JUDGMENT V.K. Shukla, J.
1. In Writ Petition No- 48219 of 2002 and Writ Petition No. 55529 of 2002, prayer has been made for issuing a writ in the nature of mandamus commanding the respondents to take special examination of the petitioners in the subjects in which they have failed and hold the next semester examination only thereafter, and permit the students to pass in all subjects of 4 years B. Tech. Course in 7 years. In Writ Petition No. 15865 of 2003, prayer has been made for issuing a writ in the nature of mandamus to permit the petitioners to attend 4th and 6th semester classes and fill their examination forms for 4th and 6th semester examination, and further for quashing Ordinance Nos. 9.3 and 10.1 (Annexures-12 and 16 to the writ petition), and further for issuing a writ in the nature of mandamus directing the respondents to extend the benefit of 15 grace marks to petitioner No. 3 as awarded to the students of B. Tech. course.
2. Brief background of the case is that the petitioners after being selected in U.P. State Engineering Admission Test, were accorded admission in respective Engineering Colleges, and thereafter each one of the petitioners has been pursuing his study. U.P. Technical University Act, 2000 came into being on 8.5.2000. The aforesaid U.P. Act No. 23 of 2000 has been promulgated with a view to provide for establishment of a Technical University in the State for the advancement and development of Technical education and other matters connected therewith. Sections 6, 14, 19, 21, 29 and 30 of the said Act being relevant are quoted below :
"6. The University shall have the following powers and duties, namely :
(a) to provide and upgrade education, training and research in technical education and to create entrepreneurship and a conducive environment for pursuit of technical education in close cooperation with Industries ;
(b) to admit any college to privileges of affiliation or to enlarge the privileges of any college already affiliated, or to withdraw or curtail any such privilege and to guide and control the work of such colleges ;
(c) to institute and confer degree or other academic distinctions ;
(d) to hold examinations for, and to grant and confer degrees or other academic distinctions to, and on, persons, who :
(i) have pursued a course or study in a college ; or
(ii) have carried on research in a college recognised in that behalf by the University, under conditions laid down in the Regulations ;
(e) to confer honorary degree or other academic distinction in the manner and under conditions laid down in the Regulations ;
(f) to institute and award fellowships, scholarships, studentships, exhibitions and prizes in accordance with the Regulations ;
(g) to demand and receive such fees and other charges as may be fixed by the Regulations ;
(h) to make provisions for the advancement of technical education amongst classes and communities which are educationally backward ;
(i) to make provisions for :
(i) the maintenance of National Cadet Corps or other similar organisations ;
(k) to receive gifts, grants, donations or benefactions from the State Government or the Central Government and to receive bequests, donations or transfers of movable or immovable property from testators, donors or transferors, as the case may be, and to hold and manage the same
(l) to lay down the conditions of affiliation of colleges and to satisfy itself by periodical inspection that such conditions are safe guard ;
(m) to co-operate or collaborate with other Universities and authorities in such manner and for such purpose as the University may determine from time to time ;
(n) to do all such other acts or things whether incidental to the powers aforesaid or not, as may be necessary to further the objects of the University.
14. (1) The Controller of Examination shall be a whole time officer of the University.
(2) The Controller of Examination shall be appointed by the State Government by notification and his remuneration and allowances shall be paid by the University.
(3) The Controller of Examination shall be responsible for the due custody of the records pertaining to his work. He shall be ex-officio Secretary of the Examination Committee of the University and shall be bound to place before such Committee all such Information as may be necessary for transaction of its business. He shall also perform such other duties as may be prescribed by the Regulations or required, from time to time, by the Executive Council or the Vice-Chancellor but he shall not, by virtue of this sub-section, be entitled to vote. He may require, from any college, the production of such return or the furnishing of such information as may be necessary for the discharge of his duties.
(4) Subject to the superintendence of the Vice-Chancellor, the Controller of Examinations shall have administrative control over the employees working under him and have, in this regard, all the powers of the Registrar, (5) Subject to the superintendence of the Examinations Committee, the Controller of Examinations shall conduct the Examinations and make all other arrangements therefor and be responsible for the due execution of all processes connected therewith.
(6) The Controller of Examinations shall not be offered nor shall he accept any remuneration for any work in the University, except in accordance with the order of the State Government.
(7) While the Controller of Examinations is for any reason unable to act or the office of Controller of Examinations is vacant, all the duties of the office shall be performed by such person as may be appointed by the Vice-Chancellor, until the Controller of Examinations resumes his duties or, as the case may be, the vacancy is filled.
19. (1) The Academic Council shall be the principal academic body of the University and shall, subject to the provisions of this Act and the Regulations, have the control and general regulation of, and be responsible for the maintenance of standard of instruction, education and examination in the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Regulations and may advise the Executive Council on all academic matters.
