JUDGMENT
D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Learned counsel for the Respondents waive service. With the consent of Counsel, taken up for hearing and final disposal.
The Petitions before the Court
2. In this batch of matters under Article 226 of the Constitution, students from diverse disciplines drawn inter alia, from the medical and allied sciences question the validity of the policy being followed by the Maharashtra University of Health Sciences in regard to the award of grace marks at examinations. Among the students who are before the Court in these proceedings are those pursuing the M.B.B.S. Degree Courts in colleges affiliated to the Maharashtra University of Health Sciences (“MUHS”). Apart from these students, there are students who are pursuing the degree courses of the Bachelor of Dental Surgery (B.D.S.), Bachelor of Homeopathic Medicine and Surgery (B.H.M.S.), Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.), and Bachelor of Physiotherapy (B.P.Th.). All the Writ Petitions were on the request of Counsel taken up for consideration together since common questions have been urged on behalf of the Petitioners by learned counsel appearing on their behalf. In certain cases where special issue relating to a particular course were raised, these would be considered separately in the course of the judgment.
3. In Writ Petition No. 295 of 2003, the Petitioner was admitted to the Bachelor of Dental Surgery course in 1998. The Petitioner passed the First and Second B.D.S. Examination and, in October 2002, appearing for the annual examination for the Third year of the B.D.S. Course. The results of the examination were declared on 10th December, 2002 and the Petitioner was declared to have failed at the Third B.D.S. Examination. The Petitioner is declared to have failed in two subjects viz. (i) Oral Pathology and Microbiology and (ii) General Medicine.
In Writ Petition No. 298 of 2003, the Petitioner appeared for the Third year M.B.B.S. Part II annual examination and was declared to have failed in General Medicine under new Ordinance 1 of 2002. The Petitioner has sought the application of the earlier Direction, 11 of 2002 by which the student of every faculty was entitled to 0.8% of the total marks of the examination as grace marks, which could be distributed in more than one subject.
In Writ Petition No. 502 of 2003, some of the Petitioners before the Court appeared for the First year and others for the Second year of the B.A.M.S. Examination. The Petitioners have been declared as having failed in one or more subjects under Ordinance 1 of 2002.
In Writ Petition No. 311 of 2003, the Petitioner is a Second year B.P.Th. student who was declared to have failed in two subjects in the annual examination and in subsequent repeats in one subject under Ordinance 1 of 2002. Here again, the Petitioner seeks the application of the earlier direction of the Vice Chancellor, Direction 11 of 2000.
In Writ Petition No. 591 of 2003, the Petitioners are students of the First, Second and Fourth year of the B.H.M.S. Course. They were declared to have failed in one or two subjects under Ordinance 1 of 2002. The Petitioners seek the application of an earlier rule governing Condonation/Grace Marks which was in existence since 1998.
The Ordinances and Directions on Grace Marks
4. In order to appreciate the grievance of the Petitioners in the aforesaid Petitions and of all the other Petitioners before the Court in this batch of matters, it would be instructive to make a reference to the pattern followed by MUHS in the matter of awarding grace marks. The University was established under the provisions of the Maharashtra University of Health Sciences Act, 1998. The procedure for the conduct of examinations came to be regulated by Ordinance 4 of 1999 for which purpose, the Vice Chancellor had initially, issued a direction in exercise of powers under Section 16(8) of the Act. Under the said Ordinance, the award of grace marks was governed by Rule 58 under which a candidate could be given a maximum of upto 1% of the total marks of an examination by way of grace marks which could be distributed in more than one subject or in multiple heads of subject, provided that the candidate passed the examination as a whole. Rule 58.1 provided as follows:
“58.1 To have uniformity in respect of grace marks for all Graduate Courses in the faculty of Medicine, Dentistry, Pharmacy, Ayurved, Unani, Homeopathy and faculty of allied Health Sciences a candidate shall be given grace marks maximum upto 1% of the total marks of the examination. The grace marks can be distributed in more than one subject or in multiple heads of the subject, provided that the candidate passes the examination as a whole. However, such gracing in any given subject shall not exceed 1% of the maximum marks of that particular subject. Subject marks include the maximum marks allotted to Theory, Practical including Oral and Internal Assessment marks taken together.”
Rule 58.2 provided that where an examinee is “failing exclusively in one subject”, he or she would be given upto 5 marks subject to the condition that the candidate passes all the subjects of the examination in one and the same attempt. Such a student would, however, not be eligible for grace marks under Rule 58.1. The standard of passing was provided for in Rule 60 which laid down that a candidate in order to be eligible to pass an examination “must have obtained not less than 50% of marks in each head of Theory. Practical including Orals and the Internal Assessment examination separately”.
5. On 17th December, 2000, the Vice Chancellor issued another Direction (Direction 22 of 2001) in exercise of powers conferred by Section 16(8) of the Act which was an Amendment to Ordinance No. 4 of 1999 in respect of grace marks. By the amendment Direction. it was provided that “the examinee shall be eligible to get 0.8% grace marks instead of provisions made in Sections 58.1, 58.2 & 58.3 of Ordinance No. 4 of 1999.”
