@JUDGMENTTAG-ORDER
Mohan Shantanagoudar, J.@mdashPetitioners have sought for quashing the Notification dated 11.9.2008 bearing Reference No. AUTH/Challenge. Valuation-310/2008-09 issued by the respondent-Rajiv Gandhi University of Health Sciences (hereinafter referred to as ''the University'' for short). They have also sought for a direction to the respondent-University to recalculate the marks secured by the petitioners in the challenge valuation of the BDS/MBBS examinations conducted by the respondent-University in January 2009 by applying Notification/Ordinance dated 30th of August 2008 bearing No. AUTH/Challanege Valuation-310/2008-09.
2. Petitioners herein are the students of either MBBS course or BDS course studying in respondent -colleges. The said colleges are affiliated to the Rajiv Gandhi University of Health Sciences. The respondent-University has introduced a system in the year 2008 known as the System of Challenge Valuation for the benefit of the students from July-August 2008 examination and onwards. The Notification/Ordinance dated 14.7.2008 is issued by the respondent-University to the said effect It is relevant to note that, by virtue of the said Notification dated 14.7.2008, the then existing Ordinance pertaining to third valuation in Under-Graduate courses and fifth valuation in Post-Graduation courses was amended. The Notification/Ordinance dated 14.7.2008 reveals that the average marks of the best of four valuations or two evaluations (as the case may be) be considered for the final computation of the results. The said Notification/Ordinance dated 14.7.2008 is issued by the Vice-Chancellor of the University by exercising powers u/s 13(2) of the Rajiv Gandhi University of Health Sciences Act, 1994 (hereinafter referred to as "the Act" for short). The Notification/Ordinance dated 14.7.2008 was placed before the Syndicate of the University in its meeting held on 30.7.2008, in which the Syndicate suggested certain modifications to the existing system. Consequently, a revised Notification dated 30.8.2008 is issued by the respondent-University. The revised Notification dated 30.8.2008 also clarifies that, for the final computation of the results, the average marks of the best of four valuations or two evaluations (as the case may be) be considered. When the facts stood thus, another Notification/Ordinance dated 11.9.2008 is issued by the respondent-University modifying the revised Notification dated 30.8.2008. The said Notification/Ordinance dated 11.9.2008 was again issued by the Vice-Chancellor in exercise of the powers u/s 13(2) of the Act The relevant Clause for the purpose of these matters found in the Notification dated 11.9.2008 reads thus:
3(g): The lowest and the ''highest marks amongst general valuation and challenge valuation (either Two or Four Valuations as the case may be) shall be excluded for final computation. The average of middle two (for the papers having double valuation) and average of middle four (for the papers subjected for four valuations) marks shall be the final marks for computation of results.
The Vice-Chancellor while issuing the same has clarified that the Notification/Ordinance dated 11.9.2008 shall be made applicable from January 2009 examination and onwards. The Notification/Ordinance dated 11.9.2008 is subsequently placed before the Academic Council on 24th November 2008, which ratified the Notification/Ordinance dated 11.9.2008 issued by the Vice-Chancellor. Thereafter, according to respondent-University, the Notification/Ordinance dated 11.9.2008 is placed before the Syndicate on 7th February 2009, in which, the said Notification/Ordinance is practically ratified by the Syndicate. By issuing Notification dated 11.9.2008, the respondent-University has decided to take into consideration the average of the middle two (for the papers having double valuation) and the average of middle four (for the papers subjected for four valuations) shall be the final marks for computation of the results. Which means that the Notification/Ordinance dated 11.9.2008 makes substantial departure from the Notification dated 30.8.2008 in respect of the relevant Clause relating to average marks to be taken into consideration for final computation of the results. Ultimately, a revised Notification/Ordinance dated 9.2.2009 is issued by the Syndicate of the University in exercise of the power conferred u/s 35(1) of the Act Practically affirming or ratifying the ordinance dated 11-9-2008 issued by the Vice Chancellor. However, it is made clear in the said Notification/Ordinance that the same shall be made applicable from March 2009 examination and onwards. Petitioners are aggrieved by the Notification/Ordinance dated 11.9.2008 issued by the Vice-Chancellor of the University in exercise of the powers conferred u/s 13(1) of the Act on the ground that there was no urgency for the Vice-Chancellor to issue such a Notification/ Ordinance.
