Judgment:
- 1 - NC:
2023. KHC:38799-DB WA No.909 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE2D DAY OF NOVEMBER, 2023 PRESENT THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE AND THE HON'BLE MR JUSTICE KRISHNA S DIXIT WRIT APPEAL No.909 OF2023(EDN-RES) BETWEEN: RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES4H T BLOCK, JAYANAGAR, BENGALURU, KARNATAKA560041. REPRESENTED BY REGISTRAR EVALUATION …APPELLANT (BY SRI. GIRISHKUMAR R.,ADVOCATE) AND: DR HAROON ADONI, S/O LATE KHAJAMOINUDDIN, AGED ABOUT32YEARS, R/AT NO FLAT NO302 SAHARA RESIDENCY, 3RD FLOOR, MODEL COLONY, AMBEDKAR NAGAR, YASHAVANATHPURA, BANGALORE560022. …RESPONDENT (BY SMT.SUMANA BALIGA.,ADVOCATE FOR C/R) THIS WRIT APPEAL FILED UNDER SECTION4OF THE KARNATAKA HIGH COURT ACT PRAYING TO A) SET-ASIDE THE ORDER
DATED1104/2023 PASSED BY THE LEARNED SINGLE JUDGE, HIGH COURT OF KARNATAKA BENGALURU IN W.P. 4448/2023 AND B) PASS ANY SUCH ORDER
S AS THIS HONBLE COURT DEEMS FIT IN THE INTEREST OF JUSTICES AND EQUITY. THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING: - 2 - NC:
2023. KHC:38799-DB WA No.909 of 2023 JUDGMENT
This intra-court appeal seeks to lay a challenge to a learned Single Judge's order dated 11.04.2023 whereby the respondent’s W.P.No.4448/2023 has been allowed. The operative portion of the order reads as under:- “(2) The writ of mandamus is issued directing the respondent-University to round off the marks obtained by the petitioner in Paper–I at 51.25 % to 52% and Paper-II at 45.25% to 46% in the examination of the discipline of MD Pathology (RS-3) conducted November 2022 by them. Further, to round off the total average marks to 199 instead of 197 out of 400 secured by the petitioner, then in total the average marks of 49.75% to 50%.
2. Learned panel counsel appearing for the appellant vehemently argues that the ordinance dated 29.03.2019 which governs valuation of answer scripts inter alia in P.G. courses provides for rounding off the marks to the next nearest decimal unit, is only as a One Time Measure; and therefore, learned Single Judge is not justified in issuing the mandamus of the kind. In support of his submission, he relied upon a decision of the Apex Court in RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, BANGALORE VS. G.HEMLATHA AND OTHERS, (2012) 8 SCC568 - 3 - NC:
2023. KHC:38799-DB WA No.909 of 2023 3. Having heard the learned counsel for the parties and having perused the appeal papers, we decline indulgence in the matter broadly agreeing with the reasoning of learned Single Judge. Clause 4 of the subject Ordinance reads as under:- “4. Procedure for General Valuation: a. All answer scripts of Post graduate including PG-Diploma and super specialty courses in Medical/Dental/Homeopathy shall be subjected to Digital Valuation as prescribed by RGUHS. The average of the total marks awarded by the four valuation of the paper, which is rounded off to the nearest value, shall be considered for computation of the results. b. All answer scripts of Post graduate including PG-Diploma courses in PG-Allied Health Sciences, PG-Ayurveda, PG-Nursing, PG- Pharmacy, PG-Unani, PG-Yoga and Naturopathy, Masters in Physiotherapy, MGA and MPH, shall be subjected to Digital Valuation as prescribed by RGUHS. The average of the total marks awarded by the two valuators for the paper which is rounded off to the nearest value, shall be considered for computation of the results. The marks awarded and the results declared after general valuation shall be the final and under no circumstances further valuation shall be entertained.” The text of the above provision in unmistakable terms provides for the marks being rounded off to the nearest - 4 - NC:
2023. KHC:38799-DB WA No.909 of 2023 value for the purpose of computation of the results of the candidate concern.
4. The second submission of the learned panel counsel appearing for the University that the subject provision of the Ordinance in question provides for rounding off, of the marks to the nearest full value only as a One Time Measure is not supported by the text and the language of the said provision. There is nothing indicative of such an intent. The University in support of such a stand cannot much bank upon the Corrigendum dated 17.11.2020 issued by the Vice Chancellor which mentions the Covid-19 Pandemic situation in support thereof. The relevant part of the Corrigendum is reproduced below: Subject Existing Shall be read as No.153(Mum) In view of the In view of the prevailing Covid-19 /06 prevailing Covid-19 situation, it was recommended to situation, it was implement the Hon’ble High Court recommended to direction regarding Writ Petition implement the No.11348 of 2020 (EDN-RES) as a Hon’ble High Court one time measure and the direction regarding following decision taken: Writ Petition 1. This is one time measure will No.11348 of 2020 be applicable for he candidates (EDN-RES) as a one who all fall short of one mark in time measure theory for declaring as Pass after the computation of result with the existing university ordinances.-. 5 - NC:
2023. KHC:38799-DB WA No.909 of 2023 5. The reasons for this Corrigendum not coming to the aid of the University are not far to seek: Firstly, the text of the Ordinance as such, has not been changed pursuant to this Corrigendum per se. It is only in the nature of a recommendation yet to be expressed in the form of an amendment to the Ordinance. Secondly, Section 35 of the Karnataka Rajiv Gandhi University of Health Sciences Act, 1994 gives power to the Syndicate of the University to make Ordinances and to amend or repeal the same, is true. However, sub-section 4 of this provision requires the same to be submitted to the Chancellor and the Senate for information as a sine qua non for its taking effect. The copies of the Corrigendum are marked to the members of the Syndicate, the Vice- Chancellor/Registrar/Registrar (Eva)/Finance Officer and Deputy Registrars. Marking to the Chancellor is conspicuously lacking. This apart, the said sub-section requires a date to be specified by the Syndicate with effect from which the amendment to the Ordinance would come - 6 - NC:
2023. KHC:38799-DB WA No.909 of 2023 into force. Such a date is not forthcoming from the Corrigendum.
6. There is yet another finer aspect to the matter: Chapter V of the 1994 Act provides for the making of STATUTES, ORDINANCES and RULES. Section 35 has already mentioned above delegates Ordinance making power to the Syndicate. In exercise of said power, the Syndicate has promulgated the subject Ordinance vide Notification dated 29.03.2019. It hardly needs to be stated that such an Ordinance is a piece of delegated legislation/sub-ordinate legislation. Its provisions need to be construed, as far as possible with the aid of principles of interpretation as are applicable to parent legislations, subject to all just exceptions. The text of Clause 4 of the Ordinance in question makes it repetitive in operation and that the same does not commit a legal suicide, once the Covid-19 Pandemic withered away. It hardly needs to be stated that law ceases to exist by desuetude. It continues on the statute book till repealed by the competent body in - 7 - NC:
2023. KHC:38799-DB WA No.909 of 2023 accordance with the prescribed procedure or is struck down by a court of competent jurisdiction. Such an Ordinance having been made for the benefit of the student community, relief to the deserving candidate cannot be denied by placing interpretation of the kind as the University wants this court to place on the clause in question. An argument to the contrary offends not only the language of the provisions but also defeats its very intent.
7. The reliance of the panel counsel for the University on the decision of the Apex Court in HEMALATHA supra does not come to his aid even in the least. The subject matter of this decision did not involve the Ordinance in question, obvious the same having been promulgated years before the said decision was rendered. The Rules which were examined in the said decision did not permit any such rounding off or giving grace marks unlike the subject clause of the Ordinance in question. It hardly needs to be stated that a decision is an authority - 8 - NC:
2023. KHC:38799-DB WA No.909 of 2023 for the proposition that has been laid down in a given set of facts, actual or assumed, and not for all that which logically follows from what has been so laid down in QUINN VS. LEATHEM, (1901) A.C. 495, 506. In the above circumstances, this appeal being devoid of merits is liable to be and accordingly dismissed, costs having been made easy. Sd/- CHIEF JUSTICE Sd/- JUDGE Snb, List No.:
1. Sl No.:
1.