Amrit Chand Tripathi v. University of Allahabad — 1986 DIGILAW 513 (ALL)

JUDGMENT K.P. Singh, J. - By means of this writ petition the petitioners have prayed for a writ of certiorari quashing the resolution dated 6-5- 86 contained in Annexure `1' attached with the writ petition providing for Entrance test for the Degree course of Arts, Science and Commerce of the University of Allahabad for the session 1986-87. They have also prayed for a writ of mandamus commanding the opposite parties not to hold any Entrance test for the admission of B. A., B.Sc. and B. Com. course for the session 1986-87. It has also been prayed that the opposite party No. 2 be prohibited from proceeding any further with his illegal and arbitrary scheme of Entrance test in the University of Allahabad for the admission to Degree courses of Arts, Science and Commerce. They have also sought for a direction to the opposite parties to admit the students in Degree courses of Arts. Science and Commerce as provided under the Acts, Statutes and Ordinances of the University. General relief as well as costs have been claimed by the petitioners. 2. The main grievance of the petitioners is to the effect that Sri R. P. Misra, Vice Chancellor, Allahabad University, opposite party No. 2 has arbitrarily required the Entrance test for admission in Degree courses of Arts, Science and Commerce for the session 1986-87. He has not paid due regard to the provisions of the Uttar Pradesh State Universities Act, 1973 (hereinafter, the aforesaid Act shall be referred to as the `Act'). According to the petitioners the academic council of the University is the Supreme Body so far as the academic life in the University is concerned. It has been stressed on behalf of the petitioners that no admission Committee contemplated by the provisions of section 28 of the Act exists in the University and S. 28 sub-cl. (3) of the Act provides that the Admission Committee shall lay down the principles of norms governing the policy of admission to the various courses of study in the University subject to superintendence of the academic council, but the opposite party 2 has acted illegally in requiring Entrance test for admission in Degree courses of Arts, Science and Commerce. (3) of the Act provides that the Admission Committee shall lay down the principles of norms governing the policy of admission to the various courses of study in the University subject to superintendence of the academic council, but the opposite party 2 has acted illegally in requiring Entrance test for admission in Degree courses of Arts, Science and Commerce. It has been stressed that the resolution dated 6-5-1986 contained in Annexure `1' attached with the writ petition and requiring the Entrance test for admission to Degree courses of Arts, Science and Commerce was passed in a meeting of the Ad-hoc Admission Committee which committee is not in accordance with the provisions of the Acts, Statutes and Ordinances of the University; therefore, the resolution is bad in law and deserves to be quashed. 3. Second contention raised on behalf of petitioners is that the resolution contained in Annexure `1' attached with the writ petition is also illegal, arbitrary, mala fide and against the provisions of the Statute as it provides for reservation of 15% to the students of other States. The aforesaid resolution is bad because it does not provide Entrance test for girl students. The aforesaid resolution is also bad as it requires Entrance test without prescribing syllabus etc. for the examination. 4. Third contention raised on behalf of petitioners is that Entrance test for admission to the degree courses of the University could not be required by the opposite party No. 2 without a draft proposed by the Academic Council to that effect in view of the provisions of S. 45(1)(a)(i) and the provisions of S. 52(3) proviso (a) of the Act. 5. Learned counsel for the opposite parties has submitted in reply that the present writ petition is not maintainable as the petitioners have no locus standi. He has suggested that petitioner 1 has not suffered any injury and petitioners 2 and 3 have no cause of action to file the petition. 6. Second submission made on behalf of the opposite parties is to the effect that the petitioners have an alternative remedy under S. 68 of the Act. Therefore, it is not a fit case where any relief should be granted to the petitioners in the present writ petition. 7. 6. Second submission made on behalf of the opposite parties is to the effect that the petitioners have an alternative remedy under S. 68 of the Act. Therefore, it is not a fit case where any relief should be granted to the petitioners in the present writ petition. 7. Third submission made on behalf of the opposite parties is to the effect that an admission Committee was constituted under S. 13(6) of the Act in the year 1973 by the then Vice Chancellor Sri Ram Sahai and that Committee is continuing and it has been performing the duties of the Admission Committee since then. It has been suggested that the Committee consisted of the members enjoying the following posts : Vice Chancellor, All the Heads of the Departments, Dean, Students' Welfare, University Proctor, and Registrar. 8. The persons enjoying the above posts have been members of the Admission Committee of the University every year since the year 1973. 