3. It is contended by Sri Udaya Holla, learned Senior Counsel appearing on behalf of petitioners that the Notification/Ordinance dated 11.9.2008 issued by Vice-Chancellor in exercise of power u/s 13(1) of the Act is illegal, inasmuch as, the Vice-chancellor could not have invoked the powers u/s 13(1) or Section 13(2) of the Act as immediate action was not needed then. He further submits that there is no ratification of the Notification/Ordinance dated 11.9/2008 by the Syndicate at any point of time, inasmuch as, the Syndicate while passing Resolution dated 7.2.2009 discussed the Notification dated 30.8.2008 only. Moreover, the Syndicate has issued Ordinance subsequently in exercise of the powers conferred u/s 35(1) of the Act on 9.2.2009 making the Notification/Ordinance applicable from March 2009 examination and onwards. According to him, the Vice-chancellor has invoked the powers of the Syndicate by issuing impugned Notification/Ordinance though there was no urgency in the matter for issuing such a Notification/Ordinance.
The writ petitions are opposed by Sri Kavi Verma Kumar, learned Senior Counsel and Sri N.K. Ramesh, learned Counsel appearing on behalf of the respondents. It is contended on behalf of the respondents that the powers conferred on the Vice-Chancellor u/s 13(2) of the Act is in the nature of legislative power and consequently the Vice-chancellor has rightly issued the impugned Notification/Ordinance as he felt that immediate action is needed to be taken; that the decision taken by the University to have average of middle two or average of middle four marks which shall be the final marks for consideration of the results, is the policy decision of the University which cannot be questioned by the petitioners before this Court; that the impugned Notification/Ordinance dated 11.9.2008 issued by the Vice-Chancellor is ratified both by the Academic Council on 25th November 2008 and by the Syndicate on 9th February 2009 and consequently, it cannot be said that the action of the Vice-chancellor is improper under the facts and circumstances of the case.
5. At this stage, to appreciate the matter better, it is relevant to note certain provisions of the Rajiv Gandhi University of Health Sciences Act, 1994. Section 13 of the Act reads thus:
Section 13: Powers and duties of the Vice-Chancellorb> (1) The Vice-Chancellor shall be the principal executive and academic officer of the University and chail exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University. He shall exercise all powers necessary for the due maintenance of discipline in the University.
(2) The Vice-chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority, the action taken by him on such matter:
Provided that, if the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Chancellor, whose decision there on shall be final.
(3) The Vice-chancellor shall exercise such other powers and perform such other functions as may be prescribed by the Statutes and Ordinances.
(4) The Vice-Chancellor shall convene meetings of the Senate, the Syndicate and the Academic Council and he may by order in writing, delegate the power of convening any of the said meetings to any of the officer of the University. He shall be the Ex-officio Chairman of the Syndicate. Academic Council and Finance Committee and preside over the committee in the absence of the Chancellor.
(5) The Vice-chancellor shall ensure faithful observance of the provisions of this Act and the Statutes, Ordinances and rules.
(6) The Vice-chancellor shall be responsible for the presentation of the annual financial estimate and the annual accounts and balance sheet to the Syndicate.
(7) The Vice-chancellor shall be responsible for the proper administration of the University and for close co-ordinate and integration of teaching, research and dissemination of knowledge.
Section 20: Authorities of the University: The following shall be the Authorities of the University namely:
(i) The Senate;
(ii) The Syndicate:
(iii) The Academic Council:
(iv) The Planning Board;
(v) The Finance Committee;
(vi) The Board of Studies;
(vii) Such other bodies as may be declared by the statutes to be the Authorities of the University.
Section 24: The Syndicate: The Syndicate shall consist of the following members, namely:
(i) The Vice-Chancellor,
(ii) The Director of Health and Family Welfare, Karnataka;
(iii) The Director of Medical Education, Karnataka;
(iv) The Director of Indian system of Medicine and Homoeopathy, Karnataka;
(v) The President, Karnataka Chapter of the Indian Medical Association;
(vi) The President, Karnataka Medical Council;
(vii) Three persons elected by the Senate amongst themselves;
(viii) One Professor nominated by the Vice-chancellor by rotation every two years;
(ix) Two Heads of University or affiliated Colleges by yearly rotation, nominated by the Vice-chancellor;
(x) One nominee from an autonomous institution nominated by the Vice-chancellor by yearly rotation;
(xi) Three experts in the filed of Health Sciences nominated by the Chancellor on the recommendation of the Vice-chancellor;
(2) Seven members of the Syndicate shall form a quorum for a meeting of the Syndicate.
