Full Judgment Text
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PETITIONER:
D. A. V. COLLEGE BATHINDA, ETC.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT05/05/1971
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
SIKRI, S.M. (CJ)
MITTER, G.K.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1971 AIR 1731 1971 SCR 677
ACT:
Punjabi University Act, 1961 (35 of 1961), s. 4(3)-
University making Punjabi the sole medium of Instruction and
examination-Action ultra vires the power conferred by
section-Also infringes rights of religious minority to
conserve their script and administer their institutions.
HEADNOTE:
The petitioners are educational institutions founded by the
D.A.V. College Trust and Society registered under the
Societies Registration Act as an association comprised of
Arya Samajis. These institutions were, before the
reorganisation of the State of Punjab in 1966, affiliated to
the Punjab University constituted under the Punjab
University Act, 1947. The Punjabi University was
constituted in 1961 by the Punjabi University Act (35 of
1961). After the reorganisation, the Punjab Government
under s. 5 (1) of the Act specified the areas in which the
Punjabi’s University exercised its power and notified the
date for the purpose of the section. The effect of the
notification was that the petitioners were deemed to be
associated with and admitted to the privileges of the
University and ceased to be associated in any way with the
Punjab University. The Central Government notified under s.
72 of the State Reorganisation Act that the Punjab
University ceased to function in the areas notified by the
Punjab Government. Thereafter, by a circular dated June 15,
1970, the University declared that Punjabi "will be the sole
medium of instruction and examination for the pre-university
even for science group with effect from the academic session
1970-71". Later, the University by circular dated July 2,
1970 relaxed this directive in some special cases of pre-
university students. On October 7, 1970 a further
modification was made allowing English as an alternative
medium of examination but qualifying in the elementary
Punjabi papers would be obligatory in the case of such
students offering English medium. In petitions filed under
Art. 32 of the Constitution the main contentions urged were
that s. 4(2) of the Act did not empower the University to
make Punjabi the sole medium of instruction; that if it did
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the State Legislature had no competence to enact such a
provision because that power was vested in the Union
Parliament under Entry 66 of List I; and that in any case
the circular and the Notification offended the petitioners
right to conserve their script and administer their
institutions in their own way.
HELD:(i) The circular of June 15, 1970 as amended by
the circulars of July 2, 1970 and October 7, 1970 is invalid
and ultra vires the powers vested in the University.
The University by adopting Punjabi as the sole or exclusive
medium for the colleges affiliated to the University,
notwithstanding the concessions granted, acted in excess of
the power conferred on it. Section 4(3) of the Act, by the
use of the definite article a prefixed to the word medium,
does not require Punjabi to be made the exclusive medium of
instruction. This conclusion is further reinforced by the
nature of the Power which is only "to progressively adopt it
as a medium of instruction and examination for as many
subjects as possible". [686H-687D]
678
Gujarat University Ahmedabad v. Krishna Ranganath Mudholkar,
[1963] Supp. 1 S.C.R. 112, relied on.
R. Chitralekha v. State of Mysore, [1964] 6 S.C.R. 368,
referred to.
(ii)Further, the petitioners are institutions maintained by
a religious minorityand as such the directive for the
exclusive use of the Punjabi languagein the Gurmukhi
script as the medium for instruction and for examination in
all colleges directly infringes the petitioners right to
Consume their script and administer their institutions. The
relaxation made subsequently in the earlier directives of
the University makes little difference because, the
concession does not benefit students with Hindi as the
medium as Devanagari as their script. The right of the
minorities to establish and administer educational
institutions of their choice includes the right to have a
choice of the medium of instruction also. This would be the
result of reading Art. 30(1) with Art. 29(1). No
inconvenience or difficulties, administrative or financial
can justify the infringement of guaranteed rights. [683D-F;
684G-H]
State of Bombay v. Bombay Education Society, [1955] 1 S.C.R.
568, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 353 and 354 of
1970.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
A.K. Sen, and Naunit Lal, for the petitioners (in both
the petitions).