(2) The Academic Council shall consist of the following persons, namely :
(a) The Vice-
(2) The Committee shall supervise generally all the examinations of the University, including moderation and tabulation and perform the following other functions, namely :
(a) to appoint examiners and moderations and, if necessary to remove them ;
(b) to review from time to time the results of the University examinations and submission of reports, thereon to the Academic Council ;
(c) to make recommendations to the Academic Council for the improvement of the examination system ;
(d) to scrutinize the list of examiners proposed by the Board of Studies, finalise the same and declare the result of the University.
(3) The examination committee may appoint such number of subcommittee as it thinks fit, and in particular, may delegate to any one or more persons of subcommittee, the power to deal with and decide cases relating to the use of unfair means by the examinees.
(4) Notwithstanding anything contained in this Act it shall be lawful for the Examination Committee or as the case may be, for a sub-committee or any person to whom the Examination Committee has delegated its power in this behalf under Sub-section (3), to debar an examinee from future examinations of the University, if in its or his opinion, such examinee is guilty of using unfair means at any such examination.
(5) Subject to the provisions of this Act and the Regulations, the Examination Committee may issue such directions, as it considers necessary for the arrangement for conducted of the examinations.
29. (1) The First Regulations of the University shall be made by the State Government by notification.
(2) The Executive Council may, from time to time, make new or additional Regulations or may amend or repeal the Regulations referred to in Sub-section (1) :
Provided that the Executive Council shall not make, amend or repeal any Regulations affecting the status, power or constitution of any authority of the University until such authority has been given a reasonable opportunity to express its opinion in writing on the proposed changes and any opinion so expressed has been considered by the Executive Council.
(3) Notwithstanding anything contained in the foregoing subsections, the State Government may in order to implement any decision taken by it in the interest of learning, teaching or research on the basis of any suggestion or recommendations of the University Grants Commission or All India Council for Technical Education or the State or National Education Policy require the Executive Council to make new or additional Regulations and amend or repeal the Regulations referred to in Sub-section (1) or Sub-section (2) within a specified time and if the Executive Council fails to comply with such requirement the State Government may make new or additional Regulations or amend or repeal the Regulations referred to in Sub-section (1) or Sub-section (2).
30. Subject to the other provisions of this Act, Regulations may provide for any matters relating to the University and shall in particular, provide for :
(a) the appointment, powers and duties of the officers of the University ;
(b) the constitution of Pension or Provident Fund and the establishment of an insurance scheme for the benefit of the officers and other employees of the University ;
(c) the conferment of honorary degrees ;
(d) the withdrawal of degrees and other academic distinctions ;
(e) the conditions under which colleges may be admitted to the privileges of affiliation by the University and the conditions under which any such privilege may be withdrawn ;
(f) the degrees and other academic distinctions to be awarded by the University, the qualification for the same and the amounts to be taken relating to the granting and obtaining the same ;
(g) the fees to be charged for courses of the study in the University and for admission to the examination degrees and other academic distinctions of the University ;
(h) the conditions of award of fellowships, scholarships, studentships, medals and prizes ;
(i) the conduct of examinations including terms of office and manner of appointment and duties of examining bodies, examiners and moderators ;
(j) the power to remove officers (excluding Chancellor) and employees of the University and their emoluments and terms and conditions of service ;
(k) all other matters which by this Act are to be or may be provided for by the Regulations."
3. Academic Council of the University has framed Ordinances, wherein duration of the course and procedure for selection has been provided for. Ordinance No. 4.2 provides that a candidate, who has failed to pass or has not appeared at or has not been permitted to appear at the examination of 1st and/or IInd semester of the first year twice and is also ineligible for the carryover system shall not be allowed to continue the studies further. Ordinance 4.3 provides that a candidate admitted has to complete his course within seven years and both the contingencies, it has been provided that in case the candidate fails to fulfil pre-requisite terms and conditions, then he shall not be allowed to continue his studies further. Ordinance No. 9 provides for promotion and Ordinance No. 10 relates to carryover system. Relevant Ordinances are being quoted below :
"1. Eligibility:
1.1. For admission through Entrance Examination :
(a) For admission to B. Tech. 1st semester, a candidate should have passed the 10+2 examination of the Board of High School and Intermediate Education U.P. or its equivalent with Mathematics, Physics and Chemistry as subjects. For Agriculture Engineering Branch, a candidate with Agriculture subjects at 10+2 level is also eligible.
(b) For admission to B. Tech. IIIrd semester :
(i) A candidate who has passed 3-4 years diploma (with 60% marks) recognised by the U.P. Board of Technical Education in any branch of Engineering/Technology except Agriculture Engineering is eligible for admission to any branch of Engineering/ Technology except Agriculture Engineering.
(ii) A candidate who has passed 3-4 years diploma (with 60% marks) recognized by the U.P. Board of Technical Education in Agriculture Engineering is eligible for admission to Agriculture Engineering.
2.2. For direct admission made at institution/college level after entrance examination counselling :
The eligibility criteria for direct admission on seats remaining vacant after entrance examination counselling shall be such as may be notified by the State Government/ University from time to time.
