ORDER
1. The petitioners in this bunch of writ petitions are all 1st year MBBS students studying in different Medical Colleges in the State. They appeared for the 1st MBBS examination conducted by Rajiv Gandhi University of Health Sciences between 11th of May, 1998 and 25th of May, 1998. Results of the examination announced on 11th of June, 1998 showed that out of a total 2,071 candidates, 638 had failed, majority of them because of their failure to pass in Bio-Chemistry. The failures appear to have approached the University seeking re-valuation of their answer scripts, award of grace marks and introduction of the carry over system to enable them to join the II Phase of the Course. The University declined this request on the ground that the regulations governing the Course did not permit either re-valuation of the answer scripts or the carry over system. On the basis of the recommendations of a Committee appointed for the purpose, the students were given the benefit of what is termed as moderation whereby two marks in each subject were awarded subject to their fulfilling the conditions stipulated in that regard. Dissatisfied, the petitioners have filed the present writ petitions, in which they have claimed several reliefs including a mandamus for re-introduction of the carry over system, revaluation of their answer scripts and award of grace marks.
2. Learned Counsel for the petitioners strenuously urged that the rules, regulations, statutes and ordinances framed under the Karnataka State Universities Act, 1976 and in force immediately before the commencement of the Rajiv Gandhi University of Health Sciences Act were in terms of Section 62 of the said Act to continue as though all such rules, regulations, statutes and ordinances had been made under the Health Sciences Act subject to such modifications in the same as the Vice-Chancellor of the Health Sciences University may deem fit to make. Resultantly the provisions contained in the said rules, regulations and ordinances providing for re-valuation and award of grace marks would also continue to be available to the candidates till such time the University framed its own rules, regulations and ordinances. It was urged that since the pre-existing rules and regulations contained provisions for the award of grace marks and for revaluation of the scripts, which provisions had not been modified or deleted by the Vice-Chancellor in exercise of his power under Section 62 of the Act, the respondent-University was not justified in rejecting the prayer made by the petitioners. Alternatively, it was urged that gracing of marks was provided for by the regulations framed under the Indian Medical Council Act, 1956, which were binding upon the respondent-University and which entitled such of the candidates as were eligible for the award of such marks to claim the benefit thereof. Inasmuch as the University had remained oblivious of the provisions of the MCI regulations and declined to consider the case of the petitioners for award pf grace marks under the same, it had committed an error, which was according to the petitioners apparent on the face of record.
3. Two questions arise for consideration. These are.-
(i) Whether the regulations framed by the 6 Universities established in the State under the Karnataka State Universities Act, 1976 and providing for revaluation of answer scripts and award of grace marks to MBBS students continue to remain in force by reason of Section 62 of the Rajiv Gandhi University of Health Sciences Act? And
(ii) Whether the petitioners are entitled to claim the award of grace marks under the MCI regulations. If so, to what extent?
4. Regarding Question (i):
The Rajiv Gandhi University of Health Sciences Act, 1994 envisages the establishment and incorporation of a University for the purpose of ensuring proper and systematic instructions in teaching, training and research in Modern Science and Indian System of Medicine in the State of Karnataka. Section 5 of the Act inter alia provides that with effect from the date of commencement of the Act, all Colleges and Autonomous Institutions of Health Sciences previously admitted to the privileges of or affiliated to the Universities of Mysore, Bangalore, Karnatak, Mangalore, Gulbarga and Kuvempu shall be deemed to be admitted to the University established under the Act. Sections 33 and 34 deal with the framing of statutes on the subjects set out therein and the procedure to be followed in that regard. Section 35 on the other hand empowers the Syndicate to frame ordinances and amend or repeal the same from time to time. One of the subjects on which the ordinances can be framed relates to the conditions under which the students shall be admitted, the courses of study and conduct of examinations and the conditions under which the students shall be admitted to the same. Section 36 empowers the Syndicate to frame rules inter alia regarding recruitment procedures to teaching and non-teaching Course, conduct of University employees, the procedure to be followed at the meetings and all matters not provided for by the Act, statutes or the ordinances. Section 60 of the Act confers transitory powers on the 1st Vice-Chancellor of the Universityand inter alia requires him to make arrangements for constituting the Syndicate and other authorities of the University within 6 months from the date of commencement of the Act. It also empowers the 1st Vice-Chancellor to make such rules as may be necessary for the functioning of the University in consultation with the Chancellor and to draft such statutes as may be immediately necessary for submission to the competent authority for approval. Section 62, which was the subject-matter of a major part of the debate at the Bar may be extracted in extenso.
