Patna High Court
Awadh Bihari Sinha, Dr. Naresh Prasad ... vs University Of Bihar And Ors. on 10 May, 1967
Equivalent citations: 1968(16)BLJR634
JUDGMENT R.L. Narasimham, C.J.
1. These three writ petitions were heard together as the main question involved in all of them is the validity of the order dated 15-9-1966 passed by the Chancellor of Bihar University in purported exercise of the power conferred on him by Section 8(4) of the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Act 1960, (Bihar Act XIV of 1960), (hereinafter referred to as the Act). The annexures referred to in this judgment are those filed in C.W.J.C. No. 654 of 1966.
2. The three petitioners had appeared for the M.S. degree in Ophthalmology of the Bihar University from the Darbhanga Medical College in October/November, 1965. They were examined by three examiners who in their reports (annexures IV, V and VI) dated 2-11-i 965 stated as follows:
Taking into account the performance of the candidate on the whole, we are of opinion that his performance was unsatisfactory and we recommend that he is unfit for the award of the degree of M.S. (The report about case of these petitioners was identical in terms.) The aforesaid report was placed before the rest Graduate Board of Moderators of Ophthalmology consisting of Dr. T.B. Gupta, Dean of Faculty of Medicine, Dr. S. Mishra and Dr. C.D. Sinha on 21-11-1965. Annexure VII shows that there was a difference of opinion amongst the members of the Board. Mr. Gupta reiterated his view that the results of the M.S. Degree Examination cannot be moderated by any other authority and that the performance of the aforesaid three candidates was not satisfactory. But the other two members, namely, Dr. S. Mishra and Dr. C.D. Sinha took the view that those candidates whose performance in viva voce test was not bad may be considered favourably and they may be declared to have passed. The Vice-Chancellor accepted the recommendation of the majority of the Moderating Board and declared these three petitioners to have passed the examination (Annexure A). The Principal of the Darbhanga Medical College also granted a certificate to that effect. The certificate is, however, admitted to be of a provisional nature pending the holding of the Conviction (see para 3 of the petition).
3. In the meantime, the attention of the Chancellor was invited to the alleged contravention of the provisions of the Regulation in declaring the three petitioners to be successful in the said examination. The Secretary of the Medical Council of India (Annexure III) also wrote a letter to the Chancellor on the 20th of December, 1965 requesting him to take immediate action in the matter saying that otherwise the Medical Council may be constrained to withdraw recognition of all the medical qualifications granted by the Bihar University. Thereupon, the Chancellor issued notice on the three petitioners to show cause why the degree granted to them may not be annulled and after hearing the cause shown by them and also hearing their advocate, namely Mr. Balbhadra Prasad Singh, passed the impugned order annulling the notification of the Vice-Chancellor declaring the petitioners to have passed the M.S. Examination.
4. Before dealing with the various legal questions involved, I may refer briefly to the statutory provisions dealing with the subject. The parent Act is Bihar Act XIV of 1960. Section 28 of the Act which refers to the Examination Board and its function may be quoted:
28(1) Subject to the provisions of the Regulations, all arrangements for the conduct of examination shall be made by an Examination Board consisting of the Vice Chancellor as Chairman and the Deans of Faculties as members.
(2) The Examination Board shall be responsible for conducting the examinations and making all arrangements for the appointment of examiners, settings and moderating question papers, moderating and preparing and publishing results of examinations and reporting such results to the academic Council and generally for formulating ways and means for the purpose of improving the machinery for the true assessment of the attainments of the students of the University.
The Academic Council is one of the authorities of the University (vide Section 16) and its main function is to make Regulations (Section 34) which amongst other things may provide for "the conditions and mode of appointment and duties of examiners and the conduct of examinations" (Clause 1 (d)). In exercise of this power the Academic Council has made Regulations which consist of twenty-three chapters. Chapter II deals with "general conditions of examinations". The other Chapters deal with special provisions regarding particular examinations and Chapter IX contains detailed provisions for M.D. and M.S. Examinations in Clinical subjects. This Chapter describes in detail the conditions for eligibility to take these examinations, the enrolment of candidates, their admission to the examination, conduct of the examination including the submission of thesis or commentary on at least 40 clinical cases, written examination, oral and practical tests and the final publication of the results of the examination. This chapter says "the examination shall be controlled by the Examination Board and shall be conducted by a Board of Examiners out of whom one shall be the internal and the other two the external examiners." It further says: "The candidate shall be declared successful only if all the three examiners unanimously recommend him for the award of the degree." It is admitted that the three examiners who conducted the M.S. Examination for the three petitioners unanimously declared that none of the petitioners was fit for the award of the M.S. degree. Prima facie, therefore, it will be very starting indeed for the University to declare these petitioners to have passed the M.S. Examination in utter disregard of the unanimous recommendation of the three examiners. This action was, however, sought to be justified under the provisions of Chapter II of the Regulations. Regulation 1(1) and 2(a) of that Chapter is as follows:
1(1) There shall be an Examination Board, as provided in Section 28 of the Act.
