973IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.

9911 of 2012 With SPECIAL CIVIL APPLICATION No. 9912 of 2012 With SPECIAL CIVIL APPLICATION No. 9914 of 2012 To SPECIAL CIVIL APPLICATION No. 9915 of 2012 With SPECIAL CIVIL APPLICATION No. 9974 of 2012 With SPECIAL CIVIL APPLICATION No. 10005 of 2012 With SPECIAL CIVIL APPLICATION No. 10532 of 2012 With SPECIAL CIVIL APPLICATION No. 10536 of 2012 With SPECIAL CIVIL APPLICATION No. 10751 of 2012

For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= Whether Reporters of Local Papers may be allowed to see the 1 judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the 4 interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ?

========================================================= PUSHKAR SANTOSHKUMAR MEHROTRA - Petitioner(s) Versus BIMAL PATEL DIRECTOR & 1 - Respondent(s) =========================================================

Appearance : MR BHARAT T RAO for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. MR SHALIN MEHTA, SR. ADVOCATE WITH MR NIKUNT RAVAL AND MS DHARMISHTA RAVAL, ADVOCATES for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI

Date : 17 /10/2012 CAV JUDGMENT

1.

The importance of education can be sensed from the words of the Nobel Laureate

Nelson Mandela, who said - Education is the most powerful weapon which you must use to change the world. The power in a pen is far superior than the power in a sword and if the power of pen is backed with the knowledge of law, the society would become a beautiful place to live in. Keeping in mind the larger object of providing systematic legal knowledge for overall social and national development, by Gujarat Act No.9 of 2003, the Legislature enacted the Gujarat National Law University Act, 2003 (hereinafter referred to as the GNLU Act) for the purpose of establishing a University by the name of the Gujarat National Law University (hereinafter referred to as the University for short). The main object of the University is to advance and disseminate learning and knowledge of law and legal processes and their role in national development; to develop in the students, a sense of responsibility to serve society in the field of law by developing skills in regard to advocacy, legal services, legislation, parliamentary practice, law reforms and such other matters; to make law and legal processes efficient instruments of social development and to promote inter-disciplinary study of law in relation to management, technology, international co-operation and development.

2.

For achieving this object, the GNLU Act provided for the constitution of Academic

Council, Executive Council, Finance Committee, General Council, etc. and such other authorities in the University for the smooth and efficient functioning of the University.

3.

The General Council of the University is the apex authority of the University

consisting of members, which includes the Visitor, who shall be the Hon'ble The Chief

Justice of India or a sitting Hon'ble Judge of the Hon'ble Supreme Court of India to be nominated by the Hon'ble The Chief Justice of India, the Chairman, who shall be an eminent person in the field of law, academic, industry, trade or commerce or public life and shall be appointed by the State Government in consultation with the Visitor, the Attorney General of India, one Hon'ble Judge of the Hon'ble Supreme Court of India nominated by the Visitor. The General Council of the University is vested with the powers to formulate and review the broad policies and programmes of the University and suggest measures for the development of the University. The Executive Council is the chief executive body of the University and is mainly vested with the powers of administration and management of the funds and property of the University. The Academic Council is the academic body of the University and is vested with the powers to control, regulate and maintain standards of instruction, education and examination of the University and to advice the Executive Council on academic matters.

4.

In this background, we shall now look at the facts in each of the petitions. The

petitioners herein are students, who have secured admission in the Five Years' Law Course proposed by the University, after passing the entrance examination. The University framed Rules in the year 2006, named, the Examination Rules, 2006 for the administration and management of University. The 2006 Rules were approved by the Academic Council of the University in its Meeting held during 28th 29th June, 2008 and it was made applicable for all Batches admitted between the Year 2004 to 2007. It came into effect on 31st July, 2008. The 2006 Rules were then placed before the Executive Council for approval, as required u/s.46 of the GNLU Act. The Executive Council approved the said Rules in its Meeting held on 04th February, 2006. The regulations were, thereafter, placed before the General Council for final 'approval', which gave its assent in its Meeting held on 09th February, 2006.

5.

On ratification by the General Council, the Examination Rules, 2006 are deemed as

statutory Regulations framed u/s.46 of the GNLU Act. Thus, before a set of draft rules get converted into statutory regulations, it has to pass through three different stages. Firstly, the draft rules have to be approved by the Academic Council; secondly, they have to be approved by the Executive Council and thirdly, it has to be ratified by the General Council of the

University. Only then, a set of draft rules gets converted into statutory Regulations.

6.

In the year 2008, it appears that respondent no.1 brought in a set of draft rules under

the nomenclature of Examination Rules, 2008 for students admitted between 2004 to 2007. The Academic Council of the University approved the said Rules in its Meeting held during 28th - 29th June, 2008. The said Examination Rules, 2008 were made effective from 31.07.2008. By virtue of the said Rules, respondent no.1 proposed to bring amendment in Regulation-66, which pertained to Examination Rules. Earlier, Regulation-66 provided that the student has to complete the course within a period of Eight Years. However, in the amended Regulation-67, it was provided that the student has to complete the course within Seven Years from the date of joining the University. Thus, the duration of course was reduced by one year.

7.

During the existence of the above two sets of Rules, viz. Examination Rules, 2006 and

Examination Rules, 2008, which was made applicable for students admitted between 2004 to 2007, respondent no.1 brought in another set of Rules, which were made applicable to students of all batches admitted from 2008 onwards. The Academic Council of the University approved the said rules in its Meeting held during 28th - 29th June, 2008 and it was made effective from 31st July, 2008. Under Regulation-67(b) of these Rules, a student has to obtain at least 'C' Grade in at least Six subjects taught in a year in order to be promoted to the next year. Regulation-67(c) provided that if a student failed to obtain 'C' Grade in at least six subjects taught in one year, he / she shall not be promoted to the next year and he / she shall repeat the year, after seeking re-admission to the same class, on payment of the yearly fees according to the fees structure (except deposit) of the year. Regulation-67(n) of the Examination Rules, 2008, which was made applicable for all Batches admitted from the year 2008 onwards, provided that the student shall have to pass all the subjects to be promoted to the Fourth Year and that no carry over is permitted to the Fourth Year. Regulation-67(o) provided that the student shall complete the course within the maximum period of Eight Years.

8.

It appears that the above-said two sets of Regulations, viz. first set of Examination

Rules, 2008 made applicable to students admitted during 2004 to 2007 Batches and second set of Examination Rules, 2008 made applicable to students admitted from 2008 Batches onwards, were approved by the Academic Council in its Meeting held during 28th - 29th June, 2008. However, the said Rules were neither placed before nor approved by the Executive Council or the General Council of University.

9.

While the aforesaid Examination Rules were in existence, respondent no.1 brought in

another set of Rules under the nomenclature of GNLU Regulations, 2009. The said Regulations of 2009 were approved by the Academic Council on 25.08.2009, by the Executive Council on 27.08.2009 and by the General Council on 27.03.2010.

10.

On 01.07.2011 respondent no.1 issued a Bulletin in the name of GNLU Examination

Rules, 2011, which were approved by the Academic Council on 17.07.2011, by the Executive Council on 22.07.2011 and by the General Council of the University on 21.01.2012. These Rules superseded the examination rules and other relevant Rules provided in the GNLU Rules of 01.09.2009 and were made effective from 01.07.2011.

11.

The petitioners in Special Civil Applications No.9911/2012, 9912/2012 & 10751/2012

are students admitted in the 2009-2014 Batch whereas, the petitioners in Special Civil Applications No.9914/2012, 9915/2012, 9974/2012, 10532/2012, 10536/2012 & 10005/2012 are students admitted in the 2008-2013 Batch.

12.

On 10.02.2011 the University sent a communication titled Notice for Detention

Scheme for Batch 2008-2013 via E-mail to all students of 2008-2013 Batch informing that students are required to clear all their subjects, including backlog papers, for being promoted to the Fourth Year in view of Examination Rule-67(n). They were also informed that those who fail to comply with the above Rule shall be detained for one year and that they shall have to re-register themselves with the next Batch. The petitioner-students of both the Batches, viz. 2008-2013 and 2009-2014, have been detained from going to the Fourth Year and Fifth Year respectively, by invoking Rule-67(n) of the Examination Rules, 2008.

13. under;

For ready reference, Rule-67(n) of the Examination Rules, 2008 is reproduced here

67(n). Student shall have to pass all the subjects to be promoted to the IV year. No carry over is permitted to the IV year.

14.

It is the case of the petitioners that the respondents have given effect of the

Examination Rules, 2008, the 2009 Regulations and the Examination Rules, 2011 with retrospective effect and thereby, the career of students have been put at jeopardy.

15.

On 08.02.2012 respondent no.2 sent E-mails to all the students informing that

students falling under Rule-4.3 of Examination Rules, 2011 for a particular paper and who have become ineligible to appear for the End-Semester Examination held during October 2011 shall be considered to have an Academic Back in that paper. They were further informed that such students can appear in the Repeat Examination in the particular subject when it is next offered in due course of time and that the internal marks secured shall be carried forward. They were also informed that they shall have to secure overall 40% marks in order to pass the paper.

16.

