Karnataka High Court
Joseph vs Registrar, Mangalore University on 24 March, 1986
ORDER K.A. Swami, J.
1. In these petitions under Article 226 of the Constitution, the petitioners have sought for quashing the communications dated 25-1-1986 bearing No. P.O.4326/85-86 and P.O.4327/ 85-86 addressed to the petitioners produced as Annexures A and B respectively, informing them that as per the result announced by the Mangalore University, they have failed in the M.D.S. Part-II (Orthodontics) Examination held in December, 1985.
2. There is bias pleaded against the internal examiner; but he has neither been made a party nor that contention is urged during the course of argument. Therefore, it is not necessary to go into the same.
3. The contention of the petitioners is that the Board of Examiners for M.D.S. Part-II (Orthodontics) Examination consists of 4; and out of them 3 are external examiners and one is an internal examiner; that the three external examiners have unanimously opined that the petitioners are entitled to be declared as 'passed' whereas the internal examiner has opined to the contra ; that the University, only on the basis of the minority opinion of the internal examiner, has declared that the petitioners have 'failed'; that the Regulations framed by the University of Mangalore, known as "XVIII Regulations Governing Master Degree Course in Dental Surgery M.D.S." (hereinafter referred to as the "Regulations") do not provide that all the members of the Board of Examiners must agree for declaring that an examinee has passed the examination in question ; that the Regulations also do not prohibit for arriving at a decision by the Board of Examiners on the basis of the opinion of the majority; therefore the case of the petitioners is that according to the majority opinion of the members of the Board of Examiners, the petitioners ought to have been declared as passed.
4. On the contrary, it is contended on behalf of the respondents 1 and 2 that there is no provision contained in the Regulations providing for declaring the results of M.D.S. Examination on the basis of the majority opinion of the members of the Board of Examiners, therefore, respondents 1 and 2 arc justified in declaring the petitioners as failed because all the 4 examine are not agreed that the petitioners are entitled to be declared as passed inasmuch as the internal examiner by name Dr. Sumanth Goel, Reader, Department of Orthodontics, Collage of Dental Surgery, Manipal, has entered his opinion in the result sheet stating that the petitioners 1 and 2 have failed. Reliance is placed on Regulation No. 27.7 of the Regulations.
5. Having regard to the aforesaid contentions the following point arises for consideration:
Whether having regard to Regulation No. 27.7 of the Regulations, the results of the M.D.S. Examination of Mangalore University can be declared on the basis of the majority opinion of the Board of examiners ?
6. In this case, it is not in dispute that only 3 candidates appeared for the M.D.S. Pan II (Orthodontics) Examination held in the month of December, 1985. Dr. A. B. Modi, Professor and Head of the Department of Orthodontics, Nair Hospital, Dental College, Bombay ; Dr. B. Seshadri, Principal, Professor and Head of the Department of Orthodontics, Government Dental College, Hyderabad and Dr. C. T. Mathew, Director, Professor and Head of the Department of Orthodontics, Government Dental College, Calicut, were the External Examiners and Dr. Sumanth Goel, Reader, Department of Orthodontics, College of Dental Surgery, Manipal, was the internal examiner. Regulation No. 27.6 provides for number of the examiners. It provides that "The minimum number should be 4 out of which 2 at least must be external." Thus, the formation of the Board of Examiners even though it consists of 3 external examiners, is not opposed to Regulation No. 27.6 because it permits to have more than 2 external examiners.
