MODI, J. - (1.) THIS is a petition under Art. 226 of the Constitution which originally came for hearing before a Division Bench and has been referred to this Full Bench as important questions of law, constitutional and otherwise, arise for decision therein.
(2.) THE petitioner is Virendra Kapur, a student of the Bachelor of Engineering course in the Engineering College of the University of Jodhpur. Respondent No. 1 is the University of Jodhpur, while respondents Nos. 2, 3 and 4 are the Chancellor, the Vice-Chancellor and the Dean of the Faculty of Engineering, of the Jodhpur University respectively. Respondent No. 5 is the State of Rajasthan. THE petitioner's principal prayer is that the order of the University authorities reverting him to the II year B. E. Glass be held to be illegal and set aside and a writ of mandamus or any other suitable writ, order or direction be issued to the respondents to permit him to continue in the Third Year B. E. Class under circumstances presently to be mentioned. The petitioner's case is briefly this. He was admitted to the First Year B. E. Class of the Engineering College at Jodhpur in July, 1961, and was promoted to the Second Year Class in July, 1962. About the same time in 1962, the University of Jodhpur was established under the Jodhpur University Act, 1962 (Act No. 17 of 1962, hereinafter called the Act) and the Engineering College which was initially affiliated to the University of Rajasthan at Jaipur became part and parcel of the Jodhpur University. In April, 1963, the petitioner appeared at the Second Year B. E. Examination and secured over 55 per cent marks in the aggregate but failed in one of the papers being Mathematics Second. According to the petitioner, the Regulations which were applicable to the Faculty of Technology and Engineering under the University of Rajasthan had been adopted by and for the University of Jodhpur. By Regulation No. 38 of these Regulations, it was provided that if a candidate secures an aggregate of 55 per cent marks but fails in one written paper only at an examination except the First Year B. E. Examination, he shall be permitted to keep terms in the next higher class and to appear and pass in the paper in which he has failed along with the next higher examination, and he would be given a pass class after he has passed the examination in which he had failed. As the petitioner fulfilled the conditions of the aforesaid regulation, he was permitted to keep term in the Third Year Engineering Class in 1963. At a supplementary examination held in August, 1963, he happened to fail again in Mathematics II Paper, the very subject in which he had failed earlier with the result that he was asked to revert to the Second Year B. E. Class and join as a regular student therein. This supplementary examination and the consequent action taken against him were taken in pursuance of Ex. 1, a notification dated the 12th June, 1963, issued under the signature of the Special Officer of the University of Jodhpur, which is the principal bone of contention in this case. We shall have occasion to deal at length with this notification and its true effect hereafter; but suffice it to say for the present that broadly speaking according to this notification in the case of students of I, II, III or IV B. E. Examinations who had passed in all practicals but had failed in one or more theory papers regardless of their aggregate marks or those who had passed in all theory papers but had failed to secure the minimum pass marks of 45 per cent in the aggregate, a supplementary examination was to be held in the month of August subject to certain conditions which were set forth in the notification and meanwhile they would be permitted to keep terms in the next higher class and entitled to study in that class and take the examination therefor if they pass in the supplementary examination. But, and that is important to note, it was also directed by this notification that such of the candidates who failed in the supplementary examination or did not appear at it must join as repeaters in the class in which they had failed and should attend all classes as regular student although they were to be exempted from attending the practical classes. It was in pursuance of this notification that the petitioner was asked to join as a repeater in the Second Year B. E. Glass. The grievance of the petitioner is that this order is bad and illegal and that his case cannot be properly and lawfully governed by this notification. It has also been urged in this connection that the new notification which was issued on the 12th June, 1963, just one day before his result of the Second Year B. E. Examination was announced and whereat he had failed in one written paper namely Mathematics II and had secured more than 55 per cent marks in the aggregate was avowedly intended to provide certain additional facilities to students studying for engineering at the University in view of the National Emergency which had overtaken the country on account of the Chinese aggression and could not lawfully be made applicable to him, and that the fact that he had sat at the supplementary examination thereafter and had failed in the same paper (Mathematics II) again did not make any difference to the correct legal position, and therefore, an appropriate writ, direction or order be issued to the University authorities to permit him to continue in the Third Year B. E. Class. The petitioner's case further is that he had made a demand of justice on the Chancellor and Vice-Chancellor of the University of Jodhpur, respondents No. 2 and 3 to this petition but without any success. Consequently, he filed this writ application which was later amended, to this court in the first instance on the 7th October, 1963, wherein the State of Rajasthan, respondent No. 5 was not impleaded as a party. On