Bombay High Court
Santosh A. Chavan, Nagesh S. Tour, ... vs The State Of Maharashtra Through ... on 26 February, 2003
Equivalent citations: 2003(3)BOMCR10
Author: D.Y. Chandrachud
Bench: C.K. Thakker, D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, Mr. P.M. Patil, Assistant Government Pleader, appears and waives service of rule on behalf of Respondent No. 1. Mr. R.G. Ketkar appears and waives service of rule on behalf of Respondent No. 2.
2. In these proceedings, the Petitioners are students of the Solapur College of Pharmacy, Solapur, which is affiliated to the Shivaji University. The Petitioners appeared for the First, Second and Third year examinations, as the case may be, of the Pharmacy Course in April 2002. The results were declared on 2nd July, 2002. The Petitioners are declared to have failed in respective examinations for which they appeared.
3. The Petitioners contend that the percentage of successful students in the Pharmacy and Engineering examinations of Shivaji University was comparatively less in relation to earlier years and accordingly, a circular was issued by the University on 2nd September, 2002. A perusal of the circular on which the Petitioners rely would show that ex facie, the circular does not apply to the students of the Pharmacy course but, that it only applies to students of the Engineering Degree examinations. According to the Petitioners, both the degree course in Pharmacy and the degree course for Engineering "are similar in the sense both have the same duration of four years and both come under the purview of Directorate of Technical Education, Maharashtra State and the rules for post graduation examination for both the faculties are same". The Petitioners claim that they have been discriminated against, in that benefits which were granted to the students of the engineering faculty of the same University have been denied to the Petitioners who are students of the Pharmacy course. The relief which has been prayed for is a writ of mandamus directing the University to grant the benefit of grace marks under the circular dated 2nd September, 2002 to the Petitioners and to other Pharmacy students.
4. An affidavit in reply has been filed on behalf of the Second Respondent, Shivaji University in these proceedings. The University has stated that the Petition proceeds on the erroneous premise that the benefit of the circular dated 2nd September, 2002 was extended to all students pursing technical education whereas, as a matter of fact the benefit thereof was extended only to students of the Engineering faculty. The University has in its affidavit stated that on representations received from students, it had been observed that in the faculty of Engineering (i) many students had lost one academic year due to their obtaining 37, 38 and 39 marks out of 1000, the minimum pass marking being 40; (ii) the percentage of passing in certain subjects was very low; (iii) marks were give only in a particular range by the examiners and (iv) the introduction of the moderating system had led to confusion among students. Accordingly, the Board of Examinations passed a resolution on 27th August, 2002, as a result of which, it was resolved that as a special case, students of the Engineering faculty who had appeared for the April/May 2002 examination, may be given the benefit of grace marks. The Board of Examinations, it has been stated had rejected the request of extending the same concession to the Pharmacy students.
5. We have heard the learned counsel appearing on behalf of the Petitioners and the learned counsel appearing on behalf of the Second Respondent University.
6. Ordinance 94 of the Ordinances of the Shivaji University provides for the award of grace marks for passing in each head of passing. The Ordinance as it originally stood is in the following terms:
Existing Ordinance O.94 U.O.01 : Grace Marks for passing in each head of passing (Theory/ Practical/ Oral/ Sessional) (External/ Internal) The examinee shall be given the benefit of grace marks only for passing in each head of passing (Theory/ Practical/ Oral/ Sessional) in External or Internal Examination as follows:
Head of Passing Grace Marks upto
----------------- -----------------
Upto - 50 02 051 - 100 03 101 - 150 04 151 - 200 05 201 - 250 06 251 - 300 07 301 - 350 08 351 - 400 09 and 401 and above 10
Provided that the benefit of such gracing marks given in different heads of passing shall not exceed 1% of the aggregate marks in that examination.
Provided further that the benefit of gracing of marks under this ordinance, shall be applicable only if the candidate passes the entire examination of semester/year.
Provided further that this gracing is concurrent with the rules and guidelines of professional statutory bodies at the All India Level such as AICTE, MCI, Bar Council, CCIM, CCIH, NCTE, UGC etc."
7. The University by an amendment proposed to the Ordinance sought to delete the second proviso thereto under which the benefit of grace marks is to be applicable only if the candidate passes the entire examination of the semester/year. The Court has been informed that a resolution to that effect was passed by the Board of Examinations on 27th August, 2002. The academic council passed its resolution on 9th October, 2002 while the management council approved the amendment on 22nd October, 2002. On 31st October, 2002, the amendment was forwarded to the Chancellor of the Shivaji University. The forwarding letter to the Chancellor records that the amendment Ordinance is to be implemented with effect from the examination held in October/November 2002.
8. Section 54(4) of the Maharashtra Universities Act, 1994 provides as follows:
"All Ordinance made by the Management Council shall have effect from such date as it may direct, but every Ordinance so made shall be submitted to the Chancellor within two weeks. The Chancellor shall have the power to direct the Management Council, within four weeks of the receipt of the Ordinance, to suspend its operation, and he shall as soon as possible, inform the Management Council, of his objection to it. He may, after receiving the comments of the Management Council, either withdraw the order suspending the Ordinance or disallow the Ordinance, and his decision shall be final."
9. A perusal of the aforesaid provision would show that an Ordinance has effect from such date as the Management Council may direct. Every Ordinance has to be submitted to the Chancellor within two weeks. The Chancellor has the power to suspend the operation of the Ordinance and after communicating his objections, if any to the Management Council and receiving its comments, either withdraw the order of suspension or disallow the Ordinance. Now in the present case, the amended Ordinance admittedly applies with effect from the examinations which were held in October/November 2002. The benefit of the Ordinance cannot obviously be extended to the Petitioners, who appeared for the examination in Pharmacy in April 2002. The Board of Examinations made a limited exception in the case of the Engineering degree students by conferring certain concessions on them for the examinations which were held in April/May 2002. It is not possible to accept the contention of the Petitioners that the same benefit should be extended to them. The University has furnished reasons why the concession was granted only to the students of the Engineering faculty for the examinations held in April/May 2002. In the exercise of the power of judicial review, it would not be appropriate for this Court either to sit in judgment over the decision of the University in the matter of extending the said benefit only to the students of the Engineering faculty or to direct that the same benefit should be extended to the Pharmacy students. The reasons which have been furnished by the University in its affidavit cannot be regarded as extraneous to the exercise of its powers, as an expert academic body. The amended Ordinance, it is undisputed, takes effect from the examinations held in October/November, 2002. In the circumstances, the prayer which has been made on behalf of the Petitioners cannot be accepted. The Writ Petition is accordingly rejected.
In the circumstances, however, there shall be no order as to costs.