Sanjay Sharma vs The State Of Punjab and others

M.M. Punchhi, J.—Sanjay Sharma the Petitioner herein is a student. He has a grievance which would well be spelled out in the succeeding paragraphs. He seeks a suitable direction under Articles 226/227 of the Constitution of India against the Respondents.

Under the Punjab State Faculty of Ayurvedic and Unani Systems of Madicine Act, 1963, there is established a faculty by the name of the Punjab State Faculty of Ayurvedic and Unani Systems of Medicines. It is an autonomous body and has within its domain the colleges imparting education in Ayurvedic and Unani Systems of medicine. One such college is Shri Dhanwantri Ayurvedic College, Sector 46, Chandigarh. The Petitioner after passing the Pre-University examination secured admission in the said college in August, 1983 for a 6 years B.A.M.S. Degree Course. The first year of that course is known as pre-Ayurvedic course.

The Petitioner continued with his studies for a year and sat in the first annual examination held in August/September, 1984, for the Pre-Ayurvedic course. The examination consisted of five subjects. The Petitioner, however, could pass only in one subject and was allowed to re-appear in the remaining four subjects. The Petitioner on the strength of such result was allowed to take provisional admission in August/September, 1984 for the first year course (which actually means course for the 2nd year of B.A.M.S.). The next supplementary examination was held sometimes later, and the result was declared in January, 1985 whereby the Petitioner was declared pass in two subjects and allowed to re-appear in the remaining two subjects of Pre-Ayurvedic Course. Then came the time for the next annual examination for Pre-Ayurvedic one year course and the annual examination for the first year course. Both were simultaneous. The Petitioner made an effort to appear in both of them, but the college and the faculty did not grant him permission to appear in the first year course. Then the Petitioner as permitted appeared in the Pre-Ayurvedic Course examination for the two re-appear papers and was ultimately declared successful.

The next supplementary examination for the first year course was due to be held in January, 1986. The Petitioner applied for his candidature, but the same was disallowed on the ground that he was initially not entitled to admission in August/September, 1984 in the first year course for the reason that his admission was violative of the Bye-laws of the faculty and necessarily that of the college.

Panic stricken as he was, he approached this Court on 26-1-1986 and secured an interim order from the Motion Bench permitting the Petitioner to appear in the supplementary examination of first year course at his own risk. And it is the admitted case that the Petitioner has undertaken that examination but his result has not so far been declared.

The Bye-law brought to the fore, which is the defence of the Respondents, is the progeny of Section 17 of the afore-referred to Act, 1963, Section 17 relevently extracted is reproduced hereunder: -

Bye-laws-(1) The Faculty may, with the previous approval of the State Government, make bye-laws not inconsistent with this Act or the rules made thereunder for the following matters, namely:-

(a) xx xx xx

(b) xx xx xx

(c) xx xx xx

(d) xx xx xx

(e) xx xx xx

(f) xx xx xx

(g) XX XX XX

(h) xx xx xx

(2) All bye-laws shall be published in the Official Gazette.

(3) In submitting bye-laws for the approval of the State Government under this section the Faculty shall send a copy of its proceedings relating to the passing of such bye-laws and shall state the number of its members representing the Ayurvedic Systems and Unani Systems, who voted for or against such bye-laws or did not vote in respect of such bye-laws.

(4) In approving the said bye-laws, the State Government shall give due consideration to the opinion of the members of Ayurvedic System and Unani System as expressed in the proceedings.

(5) The State Government may by notification and in consultation with the Faculty cancel any bye-laws made under this section.

The case of the Respondents is that prior to B.A.M.S. course the faculty was running the course known as C.A.M.S. and had framed suitable bye-laws for the purpose. Later the Central Council of Indian Medicines, established under the Indian Medicine Act, 1970, issued a direction to institutions throughout the country that they should have a uniform syllabus relating to B.A.M.S. course and that the faculty in obedience thereto made an effort to substitute the bye-laws by passing a resolution vide Annexure R-2/1 on 10-2-1982 and referred the matter to the State of Punjab for approvl u/s 17 above quoted. It is further stated that the Government gave its approval only on 16-9-1985. It is on this stance that the Respondents claim that they had rightly withheld the candidature of the Petitioner for the examination due to be held in January, 1986.

