P L D 1962 Supreme Court 35 (PLP)

HAMOODUR RAHMAN, J.‑

The petitioners in both these petitions seek to challenge the validity of the amended Statute No. 21 of the University of Punjab and since the questions of law arising for consideration In these petitions are common, they have be heard together and will be disposed of by this order. The two petitioners in Writ Petition No. 14 of 1961 and the second and third petitioners in Civil Petition No. 154 of 1961 joined the B.Sc. Honours School of the said University in 1959 after obtaining their B.Sc. pass degrees, but the petitioner No. 1 in the latter petition joined the said Honours School after passing her F.Sc. examination in the year 1958. At that stage the said Statute No. 21 read as follows:‑-- "The minimum number of marks required to pass the final examination shall be 40% in the written examination but only 33% in the practical examination and 40% in the aggregate." Thereafter, on the 13th of May 1960, the University amended the same to the following effect:‑-- "The minimum number of marks required to pass the final examination shall be 45% in the aggregate of all the papers and 33% in each written paper and each practical examination separately." The amended Statute, therefore, introduced two changes, namely ; (i) the pass aggregate was raised from 40% to 45% and (ii) the examinees were required to qualify by obtaining at least 33% marks in each paper of both the written and the practical parts of the examination. These petitioners After qualifying in the subsidiary exami nation held in 1960 appeared in the final examination in 1961 but failed to qualify, as the results published in August 1961, were declared according to the amended Statute. They state that their results show that they failed only in one paper, namely; the second paper, and maintain that if they had been examined according to the unamended Statute they would have obtained at least a high second class. This action of the University, it is said, has resulted in grave injustice and caused them great hardship for under the rules of the University it is not open to them to appear at the examination again. Their further contention is that the University had also attempted to declare the results of the final examination held in 1960 in accordance with the amended Statute but had ultimately upon the protests of the examinees conceded that the amended Statutes would not apply to them. In these circumstances these petitioners firstly, contend that the amendment is ultra vires inasmuch as it has not been made by a competent authority of the University. Secondly, that, in any event, it could not operate retrospectively to deprive them of their right to be examined according to the Statutes of the University prevailing at the time they were admitted to the Honours course. These petitioners thus claim to be vested with some kind of a right to be allowed to complete the course they had joined and to be examined in their final examination after such completion of the course in accordance with the standards prevailing at the time they joined the course. The three petitioners in Civil Petition No. 154 of 1961 had, therefore, invoked the writ jurisdiction of the High Court of West Pakistan for the establishment of their aforesaid claim but that writ petition was summarily dismissed by a Division: Bench. Hence they have come up to this Court for special leave to appeal, but the two petitioners in Writ Petition No. 14 of 1961 have come directly to this Court for the issuance of a writ of mandamus commanding the University of Punjab to declare the result of the petitioners in accordance with the unamended Statute No.