2(a) The Examination Board shall appoint a Board of Moderators for each subject of study for the Post-graduate classes consisting of not more than five members of whom two shall be external experts, Functions of the Board.
3(a) To recommend names of paper-setters and examiners to the Examination Board as required by the Board.
(b) To moderate question papers.
(c) To moderate examination results.
The Board of Moderators for the Post-Graduate course consisting of Doctors, T.B. Gupta, S. Mishra and C.D. Sinha was alleged to have (by a majority) exercised their power of moderating the results conferred by Regulation 1(3)(c) of Chapter 11 by recommending the award of the M.S. degree to these three petitioners notwithstanding the unanimous adverse report of the examiners.
5. The important legal questions which arise for consideration in these writ petitions are as follows:
(i) Are the powers of the Examination Board conferred by Sub-section (2) of Section 28 of the Act not subject to the Regulations made by the Academic Council, specially Chapter IX of the Regulations, so as to give the Examination Board an overriding power to ignore the report of the examiners ?
(2) Are the provisions of Chapter IX of the Regulations complete and self-contained in respect of M.D. and M, S. examinations so as to completely supersede the provisions of Chapter II ?
(3) Even if it be held that the provisions of Chapter IX do not wholly supersede Chapter II will those provisions expressly or by necessary implication override or supersede those provisions of Chapter II which are inconsistent with or repugnant to them ?
(4) Do the Regulations provide for the scrutiny of the report of the examiners by the Board of Moderators and can the Board of Moderators (either by majority or otherwise) declare as fit for award of M.S. degree, those candidates against whom the three examiners unanimously recommended that they were unfit ?
(5) Assuming that the Board of Moderators has got this overriding power, was the Board properly constituted in the present case ?
6. The Chancellor held that though the words "subject to the provisions of the Regulations" which occur in Sub-section (1) of Section 28 of the Act have not been repeated in Sub-section (2) of that Section, nevertheless both the sub-sections should be construed together and when so construed the powers of the Examination Board will be subject to the provisions of the Regulations and that the Board has no overriding power by virtue of the provisions of the Act. He further held that the special provisions of Chapter IX of the Regulations must be construed harmoniously with the general provisions contained in Chapter II of the said Regulations and when so construed the Board of Moderators has power to moderate the results declared by the three examiners. But he observed that the Board of Moderators was not validly constituted inasmuch as under Sub-clause (a) of Clause (2) of Regulation 1 of Chapter II, the Board of Moderators for post-graduate classes must consist of not more than five members of whom two shall be external experts. It was conceded between him and also not challenged before us that one of the two external experts appointed for the M.S. degree, namely, Dr. K.N. Udupa, Principal, College of Medical Sciences. Varanasi, declined to be a member of the Board and the other external expert, namely. Dr. R.V. Singh, Principal, K.G. Medical College, Lucknow, refused to accept the post. The Chancellor, therefore, thought that in the absence of two external examiners there could be no validly constituted Board of Moderators for the M.S. degree course and consequently the recommendation made by the majority of the Board consisting of Doctor T.B. Gupta, S. Mishra and C.D. Sinha was invalid. Hence he annulled the order of the Vice-Chancellor declaring the three petitioners to have passed the M.S. Examination.
