UMESH CHANDRA SINHA Vs. V N SINGH

JUDGEMENT

(1.) The petitioner was an applicant for admission to the Patna Medical College, which is an institution under the control or the Patna University. He was not selected for admission, and the present application under Article 226 of the Constitution has been filed mainly for a declaration that some of the provisions of the Ordinance (Annexure 1) made by the said University for admission of students to the medical course were unconstitutional and for the issue of an appropriate writ on the authorities concerned to reconsider the case of the petitioner sinking down the alleged invalid clauses of the said Ordinance. In the original petition it was claimed that the petitioner was entitled to be admitted, but in a supplementary petition this prayer was modified and Shri Baidyanath Prasad, Counsel for the petitioner, made it clear during the course of his arguments that all that the petitioner desired was that after ignoring the unconstitutional provisions the petitioner's case for admission should be considered and disposed of in accordance with the valid portions of the Ordinance.

(2.) The Patna University is a statutory body established by the old Bihar and Orissa Legislature in 1917 by the Patna University Act, 1917 (Bihar and Orissa Act XVI of 1917). That Act with its subsequent amendments continued in force till 1951, when it was repealed and replaced by the Patna University Act. 1951 (Bihar Act XXV of 1951). That Act was replaced by the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act, 1960 (Bihar Act 14 of 1960), which was again repealed and replaced by the Patna University Act, 1961 (Bihar Act 3 of 1962) (hereinafter referred to as the Act), which is the Act at present in force. Section 30 of the Act empowers the Senate of the University to make Statutes for the purposes mentioned in that section, and Sub-section (4) of Section 31 says that the Statutes so made shall not be valid unless assented to by the Chancellor (Governor of Bihar). Section 32 confers power on the Syndicate of the University to make Ordinances, subject to course to the provisions of the Act and the Statutes. One of the subjects which may be dealt with in the Ordinances is "the admission of students to the University and their enrolment as such" (Clause (a)). Section 33 says that an Ordinance made by the Syndicate shall be submitted to the Chancellor and the Senate, and the Senate is given full power to reject the Ordinance or to approve it with such modifications as may be considered necessary. The proviso to S. 33, however, confers emergency power on the Chancellor to direct the coming into force of the Ordinance passed by the Syndicate without obtaining the approval of the Senate. Section 34 deals with the power of the Academic Council of the University to make Regulations for the purposes mentioned in that section. Section 35 confers rule-making power also on the various authorities of the University. Thus the Scheme of the Act is to confer power on the various authorities of the University, namely, the Senate, the Syndicate and the Academic Council, to make Statutes, Ordinances and Regulations and also to make Rules for the various purposes mentioned in the relevant sections concerned. In pursuance of the powers conferred by Section 32, the appropriate authorities made the Ordinance for admission of students to the medical course (Annexure I). The Ordinance consists of six clauses. The first clause contains detailed instructions about calculating the marks to be awarded to each applicant for admission on a somewhat artificial basis. It is unnecessary to refer to these details here. Clause 2, however, may be quoted in full: --

(3.) The petitioner's case was that his total marks were 50.2 per cent; and though he was denied admission, some of the candidates who got less marks than the petitioner were given admission mainly on the basis of Sub-clauses (e), (f) and (g) of Clause 2 of the Ordinance. It was urged that these sub-clauses were discriminatory in nature and were not saved by Clause (4) of Article 15 of the Constitution. Counsel for the petitioner, therefore, urged that Sub-clauses (e), (f) and (g) should be struck down as unconstitutional and the appropriate authorities should be directed to reconsider the application of the petitioner in accordance with the remaining provisions of the Ordinance. The constitutionality of Sub-clauses (a), (b), (c) and (d) was not challenged at the time of arguments and they will be clearly protected by Clause (4), read with Clause (3) of Article 15 of the Constitution.