Krishan Gopal Vs Punjab University and Another

@JUDGMENTTAG-ORDER

Grover, J.@mdashThis is a petition under Articles 226 and 227 of the Constitution. The petitioner appeared in the preliminary examination in Law held by the Punjab University in September, 1963. When the result was declared, his name did not appear among the successful candidates. He made an enquiry and was informed by means of a letter dated 6th December, 1963, that he had obtained the following marks :

It is apparent that he was short of 4 marks in paper IV and 2 marks in the aggregate According to the regulations which were in force, he could not be declared to have been successful. The petitioner''s case, however, is that the Syndicate of the Punjab University took decision on 28th September 1963 according to which grace marks were to be allowed and this decision was to apply to all faculties and examinations of the Punjab University including P. E. L. examination. This decision was in the following terms :

If a candidate fails in one or more subjects and or the aggregate (if there is a seperate requirement of passing in the aggregate) marks up to a maximum of one percent of the total aggregate may be given in accordance with the rules, approved by the Syndicate, to make up the deficiency, so as to enable the candidate to pass the examination.

It is not disputed that if the petitioner could get the benefit of the aforesaid decision of the Syndicate, then he would have been entitled to have been declared successful. Para VI, item 51, of the Senate proceedings dated 31st March, 1962 of which Annexure ''B'' is a copy, is to the effect-

That when no date is mentioned in a resolution of the Syndicate the decision shall take effect from the date of the Syndicate meeting in which such decision is taken.

According to the petitioner therefore the resolution passed by the Syndicate was to become effective from that very day namely, 28th September, 1963 and since the examination commenced a few days prior to this decision and concluded some days after the said decision had been taken. The results which were to be declared on the basis of that examination were to be governed by the aforesaid decision of the Syndicate. In para 7 of the petition it has been asserted that due representations were made to the University authorities in which it was stated that the benefit of the aforesaid resolution or decision of the Syndicate had been given to all the candidates appearing in M.Sc. M.A., B.A., B.Sc, B.Ed., M.Ed., Engineering and Medical Examinations, the results whereof were declared after the date of the aforsaid resolution and that this had been done without waiting for the aforesaid resolution having been converted into a regulation after complying with all the necessary formalities.

2. The petitioner''s grievance thus is that due effect has not been given to the resolution and also the case of the petitioner has been treated with discrimination and in violation of the provisions of Article 14 of the Constitution. Appropriate writs in the nature of certiorari and mandamus have been sought in the matter of quashing the result of the P.E.L. examination held in September, 1963 in so far as the petitioner was wrongly declared unsuccessful and for directing University authorities to declare the petitioner successful.

3. In the return which was filed in August 1964 it was not denied that the resolution was passed on 28th September, 1963 in the terms mentioned by the petitioner but the position taken up was that it was only a direction to the authorities to make uniform provision for award or grace marks for all the faculties and examinations. It was further stated that this resolution could not be termed as a regulation framed u/s 31 of the East Punjab University Act, 1947 the procedure for framing the regulations had been fully complied with in accordance with the regulations No. 21 and 22 at page 42 of the Punjab University Calendar, 1962, Part I. Such regulations could be effective from the date of publication in the Punjab Gazette. It was further maintained that the resolution dated 21st March, 1962, referred to in the writ petition by which the decision was taken by the Senate was to take effect from the date of the Syndicate meeting in which such decision was taken. It was said that it applied to all administrative decisions of the Senate which were not covered by the resolutions. It was denied that the University authorities gave benefit of the resolution dated 28th September, 1963 to all the candidates of the examinations mentioned in the petition. It was said that the Syndicate after considering the recommendations of the various Committees passed a resolution No. 69 in its meeting held on 23rd July, 1964 regarding various examinations of the faculties and it was pursuant to those decisions that benefit was given to the candidates who appeared in the various examinations. It was, however, admitted that benefit of one per cent grace marks was given to Roll No. 25 who appeared in the P.E.L. examination in April, 1964, but it was asserted that this benefit was given to him on the basis of resolution No. 2 passed by the Syndicate in its meeting held on 30th November, 1983 and not on the basis of the resolution passed by the Syndicate on 28th September, 1963. In para 9 of the return it was stated that the amendment in the already existing regulations as contemplated by the resolution of the Syndicate dated 28th September, 1963 could only be incorporated in the regulations to be framed u/s 31 of the Act. It was denied that any discrimination had been practiced against the petitioner.