7.1. It is not in dispute that all the four examiners sat together and went through the papers of the 3 examinees viz., 1. Dr. Joseph. 2. Dr. Krishna Nayak U. S. and 3. Dr. Mamta Satya Rani. They also conducted the viva voce of the examinees together. Ultimately, Dr. Sumanth Goel was of the view that the petitioners could only be declared to have failed and only Dr. Mamta Satya Rani alone could be declared to have passed. He accordingly entered his opinion on the result sheet and signed it. It is produced as Annexure-1 by the University. The original records are also produced before me by the University. As the other three examiners did not agree with the opinion entered by Dr. Sumanth Goel, they struck of the entries made by Dr. Sumanth Goel in the result-column of the result sheet of the examination as against the names of the petitioners as "fail" and entered as "pass" and all the three examiners signed the result sheet. Having regard to the over-writing in the result sheet, the Controller of Examinations thought it necessary to ascertain the views of the examiners separately before it could be acted upon. Therefore, he addressed letters to all the four examiners separately bringing to their notice about the corrections in the result sheet relating to the petitioners. The Registrar also sent the blank result sheet to each of the examiners requesting them to make entries once again. Dr. A. B. Modi, by his letter dated 3-1-1986 (Annexure-3) sent with the resulsheet, informed the Controller of Examinations, as follows :
"Dear Sir, This is to acknowledge your above mentioned letter dated 27-12-1985.
I am surprised that the result sheet was seat back for my signature, in this connection I would like to mention that differences at times do come up while considering the result of candidates, and usually the majority decision is carried.
I have been examiner at various Universities at M.D.S. level and in past such problem did arise at Bombay and other Universities and the matter was decided by a majority decision.
At Manipal, the Internal Examiner was in favour of passing only one candidate (Reg No. 8319811) and he wrote accordingly in the result sheet. The other 3 examiners were of the opinion that considering the overall performance of the candidates all of them deserved to pass. Hence, the original entries in the result sheet had to be cancelled and initiated. As all four examiners have signed at the bottom, I believe that the result should be considered as a unanimous one.
With regards,
Thanking you,
Yours sincerely
Sd. Dr A.B. Modi, Prof. & Head of Orthodontics Dept."
7.2) So also, Dr. B. Seshadri, by his letter dated Nil, (Annexure-4) sent along with the result sheet, informed the Controller of Examinations, as follows :
"Dear Sir, I received your Confidential letter dated 27-12-1985 reg : M.D.S. Part II Orthodontics results held at Dental College, Manipal.
Regarding your enquiry, I wish to inform you that the results of the final M D.S. (Orthodontics) were decided taking into consideration the overall performance of the candidates who appeared for the M.D.S. examination and all the three candidates who appeared have performed satisfactorily and have been declared to have passed in the M.D.S. examination.
Normally before deciding the results there is a discussion among the examiners, but at that time the internal examiner in a hurry put his individual assessment and passed the result sheet to other external examiners for approval and signature.
We felt the performance of the 3 candidates were of the same standard and we did not agree, and we had to alter and therefore, the disagreement which is evident in the result sheet.
On several occasions at different University examinations such disagreement occurred, the usual procedure is that the majority opinion prevails and Vice-Chancellor takes the final decision.
The decision was not an afterthought and I am enclosing the result sheet duly signed.
Kindly acknowledge the letter and I request strict confidentiality of the matter."
7.3) As far as Dr.C.T. Mathew is concerned, in the first instance, along with this letter dated 3-1-1986, he only sent the result sheet duly signed entering against the names of petitioners and Mamata Satya Rani as "pass". Subsequently, on 12-2-1936. in reply to another letter dated 23-1-1986 written by the Controller of Examinations, he has addressed a Setter to she Controller of Examinations in the following terms :
"With reference to the letter cited, I may be permitted to point cut the Allowing matter for your consideration and favourable disposal.
Dr. Seshadri, Dr. Modi and Myself had approved for the passing of the three candidates in the M.D.S. Part-II Examination of December, 1985 and accordingly had affixed our signatures to this decision.
The infernal examiner Dr Goel did not Sign against the result of two candidates as he did not approve the passing of these two candidates. Generally, the opinion of majority of examiners is taken into consideration in such cases.
Therefore, I request this issue may be reconsidered and result declared endorsing the decision of the majority. I may also point out all of us are very senior people occupying responsible positions in the academic field and it is only a matter of fairness that our decision is respected."