M. C. Chagla and R. N. Sachthey, for respondent No. 1 (in
W. P. No. 353 of 1970).
H.L. Sibbal, Advocate-General, Punjab and R. N. Sachthey,
for respondent No. 1 (in W. P. No. 354 of 1970).
V.M. Tarkunde, Harbans Singh and K. R. Nambiar, for res-
pondent No. 2 (in W. P. No. 353 of 1970).
Kuldip Singh and Harbans Singh, for respondent No. 2 (in W. P.
No. 354 of 1970).
The Judgment of the Court was delivered by
P.Jaganmohan Reddy, J. These two Writ Petitions under
Article 32 challenge the vires and constitutionality of
Sections 4(2) and 5 of the Punjabi University Act 35 of 1961
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as amended (hereinafter called "the University" or "the
Act", as the case may be). It is also prayed that (i) the
Notification of the Punjab Government No. 5592-ED-
1(2E)/59/12447 dated 13-5-1969 extending the area in which
the University shall exercise its powers and (ii) the
Circular of the University No. 8617-8661 /GS/Misc. dated 15-
6-70
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as modified by Circular No. 9866-989G/DSG dated 2-7-70
enclosing the decision of the Senate Sub-Committee dated
1-7-70 be quashed as being illegal, unconstitutional and
void.
The Petitioners are educational institutions founded by, D.
A. V. College Trust and Society registered under the
Societies Registration Act as an association’ comprised of
Arya Samajis. These Colleges were affiliated to the Punjab
University before the reorganisation of the State of Punjab
in 1966. The University had been constituted in ’1961 and
by a Notification dated June 30, 1962, it was given
jurisdiction over a radius of 10 miles from the office of
the University at Patiala which seat had earlier been
notified on 30-4-1962 as a Seat of the University. As the
Writ Petitioners were not within the 10 miles radius of the
University, they continued to be affiliated to the Punjab
University. After the reorganisation the Punjab Government
by Notification dated 13-5-1969 issued under sub-section (1)
of Section 5 of the Act specified the Districts of Patiala,
Sangrur, Bhatinda and Rupar as the areas in which the
University exercised its power and under sub-section (3) of
the said Section, 30th June 1969 was notified as the date
for the purpose of the said Section. The effect of this
Notification was that the Petitioners were deemed to be
associated with and admitted to the privileges of the
University and ceased to be associated in any way with or to
be admitted to any privileges of the Punjab University. It
may also be mentioned that the Central Government by a
Notification dated 12-9-1969 in exercise of the powers
conferred on it by Section 72 of the Reorganisation Act
directed that the Punjab University constituted under the
Punjab University Act 1947 shall cease to function and
operate in the areas of the very four Districts regarding
which the Punjab Government had earlier issued a
Notification under Section 5 of the Act.
Thereafter the University by the impugned Circular dated 15-
6-1970 issued to all the Principals of the Colleges admitted
to the privileges of the University declared that Punjabi
"Will be the sole medium of instruction and examination for
the pre-University even for Science group with effect from
the Academic Session 1970-71". Later the University by a
letter dated 2-7-1970 informed the Principals that a
decision of the Senate Sub-Committee dated 1-7-1970 as
enclosed therewith was made giving "relaxation in some
special cases of pre-University students seeking admission
for the year 1970". This enclosure was in Punjabi, an
English translation of which would show that the relaxation
was to permit students who had passed their matriculation
examination with English as their medium of examination to
be taught and to answer examination papers in the English
medium at pre-University level ’only so long as the other
Universities and School bodies of Punjab
680
did not adopt Punjabi as their medium of instruction’. On
7-10-70 the University made a further modification and it
was decided by the Senate "that English be allowed as an
alternative medium of examination for all students for the
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courses for which the University had adopted the regional
language as the medium. It was however understood that
qualifying in the elementary Punjabi paper would, as already
decided by the University be obligatory in the case of such
students offering English medium as had not studied Punjabi
as an elective or optional subject even upto the middle
standard". The resolution of 1-7-1970 further decided
that student availing themselves of the facilities given
thereunder will have to pass a compulsory course in Punjabi
of 50 marks of which a minimum of 25 marks will be required
to pass that course.
