G.C. Bharuka, J.
1. This writ application has been filed by the petitioners for issuance of an appropriate writ and/or direction commanding the respondents to (i) grant affiliation to Nawadah Vidhi Maha Vidya-laya, Nawadah (hereinafter in short the 'Institution'), (ii) allow the students of the institution to appear at the ensuing L.L.B. Examination, (iii) publish the result of 1990 LL.B. Part 1, Part II and Part III examinations of the alleged students of the Institution and (iv) declare the transitory regulation dated 17-4-1993 (Annexure 9) as ultra vires the powers of the Chancellor and the Vice-chancellor.
2. Petitioner No. 1 claims to be an institution conducting Bachelor of Law (LL.B.) course at Nawadah. Nature of its constitution has not been disclosed in this writ application. It is claimed to have been established in 1988. According to the petitioners, applications were made for grant of affiliation to the respondent Magadh University, whereupon inspections were made. It is also borne out from the writ application that pursuant to the request made by the petitioners, some team of the Bar Council of India had inspected the college and by its letter dated 11th October, 1991 recommended to the University for granting affiliation to the institution. It further appears that pursuant to the representation dated 28-12-1991 made on behalf of the institution, the Chancellor under his Memo No. 481 dated 15-2-1992 (Annexure 3) granted permission to the students of the institution to appear at the ensuing examination of the University. The prayer in para 1 and the statement in para 10 reveals that pursuant to this permission the students of the college appeared at all the three parts of LL.B. 1990 examination. The petition filed by the University on 17-12-1992 discloses that so far the University has not taken any step in relation to grant of affiliation to the petitioner except addressing the letter dated 23-12-1991 to the State Government seeking certain guidelines in this regard. The counter affidavit filed on behalf of the Vice-Chancellor and the Controller of Examination of the
University discloses that since in the faculty of law, the students of unaffiliated colleges could not have been allowed to appear at the examination, but the Chancellor in his wisdom had accorded the permission for such appearance as per Annexure 3, therefore, it was thought proper to frame a transitory regulation. Accordingly, a proposal for approval of transitory regulation was drawn in accordance with the direction of the Chancellor and was sent for his approval with an accompanying letter dated 10th August, 1992 (Annexure B) which has been duly approved by the Chancellor under Annexure '9'. The transitory regulation is to the following effect:
GOVERNOR'S SECRETARIAT, BIHAR NOTIFICATION
No. MU-03/92/CS(l) In exercise of the powers conferred upon him under S. 39(2)(ii) of the Bihar-State Universities Act 76 as amended up to date, the Chencellor, Magadh University, has been pleased to approve the following transitory regulation and order that it may be published in the official Gazette and brought into immediate effect:-
'Notwithstanding anything contained in (he Regulation of the University students of the following categories of colleges shall be allowed to appear at the LL.B. Examination 1990 of this University : -
(A) Colleges which have been recommended by the University to State Government for grant of affiliation but the matter is pending before the State Government.
(B) Colleges which have not been recommended to the State Government for affiliation but the Chancellor has been pleased to allow the students of such colleges to appear at the 1990 L.L.B. examination of the University.
Provided that only such students of the above two categories of colleges as have under gone the prescribed courses of instructions of the University and have attended the requisite number of lectures may be admitted to the above examination.
Provided further that the students of category (B) colleges shall appear at the examination as private candidate on payments of the requisite fee.
Provided further that their results will not be published till the affiliation is not granted by the State Government.'
By Order of the Chancellor, Magadh University
Sd /-
O.S.D.(II) Governor's Secretariat, Bihar.'
3. An analysis of the facts summarised above reveals that though the institution in question, according to the petitioner's own showing, was established in 1988 and admittedly neither any inspection has been conducted by the University nor any affiliation has been granted to the college, still under the orders of the Chancellor, the students have been allowed to appear for all the three parts of L.L.B. Examination of 1990 and to justify such an act transitory regulations have been framed under some purported powers which is being challenged as ultra vires and unenforceable both by the petitioners as well as the University and its authorities. Strange are the affairs in the field of higher education of this State. That too in the faculty of law.
4. The Act has been enacted by the State Legislature to establish and incorporate affiliating-cum-teaching Universities at various places in the State of Bihar. The respondent Magadh University is one of the Universities established under Section 3 of the said Act.
5. On the above premise the questions which fall for our consideration are :
(i) Whether the Chancellor has any authority to accord permission to the students of an unaffiliated (unrecognised) college to appear at the University examinations?
