Pinaki Ranjan Bharati v. State of West Bengal — 1981 DIGILAW 414 (CAL)

Judgment This application is at the instance of the Principal, 'Kabi Thirtha' Subhas Nagar, Bongaon, a college for Fine Arts affiliated to the University of Rabindra Bharati for admitting students in two years Junior Diploma Course in Dance, Drama and Vocal Music and it is directed against an order contained in the enquiry report and findings dated 7th July, 1980 made by the Registrar, Rabindra Bharati University, annexed as Annexure 'M' to the petition pursuant to the order made by this Court in Civil Rule No. 8972 (W) of 1978 on 10th March, 1980. 2. The aforesaid college known as 'Kabi Thirtha' situated at Subhas Nagar, P.S. Bongaon, District 24-Parganas, applied for affiliation to the Rabindra Bharati University for permitting the college to admit students in the two years Junior Diploma Course in Dance, Drama and Vocal Music. After due enquiry and on being satisfied the University authorities granted affiliation to this college for admitting students in the two years Junior Diploma Course in Dance, Drama and Vocal Music. The prospectus for the said course as published by the University in 1969 was handed over to the college authorities for guidance. It was provided therein :- "Any student who passed the School Final Examination of the Board of Secondary Education or holds an equivalent qualification may be admitted to the examination provided he has attained a minimum age of 16 years and has prosecuted a regular course of study for two Academic years in the institution affiliated to the University." The petitioner purchased a syllabus on 11th of April, 1977 from the Sales Counter of the University and it was evident from the said syllabus that the standard of eligibility for admission was the same as mentioned hereinbefore. The respondent No.1, the State of West Bengal, in order to encourage and permit the study of Fine Arts amongst the students belonging to the Scheduled Caste and Scheduled Tribes has been granting scholarship and by Order No. 921/S.C./SWTS dated February 10, 1977 sanctioned for payment of Rs.1,39,472/- in favour of the Principal, 'Kabi Thirtha'. A copy of the said order has been annexed as Annexure 'A' to the writ petition. It may be mentioned in this connection that the fund for this scholarship was granted by the Union of India. A copy of the said order has been annexed as Annexure 'A' to the writ petition. It may be mentioned in this connection that the fund for this scholarship was granted by the Union of India. The above amount was sanctioned by the respondent No. 1, on duly scrutinising the applications submitted in the prescribed form by the students reading in the college, 'Kabi Thirtha' who confirm to the terms and conditions prescribed for applying for this scholarship. 3. On March 21, 1977, the respondent No. 2, the Special Officer, Schedule Caste and Schedule Tribes Welfare, Barasat, 24-Parganas North, passed an order cancelling the said grant without assigning any the reason therefor in the said order. This has been annexed as Annexure 'B' to the petition. On April 25, 1977, the petitioner sent a communication to the respondent No. 2 intimating him that there was no reason for cancelling the said grant. It was further stated that the Sub-Divisional Officer, Bongaon, demanded a sum of Rs.5000/- as illegal gratification for the release of the said grant and on refusal by the petitioner to comply with the said illegal demand of the said officer, the said officer became very much annoyed and wrote a letter on March 18, 1977 under No. 143 (con) to respondent No. 2 and got the said grant cancelled. It has also been stated therein that the grant was sanctioned by the respondent No.1 after being satisfied that the requirements for obtaining the same were fulfilled, by the students who applied for the grant. On May 5, 1977, a letter was issued to the Principal, the petitioner, by the Special Officer, the respondent No. 2, stating for the first time therein that the minimum qualification for admission to the Junior Diploma Course in Dance, Drama and Music under Rabindra Bharati University which was Matriculation or School Final Examination passed up to February, 1971 had been brought down to reading up to Class X in Secondary School and as such it was not a Post-Matric Course. A copy of the letter has been annexed as Annexure 'D' to the petition. It has been submitted that the relaxation made in the matter of admission could not be construed as treating the said two years Junior Course one of pre-Matric Course and not Post-Matric Course of study. A copy of the letter has been annexed as Annexure 'D' to the petition. It has been submitted that the relaxation made in the matter of admission could not be construed as treating the said two years Junior Course one of pre-Matric Course and not Post-Matric Course of study. It has been further submitted that the University Grants Commission treated this college all along as a college of Post-Matric study and so treating the University itself sent registration forms to be used by the students for their registration as students of the University. As such the students admitted for the Junior Diploma Course are prosecuting Post-Matric Course of studies. This will be evident from a letter addressed to the petitioner under No. 510/B/55 dated February 22, 1978 annexed as Annexure 'F' to the petition. It has also been stated that the University sent another letter on 5th of May, 1978 to the petitioner sending forms of application for registration. This has been annexed as Annexure 'G' to