimately, the same was ratified by the General Council.
13. Therefore, it appears that the Examination Rules of 2011 has got the approval of not only the Academic Council but also the Executive Council and General Council.
14. Mr. Rao, at this stage, strenuously contended that mere approval by the Academic Council will not make the Rules valid in terms of Section 46 because the Rules were not framed by the Academic Council but by the Director and subsequent approval of those Rules framed by the Director by the Academic Council does not fulfill the condition of framing the Rules. We are afraid, we are not at all impressed by such submission. The Director of the University is the Chairman of the Academic Council and, therefore, if the Chairman of the Academic Council proposes certain Examination Rules or gives a proposal for amendment and in a regularly constituted meeting of the Academic Council the same is approved by majority, the same should be treated to be a proposal of the Academic Council itself, and subsequently, when the same is also approved by the Executive Council and gets ratification of the General Council, the same becomes a valid Regulation under the Act.
15. In the case before us, therefore, the examination Rules of 2011 became valid only when the General Council approved the same after the same was approved by the Executive Council and not from 1st July 2011 as indicated by the Director while framing the same and placing those before the Academic Council for approval.
16. Although there were some disputes as to whether the Examination Rules of 2011 were really approved by the Academic Council or the Executive Council as those records were not produced before the learned Single Judge, this Court directed the GNLU to affirm affidavit disclosing the minutes of the Academic Council, Executive Council and the General Council showing approval of those Rules, and from the affidavit so filed, it appears that all the aforesaid authorities have concurred with the new Rules, and thus, approved the Examination Rules of 2011.
17. We have already pointed out that in the Rules of 2011, it is specifically stated that those superseded all earlier Rules and the same would be applicable to all the batches of students. Such being the position, from the date of passing by the General Council of the GNLU, the Examination Rules of 2011 became effective.
18. We, therefore, find that the learned Single Judge, in spite of noticing the existence of the Examination Rules of 2011, unnecessarily dealt with the question as to whether the provisions of Rules of 2008 got the approval of the Academic Council or not.
19. For the purpose of disposal of the question involved before us, we are of the opinion that once the delegated legislation, i.e. the Examination Rules of 2011 have been passed in conformity with section 46 of the main Act, from the date of ratification by the General Council, the same becomes a valid law. It is not in dispute that the examinations in question were held after the date of ratification by the General Council of GNLU and, therefore, the same should be applicable to the cases before us.
20. We also do not find any substance in the contention of Mr. Rao that there is any inconsistency between the provisions of Rule 2 of Regulations 66 and Rule (n) thereof. In rule 2, it is stated that in order to be promoted to the next year, the student must obtain atleast C grade in at least 6 subjects taught in that year whereas rule 2(n) provides further condition that the students shall have to pass all the subjects before being promoted to the 4th year and there will be no carry forward permitted to the 4th year. A conjoint reading of those Rules provides that the requirements of Rule 2(b) should not only be complied with but at the same time, there is no scope of carry forward of the backlog of the subjects while one will be promoted to the 4th year. In other words, whatever backlogs are there in the first three years should be cleared before promotion to the 4th year.
21. We also do not find any substance in the contention of Mr. Rao that in the detention order communicated to the students, the GNLU having referred to the Examination Rules of 2008, the GNLU cannot now rely upon the Examination Rules of 2011 for the purpose of justifying their action.
22. In this connection we find substance in the contention of Mr. Shelat, the learned senior Advocate appearing on behalf of the GNLU, that when the authority makes an order which is otherwise within its competence, the same cannot become invalid merely because it purports to have been issued under a wrong provision of law. [See The Vice-Chancellor, Jammu University, and another v. Dushinant Kumar Rampal reported in AIR 1977 SC 1146].
23. It is also settled law that a Court an always take judicial notice of a valid law of the land. In the cases before us, there is no dispute that the Examination Rules of 2011 has been passed in exercise of the power of enactment by way of delegated legislation and once we find that there is no illegality in passing the said delegated legislation, we can also take note of the fact that by the said Rules which are part of Regulation framed under the Act, the earlier Rules for examination have been superseded. Therefore, when the examinations in question were held for the purpose of being promoted to the next year, the examination Rules of 2011 were very much in existence and those Rules are the only Rules applicable to the examinations in question. Such being the position, we approve the action of the University on the ground that the same is consistent with the latest Rules enacted for that purpose.
24. As regards the allegations of giving preferential treatment to some of the students by declaring them cleared after they were detained, we find that the same is consistent with the Rules, and even the respondents before us also availed of such provision but could not become successful. Therefore, after availing of the opportunity given to them by the University but having failed, they now cannot complain that the said opportunity was wrongly given.
25. Mr. Rao made a desperate attempt to convince us that some of the examinees were illegally cleared on the basis of re-evaluation of marks though they did not obtain the required marks on the basis of Rules fixed for re-evaluation of marks. In our opinion, within the narrow scope of the Special Civil Applications, out of which these LPAs arise, there is no scope of going into that question in the absence of those students who were subsequently cleared by virtue of the re-evaluation of marks. Mr. Rao, of course fairly contended that he did not want that those students should be declared failed or detained, but all that he wanted is that his clients should also be cleared. Even if we accept for the sake of argument that there were certain irregularities in conferring marks on the basis of re-evaluation to those students, such wrong decision cannot give any right to the respondents to have the benefit of the same wrong. [See Indian Council of Agricultural Research vs. T. K. Suryanarayan reported in (1997) 6 SCC 766].
Therefore, the said contention is also not tenable.
26. We, however, find substance in the contention of Mr. Rao that 2 marks given for goodness cannot be held to be justified without making any guidelines for giving such marks when such 2 marks is compulsory for success.
27. In the cases before us, however, no student has been detained for such goodness marks. Be that as it may, we approve that part of the findings of the learned Single Judge where the learned Single Judge has rightly declared the provisions for giving goodness marks as illegal in the absence of any guidelines for awarding such marks. Authorities of the appellant GNLU will frame appropriate guidelines for allocation of such marks if it intends to maintain the same in the Examination Rules.
28. We also find substance in the contention of Mr. Shelat that while interpreting the rule in the matter of education, it was not proper on the part of the learned Single Judge to re-frame the Rules which have been approved by the Executive Council and General Council while interpreting the same.
29. Similarly, the petitioners having taken advantage of the re-evaluation, re-test and allocation of proportionate marks allotted to them in a mid-semester on the basis of learning through assistance, moot courts and memorial submissions, it is now not open to the writ-petitioners to challenge those Rules only after failing in the examination.
30. On consideration of the entire materials on record, we allow the appeals in part and thereby set aside the order passed by the learned Single Judge and affirm his order only to the extent that the provision for allocating 2 marks for goodness being without any guidelines, was not proper.
31. The appeals are, thus, disposed of.
31.1 In view of the above order passed in the main Appeals, the Civil Applications do not survive, and are, thus, disposed of accordingly.
31.2 In the facts of the case, there will be, however, no order to costs in all these matters.
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