The Report of the Nigavekar Committee
6. The Governor of Maharashtra in his capacity as the Chancellor of Non agricultural Universities in the State had appointed a Committee to “prepare uniform ordinances and guidelines laying down detailed procedures for the conduct of examinations from the stage of fixing the schedule of examination till the declaration of results”. The Terms of reference of the Committee included the procedure for the award of grace marks before declaration of results, amendment of results after declaration, procedure for revaluation and verification of results, appointment of examiners for valuation and revaluations, matters relating to malpractices in examinations and the setting up of a Vigilance Committee in each University. The six-member Committee set up by the Chancellor consisted of the Vice Chancellor of the University of Pune. The Vice Chancellor of Shivaji University and the Vice Chancellor of the Maharashtra University of Health Sciences, besides the Controllers of Examinations of the University of Mumbai and Dr. Babasaheb Ambedkar Marathwada University, Aurangabad and the Deputy Registrar, Higher and Technical Education of the Government of Maharashtra. Dr. Arun Nigavekar, the Vice Chancellor of the University of Pune was the convenor of the committee, which in the discussions on the subject is, hence, called as the Nigavekar Committee.
7. The Nigavekar Committee submitted its report on 19th April, 2000 to the Chancellor along with nine draft ordinances. In so far as these proceedings are concerned, it would be material to note that ordinance No. 1 related to grace marks in each head of passing (Theory/Practical/Oral/Sessional) (External/internal). Ordinance No. 4 was entitled “Condonation”. The report of the Committee and the draft ordinances were considered in a meeting of the Vice Chancellors of all Universities of the State of Maharashtra and the Controllers of Examinations of those Universities conveyed by the Chancellor on 15th May, 2000. The Committee considered the suggestions made in the meeting by the Vice Chancellors and the views of the Chancellor and modified the draft ordinances. These ordinances were thereafter forwarded under a communication dated 30th March, 2001 addressed on behalf of the Chancellor to the Vice Chancellors of the Universities in the State of Maharashtra. Though a letter addressed to the Vice Chancellor of Shivaji University is on the record, it is an admitted position that MUHS also received such a letter. The forwarding letter recorded that a copy of the final report of the Nigavekar Committee containing draft ordinances approved in the Joint Board of Vice Chancellors Meeting and a list of professional courses was being forwarded. The Vice Chancellors were requested “to submit the compliance report about the adoption of the Ordinances at the earliest for the information of the Chancellor”.
8. Ordinance 1 of the Report of the Nigavekar Committee was in the following terms:
“ORDINANCE 1. Grace Marks for Passing in each head of passing (Theory/Practical/Oral/Sessional) (External/Internal).
The examinee shall be given the benefit of grace marks only for passing in each head of passing (Theory/Practical/Oral/Sessional) in External or Internal examination as follows:
Head of Passing
Grace Marks upto
Upto-50
2
051 – 100
3
101 – 150
4
151 – 200
5
201 – 250
6
251 – 300
7
301 – 350
8
351 – 400
9
and 401 and above
10
Provided that the benefit of such gracing marks given in different heads of passing shall not exceed 1% of the aggregate marks in that examination.
Provided further that the benefit of gracing of marks under this Ordinance, shall be applicable only if the candidate passes the entire examination of semester/year.
Provided further that this gracing is concurrent with the rules and guidelines of professional statutory bodies at the All India level such as AICTE, MCI, Bar Council, CCIM, CCIH, NCTE UGC etc.”
Ordinance 4 was entitled “Condonation” and provided thus:
“ORDINANCE 4. Condonation
If a candidate fails in only one head of passing, having passed in all other heads of passing, his/her deficiency of marks in such head of passing may be condoned by not more than 1% of the aggregate marks of the examination or 10% of the total number of marks of that head of passing in which he/she is failing, whichever is less. However condonation, whether in one head of passing or aggregate head of passing be restricted to maximum upto 10 marks only.
Condonation of deficiency of marks be shown in the Statement of marks in the form of asterisk and Ordinance number.
Provided that this condonation of marks is concurrent with the rules and guidelines of professional statutory bodies at the All India level such as AICTE, MCI, Bar Council, CCIM, CCIH, NCTE etc.”
9. Ordinance 1 thus propounded a graded scale of grace marks that would be awarded in each head of passing depending upon the maximum marks awarded for the head of passing. At the minimum of the scale, upto two grace marks were to be awarded where the maximum marks were upto 50 for a particular head of passing and, at the maximum, 10 grace marks could be awarded where the head of passing involved 401 marks or above. Under the first proviso, it was laid down that the benefit of such grace marks under different heads would not exceed 1% of the aggregate marks in the examination. The candidate had to pass the entire examination. Ordinance 4 dealt with a situation where a candidate had failed in only one head of passing, having passed in all other heads of passing. In such a case, it was provided that the deficit of marks could be condoned by not more than 1% of the aggregate marks of the examination or 10% of the marks of that head of passing in which the candidate was failing whichever is less. The maximum marks were restricted to ten. Both Ordinance 1 and Ordinance 4 provided that such award of grace marks should be “concurrent” with the rules and guidelines of professional bodies at the all India level including the Medical Council of India, Central Council of Indian Medicine, All India Council for Technical Education and University Grants Commission. This is recognition of the overriding constitutional importance given in Entry 66 of the Union List to the Seventh Schedule of the Constitution to Parliamentary legislation related to the co-ordination and determination of standards in institutions of higher education.
10. The Court has been informed in the course of these proceedings that in response to the communication issued on behalf of the Chancellor, MUHS agreed in substance to accept Ordinance 1 as proposed by the Nigavekar Committee by accepting its recommendation for the award of grace marks for passing in each head of passing on a graded scale. In so far as Ordinance 4, however, was concerned, MUHS declined to follow the report of the Nigavekar Committee in its response to the communication of the Chancellor, on the ground that the “Central Councils do not permit grace marks for condonation”. That remark is in a tabular statement produced before the Court which, Learned Counsel for MUHS stated was submitted to the Chancellor.