2.3. The Academic Council shall have power to amend or repeal the eligibility criteria laid down at Clause 2.1 and 2.2, as per the guidelines of All India Council for Technical Education (A.I.C.T.E.) and/or the direction of the State Government from time to 'time."
4. Duration :
4.1. Total duration of the B. Tech. course shall be 4 years, each year comprising two semesters. Each semester shall normally have teaching of the 90 working days or as prescribed by A.I.C.T.E. from time to time.
4.2. A candidate who has failed to pass or has not appeared or has not been permitted to appear at the examination of 1st and/or IInd semester of the first year twice and is also ineligible for the carryover system (clause 10) shall not be allowed to continue the studies further.
4.3. The maximum time allowed for a candidate admitted in Ist/IInd semester for completing the B. Tech. course shall be 7 (seven)/5 (five) years respectively. If a candidate at any stage of his/her study is found unable to complete it within the said time, he/she shall not be allowed to continue the studies further.
9. Promotion :
9.1. A candidate satisfying all the requirement under clause 8 shall be promoted to the next academic year of study.
9.2. (a) A candidate who fails to satisfy the requirements of Clause 8.4, 8.5, and 8.7 in not more than 6 subjects (theory and/or practical subjects on the basis of combined result of both semester examinations of a particular academic year shall be eligible for provisional promotion to the next academic year of study provided he/she either satisfies the requirement of Clause 8.6 or shall be able to satisfy the requirement of Clause 8.6 on the basis of securing minimum passing marks in the subjects in which he/she failed in the carryover examination.
(b) If a candidate satisfies the requirement of Clauses 8.4, 8.5 and 8.7 but fails to satisfy Clause 8.6 he/she shall be eligible for promotion with carry over. He/she may choose upto a maximum of any six theory papers of that particular year of his/her choice to pass the examination.
9.3. A candidate shall not be promoted to third year unless he/she passes all the examinations of first year. Similarly, he/she shall not be promoted to fourth year unless he/she passes all the examinations of second year.
9.4. All other candidates shall be declared fail and shall be required to repeat the whole academic year after taking re-admission or opting for ex-studentship. This facility is, however, subject to the time limits stipulated in Clause 4.
10. Carryover System :
10.1. (a) A candidate who satisfies the requirements of Clause 9.2 (a) will be required to appear in those theory papers/practicals in which he/she failed in subsequent examinations of the same semester. However, a candidate of first year will be allowed to appear in the second semester examination in those theory/practical subjects in which he/she failed in the first semester examination, provided scheduled examination of those theory/ practical subjects are held.
(b) A candidate satisfying Clause 9.2 (b) shall be required to exercise his/her choice upto a maximum of six theory papers in which he/she desires to appear in the examination to fulfil the requirements of Clause 8.6. He/she shall inform the college about his/her choice within 15 days after the start of new session.
10.2. Marks obtained in a subject in carryover examination shall replace the original marks of the same subject.
16. Grace marks :
16.1. A candidate may be awarded grace marks upto a maximum of total 10 marks, in maximum four subjects including theory papers, practicals, project, seminar, industrial training and/or aggregate marks in each academic year provided he/she can be declared to have passed the academic year by the award of grace marks."
4. Each one of the petitioners appeared in the examination and failed, and as per terms and conditions of the Ordinance, they were not entitled to continue their further studies. As in the past, U.P. Technical University had held special examination, as such the petitioners were agitating for holding of special examination, and when the University Authorities did not accept the demand of the petitioners, then at this juncture, writ petition has been filed praying therein for holding of special examinations.
5. At the admission stage, counter and rejoinder-affidavits have been exchanged, and with the consent of the parties, the matter has been taken up, heard and is being disposed of finally.
6. In Writ Petition No. 48219 of 2002, Sri V.C. Mishra, Senior Advocate, assisted by Sri Vivek Mishra, advanced argument on behalf of the petitioners. Sri Ajay Bhanot has advanced his arguments on behalf of one of the petitioners, viz., petitioner No. 35. In other two writ petitions, Sri Arvind Srivastava has made submission on behalf of the petitioners. On behalf of respondent U.P. Technical University Sri U.N. Sharma and Sri Neeraj Tiwari have advanced arguments.
7. The first submission made by Sri V.C. Mishra is to the effect that Section 29 (1) of Chapter VII of the U.P. Technical University Act (herein after referred to as the Act) provides that First Regulation of the University shall be made by the State Government by Notification. Section 30 provides that subject to the other provisions of the Act, Regulations may provide for any matters relating to the University and shall in particular provide for conduct of examinations including terms of office and manner of appointment and duties of examining bodies and moderators. Sri Mishra submits that till date, the State Government has not framed any Regulations which deal with the conduct of examination, and as such the Ordinance is of no consequence and the same cannot be relied upon for non-suiting candidature of the petitioners, and further the maximum period, which has been prescribed to complete the course is seven years, and thus the conditions, by means of which the petitioners have been ousted is totally arbitrary, unreasonable and beyond the competence of the Academic Council.
