The Director/Controller of Examinations, National Council for Hotel Management and Catering Technology, New Delhi and Another Vs. Sahir Dhamija and Others - Court Judgment

Excerpt:
- [s. abdul nazeer, j.] code of civil procedure, 1908 — order 23 rule 3-b -representative suit — compromise of — leave of the court - the suit in question is a representative suit which comes within the explanation(d) of order 23 rule 3-b of c.p.c. — the explanation to order 23 rule 3-b of cpc explains the meaning of the words ‘representative suit’ employed in sub-rule (1) of order 23 rule 3-b of cpc. explanation (d) of order 23 rule 3-b of cpc states that a representative suit means, any other suit in law in which the decree passed may, by virtue of the provisions of cpc or of any other law for the time being in force, bind any person who is not named as party to the suit. bombay public trust act comes within the expression ‘any other law for time being in force’. it is settled that the decision under section 50 of the act binds not only the parties to the suit but also those who are interested in the trust. the judgment operates as a judgment in rem and is not merely a judgment in personem. admittedly, the compromise has been entered into by the parties without the leave of the court. in the circumstances, the compromise entered into between the parties is void and it requires to be recalled. i.a. no. 1/2008 is allowed and i.a. no. iii/2008 is dismissed.   - university of himachal pradesh and others, air 1973 sc 221, (1973)2 scc 298 judgement 1. this intra court appeal is directed against the order of the learned single judge permitting the respondent-students of diploma course in hotel management in the 2nd appellant-institution, to appear at the supplementary examination in spite of their failure to fulfil the attendance requirement prescribed under the 'examination rules of the national council for hotel management and catering technology' (in short the 'examination rules'). 2. under the examination rules framed by the national council for hotel management and catering technology (in short the 'national council'), for being eligible to take the council's examinations, a candidate was required to attend minimum 75% of the aggregate of all lectures, tutorial classes and practicals held and the head of the institution has power only to condone shortfall of 10% under certain exceptional circumstances set out in the examination rul if after such a review, any student is allowed to appear in the examination, an undertaking must be obtained from him to make good the deficiency in the next year by additional practical/theoretical classes failing which he may not be allowed to sit in the next year's examination. no other appeal against the decision of the principal will be admissible'.5. the above instruction pertained to the academic year 1998-99. it appears that the board of governors of the national council and the principal of the appellant-institute faithfully followed the said direction of the additional director but on having subsequently realised the illegalities embodied in the said direction, they refused to give the benefit of similar nature to the students of subsequent academic years like the respondents herein which ultimately led to filing of the writ petition wherein the impugned order has been passed by the learned single judge. 6. learned single judge has granted the desired relief to the respondent-students by taking the view that (i) the national council is an instrumentality of the government and therefore it is required to act as per the policy decision taken by the latter, and, (ii) the objections to the competence of the central government to issue instructions like the one contained in annexure-e should have been raised at the very threshold but having obediently followed for one academic year, the same cannot be denied to the students of subsequent academic years. 7. the issue and contentions raised at the bar necessitates ascertainment of legal relationship between the national council, its affiliated institutions like the 2nd appellant and the government of india, because, the principal question to be addressed herein would be as to whether either of the appellants were bound to obey the instructions/directions issued by any central minister or head of any department or ministry of the central government in academic matters, more so, if such instructions/directions are found to be contrary to the provisions contained in the examination rules. in such cases the internal assessment put in shall be preserved by the head of the institution and presented at the subsequent examination'.12. the above facts clearly establishes that national council has its own juristic identity and in that capacity it has prescribed for running of various courses in hotel management and catering technology having its own scheme of holding training and examinations through its affiliated institutions and grant of diploma certificates. inter-relationship between the national council, institute and the central government 14. it is well-settled that registered societies like the government companies, though on fulfilling of certain conditions can be held to be instrumentalities of the government for the purpose of article 12 of the constitution of india but only for that reason those cannot be held to be departments of the government since such bodies have their existence independent of government -see sabhajit tewary v union of india and others and tekraj vasandi alias k. 15. it is no doubt true that both the national council as well as the institute owes their existence to the central government. v sarat chandra patnaik .18. it is further of importance that even if the central government through its appropriate ministry was competent to issue general instructions even in academic matters, it could have at best directed the national council to amend the examination rules and thereafter amended rules could have been made applicable to the students of all the affiliated institutions. 