Punjab University v. Subash Chander and Anr.

Judgment

The Judgment of the Court Was delivered by VARADARAJAN, J. This appeal by special leave is bY. Punjab University against the Judgment of a Full Bench of the Punjab and Haryana High Court in tqe Letters "Patent Appeal. 352 of 1975 confirming the judgment of a learned Single Judge in W.P. 1017 of 1975; Subash Chander, respondent 1 in this appeal,, joined the Daya Nand Medical College, Ludhiana, for the M.B.B.S. course in 1965 when Regulation 25 of t~ Punjab University was in . force. That regulation required a minimum of 50 per cent of. marks to pass in each subject. However Rule 7.1 relating to the M.B.B.S, and certain 0ther courses provided that- "a candidate who fails in one .or mor~ papers/subjects ·and/or aggregate may be given grace marks up to 1 per cent of th.e total aggregate marks (including marks for practical and illtemaf assessment) to his best advantage in or de: tn be declared to have passed the examination."

But in May 1970 an amendment was made by the University in the form of an exception to Rule 2.1 which corresponds to Rule 7.1 which was in force in 1965 iri the following terms~ . "2.\-,A candidate who appears in all subjects of the examination and who fails in one or . more subjects (written, practical, session al or viva voce and/or aggregate (if there is a separate requirement.of passing in the.aggregate) shall. be. given grace marks upto 1% of the total aggregate lll.arks ( excluiling marks for internal !ISSessment) to !Dake. PUNJAB UNIVERSITY I'. s. CHANDER (Varadrajan, J.) up for·the deficiency if by such addition the candidate can pass the examination. While awardilltl grace marks fraction working to l /2 or more will be rounded to a whole." Exception-}n the case of M.B.B.S. and B.D.S. examinations, however, t]je grace marks shall be giv~n up to one per cent of the total of each subject and not upto one percent of aggregate of all thesubjects.

In "other words, each subject will be, for this purpose, a separate unit, an.ct a ·candidate who fails in a subject \\jl not more than one per cent of the aggregate marks ·Of that subject may be given the requited number of marks in order to. pass in that subject." Su bash Chander, ref pondent I, appeared for the final M.B.B.S. examination in 1974 and secured the following marks • and remarks :- Medicine-202 out of 400 p. Surgery--'-225 out of 400 p. Eye and ENT-204 out.400 p. · Midiwifery : (i) Theory -95 out of 200) (ii) Practical-106 out of 200) Reappear According to Regulation 25 read with Rule 7.1 which was in force when Subash Chander joined the course in 196~ he would be eligible for grace marks .at I per cent of th.e aggregate marks of 1600 for all the above four subjects, which will be 16, and he would have passed in Midwifery also. But he was given only I per cent of the total marks of 400 for Midwifery _as per the amended· Regulation 25 read with Rule 2.1. of the Punjab.

University Calendar, 1974, namely fo\lr as grace marks and held to have failed in Midwifery as the total of 95 marks which he actually s~cured and the 4 grac~ marks in the theory in that suhjed't fell short of 50 per cent by 1 mark. His contention is that the old Regulation 25 read with the old Rule 7.J which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to h~ve passed the final ex,amination in ft)!! including Midwifery .

0 . · Before the High Court, it was contended for the Punjab University that there is no clement of ~etrospe~tivity in the appli~ cation of the amended regulation and rule to students appearing for the examinations subsequent to the amendment. and that students are bound to secure marks as per the regulation in force at the time. of commencement of the examination concerned and they have no vested right to Claim the benefit of any regulation or rule which was in force when they were admitted to the course. 'Chief Justice .S.S. -Sandhawalia who spoke for the Full Bench in the Letters Patent Appeal out 'of which this appeal before us has arisen noticed certain decisions of the Punjab and Haryana High Court and obsenred that they did not lay down clear guidelines for deciding the question at issue, namely whether the University is entitled to changij_ the regulation relating to tile percentage of gaace m~rks to be awarded to students and the basis for awarding the same i..e. whether it is on the· aggregate or' the marks of an the subjects for which the students. appeared in the concerned • examination or the aggregate of the marks of tlie subject in which they had failed in that examination.