the petition. It appears from column 4 of the Slid application form that it has been mentioned :- "date of birth (according to S.F. or H.S. certificate)". It will also appear from the application forms for appearing in the Junior Diploma Examination in Music, Dance and Drama that in item No. 6 it was mentioned "year of passing School Final or its equivalent examination of." It has been stated further that the resolution adopted at a meeting of the Academic Council on 20th of February, 1971 which was to the following effect "that these students who read up to Class X in Secondary School and having special aptitude in Fine Arts were eligible for admission in the Diploma Course provided they qualify themselves in a suitable eligibility test. It has also been provided that in no case shall any student be eligible for admission to the B.A. Course after passing the Senior Diploma Course, unless he has a pass certificate of H.S. Examination or equivalent qualification. It has also been submitted that this has not changed the minimum qualification prescribed by the ordinance for admission to the said Junior Diploma Course, at best, it is a mere relaxation in certain special cases as provided therein. It has also been submitted that this has not changed the minimum qualification prescribed by the ordinance for admission to the said Junior Diploma Course, at best, it is a mere relaxation in certain special cases as provided therein. It has also been stated that this resolution of the Academic Council being not made in accordance with the procedure prescribed for the making and/or amendment of the Ordinance does not, in any way, amend and/or change the Ordinance as it was not placed before the Chanceller for his consideration as mandatorily required under section 21 of the Rabindra Bharati Act, 1963. It has also been stated that even after 1971 the authorities concerned particularly the Rabindra Bharati University and the University Grant Commission consider the said Diploma Course as Post-Matric and not Pre-Matric as the Ordinance of 1969 for Junior Diploma Course has not yet been altered or modified. It has been also specifically stated in the petition that all the students admitted in the institution from the date of affiliation of the institution are Post-Matric students, that is, they were admitted after passing the Matriculation or equivalent examination in the said institute to prosecute the Junior Diploma Course. It has also been stated that the opinion given by the Registrar, Rabindra Bharati University, respondent No. 5, under letters No. 1802 E.B. date 15.7.77 and No. 1290 date 26.6.77 is mala fide and illegal inasmuch as respondent No. 5 cannot express such opinion that the said Diploma Course is a Pre-Matric one merely because the eligibility of admission in the said course has been relaxed in certain cases. It has been stated that seven candidates were admitted provisionally in this institution before the results of Matriculation or Higher Secondary Examination were published on consideration that they would succeed in the said examinations wherein they appeared. It has been further submitted that the admission of these seven students cannot be considered as making the course of study as Pre-Matric Course and the institution as Pre-Matric one. It has also been stated that all these seven students passed the Higher Secondary, Matriculation or School Final Examination. 4. Against the order of cancellation of this scholarship made by the respondent No. 2, an application was moved before this Court and Civil Rule No. 8972(W) of 1979 was issued. It has also been stated that all these seven students passed the Higher Secondary, Matriculation or School Final Examination. 4. Against the order of cancellation of this scholarship made by the respondent No. 2, an application was moved before this Court and Civil Rule No. 8972(W) of 1979 was issued. This was disposed of by Sabyasachi Mukharji, J. on March, 10, 1980 with the following observations :- "The appropriate order would be to dispose of this Rule by directing that a high officer either the Head of the Department or a Dean or any officer not below the rank of the Registrar of the University should conduct an enquiry upon notice to college concerned as also to the respondent Government as to whether in fact 'Kabi Thirtha' college is conducting Pre-Matric Course in the Junior Diploma which is affiliated to the University. In the enquiry, if it is found the 'Kabi Thirtha' college is so conducting the Junior Diploma Course with the Pre-Matric Course then the order dated March 21, 1977 shall be sustained. If on the other hand, it is found by the said officer upon reasons to be recorded by him, by inspection or otherwise upon notice to the petitioner as also the respondents that the college is not so conducting the order shall not be given effect to and shall stand quashed. If the amount that has been sanctioned has already been lapsed, the Government will sanction similar amount if it is found by the enquiry that the college is not conducting the Pre-Matric Course." In accordance with the said order the Registrar, Rabindra Bharati University, held an enquiry into the matter and submitted a report on 7th July, 1980, excerpts from which are stated herein under ;- "There was no record before me which could indicate that 'Kabi Thirtha' intended to conduct the Diploma Course with Post-Matric Students. The inspection report on the contrary records that "Kabi Thirtha" also intended to conduct the course with Pre-Matric Students. At the sitting held on 31 May, 1980 Sri Bharati did not