19. for the aforesaid reasons, in our considered opinion, the appellant-national council as well as the institute are right in not extending the alleged benefit contemplated under government letter at annexure-e to the respondent-students. it is quite known to all concerned in academic fields that supplementary examination can be availed only by a candidate who was eligible to sit at the annual examination but for one or the other reason had not availed the same or had failed in any or all the subjects at the annual examination. in our opinion, the appeal must fail on this short point.acts/rules/orders:constitution of india - articles 12 and 226;societies registration act, 1860;union territories of india (punjab amendment act, 1957);memorandum of association, examination rules, management and academic rulescases referred:sabhajit tewary v. union of india and others, air 1975 sc 1329, (1975)1 scc 485, 1975 lab. i.c. 819 (sc);tekraj vasandi alias k.l. basandhi v. union of india and others, air 1988 sc 469;real food products limited and others v. andhra pradesh state electricity board and others, air 1995 sc 2234, (1995)3 scc 295;managing director, orissa i.i.d.c. v. sarat chandra patnaik, (1996)4 scc 590;ashok kumar thakur v. university of himachal pradesh and others, air 1973 sc 221, (1973)2 scc 298judgement1. this intra court appeal is directed against the order of the learned single judge permitting the respondent-students of diploma course in hotel management in the 2nd appellant-institution, to appear at the supplementary examination in spite of their failure to fulfil the attendance requirement prescribed under the 'examination rules of the national council for hotel management and catering technology' (in short the 'examination rules').2. under the examination rules framed by the national council for hotel management and catering technology (in short the 'national council'), for being eligible to take the council's examinations, a candidate was required to attend minimum 75% of the aggregate of all lectures, tutorial classes and practicals held and the head of the institution has power only to condone shortfall of 10% under certain exceptional circumstances set out in the examination rules.3. admittedly, as even found by the learned single judge, attendance of respondent-students was much below even 65% and as such even head of the institution could not have permitted them to appear at the final examination. but, still the learned single judge under the impugned order has permitted the respondent-students to appear at the supplementary examination by taking into consideration the letter dated 7-4-1998 (annexure-e to the writ petition) written by the additional director general (tourism), department of tourism, government of india.4. the letter at annexure-e spells out that keeping in view the representation received from parents of one student of the appellant- institution, whose attendance had fallen short of the minimum requirement, the ministry thought that the examination rules should be reviewed so that for such shortfalls, complete one year of a student should not go waste. by setting the said background, in paragraph 2 of the said letter, the following instructions were issued to the appellants:'pending such general review, it has been decided that for this year only without making it a precedent in any way, the principal of the ihm-bangalore, may be authorised to examine each case on merit, and decide the cases he considers deserving after taking into consideration all facts and using his objectives direction. for this purpose, he is authorised to use his discretion upto a maximum of another 10% beyond that he is presently authorised. if after such a review, any student is allowed to appear in the examination, an undertaking must be obtained from him to make good the deficiency in the next year by additional practical/theoretical classes failing which he may not be allowed to sit in the next year's examination. no other appeal against the decision of the principal will be admissible'.5. the above instruction pertained to the academic year 1998-99. it appears that the board of governors of the national council and the principal of the appellant-institute faithfully followed the said direction of the additional director but on having subsequently realised the illegalities embodied in the said direction, they refused to give the benefit of similar nature to the students of subsequent academic years like the respondents herein which ultimately led to filing of the writ petition wherein the impugned order has been passed by the learned single judge.6. learned single judge has granted the desired relief to the respondent-students by taking the view that (i) the national council is an instrumentality of the government and therefore it is required to act as per the policy decision taken by the latter, and, (ii) the objections to the competence of the central government to issue instructions like the one contained in annexure-e should have been raised at the very threshold but having obediently followed for one academic year, the same cannot be denied to the students of subsequent academic years.7. the issue and contentions raised at the bar necessitates ascertainment of legal relationship between the national council, its affiliated institutions like the 2nd appellant and the government of india, because, the principal question to be addressed herein would be as to whether either of the appellants were bound to obey the instructions/directions issued by any central minister or head of any department or ministry of the central government in academic matters, more so, if such instructions/directions are found to be contrary to the provisions contained in the examination rules.constitution and objects of the national council 8. the national council is a society registered under the provisions of the societies registration act, 1860 as extended to the union territories of india (punjab amendment act, 1957). copies of its memorandum of association, examination rules, management and academic rules have been filed through personal affidavit of the director of the 2nd appellant-institute as annexures-a, b and c.9. the national council was formed by 8 persons, four of whom are the senior officials of the government of india in the ministry of agriculture, department of food and the remaining 4 members are the principals of 4 institutes of hotel management and catering technology situate at bombay, new delhi, calcutta and madras. as is evident from its memorandum of association, the principal aims and objects of the national council are the following.