the 15th October, 1963, an interim order was passed by the Division Bench to the effect that, having regard to all the circumstances of the case, the petitioner be permitted to keep his term for the third Year B. E. and also allowed to take any mid-term examination which might be held during the pendency of the writ application subject to its final result. The case then came up for hearing before the Division Bench on the 24th October, 1963, when certain doubts arose in the mind of the court whether the notification which was being assailed was within the competence of the Vice-chancellor, having regard to the provisions of the Act. Learned counsel for the University conceded that the point was of far-reaching importance and may be fraught with grave consequences and therefore prayed that a short adjournment to study the same and then make his submissions be allowed to him. This was granted. Certain important developments took place at this stage while the writ-petition was pending in this Court and these must now be referred to. On the 29th of October, 1963, the Governor of Rajasthan issued the Jodhpur University (Amendment) Ordinance, 1963 (Ordinance No. 3 of 1963, hereinafter referred to as the Ordinance) under Art. 213 of the Constitution. By this Ordinance, sec. 39 of the Act was amended so that it now reads as follows : - "39. Removal of difficulties - (1) The State Government may for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the University of Rajasthan Act, to the provisions of this Act (in the area and in matters covered by this Act) by order published in the Official Gazette - (a) direct that this Act, shall during such period as may be specified in the order, take effect subject to such adaptations whether by way of modification, addition or omission as it may deem fit to be necessary or expedient, or (b) make such other temporary provisions for the purpose of removing any such difficulties as it may deem fit to be necessary or expedient : Provided that no such order shall be made after two years from the date of the commencement of this Act. (2) The provisions made by order under sub-sec. (1) shall have effect as if enacted in this Act, and any such order may be made so as to be retrospective to any date not earlier than the twelfth day of June, 1962. " It may be pointed out before proceeding further that the original period that was prescribed in the proviso to sec. 39 was only twelve months from the commencement of the Act which was brought into force on the 12th June, 1962, and which period had already elapsed before the Ordinance came to be enacted and this was by the Ordinance raised to two years with retrospective effect from the commencement of the Act. On the same day, that is, the 29th October, 1963. the State Government issued the Jodhpur University (Removal of difficulties) Order, 1963 (hereinafter called the Order of 1963 ). By sub-sec. (2) of sec. 1 of this Order, it was provided that it shall be deemed to have come into force on the 16th day of July, 1962, and that it shall remain in force for a period of two years. We may point out in passing that in so far as this Order is intended to remain in force for a period of two years from the 16th day of July, 1962, onwards, it obviously travels beyond the due bounds set for it by sec. 39 of the Act as amended according to which any such order can remain in force for two years of the commencement of the Act, that is, upto the 12th June, 1964, but no more. Be that as it may, by sec. 3 of the Order of 1963, notwithstanding anything contained in the provisions of the Act, the Vice-chancellor was, while this Order remains in force and until the statutes or ordinances, a,s the case may be, are duly made and brought into force, authorised, inter alia, to exercise the powers of the University in certain matters subject to such restrictions as were made therein, with which we are not directly concerned, and to provide for all or any of the matters specified in sec. 23 of the Act. Now, sec. 23 of the Act enables the University to make Ordinances to provide for certain matters mentioned in the 13 clauses thereof, which are concerned with the admission of students to the University and their enrolment as such ; the courses of study to be laid down for all degrees, diplomas and certificates of the University and the qualifications for the same and the conduct of examinations etc. Furthermore, by sec. 4 of the Order, it was provided that all orders or directions made by the Vice-chancellor under this Order shall be deemed to have been validly made, and all actions taken in pursuance of such directions 5r orders shall be deemed to have been lawfully taken, notwithstanding anything inconsistent therewith in the Statutes and Ordinances finally made under the Act. When this new material was brought to the notice of the Court the petitioner sought for an opportunity to meet it which was granted. The petitioner then filed a reply in which he, among other matters, attacked the validity of sec. 39 of the Act and the Ordinance whereupon a notice was ordered to issue to the Advocate General of the State by an order of the Court dated the 4th December, 1963. The learned Advocate General appeared and raised certain preliminary objections as a result of which the Division Bench directed that the petitioner should file an amended writ application to which the State of Rajasthan must be made a party and in which the various reliefs sought by him must be clearly particularised, and further observed that having regard to the serious contentions which were sought to be raised on behalf of the petitioner about the validity of certain provisions of the Act, the Ordinance and the Order of 1963, it was a fit case to be laid before a Full Bench for an authoritative decision. It was in pursuance of these directions that the