K.N.Seth, J. - (1.) THE scope and ambit of the power of the Vice-Chancellor under sub-section (5) of Section 10 of the Kanpur and Meerut Universities Act, 1965, is the only question involved in this appeal.
(2.) THE petitioner was a student of the Ishwar Dayal Parsandi Devi Degree College, Bulandshahr, affiliated to the Meerut University. He joined the college in July, 1971, and offered Botany, Chemistry and Zoology as the subjects for the B.Sc. Degree. The existing ordinance required that a candidate must obtain 20% marks in each subject in theory and practical separately and 33% in the aggregate in order to secure a pass. The marks secured by the petitioner entitled him to be declared successful if the existing ordinance governed his case. Before the academic session started in July, 1971, the Vice-Chancellor, in exercise of the power conferred on him by Section 10 (5), passed an order on 30th June, 1971, amending the existing ordinance. The amended ordinance provided that the pass percentage of 33% or 36% (as the case may be) be required both in the Theory and practical separately. The amended provisions came into force with effect from July 1, 1971. In view of the amended ordinance, the petitioner was declared unsuccessful at the B.Sc. Examination. There is no dispute that, if the amended ordinance applied to the case of the petitioner, he did not secure pass marks. Learned counsel for the appellant contended that sub-section (5) of S.10 of the Act did not confer ordinance making power on the Vice-Chancellor and was confined only to executive, administrative and disciplinary functions of the Vice-Chancellor. Section 10 (5) reads as follows:- "Where any matter is of urgent nature requiring immediate action and the same cannot be immediately dealt with by the officer or Authority empowered by or under this Act to deal with it, the Vice- Chancellor may take such action as he may deem fit and shall forthwith report the action taken by him to the Chancellor and also to the Executive Council, and such Executive Council may either confirm the action taken by the Vice-Chancellor or rescind the same or modify it in such manner as it may deem fit. In case the action taken by the Vice-Chancellor is rescinded or modified, it shall cease to have effect or taken effect in the modified form from the date it is so rescinded or modified." It was contended that under the Act power to frame ordinance is vested in the Executive Council and a detailed procedure in that respect has been laid down in Section 33 of the Act. It was urged that as the power to frame the ordinance vested in the Executive Council, it impliedly ruled out the existence of such a power in the Vice-Chancellor. We are not impressed by this argument. There is nothing in Section 33 or in sub-section (5) of Section 10 to warrant a conclusion that the power of the Vice-Chancellor under sub-section (5) of Section 10 does not embrace within its ambit power to make ordinances. Section 33 deals with the framing of ordinances in the normal course. The power under sub-section (5) of Section 10 is exercisable when the matter is of an urgent nature requiring immediate action and the same cannot immediately be dealt with by the officer or authority empowered by or under the Act. As the two authorities function in different situations and circumstances, we cannot visualise any conflict if the Vice-Chancellor, in exercise of his powers under sub-section (5) of Section 10, frames an ordinance, provided, of course, the condition precedent for the exercise of that power is present. There is no dispute that, in the present case, a situation existed where immediate action was absolutely essential. In the preamble to the impugned order, the Vice-Chancellor has set out the circumstances and the reasons which influenced him to amend the existing ordinance. The preamble recites: "It has been observed that the provisions in the Ordinances, relating to cancellation of marks in various courses on the request of a candidate has affected uniformity in academic achievements, has led to a certain non-seriousness among students .and has resulted in the non-recognition of our degrees by a number of Universities. Accordingly, the Advisory Committee in its meeting dated 29th June, 1971, has advised that the provisions relating to the cancellation of marks on the request of a candidate be deleted immediately. The Boards of Faculties have recommended that minimum pass percentage of 33% or 36% (as the case may be) be required both in Theory and Practical separately. This recommendation has also been endorsed by the Advisory Committee in its meeting dated 29-6-1971. As the next session is to commence from July 1, 1971, and the students taking admissions in July, 1971, should know before hand that the provisions relating to aforesaid matters have been amended in accordance with the above recommendations, I, in exercise of my powers...................." It is thus clear, that in the opinion of the Vice-Chancellor, a situation has arisen where immediate action was called for. It is to provide for such situations that the Legislature vested the Vice- Chancellor with the power to take immediate action.
(3.) LEARNED counsel for the appellant contended that the words "immediate action" and "take action" suggest executive and administrative actions and these words could not refer to the legislative function of framing or amending an ordinance. We do not find any justification for limiting the scope of the aforesaid words to executive and administrative actions only. The amendment of an ordinance is also taking an action. Etymologically and grammatically also the expression "Legislative action" is as correct as the expression "administrative or executive or disciplinary action.";