--(a) formation, guidance and coordination of various types of studies, knowledge and research in field of food management, hotel management, catering technology and applied nutrition, and allied skills and crafts; (b) to affiliate institutions concerned with the subject and prescribe courses of study and instructions leading to examinations conducted by it; (c) to prescribe standards for buildings and equipments of affiliated institutions; (d) to prescribe educational qualifications and other standards for the members of staff of affiliated institutions; and where necessary, to depute them for their further training etc., both inside and outside the country; (e) to prescribe educational and other qualifications for admission of students to affiliated institutions; (f) to prescribe the manner of admission of students to the affiliated institutions; (g) to admit candidates to examinations conducted by it; (h) to conduct examinations for promotion from lower to higher classes and also for awarding certificates and diplomas; (i) to publish results of examinations conducted by it; (j) to grant certificates and diplomas to students who have completed the prescribed courses of study in an affiliated institution and have passed the examinations conducted by it. 10. rule 30 of the rules and regulations of the national council for hotel management and catering technology (in short the 'rules and regulations') empowers the board of governors of the national council to exercise all executive, financial and academic powers of the society subject nevertheless, in respect of grants given by the government of india subject to such limitations as the government may from time to time may impose. clause (c) of this rule is material for the present purpose which reads thus.--'30(c).--without prejudice to the generality enunciated in rule 30(a) above, the board of governors may make such academic regulations as it may deem fit and such academic regulations may be provided for.-- (1) the admission of students to affiliated institutions; (2) the courses of study and training to be provided by affiliatedinstitutions; (3) the award of diplomas, certificates and other academic distinctions and the requirements which the students should fulfil for obtaining the same; (4) holding of professional and craft examinations as may be considered necessary for furtherance of the aims of the memorandum of association; (5) conferring professional recognition and laying down of criteriatherefor; (6) the fees to be charged for admission to the examinations leading to diplomas and certificates of the council; (7) the conditions for the award of fellowships, scholarships, studentship and academic distinction; (8) the conduct of examinations, including the terms of the office, manner of appointment and duties of the examining bodies, examiners and moderators; (9) the remunerations to be paid to examiners, moderators, supervisors, invigilators and tabulators who assist in the conduct of the examinations; (10) the manner of recognition of the courses of study and the type of training and examinations to be conducted by affiliated institutions for the diplomas, certificates and other academic distinction; (11) the collaboration with universities with a view to effecting coordination and avoiding conflict; (12) any other matter which may be connected with, or incidental to any of the matters aforesaid'. 11. the examination rules have been framed by the national council. rule 4 of these rules deal with the eligibility of admission to examination. the same is being extracted hereunder to the extent it is relevant for the present purposes.--'4.1 in order to be eligible to take the council's examinations (any year or course), a candidate must have: 4.1.1 been on the roll of an affiliated institution for one full academic year in the course for which he/she wants to take the examination; 4.1.2 submitted his/her application to the controller of examinations through the head of the institution last attended or any other authority nominated by the national council for hotel management and catering technology for this purpose; 4.1.3 produce the following certificates signed by the forwarding authority.-- (a) of having attended not less than 70% of classes in any individual subject theory or practical taken separately, during the session last attended and minimum of 75% of the aggregate of all lectures, tutorial classes and practicals held (effective teaching hours/contract hours). attendance in lectures, practicals and tutorials shall be counted from the date of assumption of teaching after summer vacations; (b) every period of lecture, tutorial, practical, project and workshop work as applicable shall be counted as one unit for the purpose of counting attendance e.g., if a class covers four periods at a time, four units of attendance will be counted; (c) each candidate should have carried out laboratory, practical assignment etc., prescribed in the course taken by him/her to the satisfaction of the head of the institution and certified by the head of that institution as fit for appearing at the examination as regards progress, conduct and character provided that such candidates have not been debarred from appearing for any examination held by any government or constituted statutory examination authority in india at the time when examination are held by the national council for hotel management and catering technology. 4.1.4 when on account of bona fide illness (supported by a medical certificate from a registered medical practitioner produced by the candidate at the time of illness or immediately thereafter) or for any other reason deemed sufficient by the head of the institution, the total attendance of a candidate falls short upto a maximum of 10 per cent of the total working days, the head of the institution shall he competent to condone such deficiency in attendance and permit such a candidate to appear for the examination if otherwise eligible. 4.1.5 a candidate who is disallowed from appearing for an examination for not fulfilling the conditions at paras (a), (b) and/or (c) shall be required to fulfill all the conditions afresh, before being entitled to appear for the examination. 