1964 Supreme(Raj) 30

Rajasthan High Court, Full Bench
Modi, Bhandari & Shinghal, JJ.
Virendra Kapur - Appellant
Versus
The University of Jodhpur, Jodhpur - Respondents
D.B. Civil Writ Petition No. 373 of 1963
Decided On : February 13, 1964

Headnote:(a) Jodhpur University Act, Regulation 38—Original regulation giving certain privileges to candidate denied by latter amended regulation—Held that student entitled to privilege under old regulation.(b) Constitution of India, Art. 226—Autonomous bodies — Jodhpur University—Where valuable right of student adversely affected, High Court may interfere.(c) Jodhpur University Act, Sec. 39 — Section intra vires — Delegation of powers on reasonable grounds and not unrestricted—Jodhpur University Ordinance, 1963—Amending sec. 39 with retrospective effect also valid — Jodhpur University (Removal of Difficulties) Order 1963, delegating powers to Vice Chancellor with retrospective effect also valid though order could remain in force for one year only and not two years.

       The petitioners case is that he was admitted to the First Year B.E. Class of the Engineering College at Jodhpur in July, 1961, and was promoted to the Second Year Class in July, 1962. About the same time in 1962, the University of Jodhpur was established under the Jodhpur University Act, 1962 and the Engineering College which was initially affiliated to the University of Raj-asthan at Jodhpur became part and parcel of the Jodhpur University. In April, 1963, the petitioner appeared at the Second Year B E. Examination and secured over 55 per cent marks in the aggregate but failed in one of the papers being Mathematics Second. By Regulation No. 38 of these Regulations, it was provided that if a candidate secures an aggregate of 55 per cent marks but fails in one written paper only at an examination except the First Year B. E. Examination, he shall be permitted to keep terms in the next higher class and to appear and pass in the paper in which he has failed along with the next higher examination. As the petitioner fulfilled the conditions of the aforesaid regulation, he was permitted to keep terms in the Third Year Engineering Class in 1963. At a supplementary examination held in August, 1963, he happened to fail again in the Mathematics II Paper, with the result that he was asked to revert to the Second Year B. E. This supplementary examination and the consequent action taken against him were taken in pursuance of Ex.1, a notification dated the 12/06/1963, which provided that in the case of students of I, II, III or IV B. E. Examinations who had passed in all practi-cals but had failed in one or more theory papers regardless of their aggregate marks or those who had passed in all theory papers but had failed to secure the minimum pass marks of 45 per cent in the aggregate a supplementary examination was to be held in the month of August and meanwhile they would be permitted to keep terms in the next higher class and take the examination therefor if they pass in the supplementary examination. But, it was also directed that candidates who failed in supplementary examination or did not appear at it must join as repeaters in the class in which they had failed. It was in pursuance of this notification that the petitioner was asked to join as a repeater in the second Year B. E. Class. The "grievance of the petitioner is that this order is bad and illegal and that his case cannot be properly and lawfully governed by this notification.

       Held that the petitioner having had the benefit of the old regulation 38, which is indeed undeniable had acquired a valuable right or what we may call a privilege to be governed by the same, and that right or privilege was certainly not without value and therefore could not be interfered with by a subsequent notification to his disadvantage, which disadvantage certainly consists in his being asked to revert to the Second Year B,E. and take the entire written examination over again which he would not be required to do under the old regulation. Even accepting that the old regulation 38 stands by necessary implication replaced by the new regulation Ex.1, the latter should be given a prospective effect only. Besides, a sub-delegate like the Vice-chancellor was hardly competent in law to give a retrospective operation to any regulation made by him within the scope of legitimate authority.

       The proper way to give effect to both the regulations properly and harmoniously would be to see, first, whether a candidate is entitled to the benefit of old regulation No. 38 and the cognate ones, and, if so such benefit must be given to him ; but where he is not so entitled, then effect should certainly be given to the new regulation. The mere fact that he had taken the supplementary examination as the result of a new regulation cannot be legitimately held to disentitle him to the benefit of the former. (Paras 3, 4, 36, 37, 38 and 42)

       While interference with the decision of an autonomous body like a University should be made sparingly and with due caution no absolute rule can be laid down in this regard and each case will) have to be decided on its own facts and circumstances ; but when a case for interference is clearly made out, where valuable rights of a student are adversely affected without lawful reason and there is a plain miscarriage of justice and there is no other adequate means of redress available, there would be sound justification for the Court to interfere to safeguard the just rights of the party aggrieved, we would be failing in discharging a duty which has been laid upon us by the very Constitution of our country if we declined to set things right even in cases of this type merely on the consideration that our doing so is likely to interfere with its domestic policy or internal affairs. (Para 45)