(ii) Whether any transitory regulations like Annexure 3 can be made by the Vice-Chancellor with the approval of the Chancellor? And
(iii) Whether the University or its authorities can permit the students of any unaffiliated/unrecognised institution to appear at
the examination?
6, Section 4 of the Act declares the purpose and powers of the University. Some of the clauses are material for the present purposes and hence are being quoted here-under:
'Section 4. Purpose and powers of the University- There shall be the following purposes and powers of the University :-
(2) to conduct examinations and to grant and confer degrees, diploma, certificate and other academic distinctions to and upon persons who -
(a) have pursued an approved course of study in the University and passed the examination of the University, under the conditions laid down in the Statutes, the Ordinances or the Regulations;
(10) to establish, maintain and manage colleges and hostels and to recognise Colleges and hostels not maintained by the University;
(19) to affiliate or disaffiliate colleges according to statutes subject to prior approval of the State Government;
Provided that after the promulgation of Intermediate Education Council Ordinance, 1979, recognition to Intermediate Colleges shall be granted by the Intermediate Education Council.'
7. The terms 'affiliated Colleges', 'College' and 'Institution' have been defined under clauses (c), (f) and (k) of Section 2 of the Act and are as follows :
(c) 'affiliated College' means educational
institution having received privileges of the University according to the provisions of this Act and University Statutes thereto;
(f) 'College' means an institution maintained or controlled by the University or maintained by the State Government in which instruction is given subject to the provisions contained in clause (16) of Section 4 to the students of the University up to or below the post
graduate standared under conditions, prescribed in the statutes:
Provided that till separate arrangement is made for Intermediate Education, teaching of this standard also shall continue to be imparted in the same College, under the general direction of the Intermediate Education Council and that college shall be deemed to be an institution imparting education of Intermediate standard also;
(k)'Institution' means an institution maintained or recognised by the University;'
8. Subordinate legislations like statutes, Ordinances and Regulations have been conceived u/ Sections 34, 37 and 39 of the Act respectively. Section 34 provides that subject to the provisions of this Act, the statutes may provide for the admission of educational institutions as colleges and the withdrawal of privileges from the colleges so admitted. Section37(e) provides that the Syndicate may, subject to the provisions of this Act and Statutes, make Ordinance to provide for the inspection of Colleges by any agency. Section 39(b) provides that subject to the provisions of the Act, the Statutes and the ordinance. Regulations may be made to provide the conditions under which students shall be admitted to the degree or diploma courses and to the examination of the University and shall be eligible for such degrees and diplomas.
9. Therefore, keeping in view the aforesaid provisions, for granting relief to the petitioners in relation to appearance of its students at the LL.B. Examination and publication of results, it is essential to ascertain the respective provisions made in this regard. Chapter XIV A of the Regulations made by the University deals with these aspects. Regulation 7 thereof reads as under :
'(7) No candidate shall be allowed to appear at the LL.B. examination part-I or Part-II or Part-III, as the case may be, unless he has completed a regular course of study as laid down in this chapter in one or more institutions admitted to or maintained by the University up to the Bachelors standard in the faculty of law.
(ii) A candidate may complete a regular course of study as laid down in this chapter in the subjects for the LL.B. Part II.examination, even if he has not already passed LL.B. Part-1 examination, but he shall not be admitted to the LL.B. Part-11 examination until he has passed the LL.B. Part 1 examination.
(iii) A candidate may complete a regular course of study as laid down in this chapter in the subjects for the LL.B. Part-Ill examination, even if he has not already passed the LL.B. Part-11 examination, but he shall not be admitted to the LL.B. Part-Ill examination until he has passed the LL.B. Part-II examination.'
10. A reading of the above quoted regulations discerns that a student cannot be allowed to appear at the different examinations of three years LL.B. course unless (i) he has completed a regular course of study in an institution admitted or maintained by a University and (ii) in case of Part II and Part III examinations he has passed the examination of the previous part.
11. Chapter XX of the Regulations lays down the conditions enabling private candidates to appear at the University Examinations. Private candidates have been defined to mean persons who have not been on the roll of a college admitted to or maintained by a University or a University Department as a regular student at any time during the session, in which examination they seek to appear. But the Regulations contained in this Chapter are limited to certain arts, commerce and Mathematics courses. LL.B. and other examinations which need specialised practical training, apart from oral teaching, have been excluded from such regulations.