Direction 22 of 2001
11. A direction was issued by the Vice Chancellor of MUHS on 8th August, 2001 (Direction No. 22 of 2001) entitled “Conduct of Examinations” by which Ordinance 1 as proposed in the recommendations of the Nigavekar Committee came to be crystallized as Rule 62. Before dealing with Rule 62, it would, however, be material to note the provisions of Rule 58 of the Vice Chancellor’s direction which, in so far as is material, provided as follows:
“The candidate to be eligible to pass in a subject shall pass in
i) Theory
ii) Practical
iii) Internal Assessment
in the same attempt.”
Rule 59 was entitled “The Standard of Passing” and provided as follows:
“59. The Standard of Passing: A candidate to be eligible to pass the examination must have obtained not less than 50% of marks in
i) Theory
ii) Practical
iii) Internal Assessment
separately.”
An important point that needs to be noted is that unlike Rule 60 of Ordinance 4 of 1999, in which “practical including oral” was a separate head of passing, Rules 58 and 59 of Direction 22 of 2001 makes a conscious departure by not regarding the orals as a head of passing.
Rule 62 was entitled “Grace marks for passing in each head of passing (theory/practical/oral/sessional) (external/internal) and provided as follows:
“62. Grace Marks for Passing in each head of passing (Theory/Practical/Oral/Sessional) (External/Internal)
The examinee shall be given the benefit of grace marks only for passing in each head of passing (Theory/Practical/Oral/Sessional) in External or Internal examination as follows:
Head of Passing
Grace Marks upto
Upto -50
2
051 – 100
3
101 – 150
4
151 – 200
5
201 – 250
6
251 – 300
7
301 – 350
8
351 – 400
9
and 401 and above
10
Provided that the benefit of such gracing marks given in different heads of passing shall not exceed 1% of the aggregate marks in that examination.”
12. Direction 22 of 2001 was to come into force with effect from the Summer 2002 examinations of the University. At the May 2002 examination, for awarding grace marks, initially Direction 11 of 2000 was applied to the repeaters and Direction 22 of 2001 was applied to fresh students. This action was impugned by a group of students in Writ Petitions before this Court. MUHS made a statement before this Court, agreeing to apply Direction 11 of 2000 to all unsuccessful examinees who appeared for the May 2002 examination irrespective of whether they were repeaters or fresh examinees. On 29th August, 2002, this Court passed orders in that batch of Petitions in light of the statement made before the Court by MUHS. This, the Court clarified was a one time measure and would not operate as a precedent in subsequent examinations. The Court clarified that it would be open to the University to apply Direction 22 of 2001 (i.e. Ordinance 1 of 2002) or such other directions/ordinance as the University may issue from time to time.
Ordinance 1 of 2002
13. MUHS had in the meantime framed an ordinance, Ordinance No. 1 of 2002 to govern the conduct of examinations. This ordinance included, in so far as is material to the present case, Rule 56 relating to the eligibility of candidates to pass in a subject, Rule 57 defining the standard of passing and Rule 60 providing for grace marks for passing in each head of passing. These Rules in Ordinance 1 of 2002 correspond to those in Direction 22 of 2001 which was introduced by the Vice Chancellor on 28th August, 2001 and which have already been reproduced. Ordinance 1 of 2002 which was framed by MUHS was forwarded to the Chancellor for his approval on 14th February, 2002 and 17th June, 2002. By a communication dated 8th July, 2002, the Registrar of MUHS was informed that the Chancellor had approved “the new combined ordinance for conduct of examinations”.
The Supplementary Directions of 2003
14. On 3rd January, 2003, the Vice Chancellor of MUHS issued a supplementary direction, being Direction No. 1 of 2003 in exercise of powers under Section 16(8). This direction was to come into force with effect from the date of its issuance and was to apply to the examinations held in October/November 2002. The direction deals with a situation where an examinee fails only in one head of passing and provides thus:
“Supplement to Grace Marks under Section 60 of Ordinance 1/2002
Where an examinee is failing in only one head of passing, having passed in all other heads of passing without using grace marks under Section 60 of Ordinance No. 1/2002, his/her deficiency of marks in such head of passing may be condoned by awarding 5 grace marks or up to 5% of the maximum marks of that head of passing subject to the following conditions:
a) For Medical, Dental & Allied Health Sciences faculties these grace marks should not exceed 5.
b) For Ayurved & Unani and Homeopathy faculties these grace marks should not exceed 10.
c) Provided further that the benefit of gracing of marks under this Direction, shall be applicable only if the candidate passes the entire examination.”
15. A perusal of the aforesaid Direction will show that in a case where an examinee has failed in one head of passing alone and has passed all the other heads of passing without recourse to grace marks, the deficiency of marks in that singular head of passing can be condoned by awarding 5 grace marks or upto 5% of the maximum marks for that head of passing. The direction is, however, subject to three conditions: (i) For Medical, Dental and Allied Health Sciences faculties, the grace marks are not to exceed five:(ii) For the Ayurveda, Unani and Homeopathy faculties, the maximum grace marks provided are 10; and (iii) The candidate has to pass the entire examination.
