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2008 DIGILAW 1407 (PAT)

Sarfaraz Ahmad v. State Of Bihar

2008-09-11

NAVIN SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner, for the University and for respondent Nos. 1 and 2. 2. The petitioners are students of the Maulana Azad College of Engineering and Technology and R.P.S. Engineering and Technology, Danapur, Patna in the B.Sc. Engineering Course under the Magadh University. They have failed in more than three papers in their second year of examination and are, therefore, aggrieved by denial of permission for admission to the third year course. 3. The thrust of the argument is that earlier by framing transitory regulations approved by respondent No.1 on 16.8.2005 such examinees were permitted to be promoted from 2nd year to the 3rd year notwithstanding that they had failed in more than three papers. In fact, some of the present petitioners who failed to clear more than three papers in the 1 st year came to this Court in C.W.J.C. No. 5871/07, disposed on 7.5.2007. This Court noticing the order of respondent Nos. 1 and 2 dated 25.2.2006 referred to above, directed the Vice-Chancellor of the University to consider if it was permissible in accordance with the instructions of the Chancellor contained in the said letter and if it be so, to permit them to appear in part-2 of the engineering course. The petitioners then appeared at the 2nd year examination having failed in more than three papers in the 1st year examination when appropriate orders in that regard were passed on 1.10.2007. 4. The petitioners are again before this Court seeking the same relief, now for the third year. 5. A counter affidavit has been filed on behalf of the respondents. 6. Learned counsel for the University and respondents 1 and 2 laid much emphasis on the fact that the permission granted to students who had failed in more than three papers in pursuance of transitory regulations dated 16.8.2005 and 25.2.2006 was, in fact, confined to students of lesser classes only. The regulation dated 16.8.2005 clearly stated that it was a one time measure and cannot be treated as a precedent. 7. Counsel for the parties have heavily relied on Section 39 of the Bihar State Universities Act, 1976 (hereinafter referred to as the Act) governing the Magadh University, Bodh Gaya under which the present two institutions fall. The regulation dated 16.8.2005 clearly stated that it was a one time measure and cannot be treated as a precedent. 7. Counsel for the parties have heavily relied on Section 39 of the Bihar State Universities Act, 1976 (hereinafter referred to as the Act) governing the Magadh University, Bodh Gaya under which the present two institutions fall. It vests the power to frame regulations inter alia in Clause-B as follows: "Section 39(b): the condition under which students shall be admitted to the degree of diploma courses and to the examinations of the University and shall be eligible for such degrees and diplomas;" 8. Both sides have made strong submissions from Section 39(2)(ii) proviso of the Act to urge their respective cases. The petitioner contends that though there may be substantive regulations framed thereunder the proviso confers the power to make interim arrangements under the Regulations. Learned counsel for the University and for the respondents 1 and 2 submit that the transitory regulations dated 16.8.2005 and 25.2.2006 were issued in pursuance of exercise of powers under this proviso and that the order dated 1.10.2007 was issued in pursuance of the orders of this Court in C.W.J.C. No. 5871/07. "Section 39(2)(ii): [Such a regulation shall have effect from the date on which it has been assented to by the Chancellor on being passed by the Senate with or without amendment, or from any date fixed by the Chancellor: Provided that at any time except when the Senate is in session, if the Academic Council makes a Regulation and considers its immediate enforcement necessary, the Academic Council may recommend through the Syndicate, the Chancellor accordingly and the Chancellor with such amendment, as he thinks proper, shall direct by a notification published in the Gazette that the Regulation shall come into immediate effect, but such a Regulation shall cease to be effective on the expiry of seven days from the date of the next meeting of the Senate, unless confirmed by the Senate: Provided further that if any Regulation made by the Academic Council under the preceding proviso, involves expenditure from the University funds, the Regulation shall be forwarded to the Chancellor with the advice of the Financial Advisor.]" 9. No Court of Law can pass orders contrary to statutory provisions. This Court in C.W.J.C. No. 5871/07 did not give any directions to the University to act contrary to the regulations. No Court of Law can pass orders contrary to statutory provisions. This Court in C.W.J.C. No. 5871/07 did not give any directions to the University to act contrary to the regulations. All that the Court said was that if the power be there and if it has been acted upon earlier the matter be considered in that light. Since the parties in their argument have repeatedly used the word transitory regulation, it is necessary to take note of Sections 75 and 75(K) of the Bihar State Universities Act. "Section 75:Notwithstanding anything contained in the Act, the Vice- Chancellor may, for a period not exceeding six months from the commencement of this Act and with the previous approval of the Chancellor and subject to the provision of funds by the State Government or otherwise discharge all or any of the functions of the University for the purpose of carrying out the provisions of this Act and for that purpose may exercise any powers or perform any duties which by this Act are to be exercised or performed by any officer or authority of the University, not being an officer or authority of the University in existence at the time when such powers are exercised or such duties are performed." 