On 23.06.2012 the University published a Circular titled Detention of student under

Examination Rule wherein the names of students, who were not promoted to the next academic year, were mentioned. The names of the petitioners were also mentioned in the said Circular. On 21.06.2012, an E-mail was sent by respondent no.2 to the concerned students informing that students, who have been detained on account of Attendance Back in Fifth and Sixth semester in Third Year, shall be permitted to appear in the Repeat Examination scheduled from 27.06.2012, as a special case and one-time measure. The petitioners appeared in the Repeat Examination but, failed to clear all the papers. Therefore, the respondents sent the impugned E-mails to them informing that they are not promoted to the next Year.

17.

Being aggrieved by the aforesaid action of the respondents, the present petitions

have been preferred for issuance of appropriate Writ, order or direction quashing and setting aside Rule-67(n) & Rule-7.2[b] pertaining to Detention, the E.mail/order sent to the petitioners, the provision of Rule-7.14 regarding duration of course and provision regarding Attendance requirements.

18.

The petitioners have also challenged the rule by which the University is granting 05

marks of goodness to students. The petitioners have also prayed to direct the respondents to conduct special examinations of all such students who have been detained and to take their examination along with the students of the next Batch.

19.

Mr. B.T. Rao learned counsel appearing on behalf of the petitioners has raised several

contentions before this Court. Firstly, he submitted that Section 46 of the GNLU Act empowers the Executive Council of the University to frame Regulations within the meaning of the said Section. Such Regulations could be framed only for the purpose of administration and management of the University and it does not empower the University to detain students in their respective years of study or to restrict the period of study to seven years. Therefore, the Regulations framed by the respondents are beyond the provisions of Section 46 of the GNLU Act.

19.1

Mr. Rao submitted that Regulation so framed attains statutory force only after it is

approved by the Executive Council and is, thereafter, ratified by the General Council. The Examination Rules, 2008 framed by respondent no.1 were approved by the Academic Council but, were never approved by the Executive Council and ratified by the General Council. Therefore, it cannot be brought into force. Not only that the Rules cannot be brought with retrospective effect. Hence, the Examination Rules, 2008 are arbitrary, illegal and against the settled provisions of law.

19.2

Mr. Rao submitted that the Rules framed by respondent no.1 are not only beyond the

scope of the GNLU Act but, are also erroneous and inconsistent with each other. He submitted that under the Examination Rules, 2008, there is no provision for detention because under Rule-67(b) the basic requirement for getting promotion to the next year is that the student must obtain at least 'C' grade in at least Six subjects taught in a year. However, Rule-67(n) is conflicting to Rule-67(2) as it provides that the student shall have to pass all the subjects for promotion to the Fourth Year and that no carry over is permitted to the Fourth Year. Therefore, both these rules cannot exist simultaneously. Hence, they deserve to be quashed and set aside.

19.3

Mr. Rao submitted that the Examination Rules, 2008 have been made effective from

31.07.2008 and therefore, the Examination Rules, 2011, which have been made effective from 01.07.2011, cannot be made applicable to the students of 2008 Batch onwards. He submitted that in the University there are five set of Rules prevailing for examination, viz. First is the general regulation, second is the Regulations made effective from 31.07.2008 for students from 2004 to 2007 Batches, third is the Regulations made effective from 31.07.2008 for all Batches of students admitted from 2008 onwards, fourth is the Regulations framed from 01.09.2009 and fifth is the Rule made effective from 01.07.2011. The petitioners are unaware as to at what time which Rule will be made applicable by the respondent no.1 and in this way, the future of the students can be hampered with at any point of time by the respondents by making applicable the Rule which respondent no.1 deems fit.

19.4

Mr. Rao further submitted that the action of the respondents of applying Rule-4.3 of

the Examination Rules, 2011 to the students and of declaring them of having an academic back in a particular paper is arbitrary and contrary to the provisions of Regulation-66. He submitted that there is no provision in Regulation-66 which provides or gives power to the respondents for academic back. Even if the same is applied, it was submitted that the endsemester examination has two components internal marks and external marks comprising of 40 marks and 60 marks respectively. Therefore, discretion is vested in the Teacher or Faculty Member to give marks for attendance, good behaviour, etc., which may be used in a negative manner. Hence, the amendment of the Rules is violative of Article 14 of the Constitution of India.

19.5

Mr. Rao submitted that the University is giving differential treatment to similarly

situated students by asking them to take the repeat examinations separately on the ground of academic back or attendance back. He submitted that there cannot be two different examinations for similarly situated students, which is arbitrary and illegal as it results into discrimination amongst the students. Such differential treatment is not defined under the Rules but, is a creation of respondent no.1. Therefore, the matter deserves to be referred to the General Council as the students are the ultimate sufferer.

19.6

Mr. Rao further submitted that the University has been changing the Rules of

examination in the midst of the Semester and that to without any prior intimation to either the students or their parents/guardian. He submitted that the University is a creation of Statute and therefore, it has to maintain consistency so far as the examination rules are concerned. The respondent no.1 cannot change the rules at his own will and merely because he has been vested with such powers. Such action of respondent no.1 is contrary to the provisions of the GNLU Act.

19.7

Mr. Rao further submitted that the Notice dated 10.02.2011 issued to the students of

Batches admitted during 2008 to 2013 states that the students are required to clear all their subjects, including backlog papers, to be promoted to the Fourth Year in view of Rule-67(n) of the Examination Rules, 2008. He submitted that the said Rule cannot be made applicable to the students of the said Batches since Rule-7.2 of the Examination Rules, 2011 states that the student has to secure 'C' grade (2007-2009 batch) in at least eight subjects out of twelve subjects. The petitioners of the said Batches have secured the minimum grade required and therefore, they ought not to have been detained by applying Rule-67(n) of the Examination Rules, 2008 since the Examination Rules, 2011 have superseded the Examination Rules, 2008. Therefore, the impugned communication issued to the petitioners via E-mails by which the petitioners have been detained from being promoted to the next academic year deserve to be quashed and set aside.

19.8

Mr. Rao further submitted that the University has given a go-bye to Rule-7.2 of the

Examination Rules, 2011 in several cases without any valid justification and thereby, have given a discriminatory treatment to some students. The petitioners have produced a List of such students by way of Annexure-L in S.C.A. No.9911/2012. He submitted that the students mentioned in the said List had a minimum of 10 to 30 papers backlog when they came to the Fifth Year and the University had permitted the said students to prosecute study and to clear the examinations of Fifth Year. But, the petitioners and some other students have been detained by applying the rule of detention. Such treatment by the University is illegal, discriminatory and violative of the fundamental rights of the students.

19.9

Mr. Rao further submitted that the University and its authorities are supposed to act

within the provisions of the GNLU Act and the Regulations framed thereunder. He submitted that the General Council, being the apex body of the University, is vested with supreme power in all matters pertaining to the University whereas, the transitory powers are vested with the Executive Council and the Academic Council. Therefore, the respondent no.1Director has to act in accordance with the provisions of the GNLU Act and through the proper channel. Regulation-66 is a complete Code for examination rules and respondent no.1 cannot travel beyond it in the name of emergency and no rules could be framed which are detrimental to the interests of the students, without following due process, as prescribed under the GNLU Act. Therefore, the detention rule under Rule-7.2 is inconsistent and deserves to be quashed and set aside.

19.10

Mr. Rao further submitted that Rule-5 of the Examination Rules, 2011 provides for

allocation and grading. However, Rule-5.1 and Rule-5.3 therein create two classes between the same Rule. The University cannot make two separate classes in one Rule for assessing students' career of one batch and other batch for giving goodness marks in continuous evaluation and end-semester examination. These Rules only supersede the Examination Rules, 2009. It does not provide for Examination Rules, 2008 for students of 2004-2007 batch and Examination Rules, 2008 for students from 2008 batch onwards.

19.11

Mr. Rao further submitted that when the detention list of students was published by

the University, there were 56 students. However, out of them, the names of 24 students have been removed on account of favouritism, nepotism and discrimination at the hands of the respondents.

19.12

Mr. Rao submitted that the action of the respondents of applying Rule-4.3 of the

Examination Rules, 2011 to students and of declaring them ineligible to appear for the endsemester examination on the ground of academic back and of asking them to appear in the repeat examination in the concerned subject when it is next offered in due course of time is illegal, arbitrary and violative of the fundamental rights of students. He submitted that by applying the said Rule, the students are not declared failed but are detained and they are permitted to appear in the examination only in the next academic year. Thereafter, in the next academic year, the University will not add the internal marks of such students and thereby, making him eligible to appear in the final examination because there is no fresh assessment for internal marks. Therefore, making provision for internal back in Rule-4.3 is arbitrary, illegal and irrational, as the same is solely dependent on the assignment of marks by Faculty Member, Examination Committee or respondent no.1-Director.

19.13

Mr. Rao submitted that a list of students detained was published by the University on

26.06.2012. After publication of the said list, special examinations were conducted for those students and they had cleared the exams. The University had relaxed the Rules in case of some students. He cited the name of one Varun More, whose First semester late submission in one paper has been considered in Sixth semester and the said student has been declared 'pass'. He cited one Jenil Shah, who has been given 05 marks for discipline and later, the said student was also declared 'pass'. In the name of re-evaluation also, the respondents have extended favours to several students since originally, 56 students were detained and subsequently, only 23 students had detained. Thus, the University has moulded the Rules at is own sweet will.

19.14

Mr. Rao lastly submitted that under the GNLU Act there is no mention about a rule

regarding detention. The limitation provided in the Regulation for completing the course is eight years. Therefore, the University cannot, on its own, reduce the period to seven years.