It is alleged that as a result of these Notifications and
resolutions of the University the Petitioners Colleges have
to teach all subjects including Science subjects in Punjabi
and their students have to write examinations in the
Gurumukhi script except in the cases exemptedin the
resolution of the Senate sub-Committee dated 1-7-1970. It
was therefore submitted that the Notification dated 15-6-
1970will result in the lowering of educational standards
inasmuch as the students who have passed Matriculation
examination in Hindi will be handicapped in studying their
subjects in Punjabi and writing answers in Gurumukhi script;
that the students who have to prepare their subjects and
write answers in Punjabi alone in the University examination
will be at a disadvantage in seeking admission to
professional Colleges such as the Engineering College,
Medical College, Business Management College and other
Colleges and in the study of Science subjects; and that the
students who passed examination through Punjabi medium will
be handicapped in the competitive examinations for the I. A.
S., in research work and in various other fields. It is
further stated that the impugned notification has also
resulted in lowering the standard in all respects, as there
is (i) no coordination for teaching Science subjects and
other subjects in higher Classes like B. A. and B.Sc.,
through the medium of Punjabi, (ii) no corresponding
arrangements have been made for answering papers in the
examination for admission to the Indian Institute of
Technology and All India Institute of Medical Sciences and
other competitive examinations for Central Services. The
main contention of the Petitioners however, was that Section
4(2) of the Act does not empower the University to make
Punjabi the sole medium of instruction; that it is not
within the legislative power of the State under Entry 11 of
List II to make Punjabi the sole medium of instruction,
which power in fact vested in the Union Parliament under
entry 66 of List I and that consequently the provisions of
Section 4(2) and the Notification and the Circulars referred
to above are ultra vires and unconstitutional. In so far as
the medium of instruction in Punjabi with
681
Gurumukhi as the script is sought to be imposed on the
educational :institutions established by the Arya Samajis a
religious denomination, they also offend Arts. 26(1), 29(1)
and 30(1) of the Constitution.
A preliminary objection has been urged on behalf of the
Respondents that in a Petition under Article 32, only where
it is shown that there is a violation of fundamental right
that the validity of the legislation or of the legislative
competence can be raised and determined, but in these cases
as there is no violation of Article 14, 26, 29 and 30 of the
Constitution the Petitioners ought not be allowed to
challenge the vires of the Act on the ground of the compe-
tence of the legislature to enact the impugned law. This
question .has been dealt with fully in the batch of
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petitions in which we have just pronounced Judgment, where
we had also considered the contentions of the learned
Advocate General of Punjab and Shri Tarkunde, the learned
Counsel for Respondents 2 in this behalf and hence we do not
purpose again to reiterate the reasons in support ,of the
conclusion that a petition under Article 32 in which
petitioners make out a prima facie case that their
fundamental rights are ,either threatened or violated will
be entertained by this Court and that it is not necessary
for any person who considers himself to be ,aggrieved to
wait till the actual threat has taken place. On the. other
objection that the Arya Samaj is neither a linguistic or
religious minority nor is it a religious denomination we
held that it was unnecessary to go into the question of
whether it is a separate :religious denomination for the
purpose of Article 26(1) (a) or a linguistic minority for
the purposes of Article 30(1) because in our view it would
be sufficient for the petitioners if they could establish
that they had a distinct script of their own and they were a
,religious minority, to invoke the protection of Article
29(1) and 30(1). We had in those Writ Petitions held that
what constitutes .a linguistic or religious minority must be
judged in relation to the ’State inasmuch as the impugned
Act is a State Act and not in relation to the whole of
India. In this view we rejected the several contentions
which are also urged in these petitions namely that Hindus
being a majority in India are not a religious minority in
’Punjab and held that the Arya Samajis who are part of the
Hindu community in Punjab are a religious minority and that
they had a distinct script of their own the Devnagri which
entitled them to invoke the guarantees under the aforesaid
provisions of the Constitution.
