Bombay High Court
Amar Vasudeva Kamath vs Registrar, University Of Bombay And ... on 5 December, 1990
Equivalent citations: 1991(1)BOMCR212, (1991)93BOMLR789, 1991(1)MHLJ415
JUDGMENT D.R. Dhanuka, J.
1. The petitioner is a student enrolled for the course of Bachelor of Engineering with the third respondent institute affiliated to the University of Bombay. The petitioner is undertaking study for the B.E. degree course which was revised sometime in the year 1987. Prior to that, the old B.E. degree course was in force. The B.E. degree course is a four years course divided into eight semesters.
2. The petitioner has already cleared Semesters I, II and III. The petitioner did not pass in one of the subjects in the examination pertaining to IVth Semester i.e. Theory of Machines. The result of IVth Semester was declared sometime in August 1990. Since the petitioner was not allowed to keep term for the Vth Semester with the back-log of the IVth semester in accordance with the ordinance permitting A.T.K.T. facility which was brought into force sometime in the year 1974, the petitioner and several other students have filed their respective writ petitions in this Court under Article 226 of the Constitution of India.
3. By a circular dated 21st March, 1990, a copy whereof is Exhibit 'A' to the petition, the Principals of Constituent Colleges in Engineering were informed that in the meeting held by the Vice-Chancellor on 6th March, 1990 it had been, inter alia, decided as under :-
"A candidate who has already cleared Semesters I, II, III, IV examination will alone be permitted to enter upon the course of study for T.E. (Sem. V, Rev. course) examination from academic year 1990-91 and thereafter".
No reference is to be found to any "ordinance" framed by the Executive Council of the University of Bombay, old or new, in this behalf in this circular. The abovereferred decision dated 6th March, 1990 is still to be considered by the Academic Council in the meeting scheduled to be held in the third week of December 1990. It is so stated in paragraph 5 of the affidavit of Registrar in reply to this petition.
4. By this petition, the petitioner has challenged clause (v) of the said circular dated 21st March, 1990 issued by the Registrar of the University of Bombay announcing the decision of the Vice-Chancellor dated 6th March, 1990 already extracted in the earlier paragraph of this judgement. By this petition, the petitioner has also challenged the action and orders of the authorities preventing the petitioner from keeping term for the Vth semester even though the petitioner had already cleared the IIIrd semester and under the old Ordinance No. 2183 the petitioner was entitled to keep the term for Vth semester with backlog of one semester, as more particularly set out in subsequent paragraphs of this judgement. The petitioner also claims several other connected reliefs in this petition. The facts and circumstances leading to the filing of this petition emerging from the pleadings and the compilation of documents filed on behalf of the University of Bombay at this stage are summarised hereinafter. The said documents should have been annexed to the affidavit-in-reply filed on behalf of the University of Bombay. The same are as under :-
(a) Some time in the year 1974-75, the ordinances were framed by the University of Bombay pertaining to the degree course of Bachelor of Engineering. Ordinance No. 2183 framed under Bombay University Act, 1974 reads as under :---
"0.2183. A candidate who has passed the Semester III examination and has satisfactorily completed the course for Semester IV will be permitted to enter upon the course for Semester. V. Provided, however, a candidate who has passed Semester IV examination but has failed in Semester III will also be permitted to enter upon the course for Semester V."
In other words, facility of "A.T.K.T." was permitted by the University of Bombay to the students of Bachelor of Engineering course who had passed either Semester III or Semester IV to enter upon the course for Semester V with one backlog. Under the revised course, the subjects of study have undergone a change, but the duration of the course as well as the division of four years course into eight semesters have remained intact. It may be stated in passing even at this stage that power to frame new ordinances or amend or repeal or replace the old ordinances is a quasi-legislature power and it can be exercised only by the Executive Council under Bombay University Act, 1974 in the manner prescribed under the said Act. It is obvious that the said powers cannot be delegated to anyone else and cannot be exercised by any other authority of the University, not even, the Vice-Chancellor directly or indirectly.
(b) On 9th February, 1989, the Registrar of the University of Bombay issued a circular bearing No. GEN/56 of 1989 notifying the decision of the Vice-Chancellor of the University in purported exercise of powers under section 11(4) of Bombay University Act, 1974. It was stated in the said circular that students will be permitted to enter upon the Vth semester only if they had passed in all the examinations of the previous semesters. The said circular is now of no legal consequence. Since the facility of "A.T.K.T." was granted by the Executive Council by framing an ordinance, it could not be abolished or taken away by the University except by framing by another ordinance. In other words, the facility of A.T.K.T. provided by ordinance framed by Executive Council could not be taken away by issue of a circular or by an administrative/executive decision of the Vice-Chancellor.
(c) On 18th November, 1988, the Academic Council of the University of Bombay approved various draft ordinances prepared by the Board of Studies in relation to the 'revised course' including the draft ordinance making provision to the effect that only such students will be allowed to enter upon Semester V who had cleared Semester III and Semester IV.
(d) The draft ordinances approved by the Academic Council in the meeting held on 18th November, 1988 were placed before the meeting of the Executive Council on 30th March, 1989. The draft ordinances pertaining to the revised course were approved and accepted by the Executive Council. Ordinance No. 3045 was one of the several ordinances approved by the Executive Council at the said meeting. Ordinance No. 3045 approved by the Executive Council in the above-referred meeting reads as under :-
"0.3045. A candidate who has passed the Semester I, II, III and IV examinations will be permitted to enter upon the course for Semester V."
