*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION Nos.8720 and 9071 of 2004 %30-11-2004 W.P.8720 of 2004 # Sri G.Dinesh Kumar and others ..PETITIONERS Vs. $ The Vice Chancellor, Jawaharlal Nehru Technological University, Kukatpally, Hyderabad and another. ..RESPONDENTS W.P.No.9071 of 2004 # A.Vinay Kumar …PETITIONER Vs. # The Vice Chancellor, Jawaharlal Nehru Technological University, Kukatpally, Hyderabad and another. …RESPONDENTS Counsel for both the writ petitions ! COUNSEL FOR PETITIONERS: Mr. M.Govind Reddy ^ COUNSEL FOR RESPONDENT No.1: M/s C.Kodanda Ram COUNSEL FOR RESPONDENT No.2: Mr. S.Niranjan Reddy <GIST >HEAD NOTE: ?CASES REFERRED: 1. AIR 1962 SC 316 2. AIR 1967 SC 1373 3. AIR 1978 SC 597 4. AIR 1981 SC 487 5. AIR 1964 SC 464 6. AIR 1984 SC 541 7. 1977 Appeal Cases 1014 8. 408 US 104 (1972) 9. AIR 1962 SC 110 10. AIR 1070 SC 1039 11. AIR 1989 Bombay 162 12. (2002) 9 SCC 720 13. 2000 (4) ALD 630 (DB) 14. 2002 (3) ALD 667 (DB) 15. 2003 (4) ALD 553 (DB) 16. AIR 1971 SC 771 (para 5) 17. AIR 1985 SC 660 18. AIR 1988 SC 2027 19. AIR 1971 SC 2560 20. (1953) 98 L Ed.884 21. AIR 1993 SC 2178 22. AIR 1992 SC 1858 = (1992) 3 SCC 666 = 1992 AIR SCW 2100 23. (2002) 8 SCC 481 24. (1989) 4 SCC 155 25. AIR 1970 SC 129 26. AIR 1952 SC 196 27. (1998) 8 SCC 227 28. AIR 1964 SC 416 29. AIR 1960 SC 1080 30. AIR 1963 SC 812 31. AIR 1965 SC 491 32. AIR 1985 SC 1543 33. AIR 1980 SC 2141 34. (1986) 4 SCC 160 35. (1990) II An.W.R. 270 36. (1998) 6 SCC 215 (para 7) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 8720 of 2004 Between: 1 G.Dinesh Kumar S/o G.Shanti Kumar 3-6-118/48, Hyderguda, Hyd. Roll No.: 0261A0415-EC Attendance Percentage 64. 2 S.Shravan Kumar S/o S.Parvatha Reddy 4-47, New Nagole, Hyderabad. Roll No.: 02621A1235-CSIT Attendance Percentage 59. 3 M.Gopi S/o M.V.Suryanarayana Reddy 1-7-21/8, JS. Nagar, Street No. 8, Habsiguda, Hyd. Roll No:02621A1210-CSIT, Attendance Percentage 64. 4 D.Kiran Kumar S/o D.Chilkaiah 10-84,PVN Colony, Malkajgiri, Secunderabad Roll No.: 02621A0419-ECE Attendance Percentage 63. 5 G.Manohar S/o G.Venkat Narayana, 38-29/73/1, Shiva Nagar Colony, Sainikpur, Secunderabad-94. Roll No.: 02621A0516-CSE, Attendance Percentage 64. 6 M.Sudhir Babu S/o.M.V.Prasadh Rao, Flat No.10 , Narayana Apartment , Safilguda station Road, Safilguda, Hyderabad-47. Roll No.01621-A0548-CSE Attendance percentage 63. 7 J.Vijay Kumar s/o J.Srinivas 1-76, Malkajgiri, Santoshnagar colony, Hyderabad-47. Roll No.: 02621A0554-CSE, Attendance Percentage 56. 8 G.Henry Williams S/o G.Satyanandam 6-1-724/1, Khairatabad, hyderabad-04. Roll No.: 02621A1009-EIE, Attendance Percentage 62. 9 R.Dasarath Naik S/o R.Ramulu Naik 29-1385/1, East Kaktiya nagar, Neredmet, Sainikpuri, Secunderabad-56. Roll No.:02621A1207-CSIT Attendance Percentage-62. 10 P.Jagadishwar S/o P.Veeraiah 25-11-37, Bapuji Nagar, Kazipet 506 003, Warangal Dist. Roll No.: 02625A0202-EEE, Attendance Percentage 64.5. 11 Y.S.Ramakanth S/o Y.M.Suryankanth, 24-88/9,Anand-baug, Safilguda Secunderabad-47. Roll No.: 02621A0531-CSE, Attendance Percentage 59. 12 Harikrishna Peddasetty Reddy S/o Anjappa P.Reddy 6-6-440/4, Gandhinagar, Secunderabad. Roll No.: 02621A0511, Attendance Percentage 57. 13 Swarup Vallabh S/o Prasad Rao, B.Tech., student, R/o Gandhi Nagar, Hyderabad. ..... PETITIONERS AND 1 The Vice Chancellor, Jawaharlal Nehru Technological University, Kukatpally, Hyderabad. 2 The Secretary, Aurora's Engineering College, Bhongir, Nalgonda Dist. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the regulation 6 of the JNTU academic regulations as arbitrary, unconstitutional, illegal, null & Void, in the interest of justice. Counsel for the Petitioners: MR.M.GOVIND REDDY Counsel for the Respondent No.1 : M/S C.KODANDA RAM Counsel for Respondent No.2: MR.S.NIRANJAN REDDY WRIT PETITION NO.9071 OF 2004 Between: A.Vinay Kumar, S/o A.Rajaiah, R/o Ramakrishnapuram, Mandamarri Mandal, Adilabad District. Roll No.03621A0256 Attendance Percentage 61 ..... PETITIONER AND 1 The Vice Chancellor, Jawaharlal Nehru Technological University, Kukatpally, Hyderabad. 2 The Secretary, Aurora's Engineering College, Bhongir, Nalgonda District. ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a direction or Order or Writ, more particularly one in the nature of Writ of Mandamus declaring the regulation 6 of the JNTU academic regulations as arbitrary, unconstitutional, illegal, null & void, in the interest of justice. Counsel for the Petitioner: MR.M.GOVIND REDDY Counsel for the Respondent No.1 : M/S C.KODANDA RAM Counsel for Respondent No.2: MR.S.NIRANJAN REDDY The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.8720 and 9071 of 2004 ORDER: The petitioners in both these writ petitions are students of four-year B.Tech., course in Aurora Engineering College, Bhongir, Nalgonda District, the second respondent herein. They allege that they have been regularly attending the classes during the academic year 2002-03 