The bye-laws now operative is indeed a borrowed one, in as much as in the form it was operative as an item in Clause (1) of the Punjabi University Calender, Volume 2. The same was resolved to be adopted as a bye-law. That even is mentioned hereunder:-

A failed/re-appear candidate may be allowed by the Principal of the College to join the next higher class after his failure in the annual examination pending declaration of his result of the supplementary examination, but if he fails to pass in the supplementary examination, his provisional admission to the next higher class shall be canceled.

But if he is placed under compartment or declared re-appear in one subject in the supplementary examination he may be allowed to continue his studies in the next higher class and appear for the compartment subject/re-appear subject along with the next higher examination at the next annual examination.

Provided, however, that the result of such a candidate for the higher class shall be held in abeyance till he clears the compartment/ re-appear paper of the lower examination within the admissible chances under the ordinances and in case he fails to clear the compartment/re-appear paper of the lower examination even in four admissible chances, his candidature for the lower as well as higher examination shall be cancelled. Such a candidate will not be eligible for a prize or a medal.

If the bye-law was applicable in August, 1984, when the Petitioner took provisional admission in the first year course, then his candidature could have been with-held for the examination due to be held in August, 1985 and sequally for the supplementary examination due to be held in January, 1986, for the reason that the Petitioner had to re-appear in two papers and not in one as permitted in the said bye-law. But if the said bye-law was not operative on that date and came to be applied later in September, 1985 when approved by the State Government, the position, as asserted by the Petitioner, would be different and the impugned action of withholding the candidature would be unfair and arbitrary besids being discriminative. Thus the point to be examined is when did the bye-law came into operation.

The key to the question is available in the word "previous." It goes without saying that the bye-laws could be made by the Faculty, but with the previous approval of the State Government which had to be published in the official gazette. In with-holding or according approval the State Government has before it copy of all the proceedings of the faculty relating to the passing of such bye-laws and the pettern of voting for and against those. The Government while approving the said bye-laws is required to give due consideration to the opinion of the members of the Ayurvedic System and Unani System as expressed in the proceedings. It is thus plain from the language of Section 17 and the scheme of its working that the bye-laws in order to be statutorily framed need previous approval of the State Government and previous approval in the context obviously means consent obtained before hand. It means sans approval there could be no bye-laws. If this be the result and interpretation the stance of the Respondents that the bye-laws were applicable with effect from 10-2-1982, the day they were resolved to be adopted by the faculty is plainly without any foundation or merit. The bye-laws only got approved on 16-9-1985. They could have become applicable thereafter only on being published in the official gazette in accordance with Sub-section (2) of Section 17. Nothing has been placed before me to show as to when they were so published. By their merely having been approved by the State Government does not mean that they have become applicable by that circumstance alone.

Even if assuming that the bye-laws did become operative on 16-9-1985, the fact remains that by that date the Petitioner had sat in the Pre-Ayurvedic examination by writing answer papers, the result whereof came in his favour. If his candidature was with-held in August, 1985 for the first year examination then in no event could his candidature, for the supplementary examination, due to be held in January, 1986, be with-held for the bye-laws though having come into force hypothetically, did not fully apply to the case of the Petitioner. Thus for the period pre-existing 16-9-1985 the action of the Respondents and claim of the Petitioner, intermingled as it was, was to be governed by the principles of justness, fairness and devoid of any arbitrariness. Now the faculty and the college had permitted the Petitioner to seek provisional admission to the first year in August, 1984 by charging from him admission fee and allowing him to attend classes for a year charging fee for the period as well. His one year life cannot be allowed to be wasted on the fortuitous circumstances that the bye-laws came into existence later which could have regulated his admission and candidature and permitting him only as a one paper re-appear and not two papers re-appear. When the college and the faculty had permitted him to join the first year course it was on the supposition that his candidature would be in order when appearing in the next ensuing or the still next ensuing examination besides of re-appear papers. It is thus obvious that with-holding the candidature of the Petitioner for the examination of the first year course due to be held in January, 1986, was an action arbitrary, unfair and unjust violative of principles of Article 14 of the Constitution, keeping aside the allegation of the Petitioner that it was discriminative regarding which no meterial substance has been placed on the record.

For the view afore-expressed this petition merits acceptance. It is accordingly allowed, ordering the Respondents to regularise the candidature of the Petitioner and declare his result for the first year course. No costs.