8. Rebutting these submissions, Sri U.N. Sharma and Sri Neeraj Tiwari learned counsel appearing for the Technical University have submitted that this is true that till date the State Government has not framed any Regulations of the University, but it has been pointed out that under Section 19 (1) of the Act, Academic Council is the Principal Body of the University, and subject to the provisions of the Act and Regulations, have the control and is responsible for the maintenance of standard of instruction, education and examination in the University. In view of this, the authority vested in the Academic Council is unfettered if the State Government has not made Regulations, Academic Council being the principal body of the University had full authority to lay down standard of instruction for education and examination in the University, and the Ordinances have been duly framed by the Academic Council. Thus, the University authorities have acted well within their jurisdiction as per terms and conditions of the Ordinance. Petitioners have to face the consequences. No relief can be granted to them, and none of the legal rights of the petitioners has been infringed.
9. Taking into account the rival contentions, as raised, it has to be seen as to whether in absence of their being any Regulation framed by the State Government ; whether the Academic Council has any authority to frame Ordinance dealing with the standard of education and examination. A bare perusal of the provisions of Chapter VII would go to show various Regulations have to be made by the State Government by Notification. Section 30 provides that subject to the other provisions of this Act, the Regulations may provide for any matters relating to the University and shall in particular provide for conduct of examinations including terms of office and manner of appointment and duties of examining bodies and moderators. Under Section 19 (1) of the Act, Academic Council is the Principal Body of the University, and subject to the provisions of the Act and Regulations, have the control and general regulation of, and is responsible for the maintenance of standard, of instruction, education and examination in the University, and is entitled to exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Regulations and may advise the Executive Council on all academic matters.
10. Academic Council, in the absence of their being any Regulation framed by the State Government, has thus unfettered power, being the principal Academic body of the University, and there being no contrary provision in the Act or Regulations, has full authority to lay down and frame Ordinances for maintenance of standard of instruction, education and examination. This aspect of the matter whether these Ordinances have statutory force or not, has already been considered by Special Appeal Bench of this Court in Special Appeal No. 76 of 2003, U.P. Technical University, Lucknow v. Kumar Gandharva and Ors., and it has been held that the Ordinances framed by the University are statutory in nature. Once Division Bench of this Court has held that the Ordinances, which have been framed by the University are statutory in nature, in these circumstances, the submissions of Sri Mishra that these Ordinances cannot be relied upon, has no substance, and the same lacks merit. The Ordinances framed by the University have statutory force, and the same has to be strictly adhered to.
11. Sri Mishra also contended that the petitioners be permitted to complete their course during the period of seven years as has been prescribed for. This argument is also misconceived inasmuch as the aforesaid provision cannot be read in isolation and the same has to be read along with Ordinance 4.2, which clearly provides that in case a candidate has failed to succeed, then his candidature shall be rejected. In these circumstances, the submissions are completely devoid of merit and carry no force, whatsoever.
12. The next submission which has been made is for holding special examination is that, in the past in similar set of circumstances, the University had conducted special examination, and as such, the petitioners also legitimately expected that special examination shall be conducted this year also.
13. Pursuant to the directives given by this Court, supplementary-counter-affidavit has been filed, and in paragraphs 8 and 9 thereof, following submissions have been made :
"8. That in B. Tech. 1st year examination, which was held in July. 2003, 13,663 students appeared in the said examination and 11,525 students have been promoted to 2nd year (i.e., 84.35%) and only 2,074 students have become failed in 1st year (i.e., 15.17%).
9. That in B. Tech. 3rd year examination, which was held in July, 2003, 10,452 students appeared in the said examination and out of which 8.872 students have been promoted to 3rd year (i.e., 84.88%) and only 1,528 students have become failed in 2nd year (i.e., 14.61%). For kind perusal of this Hon'ble Court, copy of comparative chart is enclosed and marked as Annexure-S.A. 1."
14. This statement of fact has been rebutted in supplementary rejoinder-affidavit, and the relevant paragraphs being paragraphs 15 and 16, they are quoted below :
15. That the contents of paragraph 8 of SCA are denied for want of knowledge. However, the fact remains that so far as the result of 1st year (2001-02) given in para 8 is concerned, the data produced by University is misleading as it does not show that how many students have clearly passed and how many students have passed with carry-papers and how many passed with grace marks. The data does not describe the results of the ex-students and re-admitted students, as they are not considered as fresh students. The University declares their results respectively. About 1,000-15 students are unable to pass this year and now they will not be allowed to continue their studies further, as per the Ordinances. Therefore, their two years will be wasted. Moreover 80% of the students appeared in the examination have failed to pass their papers.
16. That with regard to the contents of paragraph 9 of SCA, it is submitted that they are denied for want of knowledge. However, so far as the datas in para 9 of SCA are concerned, it is submitted that as far as 2nd year 2001-02 figures are concerned, they are totally incorrect and misleading as these figures do not show the clear picture of clearly passed students/students promoted with carry papers, along with this-these figures have come up after University have awarded 'five' additional grace marks, which is biased as narrated earlier. If actual figures are shown by the University (i.e., after the result of 4th semester and without considering '5' grace marks) then it would come up approximately 4,000-5,000.