Section 40(4) of the Bombay University Act, 1974 provides that the Executive Council may fix the date from which the ordinance will come into force. Such date must necessarily be prospective and cannot be retrospective. The Executive Council did not fix any date from which the new set of ordinances approved or sanctioned by it will come into force.
(e) On 19th May, 1989, the Registrar of the University of Bombay issued a circular appending thereto the ordinances and regulations relating to the degree of Bachelor of Engineering which were approved by the Executive Council in its meeting held on 30th March, 1989. All the said ordinances and regulations appended to the said circular dated 19th May, 1989 formed integrated part of a single indivisible scheme.
(f) It was stated in the abovereferred circular dated 19th May, 1989 that the ordinances and regulations appended thereto in respect of the revised course of studies and examinations had been brought into force with effect from the academic year 1988-89 for the Second Year (Semesters III and IV) of the B.E. degree course and progressively thereafter for Third Year (Semesters V and VI) and the Fourth Year (Semesters VII and VIII). The said ordinances could have never been brought into force retrospectively i.e. from the commencement of the Academic Year 1988-89.
(g) The said ordinances, including Ordinance No. 3045, were not enforced or implemented and the enforcement thereof was deferred in view of the 'teething problems' faced by the authorities as obvious, inter alia, from circular dated 25th of September, 1989 permitting the students to keep term for Vth Semester with backlog of one Semester i.e. IIIrd or IVth, as more particularly set out hereinafter.
(h) On 25th September, 1989, the Registrar of the University of Bombay issued another circular announcing the decision of the Vice-Chancellor under section 11(4) of the Bombay University Act, 1974. It was stated in the said circular that:-
"Such of the students who have failed in not more than three subjects - Heads (Theory, Practicals, Term Work and Oral will be considered as a subject-Head) in either Semester III or Semester IV having cleared one of these examinations, viz. Semester III or Semester IV examinations, fully, will be considered eligible for keeping terms for the Semester V for the Year 1989-90 only."
In other words, students who had not cleared Semester III and Semester IV both were allowed to keep term for Semester V for the year 1989-90, subject to the student concerned having not failed in more than three subjects in either Semester III or Semester IV. This circular shows that the enforcement of Ordinance No. 3045 was deferred during academic year 1989-90 due to certain circumstances and problems referred to in the affidavit of the Registrar of the University filed in this petition. The said circular is not under challenge in this petition.
(i) Soon after 11th May, 1989, the University authorities recommended the exercise of updating the ordinances and regulations which were initially sanctioned in the meeting of the Executive Council held on 30th March, 1989 and several new ordinances were also proposed and discussed in the meeting of various bodies of the University. The University authorities decided to place the entire set of updated ordinances once again before the Academic Council and Executive Council and obtain the sanction of the Executive Council thereto and publish the same after the same were sanctioned. This process took considerable time, as obvious from the compilation of papers now filed by the University authorities. In the meeting of the Academic Council held on 22nd June, 1990, the updated ordinances were approved and passed on to the Executive Council. The said updated ordinances, including Ordinance No. 3045. On 30th August, 1990, the Executive Council sanctioned the updated ordinances as a package in entirely, including Ordinance No. 3045 as a part and parcel of the said updated ordinances. On 3rd November, 1990, the Registrar of the University issued a circular, being Circular No. UG/319 of 1990, publishing the said updated ordinances. Ordinance No. 3045 was thus finally sanctioned or re-sanctioned by the Executive Council only on 30th August, 1990 and published for information only on 3rd November, 1990 after the exercise of re-consideration and updating was completed. The text of the minutes of the meeting dated 22nd June, 1990 and 30th August, 1990 shows that the said approval was not restricted to a few additional ordinances only but was in respect of all the updated ordinances as a package including ordinances already sanctioned by the Executive Council on 30th March, 1989. No date had been fixed by the Executive Council to bring these ordinances into force. Once again, the Executive Council has omitted to specify the date from which all these updated ordinances will be brought into force. The relevant ordinance i.e. Ordinance No. 3045 can be brought into force from the academic year 1991-1992 i.e. from about June 1991.
5. (a) At this stage it shall be convenient to refer to some of the provisions of the Bombay University Act, 1974. Section 39 of the Bombay University Act, 1974 provides that subject to the conditions prescribed by or under the Act, the Executive Council may make ordinance, to provide for all or any of the matters specified therein i.e.-
(i) the conditions under which students shall be admitted to course of study for degrees, diplomas, certificates and other academic distinctions;
(ii) ...
(iii) ...
(iv) ...
(v) ...
(vi) ...
(vii) ...
(viii) ...
(ix) ...
(x) ...
(xi) ...
(xii) ...
(xiii) ...
(xiv) ...
