ORDER
1. Since common questions of facts and law are involved in all these petitions, they are clubbed, heard and disposed off by this common order.
2. Facts may briefly be noticed. They are as under: Petitioners are students admitted to Four Years BDS Course during the academic year 1996-97 in different BDS Colleges in the State. These colleges are now affiliated to 'The Rajiv Gandhi University of Health Sciences', which was established and incorporated by an Act known as 'The Rajiv Gandhi University of Health Sciences Act, 1994, hereinafter referred to as 'University', by the State Government for the purpose of ensuing proper and systematic instruction, teaching, training and research in Modern Medicine and Indian System of Medicine in the State of Karnataka. The Act has come into force from 1st of June, 1996 on its notification in the Official Gazette by the State Government. Among others, sub-section (3) of Section 5 of the Act provides that 'with effect and from the date of commencement of the Act, all colleges, 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 privileges or affiliated to Rajiv Gandhi University.
3. The Vice-Chancellor is the whole time officer of the University. The provisions of the Act mandates that it shall be the duty of the first Vice-Chancellor to make arrangements for constituting the Syndicate and other authorities of the University within six months from the date of commencement of the Act or within such longer period not exceeding one year as the State Government may direct. The provisions of the Act further mandates that it is the duty of the first Vice-Chancellor to make such rules as may be necessary for the functioning of the University in consultation with the Chancellor of the University. The provisions of the Act further mandates that it is the duty of the first Vice-Chancellor to draft such statutes as may be immediately necessary and submit them to the competent authority for its approval.
4. The provisions of the Act also permits the first Vice-Chancellor to adopt with or without modification with the approval of the Chancellor obtained through the State Government, until statutes, ordinances and rules are made under 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.
5. The first Vice-Chancellor of the University exercising his powers under Section 62 of the University Act and with the prior approval of the Chancellor obtained through the Government has adopted BDS regulations of the Karnataka State Universities Act, 1976 with certain modifications. These regulations have come into force from the academic year 1996-97 and these regulations have been notified by an appropriate notification dated 14-10-1996.' Among other things, these regulations provide for scheme of examination for BDS Course, distribution of marks, methods of examination and results etc., under the sub-heading results, it was notified that a candidate shall be declared to have passed the examination if he/she secures a minimum of 50% marks for theory and viva vote examinations and internal assessment combined together and 50% of the total marks in practical/clinical examinations and internal assessment combined together in each of the examination subjects.
5-A. The University Act, also authorises the Syndicate of the University to make ordinances and amend or repeal the same from tune to time. The ordinance so made may provide for various contingencies including the conduct of examinations of the University. The Syndicate exercising the powers conferred under Section 35(2) of the Act, has promulgated Ordinance 1997 governing admission, course of study and scheme of examination relating to BDS Course. The said ordinance is notified by the respondent-University in the Official Gazette and it comes into force from the academic year 1997-98. There seems to be not much of difference between the regulations made by the first Vice-Chancellor of the University exercising his powers under Section 62 of the University Act and the ordinance made by the Syndicate exercising its powers under Section 35(2) of the Act insofar as the conduct of examinations of the University and the conditions under which students would be admitted to such examinations. After such promulgation of the ordinance providing for various topics for proper functioning of the University, the respondent-University has thought fit to amend the ordinance keeping in view the welfare and interest of 'student community' of the University by issuing a corrigendum which is notified for certain modification for the topic 'Results' of BDS Ordinance, 1997. This corrigendum brings about a change by providing a minimum of 40% marks in the University conducted theory written examination and University conducted practical examinations respectively, apart from the requirement of 50% in aggregate in place of 50% minimum in University conducted theory and practicals as was the requirement under the ordinance notified in the Official Gazette on 16-8-1997. The corrigendum issued by the University and notified in the Official Gazette dated 26-8-1998 requires to be extracted and the same reads as under:
No. ACA/ORD 3/97-98, 26-8-1998
CORRIGENDUM
Sub: Ordinance relating to BDS Course 1997-98.
Ref: (1) University Notification No. ACA/ORD 3/97-99, dated 16-8-1997 notifying the ordinance relating to BDS Course 1997.