dispute or contradict that part of the report but on the 7th June he tried to dispute it but such dispute and contradiction appeared to me to be an attempt for improvement. At the sitting held on 31 May, 1980 Sri Bharati did not dispute or contradict that part of the report but on the 7th June he tried to dispute it but such dispute and contradiction appeared to me to be an attempt for improvement. In the usual course of events the application for affiliation of 'Kabi Thirtha' could not be entertained at all by the University in the year of 1976 had the institute ever expressed any intention to conduct Junior Diploma Course with Post-Matric Students. In conclusion in terms of direction given by the Hon'ble Court I find that the institute 'Kabi Thirtha' was conducting the Junior Diploma Course with Pre-Matric Students in the year of 1976-77." The finding was arrived at by the Registrar on picking up seven applications for admission out of the bunch of applications produced by the petitioner and in these cases the applicants were admitted prior to their results of Matriculation Examination and Madhyamik Examination wherein they appeared were published. 5. This report has been challenged in this writ application on the ground that the Registrar did not consider all the relevant facts and materials germane for determination of the question whether the Junior Diploma Course to which affiliation was granted by the Rabindra Bharati University to this institution for admitting students is a Post-Matric Course or not. It has, therefore, been submitted that the said report is vitiated by total non-application of mind to the relevant materials and facts and as such the report is liable to be quashed and set aside. The Junior Diploma Course in which the institute is admitting students is not a Pre-Matric Course but a Post-Matrie Course and the students studying there the said course are entitled to apply for this scholarship-in-question. 6. An affidavit-in-opposition has been filed on behalf of the respondent No.3, Rabindra Bharati University. In paragraph 6(d) of the said affidavit it has been stated that the Executive Council of the University by a resolution dated 18th August, 1964, prescribed that the passing of School Final Examination or its equivalent and a minimum age of 16 years were to be regarded as requisite qualifications for admission to the Junior Diploma Course. The said resolution was adopted by the Executive Council by way of amendment of the earlier resolution of the Executive Council which made the original Ordinance for Junior Diploma Course. The said resolution was adopted by the Executive Council by way of amendment of the earlier resolution of the Executive Council which made the original Ordinance for Junior Diploma Course. It has also been stated that on 20th of February, 1971, the Executive Council relaxed the said standard of general Academic attainment so as to make students who read up to Class X in a Secondary School eligible for admission to such course. It has also been stated that the copies of syllabus printed in 1969 and published in 1969 where being sold from the University Sales Counter by mistake and they have not been corrected up-to-date incorporating therein, the amendments introduced in the aforesaid Ordinance. It has been stated in the paragraph 10 that in or around 1979 almost all the Universities in West Bengal including Rabindra Bharati University passed through serious crisis due to political uncertainty, violence and uncertainty prevailing in and around their campus. As a result the records of the University could not be maintained and preserved in the manner required to be maintained. In paragraph 14 of the affidavit it was stated that the seven applications were chosen at randum from a bunch of applications which were in the custody of the petitioner and the said applications revealed that the candidates who were admitted in the Junior Diploma Course at a time when they did not pass either Matriculation or its equivalent examination. It has also been stated that in view of the Circular dated 15th December, 1975 issued to the different affiliated institutions clearly bore out that the relative Junior Diploma Course was a Pre-Matric Course. 7. An affidavit-in-reply sworn by the petitioner has been filed. In paragraph 6 of the said affidavit it has been stated that under the Rabindra Bharati University Act an Ordinance can be given effect to after the same is submitted to the Chancellor and the Chancellor gives his assent to the same. The Ordinance for the Junior Diploma Course in Dance, Drama and Music was made before 1969. Clause II of the said Ordinance provides that any student who have passed the School Final Examination of the Board of Secondary Education or held an equivalent qualification is entitled to get admission in the said course. The Ordinance for the Junior Diploma Course in Dance, Drama and Music was made before 1969. Clause II of the said Ordinance provides that any student who have passed the School Final Examination of the Board of Secondary Education or held an equivalent qualification is entitled to get admission in the said course. Since before 1969 the said Ordinance has been operating in the field and neither any new Ordinance nor any amendment of the Ordinance has yet been made in accordance with the provisions of the said Act. The relaxation in the matter of admission to the said course adopted at the meeting of the Executive Council on February 20, 1971 was not placed before the Chancellor for his assent and the Chancellor did not assent to the same. The