'62. Continuance of statutes, ordinances, etc.--Until statutes, ordinances and rules are made under appropriate provisions of this Act, the statutes, ordinances, regulations and rules which were made under the Karnataka State Universities Act, 1976 and in force immediately before the commencement of this Act shall, subject to such adaptations or modifications as may be made therein by the Vice-Chancellor with the approval of the Chancellor obtained through the Government insofar as they are not inconsistent with the provisions of this Act be deemed to be statutes, ordinances, regulations and rules made under the appropriate provisions of this Act'.
5. A plain reading of the above would show that the Vice-Chancellor can with the approval of the Chancellor adapt with such modifications as may be necessary, the statutes, ordinances and rules made under the Karnataka State Universities Act, 1976 in so far as they are not inconsistent with the provisions of the Rajiv Gandhi University of Health Sciences Act. The provision it is noteworthy is meant to provide for the interregnum between the date of commencement of the Act and the framing of statutes, ordinances and rules thereunder. According to the petitioners, all such statutes, ordinances, rules and regulations as were made under the Karnataka State Universities Act, 1976 were in terms of Section 62 to continue in force subject to adaptations or modifications if any made by the Vice-Chancellor, Since the Vice-Chancellor had not modified the regulations and ordinances framed under the Karnataka State Universities Act, 1976, such ordinances, statutes, rules and regulations including those providing for revaluation and award of grace marks were continue according to the petitioners to remain effective as though the same had been framed under the corresponding provisions of the Health Sciences Act. The argument is at the face of it enticing, but its apparent merit disappears when examined closely. The power vested in the Vice-Chancellor under Section 62 is legislative in nature no matter the legislation so brought about is transitory and valid only till such time statutes, ordinances and rules are made by the authorities competent to do so under the appropriate provisions of the Act. The object behind vesting of such a power undoubtedly was to avoid a situation, where areas which need to be covered by proper delegated legislation in the form of statutes, ordinances and rules remain grey resulting in a vacuum. The Vice-Chancellor therefore has the authority to adapt out of the existing statutes, ordinances, rules and regulations such of them by way of a temporary measure as may in his opinion serve the purpose of providing the requisite statutory norms and guidelines for the authori-ties under the Act and the students alike. The Act does not oblige the Vice-Chancellor to necessarily adapt with or without modification, every possible provision contained in a statute, ordinance or rule before evolving a workable set of rules or regulations as an interim measure. That is particularly so when what is available to the Vice-Chancellor for adoption is not just one set of rules, regulations or statutes but as many as six such sets each one of them having been framed under the Karnataka State Universities Act. Suffice it to say that what Section 62 envisages is a discharge of legislative function by the Vice-Chancellor in the matter of framing statutes, rules or regulations, which he can do by adapting or modifying such of the statutes as may have been framed under the Karnataka State Universities Act, 1976 on any given subject.
6. The Vice-Chancellor has in exercise of that power framed what are known as MBBS Regulations by adapting regulations framed under Karnataka State Universities Act, 1976 with appropriate modifications as is apparent from notification dated 14th of October, 1996. A perusal of the said regulations shows that the same provide for admission and eligibility, duration of the course, the academic terms of the course, the requirement of attendance and the Scheme of examination including the subjects and the marks allotted for the same. The regulations also provide for migration and transfer of candidates, internal assessment etc. Regulation 11 of the Regulations deals with results and provides for the minimum pass percentages in the examination. The regulations do not however make any provision either for revaluation of the answer scripts of the candidates, who take the examination or for award of grace marks. It also does not envisage the carry over system, under which a candidate can go to the next stage of the course even if he or she has failed to pass in the earlier phase. The question then is whether in the light of the said regulations, the authority framing the same by a process of adaptation be deemed to have intended to continuance of rules, regulations and ordinances framed by the six different Universities established in the State under the Karnataka State Universities Act, providing for all or any one of the three matters referred to above i.e., carry over, revaluation and grace marks. The answer must, in my opinion, be in the negative. I say so for precisely speaking two reasons. Firstly, because the Vice-Chancellor has by framing the regulations covering the entire field relating to the curriculum, the conditions of eligibility, examination and the conditions subject to which the same can be taken by the candidates, internal assessments and the declaration of the results and the standards prescribed for passing in the examination, excluded by necessary implication all other regulations, rules, statutes and ordinances that may have been framed under the Karnataka State Universities Act and in force at the time of commencement of the Health Sciences Act. There is nothing in the Scheme of the regulations framed by the Vice-Chancellor to suggest that even when the modified regulations as adapted for the Health Science University did not