Of course, by the time Dr. Mathew sent the aforesaid letter, the petitioners had been informed by Annexures-A and B, both dated 25-1-1986, that they bad failed; but as it is already pointed out, he had sent the result sheet duly signed by him on 3-1-1986 much earlier to 25-1-1986. As it is already pointed out, Dr. Modi and Dr. Seshadri had sent the replies as per Annexures 3 and 4 along with the result sheets earlier to 25-1-1986.
7.4) The internal examiner Dr. Sumant Goel, as revealed from his letter dated nil (Annexure-5) sent with the result sheet, has struck a different note.
7.5) A reading of the letters written by the external examiners and the result sheets sent by them, even after giving margin for minor discrepancies, it is established beyond doubt that all the three external examiners were of the opinion that all the 3 candidates were entitled to be declared as passed, and the internal examiner was of the opinion that only Mamta Satya Rani alone was entitled to be declared as passed, and the petitioners were required to be declared as failed. No doubt, Dr. Goel has tried to show that Dr. Mathew agreed with him but subsequently on the persuasion of other two external examiners, changed bis opinion and agreed with the opinion of other two external examiners. Thus, the letter of Dr. Goel also established that all the three external examiners were of the opinion that the petitioners were entitled to be declared as passed.
8. After collecting the opinions and the entries made in the result sheets as aforesaid, the University has declared that the petitioners have failed. In other words, the University is of the opinion that as per Regulation 27.7 of the Regulations, unless all the examiners agree that an examinee should be declared as passed, he is not entitled to be declared as passed even though majority of the examiners opine that an examinee can be declared as passed. This is a case in which no bias or want of bona fides are alleged against any one of the examiners. It is already pointed out that bias pleaded against the internal examiner is not pursued. All the examiners have worked together as a body and each one his arrived at the decision as stated above. Therefore, it has now to be seen whether Regulation 27.7 of the Regulations, admits of decision being taken on the majority opinion of the examiners ; or whether it is necessary that there should be unanimous opinion Sri Shivashankar Bhat, Learned Counsel for the University submits that these are the matters of academic excellence in a particular branch of study and the degrees being the Post Graduate Degrees, certain amount of excellence is required ; that it is possible to ensure it only if all the examiners agree that an examinee is entitled to be declared as passed ; that if decision in such matters is taken on the basis of the majority opinion, the very object of achieving excellence in the academic field will be defeated ; that there should not be difference of opinion among the examiners on the point whether a candidate is entitled to be declared as passed in the matter of conferment of Post graduate Degree. The existence of difference among the Examiners or. the point is indicative of the fact that the candidate is not upto the mark and as such, does not deserve to be conferred upon Post graduate Degree, It is also further submitted that even under the Law of Arbitration as it stood prior to 1940, most of the Courts interpreted that in the case of arbitrations by more than one the decision must be unanimous. Even if one of the arbitrators differed that could not be taken as a decision or award of the arbitrators. It is submitted that the same principle applies to the Board of Examiners in as much as each one of the examiners has to give his decision on the point as to whether an examinee deserves to be declared as passed or not. Learned Counsel has also placed reliance on several decisions which will be adverted to at the appropriate place.
9. On the other hand, Sri Vijaya Shankar, Learned Counsel for the petitioners, submits that as per Regulation No. 27.7 of the Regulations, the Board of Examiners must arrive at a decision ; that the Regulation neither prescribes the mode of arriving at a decision nor there is any bar for arriving at a decision on the basis of the opinion of the majority. It is submitted that the principles applicable to the decision by arbitrators are not applicable because the arbitrators function on the basis of the confidence reposed in them by the parties to the arbitration ; whereas, the Board of Examiners function by virtue of their appointment as examiners under the Law and not on the basis of the confidence reposed in them by the examinees.