If we look at the overall figure of the fail students, it would easily reach the figure of 7,000-8,000 (in total) along with the students having carry papers in various subjects.
If a special examination is conducted then, it will help all the students. As fall and the students promoted with carry papers/ students of M.C.A./M.B.A. will get benefit of this Act (as benefited last year), which crosses the figure of over 10,000-12,000."
15. A bare perusal of these paragraphs will indicate that specific averment, which has been made, the same has not been completely disputed by the petitioners for want of knowledge, and to the contrary other factual controversy has been, sought to be raised. As far as this Court is concerned, it will not adjudicate upon this factual controversy as to whether there existed grounds for holding special examination. Once the University in its wisdom has resolved not to take special examination. As far as holding of special examination is concerned, the same is in the domain of the Academic Council of the University, who is the principal academic Body of the University. Academic Council is body comprising of persons experienced in the field of education and being concerned with the maintenance of standard of education, instruction and examination, and once the University has taken decision not to hold special examination, it is not at all in the domain of this Court to overrule the Judgment of the aforesaid Academic Body of experienced persons. In this regard, reference may be given to a judgment of Apex Court in Chairman, J & K State Board of Education v. Fiyaz Ahmad Motika and Ors., 2000 (3) SCC 59, wherein it has been mentioned that the decision of such expert body should be given due weightage by the Courts. In these matters, Court should not substitute its own view in place of the view of the authority concerned. In the present case, endeavour of the petitioners is that the view taken by the Academic Council of the University be ignored and the Court should intervene in the matter directing the University to hold special examination. The facts disclosed in paragraphs 8 and 9 of the supplementary counter-affidavit, are valid grounds on the basis of which special examination has been refused.
16. Now coming to the theory of legitimate expectation, it would be relevant to refer to the recent judgment of the Apex Court in Union of India and Ors. v. International Trading Company and Ors., 2003 AIR SCW 2828, wherein, it has been held that the claim based on legitimate expectation in any manner cannot ipso Jacto give a right to invoke this principle. Following paragraphs of the aforesaid judgment being relevant are quoted below :
12. Legitimacy of the policy decision has not been questioned by the respondents. What is highlighted is that notwithstanding the policy their rights are unaffected.
13. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been mere formality and grant of renewal would have been the inevitable result though it may be against the policy decision. That renders the High Court judgment indefensible.
15. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
16. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so--done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this thochstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
17. Where a particular mode, is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable in itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.
18. The Courts as observed in G.B. Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153, are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of powers is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Court's view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, crucial views of policy have been subjected to stringent criticism.
19. As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edition) there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. Nor is the test Court's own standard of reasonableness as it might conceive it in a given situation.
The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise.
20. In Union of India v. Hindustan Development Corporation, AIR 1994 SC 988, it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstances giving rise to legitimate expectation, would primarily be a question of fact.
21. As was observed in Punjab Communications Ltd. v. Union of India and Ors., AIR 1999 SC 1801, the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy, which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time ; present, past and future. How significant is the statement that today is tomorrows' yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only If it is founded on the sanction of law.
22. As observed in Attorney General for New Southwales v. Quin, 1990 (64) Australian LJR 327, to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right), is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law ; If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principle of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to Invoke these principles. It can be one of the grounds to consider, but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a, particular case. It follows that the concept of legitimate expectation is not the key, which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits, particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwale's case the Court should restrain themselves and respect such claims duly to the legal limitations. Kit is a well-
meant caution. Otherwise, a resourceful litigant having vested interest in contract, licenses, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important.
23. It the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed."
17. Tested on these principles, it is apparently clear that as far as the University is concerned, at no point of time, it gave any impression to the petitioners that in the event of their failure, any special examination would be held, and in fact this is own wishful thinking of the petitioners that in the event they fail, then special examination would be held. In the present case, as already mentioned above, valid grounds have been disclosed by the University for not holding special examination. In these circumstances, plea of legitimate expectation is wholly unsustainable and is of no consequence.
18. One of the submissions, which has been raised by each one of the petitioners is to the effect that the interim order passed by this Court was not complied with, and as such the interim order passed by this Court remained uncomplied with. In these circumstances direction should be given for holding special examination. At this place, it would be relevant to point out that for non-compliance of the order, contempt proceedings have already been initiated and whether direction issued by this Court has been complied with or not, the same is subject matter of contempt proceeding. As far as this Court is concerned, validity of the claim is being adjudicated on merits, and whether the interim order has been flouted or not, is subject matter of contempt proceedings. As such, in case there is any defiance in complying with the interim order, then suitable order can be passed by the Bench dealing with contempt matters. In the present case, only merits of the claim has to be considered and adjudicated.
