PUNJAB UNIVERSITY v.
SUBASH CHANDER AND.ANR.
May 17, 1984
{A.P. SEN, A. VARADARAJAN AND V. BALAKRISHNA ERADI, J oo
“Panjab University Calendar, 1965-Rule 7.1 relating to M.B.B.S. course read with Regulation 25 of Punjab University Regulations framed under Punjab University Act--Rule 7.1 amended by University in May 1970 by way of addition of exceptign to Rule 2.1 of Punjab University.Calendar, 1970 corresponding to Rule ’ . 9,1 of 1965—Incorporated in Punjab University Catendar 1974—Whether amended rule had retrospective operation—Whether candidate joining .M.B.B.S. course in 1965 and appearing fer final examination in 4974 governed by old rule in force in 1965-or new rule in force in 1974—Whether a student has vested right to claim benefit of any regulation ‘or rule which was in’ force when he was admitted to the course,
Words and Phrases —““Retrospective” —Meaning of.
; The first respondent joined M.B.B.S. course of the appellant Punjab University in 1965. At that time Regulation 25 of the Punjab University framed under s.31 of the Punjab University Act required a minimum of 50 per cent of marks to pass in each subject and Rule 7.1 relating, inter alia, to M.B.B.S. “course provided that a candidate who fails in one or more papets/subdjects for aggregate may be given grace marks upto 1 per cent of the total aggregate .
marks excluding for practical and internal assessment to his best advantage in " order to have him declared to. have passed the examination, In 1970, Rule 7.1 was amended by the addition of an exception to Rule 2.1—which provided that in the case of M.B.B,5, examination however the grace marks shall be given upto | per cent of the total marks ofeach subject and not upto 1 per cent of the aggregate marks of all the subjects, The first respondent who appeared for ‘the final M.B.B-S, examination in 1974 was declared to have failed in one subject because he could not secure. 50 per. cent in that subject even after being
‘awarded the grace marks according to the new rule. This was challenged before.
the High Court by the first respondent off the grouud that the old Regulation 25 tead with the old Rule 7.1 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to. have passed in that subject. The Punjab University contended that there was no element of retrospectivity in the application of the amended rule and that students were bound to secure marks as per the regulation in force at the time of Commencement of the examination concerned and they had no ‘vested right to claim the benefit of any regulation or rule;which was in force when they were admitted to the course. Confirming the judgment of asingle Judge, a Full Bench of the ‘High Courtin a Letters Patent appeal-opined that there was nothing if s.31 of the Punjab University Act which would clothe the Senate, explicitly or impliedly
.
‘
4°
~€
PUNJAB UNIVERSITY ¥. S. CHANDER $23 with the power to frame regulations retrospectively and held that the regulation, as amended in 1970, had retrospectively altered the condition of the first respondent taking the examination to his detriment and could not be applied to him and that he was governed only by Regulation 25 read with Rute
7.1asit was in force when he joined the course in 1965. The High Court observed that M.B.B.S. was a single integrated composite course and the change in the regulations was a change in the course of that single integrated course and was retrospective in nature. Hence this appeal.
Allowing the appeal,
HELD : The Senate of the Punjab University had the necessary power under s.35 of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance.or reduce the quantum of grace marks. [830B]}
There is no element of retrospectivity in the change brought about by the addition of the exception to Rule 2.1 of the Calander for the year 1970. “Retrospective” according to the Shorter Oxford English EDictinoary, Third Edition, in relation’to Statutes etc. means “Operative with regard to past time’. The change brought about by the addition of the exception to Rule 2.1 does not say that ‘t shall be operative with effect from any earlier date. It is obviously ‘prospective.
‘It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied ‘to the first respondent,’who apperred -~ for the final examination in 1974, after he had joined the course earlier in 1965.