7. I shall now deal with each of the aforesaid questions of law in turn. Section 28 has already been quoted. It is true that the opening words "subject to the provisions of the Regulations" occur only in Sub-section (1) and not in Sub-section (2). It was contended with considerable ingenuity by Mr. Balbhadra Pd. Singh that absence of these words in Sub-section (2) must be given proper significance and that though in making arrangements for the "conduct of the examination" the Examination Board is bound by the provisions of the Regulations, nevertheless in other matters, such as appointment of examiners, setting and moderating question papers and moderating and preparing and publishing results of examinations the power of the Examination Board conferred by Sub-section (2) was plenary uncontrolled by the Regulations made by the Academic Council. This argument was rightly rejected by the learned Chancellor. The words "all arrangements for the conduct of examinations" occurring in Sub-section (1) are wide enough to include the appointment of examiners, setting and moderating question papers, moderating and preparing and publishing results of examinations and all other matters referred to in greater detail in Sub-section (2). If these matters referred to in Sub-section (2) are excluded from the scope of Sub-section (1), it is difficult to imagine what will be the residuary arrangement for "conduct of examinations". The word "all" occurring in Sub-section (1) is of the widest amplitude. Though the drafting of the two sub-section is not happy, the reasonable construction is that the Legislature while briefly describing the functions of the Examination Board in Sub-section (1) and expressly stating that those functions are subject to the provisions of the Regulation, merely enumerated in detail those functions in Sub-section (2). No independent power is conferred by Sub-section (2). This will be clear if Section 34 which deals with the power of the Academic Council to make Regulations is carefully scrutinised. Clause (d) of Sub-section (1) of that Section confers power on the Academic Council to make Regulations for "the conditions and mode of appointment and duties of examiners and the conduct of examinations." If, as urged by Mr. Balbhadra Prasad Singh, the Examination Board has plenary-powers to make appointment of examiners even in contravention of the provisions of the Regulations by virtue of the parent power conferred by Sub-section (2) of Section 28 of the Act the power conferred on the Academic Council by Clause (d) of Sub-section (1) of Section 34 can be rendered practically infructuous. There should be harmonious construction of Sections 28 and 34 of the Act and on, such a construction it must be held that the powers of the Examination Board "to conduct examinations" including the power to appoint examiners, moderate question papers and prepare and publish results of examination and other matters enumerated in Sub-section (2) are all subject to the regulations made by the Academic Council. The Examination Board cannot, therefore, claim a higher power than that conferred on them by the Regulations as regards moderation of the results of the examination.
8. Questions 2 and 3 may be dealt with together. There is no doubt that Chapter IX of the Regulations is a special provision dealing with M.D. and M.S. Examination, whereas Chapter II (as the heading itself indicates) is a general provision dealing with all examinations. On the well known principle of statutory construction the special provisions of Chapter IX must override the general provisions of Chapter II where there is a conflict or inconsistency between the two. Though Chapter IX is fairly exhaustive and deals with most of the matters connected with the holding of the M.D. and M.S. Examinations, nevertheless I find that there are general provisions in Chapter II which have not been repeated in Chapter IX. For instance, Regulation 4 of Chapter II deals with the secrecy of the names of the examiners. As this provision has not been repeated in Chapter IX it may be urged with some justification that the principle laid down in Regulation 4 would equally apply. Similarly, " Regulations 7, 8, 9, 10, 13, 14, 15 and 16 and some other Regulations of Chapter II may also apply to M, D. and M.S. Examinations as there are no corresponding provisions in Chapter IX. Hence I would agree with the learned Chancellor that Chapter IX and Chapter II must be harmoniously construed and where there is no inconsistency or repugnancy, the general provisions of Chapter II may also be applicable for M.D. and M.S. Examination. But the special provisions of Chapter IX must also be given due weight and where there is inconsistency between the two chapters, the special provisions munt prevail.
9. In Chapter IX there is no reference either directly or indirectly to a Board of Moderators. It only says that the examination for the M.D. and M.S. course shall be controlled by the Examination Board and shall be conducted by a Board of Examiners out of whom one shall be the internal and the other two the external examiners. It will be noticed that the mandatory requirement of Regulation 1(2)(a) of Chapter II that in the Board of Moderators for Post-graduate courses two shall be external experts is repeated in Chapter IX. Chapter IX further says that "the candidate shall be declared successful only if all the three examiners unanimously recommend him for the award of the degree. The words 'only' 'all' "unanimously" in this Regulation have been used deliberately with a view to emphasise the fact that this requirement cannot be relaxed or moderated by any other authority. Apparently, the makers of the Regulations were fully aware of the importance of maintaining a very high standard of proficiency for such high degree as M.D. and M.S. and provided for this extremely rigorous test. It seems to me to be also inconsistent with the scheme of Chapter IX to superimpose a Board of Moderators over the examiners and to hold that notwithstanding the unanimous declaration by the examiners that a candidate is unfit to be given the M.S. degree, the Board of Moderators may (either unanimously or by a majority) by virtue of the general powers conferred by Regulation 1(3)(c) of Chapter II practically ignore the unanimous report of the examiners. The rule which is prescribed in Chapter IX must be strictly adhered to and hence it must be held as a matter of construction that there can be no Board of Moderators for M.D. and M.S. Examinations.