16. A comparison of the Direction which has been issued by the Vice Chancellor on 3rd January, 2003 with Ordinance 4 that was proposed in the report of the Nigavekar Committee would reveal that whereas the Committee in its report had provided that a candidate who has failed only in one head of passing may be given the benefit of condonation of not more than 1% of the aggregate marks of the examination or 10% of the total marks of that head of passing whichever is less, Direction 1 of 2003 has restricted the maximum marks upto 5% of the total marks of the head of passing. Moreover, proposed Ordinance 4 in the Nigavekar Committee’s Report provided that the extent of condonation whether in one head of passing or, in the aggregate, will be restricted to a maximum of 10 marks. Direction 1 of 2003 has provided that in the Medical, Dental and Allied Health Sciences, the total grace marks should not exceed 5. The extent of benefit is thus more restricted its nature than that in proposed Ordinance 4 contained in the Report of the Nigavekar Committee. Direction 1 of 2003 makes a distinction between the maximum grace marks awardable for (i) the Medical, Dental and Allied Health Sciences and (ii) the Ayurveda, Homeopathy and Unani faculties. The Court has been informed that Direction 1 of 2003 is still to be converted into an ordinance of the University.
17. In this background, the challenges urged before the Court can be considered.
The Challenges
18. The first submission that has been urged on behalf of the Petitioners is based on the grievance that the marks obtained by students in the oral examination are sought to be clubbed either with the theory or with the practical component. In order to appreciate this aspect, an illustrative case, that of the Petitioner in Writ Petition No. 312 of 2003, can be considered. In the aforesaid Writ Petition, the Petitioner is declared to have failed in the subject of Periodontics at the final B.D. S. Examination held in October 2002. The student secured 38 marks out of 60 in the Theory component, 36 out of 80 in Practicals and 7 out of 20 in the Oral examination. In the head of passing of Theory, the Petitioner secured the pass mark since the minimum required for passing is 50% (30 marks out of 60). In the Practicals, the student falls short of the passing marks of 40 out of 80 by 4 marks. The case of the Petitioner is that since the Practicals are regarded as a head of passing in the Ordinance, then by virtue of Direction 1 of 2003, he would be entitled to 4 marks, since that is the only head of passing in which he has failed. On the other hand, what has been done by the University is to club the Practicals and the Oral component and to declare the student has having failed in the practicals and Orals, since he has secured 36 and 7 marks, making a total of 43 out of 100. In that event, according to the University, the candidate would not pass the examination.
19. The learned counsel appearing on behalf of MUHS, has sought to justify the action of the University by relying upon the provisions of Rule 12 of Direction 22 of 2001. According to the learned counsel, Rule 12 prescribes that the syllabi and the scheme for the University examinations shall be such as may be prescribed from time to time by the Academic Council. According to the counsel, the brochure for the B.D.S. Examination would show that the practical and oral examination would be clubbed together. Counsel stated that for the M.B.B.S. Degree course, the Oral examination has been clubbed with the marks obtained in the Theory component, whereas for the Dental course, the marks obtained in the Oral component have been tagged with the Practicals.
20. having given our anxious consideration to the matter, we are of the view that the approach that has been adopted by MUHS is ex facie contrary to the plain terms of the applicable rules and regulations. We are conscious of the settled principle that in matters relating to education, the interpretation of the expert is entitled to deference and the Court will not substitute its view for that of the University. However, a perusal of the Ordinances approved by the Chancellor would reveal that under Rule 56, (corresponding to Rule 58 of Direction 22 of 2001), it is clearly specified that a candidate in order to be eligible to pass in a subject shall pass in (i) Theory (ii) Practical and (iii) Internal Assessment in the same attempt. Similarly, Rule 57 prescribes that a candidate in order to be eligible to pass the examination must obtain not less than 50% of the marks in (i) Theory (ii) Practical and (iii) Internal Assessment separately. Neither Rule 56 nor Rule 57 provides for the Orals being a separate head of passing or for a minimum pass mark in the Oral component. The heads of passing are three viz. Theory, Practical and Internal Assessment. Counsel appearing on behalf of MUHS made an attempt to urge that there are in fact four heads of passing viz. Theory, Practical, Internal Assessment and Practical Plus Oral for the B.D.S. Course and Theory plus Oral for the M.B.B.S. We cannot possibly accept this submission in the face of the plain language of Rules 56 and 57 of Ordinance 1 of 2002. At the cost of repetition, it must be reiterated that since Rules 56 and 57 of Ordinance 1 of 2002 provide only for 3 heads of passing of which the Orals are not a component, a new head of passing cannot be created save by an amendment to the Ordinance in accordance with law. The reference to Orals in Rule 60 which provides for grace marks cannot affect the interpretation to be placed on Rules 56 and 57 since the question of grace marks would arise if their is a head of passing specified in Rules 56 and 57. In a sense, the genesis of Rule 60 relating to grace marks is in the report of the Nigavekar Committee and proposed Ordinance 1 which was prepared by the Committee for adoption in all faculties in the diverse Universities of the State. Ordinance 1 of the Report of the Committee was incorporated initially in Direction 22 of 2001 and as already noted earlier, now finds a place in Ordinance 1 of 2002. However, since the Ordinance specifically provides the heads of passing, it is not permissible for the University to teat the orals either as a separate head of passing or as a fourth head of passing in combination either with the theory or the practicals as the case may be. Counsel for MUHS has in a written note submitted before the Court fairly accepted that while the component of orals was included in the theory component prior to the May 2002 examinations, after an extensive debate in the Academic authorities of the University, the Theory. Practical and Internal Assessment were made the “main and separate heads of passing” with an understanding that the examinee should obtain atleast 50% marks in each of this. However, it has been stated that after extensive debate in these Academic bodies, “Practical Plus Oral” has been created as a special head of passing. The Court cannot countenance this submission for the simple reason that the Ordinance which has been framed by the University must be given effect as it stands. Ordinances are framed by the Management Council in exercise of powers conferred by Section 50 of the Act and the manner in which they are to be made is provided by Section 51. The Ordinance must be given effect to since it has the force of law and it is not open to the University to act in a manner contrary to the provisions thereof. In the circumstances, in so far as the aforesaid grievance of the Petitioners before the Court is concerned, we find substance in the submissions urged before us. We, therefore, direct that the University shall act strictly in accordance with the provisions of Rules 56 and 57 of Ordinance 1 of 2002 and shall reprocess the results of the Petitions and similarly situated students on the basis that there are three heads of passing viz. (i) Theory (ii) Practical and (iii) Internal Assessment. In fairness, we must record the fact that Learned Counsel for MUHS has on instructions agreed that the results will accordingly be reprocessed.