4. Further particulars were furnished by the University regarding the resolutions of the Senate dated 31st March, 1962 and of the Syndicate dated 28th September, 1963, with respect to these there were certain objections by the Senior Auditors about the procedure to be followed as no date was mentioned in the meeting of the Syndicate meeting and it was stated that in that connection the aforesaid resolution of 31st March was passed.

5. As regards the resolution of the Syndicate dated 28th September, 1963, it was stated that the matter was referred in January, 1964 to the Deans of various faculties to invite their opinion for the purpose of adopting uniform pattern for all the faculties and examinations and for drafting the rules in that behalf. The Deans of the faculties sent suggestions which were placed before the meetings of the respective faculties. The Law Faculty considered the matter in its meeting held on 24th July, 1964 and it was resolved that the decision of the Syndicate along the opinion of the Dean be adopted for all the Law examinations. It was further.resolved to recommend to the Syndicate that in view of the fact that in some other University examinations the benefit of the above rule had been given from April, 1964, annual examinations, the advantage of the above rule be retrospectively given with effect from the Law examinations held in April/May/June, 1964 whether under the old or new scheme. These recommendations of the Law Faculty were approved by the Syndicate in its meeting held on 31st August, 1964.

6. Mr. H.S. Wasu, learned counsel for the petitioner, contends that although the University authorities have given details of the various resolutions that were passed, yet no final decision was taken in the matter.

In the meeting held on 24th July, 1964 the Law Faculty decided that the advantage of the above rule was to be applied retrospectively to the Law examinations held in April/May/June, 1964, but the fact remains that the previous resolution passed on 28th September, 1963 which was also a decision of the Syndicate, had never been superseded and it was entitled to be carried into effect in the same manner in which subsequent resolutions were implemented because in neither case the resolutions had formally been incorporated in the regulations.

7. Now Mr. Wasu, has not been able to satisfy me how this Court can enforce any resolution passed by the Syndicate and even if it be assumed that the resolution dated 28th September, 1963 became effective and enforceable from that date, it is not open to this Court to direct its enforcement by mandamus because the resolution of the Syndicate does not have the force of a regulation, the violation of which alone can either be struck down or set right by this Court. Mr. Wasu, however, says that there has been a clear act of discrimination on behalf of the University in asmuch as the benefit of the subsequent resolutions was given to one student who appeared in the P.E.L examination in the year 1964 whereas the petitioner has been denied the benefit of the earlier resolution which was equally effective at the time when the petitioner appeared in the examination in September, 1963 and which was in identical terms so far as granting of grace marks was concerned.

8. Mr. Ganga Parshad who appears for the respondent University, contends that the provisions of Article 14 of the Constitution cannot be applied to a body like the University. He has placed reliance on a decision in University of Madras v. Shantha Bai AIR 1954 Mad 67 in which it was held that the University of Madras is not a State as defined in Article 12 of the Constitution and that its regulations are not subject to the prohibition enacted in Article 15(1) and that ad mission to colleges is regulated by Article 29(2) and the regulations of the University requiring that colleges should provide certain facilities for women before they could be admitted are not discriminatory on the ground of sex. It has further been held that the words "local or other authority" must be construed ejusdem generis with Government or Legislature and so construed can only mean authorities exercising governmental functions, They do not include persons natural or juristic who cannot be regarded as instrumentalities of the Government. The University of Madras is a body corporate created by Madras Act 7 of 1923 and is a State-Aided institution, but it is not maintained by the State and does not come with in the scope of Article 12. There can be little doubt that if the Madras decision lays the law correctly the petitioner cannot invoke the applicability of Article 14 of the Constitution to the alleged discriminatory act on the part of the University authorities. The same view has been taken in Devadas v. Karnatak Engineering College AIR 1964 Mys 6. Mr. Wasu has relied on a Full Bench decision in Nambooripad v. C.D. Board AIR 1956 TC. 19 and a Bench decision in Ashalata Vs. M.B. Vikram University and Others, for the contrary view that a body like the University would be covered by the definition of State as given in Article 12 of the Constitution. As the point which has arisen, is one of importance and there is a conflict of judicial opinion, I am of the view that this petition should be decided by a Division Bench. The matter is one of urgency as it relates to the declaration of the result of the petitioner and I direct that apart from obtaining the orders of the Hon''ble the Chief Justice for consituting the Bench orders may also be obtained from him for fixing this case during the next week, if possible.

