Subhash Pandey v. Chancellor, Magadh University — 1980 DIGILAW 171 (PAT)

Judgment M. P. Varma, J. 1. In this application, filed under Articles 226 and 227 of the Consittution of India, the petitioners have prayed for quashing of the orders contained in annexure 5 and also to issue writ of mandamus to direct respondents for permitting the petitioners to continue their internship and to allow them to draw their salary and emoluments, which they might be entitled to. Short facts of the case are thus : 2. The petitioners appeared at the final M. B. B. S. examination of 78 (December) of Magadh University. The result of the examination was published on 12th June, 1969. Both the petitioners were declared fail at the examination. However, since some errors were detected in the publication of the results, the Academic Council of the university directed the examination Board to revise the results in accordance with the guidelines as given in the Transitory Regulation passed by the Academic Council on 23rd June, 1979 for the moderation of the results of the M. B. B. S. Examination. This transitory Regulation has been filed here along with the application (vide annexure 6 ). In this revised moderation of the results, both the petitioners were declared to have passed the aforesaid examination on 22nd June, 1979 (vide annexure 1) Sometime later, the university felt that the moderation rule made under the Transitory Regulation was wrongly applied to the case of these two petitioners and they ought not to have been declared as successful with the result the university cancelled the results of passing the examination. The order of cancellation is contained in annexure 2 of the application. 3. The petitioners then represented to the Chancellor of the University, but finally the impugned order of cancellation of the earlier results were reaffirmed by the Vice Chancellor by order dated 14th April, 1980 (annexure5 ). The petitioners have now sought to challenge the validity of the two orders contained in annexures 2 and 5 and have, therefore, prayed for quashing of annexure .5. 4. It is very clear that the earlier results of passing of the examination of these two petitioners were annulled by respondent no.3, i. e. , the vice-Chancellor of the Magadh University basing his order on the interpretation of the Regulation as framed by the Inter-Univetsily Board. 4. It is very clear that the earlier results of passing of the examination of these two petitioners were annulled by respondent no.3, i. e. , the vice-Chancellor of the Magadh University basing his order on the interpretation of the Regulation as framed by the Inter-Univetsily Board. It will be proper to mention here that in M. B. B. S. course there are four subjects of examination. These are : (i) Medicines including paediatrics ; (ii) Surgery, (iii) Obstetrics and Gynaecology, family planning, and (iv) Eye and Ear, Nose and Throat (Ophthalmalogy), commonly described as Eye and Ent. Each subject has got three portions of the examination. They are written and oral as one portion, examination in clinical is another portion and examination in practical is the third portion of the subject. A candidate is required to pass in each portion of the subject including that of the total aggregate in these subjects. The position appears clear from the copy of the marks sheet placed before us and on perusal thereof, I get that the petitioner no. I obtained only 20 marks out of 50 in the clinical portion of the subject ENT, whereas pass-mark should be 25. The total aggregate of this petitioner in this subject is short by 1 mark. The total mark which he could get is 99 out of 200, whereas pass mark noted in the total aggregate is 100. Petitioner no.2 also could not get pass mark in the clinical test of Eye and ENT and his total aggregate in the subject falls short by 8 marks. 5. It is stated on behalf of the petitioners that the Transitory Rules of moderation (copy of which has been attached to this application as annexure 6)permits that a candidate, who has appeared in all the subjects of the examination, but has failed in the aggregate portion of anyone subject by a margin not exceeding 5 per cent of the total marks allotted in that portion of the subject shall be given so much of the grace mark by which he is short and be allowed to pass. It is stated that it was on the basis of this Regulation as framed by the University applicable to the case of the petitioners that they were declared successful in the revised results. The petitioners soon after the results got themselves registered as medical practitioners under the bihar Medical Council. It is stated that it was on the basis of this Regulation as framed by the University applicable to the case of the petitioners that they were declared successful in the revised results. The petitioners soon after the results got themselves registered as medical practitioners under the bihar Medical Council. Learned counsel for the petitioners Sri Amarendra sharan has submitted that it is now not open for respondent nos.3 and 4 to annul or to cancel the results of these petitioners who were declared successful in the examination. 