ORDER
Y.P. Nargotra, J.
1. Whether the Vice-Chancellor of Jammu University in exercise of his emergency powers vested in him under Section 13(4) of Kashmir & Jammu Universities Act 1969, can pass an order contrary to the statute of the university? Is the question arising for determination in this petition.
2. Before the enactment Kashmir and Jammu Universities Act 1969 (hereinafter called the Act) there was only one University, in the State of J&K.; After the coming into force of the Act two Universities i.e. Jammu University and Kashmir University came into existence. For running the University the Act envisages different bodies and under Section 22, University Council is the Supreme authority of the University and possesses the power :--
(a) to make Statutes under this Act and to amend and repeal the same in consultation with syndicate;
(b) to make Regulations in consultation with the syndicate;
(c) to approve the financial estimates framed by the Syndicate of the University;
(d) to approve plans of development and expansion of the University;
(e) to consider and pass resolutions on the annual reports; and
(f) save as otherwise provided in this Act, to appoint, officers of the status of Joint Registrar, Deputy Librarian and above and teachers of the status of Readers and above and to define their duties.
Provided that no officer or teacher shall be appointed by the University Council until provision has been made for his salary in the approved budget of the University concerned :
Provided further that all appointments (permanent or temporary) to the posts of officers or teacher referred to in this section shall be made by the University Council on the recommendation of the Selection Committee constituted for the purpose in accordance with the provisions of Section 36 of this Act and on such terms and conditions as may be prescribed by the Statutes :
Provided also that the Vice-Chancellor may make appointment of teachers referred to in this section as a temporary measure for period not exceeding six months to carry on the work and if the recommendations of the Selection Committee are not received within a period of six months, the Vice-Chancellor may extend the appointment, if any, made by him, for the duration of the academic session with the approval of the University Council;
(g) to exercise such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the Statutes;
(h) to constitute committees for specific purposes and to assign such duties, to them as it deems fit;
(i) to delegate such of its powers to any officer or authority of the University as it may deem fit, provided that such delegation is made by a majority of not less than two-third of the members of the University Council; and
(j) to exercise such other powers of the University as are not otherwise provided for in this Act and the Statutes and Regulations made thereunder.
As per Section 21 (1) University Council is to consist of :--
(i) the Chancellor;
(ii) the Pro-Chancellor;
(ii-a) the Education Minister;
(iii) the Vice-Chancellor of the University concerned.
(iv) the Vice-Chancellor of the other University established under the provisions of this Act;
(v) the Pro-Vice-Chancellor of the Universities; if any;
(vi) the Financial Advisor;
(vii) the Educational Advisor to the Government or the officer designated by the Government to be in-charge of Higher Education;
(viii) two Deans of the Faculties of the University concerned nominated by the Chancellor, by rotation;
(ix) one Principal of an affiliated/constituent college of the University concerned nominated by the Chancellor, by rotation;
(ix-a) two members of the teaching staff belonging either to the University or the constituent/affiliated colleges to be nominated by the Chancellor in consultation with Pro-Chancellor; and
(x) two nominees of the Chancellor.
3. Section 23 provides for the manner for constituting syndicate a Chief Executive authority for all the matters under the Act except those matters which fall in the purview of University Council in accordance with the provisions of the Act. Section 24 details the functions of the syndicate.
4. Section 25 provides as to how the Academic Council is to be constituted. Section 26 gives the details of functions of the academic council,
5. Besides the aforesaid authorities the University of Jammu is to have under Section 27 of the Act faculties in different disciplines of the university and each faculty has the following powers defined under Section 28 :--
(a) subject to the control of the Academic Council to organize the teaching work of the University in the subjects assigned to the Faculty;
(b) to suggest to the Academic Council the syllabi and courses of studies for the different examinations after consulting the Board of Studies, except such text-books as may be got edited, printed and published in the manner prescribed under the Regulations;
(c) to recommend to the Academic Council the conditions for the award of degrees, diplomas and other distinctions;
(d) to deal with any matter referred to it by the University Council or the Syndicate or the Academic Council;
(e) to discharge such other functions as may be prescribed by the Statutes and Regulations;
(f) to transact such other business as may be approved by the Deans of the Faculties.