The learned Chief Justice noticed this Court's observation in Hukum Chand v. Union of lndial1) which is this ;- "The qnderlying principle is .that unlike sovereign legislature which has power to enact laws with retrospec- . tive operation authority vested with the power of makin_g subordinate legislation has to act within the limit oi:: its · power and.cannot transgress the same." - And he proceeded to consider whether s. 31 of the Punjab University Act under which the regulations in question have been framed empowers the Senate to frame regulation with retrospective effect. Sectio'n 31 reads thus :- "S. 31(1) The Senate,· with the Sanction of the · , Government, may from 'time to time make •regulations consistent with this Act to provide for all matters relating to the University. (2) In particular and without prejudice to the, generality of the foregoing power, such regulations may provide · for. (I) AIR 1972 SC :!427 r .. ;;w ,._~y " PUNJAB lJ,'l!VERi!TY v. s:

ClH~DlR(Vara.larajan, J.). (a) to (m) x x x x x (n)° the courses of "study to be followed and the conditions to be· comp.lied with by candidates. for any University ex~mination, and ·for degrees~ diplomas, licences, titles, niarks of honour .. scholarships and prizes conferred or granted by the University.'' The words ·"other than an examination for matriculation" . which previously occurred in ·sub-clause (n) ·have. been omitted by · the Government of India notification dated 6.12.1969.

The learned <;hief Justice opined that there is not)iing in s.31 . c of the Punjab University Ac1 which would clothe the Senate, explicitily or impliedly, with the power to fr~me regulations retrospectively and held that the regulation, as am~nded in 1970, has retrospectively altered the condition of Subash Chander, respondent 1, taking the exall}ination to his detriment and could not apply to him and that fa, is governed only by Regulation 25 read with Rule 7.1 as it was in force when he joined the course ii). 1965 .. The learned Chief Justice thus differed from the view taken by a Division •Bench of the Punjab and Haryana .High Court (D.K. Mahajan and,· P.C. Jain, JJ.) in Sewa Rain v. Kurukshetra University(') in which it has been held thus:....:.

"The University is an autonomous body and has every . right in the matter of altering the . requisite rules concerning the conduct of examinations and the qualifying marks necessary. for a degree provided the xegulation are made well in· advance [to the examination which a candidate is reqmred to take." The· learned .Chief· Justice, rejected the submission made \ln behalf of the Punjab University thaf the change· in .in th~ regulation made in 1970 by the addition or an exception to Rule ·2.1 related to examinations to be held only in future and there is no question of . th,e rule having retrospective operation apd.held that when Subash Chander respondent I, joined the course in 19.65 he Obviously did so with the intention of obtaining the degree in Medicine and Surgery ijnd that it \(a single integrated' composite course. The learned Chief Justice obseryed that the change in the regulation .. by (I)

LPA 97of1967 decided on 17.7.}!i68. way of addition of the exception to Rule 2.1 is a change in th~ •tourse of that single integrated course an·d is.retospective in nature. ·The other two learned Jridges agreed with' thisvjew of the learned· Chief Justice and the . Full Bench accordingly dismissed tlie appeal and directed the Punjab University to declare the result of Su bash . Chander, rcspond.ent l, afresh \lfter atforaing hini the benefit of .J 6 grace marks in accordance with the old Regulatioll' 25 read with Rule .J. l w4ich was . in force at the time of his adipission to the ·course in 1965 and no(only4 marks as per the amended regulation. . We are of the opinion that thi{appeal bas to succeed.

Section 31(1) ·of the Punjab University Act. extracted above 'enables the. · Senate ·of the Punjab University, with the sanctions .of the Govern- : men!, to make from time to time, regulations, consistent. with the. ;·provisions of that Act to provide for all matters relating to the University. Sectfon 31(2)(n) provides that i!l'particular a!Jd with- . out prejudice to the generality of the foregoing power rnch regulati<in may provide for the courses •or study to be followed ·an<) the conditions to be ·compned with by candidates for any University examination and for· degrees, diplomas, licen·ces, tit!~, marks 1n honour, scholftrships ~net prizes conferred or granted by the, Universiry. Obtaining the requisite percentage of marks in the· subject of the' examination ·falls under .the cliuse ."~onditions .to be complied by candidates for any University examination" occuring in sub-clause (n) of s.31 of the. Act.