including the guest lectures and seminars conducted by the college. Though they were promised by the management of second respondent that attendance at guest lectures and seminars would also be reckoned for the purpose of calculating attendance as per B.Tech., course regulations, they were not given the benefit. Further, during the annual day function, the students were given five days preparation time but the same was not counted for the purpose of attendance and as and when the students did not adhere to dress code, absent was marked, as a result of all this, on the eve of annual/semester examinations on 30.04.2004, the petitioners were not issued hall tickets on the ground that they do not have the required attendance as per B.Tech., course regulations. Therefore, they filed writ petitions challenging regulation 6 of B.Tech., Four Year Degree Course (Revised) Academic Regulations made by the first respondent (hereafter called, J.N.T.U), which prescribes minimum attendance for appearing in final examinations. In the affidavit filed along with the writ petitions, the petitioners did not raise any grounds in support of their prayer. When this was pointed out, the petitioners in W.P.No.8720 of 2004 filed another affidavit before this Court on 12.09.2004. In this affidavit, the petitioners state that the relationship between the student and J.N.T.U. is partly governed by contract and partly by principles of public law. The students have not signed any document accepting the regulations and therefore they do not form part of the contract. The students, however, had knowledge of the attendance rule and attended classes in order to fulfil the said criteria, to get qualified for the examinations as well as internal assessment of twenty marks. The petitioners were also given to understand that even if they fall short of attendance, the same would be condoned on such students paying nominal fee. It is further stated that it would be a fallacy to suggest that those students with full attendance are better placed than those students who do not have a required attendance. They contend that in countries like United Kingdom, there is no compulsory attendance and it is left to the choice of the student, whether to attend classes or not. A student who joins the course continues to gain experience and also can learn without attending the classes and therefore there is no logic in prescribing 75/65 per cent of attendance as minimum requirement to make a student eligible to appear in the University examinations. The University has no such power to make the regulations under the provisions of Jawaharlal Nehru Technological University Act, 1972 (for short, the Act) and any rules made thereunder. The regulation 6, which deals with attendance, infringes the fundamental rights of the petitioners under Articles 19, 21 and 41 of the Constitution of India, that regulation 6 is not clear and therefore it violates Article 14 of the Constitution of India besides being ultra vires. The Registrar of J.N.T.U. filed counter affidavit denying petition averments. It is stated that the second respondent detained the petitioners in the semester, in which they were studying, as they did not secure minimum percentage of attendance as per academic regulations of J.N.T.U. The petitioners have not attended classes regularly. As per regulation 6 of J.N.T.U. regulations, one should put in 75 per cent of the attendance, however, subject to condonation of attendance up to 10 per cent in each semester or year. The petitioners were not having minimum attendance in second year B.Tech., second semester and therefore they were detained and they were not permitted for second year second semester. While denying all other allegations, the first respondent also has given attendance of each of the petitioners during the second semester of second year course. The second respondent filed counter affidavit opposing the Writ Petitions. While denying various allegations made in the petitioners’ affidavit, second respondent states that the students have not been marked absent for frivolous reasons including for not following the dress code etc. He further states that the attendance details are sent every month to each of the student’s residences. The students and their parents are therefore fully apprised of the progressive attendance put in by the students. The learned counsel for the petitioners, Sri M.Govinda Reddy, submits that regulation 6 infringes the fundamental rights of the petitioners under Articles 19, 21 and 41 of the Constitution of India denying liberty to the petitioners to write the examinations. The impugned regulation imposed unreasonable restrictions on the right of the students and therefore, it should be declared unreasonable and violative of fundamental rights. In support of this submission, the learned counsel places reliance on the decision of the Supreme Court in Collector of Customs, Madras