Section 40(1) of the said Act provides that the Executive Council may make, amend or repeal ordinances in the manner therein provided. Section 40 (2) of the said Act provides that no ordinance concerning the matters referred to in clauses (i) to (vi) and (ix) of section 39 or any other matter connected with the maintenance of the standards of teaching and examinations within the University shall be made by the Executive Council unless a draft thereof has been proposed by the Academic Council. Section 40(4) of the said Act provides that all Ordinances made by the Executive Council "shall have effect from such date as it may direct". In other words, the Executive Council itself should specify the date from which the ordinance shall become effective. The Executive Council did not specify any date for bringing the new ordinance into force. Section 40(4) of the said Act provides that every ordinance so made shall be submitted to the Chancellor of the University within two weeks. The Chancellor of the University has the power to direct Executive Council within four weeks from the receipt of the ordinance, to suspend its operation and inform the Executive Council of his objection to it. I am informed by Mr. Radhakrishnan that the Chancellor of the University was duly informed about all the relevant ordinances which were framed and reframed by the Executive Council in the meeting held on 30th March, 1989 and 30th August, 1990.
(b) Section 24 of the said Act enumerates the powers and duties of the Executive Council. Section 24(1)(iv) of the said Act prescribes that the Executive Council shall have a power to make, amend or repeal ordinances.
(c) Having referred to the provisions concerning ordinances making, amendment or repeal thereof, powers of the Executive Council and powers of the Academic Council, I must now refer to the provisions contained in the Act concerning the power of the Vice-Chancellor of the University as provided in section 11 of the said Act. Section 11(1) of the said Act provides that the Vice-Chancellor shall be the principal executive and academic officer of the university. Section 11(3) of the said Act is extremely significant. The said section reads as under:-
"It shall be the duty of the Vice-Chancellor to ensure that the provisions of this Act, the Statutes, ordinances and Regulations are faithfully observed. The Chancellor shall, for this purpose, have the power to issue directions to the Vice-Chancellor who shall give effect to any such directions."
Section 11(4) of the said Act reads as under:-
"If there are reasonable grounds for the Vice-Chancellor to believe that the emergency requires immediate action to be taken, he shall take such action, as he thinks necessary, and shall at the earliest opportunity report in writing the grounds for his belief that there was an emergency, and the action taken by him to such authority or body as would, in the ordinary course, have dealt with the matter. In the event of a difference arising between the Vice-Chancellor and the authority or body whether there was in fact an emergency, or on the action taken (where such action does not affect any person in the service of the University), or on both, the matter shall be referred to the Chancellor whose decision shall be final:
"Provided 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."
Section 11(6)(b) of the said Act reads as under:-
"11 (6)(b). Where any matter is required to be regulated by the Statutes, ordinances or Regulations, but no Statutes, Ordinances or Regulations are made in that behalf, in Vice-Chancellor may, for the time being, regulate the matter by issuing such directions as he thinks necessary, and shall, at the earliest opportunity thereafter, place them before the Executive Council or other authority or body concerned for approval. He may, at the same time, place before such authority or body for consideration the draft of the Statutes, Ordinance or Regulations, as the case may be, required to be made in that behalf."
Whatever may be the width of power under section 11(4) of the Act, it does not take within its sweep the subject matter of making, amending, replacing, relaxing the ordinances, statutes or regulations which must all be done by the Executive Council in the manner produced in the Act and no one else. It is obvious to me that the powers of the Vice-Chancellor under section 11(4) of the said Act do not take with-in its sweep power to make or amend or repeal or relax the ordinance directly or indirectly or deal with the subject matter required to be dealt with by the Executive Council by framing of an ordinance. The Vice-Chancellor is duty bound to enforce the ordinances. The ordinances are quasi-legislative in character and it is the paramount duty of the Vice-Chancellor to ensure that the ordinances are followed without any relaxation. In the instant case, the Vice-Chancellor issued the said circular dated 25th September, 1989 in good faith after consulting all the principals of the concerned colleges, as the Executive Council had not fixed the date from which the ordinance pertaining to abolition of "A.T.K.T." would come into force. Moreover, the exercise of revising the draft of the ordinance was also pending before the authorities like Board of Studies. Moreover it was always intended by the University authorities that all new ordinances as a package must be re-placed before the Academic Council and the Executive Council for their approval/re-approval and sanction/re-sanction.
6. Dr. Chandrachud, the learned Counsel for the petitioner, has, inter alia, made the following submissions :-
1) Under the old Ordinance No. 2183, a student was permitted to keep terms for the Vth Semester if he had passed in either the IIIrd Semester or the IVth Semester. The said ordinance continues to be operative and applicable to the revised course also unless the new ordinance replacing the same is legally brought into force.
2) So long as the old ordinance No. 2183 continues to exist, the Vice-Chancellor in exercise of his/her administrative power or emergency power could not pass any order abolishing or modifying the facility available to students under the old ordinance of A.T.K.T. by resorting to section 11(4) of the Bombay University Act, 1974 or otherwise.
3) The new ordinance abolishing A.T.K.T. was ultimately finalised by the Executive Council only on 30th August, 1990 and the same was finally published only on 3rd November, 1990. The said new Ordinance No. 3045 was prospective in its operation and could not be applied retrospectively. The said new ordinance could, therefore, be made applicable with effect from commencement of academic year 1991-92 and not earlier.
4) Clause (v) of circular dated 21st March, 1990 was ultra vires and void ab initio. The Vice-Chancellor could not make any decision to abolish or modify the A.T.K.T.