said amendment, therefore, have no legal effect and the same has not been enforced by the University. Moreover, it is a mere relaxation for admission in respect of certain special students mentioned therein. It does not in any way affect or change the general eligibility for admission in the said course as prescribed by the Ordinance. It is a special facility provided for some specially gifted students. It has also been stated that since the affiliation of this college to Rabindra Bharati University this college admitted 256 students in Junior Diploma Course and sent up about 55 students for appearing at the Final Examination and all the said students were and are School Final passed. It has also been stated that in the Annual Number of Vocational Guidance to young persons published in December, 1975 (Vol. XVI No. 3) issued by the Directorate of National Employment Service, West Bengal. It has been mentioned that the entry qualification in the Pre-Degree Course in Fine Arts and Visual Arts is School Final and its equivalent. The said publication also shows that Junior Diploma Course is a Pre-Degree Course and that the Scheduled Caste students studying the said Pre-Degree Course are entitled to get stipends. 8. Mr. It has been mentioned that the entry qualification in the Pre-Degree Course in Fine Arts and Visual Arts is School Final and its equivalent. The said publication also shows that Junior Diploma Course is a Pre-Degree Course and that the Scheduled Caste students studying the said Pre-Degree Course are entitled to get stipends. 8. Mr. Saktinath Mukherjee learned Advocate appearing on behalf of the petitioner has submitted that the enquiry report submitted by the Registrar of the Rabindra Bharati University after holding enquiry as directed by this Court in the earlier Civil Rule being vitiated by non-consideration of the relevant materials and circumstances as well as the same being vitiated by malice in law, the petitioner is entitled to come before this Court for quashing of the said report and for appropriate orders. The plea of constructive res judicata is not available in this case and the petitioner is not debarred from seeking remedy in this jurisdiction by the instant application. Reference has been made in this connection to a decision of this Court in the case of (1) Joy Kissore Panda v. Union of India, 84 CWN 795. 9. Mr. Mukherjee secondly submitted that the Registrar, the respondent No.5, did not consider the applications for admission made by the students in the Junior Diploma Course to which this college has been affiliated. The respondent No.5 merely took out seven applications out of the bunch of applications and other records produced before him. In these cases all these seven applications appeared either in the Matriculation Examination or in the Madhyamik Examination but their results were not declared and/or published at the time when they applied. The results undoubtedly were published in case of Madhyamik Examination on September 4, 1976 and in case of Higher Secondary (Supplementary) and Madhyamik Examination on 4th September, 1976 and 22nd July, 1976 respectively. These students were admitted undoubtedly on 28th July and 22nd June, 1976 as evident from the report of the Registrar (Annexure 'M'). The results undoubtedly were published in case of Madhyamik Examination on September 4, 1976 and in case of Higher Secondary (Supplementary) and Madhyamik Examination on 4th September, 1976 and 22nd July, 1976 respectively. These students were admitted undoubtedly on 28th July and 22nd June, 1976 as evident from the report of the Registrar (Annexure 'M'). It is only from this fact the Registrar, the respondent No.5, made an inference that since these students were admitted in the said college before their results were out of the course, that is, affiliated is a Pre-Matric Course and not a Post-Matric Course without taking into consideration the Ordinance, the prospectus, the syllabus, the Registration Forms and Application Forms for appearing in the Examination supplied by the Rabindra Bharati University. It has also been submitted by Mr. Mukherjee that at the time when, these seven students were admitted, there is no doubt, this college did not get affiliation and therefore the question of their eligibility for admission in the Junior Diploma Course did not arise then. It has also been submitted that the affiliation was obtained in August, 1976 and their results were published as stated hereinbefore. They were provisionally admitted in the Junior Diploma Course on the understanding that if they could not secure pass marks in the Matriculation or equivalent examination wherein they appeared they would not be allowed to continue to study in the same course. The inference and/or conclusion arrived at by the respondent No.5 solely on the basis of this material is patently based on non-consideration of all the relevant materials and circumstances and on a non-application of mind to these materials. Therefore the impugned report and/or order made by the Registrar is liable to be quashed and set aside. It has been next submitted that the impugned order is vitiated by malice in law inasmuch as in coming to a finding the respondent No. 5 exercised his discretion for an unauthorised purpose. It has been further submitted by Mr. Mukherjee that the enquiry report and order is bad as it does not record any reasons for coming to his finding that the Junior Diploma Course of Dance, Drama and Music followed by this college is a pre-Matric Course. The order is therefore bad. It has been further submitted by