6. In the present case dispute pertains to MBBS course. On the recommendations of the concerned Faculty the University Council had enacted the following Statute 6.2 in University Statutes :--
Provided that a candidate who has appeared in an examination in full and fails in marks in the subject only or part thereof by not more than one per cent of the maximum marks in the subject in which he/she has failed, shall be deemed to have passed the examination by adding the required number of marks in the subject or its part as the case may be.
7. This statute was constantly being followed in regard to giving grace marks for declaring a felling candidate as passed in the particular subject until the Vice-Chancellor of the Jammu University ordered otherwise vide notification No. PA/CE/04/ 1609-28 dated 6-7-2004. The notification reads :--
Pursuant to the Medical Council of India (MCI) Notification dated 2nd July, 2002 published in Gazette of India (Part III, Section 4) regarding the amendment of its regulations on Graduate Medical Education, 1997; and on the recommendations of the Dean, Faculty of Medicine, the Vice-Chancellor, in anticipation of the approval of the Competent Authority in exercise of the powers vested in him under Sub-section (4) of Section 13 of the Kashmir and Jammu University Act, 1969 is placed to authorize the adoption of the following sub-regulation w.e.f. 2-7-2002. This will replace the proviso to Statute 6.2 of the Statutes governing MBBS Course notified vide notification No: F.Acad/MBBS/Statutes/98/1767-1866 dated 23-6-1998:
The grace marks up to a maximum of five marks may be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subjects. The notification shall, however, be valid till the Faculty of Medicine takes a considered view in the matter.
Sd/-
CONTROLLER OF EXAMINATIONS
8. Thus Vice-Chancellor in exercise of his power vested in him under Section 13(4) of the Act amended University Statute 6.2. The amendment was directed to remain valid till the Faculty of Medicine took a considered view of the matter. It may be pointed out here that neither the Vice-Chancellor nor the Faculty of Medicine has been conferred any power expressly to enact or amend the Statute of the University. Such power expressly has only been conferred upon the University Council by the Act.
9. The notification dated 6-7-2004 has been withdrawn by the orders of Vice-Chancellor by notification N: F.Acd./V/130/05/ 9406-19 dated 17-3-2005. It reads :--
On the recommendation made by the Faculty of Medicine at its meeting held on 12th Feb. 2005 (Resolution No. 2), the earlier Notification No. PA/CE/04/1609-28 dated 6th July, 2004 issued by the Controller of Examinations after seeking the approval of the Vice-Chancellor in anticipation of approval of the Competent Authority is hereby withdrawn. Consequently, the earlier proviso to Statute 6.2 of the Statutes governing M.B.B.S. Course notified vide notification No. F.Acd/M.B.B.S./Statute/ 98/1767-1866 98/1767-1866 dated 23-6-1998 which reads as under;
Provided that a candidate who has appeared in an examination in full and fails in marks in the subject only or part thereof by not more than one per cent of the maximum marks in the subject in which he/she has failed, shall be deemed to have passed the examination by adding the required number of marks in the subject or its part as the case may be.
is hereby restored.
By order.
Sd/-
(Prof. S. Sudan)
Registrar.
10. Thus by withdrawal of notification the old Statute 6.2 has come to be restored.
11. Petitioners No. 1 to 4 are the students of Govt. Medical College Jammu and petitioners No. 5 to 7 are the students of Acharya Shri Chander Medical College Jammu. They appeared in the final year examination, which started on 4-12-2004 and concluded on 30-1-2005. The result of the candidates except of those who were to be considered for grant of grace marks, which included the petitioners, was declared on 5-3-2005. The result of the candidates to be considered for grace marks was withheld and then declared on 18-3-2005 and by applying the old Statute 6.2 regarding grace marks the petitioners were declared failed. The case of the petitioners is that in their cases the amended Statute 6.2, which was in force on the date they took the examination, should have been applied. Had the same been applied, they could be declared to have passed in the examination.
12. The stand of the university is that amended statute was to remain valid till the faculty of medicine took a considered view. The faculty met on 12-2-2005 and recommended for withdrawal of the notification. In view of the decision of the faculty the result of the concerned candidates was withheld and declared, after the notification dated 17-3-2005 came into force by applying the old Statute 6.2.