petitioner filed his amended writ application on the 7th December, 1963, to which the University filed its reply in due course. This is how the case has been placed for decision before the Full Bench. The petitioner's application has been opposed by the State as well as the University of Jodhpur, but the latter alone has filed a detailed reply in writing. The following are the main points of attack which have been raised before us on behalf of the petitioner, and we propose to summarise them under three main heads - I. (a) Sec. 39 of the Act is unconstitutional and void inasmuch as it permits unrestricted and unguided delegation of legislative power to the State Government. (b) The Ordinance amending sec. 39 of the Act with retrospective effect is ultra vires of the State Legislature. (c) Even if the answer to the two above questions be against the petitioner, the Order of 1963 is bad, because (1) it is in excess of the authority properly confer-mable on and permissible to the State Government under sec. 39 of the Act, and (2) on account of the vice of excessive delegation in favour of the Vice-Chancellor. II. (a) Sec. 12 (5) of the Act under which the Vice-Chancellor purported to act in framing the new regulation Ex. 1 does not give him legislative authority to enact the same. This would raise the further question namely if it did not, whether the Vice-Chancellor had authority under any other provisions of the Act to do so. (b) Assuming that sec. 12 (5) does furnish such authority, it is unconstitutional and bad on account of excessive delegation. (c) The new Regulation Ex. 1 is not validly passed and has, therefore, no lawful authority because it has been issued by the Special Officer and not by the Vice-Chancellor himself, who alone is authorised under the section to exercise the emergency powers thereunder. III. The new Regulation Ex. 1 did not repeal its old counter-part and both can stand together and the petitioner's case is properly governable by it and in any event it cannot be given retrospective effect so as to adversely affect the rights of the petitioner who had already taken his Second Year B. E. Examination when the old Regulation was in force. As a result of the contentions raised by the University, two more points would fall to be considered and decided, which are these - (1) Whether the petitioner's writ petition deserves to be dismissed on the short ground that he had appeared at the Supplementary Examination held in August, 1963, as a result of the notification Ex. 1 and thereby he is estopped from resiling from the consequence of the own conduct, and (2) Whether it would be at all proper for this Court to interfere with what is after all a matter relating to the internal administration of the University ? We shall now deal with these points in the order in which we have set them out above. Re. I (a) - As to the invalidity of sec. 39 of the Act on account of the vice of excessive delegation. We have already set out sec. 39 in extenso as amended and need not reproduce it here. It is well established by the decision of this Court as well as of our Supreme Court that the power of delegation is a constituent element of the legislative power as a whole, and in modern times when the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their enactments. It is further well settled that though subsidiary legislative authority may thus be delegated, many a time it becomes inevitable to do so in modern legislative mechanism, the legislature cannot delegate its essential legislative function in any case, and it must lay down the legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. See In re Art. 143, Constitution of India, etc. (1), Vasanlal Maganbhai Vs. State of Bombay (2) and Mohanlal Vs. Mahboob (3 ).
(3.) THUS in dealing with the challenge to the vires of this section, on the ground of excessive delegation, it is necessary to see whether the impugned delegation involves the delegation of any essential legislative function or power and whether the legislature has not enunciated its policy in principle and given guidance to the delegate or not, for if these requirements are substantially fulfilled in the present case, the charge of excessive delegation cannot succeed. Now, let us look closely at the several important provisions of the Act. Sec. 1 deals with its short title and commencement, and sec. 2 with definitions of certain expressions used in the Act. Sec. 3 lays down that the University of Jodhpur shall be a corporate body having perpetual succession and a common seal and shall sue and be sued by the said name. Sec. 4 sets forth the powers of the University, namely, to provide for instruction in such branches of learning as the University may think fit, to make provision for research and for the advancement and dissemination of knowledge, to hold examinations, to grant and confer degrees and other academic distinctions on persons who have pursued a course of study in the University or in any college or institution, to institute professorships, readerships, lecturer-ships and any other teaching posts required by the University and to appoint or recognise persons as professors, readers or lecturers or otherwise as teachers of the University and so on and so forth. Sec. 7 then lays down that the University shall be open to all persons of either sex and of whatsoever race, creed, caste or class and that no consideration whatsoever shall be paid to such distinctions in respect of any privileges, awards, appointments or promotions made by the University. Sec. 9 specifies the various officers of the University, namely, the Chancellor, the Vice-Chancellor, the Registrar and the Deans of the various Faculties and such other persons in the service of the University as may be declared by the Statutes to be officers of the University. Sec. 10 then provides that the