(2) Minutes of the special meeting of the Syndicate meeting of the Syndicate held on 2-4-1998.
In the University Notification of even number dated 16-8-1997 relating to BDS Ordinance, 1997, please substitute the following for the existing provisions.-
(i) 'Distribution of Marks' under the Scheme of Examination relating to II BDS Course on page 7 of the BDS Ordinance 1997 be read as '4. Pre-Clinical Prosthetic Dentistry '20+ - - 60-20-100'. 100 for '4. Pre-Clinical Prosthetic Dentistry-20-60-20-100-200'.
(ii) Substitute the following for Clause 1 of the Ordinance relating to 'Results' of BDS Ordinance, 1997 on page 8.-
'A candidate is declared to have passed the Examination in a subject if he/she secures, 50% of the marks in theory and 50% in practical separately. For a pass in theory a candidate has to secure a minimum of 40% marks in these aggregate obtained in University conducted written examination, and 50% in aggregate obtained in the University conducted written examination, internal assessment and viva voce added together and for a pass in practical a candidate has to secure minimum of 40% marks in the University conducted practical/clinical examination and 50% in aggregate i.e., University conducted practical/clinical and internal assessment.
By Order
Sd/-
Registrar'
6. Now coming to the actual grievance of these petitioners, they contend in these writ petitions that they had appeared in the University conducted examinations held in the month of October 1998 for I Year BDS subjects in which they had earlier failed and the respondents while declaring their results have applied the examination rules prevailing before the introduction of the ordinance notified on 16-8-1997 in the Official Gazette and the amendment to that ordinance as set out in the corrigendum and notified in the Official Gazette dated 26-8-1998, only for the reason that these petitioners are students of 1996-97 batch and the transitory regulations framed by the first Vice-Chancellor of the University exercising his powers under Section 62 of the Act would be applicable to them. By applying this reasoning once again results of the petitioners and similarly placed students who had appeared in the examination held in the month of October 1998 have been declared as failed. According to these students, University has to apply the scheme of examination as notified in the Official Gazette dated 26-8-1998 and ifthat is done all of them would pass in the subjects that they had appeared conducted during the month of October 1998. To demonstrate the arbitrariness in the action of the respondent-University, 1st petitioner in these petitions asserts that he had appeared in the subject Human Physiology and Bio-chemistry in the examination held by the University in the month of October 1998 and has secured 38 out of 70 in the University conducted theory paper and 12 out of 20 in the University conducted viva and 47 out of 90 in the University conducted practicals which marks if worked out would be above 40% but less than 50% and the aggregate works out more than 50% if the amended ordinance is applied, his results can be declared as passed in the subject since he has secured more than 50% in aggregate but the University authorities have thought it otherwise only because petitioner is a student who had secured admission to BDS Course for the academic year 1996-97 and the rules and regulations prevailing in that year should be made applicable to them throughout the course.
7. After the declaration of the results by the University, petitioners had approached the respondents to set right the anomaly and make appropriate correction in the results declared by applying the amended ordinance. The request of these petitioners is declined by the respondent-University. Aggrieved by these acts of omissions and commissions of the respondent-University, these petitioners are before this Court inter alia seeking the following reliefs, they are:
'Wherefore it is humbly prayed that this Hon'ble Court be pleased to call for records, and further be pleased to:
(A) issue a writ of mandamus or such other writ, as deemed necessary, directing the first respondent-University to correct the declaration of results of BDS Examination of petitioners by applying the provisions of the ordinances issued under Section 35 of the Act (Annexure-B and C -- No. ACA/ORD 3/97-98, dated 16-8-1997 and No. ACA/ORD 3/97-98, dated 26-8-1998 respectively) as requested under the representation of the 2nd respondent (as per Annexure-K, dated 30-12-1998);
(B) issue a writ of declaration or such other writ, declaring as illegal and unsustainable the erroneous declaration of results of the petitioners, applying the provisions of the regulations as per Annexure-A which has since been replaced by ordinances as per Annexure-B and C and further be pleased to declare that the petitioners are entitled to declaring their performance in the examination as passed if in terms of notification dated 26-8-1998, they have secured 50% of the marks in theory and 50% of marks in practicals separately and a minimum of 40% marks in the aggregate, in the University conducted written examination and 50% in aggregate in the University conducted written examination, internal assessment and viva voce added together, and a minimum of 40% in University conducted practical examination and 50% in the aggregate in the University conducted practical and internal assessment'.