10 It deals specifically with the power to frame transitory provisions. Section-75 deals with a situation where the need to frame transitory provision may arise for a period not exceeding six months from the commencement of the Act. The Act came into force on 16.5.1977. This power was felt necessary in view of the practical difficulties that may arise by reason of coming into force of a new law till the entire machinery under the Act was set in motion. Section 75(K) contemplates a situation where for implicit reasons the Senate, the Syndicate or the academic council or any other body under the Act is not constituted. Both the situations are not presently applicable. 11. That leaves in operation Section 39 of the Act. In exercise of powers under Section 39 of the Act regulations have been framed in 1977 regulations. Regulation 12 necessary in the present controversy is quoted in its entirety hereunder: "Regulation 12. (i) If at any examination, a candidate possesses in sessional work but fails in not more than 3 subjects, he may be promoted to the next higher class. In exercise of powers under Section 39 of the Act regulations have been framed in 1977 regulations. Regulation 12 necessary in the present controversy is quoted in its entirety hereunder: "Regulation 12. (i) If at any examination, a candidate possesses in sessional work but fails in not more than 3 subjects, he may be promoted to the next higher class. Such candidate shall be required to appear and pass in the written papers of the subject(s) in which he has failed, in the next examination alongwith the subjects of the next higher class. If he fails in more than three subjects he may appear as non-collegiate candidate in the subsequent examination but shall have to appear in all the subjects. If he fails in sessional work, he has to take readmission. (ii) if a candidate promoted as in (i) above, passes in all the papers (or fails in three papers or less) and does not pass in sessional work of the higher examination, but does not pass the lower examination, his result of the higher examination shall be withheld, till he is declared to have passed the lower examination. However, he has the option of appearing in all the papers of the higher class as in (i) above again." 12. It will be seen that the regulations framed under Section 39 specifically prohibit the promotion to the next higher class of a student who has failed in more than three papers. Amendment to these regulations was made with regard to B.Sc. Engineering students effecting from the year "2000". Even these amendments do not permit the promotion to a higher class for student who has failed in more than three papers. 13. If the regulations prohibit a particular state of affairs, what it specifically prohibited cannot be done by passing the substantive regulation in the form of a temporary provision. That shall be doing complete violence to the substantive regulations framed under Section 39 of the Act. If, at all, such a power is permitted and that too without any guidelines for the exercise of the same, it obviously runs the risk of becoming arbitrary to be exercised or not to be exercised at whims and fancies. 14. That shall be doing complete violence to the substantive regulations framed under Section 39 of the Act. If, at all, such a power is permitted and that too without any guidelines for the exercise of the same, it obviously runs the risk of becoming arbitrary to be exercised or not to be exercised at whims and fancies. 14. This Court further has no hesitation in holding that the proviso to Section 39(2)(ii) relied upon, vests power to frame regulations in an urgency which shall necessarily have to be conditioned down to those not provided for in the substantive regulations. That is why the proviso itself provides the requirements for its confirmation within seven days from the next date of the meeting of the Senate failing which it would lapse. To read into this proviso "a power to act in teeth of and contrary to what the substantive regulations prohibit" is an interpretation which this Court is not willing to give. 15. The respondents in issuing the orders dated 16.8.2005 and 25.2.2006 have obviously exceeded their brief. Perhaps, for that reason, counsel for the University and respondent nos. 1 and 2 were unable to point out any other source for the exercise of this power, an argument which has already been negated by this Court. The only recourse open is an appropriate amendment to the regulation either by substantive changes or by incorporation of clauses for relaxation/exemption with guidelines. This aspect of the matter rests the domain of the respondents themselves. 16. It is therefore not possible for this Court to grant relief contrary to the substantive Regulations on basis of a misconceived action of the respondents earlier contrary to the same. 17. Before parting with the case, this Court only hopes that the petitioners shall realize the futility of litigation in an academic career and pursue their education more seriously. 18. After the order was delivered in Court upon conclusion of hearing, and the Court declined to grant relief, learned counsel for the petitioner, Ajay Kumar Thakur, submitted that the petitioners may be permitted to sit again for the ensuing second year examination in all the failed papers. Learned Senior Counsel for the University, Sri Yugal Kishore very fairly submits that the petitioners should have an opportunity to improve their academic qualifications. Learned Senior Counsel for the University, Sri Yugal Kishore very fairly submits that the petitioners should have an opportunity to improve their academic qualifications. The University is therefore, directed to accept the fees and forms of the petitioners alongwith the late fine and permit them to appear at the ensuing second year examination in the failed papers. This order has been passed in presence of the learned counsel for the University and the Court hopes and trusts that the University shall abide by the matter on this limited aspect of the matter without waiting for a certified copy of the order. This presupposes alertness on the part of the petitioners themselves. 19. The writ application is dismissed on merits, but with directions.