21. The next submission which has been urged before the Court on behalf of the Petitioners is that MUHS was duty bound to comply with the directive issued by the Chancellor by adopting the Ordinances proposed by the Nigavekar Committee. The submission was that the Nigavekar Committee was appointed in order to bring about a uniformity of standards and methods of evaluation in the conduct of examinations in all the Universities of the State. The report of the Nigavekar Committee was circulated to the Vice Chancellors of all the non agricultural universities in the State and after it was discussed and deliberated upon, the Chancellor by his directive required MUHS and other universities to submit a Report of compliance. Counsel before the Court urged that while submitting a report of compliance to the Chancellor, MUHS misrepresented to the Chancellor that it was unable to adopt proposed Ordinance 4 on the ground that the Central Councils do not permit grance marks for condonation. The submissions was that on 14th February, 2002 when the response was submitted to the Chancellor, neither of the Central Councils in charge of medical courses laid down an prohibition on the award of grace marks. In fact, it was only by a notification dated 1st July, 2002 that the Medical Council of India laid down that grace marks in medical courses shall not exceed a maximum of 5. Moreover, it was urged that even thereafter, neither the Central Council of Indian Medicine nor the Central Council for Homeopathy have prescribed any such restriction. Consequently, it was urged before the Court that MUHS had furnished a reason for not complying with the directive of the Chancellor which was not based on a true or correct statement of fact and that the Chancellor was, therefore, not apprised by MUHS of the true state of affairs.
22. On the other hand, it was urged on behalf of the Respondent, MUHS, that the University had decided to grant less grace marks than those provided in the Chancellor’s directive since it was the considered view of the University that in courses relating to Health Sciences, a more restricted provision for the award of grace marks should be incorporated.
23. In considering the submission which has been urged under this head of challenge, it would be necessary at the outset of note that the Chancellor occupies an important position in relation to MUHS as indeed in relation to other Universities in the State. That position is suit generis. Section 10(1) of the Act provides that the Governor of Maharashtre shall be the Chancellor of the University and the Chancellor by virtue of his office shall be the head of the University. Under Sub-section (2) of Section 10, the Chancellor is empowered to issue a direction to the Vice Chancellor to convene a meeting of any authority of the University for specific purposes. Under Sub-section (3), the Chancellor is empowered to call for information relating to any affairs of the University and to issue directions thereon as he may deem fit in the interest of the university. The authorities and officers of the University are under a mandate to comply with the directions of the Chancellor. By virtue of Sub-section (4) of Section 10, the Chancellor may after taking a report in writing from the Vice Chancellor, suspend or modify any resolution, order or proceedings of any authority, body, committee or officer which in his opinion is not in conformity with the Act or the statues, rules or regulations or which is not in the interests of the University. By Sub-section (6), wide ranging powers have been conferred upon the Chancellor to cause an inspection or inquiry to be made to require action to be taken on the basis of the inspection or inquiry. Clause (f) of Sub-section (6) of Section 10 provides as follows:
“(f) Notwithstanding anything contained in the preceding Sub-sections, if at any time the Chancellor is of the opinion that in any matter the affairs of the University are not managed in the furtherance of the objects of the University or in accordance with the provisions of this Act, and the Statutes and Regulations or that special measures are desirable to maintain the standards of University teaching, examinations, research, administration or finances, the Chancellor may indicate to the Management Council through the Vice-Chancellor any matter in regard to which he desires an explanation and call upon t he Management Council to offer such explanation within such time as may be specified by him. If the Management Council fails to offer any explanation within the time specified or offers an explanation which in the opinion of the Chancellor, is not satisfactory, the Chancellor may issue such directions as appear to him to be necessary, and the Management Council and any other authority concerned shall comply with such directions.”
24. In so far as Ordinances are concerned, the power to make, amend or repeal ordinances is visited in the Management Council by Sections 50 and 51 of the Act. Clause (vi) of Section 50 empowers the Management Council to frame ordinances in regard to the conduct of examinations and other tests and as regards the manner in which candidates may be assessed or examined by examiners. Sub-section (2) of Section 51 provides that in respect of certain matters a draft of the ordinance has to be proposed by the Academic Council. Clause (vi) of Section 50 is one of the prescribed matters where the draft has to emanate from the Academic Council. Under Sub-section (4) of Section 51, ordinances made by the Management Council take effect from such date as may be directed by the Council, but every ordinance has to be submitted to the Chancellor within two weeks. The Chancellor has the power to direct the Management Council within four weeks of the receipt of the Ordinance to suspend its operation and it has been provided that he shall as soon as possible inform the Management Council of his objection to it. Upon receiving the comments of the Management Council, the Chancellor may either withdraw the order suspending the ordinance or disallow the ordinance and his decision is to be final.