12. As noticed above, the matter relating to admission of educational institutions as Colleges i.e. relating to recognition/affiliation of institutions have to be provided in the statute contemplated under Section 34 of the Act and under Section 21 discretion in this regard has been entrusted to the senate. Accordingly, statutes have been framed under the Act, a copy whereof has been placed on the record
by the respondents. In these statutes elaborate provisions have been made for admission of the institutions as Colleges in one or more of the faculties of the University. It provides for making of applications, contents thereof and the mode and manner of its processing. Article 4 provides that on receipt of the application if the syndicate is satisfied that the College in question either fulfils or is likely to fulfil all the conditions required by laws of the University, then it will cause alocal enquiry to be made as regards the matters specified in Article 3 by such persons as may be authorised in this behalf or it may, if riot so satisfied, reject the application mentioning the reasons thereof. Then the matter has to go to the Academic Council for suggestions, concerning the academic aspects and, on receiving such suggestions, if any. the matter has to be laid before the Senate. Then Senate on consideration of all the materials, may either allow the application with or without condition or reject the same stating grounds for the same. Under the proviso to Section 21 (2) the recognition/ affiliation granted by the Senate can take effect only if its decision in this regard is approved by the State.
13. Now it is essential to notice here that the words and phrases 'affiliation', 'recognition' and 'admission of educational institutions as colleges' are cognate in nature carrying the same intent and purpose. The word recognition has been defined under-Section 2(ag) which provides that 'recognition' with all its grammatical variations, and cognate expressions mean recognitions according to the provisions of the Act and statutes. The above view is further fortified from Section 12A (a) of the University Grants Commission Act, 1956 which provides that 'affiliation' together with its grammatical variations, includes in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of, a university.
14. In the present case, as already stated above, admittedly the institution has not been accorded affiliation/recognition meaning thereby that it has not been admitted as a college of the University. Therefore, it is
plain arid simple that keeping in view the Regulation 7 of Chapter XIV 'A', as quoted above, its students could not have been allowed to seat at the L.L.B. examination conducted by the University. Therefore, the Chancellor, while directing the University authorities under his letters Annuexures '3' and 'A', to allow the students of the Institution to appear at the LL.B. examination, had acted in flagrant violation of the statutory provisions the University authorities have perpetuated the said illegality by permitting the students of the institution to appear at all the three parts of the L.L.B. Examination. 1990 since admittedly the result of Part I and Part II have not been declared as yet and so they cannot be taken as having passed in those parts of. LL.B. course. Regulation 7(ii) and (Hi) is an absolute prohibition in this regard. The purpose behind insistence for recognition/ affiliation of the private institutions intending to get their students appear at public examinations held by the universities is well professed. This statutory requirement is provided to maintain educational standard and excellence by ensuring that the institutions conduct the courses of studies in accordance with the regulatory conditions of teaching and training under a healthy and suitable atmosphere by competent teachers and instructors.
15. It has been held in the case of Unni Krishnan v. State of Andhra Pradesh, reported in (1993) 1 SCC 645 : (1993 AIR SCW 863) at pr. 204 that grant of recognition or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. The bodies which grant recognition/affiliation are the authorities of the State. Affiliation/ recognition is not there for anybody to get it gratis or unconditionally. But the present case demonstrates that the authorities under the Act including the chancellor and the Vice-Chancellor had taken the matter of affiliation/ recognition to be inconsequential or just a formality which can be easily ignored. Thus, the high authorities in whom the legislature reposed its confidence for carrying out the
object of the Act have conveniently designed to defeat the same, possibly just to oblige some favourites. We cannot resist ourselves from deprecating such illegal acts.
16. Now 1 take up the last issue which relates to the validity of the transitory regulations quoted above. Interestingly, both, the petitioners as well as the respondents are repudiating the same. The petitioners are challenging the impugned transitory regulations because the last proviso of the Regulation prohibited publication of result of the examinations at which the alleged students of the institution have been allowed to appear under the directions of the Chancellor till affiliation is granted. The respondents are disowning and intent to get rid of it because, according to them, the making thereof cannot be justified with reference to any of the provisions of the Act.
17. It is essential to note here that though under Section 9(7)(ii) the Chancellor has been empowered to issue binding direction to the University but that can be only in relation to administrative or academic interest of the Universities. The direction in the present case as contained in Annexure 9 cannot be said to be either in the administrative or academic interest of the Universities. These can at best be held in the interest of persons who intend to act in violation of the statutory provisions. The directions are obviously contrary to the academic interest of the University. Such directions merely lead to hamper of academic pursuits and results in grant of University degrees to persons otherwise unqualified for the same. Such directions are primarily responsible for reducing entire educational system into a mockery. It is such directions which encouraged the mushroom growth of fake or unauthorised institutions as an easy-make-money adventures, which are not only unconsituational but are crimes against the society.