Mr. Mukherjee that the enquiry report and order is bad as it does not record any reasons for coming to his finding that the Junior Diploma Course of Dance, Drama and Music followed by this college is a pre-Matric Course. The order is therefore bad. It has also been submitted that the resolution adopted at a meeting of the Executive Council on 20.2.71 being not placed before the Chancellor and having not received the assent of the Chancellor the said resolution cannot he treated as amending or altering the Ordinance prescribing the eligibility for admission in the said course. It has also been submitted in this connection that Statute 6 Clause 'b' which empowers the Executive Council to amend or repeal Ordinance does not at all mean that an Ordinance can be amended in a mode or manner different from what has been provided in section 21(3) of the Rabindra Bharati Act. 1963. 10. Mr. Prabhat Kumar Sengupta, learned Advocate appearing for the Rabindra Bharati University, the respondent No. 3, has submitted that the order passed in Civil Rule No. 8972 (W) of 79 on 10th March, 1980 by Sabyasachi Mukharji, J. operates as res judicata and the instant application raising identical questions is not maintainable. Mr. Sengupta has, in the next place, submitted that in the earlier Rule which was disposed of after hearing all the parties with a direction that a high officer not below the rank of Registrar of the University would hold an enquiry as to whether the 'Kabi Thirtha' college was conducting Pre-Matric Course in the Junior Diploma Course to which it is affiliated in the University. It was also observed that if the college is found to be conducting Junior Diploma Course with Pre-Matrie Course then the order dated March 21, 1971 would be sustained. It has been urged that the enquiry has been held by the Registrar of the Rabindra Bharati University and a report was submitted wherein it was found that this college was conducting Junior Diploma Course as a Pre- Matric Course in the year 1976-77. It has been urged that in view of this report this writ application is not maintainable as the report is neither perverse nor it was vitiated by non-application of mind. Mr. It has been urged that in view of this report this writ application is not maintainable as the report is neither perverse nor it was vitiated by non-application of mind. Mr. Sengupta has next contended that the Registrar who held enquiry in presence of the petitioner took out seven applications out of the bunch of the applications produced and in all these applications the applicants did not pass either Matriculation or equivalent examination when they were admitted in the Junior Diploma Course. Mr. Sengupta further submitted that the eligibility for admission in the Junior Diploma Course which was previously passing of the Matriculation Examination or its equivalent was lowered by a resolution of the Executive Council adopted on February 20, 1971 at its meeting relaxing the standard that students who have read up to Class X in a Higher Secondary School are eligible for admission in the said course on their passing suitable eligibility test. As such the Junior Diploma Course to which the college has been affiliated is a Pre-Matric Course as found by the Registrar on enquiry and the impugned order made by the respondent No. 2, cancelling the scholarships sanctioned for this college was not illegal and bad. Mr. Sengupta, lastly, submitted that no averment has been made in the petition nor any materials were produced at the time of the enquiry to show that Post-Matric Students were admitted in the said course. Therefore the finding arrived at in the enquiry was not vitiated by malice in law. It has also been submitted that the enquiry being made properly the report could not be challenged and the question of change of course being also not raised in the earlier rule it cannot be reagitated now. It has lastly been submitted that the Statute 6(b) provides that the Executive Council can amend and/or repeal any Ordinance and there is no provision in the said statute that it has to be placed before the Chancellor for his approval. The resolution of the Executive Council passed at its meeting on 20th February, 1971, it is submitted, has amended and/or altered the Ordinance prescribing eligibility of students to be admitted in the Junior Diploma Course. 11. The resolution of the Executive Council passed at its meeting on 20th February, 1971, it is submitted, has amended and/or altered the Ordinance prescribing eligibility of students to be admitted in the Junior Diploma Course. 11. Before dealing with the arguments advanced as to the merits of the writ application it is proper to decide the question as to whether the order made in the earlier Civil Rule operates as res judicata. Undoubtedly in the earlier Rule the validity of the order of cancellation made by the respondent No.2 on March 21, 1977, was challenged. This application, however, was disposed of by giving certain directions as mentioned hereinbefore. No decision was, in fact, made on any of the issues raised in the said Rule. Moreover, in the instant writ application the report submitted by the Registrar, Rabindra Bharati University, after holding the enquiry has been challenged as being vitiated by non-application of mind and by non-consideration of relevant materials. The report has also been challenged as being vitiated by malice in law. If the contentions of the petitioner as raised in this petition are substantiated, the report with the findings cannot be accepted. In my opinion, the principle of constructive resjudicata