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1997 DIGILAW 475 (MAD)

S. Krishnakumar v. Dr. M. G. R. Medical University rep by its Registrar, Chennai

1997-04-04

SHIVAPPA

body1997
Judgment :- 1. In all these petitions, the petitioners are seeking for a direction to declare them as passed on the ground that the amended regulation is not in accordance with Sec. 44(2) of the Tamil Nadu Medical University Act, 1987 (Act No. 37 of 1987), hereinafter referred to as “the Act”, in short. Since the question involved in all these three petitions being the applicability of the amended regualtion to the petitioners, these petitions are heard together and disposed of by this common order. W.P. No. 1881 of 1997: 2. Petitioner sought for a Mandamus to direct the respondents to declare the petitioner as having passed in Surgery Paper III and Paper IV of the written examination of the final M.B.B.S. Part II examinations taken by her in December, 1996. 3. Petitioner was admitted to I M.B.B.S. Course in 1992 and completed the course in December 1996. She has passed all the examinations except final M.B.B.S. Part II and took the final M.B.B.S. Part II examination in December 1996. On 11.1.1997 results were announced for final year M.B.B.S. and shown as passed in Part II examination except Surgery Paper III and Paper IV. According to the statement of marks issued on 21.1.1997, it is shown that petitioner secured 92 out of 200 in Paper III and IV. As per the regulations of the respondent University, the marks required to pass for Paper III and IV is only 45%, that is, 90 out of 200. The stipulation relating to academic standard including pass marks are covered by Regulations framed under Sec. 44 of the Act. The regulation was brought into effect in the year 1992 prescribing 45% only. The petitioner has failed in Surgery because of the raise in minimum marks from 45% to 50%, which was introduced in July 1996 without proper notification as required under the Act. W.P. No. 1730 of 1997: 4. The regulation was brought into effect in the year 1992 prescribing 45% only. The petitioner has failed in Surgery because of the raise in minimum marks from 45% to 50%, which was introduced in July 1996 without proper notification as required under the Act. W.P. No. 1730 of 1997: 4. Petitioner joined in I year M.B.B.S. in July, 1991, passed I year and II year M.B.B.S. examinations, final year M.B.B.S. part I passed in April 1995, finally M.B.B.S. part II appeared in April 1996 and passed in all the papers except Medicine and Surgery, appeared and failed in December 1996 in Medicine and Surgery and later passed in Medicine, but failed in Surgery because of the raise in minimum marks from 45% to 50%, which was introduced in July 1996 without proper notification as required under the Act. W.P. No. 1731 of 1997 5. Petitioner joined in I year M.B.B.S. in 1991, passed I year and II year M.B.B.S. examinations, final Year M.B.B.S. Part I passed in April 1995, final year M.B.B.S. Part II appeared in April 1996 and passed in all the papers except Medicine and Surgery, later in December appeared for Medicine and Surgery and failed and passed in Medicine, but failed in Surgery because of the raise in minimum marks from 45% to 50%, which was introduced in July 1996. 6. It is contended by the respondents that by a resolution passed in July 1996, the minimum marks required for pass has been made as 50% and therefore, the petitioners are not entitled to be declared as passed. It is also submitted that the Standing Academic Board of the University in its meeting held on 15.7.1996 resolved to approve the said recommendation of the Board of Studies stipulating 50% marks and the above decision was communicated by the Examination Wing of the University to all the Institutions concerned and informed specifically that this revision of qualifying marks applicable to all the candidates appearing for the Final M.B.B.S. examination of the University from December 1996 onwards. In this view of the matter, it is contended that non-mentioning of the date by the Standing Academic Board will not vitiate the resolution. 7. The question for consideration is whether the amended regulation, in the absence of specifying the date from which it should come into effect, be made applicable to the petitioners 8. In this view of the matter, it is contended that non-mentioning of the date by the Standing Academic Board will not vitiate the resolution. 7. The question for consideration is whether the amended regulation, in the absence of specifying the date from which it should come into effect, be made applicable to the petitioners 8. Sec. 44 of the Act contemplates that the Standing Academic Board may make regulations consistent with the Act, statutes and the ordinances, to carry out the duties assigned to it thereunder. Sub-clause (2) reads that all such regulations shall have effect from such date as the Standing Academic Board may specify and every regulation so made shall be placed before the Governing Council for information. 9. It is clear from the pleadings and the resolution that the Standing Academic Board which has approved the revised pass minimum and thereby proposing the amendment to the Regulations have not fixed the date from which the said amended Regulation would take effect. Under Sec. 44(2) of the Act, the date from which the regulation should take effect has to be specified. Though regulations were sought to be revised no date has been fixed by the Standing Academic Board with effect from which the amended regulation passed on 15.7.1996 regarding the change of marks in the subject of Surgery from 45% to 50% was placed before the Governing Council on 5.8.1996 for its information. At the time of placing the resolution before the Governing Council, the date on which it has come into effect has not been mentioned, nor did the Governing Council raise the clarification as regards the date on which it has to be given effect to. The Controller of Examinations has no jurisdiction to fix a date for the coming into force of the amended regulation. It appears that the Controller of Examinations has adopted the proposed amendment to the regulations to have come into force in December 1996 and has purported to apply the amended regulations to the examinations taken by the petitioners in December 1996. The said amendement had come into being at the fag end of academic year during the final year course. The regulations which were in force during the commencement of the final year course that would apply to the examination taken for that year. The said amendement had come into being at the fag end of academic year during the final year course. The regulations which were in force during the commencement of the final year course that would apply to the examination taken for that year. Even if it is taken that the amended regulation is prospective and has been brought into force, the same would have no application to the petitioners because such resolution was not in force during the commencement of the final year course and that has to be applied for the next academic year in accordance with the requirements of sub-Clause (2) of Sec. 44 of the Act after specifying the date from which date it has come into force. The contention of the learned senior counsel Mr. Masilamani that the regulations came into force in 1992 and any regulation subsequently added should be deemed to have come into force, has no merit, unless the Act contemplates so, that too, when the Act stipulates that it should come into force from the date notified. 10. The decision in A.I.R. 1984 S.C. 1415 has no bearing, because that was a case where the regulations were in force and that there was no alteration of the rule or regulation in regard to the percentage of marks required for passing or award of grace marks and that the rules relating thereto which were in force in accordance with law at the time of his admission. Here, the question is whether the amended regulation has come into force as required in law. Therefore, the fact, situation in the present writ petitions and the case decided in A.I.R. 1984 S.C. 1415 is totally operating in a different situation. It is settled in law that whenever the law contemplates that a particular thing should be done in a particular way, it should be done only in that way and no other way. Since, the resolution has not been given effect to as required under Sec. 44(2) of the Act, it cannot be made applicable to the petitioners. It is open to the University to specify the date when the amended stipulation should come into force insisting 50% of marks in M.B.B.S. Course, if not already notified. 11. Since, the resolution has not been given effect to as required under Sec. 44(2) of the Act, it cannot be made applicable to the petitioners. It is open to the University to specify the date when the amended stipulation should come into force insisting 50% of marks in M.B.B.S. Course, if not already notified. 11. For the aforestated reasons, the petitioners are entitled to the relief and the respondents are directed to declare the petitioners having passed in Surgery Paper III and Paper IV of the written examinations of the final M.B.B.S. Part II examinations and Surgery Part II of final M.B.B.S. examinations taken by them in December, 1996. The writ petitions are allowed and ordered accordingly and consequently, W.M.Ps. are dismissed and parties to bear their own costs.