10. As regards the publication of the M.D. and M.S. results also, there is inconsistency between Chapter IX and Chapter II. Chapter IX says "As soon as possible after the examination the Academic Council on receipt of the results from the Examination Board, shall publish a list of the successful candidate arranged in alphabetical order". But Regulation 18 of Chapter II says, "The Examination Board shall moderate, prepare and publish the results of the University Examinations and will report these results to Academic Council with such remarks and suggestions as it may like to offer". Thus, while in Regulation 18 of Chapter II the Examination Board publishes the results and merely reports the same to the Academic Council, Chapter IX says that the results of M.D. and M.S. Examinations shall be published by the Academic Council on receipt of the same from the Examination Board who would receive the same from the three examiners. There is no provision in Chapter IX conferring power on the Examination Board to moderate the results as declared by the three examiners.
11. Hence I would respectfully differ from the view taken by the learned Chancellor and hold that for M.D. and M.S. Examinations there can be no Board of Moderators under Chapter II, nor has the Board of Examiners any overriding power to moderate the results. The publication of the results of these examinations can only be made by the Academic Council. I think the view taken by Dr. T.B. Gupta, the Dean of the Faculty of Medicine (Annexure VII) is correct. This answers point No. 4 also formulated in paragraph 5 of this judgment.
12. This decision is sufficient for the final disposal of these three writ petitions. But as this is not a final Court in these matters, I may give my views on question No. 5 also. As regards question No. 5, I would agree with the Chancellor. The requirement in Sub-clause (a) of Clause (2) of Regulation 1 of Chapter II that of the Board of Moderators two shall be external experts is mandatory and admits of no exception whatsoever. Hence if a Board of Moderators is constituted without two external experts, that Board will not be a legally constituted Board of Moderators. A copy of the minutes of the Examination Board dated 15th December, 1964 was filed before us which shows that on 15-1-1965 the Vice-Chancellor approved the following resolution for formation of Board Moderators for M.D. and M.S. examinations:
Resolved that each Board of Moderators for M.D. and M.S. examinations, in which students are specialised, should consist of two external experts and three internal teachers-2 seniormost teachers of the department and one from among the other members of the department by rotation according to seniority for a period of one year each. The recommendation of this Board should be submitted to the University for consideration by the Examination Board, through the Dean of the Faculty of Medicine.
This is the only resolution that has been filed before us and it was also referred to before the Chancellor regarding the constitution of the Board of Moderators. It will be noticed that this is of a general nature and does not refer to the appointment of a particular person as a member of the Board. The Chancellor's order shows that the post was offered to two external experts, namely, Dr. K.N. Udupa of Varanasi and Dr. R.V. Singh of Luck-now, but both refused to accept the post. Hence the other three members of the Board, namely, Dr. T.B. Gupta, S. Mishra and C.D. Sinha, who are admittedly internal examiners, could not by themselves constitute a valid Board of Moderators. It was, however, urged relying on Section 54 of the Act that the proceeding of the Board of Moderators should not be declared invalid merely because there were two vacancies of external experts. This argument is quite futile. If after the acceptance of the offer by the two external experts and their functioning in some of the meetings of the Board vacancies arose, Section 54 of the Act may be resorted to provided that it can be held that the Board of Moderators is either an "authority or other body" of the University. It is not necessary to decide this question because on the admitted facts there was no initial constitution of the Board of Moderators due to the non-filling of the two posts external experts. Where there is an initial invalidity in the constitution of the Board itself, Section 54 of the Act cannot cure the defect. I would, therefore leave open the further question as to whether the Board of Moderators is an "authority or other body" of the University for the purpose of Section 54. The same reasons will apply for rejection of the argument based on the requirement for the quorum as provided in Sub-clause (d) of Clause (4) of Regulation 1 of Chapter II.
13. My conclusions are therefore, as follows:-In disagreement with the Chancellor I hold that the special provisions of Chapter IX will override the general provisions of Chapter II of the Regulations in respect of matters expressly mentioned therein and there can be no Board of Moderators for M.D. and M.S. Examinations. Similarly, the Examination Board also has no jurisdiction to declare a candidate to have passed when the examiners unanimously declared to be unfit to pass the examination. Alternatively, even if the Board of Moderators be held to have the power of overriding the unanimous recommendation of the examiners, it must be held that there was no validly constituted Board of Moderators for the M.D. and M.S. Examinations for the year in question. Hence in declaring the three petitioners to have passed the M.S. Examination, the Board of Examiners and the Vice Chancellor acted in contravention of the statutory provisions and their decision was rightly annulled by the Chancellor. The three petitions are, therefore, dismissed with costs. Hearing fee: Rs. 100/- payable in each of the three petitions by the petitioner to respondent No. 1.
U.N. Sinha, J.
14. I agree.