cannot be invoked in the instant case and the instant application cannot be held to be barred. Reference may be made in this connection to the observations made by this Court in the case of Joy Kissore Panda v. Union of India, 84 CWN 795 at page 811, paragraph 17. In this case disputes arose as regards the acceptance of tenders by three tenderers. A.K. Mukherjee, J. after hearing the parties disposed of the Rule by directing the District Manager, F.C.I., Hooghly to consider afresh all the tenders and dispose of the same in terms of the directions given therein. It has also been observed that the decision of the authorities concerned shall be binding upon all the parties and they cannot agitate further against such order. The decision of the concerned authority was challenged on the ground of non-observance of the directions given while deciding the matter. A plea of constructive res judicata was raised. It was held by Sabyasachi Mukharji, J. that the purponed decision having been made without consideration of factors enumerated by A.K. Mukherjee, J. did not operate as constructive res judicata. The decision of the concerned authority was challenged on the ground of non-observance of the directions given while deciding the matter. A plea of constructive res judicata was raised. It was held by Sabyasachi Mukharji, J. that the purponed decision having been made without consideration of factors enumerated by A.K. Mukherjee, J. did not operate as constructive res judicata. The decision of (2) State of Uttar Pradesh v. Nawab Hussain, reported in 1977 (2) SCC 806 is not applicable to this case as the facts are different. In that case the respondent No. 7 who was a Sub-Inspector of Police was dismissed from service by the D.I.G. The order of dismissal was challenged in a writ petition before the High Court on the ground that he was not afforded any reasonable opportunity. The petition was dismissed. It was held by the Supreme Court that in order to prevent multifariousness of legal proceedings the Rule of constructive res judicata will apply when a plea which could have been taken by a party in the earlier proceeding was not taken. The subsequent proceeding based on the same cause of action was barred by the Rule of constructive res judicata. I have already stated hereinbefore that in the earlier Civil Rule none of the questions raised before the Court were decided and as such this decision has got no application to the instant case. Therefore, in my opinion, the instant application is maintainable. 12. The next question which requires consideration is whether the report submitted by the Registrar of the Rabindra Bharati University after holding enquiry in accordance with the order made in the earlier Civil Rule is bad and vitiated by non-consideration of relevant materials and by malice in law. In other words, the finding arrived at in the said report that the institute, 'Kabi Thirtha' was conducting Junior Diploma Course with Pre-Matric Students in the year 1976-77 was perverse and the same was arrived at on a closed mind. The college, 'Kabi Thirtha' obtained affiliation from the Rabindra Bharati University on 28th August, 1978 authorising the authorities of the college to admit students in two years Junior Diploma Course in Dance, Drama and Vocal Music. The college, 'Kabi Thirtha' obtained affiliation from the Rabindra Bharati University on 28th August, 1978 authorising the authorities of the college to admit students in two years Junior Diploma Course in Dance, Drama and Vocal Music. It appears from the prospectus handed over by the University that students who have passed the School Final Examination of the Board of Secondary Education or holds an equivalent qualification will be eligible for admission to the said course and students will be eligible to appear in the examination provided he has attained a minimum age of 16 years and prosecuted a regular course of study for two years. It appears from the application forms for registration as a student of the University supplied to the college by the Rabindra Bharati University that it is mentioned in item No. 4 of that form "date of birth (according to S.F. or H.S. Certificate)." It also appears from the application forms to be submitted by the students intending to appear in the Junior Diploma Examination of the Rabindra Bharati University that in the item No. 6 it has been mentioned :-"year of passing the S.F. or its equivalent examination of." It has also been stated in paragraph 2 of the petition that in the prospectus published by the University and handed over to the authorities of the college the eligibility for admission in the Junior Diploma Course to which this college was affiliated to the Rabindra Bharati University is School Final passed or its equivalent qualification. It also appears from the letter issued by the Registrar, Rabindra Bharati University, dated 22nd January, 1978, to the petitioner that the instant college was conducting Post-Matric studies and the same will also be evident from the letter issued by the Rabindra Bharati University sending 555 copies of Application Forms for registration. In paragraph 6(d) of the affidavit-in-opposition sworn by the respondent No. 3, Registrar, it has been admitted that the eligibility for admission in the Junior Diploma Course is the passing of S.F. or its equivalent and a minimum age of 16 years. It has, however, been stated that the said eligibility of admission was relaxed by a resolution of the Executive Council dated 20th February, 1971 whereby students, who read up to Class-X in a Secondary School will