21. In support of their first ground of attack it is contended that after the amendment of the Punjab University Act, 1954, by the Punjab University (West Pakistan Amendment) Act (XXII1 of 1958) the standard of examinations could not be regulated by means of a Statute. Such matters could thereafter, it is said, be provided for only by means of an Academic Ordinance. Hence the amendment purported to be made to Statute No. 21 was of no effect and did not entitle the University to alter the standard of the said examination. It appears from an examination of the provisions of the Punjab University Act that under the scheme of the said Act there is to be a Senate, a Syndicate and an Academic Council, besides the other authorities of the University with which we are not concerned here, and the University was empowered to frame Statutes, Ordinances and Regulations for the conduct of its own affairs. Before the amendment of 1958, section 25, which specified the matters that could be provided for by Statutes, read as follows :‑ "Subject to the other provisions of the Act the Statutes may provide for all or any of the following matters :‑ (i) .......... (ii) constitution, powers and duties of the Authorities, (iii) to (ix) . . . . . . (x) the Courses of Study to be followed and the conditions to be complied with by candidates for examinations of the University, (xi) to (xiii) . . . . . . ." Section 26 provided the method by which Statutes could be made, repealed or amended. According to this a draft of a Statute had to be proposed by the Syndicate and passed by the Senate, and thereafter submitted to Government for its assent without which it could have no validity. Furthermore, the Syndicate could not propose the draft of any Statute affecting, inter alia, matters referred to in clause (x) of section 25 without having first obtained he written opinion of the Academic Council. Ordinances of the University were divided into two categories, namely ; (i) Executive and (ii) Academic. Section 28 of the Act specified the matters which could be provided for by Executive Ordinances and section 29 specified the matters which could be provided for by Academic Ordinances. Section 29 was in these terms :‑ "Subject to the other provisions of this Act and the Statutes, the following matters shall be provided for by the Academic Ordinances :‑ (i), (ii), (iii) . . . . . . . . (iv) The conduct of examinations, (v) Mode of appointment of examiners, (vi) . . . . . . . . . . . . . . (vii) All other matters which under the Statutes are required to be provided for by the Academic Ordinances." The procedure to be adopted for the making, repealing or amend ing of Academic Ordinance, as prescribed in section 30, was that it bad to be initiated in the Academia Council and its draft had to be submitted to the Senate for its approval. After the Senate had approved the draft, it had to go to the Chancellor of the University, who under section 9 of the said Act was the Governor of the Punjab, for his assent. Again, section 22 of the Act provided that:‑-- "The Academic Council shall be the Academic Authority of the University and shall, subject to the other provisions of this Act, Statutes and the Ordinances, be responsible for the regulation of teaching and examinations and for the maintenance of standards thereof and shall exercise such powers and perform such duties as may be conferred or imposed upon it by the Statutes. It shall have the right to advise the Syndicate on all academic matters." Now by the amendment of 1958 section 25 was amended by deleting seven clauses thereof, including clause (.x), re‑numbering the six clauses retained and by adding two new clauses. Its relevant provisions thereafter read as follows:‑-- "Subject to the other provisions of the Act the Statutes may provide for all or any of the following matters :‑ (i) Constitution, powers and duties of the Authority, (ii) to (vi) . . . . . . . . . . (vii) General schemes of studies including the duration of courses and total number of subjects for examinations, but not the detailed syllabi therefor, (viii) Such other matters as may be decided by the Senate to be included in the Statutes." No change was, however, made either in section 29 or in section

22. It is, therefore, contended that the provision of standards of examination came within the original clause (x) of section 25, namely, the conditions to be complied with by candidates for examinations of the University and as such, were one of the matters which before the amendment of 1958 could be regulated by a Statute, but since the said clause had been deleted the specification of standards of examinations could no longer be made by a Statute. This function had not, after the amendment, been specifically assigned to any Authority but since it was an academic matter, it could only be made, if at all, by an Academic Ordinance either under clause (iv) or clause (vii) of section

29. This argument, in our opinion, fails to take into account that the latter section was not amended in 1958 and, therefore, according to the accepted principles of interpretation it is not possible to infer, notwithstanding that no change had been made therein, that the content of the matters specified in the various clauses of section 29 bad been enlarged and the scope of Academic Ordinances increased. Nor can we impute to the Legislature the intention of creating a deliberate hiatus in the affairs of the University. On the other hand, it seems to us, that it is not without significance that under the scheme of the Punjab University Act, section 29 has itself been made subject not only to the other provisions of the Act but also to Statutes that may from time to time be made in accordance with its provisions. It is possible that this scheme was designed because the Senate, was to be the superior body which passed both Statutes as well asp Academic Ordinances. The Syndicate and the Academic Council merely proposed the drafts of the Statutes or Ordinances, as the case may be, and the only Authority competent to pass either was the Senate acting as a sort of Legislature of the University. The provision that academic matters should either originate In the Academic Council or be dealt with after having obtained its written opinion was merely a measure of ordinary prudence. This view appears to us to be supported not only by the fact that the matters that can be dealt with by an Academic Ordinance have been expressly made subject to Statutes but also by the fact that under section 15 of the Act the Senate is a superior body in the hierarchy of the Authorities of the University vested with "the general management of and superintendence over to affairs, concerns and property of the University." In this scheme of things the Senate can well pass a Statute either enlarging or curtailing the scope of the functions of an Academic Ordinance. It may, therefore, be equally legitimately maintained that where a Statute has in fact been passed by the Senate entrenching upon the field of Academic Ordinances that Statute must prevail notwith standing the provisions of section