5) The Administrative decision of the University and College authorities to prevent students from keeping term for Vth Semester from about July/August, 1990 onwards was without authority of law as the replacing ordinance was not brought into force. It was for the Executive Council to fix a date when the new ordinance shall come into force and, in any event, if it was retrospectively applied, such retrospective application of the ordinance would be arbitrary and violative of Article 14 of the Constitution of India.
6) Power to frame ordinance was quasi - legislative in nature and it could not be delegated. No executive power could be exercised on the subject which was required to be dealt with by making of an ordinance by the Executive Council.
7) The date on which the new ordinance is to be brought into operation must be consistent with the dictate of Article 14 of the Constitution of India. The said date could not be arbitrarily fixed.
8) The Academic Council and the Executive Council respectively approved the package of new ordinances and regulations, including Ordinance No. 3045, only on 22nd June, 1990 and 30th August, 1990 and the same could not, therefore, be enforced during the academic years 1988-89 and 1990-1991.
9) In any event, section 11(4) of the Bombay University Act, 1974 could not empower the Vice-Chancellor to abrogate or modify the old ordinance or abolish the facility of A.T.K.T. granted by the ordinance. The said ordinance was applicable mutatis mutandis. There was nothing to show that an emergency existed which fact alone could at the most enable the Vice-Chancellor to make a decision under section 11(4) of the Bombay University Act, 1974. The emergency in question must be a demonstrable emergency and the fact of emergency must be objectively proved to the satisfaction of the Court inasmuch as clause (v) of the impugned circular dated 21st March, 1990 and the action of the Vice-Chancellor pertaining thereto was challenged before this Court.
10) Section 11(6) of the Bombay University Act, 1974 had no application to the present situation.
11) Section 11(4) of the Bombay University Act, 1974 empowers the Vice-Chancellor to act only if there was reasonable grounds for him/her to believe that there was an emergency which required action to be taken. The expression "reasonable grounds to believe" was liable to be construed in the manner similar expressions were construed by judicial decisions and it was for the University authorities to place relevant material before this Court on the basis of which the Vice-Chancellor had reason to believe that an emergency existed so as to enable him/her to invoke the powers under section 1(4) of the Bombay University Act, 1974.
7. On interpretation of section 11(4) of the Bombay University Act, 1974, Dr. Chandrachud relied upon several judgments of the Supreme Court, as listed below:-
Marathwada University v. S.B.R. Chavan, .
I.T.O. v. Lakhmani Mewal Das, .
Chhugamal v. S.P. Chaliha, A.I.R. 1967 S.C. 296.
Barium Chemicals v. Company Law Board, A.I.R. 1967 S.C. 296.
A.K. Roy v. Union of India, .
8. Mr. Radhakrishnan, the learned Counsel for respondents Nos. 1 and 2, submitted as under:-
1) This Court exercising jurisdiction under Article 226 of the Constitution of India should not interfere with decisions of the University aimed to achieve academic excellence and academic discipline. No case was made out by the petitioner for judicial intervention.
The learned Counsel cited several decisions in support of his submission to the above effect.
2) If this Court issued any directions in this petition sought for by the students, it would amount to condoning the lapse and deficiency on part of the students and disturbing the decisions of the University taken to improve the academic standards. Hence no judicial intervention was called for under Article 226 of the Constitution of India.
3) Ordinance No. 2183 framed in the year 1974-75 allowing students to keep terms in Semester V with backlog of Semester III or Semester IV was meant to be applicable to old course and was not applicable to revised course or new course which had come into force in the year 1987.
4) Newly framed Ordinance No. 3045 abolishing the facility to keep term for Semester V with backlog of one Semester was approved by the Executive Council on 30th March, 1989 and became finally operative on its publication by the Registrar by his circular dated 19th May, 1989.
5) The Re-approval of Ordinance No. 3045 along with other ordinances appended to circular dated 19th May, 1989 and several additional ordinances described by the University authorities as 'updated ordinances and regulations' by the Academic Council on 22nd June, 1990 and Executive Council on 30th August, 1990 and publication thereof on 3rd November, 1990 did not affect the enforceability of Ordinance No. 3045 and other ordinances and regulations appended to Circular dated 19th May, 1989 with effect from Academic Year 1988-89. The exercise of up-dating of ordinances and publication thereof should be viewed as pertaining only to 'additional ordinances' framed for the first time on 30th August, 1990. The ordinances and regulations appended to Circular dated 19th May, 1989 were place before the Academic Council and Executive Council in their respective meetings held on 22nd June, 1990 and 30th August, 1990 respectively only as a matter of abundant caution.
6) The decision of the Vice-Chancellor contained in Circular dated 25th September, 1989 allowing students who had failed either in Semester III or Semester IV in not more then three subjects to keep term in Semester V was taken in view of the teething trouble and boycott and strike referred to in the affidavit of the Registrar and should not be viewed as deferring or non-enforcement of Ordinance No. 3045, To quote exactly from the affidavit of the Registrar filed on behalf of the University it was contended by and on behalf of the University as under :-
"This circular of 25-9-1989 was issued in view of the special and peculiar circumstances, namely teething problems due to the revised system of examinations, and also due to boycott of examinations by the teachers of aided Engineering Colleges. The same has no relevance as of today and the same was applicable only for 1989-90."
7) Circular dated 21st March, 1990 was valid.