Governor of Rajasthan shall be the Chancellor and shall be the Ex-officio Head of the University, and defines his powers. Sec. 11 deals with the appointment of the Vice-Chancellor who shall be a whole-time paid servant of the University appointed by the Chancellor upon the recommendation of a selection committee, and sec. 12 deals with his powers and authority and lays down that the Vice-Chancellor shall be the principal executive and academic officer of the University. Sec. 12 prescribes the various authorities of the University, namely, the Senate, the Syndicate, the Academic Council, the Finance Committee, the Faculties, the Committees of Courses and Studies and such other authorities as may be declared by the Statutes to be the authorities of the University. It also lays down that the first Senate, the first Syndicate and the first Academic Council shall consist of such members as the State Government may, by notification in the Official Gazette, appoint, and their term of office shall be two years with effect from the date of such notification. Sec. 15 deals with the powers of the Senate and lays down that it shall be the supreme authority of the University and shall exercise all the powers of the University not otherwise provided for by this Act or the statutes. Sec. 16 provides that the Syndicate shall be the executive body of the University, and that its constitution and the terms of office of its members, other than ex-officio members, shall be prescribed by the Statutes. Sec. 17 lays down the functions of the Academic Council being the chief academic body of the University, and that it shall, subject to the provisions of the Act, the Statutes and the Ordinances, have the control and general supervision of and be responsible for the maintenance of standards of instruction, education and examination within the University and that it shall have the right to advise the Syndicate on all academic matters. Sec. 21 specifies the matters for regulating which statutes would be necessary and sec. 22 lays down the machinery for making them. It also makes a provision that the first Statutes shall be made by the State Government and a copy thereof be laid before the House of the State Legislature for a certain period specified in the section being subject to such modification as it might choose to make. Sec. 23 to which we have already referred provides for the making of Ordinances and the matters which shall have to be regulated by them, and sec. 24 lays down that Ordinances shall be made by the Syndicate but no such Ordinance shall take effect until it has been approved by the Chancellor after considering the views of the Senate. It also contains an important proviso to the effect that no Ordinance concerning admission to the University or its examinations, courses of study, schemes of examination, attendance and appointment of examiners shall be considered unless a draft of such Ordinance has been proposed by the Academic Council. It is further important to note that the Syndicate has not been given !the power to amend any draft proposed by the Academic Council but can only reject it or return it to the latter body for reconsideration either in whole or in part together with any amendments which the Syndicate may think fit to propose. Sec. 25 provides for the making of Regulations. Sec. 29 then lays down that an annual report of the University shall be prepared under the direction of the Syndicate and shall be submitted to the Senate and the latter may pass a resolution thereon as may be deemed fit. Then comes sec. 39, the validity of which is impugned before us. It invests the State Government with authority to make certain orders or provisions as may be necessary within the limits prescribed therein. These limits are three in number. The first is that the power given to the delegate namely the State Government is for the purpose of removing any difficulties in the working of the University. A particular head of difficulties has been visualised and specified as being in relation to the transition form the provisions of the University of Rajasthan Act to the provisions of this Act. But it is clear from the plain language of the section that the difficulties for which provision may have to be made may arise from other causes in the sense of not being connected with the transitional stage only. The second limitation is that the delegate is authorised to act under this section only for a period of two years from the date of the commencement of this Act. The third is that any such order made by the Government to be valid must be published in the Official Gazette, the obvious object being that such an order should have as wide a publicity as possible. Now, two fundamental things have to be remembered on this aspect of the case. The first is that the Jodhpur University was and is in a state of infancy having been established as late as the middle of 1962. The second is that the machinery provided in the Act for the making of its Ordinances, is, if we may say so with all respect, cumbersome and long-drawn-out one, and that being so, some such provision as sec. 39, in our opinion, was almost inevitable in the initial stages of the working of the University if it was at all to function in a proper and orderly manner. In these circumstances, we are unable to agree that the power delegated to the State Government under sec. 39 was either excessive or uncanalised having regard to the fact that the legislative policy in the establishment of the Jodhpur University and its working thereof have been clearly laid down in the Act itself, the provisions of which we have analysed above, and further having regard to the limitations subject to which this power was to be exercised by the State Government and that being so, we hold that sec. 39 cannot! be struck down on the score of excessive