19. In Writ Petition No. 15865 of 2003, Sri Arvind Srivastava, learned counsel for the petitioners, apart from raising other submission, advanced arguments in reference to petitioner No. 3 and made stress for awarding 15 marks as grace marks, and in this connection, he submitted that students of B. Pharma course also come within the purview of Technical Education as defined under Section 2(g) of the All India Council for Technical Education, Act, 1987 and Technical University Act, 2000, and as 15 grace marks have been awarded to B. Tech. candidates, whereas B. Pharma students have been deprived of grace marks, and as such there is clear cut discrimination. He further submits that the provisions of Pharmacy Act, 1948 after enforcement of All India Council For Technical Education Act, 1987, stand impliedly repealed under Article 372 of the Constitution of India, and as such B. Pharma students be also awarded grace marks.
20. Sri M.P.S. Niranjan, learned standing counsel and Sri Neeraj Tiwari have countered these submissions by mentioning that Pharmacy Act, 1948 and the Regulations framed thereunder clearly hold the field and as per 1991 Regulations, there is clear cut prohibition for awarding grace marks. In this view of the fact, no grace mark has been provided to any B. Pharma student.
21. Submission which has been made stands concluded in the case of Gandhi College of Pharmacy v. A.I.C.T.E., 1995 (P&H) 315, in following manner :
"The 1948 Act which was a law in force in the territory of India immediately before the commencement of the Constitution was enacted with a view to permit only such persons to practice the profession of Pharmacy who attained the minimum standard of professional education. Accordingly, establishment of a Central Council of Pharmacy was proposed which would prescribe the minimum standard of education and approve the courses of study and examinations for Pharmacists. The Provincial Pharmacy Councils were also proposed which would be responsible for the maintenance of provincial registers of qualified pharmacists. It was further proposed to empower the Provincial Government to prohibit the dispensing of medicines on the prescription of a medical practitioner otherwise than by or under the direct and personal supervision of a registered Pharmacist. Section 3 of the 1948 Act provides for the constitution of a Central Council by the Central Government by the name of Pharmacy Council of India having a perpetual succession and a common seal. Sections 5, 6 and 7 provide for election of President and Vice-President of Central Council and their term of office and manner in which casual vacancies are to be filled. The Central Council is to have an Executive Committee and other Committees a required by Sections 9 and 9A. Section 10 provides that Central Council may subject to the approval of the Central Government make regulations to be called the Education Regulations prescribing the minimum standard of education required for qualification as a Pharmacist. These Regulations would prescribe :
(a) the nature and period of study and of practical training to be undertaken before admission to the examination ;
(b) the equipments and facilities to be provided for students undergoing the approved course of studies ;
(c) the subjects of examination and the standard therein to be attained ; and
(d) any other conditions of admission to examinations.
Section 12 of the 1948 Act then makes a provision for approval of the courses of study for Pharmacists by the Pharmacy Council of India. It also provides for approval by the Central Council of the examination in pharmacy conducted by any authority in the State. Section 13 then provides for the grounds on which the approval granted by the Pharmacy Council of India can be withdrawn. After providing for the minimum standard of professional education required by a person to practise the profession of pharmacy. Chapter III provides for the State Pharmacy Councils, their constitution, election of their Presidents and Vice Presidents and terms of their office. Chapter IV provides for registration of Pharmacists and the manner in which they have to apply for registration. It also provides for removal of their names from the register, and Chapter V deals with miscellaneous provisions and provides for penalty for falsely claiming to be registered as a Pharmacist. Section 42 provides that no person other than a registered pharmacist shall compound, prepare, mix or dispense any medicine. Contravention of this provision has been made punishable with imprisonment or fine. In nutshell, under the 1948 Act the Pharmacy Council of India through its Education Regulations prescribes the minimum standard of education required for qualification as a pharmacist and approves the courses of studies and examinations. It also deals with some other ancillary matters referred to above. In other word, it contains provisions which relate to co-ordination and determination of standards in colleges of pharmacy.
All India Council for Technical Education was set up in 1945 by the Government as a national expert body to advise the Central and State Governments for ensuring the co-ordinated development of technical education in accordance with the approved standards. It appears that during the first three decades this Council functioned quite effectively and there was a phenomenal development of technical education during that period. However, in recent years, a large number of private engineering colleges and polytechnics providing technical education have come up in complete disregard to the guidelines laid own by A.I.C.T.E. Most of these institutions had serious deficiencies in terms of even rudimentary infra-structures necessary for Imparting proper education and training. Barring some exceptions, there has been scant regard for maintenance of educational standards. Taking note of growing erosion of standards, Parliament enacted the 1987 Act to confer statutory powers on A.I.C.T.E. to ensure :
(i) Proper planning and coordinated development of the technical education system throughout the country ;
(ii) Promotion of qualitative improvement of technical education in relation to planned quantitative growth ; and
(iii) Regulation of the system and proper maintenance of norms and standards.