provide for either one of the three matters referred to earlier, the intention was to allow the said three subjects to be governed and regulated by the regulations framed under the State Universities Act. It is true that there is nospecific provision in the adapted regulations making any other regulations, statutes or ordinances inapplicable, yet the absence of any such provision does not by itself mean that matters such as award of grace marks and revaluation of answer scripts, which are as integral part of the academic programme could be brought in by implication. If the regulations as framed by the Vice-Chancellor do not themselves recognise any right to seek revaluation of the answer script or the right to claim grace marks, no such right can be claimed by implication on the basis of Section 62. The adaptation of a set of regulations covering a particular subject in exercise of the power vested in the Vice-Chancellor under Section 62 must be deemed to exclude from application all other provisions contained in the pre-existing regulations, relating to matters covered under the adapted regulations. Stated differently, if the Vice-Chancellor has in exercise of his statutory authority, made a choice out of the available regulations framed by different Universities under the State Universities Act and evolved a self-contained comprehensive set of such regulations, then and to that extent all such regulations, which may have been otherwise in force would cease to apply. What would be applicable in any such situation would be the regulations as are adapted with or without modification. It is no doubt true that the existing statutes, ordinances, rules and regulations may be providing for a number of other matters, which are not covered by the regulations adapted and notified by the Vice-Chancellor on 14-10-1996, but the question whether or not any such pre-existing statutes, rules or regulations, which are not directly or indirectly connected with the subject dealt with by the adapted regulations would continue, does not arise in these petitions. It may indeed be possible to say that on a subject on which the adapted regulations make no provision, the existing statutes, rules or regulations would continue to remain in force. Even there considerable difficulty may arise in deciding as to which out of the six sets of statutes, rules or regulations would be applicable if there is a material difference in the provisions contained in the same. But what is clear is that if out of a variety of subjects on which such statutes, ordinances, rules or regulations exist, the Vice-Chancellor has under Section 62 picked up a subject and provided by means of a set of rules or regulations, a complete code covering the field then any such regulations would alone govern the subject so chosen, to the exclusion of all other regulations, rules or ordinances. The regulations framed by the Vice-Chancellor in the instant case govern the MBBS Degree Course including matters relating to eligibility for examination, internal assessment etc., and are a complete code in themselves. Since the same do not provide either for carry over, revaluation or award of grace marks, it can only mean that the legislative authority did not intend to provide for any of the said three matters in the degree programme conducted under the aegis of the Health Sciences University.
7. The second and perhaps an equally important reason why I am dissuaded from accepting the interpretation placed on behalf of the petitioners is the fact that before the Rajiv Gandhi University Act came on to the scene, the Medical Colleges in the State of Karnataka were affiliated to one or the other of the six existing Universities in the State. Each one of these Universities had framed regulations, ordinances, and statutes which provide for not only a carry over system but for revaluation of answer scripts and award of grace marks. The conditions under which the candidates undergo of courses in Colleges affiliated to these Universities could take benefit of the said provisions were however different in the case of different Universities. It was not disputed at the Bar that there is a great amount of disparity among the existing regulations framed by all these Universities on each one of the three subjects with which we are concerned. This disparity is not limited only to the conditions subject to which the benefits could be claimed, but even the extent of benefit like the number of grace marks that could be awarded is also different. In case, therefore the interpretation placed by the petitioners were to be accepted, it would mean that although the petitioners had studied the same curriculum and appeared in the same examination prescribed and conducted by one and the same University, yet each one of them could depending upon the University to which his or her College was affiliated in the earlier years be entitled to claim the benefit of carry over, revaluation or grace marks as per the rules prevailing in that University. Such a situation would be patently anomalous for it would be difficult to countenance candidates appearing in one examination being subject to different standards or norms for purposes of any one of the three matters such as carry over, revaluation or the award of grace marks. The Vice Chancellor as an Authority competent to legislate could also not allow such an anomalous situation to be statutorily recognised by permitting the regulations applicable to all such Universities to continue despite their disparity. My answer to the first question therefore is in the negative and since the students cannot claim an inherent or vested right to demand revaluation of answer scripts de hors the regulations which govern them nor can the grace marks be awarded in the absence of any statutory provision to that effect, their prayer for introduction of carry over system, re-valuation or even grace marks on the basis of the pre-existing regulations must be declined.