4.1.6 a candidate who fulfills the conditions at paras (a), (b) and (c) above but does not appear for the examination, may at his/her option appear for the subsequent examination as an ex-student. in such cases the internal assessment put in shall be preserved by the head of the institution and presented at the subsequent examination'. 12. the above facts clearly establishes that national council has its own juristic identity and in that capacity it has prescribed for running of various courses in hotel management and catering technology having its own scheme of holding training and examinations through its affiliated institutions and grant of diploma certificates.regarding appellant-institute of hotel management, catering technology and nutrition13. the institute of hotel management, catering technology and nutrition (in short the 'institution'') was established in the year 1969. it was jointly sponsored by government of india and government of karnataka. it is a registered society under the provisions of the karnataka societies registration act, 1860. it is managed by its board of governors. the director of the institute has filed its memorandum of association at annexure-e. as is evident from the objects contained in the said memorandum of association, it has been set up to provide instructions and trainings in various crafts and skills and presently it is conducting courses in hotel management, catering technology and nutrition as an affiliated institute of the national council. for conducting all thesecourses it has to strictly abide by the examination rules framed by the national council.inter-relationship between the national council, institute and the central government 14. it is well-settled that registered societies like the government companies, though on fulfilling of certain conditions can be held to be instrumentalities of the government for the purpose of article 12 of the constitution of india but only for that reason those cannot be held to be departments of the government since such bodies have their existence independent of government -- see sabhajit tewary v union of india and others and tekraj vasandi alias k.l. basandhi v union of india and others.15. it is no doubt true that both the national council as well as the institute owes their existence to the central government. it is also true that under their respective memorandums of association, the central government through its appropriate ministry can issue certain directions in furtherance of their objects. clause (4) of the memorandum of association of the national council empowers the central government to issue instructions in the following terms.--'4. government of india may issue such instructions to the society as it may consider necessary from time to time for the furtherance of the objects of the society and for ensuring its proper functioning and control and the society shall comply with such instructions'.16. similarly, clause (5) of the memorandum of association of the institute empowers the central government to issue instructions for the following purposes.--'5. the central government may issue such instructions to the society or the institute as it may consider necessary from time to time for the furtherance of the objects of the society and for ensuring proper functioning and control of the institute and the society shall comply with such instructions'.17. from the above stipulations contained in the two memorandums of association, it is clear that the central government through its appropriate ministry can issue instructions to the national council or the institute only for the purposes of (i) the furtherance of objects of the society, and (ii) for ensuring proper functioning and control of the institute. under neither of the two clauses, the central government has been empowered to issue any instruction to interfere with academic matters which are to be conducted by the national council or the institute. anyhow, even if such a power is conceded to the central government, then it has to be necessarily an instruction of general nature and not aimed to benefit certain students of given or particular institute --see real food products limited and others v andhra pradesh state electricity board and others and managing director, orissa i.i.d.c. v sarat chandra patnaik .18. it is further of importance that even if the central government through its appropriate ministry was competent to issue general instructions even in academic matters, it could have at best directed the national council to amend the examination rules and thereafter amended rules could have been made applicable to the students of all the affiliated institutions. but during the subsistence of the examination rules, the central government could not have issued directions to the affiliated institutions to act in violation thereof.19. for the aforesaid reasons, in our considered opinion, the appellant-national council as well as the institute are right in not extending the alleged benefit contemplated under government letter at annexure-e to the respondent-students. at this stage, it is also to be borne in mind that if a student is not found to be eligible to sit at the annual examination for shortage of attendance requirement then he cannot be allowed to avail even the benefit of supplementary examination. it is quite known to all concerned in academic fields that supplementary examination can be availed only by a candidate who was eligible to sit at the annual examination but for one or the other reason had not availed the same or had failed in any or all the subjects at the annual examination.20. in the case of ashok kumar thakur v university of himachal pradesh and others , the apex court has held that.--'considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. since, the principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favour of the petitioner even if the petitioner had succeeded in making out a case for condonation. in our opinion, the appeal must fail on this short point. much as we regret the unfortunate fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the high court, and dismiss the petitioner's appeal'.21. for the aforesaid reasons, the impugned order dated 9-7-1999 in w.p. nos. 9272-79 of 1999 passed by the learned single judge is set aside. the appeal is allowed out there will be no order as to costs.

