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2002 DIGILAW 972 (PAT)

Sanjay Kumar Singh v. State Of Bihar

2002-09-06

P.N.YADAV, S.N.JHA

body2002
Judgment S.N.Jha and P.N.Yadav JJ. 1. In this writ .petition on behalf of two petitioners the prayer is to award Honours in the concerned subjects by giving them grace marks. 2. The petitioners were admitted to the MBBS course on the basis of the Competitive Examination in 1984. On the basis of their merit position and choice they were allotted to the Nalanda Medical College. At the First MBBS examination held in 1987 petitioner was one short of the Honours marks. Likewise petitioner no.2 secured 224 marks out of 300 in Anatomy at the First MBBS examination which was one short of the Honours marks. At the Second MBBS examination in 1989, the petitioners secured, respectively, 100 out . of 150 marks in Micro-Biology which was 2 short of the Honours marks, and 110 out of 150 in Preventive & Social Medicine (PSM) which was 2 1/2 short of the Honours marks. This writ petition was filed seeking direction upon the University to give them grace marks and award Honours in the aforementioned subjects. During the pendency of the case the petitioners appeared at the Final MBBS examination in in December 1990 at which petitioner no.1 secured 146 marks out of 200 in ENT.This was 4 short of the Honours marks. By supplementary affidavit he seeks similar direction to award Honours in the subject giving him grace marks. 3. The case of the petitioners is that in terms of Rules of Moderation of results of the MBBS Examination framed by the Patna University, a candidate who has passed in all the subjects of any of the MBBS examinations at the first chance but failed to secure Honours in any subject by not more than five marks, he may be allowed bonus marks upto 5 in the concerned subject and thus awarded Honours in that subject. The said Rules of Moderation enclosed as Annexure 3 appears to have been framed on or about 31.3.87. A similar Rules of Moderation which is said to be in force from 1979 has been enclosed as Annexure 4. The case of the Magadh University which is the examining body in respect of the Nalanda Medical College, is that the Bihar Inter University Board on the recommendation of its Medical Regulation and Courses Committee approved a draft regulation for moderation of results of the MBBS examinations. The case of the Magadh University which is the examining body in respect of the Nalanda Medical College, is that the Bihar Inter University Board on the recommendation of its Medical Regulation and Courses Committee approved a draft regulation for moderation of results of the MBBS examinations. In the said Regulation there no provision for awarding grace marks. It has been stated that the University is strictly following the said Regulations and "no candidates have been awarded Honours in any MBBS examination where the marks are short by 5 marks". Copy of the Regulation is Annexure-A to the counter affidavit. 5. The Regulation relied upon by the counsel for the petitioner does seem to support the petitioners stand. It provides. "A candidate who has passed in all the subjects of any of the M.B.B.S. Examinations at the first chance but failed to secure Honours in any subject by not more than five marks, shall be given the marks by which he is short in the subject concerned and awarded Honours in that subject but in the list arranged in order of merit his position shall be according to the original marks secured by him." However, from the very caption of the Regulation it is apparent that it has been framed by the Patna University whereas the petitioners are students of the Nalanda Medical College. The examining body being the Magadh University, any rule or regulation framed by the Patna University per se is not applicable. In fairness to the petitioners, it must be stated that the stand of the counsel was that though the regulation has been framed by the Patna University, it has been adopted by all the Universities. 6. There is no foundation to contend that Annexures 3 or 3/A has been adopted by the Magadh University or any other University. Even if the submissions of the counsel be assumed to be correct a question would arise as to whether the said Regulations have got any. statutory force. In other words, whether the Regulations have been framed in terms of the relevant provisions of the Universities Act. It is to be kept in mind that Patna University is governed by a separate Act titled the Patna University Act, 1976 (Act 24 of 1976), while the rest of the Universities of Bihar are governed by the Bihar State Universities Act, 1976 (Act 23 of 1976). It is to be kept in mind that Patna University is governed by a separate Act titled the Patna University Act, 1976 (Act 24 of 1976), while the rest of the Universities of Bihar are governed by the Bihar State Universities Act, 1976 (Act 23 of 1976). The provisions relating to framing of Regulations are contained in section 39 in both the Acts. For the purpose of this case we may refer to the provisions of the Bihar State Universities Act as under :- "(1) Subject to the provisions of this Act, the Statutes and the Ordinance, Regulations may be made to provide for all or any of the following matters, (a)................... (b) the condition under which students shall be admitted to the degree or diploma courses and to the examinations of the University and shall be eligible for such degrees and diplomas; (c)............. (2)(i) A Regulation made by the Academic Council under sub-section (1) shall be forwarded, as soon as may be, to the Syndicate for transmission to the Senate, and the Syndicate shall duly forward the same to the Senate with such recommendations, if any, as it may wish to make and shall have no power to return it to the Academic Council for reconsideration, unless such Regulation, in the opinion of the Syndicate relates to matters which directly or indirectly, affect the finances of the University. (ii) Such a regulation shall have effect from the date on which it has been assented to by the Chancellor on being passed by the Senate with or without amendment, or from any date fixed by the Chancellor. Provided that at any time except when the Senate is in session, if the Academic Council makes a Regulation and considers its immediate enforcement necessary, the Academic Council may recommend through the Syndicate, to the Chancellor accordingly and Chancellor with such amendment as he think proper shall direct by a notification published in the Gazette that the Regulation shall come into immediate effect, but such a Regulation shall cease to be effective on the expiry of seven days from the date of the next meeting of the Senate, unless confirmed by the Senate: Provided further that if any Regulation made by the Academic Council under the preceeding proviso, involves expenditure from the University funds, the Regulation shall be forwarded to the Chancellor with the advice of the Financial Adviser." 7. It is relevant to mention here that after the Universities Act came into force in 1976 the legislature enacted Bihar Inter- University Board Act, 1981 (Act 27 of 1982), section 5 of which, inter alia, enjoins upon the inter-University Board constituted under the Act to advise the State Government and the Chancellor in the matter of improvements in the standards of teaching and examinations. In view of these provisions regulations are now framed in consultation with the Inter-University Board. 8. Reference to the above provisions of the Universities Act and Inter-University Board Act leaves little room for doubt that any regulation relating to conditions under which examinations of the Universities are to be held and the students are eligible for grant of degrees and diplomas has to be framed in accordance with the procedure laid down in section 39 of the Universities Act read with section 5 of the Inter-University Board Act. It is not the case of the petitioners that the Regulations as contained in Annexure-3 which is the sheet anchor of their case has been framed under the Universities Act. On the contrary the definite case of the University is that it is guided by the regulation contained in Annexure-A which does not contain any provision with regard to grace marks for the purpose of awarding Honours and in no case the University has awarded Honours by giving grace marks to the students failing to secure Honours by 5 marks. This apart, the Regulation, Annexure-3, framed with respect to the Patna University groverned by a separate Act, is not perse applicable to the students of Nalanda Medical Coiiege which is a constituent of Magadh University governed by the State Universities Act. 9. Before we part with the case we may refer to the observations of the Supreme Court in the case of Maharashtra State Board of Secondary & Higher Secondary Education V/s. Amit, (2002)6 SCC 153 , while considering the question of awarding of grace marks, though in a different context, as under:- "Before parting with the judgment we may observe that the grant of grace marks being a matter of concession and which tends to dilute academic standards.regulations dealing with grant of grace marks should not be generously and liberally construed." 10. In the above premises, we do not think any relief can be granted to the petitioners, as prayed for. The petition stands dismissed. In the above premises, we do not think any relief can be granted to the petitioners, as prayed for. The petition stands dismissed. There will be no order as to costs.