13. I have heard the learned Counsel for the parties.
14. The issuance of notification, for amending Statute 6.2 dated 6-7-2004 seems to have been necessitated in view of the notification No. 26 (3)/2002-Med. Dated 2-7-2002 issued by Medical Council of India a statutory body constituted for monitoring and regulating the standard of teaching in medical colleges established in India by various Universities for imparting medical education. By the aforesaid notification the Medical Council of India amended the regulation 13 of Regulations on Graduate Medical Education 1997, to the following effect :-
(1) These regulations may be called the Graduate Medical Education (Amendment) Regulations 2002.
(2) It shall come into force on the date of their publication in the Official Gazette.
2. In the Regulations on Graduate Medical Education, 1977, in Regulation 13, after sub-regulation (9), the following sub-regulation shall be inserted, namely :--
(10) The grace marks up to a maximum of five marks may be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subjects.
15. About 109 universities across the country adopted the said regulation and accordingly amended the statute. The said regulation was however, not adopted by the University of Jammu and the same could not have applied to it ipso facto the university being creation of a statute and competent to make its own statutes under the Act.
16. Under the provisions of Section 22 of the Act the power to make and amend the statute lies with the university council alone. Despite the Medical Council of India notification dated 1st July, 2002 admittedly university council of the University has not adopted the Medical Council of India regulation by amending Statute 6.2 governing the granting of Grace marks. It is only in the year 2004 after a period of two years from the date of issuance of the Medical Council of India notification the Vice-Chancellor of the university in exercise of his emergency powers vested in him under Section 13(4) of the Act of 1969 amended the Statute 6.2 by his notification dated 6-7-2004.
17. Before I examine the question as to whether the Vice-Chancellor of the University possesses the power to take an action contrary to and in derogation of the statutes of the university, it will be appropriate to examine the question, as to whether there was any such emergency which necessitated issuance of the said notification by him. No material has been placed on record by the university to indicate the existence of any such emergency. If in the opinion of the Vice-Chancellor, Statute 6.2 of the university needed to be amended in light of the Medical Council India's notification dated 1st July, 2002, in the ordinary course he should have recommended the amendment of the statute to the University Council, the authority competent to amend the statute under the Act. Instead of doing that Vice-Chancellor invoked his emergency powers and issued notification for amendment of Statute 6.2 on 6th July 2004. If process for amendment of the Statute 6.2 of the University was not undertaken by the competent authority i.e. the University Council for over a period of two years, then what was the emergency for the Vice-Chancellor for issuing the notification dated 6-7-2004. In the absence of the reasons, in the Notification and in the absence of the facts justifying such amendment by the Vice-Chancellor in the Counter Affidavit of the University, it cannot be held that there was any emergency. If the matter of amendment of the statute could wait for two years, it could very well further wait until the issue was considered by the University Council. The emergency powers are always intended to be conferred upon an authority for being used only in an emergent situation, that is to say, if an action is needed to be taken urgently, cannot be taken by the authority competent without delay, such action can instead be taken by authority possessing emergency powers. The background in which Vice Chancellor took the action of amending the statute of the university by no stretch of reasoning can be said to be an action taken in a state of emergency. Be it so, the Vice-Chancellor has issued notification dated 6-7-2004 in exercise of the power vested in him under Sub-section (4)'to Section 13, which reads as follows :--
The Vice-Chancellor may take action as he deems necessary in any emergency which, in his opinion, calls for immediate action. He shall in such a case and as soon as may be thereafter, report his action to the officer, authority or other body of the University concerned who or which would ordinarily have dealt with the matter.
18. Does such power vested in the Vice-Chancellor under Section 13(4) of the Act extends to the passing of the order contrary to and in derogation of a statute of the University?