Hence, the impugned action of the respondents is illegal, arbitrary, discriminatory and violative of the fundamental rights of the petitioners-students and therefore, it deserves to be quashed and set aside.

20.

In support of his submissions, learned counsel Mr. Rao has placed reliance upon the

following decisions;

I.

In Ashok Kumar Thakur v. University of Himachal Pradesh and others,

(1973) 2 SCC 298, the Apex Court held that it was beyond the jurisdiction or competence of the Principal of a constituent college to condone deficiency in attendance of lectures when the Rules expressly provide for condoning deficiency up to a prescribed number of lectures only.

II.

In Mohinder Singh Gill and another v. The Chief Election Commissioner,

New Delhi and others, (1978) 1 SCC 405, the Apex Court in Para-8 held thus;

8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or other. Otherwise, an order bad in the beginning may, be the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out...

III.

In Dr. J.P. Kulshrestha and others v. Chancellor, Allahabad University and

others, (1980) 3 SCC 418, the Apex Court in Para-18 observed thus;

18. A strange submission was mildly made that the executive council has also the power to make ordinances and so, by accepting a low second class as equal to a high second class in the case of the three respondents, the council must be deemed to have amended the ordinance and implicitly rewritten it to delete the adjective 'high' before 'second class'. This argument means that an illegal act must be deemed to be legal by reading a legislative function into

an executive action. Were this dubious doctrine applied to governmental affairs and confusion between executive and legislative functions jurisprudentially sanctioned, the consequences could well be disastrous to the basics of our democracy. We mention this facet of the argument not only to reject it but to emphasise that small gains in some case should not justify the urging of propositions which are subversive of our Constitution. Be that as it may, we are satisfied that respondents no.5, 6 and 8 do not possess a high second class in their Master's degree.

IV.

In V. Sudeer v. Bar Council of India and another, (1999) 3 SCC 176, the Apex

Court in Para-23 observed thus;

23. It must, therefore, be held that the rule making power contemplated by the legislature under Section 49(1)(ag) for being exercised by the Bar Council of India was pertaining to only those classes or categories of persons who were thought fit to be enrolled as advocates though they might not be eligible to be enrolled under Section 24(1) of the Act as it stood on the statute book. In other words, this enabling rule making power only by which the Bar Council of India could add to the category of eligible persons for enrolment which would have otherwise remained outside the sweep of the statutory scheme of eligibility for enrolment as laid down by Section 24(1), did not contemplate any power to curtail the existing eligibility of applicants under Section 24(1) for enrolment as advocates. It is only for such additional class or category of persons that the enabling provision as per the said rule making power could be available to the Bar Council of India. It is difficult to appreciate how by any process of interpretation an enabling provision can be treated as a restrictive one. In fact, on a conjoint reading of Section 24(3) d) and Section 49(1)(ag) the conclusion becomes inevitable that the Bar Council of India in exercise of its statutory function entrusted to it under sub-section (3)(d) of Section 24(1) can frame suitable rule for bringing in the umbrella of enrolment provision those who otherwise would have remained outside. The rule making power under Section 49(1)(ag) has to take colour from the statutory function entrusted to the Bar Council of India by Section 24(3)(d). As we have already held that Section 24(3)(d) does not enable the Bar Council of India to impose additional restriction on the eligibility of an applicant who seeks enrolment as per Section 24(1) by necessary implication power under Section 49(1)(ag) also cannot enable such an impermissible exercise. The rule making power under Section 49(1)(ag) is ancillary to the statutory function entrusted to the Bar Council of India by Section 24(3)(d) and it cannot travel beyond the said statutory sphere.

V.

In Hyderabad Karnataka Education Society v. Registrar of Societies and

others, (2000) 1 SCC 566, the Apex Court in Para-35 observed thus;

35. It must, therefore, be held that Rule 7-A has to be read down as under to sustain its legality and validity : 1. If an ordinary member is shown not to have paid up his annual subscription of Rs.25 for a given year by the end of March of that year and if he disputes the allegation of non-payment of subscription by applying to the Society before the expiry of the year concerned or if he proves to the satisfaction of the Society that there was any sufficient cause which prevented him from paying up Rs.25 by the end of March of that year, then he will not be deemed to have automatically ceased to be such an ordinary member for that year. However, for that purpose even without the Society being required to issue any show-cause notice, it will be for the member concerned to apply to the Society by raising a dispute about automatic cessation of his ordinary membership by putting forward for consideration of the Society his relevant defence against the alleged non-compliance with Rule 7-A by the end of March and if an application raising such a dispute is filed and if any valid ground is made out by the member concerned and if the Society accepts such application and the ground made therein, then for that year, Rule 7-A will not be treated to have dismembered him from his ordinary membership. However, such an application has to be moved by him, latest before the end of the year concerned.

VI.

In St. Johns Teachers Training Institute v. Regional Director, National Council

For Teacher Education and another, (2003) 3 SCC 321, the Apex Court in Para-12 observed that whether a particular legislation suffers from excessive delegation has to be decided having regard to the subject-matter, the scheme, provisions of the statute, including its preamble and the factual and circumstantial background of its enactment. There would be a presumption in favour of its vires but, if two constructions are possible, the one which makes it valid would be adopted. Moreover, it can be read down to avoid it being declared ultra vires.

VII.

In District Registrar and Collector, Hyderabad and another v. Canara Bank

and others, (2005) 1 SCC 496, the Apex Court in Para-57 observed thus;

57. The constitutional validity of the power conferred by law came to be decided from yet another angle in the case of Air India v. Nergesh Meerza wherein it was held that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14.

VIII.

In Mahabir Vegetable Oils (P) Ltd. and another v. State of Haryana and

others, (2006) 3 SCC 620, the Apex Court in Para-37 observed thus;

37. It is true that the State issue a notification on or about 03.01.1996 expressing its intention to amend the Rules. By reason thereof, however, the State neither stated nor could it expressly state, that the Rules shall stand amended. It is now well-settled principle of law that the draft rules can be invoked only when no rule is operative in the field. Recourse to the draft rules for the purpose of taking a decision in certain matters can also be taken subject to certain conditions...

IX.

In Institute of Chartered Financial Analysts of India and others v. Council of

the Institute of Chartered Accounts of India and others, (2007) 12 SCC 210, the Apex Court in Paras 24, 28, 30 & 31 observed thus;

24. The explanatory statement appended to the notification does not state that the same had been issued for the purposes sought to be achieved by Section 7 of the Act. Even otherwise, it is impermissible. What is a professional misconduct has been defined. The statutory authority, therefore, cannot transgress its authority that acquisition of a qualification by a member of the Institute shall itself constitute a misconduct. We have no doubt in our mind that the provision of Section 22 of the Act must be construed widely. It must take within its sweep the misconduct of a member of the Institute, which would disentitle him from pursuing a noble profession.

28. We are herein concerned with the term misconduct. The word misconduct which in generic sense would mean, as held in Probodh Kumar Bhowmick v. University of Calcutta is as under; (Cal LJ p.462, para 14)

14.

Misconduct, inter alia, envisages breach of discipline,

although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, 'improper behaviour; intentional wrongdoing or deliberate violation of a rule of standard or behaviour':

'Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Penal Code is equally a misconduct.'

(See also State of Punjab v. Ram Singh, Ex-Constable and B.C. Chaturvedi v. Union of India.)

30. Whether misconduct has been conducted or not would depend upon the statute in question and the nature of misconduct said to have been committed. A misconduct must be definite or precise but subject to its generic meaning in absence of any statutory definitions. When a person is otherwise entitled to acquire any additional qualification, such qualification per se, in our opinion, cannot be termed to be a misconduct in its generic sense.

31. There is another aspect of the matter. A distinction must be drawn between a misconduct committed by an employee and a professional misconduct. In the case of the latter, the person in the profession precisely knows what is expected of him. It may not be possible to lay down all such misconducts but, in our opinion, it would be too much to contend that even an acquisition of an additional qualification would come within the purview thereof. Such a broad meaning in our opinion defies all norms.

X.

In Sahiti & others v. Chancellor, Dr. NTR University of Health Sciences and

others, (2009) 1 SCC 599, the Apex Court held that even in absence of specific provisions regarding re-evaluation of answer scripts, such order would be valid if court finds the decision of educational authority to be not arbitrary, unreasonable, mala fide or against the statutory rule or ordinance and that Court would be slow to interfere with the decision of educational authority regarding necessity to order reevaluation.

XI.

In Indra Das v. State of Assam, (2011) 3 SCC 380, the Apex Court held that

ordinarily literal rule of interpretation, while construing a statutory provision, should be followed but where such interpretation makes provision unconstitutional it can be departed from and statute would be read down to make it constitutional.

XII.

In N.K. Bajpai v. Union of India and another, (2012) 4 SCC 653, the Apex

Court in Paras 64 & 66 observed thus;

64. Earlier, the nature of law, as substantive or procedural, was taken as one of the determinative factors for judging the retrospective operation of a statute. However, with the development of law, this distinction has become finer and of less significance. Justice G.P. Singh, in his Principles of Statutory Interpretation (12th Edn., 2010) has stated that the classification of a statute, as either a substantive or procedural law, does not necessarily determine whether it may have retrospective operation. For example, a statute of limitation is generally regarded as procedural, but its application to a past cause of action has the effect of reviving or extinguishing a right to sue. Such an operation cannot be said to be procedural. It has also been noted that the rule of retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time antecedent to the passing of the relevant law. For these reasons, the rule against retrospectivity has also been stated, in recent years, to avoid the classification of statutes into substantive and procedural and the usage of words like existing or vested.