8) The Vice-Chancellor had ample power to take emergency decisions after assessing the situation under section 11(4) and section 11(6) of the Bombay University Act, 1974.
9) The emergency action of the Vice-Chancellor pertained to holding supplementary examination and had no relevance to the issues raised in the petition.
10) The respondents had lawfully prevented the students from keeping term for Semester V from about August 1990 as they had not fully cleared Semester III and Semester IV and they were given ample opportunity to clear the said examinations by appearing in several supplementary examinations which were held to accommodate the students. The regular term of Vth Semester was already over by November 1990 and no infrastructure could be now provided in this behalf.
11) The subject-matter of this petition was identical to Writ Petition No. 2958 of 1989. The said writ petition was already rejected by Jahagirdar, J., and appeal therefrom was already dismissed by Honourable Division Bench of this Court."
9. Mr. Radhakrishnan relied upon the following authorities in support of some of his propositions;
Maharashtra Secondary Board v. Paritosh, .
A.P. Christians Medical Education Society v. Government of Andhra Pradesh, .
N.M. Nageshwaramma v. State of Andhra Pradesh, (1986) (Supp) S.C.C. 166.
10. Mr. Ashar, the learned Counsel appearing for some of the colleges in companion writ petitions filed a note on facts emphasising that the students who had failed in Semester III were allowed to keep term in Semester IV in December 1989 and pointing out that several opportunity were provided to the students to clear in Semester III and Semester IV by the respondents so far and if the students were unable to clear the said examinations in spite of opportunities provided, they could not seek judicial intervention in this behalf by filing writ petitions under Articles 226 of the Constitution of India.
11. In rejoinder, Dr. Chandrachud, the learned Counsel for the petitioner, further submitted as under :
i) The entire history of the matter showed that the question of abolishing the A.T.K.T. system was in a flux. During the academic year 1988-89, the University had issued Circular dated 9th February, 1989 purporting to abolish A.T.K.T. for Vth Semester although the replacing ordinance was not yet framed or sanctioned by the Executive Council.
ii) Thereafter on 4th August, 1989, another circular was issued providing that a supplementary examination would be held at the end of the IVth Semester.
iii) On 25th September, 1989, a circular was once again issued allowing students to keep term for Semester V with backlog of Semester III or Semester IV provided the student concerned had not failed in more than three subjects.
iv) The updated ordinances as a package including ordinances already sanctioned in March 1989 were once again placed before the Academic Council and Executive Council.
v) It is stated on behalf of the University that the circular dated 21st March, 1990 containing decisions in the meeting held by the Vice-Chancellor with the Principals of Colleges on 6th March, 1990 will be placed before the Academic Council in third week of December, 1990.
vi) The cases of students who were allowed to keep term in Vth Semester during the academic year 1989-90 and the writ petitioners who sought admissions for Vth Semester during academic year 1990-91 were indistinguishable in material respects.
As regards earlier Writ Petition No. 2958 of 1989 rejected by Jahagirdar, J., is concerned, Dr. Chandrachud made detailed submissions in paragraph 9 of his written arguments and contended that the issues arising in this writ petition are totally different. In particular, Dr. Chandrachud pointed out that in the abovereffered writ petition, the writ petitioners had challenged the Circular No. 401 of 1989 dated 25th September, 1989 whereas in this petition the petitioners were adopting the said circular and claiming relief inter alia on the footing that the petitioners were almost similarly situated in material particulars when compared to the students benefitted by the above referred circular dated 25th September, 1989. Dr. Chandrachud further submitted that the petitioners had challenged clause (v) of new circular dated 21st March, 1990 in this petition which was not even in existence when the earlier writ petition was decided by Jahagirdar, J., Dr. Chandrachud also submitted that the contentions regarding jurisdiction of Executive Council to frame the ordinances and the power of Vice-Chancellor to relax the ordinances or exercise power under section 11(4) of the Act on the subject required to be dealt with by framing, amending or repeal of ordinances were not raised in the earlier petition filed by some other students. There is considerable force in these submissions of Dr. Chandrachud and it cannot be held that this writ petition is barred by decision of Jahagirdar, J., in Writ Petition No. 2958 of 1989 on principles analogous to res judicata or otherwise.
11. The University authorities are entitled to abolish the A.T.K.T. The University authorities are entitled to repeal old Ordinance No. 2183, which continues to be applicable to the new course till replaced by making of another ordinance expressly or by necessary implication. Inspite of change of subjects, the new course continues to be a four years course divided into eight semesters and the said ordinance is thus applicable mutatis mutandis to new course. As a matter of fact, even by a circular dated 25th September, 1989, the Vice-Chancellor allowed the students to keep term for the Vth Semester, although the said facility was restricted to the students who had not failed in more than there subjects. The students have no vested right to insist on the said facility of A.T.K.T. in continuation of the said old ordinance. It is, however, imperative that the pre-existing ordinance can be repealed only by the Executive Council by making a new ordinance to that effect and by fixing the date prospectively from which the said new ordinance shall be enforced. No subordinate legislation can have retrospective effect unless the enabling Act empowers the authority making subordinate legislation to do so. Section 40 of the Bombay University Act, 1974 does not empower the Executive Council to bring any ordinance into force retrospectively. Section 40(4) of the University Act requires the Executive Council to fix a date from which the ordinance will come into force. Assuming that the enabling Act conferred any such power on the Executive Council to bring an ordinance into force with retrospective effect, the Executive Council has not exercised any such power to bring the ordinance into force from an anterior date. When Ordinance No. 3045 was first approved on 30th March, 1989, no date was fixed for bringing the same into force by the Executive Council and in fact and in reality its enforcement was deferred and the Vice-Chancellor allowed the students to keep term for the Vth Semester even in September 1989. Moreover, the exercise of updating and revising the ordinances was started once again and it was intended by the University authorities to bring the same into force at a time after the same were updated. Such updated ordinances, including Ordinance No. 3045, were sanctioned by the Executive Council only on 30th August, 1990 and the same were published as a package for information by the Registrar on 3rd November, 1990.