19. Mr. Sethi, learned Counsel for the petitioner and Mr. D.S. Thakur learned Counsel for the respondent' University in unison submit that in emergency situations the Vice-Chancellor is possessed, of the power and jurisdiction under Section 13 (4) to take any action or make any order which in his opinion needs to be taken or made immediately which may include an action or order contrary to and in violation of the existing statute of the university. I cannot persuade myself to agree with them. In my considered opinion, the interpretation sought to be given by learned Counsel for the parties to the provisions contained in Section 13(4) cannot be accepted. For interpreting and understanding the meaning of a provision of an Act, the provision has to be read as a whole and not in parts. What is the scope of Sub-section (4), is to be understood by understanding the scheme envisaged by Section 13, Sub-section (4) has not to be read in isolation. In case of Lincoln College, (1595) 3 Co. Rep. 53-a at page 59b, it was resolved in the case that the good expositor of an act of Parliament should 'make construction on all the parts together, and not of one part only by itself.' Every clause of a statute is to 'be construed with reference to the context and other clauses of the Act, as far as possible, to make a consistent enactment of the whole statute.'
20. The statute i.e. Act of 1969 in Section 22 makes the University Council of the University as supreme body having the power to make statutes under the Act and to amend and repeal it in consultation with the syndicate. The Act nowhere vests the power with Vice-Chancellor alone either for making the statute or for its amendment or repeal. Now, keeping in mind, the provision of Section 22 of the Act, let us refer to the scheme of Section 13 Sub-section (1) of Section 13 declares that Vice-Chancellor shall be principal executive and academic officer of the university and entitles him in the absence of the Chancellor and the Pro-Chancellor to preside over the meetings of the University Council and in any convocation of the University. He is an ex-officio member and Chairman of the academic Council and such other authorities and bodies as are provided under the provisions of the Act, and is entitled to be present and to speak at any meeting of any authority or body of the University concerned but is not entitled to vote thereat unless he is a member of the authority or the body concerned,
21. Under Sub-section (2), it is provided that, it shall be the duty of the Vice-Chancellor to see that the provisions of this Act, the Statutes and the Regulations are faithfully observed and he shall have all powers necessary for the purpose. Therefore, by reading Sub-sections (1) and (2) it clearly transpires that Vice-Chancellor of the University is a Principal Executive and Academic Officer Of the University and it is obligatory upon him to see that the provisions of the Act, the statutes and the regulations are faithfully observed and in this behalf he possesses all the powers which are necessary to be exercised for the purpose of enforcing/implementing the provisions of the Act/statutes /regulations of the University.
22. Sub-section (3) gives the power to the Vice-Chancellor to convene meetings of the University Council, the Syndicate, the Academic Council and joint meetings of faculties and Boards of Studies of the University concerned.
23. Sub-section (4) vests the power in the Vice-Chancellor for. taking such action as he deems necessary in an emergency and after such action, as soon as may be thereafter, he is bound to report his action to the officer, authority or other body of the University concerned who or which would ordinarily have dealt with the matter.
24. From plain reading of Sub-section (4) in the light of the provisions contained in Sub-section (2) of Section 13, it is manifest that the Vice-Chancellor can take only that action which is in consonance with the provisions of the Act, statutes and the regulations of the University. If such action under Act, is to be taken by the Officer/authority or any other body of the University, if in the opinion of the Vice-Chancellor, calls for immediate action, he can take such action and report the same to the officer/authority or body of the university competent to take such action, under the scheme of the Act, statutes, rules and regulations.
25. For instance, the University Council under Section 22 of the Act possesses the power to appoint officers to the post of Joint Registrar, Dy. Librarians and teachers (below the status of Reader) and to define their duties. If any of the posts falls vacant and in the interest of the administration, it cannot be allowed to remain vacant, in that case the Vice-Chancellor in exercise of powers under Section 13(4) can fill up the vacant posts and report such action to the University Council for ratification of his action. The Vice Chancellor in derogation of the provisions of Section 13 cannot on his own make appointments.
26. Sub-section (4) of Section 13 in my considered opinion admits only one interpretation which is that the Vice-Chancellor can only take such action or make such orders in emergency, on the matters which call for immediate action, which are in tune and in consonance with and which are not in contradiction to and in derogation of the provisions of the Act as well as the statutes and regulations of the University. The Vice-Chancellor of the University, therefore, was not competent to amend statute 6.2 by issuing Notification dated 6-7-2004. This notification was, therefore void ab initio, for having been issued without jurisdiction and competence.