25. In the present case, the setting of the Nigavekar Committee by the Chancellor was an exercise designed with the object of preparing uniform ordinances and guidelines for the conduct of University Examinations, encompassing the stage of fixing the schedule of examinations, the declaration of results and other issues relating to examinations. The terms of reference of the Nigavekar Committee included the procedure for “gracing” before the declaration of results. The Vice Chancellor of MUHS was a member of the Nigavekar Committee. After the Committee submitted its report on 19th April, 2000 together with its draft ordinances, the report and the proposed ordinances were considered in a meeting convened by the Chancellor of all the Vice Chancellors of the Universities in the State together with the Controllers of Examinations on 15th May, 2000. In so far as Ordinance 4 was concerned, the suggestions which were made in the course of the meeting on 15th May, 2000 were specifically Minuted in the following terms in the Report of the Committee.
“Ordinance No.4: Regarding Condonation:
On this Ordinance, it was suggested that the condonation should not be given if grace marks are already given and the condonation be reflected in the marksheet with a clear symbol.
The Chancellor had suggested that the condonation should not be made applicable to those students who have already availed of the facility of gracing under any of the Ordinance numbers 1-3 mentioned above and the condonation should be upto a maximum of ten marks. The Chancellor also directed that the condonation should be shown in the marksheet.”
26. On 30th March, 2000, the Secretary to the Chancellor forwarded a copy of the final report of the Nigavekar Committee containing the draft ordinances approved in the meeting of the Joint Board of Vice Chancellors to all the vice Chancellors of Universities in the State. The letter called upon the Vice Chancellors to submit a compliance report about the adoption of the ordinances at the earliest, for the information of the Chancellor. The exercise which was carried out by the Chancellor is traceable to the powers conferred upon him by Section 10(6)(f) of the Act. That provision enables the Chancellor to take action where he is of the opinion that, inter alia, special measures are desirable to maintain the standards of university examination. The exercise of setting up the Nigavekar Committee was with a view to adopt uniform standards all over the State in the conduct of examinations. There can be no gainsaying the fact that this is desirable in order to preserve the standards of university education. A divergence of rules and regulations is liable to produce ambiguity, uncertainty and confusion which will only imperil the cause of university education. The concern of the Chancellor was reflected in the setting up of a high powered Committee and in the broadbased discussions involving all Vice Chancellors that took place before the Report was accepted. Based on the suggestions of the Joint Board of Vice Chancellors, the Ordinances as originally proposed were modified. This was part of the evolution of a consensus.
27. Upon receipt of the communication from the chancellor, MUHS submitted a statement which has been produced before the Court in the se proceedings. MUHS accepted Ordinance 1 as contained in the Report of the Nigavekar Committee providing for grace marks for passing in each head of passing. However, in so far as Ordinance 4 was concerned, the Chancellor was informed that the Central Councils do not permit grace marks for condonation. This statement made to the Chancellor was not accurate, atleast because it was sought to be imputed that the grant of grace marks for condonation would be in the teeth of a prohibition by the Central Councils. As already noted earlier, it was subsequently on 1st July, 2002 that the Medical Council of India prescribed that “grace marks upto a maximum of five marks many be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subjects.” There can be absolutely no doubt about the position that once the Medical Council of India has prescribed a maximum, above which no further grace marks can be granted, that would have overriding force and effect., Moreover, the stipulation is that grace marks can be granted only to a student who has failed in one subject alone, but has passed in all other subjects. Therefore, in so far as medical courses under the aegis of the MOI are concerned, there is merit in the contention of the counsel for MUHS that the prescription of grace marks by the M.C.I. must be scrupulously observed. The fact, however, does remain and this has been accepted by Counsel on behalf of MUHS that there is no such provision in the regulations made by the other Central Councils such as CCIM and CCH. We are of the view that once the Chancellor had carried out an elaborate exercise for bringing about a uniformity in the conduct of examinations including the award of grace marks, a more candidate and fair disclosure of information on the part of MUHS was called for. The reservation which the University had to the incorporation of Ordinance 4 propounded by the Nigavekar Committee ought to have been clearly and comprehensively placed before the Chancellor. We are not prepared to hold that the reasons which have been urged before us by MUHS for restricting the award of grace marks in examinations relating to the Health Sciences do not constitute a relevant consideration. Indeed, the Court must record the submission of counsel that MUHS has taken a considered view that assessment of students in the Health Sciences course must be dealt with on a higher footing and it is open to the University which has been constituted as a specialised authority for regulating courses in Health Sciences to conclude in the public interest, that the award of grace marks must be restricted. The Court has to be mindful in such matters of the fact that universities such as MUHS regulate a course of studies which leads to the certification of Doctors who are to administer medical services in the society at large. Standards, therefore, have to be preserved. Indeed, that is the reason why the M.C.I. has now laid down in its amendment to the Regulations on Graduate Medial Education, effected on 1st July, 2002 that grace marks can be availed of by a student who fails only in one subject, having passed in all others, and that too, only upto five marks. Grace marks lead to a dilution of academic standards and should not be liberally bestowed. A consideration such as this is clearly not extraneous.
28. Similarly, it would be necessary for the Court to keep in perspective the principle that no student can have a vested right to universities awarding grace marks. In Maharashtra State Board of Secondary and High Secondary Education v. Amit and Anr. , the Supreme Court emphasised that the award of grace marks is a matter of concession. Grace marks have a tendency to dilute academic standards and therefore, regulations dealing with the grant of grace marks should not be genersouly and liberally construed. The Supreme Court held that a rule for the award of grace marks must be construed strictly, so as to ensure that minimum standards are not allowed to be diluted beyond the limit specifically laid down by the appropriate authority, It is only in a case where the language of the statute is absolutely clear that the claim for the award of grace marks can be sustained. A Court, the Supreme Court held, should be slow to extend the concession of grace marks and grant a benefit where none is intended to be given by the appropriate authority.