9. According to the learned counsel for the opposite parties the Admission Committee in the University of Allahabad is an Ad-hoc Admission Committee and not a regular Admission Committee contemplated by the provision of S. 28(1) of the Act. Since the Ad- hoc Admission Committee was consulted by the opposite party 2 in the present writ petition and thereafter the resolution dated 6-5-1986 contained in Annexure `1' attached with the writ petition was passed. Therefore, the allegations of the petitioners that opposite party 2 was proceeding arbitrarily and against the provisions of the Statutes and Ordinances were not correct. He has stressed that the opposite party 2 in requiring entrance test for admission to degree courses of Arts, Science and Commerce has evolved a policy for betterment of the students. Therefore no legal exception can be taken to the conduct of the opposite party 2. Since the Vice Chancellor of the University (opposite party 2) is the principal executive and academic officer and exercises general supervision and control over the affairs of the University including constituent colleges and institutes maintained by the University and its affiliated and associated colleges. The resolution dated 6-5-1986 contained in Annexure `1' attached with the writ petition cannot be beyond his powers. The allegations of the petitioners that the resolution was passed arbitrarily, illegally and against the provisions of the statutes, Ordinances etc. are all incorrect. 10. The resolution dated 6-5-1986 contained in Annexure `1' attached with the writ petition cannot be beyond his powers. The allegations of the petitioners that the resolution was passed arbitrarily, illegally and against the provisions of the statutes, Ordinances etc. are all incorrect. 10. Learned counsel for the opposite parties has emphasised that the admission of the students being most urgent affair the policy requiring entrance test was covered by the provisions of S. 13(6) of the Act. Therefore, the conduct of the Vice Chancellor (opposite party 2) cannot be characterised as arbitrary or without jurisdiction. 11. In rejoinder the learned counsel for the petitioners has emphasised that if the entrance test required by the resolution dated 6-5-1986 is treated as additional qualification in view of the provisions of S. 45 read with proviso to S. 52(3) of the Act the Admission Committee could not deal with the question. 12. Secondly if the entrance test is considered only the norms for judging the merits of the students, the admission committee could not deal with the question without its action having been supervised by the Academic Council. In the present case Opposite party 2 in passing the resolution contained in Annexure `1' attached with the writ petition has failed to consider the provisions of S. 28 sub-cl. (3) read with provisions of S. 25 of the Act. Therefore, the resolution dated 6-5-1986 is not in accordance with law and deserves to be quashed. 13. Thirdly it has been emphasised that no emergency existed nor has any fact been brought to the notice of this Court for the exercise of powers by opposite party 2 under S. 13(6) of the Act. Therefore, the contentions of the learned counsel for opposite parties that the resolution dated 6-5-1986 would be treated as valid and within the powers of opposite party 2 should not be accepted. 14. We have heard learned counsel for the parties at great length, and we have weighed their contentions noted above. 15. As regards the submission of learned counsel for opposite parties that the writ petition is not maintainable it is sufficient to indicate that recent trend of the authorities of the highest court is to the effect that even if the petitioners are not personally aggrieved and the interest of the public is involved, a citizen can maintain the writ petition. 16. 16. In AIR 1981 SC 344 Fertilizer Corporation Kamagar Union (Regd) Sindri v. Union of India at page 354 vide para 41 it has been indicated as below :- "Law, as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all the sundry will be litigation- happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms, suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi 17. Later in para 48 of the aforesaid it has been indicated as below. "If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view the present petition would clearly have been permissible under Article 226. (See judgments of Krishna Iyer, J. in (1975) 2 SCC 702 : AIR 1975 SC 2092 and (1976) 2 SCC 291 : ( AIR 1976 SC 242 ). 18. Moreover, relying upon the dictum of law laid down by their Lordships of the Supreme Court in S. P. Gupta v. President of India AIR 1982 SC 149 we think that this writ petition cannot be thrown out on the ground that the petitioners had no locus standi. The observations made by their Lordships of the Supreme Court in paras 23 to 25 of the aforesaid ruling do justify that the petitioners have sufficient interest to maintain this writ petition. 19. The observations made by their Lordships of the Supreme Court in paras 23 to 25 of the aforesaid ruling do justify that the petitioners have sufficient interest to maintain this writ petition. 