“No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation
_ in regard to the percentage of marks required for passing any exainination or award of grace marks and that therules relating thereto which wers in force at the time of his admission would continue to be applied to him until he finished his whole course. [830E-G]
Shorter Oxford English Dictionary, Third Edition, referred to;
There is no question of the change in the rule “made in the year 1970 hav-
_ ing retrospective operation merely because it was applied in 1974 to the first respondent Who had joined the M.B.B.S. course in 1965 when the rele Tegard-
*. ing award of grace marks was different. [832C]
The University was right in holding that the first respondent was not
‘entitled to grace marks-under the old rule but was entitled: to grace marks under the new rule and had therefore not passed the examination. [832D]
Sewa Ram-v. Kurukshetra University,3 LPA 97 of 1967 decided on A. 7. 1968 by Punjab and Haryana High Court, upheld.
“BN, Mishra v. State, [1965] 1 SCR 297, referred to,
824 ~ .. SUPREME COURT REPORTS ; [1984] 3.8.C.R. - cw. APPELLATE JURISDICTION :. Civil Appeal No. 2828 of 1977. : ‘
Appeal by Special leave from the Judgment and Order dated , the 7th September, 1976 of the Punjab. &Haryana High Court. in Letters Patent Appeal No, 352 of 1975. Appellant, .
Randhir Jain for the Respondent. .
The Judgment of the Court Was delivered by
VARADARAIAN, 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 the 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 the Punjab University was in force. That regulation required a minimum of 50 per cent of. marks to pass in eachsubject. However Rule 7.1 relating to the M.B.B.S,
“and certain other courses provided that—
“a candidate who fails 4 in one or more papers/subjects ‘and/or aggregate may be given grace marks up to 1 per cent of the total aggregate marks (including marks for practical and internal assessment) to his best advantage in order to 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 .
71 which \ was in force in 1965 in the following terms— |
“Q1—A candidate who appears in all subjects of the examination and who fails in one or .more subjects (written, practical, sessional 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 _marks (excluding marks for internal " assessment) to make -
Jawahar Lal Gupta, . Janendralal and B.R. Agarwala for the
\
"PUNJAB UNIVERSITY ¥. 8, CHANDER (Varadrajan, J.) 825 - up forthe deficiency if by such addition the candidate can ‘pass the examination. While awarding grace marks fraction working to 1/2 or more will be rounded to a whole.”
Exception—In the case of M.B.B.S. and B.D.S. examinations, however, the grace marks shall be given up to one per cent of the total of each subject and not upto one percent, of aggregate 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 yy 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. ”
Subash ‘Chander, respondent 1, appeared for the final M.B.B.S. examination in 1974 .and secured the following | marks
* and remarks : _ s
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 1M which: was in force when Subash Chander joined the course in 1965: he would be eligible for grace marks at 1 per cent of the 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 1 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 four as grace marks and held to have failed in Midwifery as the total of 95 marks which he actually stcured and the .4 grace marks in the theory in that subject fell short of 50 per cent by
1 mark. His contention is that the old Regulation 25 read’ with - the old Rule 7.1 which was in force when he joined. the course in
‘ 1965 should be made applicable to him and he should be declared to have passed the final examination in full including Midwifery.
. o* at
~
826 SUPREME COURT REPORTS [1984] 3 s.c.R
- Before the High Court, it was contended for the Punjab _
University that there is no clement of retrospectivity 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. Sandhawalta who spoke for the Full Bench in the Letters Paterit Appeal out %of which this appeal before us has arisen noticed certain decisions of the Punjab and Haryana High Court and observed that they did not-lay down clear guidelines for deciding the question at issue, namely whether the University is entitled to changg the regulation: relating to tle percentage of gaace marks to be awarded to students and the basis for awarding the same i.e. whether it is on the aggregate of the marks of ali the subjects for which the studerits appeared in the concerned . examination or the aggregate of the marks of the subject in which they had failed in that examination. The learned Chief Justice ~ noticed this Court’s observation in Hukum Chand v. Union of Indta®) which is this ;—
“The underlying principle is that’ unlike sovereign _ legislature which has power to enact laws with retrospec- - tive operation authority vested with the power of making . _ subordinate legislation has to act within the limit of 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. Section 31 reads thus :—
Ss. 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. .