12. It is not possible to accept the submission of Mr. Radhakrishnan that Ordinance No. 3045 was brought into force on 30th March, 1989. No date was fixed by the Executive Council under section 40(4) of the Act from which the said ordinance or any of the new ordinance was to be brought into force. If it was brought into Force on 30th March, 1989 or on 19th May, 1989, the circular dated 25th September, 1989 should not have been issued by the Vice-Chancellor allowing certain category of students to keep term for the Vth Semester. The said power is supposed to have been exercised in view of the teething troubles of the new course as set out in the affidavit of the Registrar. Whatever may be the reason, it is obvious to me that the enforcement of the said Ordinance No. 3045 was deferred for several theoretical and practical reasons. The Executive Council had not fixed any date for bringing the said ordinance into force and it re-sanctioned this very ordinance finally on 30th August, 1990. The said ordinance can be therefore brought into force only from the commencement of the academic year 1991-92 i.e. from about June 1991. I have gone through the minutes of the meetings of the Executive Council held on 30th August, 1990 and also the minutes of the Academic Council held on 22nd June, 1990. At the said meetings, the entire set of new ordinances, including the Ordinance No. 3045, were approved and sanctioned. If only additional ordinances were placed before the Executive Council for its sanction in the meeting held on 30th August, 1990, it would have been a different matter. That is not so. If the date fixed for the enforcement of the said ordinance is arbitrary, it would violate Article 14 of the Constitution of India. It is not necessary for this Court to examine the challenge under Article 14 of the Constitution of India as it is better to take the view that the said Ordinance No. 3045 would operate prospectively i.e. from the academic year commencing from June 1991 and not from any period anterior thereto.
13. The Ordinance No. 2183 continues to operate mitatis mutandis in respect of the new/revised course until the new ordinance abolishing A.T.K.T. for the Vth Semester is lawfully brought into force from a date notified by the Executive Council under section 40(4) of the Act or by necessary implication. i.e. from commencement of a academic year following the publication of the updated ordinances. It is not possible to accept the submission of the learned Counsel for the University that none of the ordinances applied to the new Course. Subjects for the Engineering Course have been revised. Division of B.E. Degree Course into four years divided into eight semesters has remained intact. In fact, the authorities have allowed the students to keep term for Vth semester. There is nothing in the revised course which would make the old Ordinance No. 2183 inapplicable to the new course by necessary implication. The circular dated 19th May, 1989 publishing ordinances sanctioned by the Executive Council in its meeting held on 30th March, 1989 is liable to be considered as tentative in view of the subsequent events like issue of circular dated 25th September, 1989 and re-sanction of all the ordinances and regulations along with changed ordinances as a package on 30th August, 1990. No opinion need be expressed on validity of circular dated 25th September, 1989 as it is not under challenge.
14. Mr. Radhakrishnan, the learned Counsel for the University of Bombay, relied on judgment of the Hon'ble Supreme Court in the case of N.M. Nageshwaramma v. State of Andhra Pradesh and anr., reported in (1986) (Supp.) Supreme Court Cases, 166. In this case, it was held that the Supreme Court could not direct the authorities to allow the students who had undergone training in unauthorised institutes to appear at the examination. This case is not at all helpful to us to resolve the controversy which is subject-matter of this petition.
15. Mr. Radhakrishnan also relied on judgments of the Hon'ble Supreme Court in the case of Maharashtra Secondary Board v. Paritosh, , and in the case of A.P. Christians Medical Education Society v. Government of Andhra Pradesh. . I have gone through the said judgements. These judgements, with respect, are not relevant or helpful in this case.
16. Mr. Radhakrishnan is right in his contention to the effect that this Court should be very slow in interfering with the matters pertaining to academic standards and the impugned decisions of the University authorities. I completely agree with this rule of caution. It is however imperative that the statutory authorities must act within the scope of their powers and jurisdiction and in the manner prescribed by and under the Act. If it is shown that the statutory authorities have not kept within bounds of their jurisdiction as laid down by the statute or their action, however well motivated, suffers from patent error of law, it would be the duty of this Court to intervene and grant appropriate reliefs and issue necessary directions under Article 226 of the Constitution of India. I agree that this Court cannot condone academic deficiencies on the part of the students. If however Mr. Radhakrishnan means that the abolition of A.T.K.T. could be brought about without issuing any ordinance and without bringing the same into force from a date to be fixed by the Executive Council as contemplated under section 40(4) of the Act, it is not possible to agree with him.