Section 25:Powers and functions of the Syndicate: (1) The Syndicate shall be the principal executive authority of the University.
(2) Powers and functions of the Syndicate shall be such as may be prescribed by the Statutes.
Section 35: Ordinances: (1) The Syndicate may, from time to time, make Ordinances and amend or repeal the same.
(2) Subject to the provisions of this Act and the Statutes, the Ordinance may provide for the following matters, namely:
(a) admission of the students to the University and its affiliated colleges and the levy of fees for admission to the University, Colleges and University Laboratories;
(b) courses of study leading to degrees, diplomas and other academic distinctions of the University;
(c) conditions under which students shall be admitted to the courses of study leading to degrees, diplomas and other academic distinctions of the University;
(d) conduct of examination of the University and the conditions under which students shall be admitted to such examinations;
(e) manner in which exemption relating to admission of students to examination may be given;
(f) conditions, mode of appointment and duties of examining bodies and examiners;
(g) maintenance of discipline among students;
(h) fees to be charged for various course of study, research, experiment and practical training and for admission to various University examinations;
(i) all other matters which by this Act or by the Statutes are to be or may be provided by the Ordinances.
(3) In making an Ordinance the Syndicate shall consult.-
(a) The Boards of studies in matters relating to the appointment and duties of examiners; and
(b) The academic Council in matter relating to conduct or standard of examination or conditions of residence of students.
(c) Every Ordinance made by the Syndicate shall have effect from such date as the Syndicate may specify, and every Ordinance so made shall be submitted to the Chancellor and the senate for information.
From Section 20 of the Act, it is clear that the Syndicate is one of the authorities of the University. Section 24 of the Act deals with the composition of the Syndicate. The said composition includes the Vice-chancellor also. Sub-section (2) of Section 24 of the Act further reveals that seven members of the Syndicate shall form the quorum for meeting of the Syndicate. As is clear from Section 25 of the Act, the Syndicate shall be the principal executive authority of the University. u/s 35 of the Act, the Syndicate from time to time will make Ordinances and amend or repeal the same. Such Ordinances may provide for various matters as contained in Sub-section (2) of Section 35, including the conduct of examinations of the University and the conditions under which students shall be admitted to such examinations.
Section 13 of the Act clarifies that the Vice-chancellor shall be the principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University. He shall exercise all powers necessary for the due maintenance of discipline in the University. Sub-section (2) of Section 13 of the Act further clarifies that the Vice-chancellor, may, if he is of the opinion that the Immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Court and shall report to such authority the action taken by him on such matter. If the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Chancellor, whose decision thereon shall be final.
Thus, it is clear that making of Ordinances or repealing or modifying the same is principally the function of the Syndicate. However, the Vice-Chancellor, is of the opinion that immediate action is necessary on any matter, he may exercise the power conferred on any authority of the University. The respondent-University claims that the Vice-Chancellor has exercised his power u/s 13(2) of the Act while issuing the impugned Notification/Ordinance dated 11.9.2008. It is relevant to note that, neither the impugned Notification/Ordinance dated 11.9.2008 nor the statement of objections filed by respondent-University reveal that immediate action was necessary on the part of the Vice-Chancellor for issuing the impugned Notification/Ordinance. The impugned Notification/Ordinance though was issued on 11.9.2008, it is made clear therein that the Notification/Ordinance is applicable from January 2009 examination and onwards, which means that, the said Notification/Ordinance is issued four months before the next examinations. The concerned statute further reveals that the meeting of the Syndicate shall be held at least within 75 days of the earlier meeting. Which means that the time gap between the two Syndicate meetings should be maximum of 75 days. As aforementioned, the quorum for Syndicate meeting is only seven members. If the Vice-Chancellor was really of the opinion that immediate action was necessary for changing the Ordinance, he would have called for the Syndicate meeting immediately. In the present case, there is not even a plea regarding existence of any urgency or the need to take immediate action, much less, about its nature which would disentitle the students of getting the benefit of the Ordinance dated 30.8.2008. On the other hand, the impugned Notification/Ordinance itself clarifies that the same would come into effect after four months from the date of issuance of the said Notification/Ordinance. This itself goes to show that there was no necessity to take immediate action for issuing the Notification/Ordinance dated 11.9.2008.