27. However, fact of the matter is that the Vice-Chancellor, by his notification dated 17-3-2005, on the advise of Faculty of Medicines has withdrawn notification dated 6-7-2004, meaning thereby the statute of the university 6.2 as it existed before its amendment by notification dated 6-7-2004, stands restored on the Statute Book of the University.
28. Now the question is whether withdrawn notification dated 6-7-2004 vested any right in the petitioners for being governed thereby for the purpose of granting of the grace-marks.
29. The case of the petitioners is that the aforesaid notification of the Vice-Chancellor was in force when they appeared In the examination, which concluded on 31-1-2005, therefore, their cases for granting of grace marks are required to be considered under the said notification.
30. The stand of the respondent-University, is that it was specifically stated in the notification dated 6-7-2004 that notification shall, however, be valid till the Faculty of Medicine took a considered view in the matter. Without going into the fact that Faculty of Medicine was not competent under the Act to make amendment in the statutes, yet taking it on its face value, it is manifest that notification was to remain operative till Faculty of Medicine took a considered view. The stand of the University is that Faculty of Medicine decided and recommend to the Vice-Chancellor for withdrawal of the notification. Pursuant to the recommendation of the Faculty of Medicine, the Vice-Chancellor vide notification dated 17-3-2005 has withdrawn the amendment and thereby restored the position as it existed before issuance of the said notification.
31. The contention of Mr. Thakur, learned Counsel for the respondent University is that notification dated 6-7-2004 issued at the behest of Vice-Chancellor ceases to operate w.e.f. 12-2-2005 the date on which faculty considered the Issue and recommended it's withdrawal whereas the contention of learned Counsel for the petitioner is that it could cease to operate from the date on which subsequent notification was issued for and on behalf of the Vice-Chancellor i.e. on 17-3-2005, I am in agreement with Mr. Sethi. The consideration by the faculty of medicines, unless published could not have the effect of invalidating the previous notification. Recommendation, of Faculty which has not been published, admittedly, was only a communication between the Vice-Chancellor and the Faculty of Medicines, as such, it could not have by itself, the effect of' withdrawal of the notification dated 6-7-2004. The notification dated 6-7-2004 thus could cease to operate only from the date of issuance of notification dated 17-3-2005, therefore, notification dated 6-7-2004 was in operation till 17-3-2005. The result of the candidates who appeared in the examination was declared on 5th of March 2005, but the result of those candidates whose cases were to be considered for grant of grace marks was kept withheld and ultimately was declared on 18th March 2005 by applying the old statute 6.2 as on that date, amendment notification dated 6-7-2004 stood already withdrawn.
32. Mr. Sethi also questions the power of the Vice-Chancellor for withdrawal of the notification and submits that once the Vice-Chancellor exercised the power validly or invalidly with regard to amendment of the statute, it was for the University Council to consider whether to ratify or not the action of Vice-Chancellor. The Vice-Chancellor had no authority to revoke the notification. I am not in agreement with Mr. Sethi, Once a person possesses power to do something under law, he also possesses the power to undo the same if the same, in his opinion is in violation of the law. In the present case, as already held, the Vice-Chancellor possessed no jurisdiction or competence to issue such notification, therefore, it was well within his power to revoke his illegal action himself.
33. The next contention of Mr. Sethi is that the date of application of the statute regarding grant of grace marks would be the date of examination, whereas the contention of Mr. Thakur is that relevant date would be the date of declaration of the result of, the candidates, whose result stood withheld, which include the petitioners also. I am in agreement with Mr. Thakur. The question of granting of grace marks is related to the declaration of the result of the candidates as passed who otherwise had failed, therefore, the crucial date for deciding the question would be the date of declaration of the result, by keeping the result of the petitioners and other candidates concerned with held, the University appeal's to have deferred the declaration of the result, which it could legally do, and thereafter declared it on a subsequent date i.e. on 18-3-2005. As the result was declared on 18-3-2005. it was on that date the decision with regard to the granting of grace marks was to be taken and. on that date Notification dated 0-7-2004 was not in existence, as such, issue was rightly considered under the old statute by the University. The petitioners were, therefore, not entitled to any benefit on 18-3-2005. on the basis of notification dated G-7-2001. Therefore, there is no merit in tills writ petition of the petitioners, the same Is as such, dismissed.