18. Section 39 (2) provides for making of the Regulations which reads as under:
'39 (2)(i) A Regulation made by the Academic Council under Sub-section (1) shall be forwarded, as soon as may be, to the
syndicate for transmission to the Senate, and the Syndicate shall duly forward the same to the Senate with such recommendations, if any, as it may wish to make and shall have no power to return it to the Academic Council for re-consideration, unless such Regulation, in the opinion of the Syndicate relates to matters which directly or indirectly, affect the finances of the University.
(ii) such a regulation shall have effect from the date on which it has been assented to by the Chancellor on being passed by the Senate with or without amendment, or from any date fixed by the Chancellor:
Provided that at any time except when the Senate is in session, if the Academic Council makes a Regulation and considers its immediate enforcement necessary, the Academic Council may recommend through the Syndicate, to the Chancellor accordingly and the Chancellor with such amendment as he thinks proper shall direct by a notification published in the Gazette that the Regulation shall come into immediate effect, but such a Regulation shall cease to be effective on the expiry of seven days from the date of the next meeting of the Senate, unless confirmed by the Senate:
Provided further that if any Regulation made by the Academic Council under the preceding proviso, involves expenditure from the University funds, the Regulation shall be forwarded to the Chancellor with the advice of the Financial Adviser.'
19. A reading of the aforesaid provisions shows that the Academic Council has to initiate the process of making regulation which will become an enforceable statutory instrument after having passed through the syndicate and Senate and having been assented to by the Chancellor. The 1st proviso to Sub-section 2 further provides that if the Syndicate is not in session and if the academic Council feels that enforcement of certain regulation is an immediate need it may recommend through the syndicate to the chancellor and the chancellor may, subject to amendments, direct by a notification published in the Gazette that the regulation shall
come into force with immediate effect subject to the limitations provided therein. Therefore, even in a case of urgency of enforcement any regulation, the process has to be initiated by the Academic Council and such regulation can become effective only on its publication in the Official Gazette.
20. In the counter affidavit filed on behalf of the respondent-Vice-Chancellor the following material statements have been made :
'6. That it is submitted that this Hon'ble Court as well as the Hon'bte Supreme Court has in a number of cases held that direction to allow students of unrecognised institution to sit in the examination would be in clear transgression of the provisions of the University Act and Regulations of the university and a direction to allow the students of such institution for taking up the examination shall be destructive of the Rule of Law.
8. That with regard to statements made in para-10 of the writ application, it is stated that it is true that the Chancellor (respondent No. 2) directed the university to allow the students of the petitioner's institution to sit in the 1990 LL.B. examination vide its letter dt. 15-2-1990 contained in Annexure 3 of the writ application. The Hon'ble Chancellor again reiterated its earlier decision and directed the university to permit the students of the petitioner's institution to sit in the L.L.B. 1990 examination vide letter dt. 4-6-92 communicated by the officer on Special Duty in the Governer's Sect. Bihar (Annexure 'A').
9. That after the direction of the Chancellor the matter was examined at the university level and it was decided that unless a Transitory Regulation is framed and approved by the Chancellor, the students of this institution cannot be allowed to sit in the examination. Accordingly the Vice-Chancellor framed a Transitory Regulation and sent it to the Hon'ble Chancellor for the approval vide letter No. CER/36/92/ dt. 10-8-92. It may be mentioned here that during that period Academic Council was not in Session and, therefore, the V ice-Chancellor in exercise of his power under Section 10(12) of the Act framed the aforesaid Transitory Regulation
and sent it to the Hon'ble Chancellor for the approval.'
21. Therefore, on the above statements it is quite clear that the impugned transitory regulations had been drawn at the instance of the Chancellor to effectuate his wishes and directions to permit the purported students of unrecognised institutions to appear at the University examination. It was also admitted at the Bar by the learned Advocate General that the impugned transitory regulations have not been published in the Gazette and therefore, was not enforceable in law. The submission of the learned Advocate General is based on a sound proposition of law. Ref. Narendra Kumar v. Union of India, AIR 1960 SC 430 and A. Venkata Subbarao v. The State of A.P., AIR 1965 SC 1773.
22. Section 21 deals with the powers and duties of the Senate. Clause (d) of Sub-section (2) of this section assigns a duty on the Senate to exercise the powers for the purpose of control in colleges and Tols, and of superintendence which include affiliation and dis-affiliation of colleges. It further provides that affiliation or disaffiliation of colleges or Tols shall not take effect, unless it is approved by the State Government. The second proviso provides for prior approval of the State Government if the grant of affiliation relates to medical college. The guidelines set out for grant of approval by the State Government for the purposes of affiliation have been set out as (i) Financial viability of the college, (ii) the nature and form of the proposed management of the College, (iii) the viability of the Academic standard and (iv) all other conditions which are likely to have adverse effect on the interests of the students admitted to such a college.