29. We are, therefore, of the view, that the appropriate course would have been for MUHS to bring to the notice of the Chancellor all the reason on the basis of which it sought to restrict the applicabltiy of Ordinance 4 proposed by the Nigavekar Committee. Unfortunately, the conduct of MUHS has been ambivalent in that regard. The Vice Chancellor of MUHS was himself a member of the Nigavekar Committee and was, therefore, a party to the report which recommended uniform ordinances for adoption by the universities in the State. On behalf of the Petitioners, it has been urged that apart from MUHS, other universities in the State also conduct specialized courses in medicine including post graduate courses and courses relating to super specialization. Counsel for the petitions urged that whereas the other universities which conduct such courses in medicine have accepted the ordinances proposes by the Nigavekar Committee upon the directions of the Chancellor, it is only MUHS which has not done so. Be that as it may, if there were reservations which MUHS entertained in regard to the adoption of Ordinance 4, those ought to have been fairly communicated to the Chancellor.
30. The conduct of the MUHS has been anything but consistent. The reason furnished for not incorporating Ordinance 4 of the Nigavekar Report which deals with a candidate who has failed in only one head of passing is that the Central Councils of not permit grace marks. This itself seems to be contradictory, in that while MUHS decline to accept Ordinance 4 which confers grace marks to a candidate who fails in one head of passing, it accepted Ordinance 1 which dealt with the award of grace marks for passing in each head of passing. If indeed, the case of MUHS was that the award of grace marks was not permissible at all by virtue of the rule sand regulations of the Central Councils regulating Indian Medicine and of the MCI, there was no reason why MUHS decided to accepted in the first place Ordinance 1 which provides for the award of grace marks. It was only in respect of Ordinance 4 that MUHS expressing a reservation. As already noted earlier, Ordinance 4 deals with a situation where a candidate has failed only in one head of passing while he has passed in all other hands. MUHS then adopted Direction 1 of 2003 on 3rd January, 2003 which confers a benefit of grace marks, to the extent stated therein, even to students who have failed in one head of passing. The conduct of MUHS therefore is not consistent with its own rationale. Decisions appear to be made on an ad hoc basis as situation evolve, with little regard for the chaos and confusion that is liable to result with frequent changes in rules. Certainty and consistency are valued ideals in education as elsewhere. The conduct of MUHS has palpably failed to measure up to those requirements.
31. The one position which, however, remains is that the Chancellor has on 8th July, 2002 approved Ordinance 1 of 2002 that was submitted by MUHS under Section 51 of the Act. Ordinance No.1 of 2002 as approved contains a provision, as already noted earlier, incorporating Ordinance 1 as proposed by the Nigavekar Committee. In the circumstances, the Chancellor has permitted MUHS to operate in a filed where it will be governed only by Ordinance 1 as proposed by the Nigavekar Committee in the areas of the award of grace marks. MUHS response to the communication of the Chancellor requiring compliance in the adoption of uniform ordinances for conduct of examinations compiled by the Nigavaker Committee cannot be isolated from the eventual approval of Ordinance 1 of 2002. The representation made by MUHS that the Central Councils do not permit grace marks in condonation, if correct, was entitled to due defence and would have had a bearing both on (i) whether the ordinances drafted by the Nigavekar Committee should be adopted by MUHS and on (ii) whether the ordinance framed by MUHS should be approved under Section 51 by the Chancellor. The framing of Ordinances by the University partakes of a subordinate legislative activity. While, therefore, we are of the view that the conduct of MUHS in responding to the Chancellor’s communication dated 30th March, 2001 was not satisfactory, we are not prepared to accede to the submission that MUHS must be directed to this Court to incorporate proposed Ordinance 4, of the Report of the Nigavekar Committee. Instead we are of the view that the only direction which can be issued is of MUHS to resubmit to the Chancellor of the University its considered view in regard to Ordinance 4 as proposed by the Nigavekar Committee. It will be open to MUHS to submit it entire perspective in that regard including such reasons which have been stated before the Court for not adopting in its entirety Ordinance 4 as drafted in the Report of the Nigavekar Committee. We hope and trust that upon the submission of the relevant material by the University to the Chancellor, an appropriate decision will be arrived at after considering all the facets of the matter. We are also of the view that a direction along the lines submitted on behalf of the petitioners ought not to be granted in a matter such as the present for the additional reasons that the issue is one that relates to the realm of policy in the matter of education. The question as to whether the grant of grace marks which has been prescribed for other faculties should have a more restricted operation in relation to the field of education regulated by MUHS is a question of policy, which is for the Chancellor to consider in the light of all the facets of the matter including the view which may be placed before him by MUHS. In so far as, the facilities which fall within the jurisdiction of the Medical Council of India are concerned, we would wish to reiterate, in view of the notification issued by the MCI on Ist July, 2002, that the said notification must necessarily prevail.
32. On behalf of the Petitioner, it was sought to be urged that the classification which was sought to be made in Conditions (a) and (b) of the vice Chancellor’s direction dated 3rd January, 2003 is violative of Article 14. This issue can be conspired independent of the other challenge already dealt with earlier, namely that Ordinance 4 drawn up by the Nigavekar Committee was binding on MUHS as a result of the Chancellor’s directive. The submission that the directive of 3rd January, 2003 is only a partial incorporation of the Chancellor’s directive has already been adverted to and considered. Counsel has under the present head of challenge urged that there is no reason why in the case of the Medical, Dental and Allied Health Sciences, grace marks have been restricted to 5, whereas in the case of the Ayurved, Unai and Homeopathy faculties grace marks have been extended to 10. In our view, there is merit int he contention urged on behalf of MUHS that this submission which has been urged at the Bar ought not to be countenanced in the absence of any foundation in the pleadings. Apart from this, counsel for MUHS as submitted that the restriction which has been imposed so far as medical faculties falling under the’ jurisdiction of the MCI are concerned, is consistent with the notification issued by the MCI on 1st July, 2002. It was urged that the Dental, and Allied Health Sciences faculties were sought to be placed by MUHS. as an expert body, on par with the Medical faculties.