Thyrefore, tlte S.enate had the power to award some percentage of marks as grace marks to candi• dates appearing in University exaiµinations in c0nsiderillg whether they are eiigible to pass the examination in the subject or'subjects . in which they had appeared. There is no dispute that the 'minimum . number of marks required for'passing the examination in a paper/ subject is 50 per cent of mar~. ·When Su bash Chander, respondent 1, was admitted to the .J\1.B.B.S. cpurse.in'

1965, Rule 7.1 as ii stood . then and extract;d above provided that the candidate who fails in one· or more papers/subjects/oraggregate may'be given grace marks upto I per cent of the fotal aggregate marks .. excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the eJ1amination, Suhash Chander, respon· dent 1, who appe.ared for the final M.B.B.S, .. examination only.nine years latter in 1974 had to pass in four subjects, namely, Medicine,· . · Surgery Eye and ENT and Midwifery for each of which th.e aggre- . gate was 400 marks. He secured. 202, 225 and 204 marks in Medicine, Surgery, arid Eye and ENT respectively and was 'declare<f I, . PUNiAB uNfyERSITY v. s. CHANDER (Varqdarajan, J.) to have passed the examination jn those subjects. Midwifery .con·· sists of two parts, namely, theory and practical for each of which the aggregate was 200. marks.

Snbash Chander, respondent 1, secured 106 out of200 i.n the practical examination and only 95 out of200 in the theory examination. Since the total aggregate of all the four subjects fat.which he appeared in 1974 was 1600 m(!rks, under the old Regulation 25 ref!d with Rule 7.1 as. it stood at the tiine of his admission to. the course in 1965. he would be entitled .to Hi grace . marks and would have been declared to have passed the examination as the addition of 16 grace marks to the 95 marks actiially secured by him in the practical examination in Midwifery would satisfy the required minimum ·of 50 per cent. But long before Subash Chander. . C appeared for the final M.B.B.S. examination in.1974 the rule relat•·. ing to award of grace marks toM.B.B.S .. and B.D.S. students was· changed by the Se~ate of the· University· in.1970 by the. t1ddition of an exception to R.ule 2.1 as men.tioned above.

It is not contended that · the S&rtction df the Government had not been obtaineded for making . this change. The exception says that· in the case of M.B.B.S. and B.D.S. examinations however the grace marks shall be given upto 1 per cent of the total marks of each subject. and not up to 1 per cent of the aggregate marks of all the subjects ; in other words each subject will be, for this purpose, a separate unit and a candidate who fails in ·a subject by not ~ate. than 1 per cent may be given the . requir.ed number of marks in order to pass in that subject. Uµder this rule as amended in 1970 Subash Cltander, respondent 1, ·was. entitled to only 4 marks as grace marks being 1 per cent of the aggregate or4oo marks for-Midwifery alone. A,s the addition or' 4 grace marks t~ .

9.5 marks actually secured by him in the practical examination in Midwifery for which the aggregate was 200 out of that total aggregate of 400_marks for that subjeci marks only 99 out of 200 it was less than 50 per cerit, and he was declared to have failed in. Midwifery and.asked.to ~eapper for that subject. · The minimum prescribed'for passing in each subject is' 50 per cent~ Under the. old rule .as itslaod prior 1970, Subash Chander could have passed by getting 16 grace inarks being 1 per cent of the aggregate of all the four subjects, namely;· Medicine, Surgery, Eye and ENT a11d Midwifery even if he had secured only 84 marks out of 200 ·in the pra'ctical examination in Midwifery which comes to · ovly 42per cent and he had secured more. than 50. per cent in the other subjects/papers. The Senate thought it fit to remedy this gladbg defect so for as M,B.B.S. andIB.D.S. examinations are con- StlPRedB cot/RT RBPORTS (1984)

3 S.ll.C •.. , -<- cerned by:adding the excepection to Rule 2.1 in 1970 under which the.· grace marks would be only l per cent of the aggregate marks in the particular subject .. We do not think that the Senate did not have the necessary power to effect tha.t ~hange or-had acted unreasonably in making the change. We thillk that the Senate had the necessary power under s .. 31(2)(n) of the Act to fix, from time to time, the percentage of marks required for passing the ~xaminatio11 and to grant or to· refuse to·grant grace marks or to enhance.or yeduce the quantum of grace marks.. It has not been contended .. ·before us . that there. was any ma/a fides on the part of the Senate , in making :this change .. It could not be contended that .Subash Chander who app~ared for the final examination ·in 1974 did not · :have . sufficient notice of the change brought about iri 1970 in the rule relating to award of grace marks or that he was preju~iced by the change;

We do not agree with the learned Judges of the Full Bench . of ~_, the High Court that there is any element of retrospectivity in the chimge b.rought about by the addition of the exception to ~ule :i..1 · of the Calender for the year 1970. ··. "Refrospe_ctive" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "Operatiye with regard to past .time". The change brought about by the.addition ofthe exception to Rule 2.1 does not say that it shall .be operative with effect from any earlier .r . date. It is obviously prospective. It.is not possible to hold that it.is retrospectivein operation merely because though introduced in 1970 'it was applied to Subash Chander, respondent l, who appeared for " the final ex~mip.ation in 1974, after he had joined . the course earlier . in 1965.