7-A. Respondents have filed their objections and resists the reliefs sought for by these petitioners. In the objection statement so filed they only state as under:
'It is submitted that petitioners were admitted to the I Year BDS Course academic session 1996-97. The University adopted the regulations as per Section 62 of the RGUHS Act, by a Notification No. ACA/265/REG/96-97, dated 14-10-1996. The said regulations are effective from 1996-97. The said notification is neither amended nor repealed and holds the field insofar as the students admitted for the I Year BDS Course during the academic year 1996-97, till they complete the said course.
It is further submitted that the University in exercise of the power under Section 35 of the RGUHS Act, has made an ordinance relating to BDS Course bearing No. ACA/ORD 3/97-98, dated 16-8-1997 which has come into force from the academic year 1997-98. The said ordinance is applicable to the students who were admitted to the I Year BDS Course during the academic session 1997-98, till they complete the said course. As per Annexure-C, the said ordinance of 1997-98 has been amended in exercise of power under Section 35 of the RGUHS Act. The regulations referred above, has not been amended and therefore, the petitioners herein cannot be governed by the ordinance dated 16-8-1997, as amended by notification dated 26-8-1998'.
8. Sri Madhusudan R. Naik, learned Counsel for these petitioners reiterates the assertions made in the petitions and further submits that the University having made provisions for conduct of the examination exercising their powers under Section 35 of the Act cannot seek to apply the regulations made under transitory provisions, thereby denying the benefit of the amended ordinance to the students who had secured admissions to the BDS Course for the academic year 1996-97 and this action of the University, he characteristics as wholly arbitrary, unjust, unreasonable and grossly discriminatory and therefore requests this Court to grant the reliefs sought in these petitions.
9. Sri Nazeer, learned Counsel for the respondent-University submits that the Syndicate may, exercising its powers under Section 35 of the Act, frame ordinances from time to time, and may amend the ordinance from time to time and lastly, may repeal the same from time to time. Exercising the aforesaid powers, according to the learned Counsel, the Syndicate of the University has framed the ordinance which was published in the notification dated 16-8-1997 for the purpose of conducting BDS examination in the University and since the ordinance is for the academic year 1997-98, the same cannot be applied to the students who had secured admission for the academic year 1996-97. Further, the learned Counsel would submit that since the regulations framed by the first Chancellor of the University exercising his powers under Section 62 of the Act has not been repealed by the subsequent ordinance promulgated by the Syndicate of the University, the regulations framed by the Vice- Chancellor should be applied to the students who had securedadmission to I Year BBS Course during the academic year 1996-97. These are the only two legal issues canvassed by learned Counsel for respondent to justify the impugned action of the University.
10. Having carefully considered the legal issues canvassed by learned Counsels for the parties to the lis, the question that requires to be considered and decided is, whether the amended ordinance notified by the respondent-University should be applied while declaring the results of these petitioners who had secured admission to BDS Course for the academic year 1996-97 and had appeared for some of the papers of the I Year BDS Course in the examination held by the University in the month of October 1998.
11. In my view the issues canvassed by the learned Counsels in these petitions for consideration of this Court does not require any lengthy discussion, since the relevant provisions of the University Act are explicit and most unambiguous.
12. Section 60 of the Act provides for transitory powers of the first Vice-Chancellor of the University. Sub-section (2) of Section 60 mandates that the Vice-Chancellor in consultation with the Chancellor may make such rules and regulations as may he necessary for the functioning of the University.