Judgment:
Acts/Rules/Orders:

Constitution of India - Articles 12 and 226;Societies Registration Act, 1860;Union Territories of India (Punjab Amendment Act, 1957);Memorandum of Association, Examination Rules, Management and Academic Rules

Cases Referred:

Sabhajit Tewary v. Union of India and Others, AIR 1975 SC 1329, (1975)1 SCC 485, 1975 Lab. I.C. 819 (SC);Tekraj Vasandi alias K.L. Basandhi v. Union of India and Others, AIR 1988 SC 469;Real Food Products Limited and Others v. Andhra Pradesh State Electricity Board and Others, AIR 1995 SC 2234, (1995)3 SCC 295;Managing Director, Orissa I.I.D.C. v. Sarat Chandra Patnaik, (1996)4 SCC 590;Ashok Kumar Thakur v. University of Himachal Pradesh and Others, AIR 1973 SC 221, (1973)2 SCC 298

JUDGEMENT

1. This intra Court appeal is directed against the order of the learned Single Judge permitting the respondent-students of diploma course in Hotel Management in the 2nd appellant-Institution, to appear at the supplementary examination in spite of their failure to fulfil the attendance requirement prescribed under the 'Examination Rules of the National Council for Hotel Management and Catering Technology' (in short the 'Examination Rules').

2. Under the Examination Rules framed by the National Council for Hotel Management and Catering Technology (in short the 'National Council'), for being eligible to take the Council's examinations, a candidate was required to attend minimum 75% of the aggregate of all lectures, tutorial classes and practicals held and the Head of the Institution has power only to condone shortfall of 10% under certain exceptional circumstances set out in the Examination Rules.

3. Admittedly, as even found by the learned Single Judge, attendance of respondent-students was much below even 65% and as such even Head of the Institution could not have permitted them to appear at the final examination. But, still the learned Single Judge under the impugned order has permitted the respondent-students to appear at the supplementary examination by taking into consideration the letter dated 7-4-1998 (Annexure-E to the writ petition) written by the Additional Director General (Tourism), Department of Tourism, Government of India.