'Technical Education' as defined in Clause (g) of Section 2 of the 1987 Act means programmes of education, research and training in several areas of learning including pharmacy. By Section 3, A.I.C.T.E. had been created and made a body corporate. It is to consist of member who must include amongst others, a representative of the Pharmacy Council of India. Chapter III deals with power and the functions of A.I.C.T.E. Under Section 10 of the 1987 Act, it is the duty of the A.I.C.T.E. to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. For purposes of performing its functions, A.I.C.T.E. is required to coordinate development of technical education in the country at all levels. It may allocate and disburse out of its funds such grant on such terms and conditions as it may think fit to technical institutions and Universities imparting technical education in co-ordination with the University 'Grants Commission. It can evolve suitable performance appraisal systems for technical institutions and the Universities imparting technical education, incorporating norms and mechanism for enforcing accountability. One of its most important functions is to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations. It can fix norms and guidelines for charging tuition and other fees and grant approval for starting new technical instructions and for introduction of new courses or programmes. It can take all necessary steps to prevent commercialisation of technical education and provide guidelines for admission of students to technical institutions and universities imparting technical education. It can inspect or cause to inspect any technical institution. Apart from other things, it may set up a National Board of Accreditation to periodically conduct evaluation of technical education or programmes on the basis of guidelines, norms and standards specified by it and to make recommendations to it to A.I.C.T.E. or University Grant Commission or to other bodies regarding recognition or de-recognition of the institution or the programmes. By virtue of Section 11, it may cause an inspection of any department or departments of such technical institution or University to be made In such manner as may be prescribed. The other provisions of this Act deal with matters which are ancillary/incidental. As is clear from the definition of the term 'technical education' any programme of education in pharmacy is also technical education within the meaning of the 1987 Act. The 1987 Act is referable to Entry 66 of List I of the 7th Schedule to the Constitution which reads thus :
'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical' institutions.' Now if we compare the provisions of the 1948 Act with those of the 1987 Act, it is clearly borne out that both these enactments cover the field of providing minimum standards of education in pharmacy. The Pharmacy Council of India under the 1948 Act and A.I.C.T.E. under the 1987 Act can both lay down norms and standards for courses of study in pharmacy. Thus, it will be seen that the 1948 Act and the 1987 Act are two parallel enactments relating to coordination and determination of standards in colleges and institutions offering course in Pharmacy.
Article 372 of the Constitution provides that notwithstanding the repeal by the Constitution of the enactments referred to in Article 395, all the laws that were in force in the territory of India immediately before the commencement of the Constitution shall continue to remain in force until altered or repealed or amended by a competent Legislature or other competent authority. The 1948 Act is undoubtedly an existing law which was in force in the territory of India prior to the commencement of the Constitution. This law was thus to continue to operate till it was altered or repealed or amended by a competent Legislature.
Parliament in exercise of its power under Entry 66 of List (Union List) has enacted the 1987 Act. As already noticed above, this Act covers same field which was earlier covered by the 1948 Act, namely, to lay down norms and standards for studies in the field of pharmacy. Therefore, in terms of Article 372 of the Constitution, the 1987 Act to the extent it covers the same field as covered by the existing law, i.e., the 1948 Act will prevail and the provisions of 1948 Act to that extent stand repealed/ altered. Alteration, repeal or amendment contemplated by Article 372 of the Constitution may be express, i.e., the existing law may be expressly altered, repealed or amended by a competent Legislature. An existing law may also be modified by necessary implication and this can be done even by a separate enactment as in the present case. When two Acts are inconsistent or repugnant to each other, the existing law will be deemed to have been altered, repealed or amended by the later law enacted by the competent Legislature. Even where there is no repugnancy or inconsistency between the two enactments, the later law enacted by the competent Legislature will prevail provided that law covers the same field as is covered by the existing law since it is last expression of the will of the Legislature that must prevail.
Looking at the background in which 1987 Act was enacted, the object of Parliament was to coordinate and determine the standards of education in technical institutions including that of Pharmacy in the country and it was intended that all technical institutions including the college should be governed by its provisions."
22. A similar view has been taken by a Division Bench of Madras High Court in case of Adhiyaman Educational and Research Institutions v. State of Tamil Nadu, AIR 1991 Mad 246, and this particular judgment of the Division Bench of Madras High Court has been approved by the Apex Court in JT 1995 (3) SC 136. It must, therefore, be held that the provisions of 1987 Act covers the field of providing minimum standard of education in Pharmacy, and thus, 1991 Regulations as framed under the Pharmacy Act, 1948 stands impliedly repealed.
23. Now the question that arises for consideration is as to whether grace marks can be awarded to B. Pharma candidates as a matter of right. The Apex Court in the case of Maharashtra State Board of Secondary Education v. Amit and Anr., (2002) 6 SCC 153, has held that grace marks shall not be liberally awarded and further grace marks are in the nature of concession and in fact awarding of grace marks results in dilution of academic standard. Rules relating to them must be strictly construed to ensure that minimum standard for passing are not diluted beyond the limit laid down by the authority concerned.