23. Sections 18, 22 and 24 provides the constitution of the Senate, Syndicate and the Academic Council. A reference to these provisions shows that the statutory bodies have to be comprised of Ex-officio Members, nominated Members as also Elected Members. The Sydicate and the Senate of the Universities established under the Act had been dissolved with enforcement of the Bihar State Universities (3rd Amendment) Ordi-
nance, 1986 with effect from 17-12-1986 by incorporating the following section in the Act;
'Section 79A - The present Syndicate and Senate shall cease to exist with effect from the date of the Bihar State Universities (3rd Amendment) Ordinance, 1986 comes into force. The powers and duties of the Senate and Syndicate, as the case may be, shall be discharged by the Vice-Chancellor so long the new Senate/Syndicate is not constituted.'
24. The above said proviso was kept alive through the process of repromulgation of the Ordinances till the enactment of the Bihar State Universities (Amendment) Act, 1990 (Act 3 of 1990) which came into force on 30th January, 1990. The Legislature did not approve the retention of the above noticed provision on the statute book. The result was that since the enforcement of the aforesaid amending Act, the Vice-Chancellor ceased to have any power to discharge the functions of the Senate and the Syndicate. But I cannot just stop here.
25. By the aforesaid amending Act, amendments were made in Sections 18, 22 and 24 of the Act touching upon the constitution of the authorities of the University referred to in Section 17 of the Act. It has been said at the Bar that so far no effort has been made to reconstitute the said bodies in accordance with the amended provisions. Even it be so, the Legislature by incorporating Section 75A in the Act, has provided an answer to it. This provision read as under :
^^75 d- fo'ofo|ky; fudk;ksa ds
xfBr u gksus ij dk;Z O;oLFkk A 1 ;fn fdlh dkj.ko'k fo'ofo|ky; dh flusV vFkok
vfHk"kn~ vFkok fo}r ifj"kn vFkok vU; fdUgha fudk; dk xBu u gks lds rks
tc rd bu fudk;ksa dk xBu ugha gks tk,] rc rd vf/kfu;e ds micU/kksa dks dk;kZfUor
djus ds iz;kstukFkZ] isu ,oe uke funsZf'kr lnL; feydj lEcfU/kr fudk; dh
frugha 'kfDr;ksa dk iz;ksx rFkk frUgha drZO;ksa dk ikyu dj ldsaxs A
2 fdlh fo'ofo|ky; }kjk
fjfDr;k jgus ds dkj.k muds }kjk pquko voS/k ugha gksxk A**
25A, In view of the aforesaid provisions, if for any reason, the Senate or Syndicate or the Academic Council is not constituted,theh. till its constitution, for the purpose of carry-
ing out the business under the Act the Ex-officio and nominated members will be competent to exercise the powers and discharge the duties of those bodies. No doubt under Section 10(12) of the Act, some emergency powers have been vested in the Vice-Chancellor to be exercised for taking some immediate action, but it is subject to the limitations prescribed therein. In any case, those cannot extend to making of delegated legislation. In any view of the matter, if the Vice-Chancellor feels that there is any immediate necessity of calling of the meeting of any body constituted under the Act for discharging of its functions, he has been amply empowered in this regard under Sub-section (7) of Section 10 of the Act,
26. Keeping in view the discussions as above, in my opinion, the impugned transitory rules have to be held as ultra vires the powers of the Vice-Chancellor and the Chan-cellor being opposed to the very policy underlying the Act as also for want of statutory sanction.
27. In the end I would like to quote what the Supreme Court has said in matters like the present case after noticing its earlier judgments. In the case of State of Maharashtra v. Vikas Sahebrao Roundale reported in (1992) 4 SCC 435: (AIR 1992 SC 1926) (at p. 439) the Apex Court while expressing its anguish and displeasure has now held as the binding law that at page 1929 (of AIR):
'Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Article 226 of the Constitution, directing the appellants to permit the students to appear for the examination etc.'
28. We do not propose to commit any jurisdictional error of the nature referred to by the Supreme Court as above. Therefore, we refuse to grant any relief to the petitioners
except directing the respondents to consider their application for affiliation, if filed in accordance with the Act and the Statutes framed thereunder to consider and dispose of the same in accordance with law preferably within three months from the date of communication of this order.
29. The writ application is accordingly dismissed. We are not awarding any cost because illegalities have been committed by both the sides.
Gurusharan Sharma, J.
30. I
agree.