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PETITIONER: PUNJAB UNIVERSITY

       Vs.

RESPONDENT: SUBASH CHANDER AND ANR.

DATE OF JUDGMENT17/05/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR 1415            1984 SCR  (3) 822  1984 SCC  (3) 603        1984 SCALE  (1)925  CITATOR INFO :  F          1984 SC1444  (6)

ACT:      Punjab 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 exception to  Rule 2.1  of Punjab  University Calendar, 1970 corresponding to  Rule 7.1  of 1965-Incorporated  in  Punjab University   Calendar    1974-Whether   amended   rule   had retrospective operation-Whether  candidate joining  M.B.B.S. course in  1965 and  appearing for final examination in 1974 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.

HEADNOTE:      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  papers/subjects/or 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,S.  examination however  the grace  marks shall  be given upto 1 per cent of the total marks of each 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  on  the  ground  that  the  old Regulation 25  read with the old Rule 7.1 which was in force

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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  a single  Judge, a Full Bench of the High Court in a  Letters Patent appeal opined that there was nothing in s. 31  of the  Punjab University  Act which would clothe the Senate, explicitly or impliedly 823 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 Rule 7.1  as it  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. 31 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. [830 B]      There is  no element  of retrospectivity  in the change brought] about  by the addition of the exception to Rule 2.1 of the Calendar for the year 1970. "Retrospective" according to the  Shorter Oxford English Dictionary, 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 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 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  thereto which  were 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 having 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 rule regarding 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, LPA  97  of  1967 decided on  17.7.1968 by  Punjab  and  Haryana  High  Court,

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upheld.      B.N. Mishra v. State, [1965] 1 SCR 297, referred to. 824

JUDGMENT:      CIVIL 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.      Jawahar Lal  Gupta, Janendralal  and B.R.  Agarwala for the Appellant.      Randhir Jain for the Respondent.      The Judgment of the Court Was delivered by      VARADARAJAN, 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 each subject. However Rule 7.1 relating to the M.B.B.S, and certain other courses provided that-           "a  candidate   who   fails   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 7.1 which was in force in 1965 in the following terms-           "2.1-A candidate  who appears  in all  subjects of      the examination  and who  fails in one or more subjects      (writ ten,  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 825      up for the 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      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      by not more than one per cent of the aggregate marks of      that subject  may be given the required 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:      Medicine-202 out of 400 p.      Surgery-225 out of 400 p.      Eye and ENT-204 out 400 p.      Midwifery:     (i) Theory-95 out of 200)                     (ii) Practical-106 out of 200) Reappear

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    According to Regulation 25 read with Rule 7.1 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 secured 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. 826      Before the  High Court, it was contended for the Punjab University that  there is  no element  of retrospectivity in the application  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. Sandhawalia who spoke for the FULL Bench in  the Letters Patent Appeal out of which this appeal before us has arisen noticed certain decisions of the Punjab and Haryana  a High Court and observed that they did not lay down clear  guide lines  for deciding the question at issue, namely whether  the University  is entitled  to  change  the regulation relating  to the  percentage of grace marks to be awarded to students and the basis for awarding the game i.e. whether it  is on  the aggregate  of the  marks of  all  the subjects for  which the  students appeared  in the concerned examination or the aggregate of the marks of the. subject in which they had failed ii that examination. The learned Chief Justice noticed  this Court’s  observation in Hukum Chand v. Union of India which is this;-           "The underlying principle is that unlike sovereign      legislature  which   has  power   to  enact  laws  with      retrospective 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:-           "S. 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.           (2) In  particular and  without prejudice  to  the      generality of the foregoing power, such regulations may      provide for. 827           (a) to (m)   x    x     x     x     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,      licences, titles,  marks  of  honour  scholarships  and      prizes conferred or granted by the University."      The words "other than an examination for matriculation"