19. In view of the aforesaid rulings of their Lordships of the Supreme Court we would not be justified in throwing out the present writ petition on the ground that the petitioners have no locus standi. The submission of the learned counsel for the opposite parties in this regard is not acceptable to us. 20. As regards the submission of the learned counsel for the opposite parties that there is an alternative remedy under S. 68 of the Act, therefore, we should not exercise our jurisdiction under Article 226 of the Constitution at the instance of the petitioners in the facts and circumstances of the case, we think it proper to indicate that an alternative remedy is not an absolute bar for the exercise of the powers under Article 226 of the Constitution by this Court. 21.This writ petition was presented during summer vacations and the learned single judge had directed the petition to be listed for admission before the appropriate bench and had indicated that the respondents could file counter-affidavit and rejoinder could also be filed. Since counter and rejoinder affidavits had been filed, we proceeded to hear the writ petition finally at the admission state and did not grant interim relief to the petitioners in the form they had prayed for. After hearing the learned counsel for the parties on merits, it would not be a sound exercise of discretion to dismiss the writ petition on the ground of alternative remedy. Therefore, we are unable to accept the submissions of the learned counsel for the opposite parties that the writ petition should be dismissed on the ground of alternative remedy. 22. Section 28 of the Act provides that - "(1) There shall be an admissions committee of the University the constitution of which shall be such as may be provided for in the Ordinances. (2) ................... . (3) Subject to the Superintendence of the Academic Council and to provisions of sub- sec. 22. Section 28 of the Act provides that - "(1) There shall be an admissions committee of the University the constitution of which shall be such as may be provided for in the Ordinances. (2) ................... . (3) Subject to the Superintendence of the Academic Council and to provisions of sub- sec. (5), the admissions Committee shall lay down the principles of norms governing the policy of the admission to various courses of, studies in the Universities and may also nominate a person or a sub-committee as the admitting authority in respect of any course of study in an Institute or a constituent college maintained by the University. 23. Placing reliance upon the aforesaid provisions the learned counsel for the petitioners has submitted that the resolution was passed by an Ad hoc Admission Committee which had not been provided for in the Ordinances, therefore, the resolution dated 6-5-1986 should be quashed. 24. Vide para 5 of the Supplementary Counter affidavit of Suhail Ahmad it is evident that the Admissions Committee as contemplated by S. 28(1) of the Act has not come into being as yet. During the course of arguments the learned counsel for the opposite parties has justified that the resolution contained in Annexure `1' attached with the writ petition was validly passed. The Vice Chancellor had ample powers under S. 13(6) of the Act to pass the resolution for betterment of the students. It has also been emphasised that the Admission Committee which has been working since 1973 is, correctly speaking, an Ad hoc Admission Committee and that committee took a decision of the entrance test, therefore, the conduct of the Vice Chancellor could not be criticised by the petitioners. The learned counsel for the opposite parties had emphasised during the course of arguments that the resolution dated 6-5-86 attacked by the petitioners was passed by the Vice Chancellor under his powers under S. 13(6) of the Act, and the members of admission committee (described as ad hoc Committee) have really taken the decision for entrance test and have thereby supported the Vice Chancellor in evolving the policy of entrance test. According to the learned counsel for the opposite parties the action of opposite party 2 in passing the impugned (resolution) is within the four corners of the provisions of S. 13(6) of the Act. 25. According to the learned counsel for the opposite parties the action of opposite party 2 in passing the impugned (resolution) is within the four corners of the provisions of S. 13(6) of the Act. 25. Since the learned counsel for the opposite parties has justified the action of the opposite party 2 placing reliance upon the provisions of S. 13(6) of the Act, it is necessary to quote the aforesaid section which reads as below. "The Vice Chancellor shall be the principal executive and academic officer of the university and shall (a) to (e) ................. (2) to (5) .................... (6) .................... Where any matter is of urgent nature requiring immediate action and the same could not be immediately taken by any officer or the authority or other body of the University empowered by or under this Act to deal with it, the Vice Chancellor may take such action as he may deem fit and shall forthwith report the action taken by him to the Chancellor and also to the officer, authority, or other body who or which in the ordinary course would have dealt with the matter. Provided that no such action shall be taken by the Vice Chancellor without the previous approval of the Chancellor if it would involve a deviation from the provisions of the Statutes or the Ordinances : Provided further that if the officer, authority or other body is of opinion that such action ought not to have been taken it may refer the matter to the Chancellor who may either confirm the action taken by the Vice Chancellor or annul the same or modify it in such manner, as he thinks fit and thereupon, it shall cease to have effect or, as the case may be, take effect in the modified from, so however, that such annulment or modification shall be without prejudice to the validity of anything previously done by or under the order of the Vice Chancellor. Provided also that any person in the service of University who is aggrieved by the action taken by the Vice Chancellor under this sub-section, shall have the right to appeal against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon, the Executive Council may confirm, modify or reverse the action taken by the Vice Chancellor. 