Q) In particular and without prejudice to the generality of the foregoing power, such regulations may provide | - for.
_ @)> AIR 1972. SC 2427 oo.
_ PUNJAB UNIVERSITY v. S. ‘oma (Varadarajan, JY. 827 TO (a) to (m) Kk K & xX x x x
(n) the courses of ‘study to be followed and the conditions to be complied with by candidates for any University examination, and ‘for degrees, diplomas, licetices, titles, marks of honour, scholarships and
. prizes conferred or granted by tt the University.”
the ‘Government of India notification dated 6. 12.1969.
. The learned Chief Justice opined that there i is nothing i in s.31 ; - . ) of the Punjab University —Act which would clothe the ‘Senate, explicitily or impliedly, with the ‘power to frame regulatious retros- - -pectivély and held that ‘the regulation, as amended in 1970, has retrospectively altered the condition of Subash Chander, respondent > 1, taking the examination ‘to his detriment and could not apply to - - ° -him and that he is governed only by” ‘Regulation, 25 read with Rule’ -
» 7.1 as it was in force when he joined the course in 1965. The learn- .. - ed 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’ Ram v. Kurukshetra University®) in: which it has ‘been held. thus < -
Rot - “The University is an autonomous body and has every Tight in the matter of altering the requisite rules concerning the conduct of examinations and the qualifying marks “necessary ~ for a degree provided the ‘regulation are made well in advance {to the examination ‘which a candidate i is required to take.”
ee, ' The learned Chief Justice . ‘rejected the submission made on - . behalf of the Punjab University. that’ the change ‘in in the regulation ' made in 1970 by the addition of an exception to Rule 2.1 related to ‘examinations to be held only in future and there is no question of
| + -the rule having retrospective operation and-held that’ when Subash - . Chander respondent "1, joined the course in 1965 he Obviously did so with the intention’ of: obtaining the degree in Medicine and Surgery and that it is'a single integrated’ composite course. The learned Chief Justice observed. that the change in the regulation.by
- () LRA 97 of 1967 decided cn i7.7.1968,
*
The words © “other than an examination for matriculation” 4 a which previously occurred in sub-clause (n) have been omitted by -
7 828 : SUPREME court RIPORTS | [198473 scx.
L _ way of addition: of the ‘exception to Rule 2. 1 is a change in. the - course of that single integrated course - -and is tetospective i im nature.
‘The.other two learned: Judges agreed with this view of the learned” Chief Justice andthe Full"Bench accordingly dismissed the: appeal and directed the Punjab University ‘to declare the result of Subash _
Chander, respondent I, afresh after affording him the benefit of 16 .
“grace marks in accordance with the old Regulation 25 read with Rule 7.1 which was .in force at. the time of his admission to the ‘course in 1 1965 and not “only. 4 marks as per the amended regulation.
We are of the opinion that this “appeal has 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- "ment, tomake from. time to time, regulations, consistent, with the. “provisions of that Act to provide for all matters relating to the University. ‘Section 31(2)(n) provides that in-particular and With- . _ out prejudice to the -generality of the ‘foregoing power such Tegula- - tion may provide for the courses ‘of study to be followed and the conditions to be ‘complied with by candidates for any University - honour, scholarships: and prizes conferred of granted by the | Universiry. Obtaining the requisite percentage of marks in the subject of the examination falls under the clause‘ ‘conditions to be .complied by candidates for. any University examination” occuring | in sub- clause (n) of s.31. of the . Act. Therefore, the Senate had the power to award some percentage of marks as grace marks to candi- dates appearing in University examinations in considering whether
- they are eligible to.pass the examination in the subject or “subjects .in which they had appeared. There i is no dispute that the mifimum - number of marks required -for passing ‘the examination in a paper/ subject-is 50 per cent of marks. When Subash Chander, respondent I, was admitted to the M.B.B.S. course.in 1965, Rule 7.1 as it stood
. . then and extracted above provided that the candidate who fails in : one’ or more papers/subjects/or_ ageregate may be given grace marks .