ORDER

Grover, J.

9. (15th March, 1905)-This petition under Article 226 of the Constitution was heard by me sitting singly and as an important question of law was raised as to whether the respondent University would fall within the definition of State as given in Article 12 of the Constitution, I referred it to a Division Bench for decision.

10. It is unnecessary to set out the facts which are given in the referring order. The main contention on behalf of the petitioner was that the respondent University had been guilty of a discriminatory act against him in the matter of his result in the P.E.L. examination and the question that has arisen is whether such an act, assuming for the sake of argument that it was discriminatory, could struck down as violative of Article 14 of the Constitution. Now, Article 14 inhibits the State from denying to any person equality before the law. Article 12 contains the definition of the expression "the State" and it is in the following terms:

In this Part, unless the context otherwise requires, ''the State'' includes the Government and Parliament of India and the Government and the Legislature of each of the States and local or other authorities within the territory of India or under the control of the Government of India.

Mr. H.S. Wasu, learned counsel for the petitioner, has urged that the respondent University being a statutory body having been constituted under the East Punjab University Act would be a local or other authority and would, therefore, be included within the meaning of the words "the State". This contention, however, is wholly opposed to the view expressed by a Bench of the Madras High Court consisting of Raja mannar C.J. and Venkatarama Ayyar J. (as he then was) in the University of Madras v. Shmthi Bai (supra). In that case, the question was whether Article 15 (1), which prohibits discrimination by the State, could be made applicable to certain direction issued by the University of Madras. The view of the Bench was that the words "Local or other authority" must be construed ejusdem generis with Government or Legislature and so construed they could only mean authorities exercising governmental functions. These words would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government. The University being a body corporate created by a statute, was not charged with the execution of any governmental functions, its purpose being purely to promote education. Although section 44 of the Madras Act VII of 1922 provided for financial contributions by the local Government, the University was authorised to raise its own funds of income from fees, endowments and the like. It was a state-aided institution but not maintained by the State. The learned Madras Judges relied a great deal on American decisions in which the distinction between State-maintained Universities and State-aided Universities had been adopted. In their view it was clear that the provisions enacted in part 3 of the Constitution had also recognised the distinction between such institutions. Reference was made to Article 28(1), which enacts that no religious instruction shall be provided in any educational institution wholly maintained out of State funds and to Article 28 (3) according to which religious instruction might be given to educational institutions recongnised by the State or receiving aid out of the State funds, but that no person should be compelled to take part in such instructions. Article 29 (2) also recognised that educational institutions might be either State maintained or State-aided. Adopting the principles laid down in the American cases it was held that educational institutions would be within the purview of Article 16 (1), only if they were State-maintained and not otherwise.