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which  previously  occurred  in  sub-clause  (n)  have  been omitted  by  the  Government  of  India  notification  dated 6.12.1969.      The learned  Chief Justice opined that there is nothing in s. 31 of the Punjab University Act which would clothe the Senate, explicitly  or impliedly,  with the  power to  frame regulations retrospectively and held that the regulation, as amended in  1970, has  retrospectively altered the condition of Subhash  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:-           "The University  is an  autonomous  body  and  has      every right  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 is required to take."      The learned  Chief Justice rejected the submission made on behalf  of the  Punjab University  that the change 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 828 way of  addition of the exception to Rule 2.1 is a change in the  course   of  that   single  integrated  course  and  is retrospective in nature. The other two learned Judges agreed with this  view of  the learned  Chief Justice  and the Full Bench accordingly  dismissed the  appeal  and  directed  the Punjab University  to declare  the result of Subash Chander, respondent 1,  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 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 Government,  to make  from time  to  time, regulations, consistent within the provisions of that Act to provide for  all matters relating to the University. Section 31(2)(n)        provides  that  in  particular  and  without prejudice to  the generality  of the  foregoing  power  such regulation may  provide for  the  courses  of  study  to  be followed  and   the  conditions   to  be  complied  with  by candidates for  any University  examination and for degrees, diplomas, licences,  titles, marks  in honour,  scholarships and prizes conferred or granted by the University. 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" occurring’ 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  candidates  appearing  in  University examinations in  considering whether  they are  eligible  to

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pass the  examination in  the subject  or subjects  in which they had  appeared. There  is no  dispute that  the  minimum number of  marks required  for passing  the examination in a paper/subject is  50 per cent of marks. When Subash Chander, respondent 1,  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 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.  Subash  Chander, respondent  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 Eye  and ENT  and Midwifery for  each of which the aggregate was 400 marks. He secured 202, 225 and 204 marks in Medicine, Surgery, and Eye and ENT respectively and was declared 829 to have  passed the examination in those subjects. Midwifery consists of two parts, namely, theory and practical for each of which  the  aggregate  was  200  marks.  Subash  Chander, respondent 1,  secured 106  out  of  200  in  the  practical examination  and   only  95   out  of   200  in  the  theory examination. Since  the total  aggregate  of  all  the  four subjects for which he appeared in 1974 was 1600 marks, under the old  Regulation 25 read with Rule 7.1 as 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  as 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  relating 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  an exception  to Rule  2.1  as mentioned above.  It is  not contended  that the sanction of the Government had not been obtained 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 all  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 in  order to  pass in that subject. Under this rule as amended in  1970 Subash  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 less than 50 per cent, and  he was  declared to  have failed in Midwifery and asked to reappear for that subject.      The minimum  prescribed for  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 only 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 far  as M.B.B.S.  and B.D.S. examinations

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are con- 830 cerned by  adding the  exception to  Rule 2.1  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 in making the change. We think  that the  Senate had  the necessary power under s. 31(2)(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 in making this change. It could not be contended that Subash Chander  who appeared  for the  final examination  in 1974 did  not a have sufficient notice of the change brought about in  1970 in  the rule relating to award of grace marks or that he was prejudiced by the change.      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  of the calender for the year 197().  Retrospective"   according  to  the  Shorter  Oxford English Dictionary,  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 it 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 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  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:           "Notwithstanding the integrated nature of a course      spread  over   more  than   one  academic   year,   the      regulations in  force at  the time  a student  joins  a      course 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 831      regulations subsequently  and the  amended regulations,      if any,  shall apply  to all  students whether  old  or      new."      This 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 of no consequence. It is necessary to note  in this  connection what  this Court  had  said  in regard to  retrospectivity in  such matters in B.N. Misra v. 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  retrospectivity in  it. All  that the      rule provides is that from the date it comes into force

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    the age  of retirement  would be  55  years.  It  would      therefore  apply  from  that  date  to  all  government      servants, 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 recruited  before 1957.  But it  is urged that the      proviso   shows    that   the    rule    was    applied      retrospectively.  We   have  already  referred  to  the      proviso which  lays down  that government  servants who      had attained  the age of 55 years on or before June 17,      1957 and  had not  attained the  age of 55 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  docs not make the      rule 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      issued 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 them      were continued  in service  up to December 31, 1961 and      were  therefore  to  retire  on  reaching  the  age  of      superannuation according  to  the  old  rule.  We  are,      therefore, of  opinion that  the new  rule reducing the      age of retirement 832      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 therefore,      cannot  be  struck  down  on  the  ground  that  it  is      retrospective in operation."      Therefore, we  are clearly of the opinion that there is no question  of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined 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 Chander in Midwifery if  it had  been declared  as per the direction of the learned  Judges of  the Full Bench in the Letters Patent Appeal. H.S.K.    Appeal allowed. 833