26. 26. For exercise of powers by the Vice Chancellor under the abovementioned S. 13(6) of the Act it is necessary that the matter should be of urgent nature requiring immediate action. In the present case no materials have been brought to our notice to justify the passing of the resolution dated 6-5-1986. The learned counsel for the opposite party had submitted that nothing has been pleaded in the writ petition on the question of applicability of the aforesaid section. We find that a specific plea has been raised in the writ petition regarding the aforesaid provision in paragraph 16. It has been indicated therein that action of the Vice Chancellor was not in consonance with the provisions of the aforesaid Section of the Act because he did not report the action forthwith to the Chancellor and also to the Executive Council and it has also been noted at page 30 of the paper book that there did not exist any urgency necessitating the action by the opposite party No. 2 under the aforesaid section. Vide para 4 of the counter-affidavit of Dr. R. P. Agrawal, the contents of para 16 of the writ petition have not been admitted but no relevant facts have been alleged in the counter-affidavit to justify the action by, the opposite party 2 attracting the provisions of S. 13(6) of the Act. The learned counsel for the opposite parties suggested that the matter of the admission of students was most urgent, therefore, the policy introducing entrance test was fully covered by the provisions of S. 13(6) of the Act. It has also been brought to our notice that the question of entrance test was under consideration for the last three years, therefore, we think that it was necessary for the opposite parties to bring necessary facts in their counter-affidavit so as to justify the action of the Vice Chancellor in passing the resolution on 6-5-1986 on the ground of urgency of the matter. There is no material in the counter affidavits filed by the opposite parties to justify the urgency of the matter for introducing entrance test for admission to degree courses in Arts, Commerce and Science. There is no material in the counter affidavits filed by the opposite parties to justify the urgency of the matter for introducing entrance test for admission to degree courses in Arts, Commerce and Science. We are unable to accept the submission of the learned counsel for the opposite parties that the action of the Vice Chancellor in passing the resolution contained in Annexure I attached with the writ petition was within in the four corners of the provisions of S. 13(6) of the Act. In 1982 U.P.L.B.E.C. 574 : ( AIR 1983 All 128 ) (Committee of Management of Janta Vedic College, Baraut, District Meerut v. Vice-Chancellor, Meerut University. Meerut a Division Bench, of this Court vide Paragraph 6 has indicated that the power conferred by S. 13(1) and (6) could be used by the Vice-Chancellor only in urgent cases needing immediate action. In 1984 U P L B E C 293 : (1984 Lab IC 918) Deep Kumar Sukla v. Allahabad University, Allahabad, another Division Bench of this Court has also indicated that the Vice-Chancellor can exercise the powers under S. 13(6) of the Act where he finds that the matter is of such urgent nature that the same could not be immediately dealt with by the regular authority named in the Act. The essence of sub-sec. (6) of S. 13 seems to be the existence of that degree of urgency requiring immediate action where the action could not be dealt with by the authority concerned. On the materials in the present writ petition we think that the opposite party 2 has travelled beyond his jurisdiction in passing the resolution dated 6-5-1986 contained in Annexure 1 attached with the writ petition and he has also acted illegally in not paying due regard to the other provisions of the Act. To our mind, Annexure 1 attached with the writ petition deserves to be quashed. 27. While dealing with the scope of S. 13(6) a learned single Judge of this Court in 1985 U.P.L.B.E.C. 16 : (1984 All LJ 1119) Rahmat Ullah v. Chancellor of Bundelkhand University, Jhansi has indicated that justification of the order of the Vice Chancellor under the provisions of S. 13(6) of the Act would not be open to the learned counsel for the University as the order of the Vice-Chancellor did not state that he was taking action in his emergency powers contained in that Section. Therefore, also we are not inclined to accept the submission of the learned counsel for the opposite parties that the resolution dated 6-5-1986 was within the four corners of the provisions of S. 13(6) of the Act. In our opinion the writ petition deserves to be allowed on this score alone. 