delegation. As to I (b) - The objection is that the Ordinance amending sec. 39 of the Act is ultra vires of the State Legislature because the Act has been amended thereby with retrospective effect. That the Ordinance amends sec. 39 of the Act with retrospective effect admits of no doubt whatsoever. But that can furnish no legitimate justification to the courts to strike it down on that ground alone. The simple reason is that it is an indisputable proposition of law that it is open to the Legislature to make laws with retrospective effect if in its wisdom it thinks fit to do so. See The Iron Sides (4) and Smith Vs. Callander (5 ). There is no force therefore in this objection whatever and we hereby over-rule it. The resultant position is that the State Government was and would be perfectly competent to issue a Removal of Difficulties Order within the ambit of sec. 39 of the Act so as to be retrospective with effect from the 12th June, 1962, which was the date of the commencement of the Act. As to I (c) - The ground of attack under this head, put succinctly, is that the Order of 1963 is beyond the ambit of sec. 39 of the Act and could not have been issued thereunder. It is necessary in this connection to recollect the background against which this Order came to be issued on the 29th October, 1963. As already stated, the University of Jodhpur was established as a corporate body under the Act which was brought in force from the 12th June, 1962. The First Statutes were made by the State Government under sec. 22 of the Act on the 30th November, 1962. The Ordinances and Regulations had still to be and have not yet been made. The University had started functioning in July, 1962. A long process was required to be gone through before the Ordinances could be enacted, and yet the functioning of the University could not possibly be held up on that account. Consequently, the State Government acting under sec. 39 enacted a Removal of Difficulties Order about July, 1962, soonafter the University started functioning in 1962, by which until the Statutes and the Ordinances were framed, the Vice-Chancellor was invested with the powers to provide for all or any of the matters specified in sec. 23 of the Act. It must be pointed out here that it was in pursuance of this Order that in September 1962,the Vice-Chanceller directed the adoption of regulation No. 38 and the connected regulations of the University of Rajasthan for the students of the Jodhpur University studying in the Faculty of Engineering and Technology. By an unfortunate albeit regrettable inadvertence, however, the State Government forgot to publish the Order of 1962 in the State Gazette, and this grievous mistake appears to have come to its notice for the first time during the course of the initial arguments in this case before the Division Bench when, be it remembered, the period of twelve months from the commencement of the Act for which a Removal of Difficulties Order under sec. 39 could be issued had already elapsed. In order to regularise all that had been done or left undone in the way of the lawful working of the University, it, therefore, became necessary, nay inevitable, for the Governor to issue the Ordinance under Art. 213 of the Constitution by which sec. 39 of the Act was amended so as to be operative for a period of two years from the commencement of the Act, and immediately thereafter on the same day, the Order of 1963 thereunder was enacted and published in the State Gazette. This Order has been made operative from the 16th July, 1962, and though it has been provided that it shall remain in force for a period of two years, obviously from that date, we should like to point out that under sec. 39 it cannot remain in force for more than two years from the time of commencement provided under sec. 39 of the Act. In other words, it must come to an end on the 12th June, 1964. The relevant provisions of this Order in so far as they are material for our purpose may now be reproduced below - Sec. 3. Temporary powers of Vice Chancellor - Notwithstanding anything contained in sec. 4, 8, 13, 22, 24, 27, 28 and 35 (1) or any other provisions of the Act, the Vice-Chancellor may, by an order in writing while this order is in force and until the Statutes or Ordinances, as the case may be, are duly made and brought into force - (a) exercise the powers of the University: (i) to institute; subject to the approval of the State Government professorships readerships, lectureships and other teaching posts required by the University ; (ii) to appoint or recognise persons as professors, readers of lecturers or otherwise as teachers of the University; and (iii) to appoint officers of the University. Provided that no person shall be permanently appointed or recognised under parts (ii) and (iii) above until his appointment has been confirmed by the Syndicate ; Provided further. . . . . . . . . . . . . . . . . . (iv) to acquire, hold and manage property, movable and immovable including trusts and endowments for the purpose of the University; (b) specify the authorities responsible for organising the teaching recognised by the University; (c) provide for all or any matters specified in clauses (c), (g) and (h) of sec. 21 and associate with or admit any college or institution within the municipal limits of the city of Jodhpur to the privilege of the University under sec. 5 ; (d) provide for all or any matters specified in sec. 23. (e ). . . . . . . . . . . . (d ). . . . . . . . . . . . Sec. 4 Validity of Orders made - All orders or directions made by the Vice Chancellor under this Order shall be deemed to have been validly made, and all actions taken in pursuance of such directions or orders shall be deemed to have been lawfully taken, notwithstanding anything inconsistent therewith in the Statutes and Ordinances finally made under the Act. " ;