It may be noticed that the petitioners did not complain at
the time when the Notification under sub-Section (1) & (3)
of Section 5 of the Act was published on the 13th May 69 as
a result of which their Colleges became affiliated to the
University and ceased to be -affiliated to the Punjab
University. It is only after one academic
82
year had gone by that they filed these petitions in
September’70. It was earlier pointed out that the Central
Government also, had;, in exercise of the powers under
Section 72(1) of the Reorganisation Act given, the necessary
directions for the disaffiliation of the Colleges (which
included those of the Petitioners) in the area notified by
the State Government from the Punjab University. No con-
tention can therefore be urged, as was urged in the cases
disposed of earlier, that the State Government has no power
to issue a Notification under sub-section (1) & (3) of
Section 5 of the Act to disaffiliate the petitioners from
the Punjab University in the absence of a direction from the
Central Government in that behalf, nor can any, question
arise in this case that the legislature was not competent to
enact Section 5 until other provision was made by the Union
Parliament in respect of the functioning and operation of
the Pun-jab University over the areas over which it had
prior to the Reorganisation jurisdiction, because the
University was constituted prior, to the Reorganisation Act
by a State Act in which Section 5 had’ already vested the
State Government with powers under subsection (1) & (3) of
Section 5 of the Act. In view of this position the
affiliation of the Petitioners with the Punjab University
is, valid and cannot be challenged.
The main ground of attack by the Petitioners is that Section
4(2) of the Act does not confer a power on the University to
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make Punjabi the sole medium of instruction and if it does,
then the State legislature has no competence to enact such a
provision because that power is vested in the Union
Parliament under item 66 of List I. In any case the circular
and the Notification referred to offend the petitioners
right to conserve their script and administer their
institutions in their own way.
The University does not deny that it had adopted Punjabi.
language as the sole medium of instruction and for
examinations, but it seeks to justify it on the ground that
it is the national policy of the Government of India that
the energetic development of Indian languages and literature
is a sine qua non for educational’ and cultural development.
Unless this is done the creative energies of the people will
not be released, standards of education, will not improve,
knowledge will not spread to the people, and’ the gulf
between the intellegentia and the masses will remain, if not
widened, further. The observations of the Education Com-
mission in its report for 1964-66 as well as from the Report
of the Committee of Members of Parliament on education in
1967 were referred to in support of this policy in
furtherance of which the second respondent says that it
"adopted a phased programme for switch over from English to
Punjabi as sole medium- of instruction,. for pre-University
with effect from academic session 1970-71.
683
It is therefore clear that when the University issued the
Circular of 15-6-970 it intended to make Punjabi the
exclusive medium of instruction as well as for examination.
The use of the word ’sole’ in the circular would mean and
imply that it is ’exclusive’. In relation to the
examination the medium being Punjabi would mean that the
script to be used is exclusively Gurumukhi. Now the
directive for the exclusive use of the language and script
as the medium of instruction and for examination in all
Colleges affects the petitioners Colleges which as we said
are institutions maintained by a’ religious minority and
directly infringes their right to conserve their script and
administer their institutions. The relaxation made
subsequently in the earlier directives of the University
makes little difference because in order to be allowed to
take English as an alternative medium of examination it is
obligatory for a student to have passed the Matriculation
examination with English as the medium of instruction and
that unless he has studied Punjabi as an elective or
optional subject even upto the. middle standard he is
required to qualify in the elementary Punjabi paper. This
concession However does not benefit students with Hindi as
their medium and with Devnagri as their script because for
them Punjabi medium is obligatory in the pre-University
courses. If as is contended that teaching in the regional
language, which means in the mother tongue, accelerates the
pace of educational and cultural development and makes for
improvement and excellence of educational standards this
criteria is equally applicable to the religious or
linguistic minorities or to any other Section of the
citizens who have a distinct language, script and culture
and whose right to conserve them, and to administer their
institutions are guaranteed under Article 29(1) and 30(1) of
the Constitution. The right of the minorities to establish
and administer educational institutions of their choice
would include the right to have a choice of the medium of
instruction also which would be the result of reading
Article 30(1) with Article 29(1). But if the University
compulsorily affiliates such Colleges and prescribes the
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medium of instruction and examination to be in a language
which is not their mother tongue or requires examination to
be taken in a script which is not their own, then it
interferes with their fundamental rights. It is true as is
contended by the learned advocate for the second,
Respondent, no linguistic minority can claim that the
University shall conduct its examinations in the language or
script which the minority institutions have a right to adopt
but in such a case it must not force those Institutions to
compulsorily affiliate themselves and impose on them a
medium of instruction and script not their own.