28. Learned counsel for the petitioners has raised several contentions in support of the writ petition but it is not necessary to deal with all of their when the petition get the main relief on a short ground. 29. During the course of arguments the learned counsel for the opposite parties drew our attention to para 17 of the ruling reported in AIR 1981 SC 487 at page 499, Ajai Hasia v. Khalid Mujib Sehravardi and has emphasizad that the entrance test facilitates assessment of comparative talent of the candidates by application of uniform standard and is always preferable to evaluation of comparative merits on the basis of the marks obtained at the qualifying examination. He has suggested that the policy evolving entrance test this year is for the betterment of the students. Therefore, the Vice-Chancellor could pass the resolution regarding entrance test. No doubt the entrance test is desirable these days because the result of students at qualifying examination is not satisfactory and the standard is going down. At the same time good end must be achieved by good means. It is deplorable that more than 13 years have passed since the State Universities Act, 1973 came into force, yet the admission committee in the University has not come into existence as contemplated by the provisions of S. 28 of the Act. The Vice-Chancellors being principal executive and academic officers of the University should have seen that the compliance of the provisions of S. 28 would have been done long long back. In our opinion, the present Vice-Chancellor has not paid due regard to the provisions of S. 45(1)(a), S. 51(2)(a) and Proviso to S. 52(3) of the Act. It is expected of him that if he considers essential that entrance test for the Session 1987-88 should be held, he should see that the Admissions Committee comes into existence as contemplated by the provisions of S. 28 of the Act. He should also see that the Academic Council gets an opportunity to play its role in the matter of academic life of the students. 30. He should also see that the Academic Council gets an opportunity to play its role in the matter of academic life of the students. 30. The learned counsel for the opposite party also invited our attention to para 29 of the ruling reported in AIR 1984 SC 1543 at page 1559 Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth and has emphasised that this court should refrain from interfering with the academic matters dealt with by the University. We think that we are doing nothing of the kind in view of our above discussion. Rather, we are only emphasising that the academic council should also get an opportunity to play its role in future. 31. Learned counsel for the opposite parties has also justified the entrance test by placing reliance on the ruling reported in AIR 1985 SC 567 , Jawaharlal Nehru University Students Union v. Jawahar Lal Nehru University. We also think that the entrance test for admission to Degree courses of Arts, Science and Commerce of the University cannot be characterised as arbitrary, illegal or irrational in view of the fact that the standard of students passing Intermediate Examination or equivalent examinations thereto is deteriorating now-a-days. However, we have only emphasised that the implementation of the policy regarding entrance test should be strictly in accordance with law. In the present case resolution dated 6-5-86 contained in Annexure I attached with the writ petition has been passed by the opposite party 2 without paying due regard to the provisions of the Act. We are unable to accept the submission of the learned counsel for the opposite parties that the action of the opposite party 2 is within the four corners of the provisions of S. 13(6) of the Act in passing the impugned resolution dated 6-5-1986 contained in Annexure I attached with the writ petition as the urgency of the matter for evolving entrance test for the Session 1986-87 has not been substantiated. 32. For the foregoing discussions the writ petition succeeds in part and is accordingly allowed. The resolution dated 6-5-1986 contained in Annexure I providing for the entrance test for admission to degree Courses of Arts, Science and Commerce of the University of Allahabad for the Session 1986-87 is hereby quashed. 32. For the foregoing discussions the writ petition succeeds in part and is accordingly allowed. The resolution dated 6-5-1986 contained in Annexure I providing for the entrance test for admission to degree Courses of Arts, Science and Commerce of the University of Allahabad for the Session 1986-87 is hereby quashed. Regarding relief (c) claimed in the writ petition it would be open to the opposite party 2 to proceed for entrance test in future strictly in accordance with the provisions of the Act. In case of necessity he will see that necessary ordinances are passed to comply with the provisions of the Act and the relevant authorities of the University should get due opportunity to play their role. The opposite parties shall see that the students to the Degree Courses of Arts, Commerce and Science are admitted for the Session 1986-87 according. to the practice prevailing in the University in the past years and for the year 1987-88 or thereafter it would be open to the University authorities to move in the light of the discussions above. In the circumstances of the present case, parties shall bear their own costs.