The contention of the Petitioners on the other hand is that while the MCI notification contemplates 5 grace marks to a student who has failed in one subject the Direction dated 3rd January, 2003 applies to a student who has failed in one head of passing. We leave it to the Chancellor, upon a reference being made by MUHS in terms of the directions issued earlier, to determine whether Supplementary Direction 1 of 2003 needs to be reviewed so as to bring it in conformity with the directive of the Chancellor based on the Report of the Nigavekar Committee. The contention that the expression “Allied Health Science Faculties” is vague, however, does not have any merit. We find from the direction of the Vice Chancellor dated 8th August, 2001 that the faculty of Allied Health Sciences has been described so as to include certain specified courses including those for the Bachelors degree in Physiotherapy (B.P.Th.), Occupational Therapy (B.O.Th.), Nursing (B.Sc.) and Laboratory Technology (B.P.O., D.M.L.T.). These are courses which can fairly be stated to be allied to the medical faculty. Since we have taken the view that it would be appropriate for MUHS to make a fresh reference to the Chancellor, it would also not be appropriate at this stage for this Court to interfere with the operation of supplementary direction 1 of 2003. The Court must be conscious of the fact that the University has applied Supplementary Direction 1 of 2003 to the examinations which were held in October 2002 and a number of student who would have received the benefit of the supplementary direction are not before the Court. The Petitioners constitute a group of students who would in any case not be benefited by the mere striking down of supplementary direction of 1 of 2003. Indeed, the case of the Petitioners is that supplementary Direction 1 of 2003 must be expanded so as to allow a wider benefit as contemplated in Ordinance 4 that was drawn up by the Nigavekar Committee. Having regard to these facts and circumstances, we are of the considered opinion that the benefit which has been granted by MUHS on the basis of the application of Ordinance 1 of 2003 ought not to be disturbed at this stage, which would be the consequence if, as suggested by the Petitioners, the entire direction were to be struck down.
33. Finally, it would be necessary to take note of one of the submissions which was urged on behalf of the Petitioners which was to the effect that the same rules regarding the award of grace marks which prevailed at the time when admission was granted must continue to operate. This submission was urged by learned counsel for the Petitioners in Writ Petition (st.) 2833 of 2002. There is no merit in the submission. The learned counsel appearing on behalf of MUHS has, however, drawn the attention of the Court to the fact that the student in that case took admission in October 2001. Direction 22 of 2001 had been issued even prior thereto in August 2001. The student appeared for the examination in October, 2002. Apart from the aforesaid, we are of the view that even as a matter of principle, there is no merit in the submission which has been urged. In Punjab University v. Subash Chander , the Supreme Court negatived a similar contention. The University is entitled to revise the rules relating to grace marks and the rules which must apply are those which prevail at the time of the examination. The students do not have any vested right to claim that the rules as regards grace marks which prevailed until the course is completed. At the same time, the University would have to be reasonable in the alteration of the rules so that students are not subjected to undue hardship. In the present case, we are of the view that sufficient notice was given to the students. There is no merit in the contention. Similarly, there is no merit in the contention that the students should be given the benefit of ATKT since it has been stated before the Court that there is no provision for the grant of ATKT in the rules of MUHS.
34. In the circumstances therefore, this batch of Writ Petitions will stand disposed of in the light of the following directions:
(i) In terms of Rule 56 of Ordinance 1 of 2002, which provides three heads of passing, namely (i) Theory, (ii) Practicals and (iii) Internal Assessment and in view of Rule 57, a student in order to pass the examination must obtain 50% marks in each of the three heads of passing as aforesaid separately;
(ii) Consequently, so long as Rules 56 and 57 of Ordinance 1 of 2002 continue to hold the field, it would not be open to MUHS to regard the Orals as a separate head of passing either independently or in conjunction with any of the three heads of passing stipulated in Rule 56;
(iii) The results of the Petitioners and other similarly placed students at the October 2002 examination shall be reprocessed so as to bring them in conformity with Rules 56 and 57 as clarified above; and this shall be done as expeditiously as possible;
(iv) MUHS, shall within a period of two weeks from today, resubmit to the Chancellor, either (a) a statement of compliance with the Chancellor’s Directive dated 30th March, 2001 on the adoption of the Ordinances for conduct of examinations based on the Report of the Nigavekar Committee or (b) such objections which MUHS has to the adoption of the aforesaid Ordinances based on the applicable regulations of statutory bodies such as the M.C.I., C.C.I.M., and C.C.H. or for any other reason;
(v) We should not be construed as having issued any direction requiring the Chancellor to call upon MUHS either to adopt the Ordinances drawn up by the Nigavekar Committee or to modify the terms on which Ordinance 1 of 2002 has been approved by the Chancellor on 8th July, 2002;
(vi) In the event of the Chancellor issuing any direction of MUHS upon the submission of its statement of compliance, or of its objections as provided in (iv) above, MUHS shall expeditiously take steps to implement the Chancellor’s direction so that the benefit thereof, if any, can be made available to the Petitioners and students similarly circumstanced.
The petitioners are accordingly disposed of. There shall be no order as to costs.