4. The letter at Annexure-E spells out that keeping in view the representation received from parents of one student of the appellant- Institution, whose attendance had fallen short of the minimum requirement, the ministry thought that the Examination Rules should be reviewed so that for such shortfalls, complete one year of a student should not go waste. By setting the said background, in paragraph 2 of the said letter, the following instructions were issued to the appellants:

'Pending such general review, it has been decided that for this year only without making it a precedent in any way, the Principal of the IHM-Bangalore, may be authorised to examine each case on merit, and decide the cases he considers deserving after taking into consideration all facts and using his objectives direction. For this purpose, he is authorised to use his discretion upto a maximum of another 10% beyond that he is presently authorised. If after such a review, any student is allowed to appear in the examination, an undertaking must be obtained from him to make good the deficiency in the next year by additional practical/theoretical classes failing which he may not be allowed to sit in the next year's examination. No other appeal against the decision of the Principal will be admissible'.

5. The above instruction pertained to the academic year 1998-99. It appears that the Board of Governors of the National Council and the Principal of the appellant-Institute faithfully followed the said direction of the Additional Director but on having subsequently realised the illegalities embodied in the said direction, they refused to give the benefit of similar nature to the students of subsequent academic years like the respondents herein which ultimately led to filing of the writ petition wherein the impugned order has been passed by the learned Single Judge.

6. Learned Single Judge has granted the desired relief to the respondent-students by taking the view that (i) the National Council is an instrumentality of the Government and therefore it is required to act as per the policy decision taken by the latter, and, (ii) the objections to the competence of the Central Government to issue instructions like the one contained in Annexure-E should have been raised at the very threshold but having obediently followed for one academic year, the same cannot be denied to the students of subsequent academic years.

7. The issue and contentions raised at the Bar necessitates ascertainment of legal relationship between the National Council, its affiliated institutions like the 2nd appellant and the Government of India, because, the principal question to be addressed herein would be as to whether either of the appellants were bound to obey the instructions/directions issued by any Central Minister or head of any department or ministry of the Central Government in academic matters, more so, if such instructions/directions are found to be contrary to the provisions contained in the Examination Rules.

Constitution and objects of the National Council

8. The National Council is a Society registered under the provisions of the Societies Registration Act, 1860 as extended to the Union Territories of India (Punjab Amendment Act, 1957). Copies of its Memorandum of Association, Examination Rules, Management and Academic Rules have been filed through personal affidavit of the Director of the 2nd appellant-Institute as Annexures-A, B and C.

9. The National Council was formed by 8 persons, four of whom are the senior officials of the Government of India in the Ministry of Agriculture, Department of Food and the remaining 4 members are the Principals of 4 Institutes of Hotel Management and Catering Technology situate at Bombay, New Delhi, Calcutta and Madras. As is evident from its Memorandum of Association, the principal aims and objects of the National Council are the following.--

(a) formation, guidance and coordination of various types of studies, knowledge and research in field of Food Management, Hotel Management, Catering Technology and Applied Nutrition, and allied skills and crafts;

(b) to affiliate institutions concerned with the subject and prescribe courses of study and instructions leading to examinations conducted by it;

(c) to prescribe standards for buildings and equipments of affiliated institutions;

(d) to prescribe educational qualifications and other standards for the members of staff of affiliated institutions; and where necessary, to depute them for their further training etc., both inside and outside the country;

(e) to prescribe educational and other qualifications for admission of students to affiliated institutions;

(f) to prescribe the manner of admission of students to the affiliated Institutions;

(g) to admit candidates to examinations conducted by it;

(h) to conduct examinations for promotion from lower to higher classes and also for awarding certificates and diplomas;

(i) to publish results of examinations conducted by it;

(j) to grant certificates and diplomas to students who have completed the prescribed courses of study in an affiliated institution and have passed the examinations conducted by it.

10. Rule 30 of the Rules and Regulations of the National Council for Hotel Management and Catering Technology (in short the 'Rules and Regulations') empowers the Board of Governors of the National Council to exercise all executive, financial and academic powers of the Society subject nevertheless, in respect of grants given by the Government of India subject to such limitations as the Government may from time to time may impose. Clause (c) of this Rule is material for the present purpose which reads thus.--

'30(c).--Without prejudice to the generality enunciated in Rule 30(a) above, the Board of Governors may make such Academic Regulations as it may deem fit and such Academic Regulations may be provided for.--

(1) the admission of students to affiliated institutions;

(2) the courses of study and training to be provided by affiliatedinstitutions;