66. In such matters, in judiciously examining the question of retrospectivity or otherwise, the relevant considerations include the circumstances in which legislation was created and the test of fairness. The principles of statutory interpretation have expanded. With the development of law, it is desirable that the courts should apply the latest tools of interpretation to arrive at a more meaningful and definite conclusion.

21.

Mr. Shalin Mehta learned senior advocate appearing with Mr. Nikunt Raval and Ms.

Dharmista Raval for the respondents submitted that Rule-7.2 of the Examination Rules, 2011 is in consonance with the provisions of Section 46 of the GNLU Act. He submitted that the detention rule which says that students shall have to pass all the subjects to be promoted to the Fourth Year and that no carry over is permitted to Fourth Year is a valid piece of

delegated legislation as the same is covered under matters pertaining to conduct or standard of examinations defined in Section 46(2) of the GNLU Act. The GNLU Act only lays down the broad policy and details are to be worked out by delegated legislation. The said rule is in force in other National Law Universities like the NLSIU Bangalore, NALSAR Hyderabad, NLU Jodhpur, HNLU Raipur and RMLNLU Lucknow. Therefore, the contention raised by the petitioners that the detention rule is arbitrary, illegal and discriminatory is devoid of merits and deserves to be rejected.

21.1

Mr. Mehta submitted that the Examination Rules, 2011 has not been given any

retrospective effect. He submitted that retrospectivity has to be judged on the anvil of when the event occurs. The question is whether today's rule is being made applicable to an event of the past. If the event to which the rule is applied occurs after the coming into force of the rule, then there is no retrospectivity. In the present case, the detention of the petitioners is communicated to them on 26.06.2012 and the detention order has been issued on 11.07.2012. Thus, the event is the detention of the petitioners. The Examination Rules, 2011 are in force since 01.07.2011 and therefore, the event of detention has occurred after coming into force of the Examination Rules, 2011. Therefore, there is no element of retrospectivity as alleged by the petitioners.

21.2

Mr. Mehta submitted that the respondents have the power to detain the petitioners

if such power is otherwise traceable to the Regulations that are applicable. He submitted that mere mention of wrong rule or reference to a rule, which is later found to be not applicable, will not take away the power of the respondents to detain the petitioners. The respondents were under the bona fide and reasonable belief that Examination Rules, 2008, though not approved by the General Council, could be applied. Before the Examination Rules, 2008 could get the approval of the General Council, the 2009 Regulations were approved by the General Council.

21.3

Mr. Mehta further submitted that Rule-66(2)(n) of the 2009 Regulations is identical in

language to Rule 67(n). Thereafter, the 2011 Rules were approved by the General Council and made effective from 01.07.2011. The text of Rule-7.2(b) of the 2011 Rules is also identical to

Rule-67(n) of 2008 Rules and Rule-66(2)(n) of 2009 Regulations. Thus, even if this Court were to come to the conclusion that 2008 Rules, not having been approved by the General Council, cannot be applied, Rule-7.2(b) of 2011 Rules provides for detention. Thus, the source of detention letter dated 26.06.2012 and the detention order dated 19.07.2012 can be traced to Rule-7.2(b) of 2011 Rules. He submitted that substantive elements constituting the detention rule have always been in the University Rules and at no point of time, the Rule has elapsed, except re-numbering. Therefore, the contention raised by the petitioners that the detention rule is invalid is baseless and devoid of any merits.

21.4

Mr. Mehta submitted that the petitioners have not raised any challenge to Rule-7.14

of the Examination Rules, 2011, which stipulates the maximum period within which the student can complete the entire course, which is seven years from the date of admission in the University. He, therefore, submitted that no plea regarding the same may be entertained by this Court.

21.5

Mr. Mehta further submitted that there is no inconsistency or incompatibility with

Rule-7.2(b) and Rule-7.14 of the Examination Rules, 2011. He submitted that even if Rule7.2(b) is applied in a given case, the student would be in a position to complete the course within the time stipulated in Rule-7.14. Therefore, there is no tension between the said two Rules, as is sought to have been made out by the petitioners.

21.6

Mr. Mehta submitted that there is also no challenge to Rule-4.3 of the Examination

Rules, 2011 which prescribes a minimum passing of 40% marks in continuous evaluation and 02 marks for 'goodness' to appear in the end-semester examination. He submitted that there is not a single petitioner in this group of petitions, who is detained on account of non-award of 'goodness' marks. All the petitioners herein have been awarded at least the prescribed minimum of 'goodness' marks. Therefore, the challenge to Rule-4.3 is only academic and this Court may not entertain the same.

21.7

Mr. Mehta further submitted that the petitioners of 2008 batch are estopped from

arguing that detention rule cannot be applied to them since they were already allowed by the respondents to come over to the Fourth Year and are detained in the Fourth Year on account of non-clearance of backlog. He submitted that the detention rule was waived off for them last year when they were found to have backlog of First, Second and Third Year papers. Last year, if the rule had been applied, they would have been detained in the Third year and would not have been allowed to come over to the Fourth year. However, since it was the first year of application of the detention rule, the 2008 batch petitioners were given a special measure relaxation by eliciting an oral undertaking that they would clear the backlog of First, Second and Third Years by the end of the Fourth Year. Hence, the said students cannot be allowed to come over to the Fifth year without first clearing their backlog of First, Second and Third Years.

21.8

Mr. Mehta further submitted that Rule-2 of the Examination Rules, 2011 provides for

attendance requirements. Rule-2.3 says that students failing to obtain 67 per centage attendance in all the subjects in a given semester is prohibited and shall not be allowed to appear in the end semester examination for that semester and will be required to re-admit himself / herself for that year when that is again scheduled to be offered. He submitted that the petitioner of S.C.A. No.10005/2012 did not have the minimum prescribed attendance and therefore, the rule of attendance back was applied on him.

21.9

Mr. Mehta lastly submitted that u/s.42 of the GNLU Act, a student of the University

has to study the Five Years' Course on such terms and conditions as may be prescribed by the Regulations. While taking admission for the course, the student concerned undertakes to abide by the terms and conditions, as may be prescribed by the Regulations. Having agreed for the same while taking admission, it is not open to the petitioners to challenge the legality or propriety of such Regulations. He, therefore, submitted that the present petitions deserve to be rejected.

22.

In support of his submissions, Mr. Mehta has placed reliance upon the following

decisions;

I.

In Punjab University v. Subash Chander and another, (1984) 3 SCC 603, the

Apex Court held that Rule amended prospectively would not be considered to have element of retrospectivity merely because it is applicable also to those to whom preamended Rule was applicable.

II.

In Maharashtra State Board of Secondary and Higher Secondary Education

and another v. Paritosh Bhupeshkumar Sheth and others, (1984) 4 SCC 27, the Apex Court held observed that the question whether a particular piece of delegated legislation whether a rule or regulation or other type of statutory instrument is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Legislature or its delegate. Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act for its efficacious implementation. Any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.

III.

In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission,

Patna and others, AIR 2004 SC 4116, the Apex Court held that in absence of any provision in the rules for re-evaluation of answer books in pursuance of the results declared by Bihar Public Service Commission for the Judicial Services (Competitive) Examination, no candidate would have right to seek re-evaluation of the answer books and that the direction of ordering re-evaluation of marks of the candidates in a particular paper by the High Court was improper.

IV.

In Director (Studies), Dr. Ambedkar Institute of Hotel Management,

Nutrition & Catering Technology, Chandigarh and others v. Vaibhav Singh Chauhan, (2009) 1 SCC 59, the Apex Court in Paras 24 & 27 observed as under;

24. Shri Bhasin, learned counsel for the respondent then submitted that the examination rules were invalid. We have carefully perused the rules and find no invalidity in the same. There is no violation of Article 14 or any other provision of the Constitution or any other statute.

27. Before parting with this case, we would like to refer to the decisions of this Court which has repeatedly held that the High Court should not ordinarily interfere with the orders passed in educational matters by domestic tribunals set up by educational institutions vide Board of High School & Intermediate Education, U.P. Allahabad & another vs. Bagleshwar Prasad & another AIR 1966 SC 875 (vide para 12), Dr. J.P. Kulshrestha & others vs. Chancellor, Allahabad University & others AIR 1980 SC 2141 (vide para 17), Rajendra Prasad Mathur vs. Karnataka University & another AIR 1986 SC 1448 (vide para 7). We wish to reiterate the view taken in the above decisions, and further state that the High Courts should not ordinarily interfere with the functioning and order of the educational authorities unless there is clear violation of some statutory rule or legal principle. Also, there must be strict purity in the examinations of educational institutions and no sympathy or leniency should be shown to candidates who resort to unfair means in the examinations.

V.

In Ashok Kumar Das v. University of Burdwan, (2010) 3 SCC 616 wherein, the

Apex Court in Para-10 observed as under;

10. Section 21 (xiii) of the Burdwan University Act, 1981 is quoted herein below :-

21. Subject to the provisions of this Act, the Executive Council shall exercise the following powers and perform the following functions : (i) to (xii) ......

(xiii) to determine, with the approval of the State Government, the terms and conditions of service of Librarians and non-teaching staff.