upto 1 per Cent of the total aggregate marks excluding fot practical and internal assessment to ‘his best advantage in ‘order to have him ~ - declared to have passed ‘the examination: Subash Chander, respon dent 1, who appeared for the final M.B.B.S... examination only.nine ‘years latter in 1974 had to pass in four subjects, namely, Medicine, '. » Surgery Rye and ENT and Midwifery for each of which the aggre-
“gate was 400 mark’. He secured’ 202, 225 and 204: marks in’ Medicine, Surgery, anid Eye and ENT respectively and was declared -
“4
‘
¥
« * a
. examination and for: degrees, diplomas, licences, titles, marksin .°- a.
oy we
= PUNJAB UNIVERSITY vs s. CHANDER (Varadarajan, J) 829 to have passed the examination . jn those subjects. - Midwifery con". . sists of two parts, namely, theory and practical for each of which the ageregate was 200 marks. Subash Chander, respondent 1, secured 106 out of 200 in the- practical exaiination and only 95 out of 200 in the theory examination. Since the total aggregate of all the four.
7 subjects for which he appeared in 1974 was 1600 marks, under the old Regulation 25 read with Rule 7.1 ds it stood at the time of his
" admission to.the course in 1965. he would be. entitled to 16 grace
-” marks and would have been declared to have passed the examination
- ag the addition of 16 grace marks to the 95 marks actually secured by him in the practical examination in Midwifery. would satisfy. the required minimum of 50 per’ cent. But long before Subash Chander.
‘appeared for'the final M.B.B.S. examination in 1974 the rule relat--.
ing to award of grace marks to M.B.B. S. and B.D. S. students was
_ changed by the Senate of the : University: in 1970 by the. addition of a an excéption to Rule 2.1 as mentioned above. It is not contended that the seriction of 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 al! 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 more. than 1 per cent may be given the . required number of marks i in order to pass in that ‘subject, Under _ this rule as amended in 1970 Subhash Chander, respondent 1, was.’
entitled to only 4 marks as grace marks being 1 per cent of the
" aggregate.of 400 marks for-Midwifery alone. As the addition of 4, grace marks to 95 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 subject marks only 99 out of 200 it was tess than 50 per cent, and hé was declared to have failed in Midwifery and asked to reappet for that subject.
’ The minimum preseribed"fot passing in each subject. is 50. per cent. Under the old rule as it:stood prior 1970, Subash Chander.
~ could have passed by getting 16 grace marks being 1 per cent of the . - aggregate of all the four subjects, namely; Medicine, Surgery, Eye and ENT: and Midwifery even if-he had secured only. 84 marks out’ - of 200. in the practical examination in Midwifery which comes to ~ : ogly 42 -per-cent and he had secured more. than 50. per cent in the other subjects/papers. The Senate thought it fit to remedy this
“ glaring defect so 0 far as M: B.B.S, andi. DS, examinations are con-
830° _ SUPREME COURT REPORTS | T1984] 3 sxc. ©
. cerned by: "adding the excepection to Rule 2. L in 1970: under which .
the grace marks would be only 1 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 that change or-had acted. - unreasonably i in making the change. We think ‘that the Senate had ©
7 ~ the hecessary power under s. 312)(n) of the Act to fix, from time | ~ to time, the percentage of marks required for passing the examination — and to grant or to. refuse to’grant grace marks or to enhance or reduce the quantum of grace ‘marks. It has not been contended “before us that there was any mala | fides on the part of the Senate s ae
Y in making this change. . It could not be contended that Subash:
. Chander who appeared for the final examination ‘in 1974 did not. have -sufficierit notice - of the change brought about in ‘1970 i in the-
- qule relating to award of grace marks or that he was Pejudiced by the xe change: ee
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 change brought about by the addition of the exception to Rule. 2.1
Sa
- of the Calender for the year 1970.‘ “Retrospective” 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 of the exception to Rule -2.1. .