(3) the award of diplomas, certificates and other academic distinctions and the requirements which the students should fulfil for obtaining the same;

(4) holding of professional and craft examinations as may be considered necessary for furtherance of the aims of the Memorandum of Association;

(5) conferring professional recognition and laying down of criteriatherefor;

(6) the fees to be charged for admission to the examinations leading to diplomas and certificates of the Council;

(7) the conditions for the award of fellowships, scholarships, studentship and academic distinction;

(8) the conduct of examinations, including the terms of the office, manner of appointment and duties of the examining bodies, examiners and moderators;

(9) the remunerations to be paid to examiners, moderators, supervisors, invigilators and tabulators who assist in the conduct of the examinations;

(10) the manner of recognition of the courses of study and the type of training and examinations to be conducted by affiliated institutions for the diplomas, certificates and other academic distinction;

(11) the collaboration with universities with a view to effecting coordination and avoiding conflict;

(12) any other matter which may be connected with, or incidental to any of the matters aforesaid'.

11. The Examination Rules have been framed by the National Council. Rule 4 of these Rules deal with the eligibility of admission to examination. The same is being extracted hereunder to the extent it is relevant for the present purposes.--

'4.1 In order to be eligible to take the Council's examinations (any year or course), a candidate must have:

4.1.1 Been on the roll of an affiliated institution for one full academic year in the course for which he/she wants to take the examination;

4.1.2 Submitted his/her application to the Controller of Examinations through the Head of the Institution last attended or any other authority nominated by the National Council for Hotel Management and Catering Technology for this purpose;

4.1.3 Produce the following certificates signed by the forwarding authority.--

(a) of having attended not less than 70% of classes in any individual subject theory or practical taken separately, during the session last attended and minimum of 75% of the aggregate of all lectures, tutorial classes and practicals held (effective teaching hours/contract hours). Attendance in lectures, practicals and tutorials shall be counted from the date of assumption of teaching after summer vacations;

(b) every period of lecture, tutorial, practical, project and workshop work as applicable shall be counted as one unit for the purpose of counting attendance e.g., if a class covers four periods at a time, four units of attendance will be counted;

(c) each candidate should have carried out laboratory, practical assignment etc., prescribed in the course taken by him/her to the satisfaction of the Head of the Institution and certified by the Head of that Institution as fit for appearing at the examination as regards progress, conduct and character provided that such candidates have not been debarred from appearing for any examination held by any Government or constituted statutory examination authority in India at the time when examination are held by the National Council for Hotel Management and Catering Technology.

4.1.4 When on account of bona fide illness (supported by a Medical Certificate from a Registered Medical Practitioner produced by the candidate at the time of illness or immediately thereafter) or for any other reason deemed sufficient by the Head of the Institution, the total attendance of a candidate falls short upto a maximum of 10 per cent of the total working days, the Head of the Institution shall he competent to condone such deficiency in attendance and permit such a candidate to appear for the examination if otherwise eligible.

4.1.5 A candidate who is disallowed from appearing for an examination for not fulfilling the conditions at paras (a), (b) and/or (c) shall be required to fulfill all the conditions afresh, before being entitled to appear for the examination.

4.1.6 A candidate who fulfills the conditions at paras (a), (b) and (c) above but does not appear for the examination, may at his/her option appear for the subsequent examination as an ex-student. In such cases the internal assessment put in shall be preserved by the Head of the Institution and presented at the subsequent examination'.

12. The above facts clearly establishes that National Council has its own juristic identity and in that capacity it has prescribed for running of various courses in Hotel Management and Catering Technology having its own scheme of holding training and examinations through its affiliated institutions and grant of diploma certificates.

Regarding appellant-Institute of Hotel Management, Catering Technology and Nutrition

13. The Institute of Hotel Management, Catering Technology and Nutrition (in short the 'Institution'') was established in the year 1969. It was jointly sponsored by Government of India and Government of Karnataka. It is a registered society under the provisions of the Karnataka Societies Registration Act, 1860. It is managed by its Board of Governors. The Director of the Institute has filed its Memorandum of Association at Annexure-E. As is evident from the objects contained in the said Memorandum of Association, it has been set up to provide instructions and trainings in various crafts and skills and presently it is conducting courses in Hotel Management, Catering Technology and Nutrition as an affiliated Institute of the National Council. For conducting all thesecourses it has to strictly abide by the Examination Rules framed by the National Council.