7. There cannot be any dispute that the procedure prescribed for challenge valuation and the manner in which the challenge valuation is to be implemented is a policy decision of the University. The same was validly taken by the Syndicate in its meeting held on 30th of July 2008. Consequently, a revised Notification was issued on 30.8.2008 by the respondent-University making it clear that for final computation of the results, average marks of the best of four valuations or two evaluations (as the case may be) be considered. If it is so, the Vice-chancellor in order to change such a policy decision, should have convened the meeting of the Syndicate forthwith and should have taken the decision in the Syndicate, more particularly when he himself is the member of the Syndicate. Kven otherwise, this Court does not find that urgent or immediate action was necessary for issuing the impugned Notification/Ordinance, inasmuch as, the impugned Notification (dated 11.9.2008) itself was to come into effect from January 2009 i.e., after four months from the date of issuance of the impugned Notification/Ordinance.
8. Though it is not dear from the records of the meeting of the Syndicate held on 7th February 2009 as to whether the Syndicate had discussed the impugned Resolution in its meeting, the fact remains that the Syndicate has decided to have average of middle two marks or four marks (as the case may be) as the final marks at the time of computation of results. Therefore, this Court does not wish to go into the question as to whether the impugned notification passed by the Vice-Chancellor was discussed by the Syndicate or not. Even assuming that the impugned Resolution was placed before the meeting of the Syndicate on 7.2.2009, the same will not go against the petitioners, inasmuch as, the Syndicate has issued Notification/Ordinance dated 9.2.2009 after affirming the stand taken by the Vice Chancellor,, making it applicable from March 2009 examinations and onwards. Which means that the revised Ordinance of the Syndicate would come into effect only from March 2009 examination and onwards, i.e., the Syndicate, of which the Vice-chancellor is also one of member, has decided to give effect to the revised Ordinance with effect from March 2009 examination and onwards, which implies that the earlier Syndicate Resolution dated 30.8.2008 will continue to have effect up to March 2009 examinations and onwards.
9. Sri Ravi Verma Kumar, contended that the usual practice followed by the University is that the Vice-Chancellor issues an Ordinance touching the academic matters and thereafter, the Syndicate ratifies the same. According to him, the same thing has happened in this matter. He relies upon the earlier Ordinance issued by Vice-chancellor dated 14.7.2008 and the subsequent Ordinance of the Syndicate dated 30.8.2008 ratifying the Ordinance issued by the Vice-chancellor dated 14.7.2008. The said contention also cannot be accepted, inasmuch as, the Vice-Chancellor''s Ordinance dated 14.7.2008 clearly reveals that the Ordinance shall be implemented from July-August 2008 examination and onwards. From the above, it is clear that the Vice-chancellor having felt that such an Ordinance is necessary for immediate implementation, has issued the said Ordinance dated 14.7.2008, inasmuch as, the same had to be issued prior to July-August 2008 examinations. Moreover, the Syndicate has ratified the said action of the Vice-chancellor dated 14-7-2008 on 30.8.2008 i.e., within about sixteen days. But in the matter on hand, though the impugned Resolution was passed on 11.9.2008, the Vice-Chancellor himself has given effect to the said Ordinance from January 2009 examination and onwards. Thus, this Court is of the clear opinion that there was no need for the Vice-Chancellor to issue the impugned Notification/Ordinance by exercising powers u/s 13(2) of the Act i.e., by invoking the Clause relating to immediate action.
10. At the cost of the repetition, this Court observes that neither the statement of objections filed by the respondent-University nor the impugned Notification/Ordinance would disclose the existence of any situation of taking immediate action in the University. The statement of objections and the impugned notifications are completely silent about the existence of need for taking immediate action. No details of any disturbing situation or law and order problem etc., have been forthcoming. Nothing is stated as to what could happen if such a strict action is not immediately taken by the Vice-chancellor of issuing the impugned Ordinance. The impugned Notification/Ordinance and the statement of objections filed by the University merely say that the impugned notification is issued in exercise of the powers conferred u/s 13(1) of the Act. The preamble to the impugned notification reveals the reason for modification of the earlier notification. But the same does not reveal as to why urgent or immediate action is necessary to amend the Ordinance. As aforementioned, though the impugned notification was issued on 11.9.2008, the same was made applicable from January 2009 examination and onwards, which itself goes to show that there was no urgent situation to take immediate action prevailing in the University justifying to exercise the power u/s 13(2) of the Act. Therefore, this Court is not convinced that there was any situation for taking immediate action prevailing in the University justifying the impugned notification issued by the University.