This Court had in the State of Bombay v. Bombay Education
Society & Ors. (1) while dealing with a circular issued by
the State
(1) [1955] 1 S. C. R. 568.
684
of Bombay prohibiting the admission to a class where English
is used as the medium of instruction, of any pupil who is
not an Anglo-Indian and citizens of non-Asiatic descent,
held that the State had not the power to prohibit contrary
to the rights guaranteed under Article 29(2) the admission
of students to Anglo Indian Schools whose mother tongue was
not English. Das J. as he then was delivering the unanimous
Judgment of the Court observed at page 586.-
’Where however, a minority like the Anglo-
Indian Community, which is based, inter alia,
on religion and language, has the fundamental
right to conserve its language, script and
culture under Art. 29(1) and has the right to
establish and administer educational
institutions of their choice under Art. 30(1)
surely then there must be implicit in such
fundamental right the right to impart
instruction in their own institutions to the
children of their own community in their own
language. To hold otherwise will be to
deprive Article 29(1) and Article 30(1) of the
greater part of their contents".
The State must therefore harmonise its power to prescribe
the medium of instruction with the rights of the religious
or linguistic minority or any section of the citizens to
have the medium of instruction and script of their own
choice by either providing also for instruction in the media
of these minorities or if there are other Universities which
allow such Colleges to be affiliated where the medium of
instruction is that which is adopted by the minority
institutions, to allow them the choice to be affiliated to
them. When the country has been reorganised and formed into
linguistic States it may be the natural outcome of that
policy to allow Colleges established by linguistic and
religious minorities giving instructions in the medium of
language adopted by the Universities in Other States to
affiliate to them or if it wants Colleges including the
minority institutions to be affiliated to it, to make provi-
sion for allowing instruction to be given and examination to
be conducted in the media and script of the minorities when
it imposes a regional language as the medium of instruction
for the University. No inconvenience or difficulties,
administrative or financial can justify the infringement of
the guaranteed rights. It is also worthy of note that no
State has the legislative competence to prescribe any
particular medium of instruction in respect of higher
education or research and scientific or technical
instructions, if it interferes with the Power of the
Parliament under item 66 of List I to coordinate and
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determine the standards in such institutions.
685
In the Gujarat University Ahmedabad v. Krishna Ranganath
Mudholkar (1) the Respondent whose medium of instruction in
the first year Arts Class in St. Xaviers College affiliated
to the Gujarat University, was English was refused admission
to Intermediate Arts courses to study for the examination
through the English medium in view of the provisions of the
University and certain statutes framed by the Senate which
were subsequently amended. One of the provisions challenged
was Section 4(27), which empowered the University "to
promote- the development of the study of Gujarati and Hindi
in Devnagri script or both as a medium of instruction and
examination". Prior to the amendment the proviso permitted
that English may continue to be the medium of instruction
and examination for a period not exceeding ten years but in
1961 it was amended and certain other periods were fixed and
power given to implement the provisions. The details of the
amendment are not relevant for our purpose. The High Court
of Gujarat issued Writs not to, enforce the provisions of
Sections 4(27) and the other provisions which were
challenged. In a appeal two questions were urged before this
Court : (1) whether the University had the power under the
Act to prescribe Gujarati or Hindi or both as exclusive
medium or media or instruction and examination and (2)
whether legislation authorising the University to impose
such media was constitutionally valid in view of entry 66 of
List I of the VII Schedule. It was held by the majority,
Subba Rao, J., as he then was dissenting, that (1) neither
under the Gujarat University Act as originally enacted nor
as amended in 1961 was the University empowered to impose
Gujarati or Hindi as the exclusive medium of instruction.