v. Nathella Sampathu Chetty, Maneklal Chhotalal v. M. G. Makwana, Maneka Gandhi v. Union of India and Ajay Hasia v. Khalid Mujib Sehravardi. Learned counsel nextly contends that regulation 6 is ultra vires and J.N.T.U. has no statutory power to make such regulation in the absence of a specific provision in the Act. Regulation 6 is made in far excess of the power conferred by the statute and therefore it is ultra vires. Reliance is placed on the decisions in Sajjan Singh v. State of Punjab, P.K. Ramchandra Iyer v. Union of India, Education Sec. v Tameside B.C. and Richard Grayned v City of Rockford. Lastly, the learned counsel would urge that regulation 6 is vague and any law, which is vague violates rule of natural justice and hence contravenes Article 14 of the Constitution of India. Reliance is placed on the decisions of State of Bihar v. M/s. Karam Chand Thapar and Brothers Ltd., Board of High School and Intermediate Education, U.P. v. Chitra Srivastava and Det Norske Veritas v R.B.I., Bombay. Learned Standing Counsel for J.N.T.U., Sri Kodandaram, has taken this Court through the Act and regulations. He would submit that Section 4(1) and (2) read with 4(2)(i) gives power to the University to prescribe qualifications under which a person shall be admitted to the University or to any particular course. The power so conferred also includes the power to prescribe attendance regulations. He further submits that academic senate, one of the authorities of J.N.T.U. as per Section 10 of the Act has powers to prescribe academic regulations under para 7 of Part II of Schedule to the Act and therefore the impugned regulation cannot be invalidated on the ground of ultra vires. He would contend that students were made known about the attendance rules and they cannot now contend that it does not form part of the conditions of the course. He would urge that the submission that Articles 14, 19 and 21 are violated cannot be countenanced for the reason that there is no compulsion for any of the petitioners to seek admission in B.Tech., course. When once such admission is sought, a student has to fulfil and satisfy all the conditions for getting eligibility to prosecute the course, to appear in the examinations and for conferring a Degree given by J.N.T.U. These regulations are reasonable and sustainable. Lastly, it is contended that “regular course” offered by various engineering colleges affiliated to J.N.T.U. requires attendance of the students as distinguished from “distance education programmes” offered by other Universities in non-engineering courses. B.Tech., course is one of the regular courses and therefore the regulations and conditions of distance education programme cannot be borrowed for the purpose of regular course. Learned counsel places reliance on the decisions in Regional Engineering College, Hamirpur v Ashutosh Pandey, Akilesh Lumani v Principal, Sir C.R.Reddy Autonomous College, Eluru, K.Pradeep v J.N.T.U., Hyderabad and V. Prasanth Kumar v. J.N.T.U. Whether impugned regulation is ultra vires When some one says a particular action is ultra vires, it only means that such action is “beyond the powers”. This doctrine is important in relation to acts or contracts or public authorities, companies and delegated and sub-delegated legislative bodies, whose powers are limited by the statute. Acts, which are ultra vires the Constitution are void and incapable of enforcement and Rules/Regulations made by delegated rule-making agency which are contrary to Act under which power is devolved, would be ‘ultra vires’ the Act and cannot be enforced. The authority may act ultra vires, if such authority acts in bad faith or makes regulations or rules for the purposes not authorised and such regulations made in exercise of delegated or devolved legislative power can be challenged on the ground that such regulations are “beyond its powers” and that such regulations are made for a purpose not authorised by the statute. Indeed, in the considered opinion of this Court, in view of settled principle of law that the power to make rules and regulations should be interpreted broadly having regard to the objects of the parent Act, the ultimate test would be whether the impugned regulations are intended to achieve a purpose not authorised by a statute. Therefore, it is always a question of interpretation of the statute or instrument, which confers the power of delegated or sub-delegated legislation to know whether regulations are ultra vires. J.N.T.U. Act is an Act to provide for establishment and incorporation of Technological University in the State of Andhra Pradesh. J.N.T.U. is established under Section 3 of the Act. Section 4 deals with objects, powers and functions of the University. Sub-sections (1) and (2) of Section 4 with the relevant clauses read as under. 