11. The Madras decision was followed by Sinha J. in Ena Ghosh Vs. State of West Bengal and Others, while considering whether the Sarojni Naidu College for Women, Dum Dum, which was a Government sponsored college, was a State within the meaning of Article 12. In B.W. Devadas v. The Selection Committee for Admission of Students to the Karnatak Engineering College (supra) the question was whether the Karnataka Regional Engineering College Society fell within the definition of the term "State" in Article 12. The Madras decision was followed in that case and it was held that an unsuccessful applicant for admission into that college could not complain of the infringement of the provisions of Article 14 of the Constitution. Narayana Pai J., who delivered the judgment of the Bench, said that the term "State" was an abstract political conception and it could act only through agencies or instrumentalities through which it exerted its political power on those whom it governed or ruled. Article 14, therefore, necessarily sought to control State action or the action of the State through its agencies or instrumentalities. The Mysore Court further examined meaning of the term "authority" and said:

The authority'' in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising governmental power but also any person or group of persons who, by virtue of their position in relation to other person or persons, may be able to impose their will upon that other person or persons. But, there is an essential difference between a political association of persons called the State giving rise to political power cannoted by the well known expression ''imperative law'' and a non-political association of persons for other purposes of contract, consent or similar type of mutual understanding related to the common object of persons so associating themselves together giving rise to a power which operates not in manner in Which imperative law operates, but by virtue of its acceptance by such associating persons based upon contract, consent or mutual understanding. The several matters, enumerated in the inclusive definition of ''law'' contained in Art. 13 (3) (a) are also those that have the force of law, that is to say those that are in the nature of imperative law whose power arises by virtue of political association of persons forming themselves into a State and not by virtue of any contract, consent or mutual understanding. In this view, the term ''authorities'' occurring in Art. 12 could only mean a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the State exercises its legislative or executive power.

12. As against these authorities, Mr. Wasu relied on P.M. Bramadathan Nambooripad v. Cochin Devaswom Board (supra) in which it has been observed (in paragraph 5) that entry 5 in List II of the Seventh Schedule gives an indication as to what are "Local authorities" and the Cochin Devaswom Board constituted under the Travacore-Cochin Hindu-Institutions Act, 1950 cannot be considered as a "local authority" within the meaning of Article 12 but it would fall within the ambit of "other authorities." According to the Travancore Cochin Full Bench, the word "authority", in its literal sense, means" a body exercising power" and in the context of Article 12 that power must be considered as the power to issue rules, bye laws or regulations having the force of law. It appears that the attention of the learned Travancore Cochin Judges was not called to the Madras decision which, with respect, is very authoritative. In Basu''s Commentary on the Constitution of India, the Madras view has been subjected to a certain measure of criticism in the following words:

With respect, it may be submitted that: this is begging the real question. The distinction made in the specific provisions of Articles 28 29 cannot be imported to interpret the general provisions of Articles 12 and 15 (1). As I have already said, the test for the application of Article 12 is whether the authority has power to make ''laws'' as defined in Article 13 or the power to administer such laws.

Further, where a body exercises power conferred by a statute, it is obvious that it is exercising governmental power in its ordinary sense. There is the authority of the State behind its act (assuming them to be intra vires). This is why even a Board of Trustees constituted by a statute has been in the U. S. A. taken, to be an agency of the State. A different view, it is submitted, can hardly be taken as regards a University exercising statutory powers. In the Madras case, University of Madras v. Shanta Bai (supra) reliance was placed on American decisions such as Tinkoff v. N.W. University (1948) 93 L.Ed. 383 where the Fourteenth Amendment was held inapplicable to Universities not maintained but aided by the State, But it was not discussed whether such Universities were exercising any statutory powers. In later cases, Lucy v. Adams (1955) 350 U.S. 1, and Florida v. Board of Control (1956) 351 U.S. 413, the American Supreme Court has held that the Fourteenth Amendment is applicable to aided Universities, if they are vested with statutory powers."

Mr. Wasu, however, admits that the American decisions on which Basu has relied do not support the statement made by him that the Fourteenth Amendment is applicable to aided Universities if they are invested with, statutory powers.

13. After giving the whole matter due consideration, I am of the opinion that the decision of the Madras Court must, with respect, be followed, with the result that any challenge under Article 14 to an act of the respondent University cannot be sustained. The petition, therefore, fails and it is dismissed, but in the circumstances there will be no order as to costs.

Dulat, J.

14. I agree.