The words used in Section 21(xiii) are not with the permission of the State Government nor with the approval of the State Government, but with the approval of the State Government. If the words used were with the permission of the State Government, then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were with the prior approval of the State Government, the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are with the approval of the State Government, the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise.

VI.

In Sanchit Bansal and another v. Joint Admission Board and others, (2012) 1

SCC 157, the Apex Court in Paras 26 & 27 observed thus;

26. This Court has also repeatedly held that the courts are not concerned with the practicality or wisdom of the policies but only illegality. In Directorate of Film Festivals v. Gaurav Ashwin Jain this Court held : (SCC p. 746, para 16)

16. ....Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are Courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review

when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy and not the wisdom or soundness of the policy, is the subject of judicial review.

27. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the Courts will not interfere in such processes. The Courts will interfere only if they find all or any of the following : (i) violation of any enactment, statutory rules and regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious.

VII.

In N.K. Bajpai v. Union of India and another, (2012) 4 SCC 653, the Apex

Court in Paras 60, 64 & 66 observed as under;

60. One must clearly understand a distinction between a law being enforced retrospectively and a law that operates retroactively. The restriction in the present case is a clear example where the right to practise before a limited forum is being taken away in praesenti while leaving all other forums open for practise by the appellants. Though such a restriction may have the effect of relating back to a date prior to the praesenti. In that sense, the law stricto sensu is not retrospective, but would be retroactive. It is not for the Court to interfere with the implementation of a restriction, which is otherwise valid in law, only on the ground that it has the effect of restricting the rights of the people who attain that status prior to the introduction of the restriction. It is certainly not a case of settled or vested rights, which are incapable of being interfered with. It is a settled canon of law that the rights are subject to restrictions and the restrictions, if reasonable, are subject to judicial review of a very limited scope.

64. Earlier, the nature of law, as substantive or procedural, was taken as one of the determinative factors for judging the retrospective operation of a statute. However, with the development of law, this distinction has become finer and of less significance. Justice G.P. Singh, in his Principles of Statutory Interpretation (12th Edition., 2010) has stated that the classification of a statute, as either a substantive or procedural law, does not necessarily

determine whether it may have retrospective operation. For example, a statute of limitation is generally regarded as procedural, but its application to a past cause of action has the effect of reviving or extinguishing a right to sue. Such an operation cannot be said to be procedural. It has also been noted that the rule of retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time antecedent to the passing of the relevant law. For these reasons, the rule against retrospectivity has also been stated, in recent years, to avoid the classification of statutes into substantive and procedural and the usage of words like existing or vested.

66. In such matters, in judiciously examining the question of retrospectivity or otherwise, the relevant considerations include the circumstances in which legislation was created and the test of fairness. The principles of statutory interpretation have expanded. With the development of law, it is desirable that the Courts should apply the latest tools of interpretation to arrive at a more meaningful and definite conclusion.

23.

Before we embark upon the merits of the case, a reference to Section-46 of the

GNLU Act is apposite, which reads thus;

46. Supplementary Provisions : (1) The Executive Council may make regulations consistent with the

provisions of this Act to provide for the administration and management of the University. (2) The Executive Council shall not make, amend or repeal any regulation

affecting all or any of the following matters without the prior concurrence of the Academic Council, (a) the determination of authorities for organizing teaching

relating to syllabus and academic programmes; (b) the withdrawal of degrees, diplomas, certificates and other

academic distinctions; (c) the establishment and abolition of Faculties, Departments

and specialized schools, centres of learning and research, and halls of residence;

(d)

the institution and award of fellowships, scholarships,

studentships, exhibitions, medals and prizes; (e) conditions and modes of appointment of examiners, conduct

or standard of examinations and course of study; (f) (g) modes of enrollment or admission of students; examinations of other University to be recognized as

equivalent to University examination. (3) The Academic Council may propose to the Executive Council to make

regulations on all or any of the matters specified in clauses (a) to (g) and matters incidental or related thereto. (4) Where the Executive Council has rejected any regulation proposed by

the Academic Council, the Academic Council may appeal to the Visitor, and the Visitor may, by order, direct that the proposed regulation may be laid before the next meeting of the General Council for its approval and that pending such approval of the General Council, such regulation shall have effect from such date as may be specified in the order. Provided that where the regulation is not approved by the General Council at such meeting, it shall cease to have effect. (5) (i) All regulations made by the Executive Council shall be

submitted to the General Council and to the Visitor for approval. (ii) (iii) The General Council may, by resolution, approve the regulations. The Visitor may approve the regulation and the regulation so

approved shall remain in force till the date on which it is approved or disapproved by the General Council.

24.

On a plain reading of Sub-section (1) of Section-46, it is clear that Executive Council of

the University is empowered to make regulations, which are consistent with the provisions of the GNLU Act, for the purpose of administration and management of the University. In other words, the rule-making power contemplated u/s. 46(1) of the GNLU Act has to be exercised

having regard to the subject-matter, the scheme, the provisions of the Statute, including its preamble and the factual and circumstantial background of its enactment. Such rule-making power is ancillary to the statutory function entrusted to the competent authority in the University by Section 46 and it cannot travel beyond the said statutory sphere. By including the term consistent in the provision, the legislature intended that Regulations so framed should supplement the provisions of the enabling Act instead of supplanting it. Therefore, it is expedient that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act.

25.

Section 46(3) of the GNLU Act provides that the Academic Council may propose to

the Executive Council to make regulations on all or any of the matters specified in clauses (a) to (g) and matters incidental or related thereto. The Academic Council is the academic body of the University and is vested with the powers to control, regulate and maintain standards of instruction, education and examination of the University and to advice the Executive Council on academic matters. The draft regulations so proposed by the Academic Council of the University is placed before the Executive Council, which is the chief executive body of the University. On receipt of such draft regulations, the Executive Council shall either approve or reject it. In case of rejection of the draft regulations, the Academic Council has the remedy of filing an appeal before the Visitor u/s.46(4) of the GNLU Act and if the Executive Council approves the draft regulations so proposed by the Academic Council, then the same is placed before the General Council, which is the apex body of the University. On approval by the General Council u/s. 46(5) of the GNLU Act, the draft regulations attain statutory value in the eyes of law. The Regulations so framed are supporting legislations and have the force and effect, if validly made, as an Act passed by the competent Legislature.

26.

In this background, we shall now consider the Regulations framed by the University

from time to time and which have been made applicable to students admitted during different academic years. The first such Regulations pertaining to exams were framed in the year 2006, under the nomenclature of Regulation-66. For our convenience, we shall term it as the Examination Rules, 2006.

26.1

In the said Rules of 2006, necessary provisions were made for attendance, break-

up of maximum marks in each subject, promotion scheme, etc. The Examination Rules, 2006 were approved by the Academic Council on 28.01.2006, by the Executive Council on 04.02.2006 and by the General Council on 09.02.2006.

26.2

Here, it would be relevant to refer certain provisions of Rule-2 of Regulation-66,

which are as under;

(2)

Promotion Scheme for the Undergraduate Programme : (a) (b) GNLU offers 12 subjects in a year. In order to be promoted to the next year, a student must obtain at

least a 'C' grade in at least six subjects taught in a year. (c) If a student fails to obtain 'C' grade in at least six subjects taught in

one year, he / she shall not be promoted to the next year. He / she shall repeat the year after seeking re-admission to the same class, on payment of the yearly fees according to the fees structure (except deposit) of the year. (d) to (f) ..... (g) If a student is failed in less than six subjects in a year, he / she shall

re-register for Repeat Backlog Examination. (h) The Repeat Backlog Examination in a subject shall be conducted only

when the said subject is next offered in due course. (i) to (m) ..... (n) Student shall have to pass all the subjects to be promoted to the IV

Year. No carry over is permitted to the IV Year. (o) The Maximum period within which a student can complete the entire

course shall be eight years.

27.

The Examination Rules, 2006 specifically provide by way of Rule-2(b) of Regulation-66

that a student must obtain at least a 'C' grade in at least six subjects taught in a year in order to be promoted to the next year. Rule-2(n) provides that the student shall have to pass all the subjects to be promoted to the IV Year and that no carry over is permitted to the IV Year. Whereas, Rule 2(o) provides that the maximum period within which a student can complete the entire course shall be eight years. Thus, for passing an academic year, a student has to obtain at least a 'C' grade in at least six subjects taught in a year and that in order to be promoted to the Fourth Year the student shall have to clear all the subjects of the Third Year.

28.

While the Examination Rules, 2006 were in force, respondent no.1-Director brought

in another set of Rules in the name of Examination Rules, 2008 (Part-A) and Examination Rules, 2008 (Part B). The Part-A Rules were made applicable to students of all Batches admitted between the year 2004 to 2007 whereas, the Part-B Rules were made applicable to students of all Batches admitted from the year 2008 onwards. Both the above Rules were approved by the Academic Council in its Meeting held during 28th - 29th June, 2008 and both the Rules were made effective from 31st July 2008. Both the Rules contained provisions regarding attendance, break-up of marks, promotion scheme, etc.

29.