4 (1) Subject to such law as may be made by Parliament as to co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions or subject to such directions as may, from time to time, be given in regard thereto by or on behalf of the Central Government, the objects of the University shall be- i. Omitted ii. Omitted iii. to promote:- a. thinking on new concepts, techniques, practices, in the relevant fields of knowledge and their application to indigenous conditions; b. designing and Organisation of new courses of study and training, evaluation and examination system; c. research relevant to the economic growth of the country; d. entrepreneurship among the students of the constituent colleges; and e. omitted (2) The University shall have the following powers and functions, namely- i. to prescribe the qualifications under which persons shall be admitted to the University or to any particular course of study therein; and to prescribe the rules for the discipline of the students of the University; ii. omitted iii. omitted iv. to associate other institutions or branches or departments thereof and to recognise selected members of the staff thereof as teachers of the University and to admit the members thereof to any of the privileges of the University and to accept attendance of students at courses of study in such institutions or branches or departments thereof, in lieu of such part of attendance at courses of study in the University and upon such terms and conditions as may, from time to time, be determined by the University subject to the regulations prescribed. v. to hold examinations and to confer and grant degrees, diplomas, certificates and other academic distinctions on and to persons who shall have pursued a course of study and shall have passed the examinations or other tests conducted by the University. vi. to xix. are omitted xx. to do all such other acts and things as may be requisite in order to further the objects of the University. (emphasis supplied) Section 10 enumerates as many as four University authorities, namely, the Executive Council, the Academic Senate, the Faculties and the Board of Studies. The executive council is entrusted with the powers as enumerated under Section 12 and 24(2) of the Act confers the power to make statutes in relation to the matters set out in Section 23 of the Act. Section 12(1)(xv) entrusts the powers to take all necessary steps to give effect to the provisions of the Act including the power to determine and regulate the policies relating to the affairs of the University. Under Section 23 of the Act, executive council can make regulations by way of Statutes for admission to the examinations for Degrees of the University and the fees to be charged for courses of study, research, practical training in the constituent colleges and to take all necessary steps for carrying out the purpose of the Act. The Schedule to the Act enumerates the appointment and constitution of various officers and authorities of the University, the powers that can be exercised by them etc. Part II of the Schedule deals with academic senate. As per para 7, academic senate shall have powers of approving all courses of study as proposed by the Board of Studies, determining their curriculum and have general control of teaching, research and examinations within the University. Paragraph 7(d) of the Schedule further elaborates these general powers in the following terms. 7 (d). In particular and without prejudice to the generality of the foregoing power, the Academic Senate shall have powers- i. to advise the Council on all academic matters; ii. to make recommendations to the Council for the institution of professorship and other teaching posts and in regard to the duties, emoluments and qualifications thereof; iii. to make recommendation to the Council regarding institution of fellowships and scholarships; iv. to formulate, modify and revise schemes for the constitution or reconstitution of departments of teaching; v. to make regulations regarding admission of students to all the colleges and for the intake into each faculty; vi. to make regulations prescribing equivalence of examinations, degrees, diplomas and certificates of other Universities colleges, institutions and boards; vii. to make recommendations to the Council regarding the institution of Post-Graduate teaching and research; viii. to make recommendations to the Council regarding qualifications to be prescribed for teaching in the constituent colleges; ix. to recommend to the Council faculty development programmes on the recommendation of the facility development committee or otherwise; x. to formulate, modify and revise programmes of curriculum development on the recommendations of the curriculum development committee or otherwise; xi. to make regulations regarding industrial training, where such training forms part of requirement for degree, diploma or certificate in consultation with the industrial liaison policy unit; xii. to recommend to the Council measures for promoting collaboration between