17. I have already held that the Ordinance No. 2183 continues to be operative and Ordinance No. 3045 can be made operative from the academic year commencing from June 1991 and not earlier. I have already held that the Vice-Chancellor had no jurisdiction to abolish A.T.K.T. by an administrative or executive decision taken in meeting held on 6th March, 1990 or taken in any other meeting. I am of the view that section 11(4) of the Act howsoever wide, does not empower the Vice-Chancellor to take any decision on the subject dealt with or required to be dealt with by ordinance making. Clause (v) of Circular dated 21st March, 1990 is therefore ultra vires the authority of the Vice-Chancellor and without authority of law. If prior to 21st March, 1990, new Ordinance No. 3045 would have already come into force, it was a different matter. The exercise of updating the ordinances including Ordinance No. 3045 as a part of the package was completed by the Executive Council only on 30th August, 1990. The process should have been expedited if it was intended to bring new ordinances into force from an earlier date. The Executive Council has not applied its mind to section 40(4) of the Act which requires the Executive Council to fix the date from which the ordinance will come into force. The Executive Council and the University authorities ought to have been conscious of the well-settled position in law that the ordinance could not be brought into force from retrospective effect. The statement appearing in circular dated 19th May, 1989 to the effect that the appended ordinances and regulations were brought into force from academic year 1988-89 suffered from patent legal infirmity as the academic year 1988-89 started very much earlier to the sanction of the ordinances.
18. Dr. Chandrachud has submitted in alternative that even if the Vice-Chancellor could abolish or modify A.T.K.T. in exercise of his/her power under section 11(4) of the Act, the said power could be exercised only if the Vice-Chancellor had reason to believe that an emergency existed requiring taking of immediate action by the Vice-Chancellor, as more particularly set out in the section. Dr. Chandrachud submitted that the expression 'reason to believe' used in the said section and similar phrase used in other statutes were interpreted by the Hon'ble Supreme Court so as to mean that such emergency must be shown to have existed objectively and the burden would be on authorities to demonstrate the existence of circumstances warranting the exercise of emergency powers. Dr. Chandrachud has invited my attention to various judgments of the Hon'ble Supreme Court listed in para 7 of this judgment. In the affidavit in reply filed by the Registrar of the University of Bombay, nothing whatsoever is stated so as to justify invoking of emergency power under section 11(4) of the Bombay University Act, 1974. Exercise of emergency power to sanction holding of supplementary examinations on eve of abolition of A.T.K.T. is justified and no argument can repel the exercise of such power. However it is not possible to hold that the A.T.K.T. could be abolished or modified by invoking power under section 11(4) of the Act. Dr. Chandrachud is aright in his contention that no emergency is shown to have existed so as to justify inclusion of clause (v) in the circular dated 21st March, 1990. Clause (v) of the said circular dated 21st March, 1990 is ultra vires and without the authority of law. In this view of the matter, the follow up action of the respondents in preventing the students from keeping term for Vth Semester during August-November 1990 is illegal and without authority of law.
19. Mr. Radhakrishnan submitted that in substance the same controversy which is made the subject-matter of the present petition was also the subject-matter of Writ Petition No. 2958 of 1989 filed by some other students. Mr. Radhakrishnan invited my attention to the judgment of Jahagirdar, J., of our High Court who had dismissed the said petition. A copy of the order passed by the learned Judge rejecting the said writ petition at the admission stage was annexed to the affidavit of the Registrar of the University. Mr. Radhakrishnan also brought to my notice that an appeal preferred against the said decision was also dismissed by the Hon'ble Division Bench. I have closely scrutinised the pleadings in Writ Petition No. 2958 of 1989. In that petition, the petitioners had challenged circular dated 25th September, 1989 which challenge is not to be found in the present case. In this petition, the petitioner has impugned the circular dated 21st March, 1990 which could not have been challenged in the earlier petition. In that petition, no question was raised as to from what dated the relevant ordinances could be implemented and what was the scope and ambit of the powers of Vice-Chancellor under section 11(4) of the Bombay University Act, 1974 vis-a-vis the scope of the powers of the Executive Council under section 40 of the said Act. The issues raised in the present petition are substantially different although part of the controversy may seem to be overlapping. In this view of the matter, I am not convinced by the submission made on behalf of the University of Bombay that the present petition is not maintainable on the principles analogous to res-judicata or otherwise by reason of the order passed by Hon'ble Mr. Justice Jahagirdar in Writ Petition No. 2958 of 1989.
20. In the foregoing paragraphs of this judgment, while dealing with the submissions of Mr. Radhakrishnan, I have also dealt with the submissions of Dr. Chandrachud directly or indirectly. I need not deal with the said submissions again. I accept each of the submissions of Dr. Chandrachud. I need not deal with the submissions of Mr. Ashar in this case as I cannot deny relief to the students once I hold that the impugned action of the University authorities was ultra vires and without authority of law.