13. Section 62 of the Act envisages continuance of statutes and ordinances etc. The said provision opens with an expression 'Until' and then says the statutes, ordinances and rules are made under the appropriate provisions of Rajiv Gandhi University Act, the first Vice-Chancellor may adopt with such modifications the statutes, rules and regulations made under Karnataka State Universities Act with the previous approval of the Chancellor and such statutes, rules, regulations and ordinances are deemed to be made under the provisions of this Act. The statutes, regulations, or ordinances so made will have its existence and naturally its force till the rules, regulations or ordinances are made by the competent authorities exercising their powers under this Act. That only means the regulations made by the Vice-Chancellor for the functioning of the University is of transitory in nature and these regulations should give way to the rules, regulations and ordinances framed by competent authorities under the appropriate provisions of this Act.
14. In my opinion rules, regulations and ordinances made under Section 62 of the Act are only temporary, since time is fixed in the provisions of the Act itself by using the expression 'Until'. In view of this, the temporary regulation made by the first Vice-Chancellor of the University will remain in force until its repeal which may be express or implied. The legislature in its best wisdom has not provided any saving clause in regard to these temporary statute framed by Vice-Chancellor exercising his powers under Section 62 of the Act. In the absence of such a saving provision, the normal rule is that anything done under a provision which is of transitory in character ipso facto terminates as soon as fresh legislation is introduced by the competent authority under the Act. Therefore, by implication the earlier regulation made is repealed andautomatically comes to an end. In my view, this is the possible interpretation and construction that could be given to transitory provisions.
15. Keeping this legal position in view, let me now notice the facts situation. The first Vice-Chancellor exercising his powers under Section 62 of the Act, had framed certain regulations for the functioning of the University which also provides for the scheme of examination and distribution of marks, methods of examination and results of BDS Course in the University for the academic year 1996-97. In view of the language employed in Section 62 of the Act, these regulations are only transitory in character until they are replaced by regular rules, regulations and ordinances by an appointee authority under appropriate provisions of the Act. The Syndicate of he University, which is the competent authority exercising its powers under Section 35 of the Act, has framed ordinance providing for method of examination and method for declaration of results and the same is notified by the University by publishing in the Official Gazette dated 16-8-1997 and further amended by a corrigendum published in a notification dated 26-8-1998. In my view, since the Syndicate has framed fresh ordinance exercising its powers under Section 35 of the Act, the earlier transitory regulations framed by Vice-Chancellor of the University insofar as the conduct of the University examination is concerned may not survive though there is no express repeal of the provision and as such the University cannot take recourse to the earlier regulations to deprive these petitioners the benefit of the amended ordinance merely because they had secured admission for BDS Course for the academic year 1996-97. In that view of the matter, the submission of the learned Counsel for the University that merely because the petitioners had secured admission for the academic year 1996-97 should be governed by the transitory regulation made by Vice-Chancellor exercising his powers under Section 62 of the Act, cannot be accepted and accordingly it is rejected and further merely because there is no express repeal of the earlier provision by subsequent promulgation cannot also be accepted. Accordingly the said submission is rejected.
16. In view of that, in my opinion, the respondents ought to have applied the amended ordinance framed by the Syndicate and declared the results of these students who had appeared in the examination conducted by the University in the month of October, 1998.
17. Lastly, I have carefully gone through the marks list produced by some of the petitioners before this Court. In my opinion, if the University applies the amended ordinance to declare the results of the students, most of them would be eligible to prosecute their studies in the next higher class. Keeping this in view, a direction is issued to the University to permit the students who are before this Court to prosecute their studies in the next higher class subject to issuance of fresh marks and by applying method prescribed in the amended provisions. In spite of application of the said ordinance if any one of them has not secured the marks prescribed under the amended provisions, he/she would not claim any right or equities to be in the next higher class.
18. For the reasons stated, these writ petitions are allowed. Rule made absolute. A direction is issued to the respondent-University to correct the declaration of results of BDS Examination of the petitioners by applying the provisions of the ordinance issued under Section 35 of the Act as amended and notified in the Official Gazette on 26-8-1998. This direction the respondent-University shall comply within a week from the date of receipt of copy of this Court's order. The University will also permit these students to prosecute their studies in the next higher class till they issue fresh marks list.
19. Office is directed to furnish a carbon copy of this Court's order to both the learned Counsels.
20. With these observations and directions, petitions are disposed off. No order as to costs. Ordered accordingly.