6. Sri T. K. Jha, learned counsel for the respondents, on the other hand, has contended that in the revised moderation of the results, marks in the total aggregate portion of Eye and ENT were wrongly added by the tabulator. The Transitory Regulation, according to the learned counsel does not permit any such addition of marks in a case when a candidate has failed in the clinical portion of the subject It has further been contended that there two petitioners failed to obtain pass marks in the clinical portion of the subject and they are not entitled for addition of any grace mark in the total aggregate and the Controller of Examinations, therefore, wrongly revised the results declaring them as pass. Sri T. K. Jha, further contended that when the error was detected the Controller of Examinations rightly cancelled their results. 7. On hearing the submissions of the counsel for the respective parties, I find that in this case we have been called upon to interprete the rules of the Transitory Moderation Rules and also to find out how it applies to the case of these two petitioners. The relevant part of the rules is rule 2 (a) which runs as follows : - "a candidate who has appeared in all the subjects of the examination but has failed in the aggregate of written cum-viva cum practical portion of one subject only by a margin not exceeding 5 per cent of total marks allotted in this portion of the subject, shall be given the marks by which he is short and allowed to pass. " n. P. (i) of the rules reads as follows : -"failure in clinical porlion of the examination in the final m. B. B. S. Examination shall be deemed as a failure in the subject except Eye and ENT. " 8. " n. P. (i) of the rules reads as follows : -"failure in clinical porlion of the examination in the final m. B. B. S. Examination shall be deemed as a failure in the subject except Eye and ENT. " 8. Referring to the aforesaid rules Sri Amarendra Sharan, counsel for the petitioners contends that according to the Regulation, failure in clinical portion of Eye and ENT is not to be treated as having failed and since both the petitioners obtained pass marks in theory cum practical cum viva, it will be deemed that they have passed in this subject, and it is in fitness with the thing to allow the permissible grace marks on the total aggregate portion as well and as such the petitioners were rightly declared as pass, inter alia it has also been urged that rule 19 (b) under Chapter 21 of the Bihar Education code gives power for revision of a result only in case if some clerical error is detected and not otherwise. There is no provision for a second and third revision of the result over and over again detrimental to the interest of the candidates. Sri Sharan further submits that the present case is not a case of delection of any clerical error, rather it involved an interpretation and applicability of the rules and, therefore, once the result having been declared in favour of these two petitioners, should not have been subjected to any such revision. The Bihar Education Board does not permit revision of the result in such circumstances. 9. Both the petitioners could not obtain pass marks in clinical portion of the subject in question. They are short in total aggregate of the aggregate portion also. Sri Jha contends that 5 per cent of the grace marks are added in the aggregate of written cum viva cum practical portion of one subject and this does not include clinical portion. Both the petitioners have failed in clinical portion and also could not get the required aggregate. They have secured pass marks in theory cum viva cum practical portion and their case does not attract provisions of the rule of moderation. Sri Jha has further urged that adding up of the grace-marks by the tabulator is a mistake, which can easily be corrected under the rules of the moderation of the results. 10. They have secured pass marks in theory cum viva cum practical portion and their case does not attract provisions of the rule of moderation. Sri Jha has further urged that adding up of the grace-marks by the tabulator is a mistake, which can easily be corrected under the rules of the moderation of the results. 10. I have given anxious consideration to the point raised before us. I find that the moderation rules provide certain regulation in declaration of the result for passing of an examination. If a candidate has appeared at the examination in all the subjects, but has failed in the aggregate of written cum viva cum practical portion of one of the subjects only by a margin not exceeding 5 per cent of the total marks obtained shall be grace marks by which the candidate falls short and is allowed to pass, petitioner no.1 is short of 5 marks in clinical portion, but by only 1 mark in total aggregate of this portion of the subject and petitioner no.2 is short by 9 marks in clinical and his total aggregate falls short by 8 marks. The copies of marks-sheet which have been placed before us are issued by the university in accordance with the rules of the bihar University Code. A candidate is required to pass separately in clinical as well as in practical and also in total of such subject. N. P. (i) of Rule 2 (a) provides an exception to the extent that failure in clinical portion in Eye and Ent will not be deemed as failure in the subject, that is to say, a candidate is not required to pass separately in clinical and as well as in practical portion of the subject. Under the rules, under which the marks are to be tabulated a candidate is required to obtain 50 per cent of the total aggregate to get the pass-mark, which includes written and oral portion as well as clinical and practical portion