21. Having regard to my conclusion as aforesaid, I pass the following order:-
1) Clause (v) of circular dated 21st March, 1990 (Ex. A to the petition) is ultra vires the authority of the Vice-Chancellor, void ab initio and of no legal effect for the following reasons :
a) The A.T.K.T. permitted by old Ordinance No. 2183 to keep term for Semester V could be abolished only by making of new ordinance and not by executive decision of the Vice-Chancellor under section 11(4) of Bombay University Act, 1974.
b) New ordinances including Ordinance No. 3045 abolishing A.T.K.T. were finally sanctioned by Executive Council of the University only on 30th August, 1990 and were published for information only on 3rd November, 1990. The said new set of updated ordinances, including Ordinance No. 3045, can be brought into force prospectively and not retrospectively i.e. from commencement of academic year 1991-92 starting from about June/July 1991 and not earlier.
c) In any event, no demostrable emergency existed so as to warrant exercise of emergency powers under section 11(4) of the Act. The Vice-Chancellor acted in good faith with an intention to improve academic standards, but acted under error of law and without jurisdiction resulting in prejudice to the students, though unintended.
2) The old Ordinance No. 2183 is operative for the revised course also and shall continue to be operative until new Ordinance No. 3045 is legally brought into force from the date to be fixed by the Executive Council. In any event, new Ordinance No. 3045 shall be operative from the academic year commencing from about June 1991.
3) The initial process of making Ordinance No. 3045 was completed by 19th May, 1989. The University authorities, however, re-started the process of re-consideration by formulating additional ordinances and by placing all the new ordinances and regulations before the Academic Council and Executive Council once again as a package which were all approved by the Executive Council on 30th August, 1990 and published on 3rd November, 1990. Till then, the enforcement of the ordinances appended to the Circular dated 19th May, 1989 was kept in abeyance. The Executive Council did not fix any specific date for bringing the new ordinances into force while passing the resolution dated 30th March, 1989 or 30th August, 1990.
4) The respondents acted without authority of law in preventing the students who had passed in examinations either pertaining to IIIrd Semester or IVth Semester in terms of Ordinance No. 2183 in view of clause (v) of the circular dated 21st March, 1990 already struck down by me. Thus the students were prejudiced by such erroneous decision, although the authorities must have acted in good faith. Thus an opportunity will have to be provided to the students to rectify the injustice by allowing them to keep term for Semester V in terms of the old Ordinance No. 2183 and appear in an examination in respect whereof the new academic year of 1991-92 commences from about June 1991.
5) I issue further directions in the matter as set out hereafter:-
a) The petitioner must appear in the examination pertaining to IIIrd or IVth Semester, as the case may be, in the subject or subjects still to be cleared immediately i.e. in the examination scheduled to be held in or about the month of December 1990 and May 1991 respectively. The respondents are directed to permit the petitioner to appear in the said examination. The respondent No. 1 is directed to issue all necessary directions to all the Engineering Colleges affiliated to it so as to implement this order.
b) The respondent No. 1 is directed to ensure appearance of the petitioner in the examination pertaining to Vth Semester which should be held sometime in the month of May 1991 or near about and issue all necessary directions in that behalf to the concerned Colleges and departments etc. The respondents Nos. 1, 2 and 3 are directed to arrange for lectures, practicals etc. as a special case from the month of January 1991 or at the earliest possible, so that the maximum possible training is available to the students concerned and the term for the Vth Semester is effectively filed in by the petitioner before the petitioner appears for the examination pertaining to the Vth Semester as aforesaid. The petitioner undertakes to attend to the lectures and practicals regularly and without any default as may be required by the authorities.
c) As from academic year 1991-92, the new ordinance shall be and can be enforced. It is hereby clarified that the students concerned would not be entitled to any facility or indulgence or extension of time-schedule in any respect whatsoever thereafter. If the petitioner regularly attends to the lectures and practicals for the Vth Semester organised by the authorities and still there is a deficiency in the quota to be completed because of the peculiar circumstances of this case, the respondent No. 2 shall nevertheless permit the petitioner to appear in the examination pertaining to the Vth Semester to be held in May 1991. If the petitioner would have been allowed to keep term for the Vth Semester during August/November 1990, the situation in which the petitioner is now placed would not have arisen.
d) All other students who are similarly situate may also avail of the benefit of this order on par with the petitioner on the same terms if they give the same undertaking to respondent No. 1 to comply with all their obligations, provided such students approach the University in this behalf before 31st December, 1990.
e) The respondent No. 1 may evolve such mechanism as it deems fit to give effect to this order in substance and the discretion of respondent No. 1 to manage its affairs within the parameters of law and this order is not intended to be diluted or interfered with in any manner whatsoever.
f) The respondent No. 1 shall circular the directions issued herein to all the Engineering Colleges within two weeks from today.
g) The respondent No. 1 shall take necessary steps to implement the order and directions in this behalf within three weeks from today as far as possible.
6) Rule is made absolute in terms aforesaid.
7) No order as to costs.
Note:---(1) The above judgment was dictated in open Court on 5th December, 1990, except the operative part.
(2) The operative part of judgment was finalised in Court after discussion with learned Counsel on 12th December, 1990 and signed by me.
(3) The transcription of the judgment, other than operative part of the judgment, had to be corrected. The said transcription is now finalised. The operative part of the said judgment as dictated and finalised on 12th December, 1990 is incorporated hereinabove and the said judgment in its entirety is signed by me on 18th December, 1990 after checking the same.
22. The Prothonotary & Senior Master is directed to forward a copy of this judgment to the Registrar, University of Bombay, forthwith.