11. Sri Udaya Holla, for the petitioners relying upon Section 35(1) of the Act submits that the power is entrusted to Syndicate to make Ordinances and amend or repeal the same. Consequently, the Syndicate has issued an Ordinance dated 30.8.2008 introducing the provision of challenge valuation for the benefit of aggrieved students and on certain conditions. One of the condition was, for the final computation of the results, the average marks of the best of four valuations or two evaluations (as the case may be) be considered. According to him, as the Syndicate has not proposed any change in the said Ordinance, the Vice-Chancellor did not have power to change the policy decision by invoking power u/s 13(2) of the Act.
This Court is not inclined to go into this controversy in any detail liven if this Court tests the argument of the learned Counsel appearing for the University that the Vice-Chancellor exercised his urgency powers, then, the Court has to see as to whether actually there was any situation of urgency or need to take immediate action which justifies the exercise of such powers by the Vice-chancellor of the University. In the present case, as aforementioned, there is not even a plea regarding existence of any urgent situation/emergent situation/situation relating to taking of immediate action, much less, about its nature which would disentitle the student the benefit of the earlier resolution passed by the University dated 30.8.2008 issued pursuant to the Syndicate''s resolution. This Court is of the opinion that it is the duty of the respondent-University to plead necessary facts and place the material on record, at least to prima facie show the need for taking immediate action,. Though it can very well be said that the Ordinance need not contain the reasons, this Court cannot overlook the pleadings of the respondent-University filed in these matters. The statement of objections does not contain anything to show as to what made the Vice-chancellor to think of immediate action by him is necessary. The opinion of the Vice-chancellor in such matters must be explicit Therefore, in my opinion, neither there existed the situation of urgency or situation to take immediate action. It is immaterial if the Academic Council has ratified the act of the Vice-Chancellor which was invalid at the inception. As aforementioned, the Syndicate, even assuming that it has ratified the action of the Vice-Chancellor, has given effect to the amended Ordinance from March 2009 examination and onwards. In this view of the matter, I am of the clear opinion that Clause 3(g) of the impugned Notification/Ordinance dated 11.9.2008 is not in conformity with law and has to be struck down.
12. The Court is quite conscious of the fact that in the University matters, the interference of the Court has to be minimal. But when the Court finds that the exercise of power is arbitrary, the Court must strike it down. However, this Court hastens to add that the object or intention of the Vice-Chancellor to bring an amendment to the Ordinance was in the wider interest of the system of education touching the medical field. The Vice-chancellor, in order to genuinely bring seriousness in studies relating to medical field, seems to have issued the impugned Notification/Ordinance. But the procedure adopted by the Vice-chancellor to bring amendment to the Ordinance is not correct The Vice-chancellor could have resorted to amend the policy in accordance with law.
13. In this connection, it is relevant to note the Division Bench judgments of Delhi High Court reported in the case of
14. This Court makes it clear that the Court is not interfering with the policy decision of the University, inasmuch, it is in the domain of the University of making policies and modifying or repealing the same, if need be, from time to time. But, in the case on hand, the petitioners are assailing the correctness of the decision making process of the Vice-Chancellor. As aforementioned, the process adopted by the Vice-chancellor in issuing amended Notification/Ordinance dated 11.9/2008 cannot be sustained in the eye of law. Accordingly, the following order is made:
Clause 3(g) of the impugned Notification/Ordinance dated 11.9.2008 issued by the respondent-University, stands quashed. The respondent-University is directed to recalculate the marks secured by the petitioners in the challenge valuation of the examinations conducted in January 2009 without applying Clause 3(g) of the Notification dated 11.9.2008, but by applying the Notification dated 30.8.2008 issued by the University. It is made clear that the amended Ordinance issued by the University dated 3.2.2009 is applicable from March 2009 examination and onwards.
Writ Petitions are allowed accordingly.