of the subject. I am therefore, unable to find any logic in the interpretation that grace-mark cannot be added to the total aggregate if a candidate falls short of the pass marks required in the total aggregate in that porton of subject. The meeting of the academic Council was held on 4th August, 1979. I am therefore, unable to find any logic in the interpretation that grace-mark cannot be added to the total aggregate if a candidate falls short of the pass marks required in the total aggregate in that porton of subject. The meeting of the academic Council was held on 4th August, 1979. It was decided to review the results of the first and second and aiso final M. B. B S. examination of 1978 (December), as we find from the facts, contained in annexure 8. Facts noted therein are as follows : to review the result of , st, 2nd and final M. B. B. S. examination of 1978 (December) "the Academic Council reviewed the results and resolved that the examination Hoard be directed to revise the result of 1st, 2nd and final M. B. B. S examination 1979 (December) in light of transitory regulation passed by Academic Council on 23rd June, 1979 for moderating examination result of 1979 : "provided that the results of those already declared to have passed the above M. B. B. S. examinations shall not be adversely affected by such revision. " 11. From the aforesaid extracts it is clear that the university would not revise the results in the manner which may adversely affect a candidate. In paragraph 19 of the writ application there is an averment that result of four such candidates, who failed in clinical portion were declared as having passed the examination and their results were not altered on the ground that a candidate once declared pass ought not be declared fail. It has also been urged that in Ranchi University a similar standard was applied and the candidates, who failed in the clinical portion of the Eye and ENT subject were given a grace mark to make up his total aggregate and they declared to have passed. In answer to this, counsel for the respondents submitted that ranchi University probably wrongly interpreted the moderation rule and applied to such candidate in declaring him pass. In my opinion a different standard should not be adopted by different universities- There should be a uniformity in all the universities in such matters and the adoption of the inter-University rules should not be at various. In my opinion a different standard should not be adopted by different universities- There should be a uniformity in all the universities in such matters and the adoption of the inter-University rules should not be at various. Be that as it may, I am of the view that once the petitioners have been declared successful it is not open for the university to withdraw the result in the present situation to the disadvantage of the petitioners. The university authorities after fully understanding and scrutinising and on consideration and interpretation of the moderation Rules revised the results declaring the petitioners as having passed under the Regulation, for all practical purposes this does not appear to be a case of clerical error, which authorises the university to revise a result of a particular candidate. It is a case, in which oa proper application of the regulation the university authorities declared the candidates as passed and the university authorities as such, acquiesced themselves in the uniformity if any and it is not open at this stage for the university to annul the results of these petitioners. I say so, because of the fact that these two petitioners got themselves registered under the Bihar Medical Council as medical practitioners, it is really hardship for the petitioners to come with a different interpretation of the rules and show their applicability in the case of these two candidates. In any view annulment of the results on the right or wrong application of the rules of moderation cannot be deemed to be a clerical error of tabulation and in such circumstances, considering the question of hardship as well the university authorities cannot be permitted to take back the results of success. In the circumstances, so created by the university, the petitioners, therefore, cannot be kept out of court for redressal of their legitimate grievance. 12. In the view, which I have taken above that it will be a real hardship to withdrew the results of these two petitioners, when they have already got themselves registered as medical practitioners after being declared as successful, I do not consider it necessary to indicate whether the Moderation rules (vide annexure 6) have been rightly made applicable to the case of these two petitioners. But none the less there should be no variance in the application of the Inter-University Rules by different universities causing a discremination in declaration of the result of a candidate. 13. In the circumstances referred to above, the application succeeds and I do not propose to answer the question whether the grace marks were rightly added to make up the shortage in the total aggregate in the subject of these two petitioners. Orders contained in annexure 5 are therefore, quashed and consequently annexure 2 is also quashed. The petitioners are deemed to have passed the final M. B. B. S. examination of the year 1978 (December) as declared by the university under regulation. However, there shall be no order as to costs.