29. This conclusion appears to us to be further strengthened by the provisions of clause (viii) of the amended section 25, for, if the Senate has approved of a Statute, then is it not a Statute providing for a matter which the Senate has decided to be included in the Statutes and thereby impliedly controlled or restricted the matters which may be dealt with by Academic Ordinances if it so happened that that parti cular matter was one which could, until the passing of that Statute, have been provided for only by an Academic Ordin ance ? Even otherwise we are of the view that the words "the conduct of examinations" in clause (iv) of section 29 mean no more than what they meant before the amending Act of 1958, namely ; the execution of the principles laid down in the relevant Statutes regarding the conditions to be fulfilled by candidates for examinations and nothing more. In this connection paragraph 9 of the first Statutes of the University and Chapter IV, Part III, Volume I of the University Calendar (page 152) may also be usefully referred to. Under clause (i) of the said paragraph 9 it appears that the Academic Council is responsible only for the maintenance of the standards of teaching and examinations and not for the specification of those standards. This also supports the view that the function of the Academic Council is to imple ment the standards laid down by some other authority. The specification of the acts to be done in the conduct of examinations, as set out in Chapter IV further confirms this view. We are not also prepared to hold that after the amendment of the Punjab University Act there was no power left in any Authority of the University to alter the standards of examinations. In our view tire language of clause (vii) of the amended section 25 is sufficiently wide to incorporate within It the provision of a scheme not only for the imparting of instructions but also a scheme for the assessment of the knowledge derived from such instructions. We are, therefore, of the a opinion that there is no substance in the contention that the amendment was incompetent and had not been validly made. It may further be pointed out here that the case of the University, as set out in its written statement, is that this parti cular amendment of the Statute was initiated as long ago as 1958 by the Chancellor's Committee which was then in control of the affairs of the University under section 47 of the Act. Thereafter, it was placed before the Academic Council, after the authorities of the University had been constituted, and it approved the same on the 3rd of October, 1959. Then the draft was prepared by the Syndicate on the 28th of November 1959. The Senate passed it on the 27th of February 1960, and it ultimately received the assent of the Governor on the 13th of May 1960. No valid attack can, in the circumstances, be made on the vires of this amendment, for it had in fact passed through all the authorities of the University and had been approved by all. The second ground of attack is that the Statute is sought to be enforced with retrospective effect and that the University is in its enforcement acting in a discriminatory manner, for, it was not applied in the case of examinees who appeared in the examina tions held in 1960. So far as the charge of discrimination is concerned, the written statement of the University discloses that the examinations of 1960 had actually commenced on the 9th of May 1960, some four days before the amended Statute received the assent of the Governor. Hence on the representations of the students it was decided that their cases would not be governed by the amended Statute, inasmuch as the examinations had already commenced under the unamended Statute. This was in our opinion, a valid, legitimate and reasonable ground of differentia tion and not a case of unfair or discriminatory application of the statute to examinees equally situated. No such excuse exists in the case of the present petitioners for the amended Statute came into operation even before the present petitioners embarked upon their final year of study. Hence it cannot be said that the University has either applied the amended Statute in a discriminatory fashion or that it has applied it retrospectively. The present petitioners had ample notice before they commenced their course of studios for the final year of the B.Sc. Honours School that they would be examined in the examinations in accordance with the amended Statute. If they did not wish to be governed by the amended Statute, they were free not to take up that course or not to offer themselves for examination at the end of the course. Before parting with this matter we would like to aid that in spite of a careful examination of the provisions of the Punjab University Act and the Statutes framed there under we have not been able to discover there from anything which would support the right sought to be asserted in this case. To uphold such a right would amount to placing an impossible burden upon the University, for, then it may well have to conduct different examination upon different standards in each year in respect of the same degree for different students or groups of students in accordance with the Statutes, Ordinances and Regulations prevailing on the dates of their respective admissions, even though the same may have long since been validly altered in accordance with the provisions of the Act. This could never have been the intention of the framers of the Punjab University Act. We have no hesitation, therefore, in coming to the conclusion that no such vested right exists in the examinees which can be enforced by a writ of mandamus. For these reasons we dismiss the writ petition but make no order as to costs. The petition for special leave must also for the same reasons be dismissed, as, in our opinion, the High Court rightly refused to interfere in its writ jurisdiction. A.H. Petition dismissed.