8. Regarding Question (ii):
Section 19A of the Indian Medical Council Act, 1956, empowers the Council to prescribe the minimum standards of medical education required for granting recognised medical qualifications by Universities or medical institutions in India. Section 33 empowers the Council to make regulations to carry out the purposes of the Act. Such regulations may provide for the courses and the period of study and of practical training to be undertaken, the subjects of examination and the standard of proficiency therein, to be obtained in Universities or Medical Institutions for grant of recognised medical qualifications, the qualifications of examiners and the conditions of admission to such examinations. The regulations framed by the Medical Council of India have been held to be binding by a Single Judge of this Court (Bharuka, J.), in two decisions rendered by his Lordship in Dhimant Singh K. Goleria v The Vice-Chancellor, Kuvempu University and Others and Kum. Swapna Lakshman vBangalore University and Others . In the latter of the said two cases, the Court was dealing with the regulations framed by the Dental; Council of India, whether the gracing regulations framed by the Bangalore University could be made applicable to the B.D.S. Courses. The Court held that the University had by framing general gracing regulations and evolving the concept of giving grace marks slashed down the minimum marks prescribed by the D.C.I., for passing the examination. Such University regulations were found to be ex facie in conflict of the D.C.I. regulations. Relying upon an earlier decision rendered by the Court in Citizen of India v State of Karnataka, the Court observed that the grace marks regulations made by the University which were general in nature could have no application to courses like MBBS and B.D.S. governed by the Central Legislations. The view taken in the Dhimant Singh Goleria's case, supra, was also reiterated.
9. To the same effect is a recent decision of the Supreme Court in Medical Council of India v State of Karnataka and Others, where the Apex Court has while upholding the Single Bench decision of this Court in Citizen of India's case, supra, declared that regulations framed tinder Section 33 of the Medical Council of India with the previous sanction of the Central Government are statutory in character and mandatory in force. The following passage from the said decision is in this regard relevant.-
'The Indian Medical Council Act is relateable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relateable to Entries 25 or 26 of List III (Concurrent List). Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa), (fb) and (fc) (which have been introduced by the Amendment Act of 1993, w.e.f. August 27, 1992) and clauses (j), (k) and (1) of Section 33'.
10. Counsel appearing for the petitioner and even Mr. Nazeer, who appeared for the respondent-University did not dispute the position now settled by the above decision that regulations framed by the Medical Council of India prescribing standards of proficiency for passing the examinations will bind the University and will have an overriding effect on any other regulations which the University may have framed in that regard. As a matter of fact, the question whether the pre-existing regulations providing for the award of grace marks in other Universities is toa great extent rendered academic in the light of the superior efficacy of the MCI regulations framed on the subject. In the light of the decisions of this Court and the law declared by the Supreme Court, even if the earlier regulations framed under the Karnataka Universities Act, were to continue the same would have no application insofar and to the extent they came in conflict of the MCI regulations.
11. There are two sets of regulations to which my attention was drawn in the course of the hearing. Regulations on Graduate Medical Education, 1997, notified on 4th of March, 1997, were admittedly inapplicable to the petitioners who have been admitted to undergo the course before the said regulations were notified. The petitioners were according to the learned Counsel appearing for them and Mr. Nazeer, in the matter of curriculum and other incidental questions such as standard of proficiency required for passing the examinations governed by the regulations framed by the Vice-Chancellor under Section 62 of the Rajiv Gandhi University of Health Sciences Act, 1994, in terms of notification dated 14th of October, 1996. They are also governed by the recommendations made by the Medical Council of India for undergraduate qualifications on 15th and 16th of April, 1977, duly approved by the Central Government on 30th of November, 1977 as regulations under Section 33 of the Indian Medical Council Act, 1956. Regulation X(10) of the said regulations provides for grace marking and reads as under.-
'X(10) Grace marks up to a maximum of 5 may be awarded at the discretion of the University for a student who has failed only in one subject but has passed in all the other subjects'.
12. The award of grace marks to MBBS students the Universities has therefore to be only in accordance with the above regulations. Any scheme provided for in regulation, which prescribes a different standard or condition of eligibility for award of such marks would be ineffective and opposed to the scheme of the above regulations. The entitlement of the petitioners to claim grace marks also had to be examined in the light of the above regulations only. The University does not appear to have done so. On the contrary, the Vice-Chancellor on receipt of the representations from the students is said to have constituted a Committee to examine the same by order dated 29th of June, 1998. The Committee held a Meeting on 30-6-1998 and made the following recommendations.-
'After detailed discussions, the Committee resolved to recommend for the award of moderation marks as follows in respect of all the examinations under Health Science faculty.
Five marks to be added to the best advantage of the students as moderation marks not exceeding two marks per subject provided the candidate has secured 40 per cent in University conducted theory components and completely pass all the subjects prescribed for the examination. This moderation marks shall not be applicable to practical component.
An order was accordingly issued by the University on the same date in the following terms.-
'Pursuant to the orders of the Vice-Chancellor, moderation is to be made to an extent of a maximum of two marks per subject provided the candidate satisfies the following conditions.-
1. Candidates should have obtained a minimum of 40% in the University conducted theory examination of the concerned subject.