24. Here in the present case, as far as B. Tech. students are concerned, in regard to them, Academic Council has already framed Ordinances which contains a provision for award of grace marks. As far as B. Pharma students are concerned, no such Ordinances have been framed till date nor the same has been brought on record. The Academic Council being the principal academic body of the University has right to frame Ordinances, and once there is no Ordinance framed for awarding grace marks to B. Pharma students, no directives can be issued to the respondent University for awarding grace marks to B. Pharma students inasmuch as students of B. Tech. form a different class altogether. In absence of there being any rules for awarding grace marks, no writ of mandamus can be issued. However, this observations will not prevent the Academic Council from taking appropriate decision in the matter in case Academic Council so feels that grace marks can be awarded to B. Pharma students also.
25. The validity of Ordinance Nos. 9.3 and 10.1 has also been challenged by Sri Arvind Srivastava on the ground that they are ultra vires the provisions of Article 246 read with Article 254(2) of the Constitution of India. It has been averred that the aforesaid Ordinances have been framed by the University under legislative power of Entry 25 of List III of Schedule VII to the Constitution, and as the field is also occupied by the regulations framed under All India Council of Technical Education Act, 1987, which have been framed under Entry 66 of List I of Schedule VII to the Constitution, and in this view of the fact that the Ordinances framed by the University have no force of law.
26. In order to appreciate the contention raised by Sri Arvind Srivastava, it has to be understood that the legislative competence of Parliament and Legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule, as originally in force. Entry 11 of List II gave to the State an exclusive power to legislate on :
"education including Universities, subject 'to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III."
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3.1.1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows :
"25. Education, including technical education, medical education and, subject to the provisions of Entries 63, 64, 65 and 66 of List I, vocational and Technical training of labour."
Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows :
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
27. Both the Union as well as States have the power to legislate on education including technical education subject, inter alia, to Entry 66 of List I, which deals with laying down standards in institutions for higher education or research and scientific and technical Institutions as also co-ordination of such standards. The State, therefore, while prescribing procedure for admission to the Institutions cannot adversely affect the standard laid down by Union of India.
28. Herein the present case, tested on these principle, it has to be seen as to whether the Ordinances which have been framed, in any way, affect the standard laid down by Union of India in Entry 66 of List I. The petitioners have miserably failed to point out as to in what way and manner the standard of education has been impinged. Academic Council has acted well within its competence in framing the aforesaid Ordinances, which in no way adversely affect the standard of education. Petitioners have also failed to point out as to what are standards laid down by Union of India under Entry 66 of List I which have been lowered down. Mere bald statements of fact have been made that the University has no authority to frame Ordinances. "Education" being in the concurrent list, State has full authority to make laws, and the only rider which has been provided is that the same should be subject to Entry 66 of List I. In this view of the fact, the Ordinances are valid and same retains and maintains the standard of education and the standard of education in no way is impinged in any manner, whatsoever. In this regard, the view of the Apex Court in Dr. Preeti Srivastava v. State of M.P., 1999 (4) AWC 2853 (SC) : 1999 (7) SCC 120, shall be reflected from paragraphs 35 and 36 of the report, which are quoted below ;
"35. The legislative competence of Parliament and Legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on :
"education Including Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III."
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3.1.1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows :
"25. Education, including technical education medical Education and, subject to the provisions of Entries 63, 64, 65 and 66 of List I, vocational and technical training of labour."
Entry 25 is subject, inter alia to Entry 66 of List I, Entry 66 of List I is as follows :
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
Both the Union as well as States have the power to legislate on education including technical education subject, inter alia, to Entry 66 of List I, which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, right to control education including medical education so long as the field is not occupied by any Union Legislation. Firstly, the State cannot, while controlling the education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education, the State cannot adversely affect the standard laid down by Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject, it is also necessary to remember that from 1977, education, including, inter alia, medical education and University education, is now in the concurrent list so that the Union can legislate on the admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission has no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List 1. This would be consistent with promoting higher standards for admission to the higher educational course. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are :
(1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education to each student ; (3) the student teacher ratio ; (4) the ratio between the students and the hospital beds available to each student ; (5) the calibre of the students admitted to the institution ; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges ; (7) adequate accommodation for the college and the attached hospital ; and (8) the standard of examination held including the manner in which the papers are set and examined and the clinical performance is judge."
The Hon'ble Apex Court in the aforesaid case has clearly held that the State is competent to lay down additional qualification in addition to the qualification as prescribed in Entry 66 of List I as that would be consistent with the standard of higher education. In this view of the fact, the provisions of the Ordinances are valid, being consistent with the standard of higher education.
29. Here in the present case, each one of the petitioners had appeared in the examination and had failed therein, and thereafter various pleas are being sought to be raised, which are not at all permissible in law. Such pleas, if accepted, the same would violate the statutory provisions as contained to the Ordinances. In these circumstances, none of the writ petitions has any force, and none of them calls for interference under Article 226 of the Constitution.
30. In view of the above discussion, the writ petitions fail and are hereby dismissed.