In the memo of petition, a specific averment has been made that neither of the Rules

of 2008 have been approved by the Executive Council or the General Council of the University. However, in the affidavit-in-reply filed by the respondents, a specific averment has been made in Para-11 that both the above Examination Rules of 2008 have been approved by the Executive Council and ratified by the General Council. But, subsequently, when the Court directed the respondents to produce on record, by way of additional Affidavit, the Minutes of the Meeting of the Executive Council and the General Council where the Examination Rules, 2008 were formally approved, as required u/s.46(5) of the GNLU Act, the respondents filed further Affidavit dated 21.09.2012 wherein, in Para-1, it has been averred as under;

1.

The detention order passed by GNLU to 2008 batch and 2009 batch

students quoted Rule 67(n) of the 2008 Rules (Applicable for 2008 batch onwards). It may be noted that before the General Council could approve the

2008 rules, the 2009 regulations were made containing the major features of the Examination Rules, 2008 (Applicable for 2008 batch onwards) and were later approved by the requisite statutory bodies.

30.

Thus, from the Affidavit filed by the respondents, it is established that Examination

Rules, 2008 were not approved by the General Council of the University. Under such circumstance, both the so-called Examination Rules, 2008 could, at the most, be termed as draft rules and not Regulations having any statutory force since the said rules were neither approved by the Executive Council nor by the General Council of the University.

31.

At this stage, it is required to be noted that the petitioners of S.C.A. No.9914/2012,

9915/2012, 9974/2012, 10532/2012, 10536/2012 & 10005/2012, on whom the so-called Examination Rules, 2008 (For Batches admitted from 2008 onwards) were made applicable, were detained by invoking the provision of Rule-67(n) of the said Rules, which provided that Student shall have to pass all the subjects to be promoted to the IV Year. No carry over is permitted to the IV Year. Now, when it was well within the knowledge of the respondents that the Examination Rules, 2008 had no statutory force for the reason of it being not approved by the General Council, then it ought not to have been invoked. Having committed the act, it is now not open to the respondents to plead it a clerical error or otherwise.

32.

In Para-2 of the Further Affidavit dated 21.09.2012 filed by the respondents, it has

been averred as under;

2.

In 2009 regulations, the detention rule is contained in 66(2)(n). The

text of 66(2)(n) and that of 67(n) is identical. Likewise, the Examination Rule, 2011 have a similar detention provision in 7.2(b). The text of 7.2(b) of the Examination Rule, 2011 and that of 67(n) of the Examination Rule, 2008 (Applicable for 2008 batch onwards) is identical.

33.

Respondent no.1 is a statutory authority under the GNLU Act. When a statutory

functionary makes an order based on certain grounds, its validity has to be judged by the reasons so mentioned and it cannot be supplemented by fresh reasons in the shape of an Affidavit or otherwise. If the same is permitted, then an order, which may be bad in the beginning, may, by the time it comes to the Court by way of a challenge, gets validated by additional grounds later brought out. Mere acknowledgment that it was a clerical error and that it would not make much difference for the reason that detention rule 67(n) is identical to the subsequent rules would not make good or justify the action of respondent no.1. Being a statutory authority under the GNLU Act, it is expected that the authority discharges its duties diligently and within the statutory sphere. The respondent-authority has not come out with any valid justification in support of its action. Under these circumstances, the very applicability of the provision of Rule-67(n) of the so-called Examination Rules, 2008 on students of both the Batches, viz. from Batches admitted from 2004 to 2007 and from Batches admitted from 2008 onwards, is without any legal basis and does not have any statutory force.

34.

The respondents have framed two sets of rules for all Batches admitted between

2004 to 2007 and for Batches admitted from 2008 onwards. The first set of Rules were made applicable to students of all Batches admitted between 2004 to 2007, whereas, the second set of Rules were made applicable to students of all Batches admitted from 2008 onwards.

35.

Firstly, we shall look at the Rules regarding promotion, as stipulated in the so-called

Examination Rules, 2008, which were made applicable to students of all Batches admitted between 2004 to 2007. The said promotion rules are contained in Rule-67, which reads as under;

67.

Promotion Scheme for the Undergraduate Programme : (a) (b) .... The maximum duration within which a student shall complete the

Undergraduate Programme is seven years. A student shall cease to be on the rolls of the University after seven years of first admission through the

Entrance Test. (c) A student shall clear all the papers including backlog papers within

five years while in residence at the University, or at any rate within seven years of joining the University: Provided that at the end of the fifth year he / she shall not reside in the campus; Provided further that at the end of the seventh year a student shall stand de-enrolled for the Under-Graduate Programme. (d) to (i) ....

35.1

From the provision of Rule-67, it is clear that the student concerned has to clear the

course within seven years and that the student ceases to be on the rolls of the University after seven years of first admission through the Entrance Test. The student has to clear all the papers, including backlog papers, within five years while in residence at the University or at any rate within seven years of joining the University provided that at the end of the fifth year he / she shall not reside in the campus.

35.2

The simple meaning of sub-rules (b) & (c) of Rule-67 is that the student who enters

the college has to clear his course within seven years. No where it is provided that if the student fails, his registration will be cancelled or that his enrollment will be cancelled. On the contrary, sub-rule-(c) of Rule-67 provides that the student has to clear all the papers, including backlog papers, within five years while in residence at the University or at any rate within seven years of joining the University. Thus, in the above Rules, there is no provision of detention.

36.

The second part of the so-called Examination Rules, 2008 were made applicable to

students of all Batches admitted from the year 2008 onwards. Rule-67 of the said rules pertain to Promotion and it reads as under;

67.

Promotion Scheme for the Undergraduate Programme : (a) (b) .... In order to be promoted to the next year, a student must obtain at

least a 'C' grade in at least six subjects taught in a year. (c) If a student fails to obtain 'C' grade in at least six subjects taught in

one year, he / she shall not be promoted to the next year. He / she shall repeat the year after seeking re-admission to the same class, on payment of the yearly fees according to the fees structure (except deposit) of the year. (d) to (m) .... (n) Student shall have to pass all the subjects to be promoted to the IV

Year. No carry over is permitted to the IV Year. (o) The maximum period within which a student can complete the entire

course shall be eight years.

36.1

Rule-67(b) provides that a student must obtain at least a 'C' grade in at least six

subjects taught in a year in order to be promoted to the next year, meaning thereby, that even if a student is failed in less than six subjects in a year but, secures at least a 'C' grade in the remaining six, out of the total twelve subjects, then such student shall be promoted to the next year, after he/she re-registers for the Repeat Backlog Examination to be conducted when such subject/s is next offered in due course. Whereas, Rule-67(n) provides that a student shall have to pass all the subjects to be promoted to the IV Year and that no carry over is permitted to the IV Year. Both Rule-67(b) and Rule-67(n) cannot travel together since they are conflicting to each other. When Rule-67(b) provides that for promotion to the next year a student has to obtain at least a 'C' grade in at least six subjects taught in a year, then another provision in the form of Rule-67(n) could not have been included with the stipulation that the student shall have to pass all the subjects to be promoted to the Fourth Year. Both Rule-67(b) and Rule-67(n) cannot go together.

37.

In the case of the petitioners of S.C.A. No.9914/2012, 9915/2012, 9974/2012,

10532/2012, 10536/2012 & 10005/2012, the respondents have invoked Rule-67(n) of the

Examination Rules, 2008. The petitioners of S.C.A. No.9914/2012, 9915/2012, 9974/2012 & 10532/2012 have been detained from promotion to the Fifth Year on the ground that they have failed to clear all the subjects of the Fourth Year. Whereas, the petitioner of S.C.A. No.10005/2012 has been detained on the ground that he was not having the minimum required days of attendance in College.

38.

On 01.09.2009 the University notified another set of Regulations in the form of GNLU

Regulations, 2009. The said Regulations were approved by the Academic Council on 25.08.2009, by the Executive Council on 27.08.2009 and by the General Council on 27.03.2010. In the 2009 Regulations also, the detention rule finds place in the form of Rule66(2)(n), which is identical to Rule-67(n) of the so-called Examination Rules, 2008. The petitioners of S.C.A. No.9911/2012, 9912/2012 & 10751/2012 have been detained by invoking Rule-66(2)(n) of the 2009 Regulations.

39.

It appears from the record that the respondents have also framed another set of

Rules in the year 2011 under the nomenclature of Examination Rules, 2011 effective from 01st July, 2011. These Rules have been approved by the Academic Council on 17.07.2011, by the Executive Council on 22.07.2011 and by the General Council on 21.01.2012.

40.

In the Examination Rules, 2011 also, there is a rule of detention in the form of Rule-

7.2(b), which is identical to Rule-67(n) of the so-called Examination Rules, 2008 and Rule66(2)(n) of the 2009 Regulations. For ready reference, sub-rule-7.2 of Rule-7 of the Examination Rules, 2011, which pertains to Detention is reproduced hereunder;

7.2 Detention : (a) Student shall secure D grade (2010 batch onwards) and C grade

(2007-2009 batch) in at least eight subjects taught in one year to be eligible to be promoted to the next year. He / She shall repeat the year after seeking re-admission to the same class, on payment of the yearly fees according to the fees structure (except deposit) of the year.

(b)

Student shall have to pass all the subjects to be promoted to the IV

Year. No carry over is permitted to the IV Year.

41.