2. Benefit of moderation to be extended provided the candidate passes the subject by obtaining 50% in the aggregate.
3. Moderation marks to be added only to the University conducted theory component.
4. Moderation is not applicable to practicals/clinicals.
By Order
Registrar (Evaluation)'.
13. A reading of the above would show that the University has introduced a system different from the one envisaged by the regulations framed by the MCI. Whereas the MCI regulations permit award of upto 5 marks in one subject provided the candidate has passed in all other subjects, the order issued by the University permits moderation to an extent of two marks per subject provided the candidate has obtained a minimum of 40% in the theory examination conducted by the University in the concerned subject. The order also restricts itself to the first MBBS examination of May 1998. Two aspects therefore need to be examined at this stage, one relating to the competence of the University to provide for moderation in the manner envisaged by the order issued by it and the other relating to the effect of the said order on the rights of candidates eligible to seek grace marks in the manner and to the extent permitted by the MCI regulation. Insofar as the first is concerned, it is evident from the decisions referred to earlier that any provision made for the award of the grace marks by the University which is in conflict with the MCI regulation would be legally bad. The order issued by the University is in that view clearly in violation of the regulation made by the MCI. Award of grace marks by whatever name the same may be called in more than one subjects is not permissible in terms of the said regulations. The fact that the beneficiaries may not have been given more than 5 marks in all the subjects put together does not make any material difference. What is important is that such marks could be claimed only in one subject and that too on the condition that the candidate claiming the same had passed in all other subjects.
Coming then to next question the award of two marks in each subject although not envisaged by the MCI regulations has not been questioned before me. It is possible that a large number of candidates who may have otherwise failed have been declared successful only on the basis of the award of the said moderation/grace marks. I am not therefore inclined to interfere with the award of such marks though the MCI may be justified in taking up the issue with the respondent-University to prevent recurrence of such violations in future. What I am concerned withis whether the order issued by the University can be treated as a norm fixed in exercise of the discretion vested in it by the MCI regulations. As to how many out of the maximum of 5 marks should be awarded either generally or on the basis of any other relevant consideration such as the performance of the candidates in the subjects in which they have passed is something which the University alone can decide keeping in view its academic requirements and policies. But whatever be the norm prescribed the same must be clearly defined and made applicable to all the candidates falling within its purview instead of the University taking decisions on the subject on ad hoc or year to year basis, as it appears to have done in the present case. The record produced before me does not bear testimony to the University ever having applied its mind to this aspect of the matter. There is nothing to show that the University has at any stage seriously considered the question of evolving a uniform and non-discriminatory standard for the exercise of its discretion. This was essential not only to bring transparency to the process of granting grace marks but also disclosing in advance the standard by which the University would like its action to be judged. It would also make the University's response in such situations predictable, remove misgivings about its bona fides and allay the apprehensions of the candidates that the decisions taken by it are not inspired by public interest but dictated by external pressures and considerations which vitiate their sanctity. A criteria fashioned after consideration of all the relevant factors would have had the additional advantage of avoiding anomalous situations like ones pointed out by the petitioners where a candidate who needs only three marks in one subject fails because two marks given to him under the moderation scheme are not enough whereas another candidate who had failed in all the three subjects gets through because he gets six marks - two each in three subjects no matter contrary to the MCI regulations. Suffice it to say that if upon consideration the University is of the opinion that the discretion vested in it under Regulation X(10) of the MCI regulations should be exercised only upto an extent and not beyond or that the number of marks that may be awarded should be co-related with the performance of the candidate in other subjects without violating the requirements of the MCI regulation, it would be within its powers to do so. Any such decision will enure for the benefit of the petitioners not only for the I MBBS examination but even for the remaining length of the course as it is not disputed that they shall for the rest of the course also be governed by the MCI regulation referred to earlier and not those notified in March 1997 which incidentally do not contain any such provision.
14. In the result these petitions succeed but only to the extent that the respondent-University shall consider at the appropriate level the question of formulating appropriate norms for awarding grace marks to students who qualify for the same under Regulation X(10) of the MCI regulations, within the outer limit fixed therein and keeping in view the observations made hereinabove. If on the basis of any such norms the petitioners or any one of them is found entitled to any additional grace marks over and above what has already been awarded by way of moderation the benefit so admissible shall be granted with all consequential reliefs by way of modification of the results and permission to continue in the next higher phase of the course. The University shall do the needful expeditiously and as far as possible within four weeks from today.
15. In the circumstances, there shall be no order as to costs.