industries and colleges on the recommendations of the industrial liaison policy unit; xiii. to make regulations for the conduct of the examinations of the University and for the assessment, evaluation and grading of the students’ performance at colleges. xiv. to consider the reports of the evaluation committee and to advise the Council on the follow up action to be taken in the implementation of the reports; xv. to delegate to the Vice-Chancellor or to any of the committees of the Academic Senate, any of its powers; xvi. to assess and make recommendations, laying down standards of accommodation, equipment, apparatus, library, maintenance and other physical facilities required for each faculty; xvii. to exercise such other powers and perform such other functions as may be conferred or entrusted to it by or under the provisions of this Act, and xviii. to deal with any other matter referred to it by the Vice- Chancellor or the Council. (emphasis supplied) The submission of the learned counsel for the petitioner is that under Section 4(2)(iv) of the Act, the power of the University or executive council or academic senate is limited to associate other institutions or branches or departments thereof and to recognise selected members of the staff thereof as teachers of the University and to accept the attendance of students at courses of study in such institutions and that the same does not specifically confer any power on the University to make attendance regulations. I am afraid this submission suffers from a fundamental fallacy and is liable to be rejected for two reasons. First, the purpose and object of the University is to offer courses or recognised institutions offering such courses and confer degrees subject to a student fulfilling all the regulations regarding curriculum, course and eligibility to appear in examinations conducted by the University. A University is a seat of learning of knowledge and since ages has enforced discipline as a part of study. Such discipline includes teacher – student relationship, which can be strengthened by regular interaction among them. A study of a course is not mere reading textbooks prescribed but includes something more than mere reading books. It is essentially passing knowledge from one generation (teacher) to the other generation (student) keeping in view the larger interests of the community in which both live and thrive. This inter-generational osmosis of knowledge would be incomplete with regular and purposive interaction between teacher and taught. Section 4(2)(xx) of the Act entrusts power of doing all other acts and things as may be requisite in order to further the objects of the University. Section 12(1)(xv) similarly entrusts the power to executive council to take all necessary steps to give effect to the provisions of the Act, including the policies relating to the affairs of the University and make Regulations as per Section 23 of the Act. Part-II paragraph 7 of the Schedule describes the powers of the academic senate and it is entrusted with the power to make Regulations for the conduct of examinations of the University and grading of the students performance at Colleges. When the University is entrusted with the duty to conduct examinations for the purpose of acquiring degrees and in that direction prescribes certain requirements like attendance, laboratory work, seminars etc., the same cannot be said to be ultra vires the Act. It is well settled that where specific power is conferred without prejudice to the generality of the general power, the particular power is only illustrative and does not in any way restrict the general power. A reference may be made to Om Prakash v. Union of India. In K.Ramanadhan v. State of Tamil Nadu Government of Tamil Nadu in exercise of their powers under Section 3 of the Essential Commodities Act, 1955, promulgated Tamil Nadu Paddy (Restriction on Movement) Order, 1982 introducing a monopoly procurement scheme of paddy with a view to procure maximum stock of paddy by banning purchase by traders. This was challenged before Madras High Court in a batch of Writ Petitions inter alia on the ground that the impugned Control Order was in excess of powers conferred on the State Government under Section 3 of the Essential Commodities Act and that ban on the movement of paddy is unreasonable restriction violating Article 19(1)(g) of the Constitution of India. The High Court dismissed all the Writ Petitions and by Special Leave, the appeals were considered by the Supreme Court. It was mainly contended that the impugned Control Order is ultra vires the power of the State Government being in excess of the delegated powers. While dismissing the appeals, the Supreme Court held that the impugned Control Order was well within Section 3 of the Essential Commodities Act and that it is strictly in conformity with the delegation of powers to the State Government. The following observations