N.o promise was made or could be deemed IQ have.· be~n p. made to him at the time•ofhis admission in 1965 that there will be· · no alteration of the rul~ or regulation in regard to the percentage of marks. required for passing any examination or award of. grace ·marks aild that the rules·relating there to which were in force at the time bf his admission would continue to be applied to.· him until he finished his whole course. In the Calendar for 1979 we . find . tl)e folfowing at page 1 : "Notwithstanding the· integrated nature of a c.ourse spread over mote than one academic· year; the regulations · in force at the tiine a'studentjoins a'course shall hold good · . only for the e11aminations held during or -at the end of the academic. year. Nothing in these regulations shall ~e <Jeemed to debar . the University from. amending .· ihe I PQNJAa ONlvERSiTY v. s.

CHANDllR(Varai!arajan, /,) · regulations subsequently and the amended regulations,. if any, shall apply to all students whether old or new." This is as it should be, though there was no such provision in .the Calendar of 196S when Subash Chander was admitted to the course. · It is admitted that it was introduced only in 1971. The · absence of such a provision. in the Calendar of 1965 is of. no consequence. It is necessary to note in this connection what this Court had said in regard to retrospectivity in such matters in B.N. Mishfa , v. State.(1) It is this : · "The next contention on behalf of the appellant is that the rule.is retrospective and that no retrospecti'(e rule can ·be made. As we read the rule we do not find any retrospectivity in it. All that. the rule provides is that from the date it comes into force the age of retirement wbuld he SS years:

It _would therefore apply from that date to all government servants, even .though they may · have been· recruited before May 25, 196\in the same way as the rule o_f 1957 which incre_ased the age from 55 years to 58 ·years applied to all government servants. even though they were rec(uited before 19S7. Btit it.is urged that the proviso shows that the rule was applied retrospectively. We have already referred to .the proviso which lays down that government · servants who had attained the age of 55 years on or be!ore. June 17., 1957 and had not attained the age of 58 years on May. 25, 1961 would be deemed to have been retained in ' service after the dat_e of superannuation, namely 55 years. This proviso _in our opinion does not m_ake the rule retrospective; it only provides as to how the period of · servke · beyond S5 years should· be treated in view of the, earlier · rule of 1957 which was .being changed by the ·rule.of 1961.

Further the second order issued on the same day al~o · clearly shows. that there was no retrospective operation of the rule, for in· actual effect no government servant 'was retired before the date ofnew rule i.e. May 25, 1961 and all of them were continued in service up to December 31, 1961 and were therefore to retire ou reaching the _age of superannuation according to the old rule. We ar_e, therefore, of ·opinion that the new ru\e reducing the age of retirement ~I) [1965] 1 S.C.R, 297. .. S32 " SUPREME. COURT REPORTS [19$4) 3 S.C.R. from 58 years to 55 years cam~ot be said to be retrospective.

The proviso to new rule and the second notification are oniy methods to tide over the difficult situation which would arise i~ the' public service . if the new rule was applied at once and als.o to meet any financial objectipn arising 0ut of the enforcement of the new rule. · The new rule therefore, cannot be struck down <Jn the ground that it is retrospective in operation," • Therefore, we are clearly of· the' opinion that there is no· ·. qu.estion of the change in · the . rule made in. the year !'970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had· joined the M.B.B.S. cour~e in 1965 when the rukregardiug award of grace marks was different. ln these · circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ. expressed .in the Division Bench judgment· in Sewa Ram v. Kurukshetra University (Supra) and; disapprove the view taken. by the. learned Judges of the Full Bench in the dec.ision under appeal in this case and bold that; the • u'nivetsity was right in holding that ·Su bash Chander, respondent I, was not entitled to 16 grace marks. under the old rule but was entitled to only.

4 grace marks under the ne.w rule and had therefore not passed the examina\ion: in Midwifery. · We allow the appeal but without any order as to .costs. However, · this decision will not effect the result of the examination of Subash €hander in Midwifery if it had been declared as per the ·directfon of . the learned Judges of the FulfBench in the Letters Pa.tent Appeal; H.S.K. Appeifl allowei