10. The Board of Examiners is a public body. They act in discharge of their public duties. They have to act as a body and arrive at a decision as to whether the candidate is entitled to be declared as having passed or failed in accordance with Regulation 27.7 of the Regulations, which reads thus :
"Declaration of results : The Board of Examiners after taking the total performance of the candidate, shall decide whether the candidate is to be declared as having passed or failed, If in the opinion of the Board of Examiners, any candidate has done extra-ordinary well, he would be declared to have passed with distinction."
A close reading of the Regulation reveals that the Board of Examiners have to act as a body and not as an individual examiner. They have to take into account the total performance of the candidate and arrive at a decision whether the candidate is entitled to be declared as passed or failed. The Regulation further provides that if in the opinion of the Board of Examiners any candidate has done extraordinary well, he has to be declared to have passed with distinction. Thus, whether the candidate is entitled to be declared as passed or failed depends upon the decision of the Board of examiners and not the derision of the individual examiners constituting the Board. Therefore the question for consideration is as to how that decision has to be arrived at. If all the examiners constituting the Board of Examiners are of the same opinion that the candidate has to be declared as having passed or failed, there will not be any difficulty for the Board of Examiners to arrive at a decision because the decision is unanimous It is only when there is difference of opinion among themselves as to whether the candidate has to be declared as having passed or failed, the difficulty arises in finding out as to what is the decision of the Board of Examiners. The Regulation as such does not prescribe any mode for arriving at a decision of the Board of Examiners when there is difference of opinion among themselves. The Regulation also does not prohibit the Board of Examiners from arriving at a decision on the basis of the opinion of the majority of the examiners constituting the Board. The Board of Examiners do not function pursuant to the confidence reposed by the candidates. The performance of functions and discharge of duties by the Board of Examiners are not based upon the private confidence reposed in them by the parties. Whereas in the case of Arbitrators, they arbitrate on the basis of and pursuant to the confidence reposed in them by the parties to the arbitration. Therefore, the principles enunciated under the Law of Arbitration as it stood prior to 1940 regarding the decision to be arrived at by the Arbitrators do not apply to the decision of the Board of Examiners. The Board of Examiners is a public body appointed under the Regulations. They function in the public interest. They discharge their function by virtue of their appointment under the Regulations. That being so, in the absence of any specific provision in the Regulation to the effect that the decision of the Board of Examiners must be unanimous or prohibiting them from arriving at a decision on the basis of the majority opinion, there is no warrant to; hold that the Board of Examiners are not entitled to arrive at a decision on the basis of the opinion of the majority. Normally, an interpretation of a statute which does not advance the object and intendment of the statute should be avoided. An interpretation which advances the object and intendment of the statute and ensures smooth operation of the statute and functioning of the Body charged, with the duty to implement and act in accordance with the statute must be preferred. If the decision of the Board of Examiners is arrived at on the basis of the opinion of the majority, neither the object and intendment of the statute is defeated nor the standard of examination required to be maintained is affected. At the same time, such a mode of arriving at a decision also facilitates smooth functioning of the Board of Examiners and ensures uniform assessment of the performance of the candidates at the examination. Whereas, in the case of unanimous decision to be arrived at by the Board of Examiners, even an opinion of the one of the examiners of the Board though being a minority opinion, will not only nullify the opinion of the majority, but will also subject the candidate to different standards of assessment. The trend of the Universities as can be noticed from the letters of the External Examiners i.e., Dr. Modi, Dr. Seshadri and Dr. Mathew who are examiners of long standing, is to arrive at a decision on the basis of the opinion of the majority. Judicial decisions tendered by a Court or a Bench consisting of two or more Judges are arrived at on the basis of the opinion of the majority. Of course, the performance of functions and discharge of duties of the Board of Examiners and the decision to be arrived at by them may not be comparable with that of the Courts and quasi judicial Tribunals, but the underlying principle for arriving at the decision is the same viz, the opinion of the Majority.