The petitioners have challenged the legality and impropriety of the aforesaid action

of the respondents of invoking the detention rule against them by mainly contending that the power to detain does not derive its source from the GNLU Act. However, learned counsel for the respondents emphasized that the source of power could be classified as a piece of delegated legislation. There is no disagreement on the position of law that Rules and Regulations are all comprised in delegated legislation. However, the power to make subordinate legislation is derived from the enabling Act. The delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and thereafter, leave it to the agency to work out the details within the framework of policy. The GNLU Act, in Section-46, provides for the framing of Regulations, which are consistent with the provisions of the Act, to provide for the administration and management of the University. If the Regulations are inconsistent with the provisions of the GNLU Act, then it would suffer from excessive legislation.

42.

It is well-settled that the question whether any particular legislation suffers from

excessive delegation has to be decided having regard to the subject-matter, the scheme, the provisions of the statute, including its preamble and the facts and circumstances in the background of which the statute is enacted. Considering the object of the GNLU Act in a broader perspective, it appears that the framers of the GNLU Act never intended to get such rule of detention run through the ranks of the University. This Court is mindful of the fact that it is expedient in the field of education to maintain necessary checks and balances, at different levels, for the purpose of achieving high standards of learning.

43.

When provisions regarding promotion in the form of Rules-66(2)(b) & 66(2)(c) in the

2009 Regulations and Rule-7.2(a) in Examination Rules, 2011 already find place in the Regulations / Rules, there should not be any place for a rule like the rule of detention, lest, it would amount to duplicating the provisions of promotion. In my opinion, the rule of

detention can be retained in the Examination Rules but, not in the present form. It should be modified suitably so as to be consistent with the provisions of Section-46 of the GNLU Act.

44.

The next aspect is whether the Examination Rules framed by the respondents have

retrospective effect or not. As discussed herein above, it is an established fact that the socalled Examination Rules, 2008 were not approved by the General Council of the University and therefore, it could not be termed as 'Regulations' u/s.46 of the GNLU Act and thereby, do not have any statutory existence. However, for deciding the issue whether the Examination Rules have retrospective effect or not, we shall first look at the dictionary meaning of the term Retrospective. According to the Shorter Oxford English Dictionary, Third Edition, the term Retrospective in relation to statutes etc. means operative with regard to past time. The Examination Rules no where state that it shall be operative with effect from any earlier date. In fact, it is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act. Having read the Rules, I do not find any element of retrospectivity in it. All that is evident is that the Rules shall come into force with effect from the dates mentioned therein. It would, therefore, come into effect from the said dates only and not retrospectively, as has been canvassed before this Court by the learned counsel appearing on behalf of the petitioners.

45.

There is serious discontent amongst the petitioners on introduction of a new rule in

the form of Rule-4 titled Continuous evaluation and End-Semester Examinations in the Examination Rules, 2011 made effective from 01st July, 2011. In this proceeding, we are concerned with Rule-4.3 of Rule-4, which reads as under;

Rule-4 : Continuous evaluation and End-Semester Examinations.

4.3.

Only those students who have secured a minimum passing 40%

marks in continuous evaluation and have obtained 2 marks in Goodness are eligible to appear in the end-semester examination. If any student, misses surprise test, for authorized medical reasons, proportionate marks shall be awarded from the overall marks obtained in the continuous evaluation. It

shall be student's responsibility to ensure that he / she has secure minimum qualifications and obtain information thereto, to appear in the end-semester examination.

46.

A plain reading of Rule-4.3 of Rule-4 makes it clear that the student has to secure a

minimum passing 40% marks in continuous evaluation and also has to secure 02 marks under the head of Goodness in order to become eligible to appear in the End-semester Examination. In other words, if a students secures the minimum passing 40% marks in continuous evaluation but, fails to get 02 marks for Goodness, then he would become ineligible to appear in the End-semester Examination, even if such student has secured more than 90% marks in continuous evaluation. By including 02 marks under the head of Goodness, which a student has to secure in order to become eligible to appear in the Endsemester Examination, the respondent no.1 has vested a discretionary power in the Faculty Members, which, under certain circumstances, could be exercised in a discriminatory manner, if a student concerned is not in the good books of a particular Faculty Member. Thus, such discretionary power could become a discriminatory power in the hands of the Faculty Members and it could have very damaging effect, if such discretionary power is not exercised in a judicious manner.

47.

Rule-4.3 is good so far as it provides for securing a minimum passing 40% marks in

continuous evaluation in order to become eligible to appear in the End-semester Examination. However, by including the condition that a student also has to secure 02 marks as Goodness, over and above the minimum passing 40% marks in continuous evaluation, the respondents have given a tool in the hands of the Faculty Members, which could be used by them at their own whims and caprice. Such discretionary power in the hands of the Faculty Members would make the atmosphere of the College like a Circus where everything would be under the command and control of the Faculty Members and the students would refrain from sharing their point of view in the class-room with the fear that if their view-point annoys the Faculty Member, then it would come against them at the time of awarding the goodness marks. Such discretionary power is against the spirit of education.

48.

There is nothing wrong in making a provision whereby 02 marks are awarded for

Goodness but, such marks should not be in the form of mandatory requirement for appearing in any Examination. Where a mandatory requirement exists, discrimination begins to raise its head. Such discretion on the Faculty Member may create a chaotic situation amongst the students of a particular Batch when the power is exercised in favour of some students and is refrained in case of others.

49.

This Court is cautious of the fact that it cannot act as appellate authority examining

the correctness, suitability and appropriateness of a policy. However, under judicial review, the Court can check whether the policy violates the fundamental rights of citizens or is opposed to the provisions of the Constitution or is opposed to any statutory provision or is manifestly arbitrary. If it is found that a policy so framed is violative of any statutory enactment or is arbitrary and capricious, then Courts could definitely express their opinion. In this case, the provision to compulsorily obtain 02 marks for Goodness in order to become eligible to appear in the End-semester Examination could lead to a situation where a meritorious student may lose his academic year, if he is not awarded 02 marks for goodness by the Faculty Member on account of vendetta of any kind. Therefore, the provision regarding Goodness, which finds place in Rule-4.3 of the Examination Rules, 2011, deserves to be quashed and set aside.

50.

At this stage, we shall now look at another provision of the Examination Rules, 2011,

which also pertains to Promotion. If Rule-4.3 provided for the fulfillment of two conditions in order to become eligible to appear in the End-semester Examination, there is another rule in the form of Rule-4.7, which provided for the condition to clear a subject. For ready reference, Rule-4.7 is reproduced here under;

4.7

In order to clear a subject, a student shall secure a minimum of 40%

marks in the End-semester Examination.

51.

It appears that subsequently said Rule-4.7 was amended by the respondents and the

amended Rule reads as under;

4.7

In order to clear a subject, a student shall secure a minimum of 40%

marks in the subject.

52.

Without entering into the aspect whether the aforesaid amendment was effected

with prior or post-facto approval of the competent body under the GNLU Act or not, one thing is clear that the respondents have acted in a discriminatory and arbitrary manner by applying the Examination Rules differently to students of the same Batch. It appears from the record that on 23.06.2012 the respondents had published a list of 58 students on the Website of the University who were detained from promotion to the next academic year. However, subsequently, the names of 21 students were removed from the said list on the ground that they had secured additional marks during re-evaluation or were granted Goodness marks or were successful in the subsequent examination, which they were permitted by the respondents to appear.

53.

In the memo of petition, the petitioners have given the names of certain students,

who originally figured in the detention list dated 23.06.2012 published by the University but, whose names were subsequently removed from the said list. Such students have been declared successful on the ground that their marks had increased in re-evaluation or that they were granted Grace Marks. The petitioners have also cited an instance where one student of the 2009-2014 Batch, who had not attended the entire Semester and thereby, was not having the minimum required percentage of attendance as per the Examination Rules, 2011, was, in fact, declared successful in the examination by acceptance of his assignments of the First Semester in the Sixth Semester.

54.

Here, a reference to the provision of Rule-6.2(f) of the Examination Rules, 2011 is

apposite, which reads thus;

6.2

Periodical Evaluation :

(f).

After final submission of the continuation evaluation marks to the

Examination Department, no marks for the same will be added except as authorised by the Dean of Academic Affairs.

54.1

The petitioners have drawn my attention to many instances where respondent no.1,

in the name of Examination Committee, has cleared students, whose names originally figured in the detention list. Such students range from the 2008-2013, 2009-2014, 2010-2015 and also 2011-2016 Batches. Rule-20 of the Examination Rules, 2011 pertains to Re-Evaluation of End-Semester Examinations. Rule-20.4 therein is relevant for our purpose and for ready reference it is reproduced hereunder;

20.4 In the event of re-evaluation, no change in the marks obtained shall be made, unless the difference between the marks allotted before the reevaluation and those after re-evaluation is at least 05% of the pre-reevaluation marks. After re-evaluation the higher score obtained shall be final.

54.2

The aforesaid Rule-20.4 specifically provides that no change in the marks obtained

shall be made unless the difference between the marks allotted before the re-evaluation and those after re-evaluation is at least 05% of the pre-re-evaluation marks. From the document produced vide Annexure R-VIII to the Reply filed by the respondents to the amended petition, it appears that about four marks have been awarded under re-evaluation and that to with 01 mark as Grace Mark. Rule-20.4 no where provides for Grace Marks. However, by exercising discretion, the students named in the said document have been cleared in the exams by the respondents.

55.

On the aspect of Re-Evaluation, it is necessary to consider another provision of

Rule-20 of the Examination Rules, 2011. Rule-20.2 of the said Rules reads as under;

20.2 The Director, in consultation with the Examination Committee, shall

appoint a faculty member other than the subject teacher or an external examiner for the purpose of re-evaluation in each subject.

