Hon’ble Ashwani Kumar Mishra, J.—Cluster of colleges affiliated to Dr. Bhim Rao Ambedkar University, Agra, (hereinafter referred to as the ‘University’) have filed instant writ petition, questioning jurisdiction of the University to enhance examination fee, with retrospective effect. The challenge is also laid to such enhancement, on the ground that it is discriminatory, inasmuch as a higher rate is prescribed from the students of self-financed colleges vis-a-vis aided colleges, for which there exists no justification. It is stated that the decision taken by University is violative of Article 14 of the Constitution of India, and is liable to be quashed.

2. Records reveal that Finance Committee of the University resolved in its meeting dated 9.12.2011 to increase the examination fee for graduate and post graduate examinations conducted by the University. A recommendation was made in that regard to the Executive Council proposing enhancement of examination fee in respect of Government and aided colleges to Rs. 1,000/-, where there is no practical examination, and Rs. 1,200/- where practical examinations are to be held as per the course. In respect of self-financed colleges, the decision taken is to enhance the amount to Rs. 1,500/- where there is no practical examination, and Rs. 1,700/- where practical examinations are also to be held. The Executive Council met on 13.12.2011, and resolved to approve the recommendation of Finance Committee, a step towards making of statutory ordinance. The University thereafter waited for about five years before seeking approval of State Government, vide its communication dated 6.9.2016. The State Government granted approval to the decision taken by Executive Council in its meeting dated 21.12.2011 under sub-section 3(c) of Section 52 of the U.P. State Universities Act, 1973 (hereinafter referred to as the ‘Act’), vide its letter dated 17th October, 2016. An emergent meeting thereafter was convened of the Executive Council on 26.11.2016. The Executive Council was apprised that decision to enhance examination fee was also enforced w.e.f. academic session 2011-2012. However, as the Executive Council is required to indicate the date, from which the ordinance shall have effect, therefore, the draft ordinance dated 13.12.2011 having been approved by the State Government on 17.10.2016 shall be enforced w.e.f. 13.12.2011. It is this decision, which is assailed in the writ petition.

3. It may also be noticed that the writ petition, as it was initially instituted on 19th March, 2016, challenged communication of Finance Officer dated 18.6.2011, as well as approval of Executive Council dated 9.6.2011, requiring enhanced examination fee w.e.f. academic session 2011-2012. It is during the pendency of writ petition that the University has sought approval from the State Government, received the approval, and held the emergent meeting dated 26.11.2016. It is by way of amendment that the subsequent actions have been challenged. Petitioners contend that ordinances being in the nature of delegated legislation can have no retrospective application. The legislature has not conferred power to frame ordinance with retrospective effect, and in its absence, retrospective effect cannot be given to a delegated legislation. It is contended that in the facts and circumstances, the action taken by the University is otherwise arbitrary, and is contrary to law.

4. The respondent University, on the other hand, contends that power exists with Executive Council to frame ordinances, and once it is granted approval by the State, the approval relates back to the decision taken by the Executive Council. It is also stated that by virtue of Section 52(5), the Executive Council has power to direct as to from which date, such ordinances shall have effect, and accordingly, it has been enforced w.e.f. 13.12.2011. It is also contended that ordinance is not a delegated legislation, and under the statutory scheme, the Executive Counci