This Court, in Virupakshappa v. Dangadi Hanumanthappa & Ors., 1978(1) KLJ 464 has held that the decision rendered by the majority members of the Land Tribunal constituted under the provisions of the Karnataka Land Reforms Act, will be the decision of the Tribunal and it cannot be attacked as not a valid decision on the ground that it is not a unanimous one. For arriving at that conclusion, this Court has placed reliance on a passage in the decision of the Supreme Court in Ishwar Chandra v. Sathyanarain, 1972 SLR 385 SC which reads thus :
"If, for one reason or the other, one of them could not attend, that does not make the meeting of others illegal. In such circumstances where there is no rule or regulation or any other provision fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat could not be held to be invalid. This proposition is well recognised and it also so stated in Halsbury's Laws of England. Third Edition (Vol. IX, page 48, para 95), It is therefore unnecessary to refer to any decisions of the subject."
This Court has also placed reliance on a decision in Picea Holdings Ltd., v. London Rent Panel, 1971(2) QBD 216 in which it is held as follows :
"Mr. Slynn who has appeared as amicus has however in the connection referred to a case in the Court of Appeal in New Zealand : Atkinson v. Brown (1963) NZLR 755. The facts of that case matter little. The importance of it is that it conveniently collects and deals with the relevant authorities on the matter. North,J., the President of the Court in that case, pointed out that the general principle dealing with this point was laid down as long ago as 1798 in Grindley v. Barker (17998)1 Bos. & P 229. In that case Eyre, CJ. approached the matter in this way. He said, at page 236 :
'........ I thought this question would turn on two general heads of inquiry. First, what the general rule of law was in the case of bodies of men entrusted with powers of this nature ; whether they must all concur, or whether the decision of the majority would bind the whole ? Secondly, suppose the latter to be the general rule, whether that general rule is to be controlled by the intent of the the legislature as collectd from the scope and provisions of this Act. With respect to the first question, I think it is now pretty well established, that where a number of persons are entrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole........' Approaching this case with that general principle in mind, it would appear that this is not a case purely of private interest being involved ; it no doubt is a matter of private concern between landlord and tenant, but it is quite clearly, under the scheme of the legislation, a matter of considerable public concern and public interest that fair rents should be fixed. Accordingly, this qualifies, as I see it for coming within the general principle."
11. Of Course, as far as the Board of Examiners are concerned, the question of quorum does not arise because all the examiners constituting the Board of Examiners shall have to be present and assess the total performance of the candidate/s. The Board of Examiners function to advance and safeguard the public interest. The public interest lies in maintaining the academic standard in the matter of conferment of degrees. There is no private interest involved in their function. They function, as per the policy of Law. The decision of the Board of Examiners as long as Regulalation No. 27.7 of the Regulations, stands as it is, can be arrived at either unanimously or on the basis of the opinion of the majority.
12. Now 1 will take up for consideration the decisions relied upon by Sri Shivshankar Bhat, learned Counsel appearing for the University. The decisions in Babua Lal Pardhan v. Badri Lal Pardhan & Anr., AIR 1919 Patna 74; Ayyaswami Mudaliar v. Appandai Nynan, AIR 1920 Madras 130; Nand Kishore v. Kishori Lal and Ors., AIR 1923 Oudh. 181, ware rendered under the Arbitration Act, 1899, which did not contain a provision as to the manner and mode of arriving at a decision in a reference made to three more arbitrators: whereas the Arbitration Act, 1940 contains a special provision in this regard [See : Section 10 of the Arbitration Act, 1940]. No doubt in the aforesaid three or decisions it was held that there being no provision in law for the prevalence of the view of the majority in the case of decision not being unanimous, the Awards passed on the basis of the majority view were bad.