55.1

The above Rule provides that in the event of re-evaluation of paper in any subject,

the Director, respondent no.1 herein, is empowered to appoint a faculty member, other than the subject teacher, or an external examiner to carry out the work of re-evaluation. The Rule specifically provides for the appointment of an external examiner to do the work of reevaluation.

55.2

The notable aspect is that the power to make such appointment is vested with the

Director of the University. In case an external examiner is not appointed, for whatever reasons it might be, then such work is done by a faculty member, other than the subject teacher, who shall be appointed by respondent no.1-Director, in consultation with the Examination Committee. Therefore, the final authority to appoint a person for doing reevaluation is the Director. When power is vested in one person, then chances of its misuse remain high. In the present case, the respondent no.1-Director had definite influence over the entire procedure of re-evaluation, which has proved detrimental to the students. In my opinion, the process of re-evaluation should be such that the papers should be examined by a Committee consisting of faculty members, not involving the subject teacher, and the papers should be circulated to the faculty members of such Committee randomly for carrying out the work of re-evaluation or by an external examiner, having the subject sought to be reevaluated, as his principal subject of teaching.

56.

The copy of the E-mail dated 10.07.2011 sent by respondent no.1 to the students of

2008 Batch and their parents is self-explanatory. The relevant portion of the E-mail is reproduced here under;

Following our discussion today, GNLU will implement the following; 1. Students who remained detained in 2008 batch will be admitted to the 7th

Sem (IVth Year).

2.

They will get a chance to clear their backlog of papers belonging to odd

semester in the 7th Sem. 3. They will get a chance to clear their backlog of papers belonging to even

semester in the 8th Sem. 4. to 8. .....

56.1

The above Mail has been sent to 21 such students, who were originally named in the

detention list published on 23.06.2012. The action of the respondents of permitting 21 students to be admitted to the Fourth Year, by waiving the rule of detention, smells of discrimination and arbitrariness. There was no legal authority or valid justification with the respondents which authorized them to promote nearly half of the students detained to the Fourth Year and to detain the rest of them. The action of the respondents is arbitrary, illegal, discriminatory and violative of the statutory provisions of the GNLU Act.

57.

In matters pertaining to education where decisions are largely based on policies,

Courts have a very limited scope. Earlier, the maximum period within which a student was required to complete the entire course was eight years. In the 2009 Regulations also, the said duration remained unchanged. However, in the Examination Rules, 2011, the duration was reduced by one year and the students were required to complete the entire course in Seven Years. Rule-7.14 of the Examination Rules, 2011 provide that the maximum period within which a student can complete the entire course shall be seven years from the date of admission at the GNLU. In my opinion, the said Rule of duration is in conflict with the Rule of detention inasmuch as if a student is detained during any academic year, then he / she would not be in a position to complete the course within the period of Seven Years. The GNLU Act does not authorize the respondents to frame Regulations, which are against the essence of Section-46 read with Section-42 of the said Act. Hence, Rule-7.14 of the Examination Rules, 2011 deserves to be struck down.

58.

The rule of detention also requires re-consideration for the reason that it requires the

students to pass all the subjects to be promoted to the IV Year. If, for certain unknown

reasons, a student fails to appear in any one paper of the End-semester examination of the Third Year, then he / she shall lose the entire academic year on account of the provision contained in the rule of detention that the student has to clear all the subjects. Specific Rules can be framed for the administration and management of the study course. However, such Rules should be in consonance with the provisions of Section-46 read with Section-42 of the GNLU Act and such Rules should not be in conflict inter se. In my opinion, the provision of Rule-7.14 of the Examination Rules, 2011 is not in consonance with the provisions of Section46 of the GNLU Act and hence, it deserves to be quashed and set aside.

59.

The respondents have detained the petitioners of S.C.A. No.9915/2012 & 10005/2012

on the ground of attendance back. The provision regarding Attendance Requirements can be found in Rule-2 of the Examination Rules, 2011, wherein Rule-2.3 reads as under;

2.3

Students failing to obtain 67% attendance in all the subjects in a

given semester (either odd or even) is prohibited and shall not be allowed to appear in the End Semester Examination for that semester and will be required to re-admit him / her self for that year, when it is again scheduled to be offered.

59.1

The above Rule is similar to the rule of detention, as appearing in Rule-7.2(b) of the

Examination Rules, 2011 in the sense that it provides for detention of a student on the ground of his / her failure to obtain 67% attendance in all the subjects in a given semester. Rule-7.2(b) provides for detention of a student in the Third Year for his failure to pass all the subjects whereas, Rule-2.3 provides for detention of a student for his failure to obtain 67% attendance in all the subjects in a given semester. Therefore, the resultant effect is that the student is detained in the same Academic Year.

59.2

In my opinion, attendance in College could not be compromised, except under

exceptional circumstances, as may be prescribed under the Rules. If attendance in a classroom is compromised in any way, then it would lead to compromising the quality of

education that a student gets. Attendance in a class-room helps in the overall growth and development of a student as a citizen. For imparting education in a proper and efficient manner, attendance is a must in any educational institution. There is nothing wrong in demanding minimum percentage of attendance from the students as a condition to appear in the examination. If such conditions are not framed, then it would be very difficult to secure attendance of the students. Rule-2 of the Examination Rules, 2011 asks for 67% attendance in all the subjects in a given semester, which, in my opinion, is reasonable and appropriate. If the percentage of attendance is further reduced, then it would not serve the purpose of conducting a resident Five Years' Course and students would bungle the College on one ground or the other. Therefore, the provision requiring minimum 67% percentage attendance in all the subjects in a given semester in order to appear in the end semester examination is just, legal, reasonable and appropriate and I find no reasons to disturb the same.

60.

In view of the above discussion, this Court has come to the following conclusion;

60.1

The action of the respondents of detaining the students from promotion to

the next academic year by invoking the provisions of Rule-67(n) of the so-called Examination Rules, 2008 is illegal, improper and violative of the statutory provisions under the GNLU Act. The Examination Rules, 2008 cannot be termed as 'Regulations' within the meaning of Section 46 of the GNLU Act for the reason that the said Rules were neither placed before nor approved by the General Council of the University.

60.2

So far as the rule of detention in the Examination Rules, 2011 is concerned,

which finds place in the form of Rule-7.2(b), this Court is mindful of the fact that the said Rules have been approved by the General Council of the University. However, for reasons recorded in the earlier part of this judgment regarding applicability of the rule of detention, it appears to be necessary that the apex body of the University reviews the rule of detention as it makes the other rules regarding promotion redundant.

60.3

The condition to secure 02 marks for Goodness, over and above the

minimum passing 40% marks in continuous evaluation, as prescribed in Rule-4.3 of the Examination Rules, 2011, may give rise to discrimination and arbitrariness resulting into discontent amongst the students. This Court is of the view that if the condition to secure minimum passing 40% marks in continuous evaluation in order to become eligible to appear in the End-Semester Examination is sustained and the further condition to secure 02 marks for Goodness is quashed, the same should serve the purpose. Therefore, the further condition provided in Rule-4.3 of securing 02 marks for Goodness is required to be quashed and set aside.

60.4

Rule-7.14 of the Examination Rules, 2011, which provides that a student has

to complete the entire course within the maximum period of seven years from the date of admission at the University, is against the essence of Section-46 of the GNLU Act and therefore, the said Rule is also required to be quashed and set aside.

61.

For the foregoing reasons, writ petitions being S.C.A. Nos.9911/2012, 9912/2012,

9914/2012, 9915/2012, 9974/2012, 10532/2012, 10536/2012 & 10751/2012 are partly allowed and; (I) The impugned communications sent to the petitioners by the respondents,

via E-mail dated 25.06.2012, 26.06.2012, 19/20.07.2012 are quashed and set aside and the respondents are directed to permit the petitioners to appear in their respective backlog papers of the End-semester on payment of usual Fees in the next ensuing Odd / Even End-Semester Examination.

(II)

The additional condition specified in Rule-4.3 of the Examination Rules, 2011,

which provides that the student has to secure Goodness marks in order to become eligible to appear in the End-semester Examination, is quashed and set aside.

(III)

Rule-7.14 of the Examination Rules, 2011, which provides that a student has

to complete the entire course within the maximum period of seven years from the

date of admission at the University is also quashed and set aside.

(IV)

The respondents shall place the issue regarding applicability of the Rule of

Detention, which finds place in Rule-7.2(b) of the Examination Rules, 2011, before the General Council of the University for reconsideration. (V) The Re-evaluation of papers shall be done by an External Examiner, having

the subject sought to be re-evaluated, as his principal subject of teaching.

(VI)

The University shall give the benefits flowing from this judgment to all

students who have been detained.

(VII)

It is held that Examination Rules, 2011, which have been made effective from

01st July 2011, do not have any retrospective effect and henceforth, it shall uniformly apply to the students of all Batches studying at the University.

(VIII)

The provision regarding Attendance Requirements in Rule-2 of the

Examination Rules, 2011 are not disturbed and accordingly, it may be made applicable to the students concerned. Rule is made absolute to the above extent in the above petitions. No order as to costs.

61.1

Writ petition being S.C.A. No.10005/2012 is dismissed. Rule is discharged.

[K. S. JHAVERI, J.] Pravin/*