be eligible for admission for such course subject to their passing eligibility test to be held for that purpose. It has, however, been stated that the said eligibility of admission was relaxed by a resolution of the Executive Council dated 20th February, 1971 whereby students, who read up to Class-X in a Secondary School will be eligible for admission for such course subject to their passing eligibility test to be held for that purpose. It thus appears that according to the prospectus, according to the application form printed by the University to be filled up and filed by the students for appearing in the Junior Diploma Examination as well as according to the application for registration of students the minimum qualification for admission to the Junior Diploma Course is the passing of School Final Examination or its equivalent and a minimum age of 16 years. The resolution of the Executive Council dated 20th February, 1971 has not, in fact, been given effect to as the form of application for appearing in the Examination of Junior Course as well as the application forms for registration of students had not been changed and the minimum qualification required according to these two forms is School Pinal passed or its equivalent. Ordinance also prescribes the standard of eligibility for admission in the Junior Diploma Course in Dance, Drama and Music. Moreover, section 21 of the Rabindra Bharati Act, 1963, lays down the manner of making statutes, ordinances, regulations and rules. Sub-section (3) of the said section clearly specifies that every statute or ordinance before it is given effect to shall be submitted to the Chancellor and shall be modified or amended in such a manner as may be suggested by the Chancellor. 13. In the instant case it has been specifically stated in paragraph 10 of the petition that the resolution of the Executive Council relaxing the eligibility of admission in the Junior Diploma Course was never placed before the Chancellor of the said University. In paragraph 10 of the affidavit-in-opposition it was merely stated that in or around 1971 almost all the Universities in West Bengal including the Rabindra Bharati University passed through serious crisis and as a result the records of the University could not be maintained and preserved in the manner the same were required to be maintained. In paragraph 10 of the affidavit-in-opposition it was merely stated that in or around 1971 almost all the Universities in West Bengal including the Rabindra Bharati University passed through serious crisis and as a result the records of the University could not be maintained and preserved in the manner the same were required to be maintained. There is no affirmation as to whether the statements made in paragraph 10 of the affidavit-in opposition are submissions or are true to the knowledge of the deponent or true to information derived from the records. Therefore this statement in paragraph 10 cannot be accepted. In may opinion, on a consideration of the facts and circumstances stated hereinbefore the only conclusion that follows is that the Junior Diploma Course to which 'Kabi Thirtha' college has been given affiliation for admitting students is a Post-Matric Course and not a Pre-Matric Course. This is further affirmed by the specific averment made in paragraph 13(A) of the petition that the grant-in-question was sanctioned to the students of this college reading the Junior Diploma Course after due consideration of their applications in the year 1977. It has also been stated in paragraph 22 of the petition that all the students admitted in the institution from the date of affiliation of the said institution are Post-Matric Students, that is, after passing the Matriculation or its equivalent they were admitted in the said institution to prosecute the Junior Diploma Course. It has also been specifically stated in paragraph 23 of this petition that seven students who were admitted in this institution in July, 1976 though appeared either in Madhyamik or Higher Secondary Examination their results were not published then. It is also not disputed that at the time of their admission in this institution affiliation from the University for admitting students in the Junior Diploma Course was not obtained. The affiliation was granted only in the end of August, 1976. The results of all these seven students were published in September, 1976 and one in July, 1976. Therefore, all these students as has been stated in paragraph 23 of the petition passed the Matriculation or its equivalent examination while they were prosecuting their studies in the Junior Diploma Course. The affiliation was granted only in the end of August, 1976. The results of all these seven students were published in September, 1976 and one in July, 1976. Therefore, all these students as has been stated in paragraph 23 of the petition passed the Matriculation or its equivalent examination while they were prosecuting their studies in the Junior Diploma Course. The Enquiry Report did not at all consider this aspect of the case and the finding arrived at by the Registrar, Rabindra Bharati University, respondent No.3, is clearly and patently based on a non-consideration of relevant materials and the finding that the Junior Diploma Course is a Pre-Matric Course is also erroneous on the face of it. This averments in paragraphs 22, 23 & 27(A) wherein it has been specifically stated that all the students admitted in the Junior Diploma Course affiliated to the University are Post-Matric students are not controverted at all in the affidavit-in-opposition. A mere denial