In Ayyaswami Mudaliar's case, AIR 1920 Madras 130 it is held that an Award to be binding and enforceable must be signed by all the arbitrators concurring. Where an uneven number of arbitrators are appointed there is no presumption that the parties contract that a majority award shall be binding. In Nand Kishore's case, AIR 1923 Oudh. 181 also, it has been held that five arbitrators entered into the reference but the award was signed by only four of them; and it was found that the 5th man did not sign because he did not concur in the award; therefore, the award was held to be invalid. The decision in Babua Lal Pardhan's case, AIR 1919 Patna 74 is also to the same effect. In all these cases, there was no agreement between the parties who made reference to Arbitrators enabling them to decide on the basis of the majority opinion in the event of there being no unanimous decision. The law as it stood then, as it is already pointed out, also did not provide for the prevalence of the views of the majority of the arbitrators. Learned Counsel has also placed reliance on the decisions in Brain v. Minister of Pensions; Wilkes v. Minister of Pensions, (1974) 1 KB 625; and in Minister of Pensions v. Horsey, (1949) 2 KB 526. In both these decisions, the Court was concerned with the decisions of the Pensions Appellate Tribunal constituted under the Pensions Appellate Tribunals Act. 1943, which did not contain express provision for arriving at a decision on the pension claim on the basis of the opinion of the majority of the members of the persons Appellate Tribunal. Therefore, it is held in both the decisions that a Pension-: Appellate Tribunal can only reject a claim for pension if its Members are unanimous. In case of disagreement, the proper course is to refer the claim to another Tribunal. In the latter decision, it also further held that a Pensions Appellate Tribunal can only allow a claim under the Pensions Appellate Tribunal Act, 1943 if its members are unanimous. The decisions in these two cases are rendered on the basis of the overall effect of the provisions contained in the Statute (Pensions Appellate Tribunal Act). It is not possible to hold that the rule enunciated in these decisions applies to the present case.
As far as the former three decisions are concerned, they are based on the principle that in the matter of arbitration, the arbitrators derive power under the agreement between the parties. In other winds, they function on the confidence reposed in them by the parties to the arbitration proceeding. Therefore, in the absence of any provision in law governing the Arbitration proceeding and the agreement to enable the arbitrators to decide on the basis of the majority opinion in the event of there being no unanimous decision, the decision of the arbitrators shall have to be unanimous. As it is already pointed out, the Board of Examiners do not function on the basis of and pursuant to the confidence reposed in them by the examinees. Hence, the rule enunciated in the first time cases is not applicable to the present case.
13. Learned Counsel for the University has also placed reliance on a statement of law made at page 324 by Keeton in his book "The Law of Trusts" (8th edition) while dealing with Trustees Right of Indemnity or Contribution from a Co trustee, in the following words :
"The duty of trustees to act jointly has already been mentioned, and in order that the trust estate shall be bound, the agreement of the trustees must be unanimous, for there is no power in the majority to bind a minority, unless the trust instrument so declares or unless the trust is charitable."
In the interest of safeguarding the trust property, such a limitation is necessary ; but that principle cannot be applied to a case wherein the Board of Examiners as a public body have to discharge their public duties.
14. For the reasons stated above, the point is answered in favour of the petitioners.
15. Accordingly, these Writ Petitions are allowed. The communications dated 25-1-1986 produced as Annexures A and B are hereby quashed. Respondents 1 and 2 are directed to declare the petitioners to have passed the M.D.S. Part-II (Orthodontics) Examination held in December 1985, on or before 15th May, 1986.
16. Before parting with the case, it appears to me just and proper to make some observations which may, in future, be of some help for the smooth functioning of the Board of Examiners and may also help to make the assessment of each examiner to form an integral part of the decision of the Board of Examiners. The Regulations must fix the marks for passing, and for other divisions such as II, I and distinction. Each examiner constituting the Board of Examiners must award the marks to the candidate on taking into consideration the total performance of the candidate. The average of the marks allotted by all the examiners must be made the decision of the Board of Examiners. This will ensure the assessment of each of the examiners of the Board to form an integral part of the decision of the Board.