Inter-relationship between the National Council, Institute and the Central Government

14. It is well-settled that Registered Societies like the Government Companies, though on fulfilling of certain conditions can be held to be instrumentalities of the Government for the purpose of Article 12 of the Constitution of India but only for that reason those cannot be held to be departments of the Government since such bodies have their existence independent of Government -- See Sabhajit Tewary v Union of India and Others and Tekraj Vasandi alias K.L. Basandhi v Union of India and Others.

15. It is no doubt true that both the National Council as well as the Institute owes their existence to the Central Government. It is also true that under their respective Memorandums of Association, the Central Government through its appropriate Ministry can issue certain directions in furtherance of their objects. Clause (4) of the Memorandum of Association of the National Council empowers the Central Government to issue instructions in the following terms.--

'4. Government of India may issue such instructions to the Society as it may consider necessary from time to time for the furtherance of the objects of the Society and for ensuring its proper functioning and control and the Society shall comply with such instructions'.

16. Similarly, clause (5) of the Memorandum of Association of the Institute empowers the Central Government to issue instructions for the following purposes.--

'5. The Central Government may issue such instructions to the Society or the Institute as it may consider necessary from time to time for the furtherance of the objects of the Society and for ensuring proper functioning and control of the Institute and the Society shall comply with such instructions'.

17. From the above stipulations contained in the two Memorandums of Association, it is clear that the Central Government through its appropriate Ministry can issue instructions to the National Council or the Institute only for the purposes of (i) the furtherance of objects of the Society, and (ii) for ensuring proper functioning and control of the Institute. Under neither of the two clauses, the Central Government has been empowered to issue any instruction to interfere with academic matters which are to be conducted by the National Council or the Institute. Anyhow, even if such a power is conceded to the Central Government, then it has to be necessarily an instruction of general nature and not aimed to benefit certain students of given or particular institute --See Real Food Products Limited and Others v Andhra Pradesh State Electricity Board and Others and Managing Director, Orissa I.I.D.C. v Sarat Chandra Patnaik .

18. It is further of importance that even if the Central Government through its appropriate Ministry was competent to issue general instructions even in academic matters, it could have at best directed the National Council to amend the Examination Rules and thereafter amended rules could have been made applicable to the students of all the affiliated institutions. But during the subsistence of the Examination Rules, the Central Government could not have issued directions to the affiliated institutions to act in violation thereof.

19. For the aforesaid reasons, in our considered opinion, the appellant-National Council as well as the Institute are right in not extending the alleged benefit contemplated under Government letter at Annexure-E to the respondent-students. At this stage, it is also to be borne in mind that if a student is not found to be eligible to sit at the annual examination for shortage of attendance requirement then he cannot be allowed to avail even the benefit of supplementary examination. It is quite known to all concerned in academic fields that supplementary examination can be availed only by a candidate who was eligible to sit at the annual examination but for one or the other reason had not availed the same or had failed in any or all the subjects at the annual examination.

20. In the case of Ashok Kumar Thakur v University of Himachal Pradesh and Others , the Apex Court has held that.--

'Considering that this case concerns the career of a young student we tried to look at the matter with all possible sympathy and consideration but we do not see how we can direct or compel an authority to do something which is beyond its legal competence to do. Since, the Principal is the only authority who can condone and since it was beyond his competence to condone the shortage in question, we do not see how we can intervene in favour of the petitioner even if the petitioner had succeeded in making out a case for condonation. In our opinion, the appeal must fail on this short point. Much as we regret the unfortunate fact that the petitioner is going to lose almost two precious years of his academic life we are in law bound to confirm the decision of the High Court, and dismiss the petitioner's appeal'.

21. For the aforesaid reasons, the impugned order dated 9-7-1999 in W.P. Nos. 9272-79 of 1999 passed by the learned Single Judge is set aside. The appeal is allowed out there will be no order as to costs.