_ does not say that it shali be. operative with effect from any earlier '. date. Itis obviously prospective. It.is-not possible to hold that it. is _ retrospective in operation merely because though introduced in 1970 :
~ “it was applied to Subash Chander, respondent 1, who appeared for
. ~,. the final examination in 1974, after he had joined the course earlier
“in 1965... No promise was made or could be deemed to have. been made to him at the time*of his admission in 1965 that there will be:
_ ‘no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of. grace
- . “marks and that the rules relating there to which were in force at the « xv time of his admission would continue to be applied to- him until he | -
” finished his whole course. In the Calendar for 1979 we. find the following at page 1: , sO
“Notwithstanding the integrated ‘nature of a course |
_ spread over more than one academic: ‘year, the regulations” in force at the time a ‘student j joins a'coutsé shall hold good © _ only for the examinations held during or at the end of the academic. year. ‘Nothing in these regulations shall be deemed to debar | the _ University from amending the ye
“tL
. . . PUNJAB UNIVERSITY ys. cHanpan (Varadarajan, Jy. 831 regulations subsequently and the amended regulations, if any, shall apply to all students whether old or new.’
“This j is as it should be, though there was no ) such provision in
~ . the: Calendar of 1965 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 ofno conse- quence. It is necessary to note in this connection what this Court’ had said in regard. to retrospectivity in such matters in BN, Mishra ,
| y, State. > It is this:
» . “The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can ‘be made. As we read the rule we do not find any fetros- - pectivity in it. All that the rule provides is that from the.
_ date it comes into force the age of retirement would be 55 years. It would. therefore apply from that date to all government seryants, even though. they may “have been. recruited before May 25, 1961 in the same way as- the rule of 1957 which increased the age from 55 years to 58 years applied to all government servants even though they were - - rectuited before 1957. But itis urged that the proviso shows that the rule was applied retrospectively. We have already ~ referred to the proviso which lays’ down that government -
'. seryants who had attained the age of 55 years on or before . 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 date of superannuation, namely ‘55 years. — This proviso in our opinion does not make the tule retrospective; it only provides as to’ how the period of service — beyond 55 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 issuéd On the same day. also.
- ‘clearly shows. that there was no retrospective operation of the rule, for in actual effect no- government servant. ‘was retired before the date of new rule i.e. May 25, 1961 and all of thera were continued in service up to December. 31, 1961" and were therefore to retire on reaching the age of superannuation according to the old rile. We are, therefore, of 7
‘opinion that the new rule reducing the age of, retirement aren
-- W) 11965}1 S.C, 297.
- $32 * . . SUPREME, COURT REPORTS . - 11984] 3 5.C.R.
"from 58 years to 55 years ‘cannot be said to be retrospective.. The proviso to new rule and the second notification are only methods to tide over the difficult situation which would _
-arise'in the public service if the new rule was applied at
_ once and also to meet any financial objection arising out | of the enforcement of the new rule. . The new rule there- fore, cannot be struck down on the ground that it is retrospective in: operation,” oS
. Therefore, we are clearly of the opinion that there j is no- "question of thechange in the rule made in.the year 1970 having retrospective operation merely because it was applied: in 1974 to. Subash Chander who had joiried the M.B. B.S. course in 1965 when _ the rule: regarding award of grace. marks was different. In 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 decision under appeal in
_ this case and hold that; the University was right.in holding that Subash Chander, respondent 1, was not entitled to 16 grace marks ~ under the old rule but was entitled to only.4. grace marks under the new rule and had therefore not passed the examination, 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 direction of "the Jearned. Judges of the Full Bench in the Letters Patent Appeal.
»
WSK. 5 Appeal allowed:
» re ae