That this was the intention, was clear because of the use of
the indefinite article ’ a immediately preceding the medium
of instruction while in the proviso in relation to English
being continued the definite article ’the’ preceded the
medium of instruction to make that the exclusive medium for
the periods specified. (2) While item 11 of List II and item
66 of List I may overlap recourse must be had to a
harmonious construction and where they overlapped, Union
legislation must prevail over the State legislature, and
since medium of instruction is not an item in the
legislative list it necessarily falls within item II of List
II as also within items 63 to 65 of List I. It was also of
the view that insofar as it is a necessary incident of the
power under item 66 it must be deemed to be excluded from
item II of List II.
In the result disagreeing with the Gujarat High
Court that Act 4 of 1961 insofar as it amended the proviso
to Section 4 (27) is invalid because it was beyond the
competence of the State legislature, the order of the High
Court relating to the invalidity
(1) [1963] 1 Supp. S. C. R. 112.
686
of the statutes insofar as they purported to impose Gujarati
and Hindi or both an exclusive medium or media of
instruction and the Circulars enforcing those statutes was
confirmed.
In Chitralekha v. State of Mysore (1) also it was held that
entries 65 and 66 of List I give the Union power to secure
that the standard of research etc. is not lowered at the
hands of any State or States to the detriment of national
progress and the power of the State legislature must be so
exercised as not to directly encroach upon the power of the
Union under that entry. Subba Rao, J., as he then was
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speaking for the majority referring to the Gujarat case with
reference to a passage extracted from page 139 of the
report, observed at page 379 :
"This and similar other law made by the State
by virtue of entry II of List II of the
Seventh Schedule to the constitution makes
impossible or difficult the exercise of the
legislative power of the Parliament under the
entry "Co-ordination and determination of
standards in institutions for higher education
or research and scientific and technical
institutions reserved to the Union, the State
law may be bad".
No doubt in the Judgment of the majority in the Gujarat case
there are certain observations which might appear to suggest
that the legislative power under item 66, List I and item
11, List II may be dependent on certain variable factors
which however they said were being made on certain abstract
considerations placed before them. That this was so was
further emphasised when it was observed at page 143 :
"We have no specific statute the validity of
which, apart from the one which we will
presently mention, is challenged".
In any case the actual decision in the case turned on the
interpretation of Section 4(27) of the Gujarat University
Act, and as we have earlier noticed it was held disagreeing
with the High Court that the University was not vested with
the power to prescribe Gujarati or Hindi as the exclusive
medium and the provision which attempted to do so were
struck down as invalid. The decision however did not
express any opinion on the alleged infringement of the
fundamental rights of the petitioners under Article 29 (1)
and 30 (1) of the Constitution.
Applying the decision to facts of this case there is no
difficulty in holding that Section 4 (3) of the Act which is
in similar terms to Section 4 (27) of the Gujarat Act, by
the use of the indefinite Article a prefixed to the word
medium, does not require
(1) [1964] 6 S. C. R. 368.
687
Punjabi to be made ’the exclusive medium of instruction.
This conclusion is further reinforced by the nature of the
power which is only "to progressively adopt it as a medium
of instruction and examination for as many subjects as
possible". The University by adopting Punjabi as the sole
or exclusive medium for the Colleges affiliated to the
University, notwithstanding the concessions granted, acted
in excess of the power conferred on it. While the
University can prescribe Punjabi as a medium of instruction
it cannot prescribe it as the exclusive medium nor compel
affiliated Colleges established and administered by
linguistic or religious minorities or by a Section of the
citizens who wish to conserve their language script and
culture, to teach in Punjabi or take examination in that
language with Gurmukhi script. The University Act having
compulsorily affiliated these Colleges must of necessity
cater to their needs and allow them to administer their
institutions in their own way and impart instructions in the
medium and write examination in their own script. In this
view the petitions are allowed with costs. The impugned
Circulars of 15-6-1970 as amended by Circular of 2-7-1970 in
terms of the resolution of the Senate Sub-Committee of 1-7-
1970 and that of 7-10-1970 are struck down as being invalid
and ultra vires of the powers vested in the University.
Costs one hearing fee.
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K. B. N. Petitions allowed.
688