has been made in paragraph 12 of the affidavit-in-opposition. In paragraph 27(A) of the petition it was specifically averred that each of the candidates reading in the institution passed either Secondary or Higher Secondary Examination and there is no single instance in which the candidate was allowed to prosecute this course without being a Matriculate or its equivalent. Paragraph 14 of the affidavit-in-opposition which purports to deal with the above statements did not controvert the same at all. This being the position the finding as made in the enquiry report is, in my opinion, perverse and the same has been made without considering relevant germane materials. It is also vitiated by malice in law. The Supreme Court in the case of (3) Smt. S.R. Venkat Raman v. Union of India & Anr., AIR 1979 SC 49 has laid down in a clear and succinct language what is meant by malice in law. "Malice in its legal sense may be assumed from the wrongful act done intentionally but without just cause or excuse or want of reasonable or probable cause." I have already held that it is evident from all relevant materials that the eligibility for admission to the Junior Diploma Course as laid down by statute framed under the Rabindra Bharati Act is School Pinal passed or its equivalent examination. Therefore, the finding that the Junior Diploma Course is a Pre-Matric Course is vitiated by malice in law. Therefore, the finding that the Junior Diploma Course is a Pre-Matric Course is vitiated by malice in law. The qualification prescribed for applying for the Government of India Scholarship which was sanctioned to students belonging to the Scheduled Caste is a Post-Matric Scholarship and it has been specifically provided as evident from the instructions for the applicants which have been annexed as Annexure M(1) to the petition that the scholarships are granted for recognised course of study after passing the Matriculation, Higher Secondary or its equivalent Examination in recognised institutions only. In the instant case the scholarship which was sanctioned by the Government of India was granted by the State Government for being disbursed to the applicants whose applications after due scrutiny were considered eligible for the grant of the said scholarship. 14. The order of the respondent No. 2 cancelling the entire grant on the mere plea that in a meeting of the Executive Council of the Rabindra Bharati University on 20.2.71 admission eligibility was brought down to reading in Class X in a Secondary School and as such the Junior Diploma Course is a Pre-Matric Course and not a Post-Matric Course is wholly unwarranted, illegal and on the face of it, bad. As I have held already that the alleged resolution of the Executive Council was never placed before the Chancellor as mandatorily required under section 21(3) of the Rabindra Bharati Act, 1963 and as such the same did not alter or amend the Ordinance prescribing eligibility for admission in the said course. "If merely the statute directs that certain acts shall be made in a specified manner, or by certain person their performance in any other manner than that specified or by any other person than one named, is implicitly prohibited." The above observation has been made in the case of (4) Taylor v. Taylor, (1875) 1 Ch. D. 426. This has been relied upon in the case of (5) Ram Chandra v. Govind Jyoti, AIR 1975 SC 915 at pages 918. D. 426. This has been relied upon in the case of (5) Ram Chandra v. Govind Jyoti, AIR 1975 SC 915 at pages 918. Moreover, even assuming for argument's sake that the resolution has modified the Ordinance prescribing eligibility for admission to the said course, even then, the general qualification for getting admission in the said course has not been altered at all but the resolution in question merely makes a relaxation in the same special cases of students who read up to Class X in a Secondary School and have passed suitable eligibility test will be admitted in the said course. This does not, in any circumstance, mean that the course that would be followed is a Pre-Matric Course. Moreover, I have already held that this resolution under any circumstance cannot be deemed to amend the Ordinance prescribing qualification for admission in the Junior Course inasmuch as in amending the Ordinance the procedure laid down in section 21(3) has to be followed. This resolution of the Executive Council being not placed before the Chancellor it did not amend or alter the said Ordinance. 15. Considering all these facts and circumstances the only irresistable conclusion is that the Junior Diploma Course to which this institution, 'Kabi Thirtha' has been affiliated for admitting students is a Post-Matric Course and not a pre-Matric Course as wrongly found by the respondent No. 3 in his report. 16. In the premises aforesaid there is substance in the arguments advanced on behalf of the petitioner. This application is allowed. 17. Let a Writ of Mandamus be issued commanding the respondents to forbear from giving effect to the enquiry report of the Registrar of the University dated 7th July, 1980 and the order of the respondent No. 2 dated 21st March, 1977. Let a Writ of Certiorari be issued directing the respondents to quash, cancel and set aside the impugned enquiry report of the Registrar, the respondent No. 3 as well as the impugned order dated 21.3.1977 made by the respondent No.2. The respondent No. 1 is directed to sanction a similar amount for grant of scholarships to the students as sanctioned previously. In the facts and circumstances of the case there will be no order as to costs.