Karnataka High Court
M. Ajay Babu And Others vs Rajiv Gandhi University Of Health ... on 13 March, 1998
Equivalent citations: AIR1998KANT255, ILR1998KAR2035, 1998(3)KARLJ436, AIR 1998 KARNATAKA 255, (1998) ILR (KANT) 2035 (1998) 3 KANT LJ 436, (1998) 3 KANT LJ 436
Bench: Ashok Bhan, Mohamed Anwar
JUDGMENT
1. As these appeals required urgent hearing, they are taken up for final disposal at the admission stage with consent of both sides.
2. Appellants were the petitioners in W.P. Nos. 564 to 688 of 1998, who have filed these appeals against the order dated 27-1-1998 of the learned Single Judge passed dismissing their petitions.
3. Appellants were students of second respondent-Sharavathi Dental College, Shimoga. They were admitted in this college for the academic year 1996-97 to four year Bachelor of Dental Sciences Course ('BDS course' for short). On completing their first year study of the said course and on satisfying the required criteria they were allowed to take the first year BDS examination conducted in September 1996-97 by respondent 1-Rajiv Gandhi University of Health Sciences, Bangalore (the 'University' for short). The results were announced by the University declaring them failed, since they were found to have failed in one or more subjects of their examination when the marks secured by them in each of the examination paper, according to the University, computed in terms of the relevant provisions of the "Scheme of Examination" adopted by the University in exercise of its powers under Section 62 of the Rajiv Gandhi University of Health Sciences Act, 1994 ('the RGUHS Act' for short). This 'Scheme of Examination' is said to be the part of the Regulations titled "BDS New Regulations" framed by the University which provide for "Length of Course, Attendance Requirements, Progress and Conduct, Hours of Instructions Work, Titles of Papers/Practicals Offered for the Course, etc. Syllabus-Titles of Papers/Practicals Offered in the Course, etc.". Scheme of Examination, Distribution of Marks, Method of Examination and Results, etc."
4. Being aggrieved by the result announced by the University declaring them as failed, the appellants challenged the same in W.P. Nos. 654 to 688 of 1998 on the grounds that the computation made by the University of their marks secured in each paper under their subjects of examination in which they are shown to have failed was based on the wrong understanding and misinterpretation of the relevant clauses of the 'Scheme of Examination'; that they were illegally deprived by the University of the benefits of grace marks and the facility of re-totalling and revaluation of examination papers which benefits were available to them under the Regulations of Kuvempu University to which their college was affiliated before it came to be affiliated with respondent-University. It was further averred in the petitions that the said 'New BDS Regulations' adopted by the University were beyond the scope of the RGUHS Act by which respondent-University was established and came into existence on and with effect from 1-6-1996; and also that these Regulations being silent as regards the provisions for grace marks, retotalling and revaluation, the Regulations of the Kuvempu University in respect thereof continued to apply to their college till such time as the relevant Statutes, Ordinances and Rules are made under appropriate provisions of the RGUHS Act as contemplated under Section 62 thereof. Therefore, they prayed for the following reliefs in their writ petitions:
"(A) Issue a writ of declaration declaring that the declaration of results of petitioners, as having failed in the subjects where they have secured more than 50% of total marks for theory and Viva Voce examinations and internal assessment combined together and examinations and internal assessment combined together in each of the examination subjects, as illegal and erroneous and further be pleased to direct the respondent-University to correct the declaration of results, taking into consideration the securing of 50 per cent marks in each of the groups and declare them as passed and further be pleased to declare that the requirement under Clause 1(a) of securing a minimum of 50% for a pass is for all University conducted examinations together and not under each of the heads;
(B) Issue a writ of declaration, declaring that the petitioners are entitled to the award of grace marks as provided under the Regulations of Kuvempu University to which University the petitioner" college was affiliated prior to the coming into force of the Act, and issue an appropriate writ, directing respondent University to consider and grant necessary gracing at the University conducted examination and to declare the results of the petitioners;
(C) Issue a writ of declaration or any other appropriate writ, declaring that the petitioners are also entitled to consideration of their request for retotalling and revaluation and direct the respondent-University to provide for retotalling and revaluation taking into consideration the provision for retotalling and revaluation as provided under the Kuvempu University by the Regulations prior to the coming into force of the Act and petitioner' college being affiliated to respondent University by virtue of the provision of Section 5 of the Act;
(D) Issue a writ or mandamus or appropriate direction directing respondent University to consider the request of petitioners and grant them necessary declaration of pass on reconsideration and declaration of their results".
5. The statement of objections for respondent No. 1 was filed opposing the petitions and asserting that the method of computation of the marks scored in examination subjects by each of the petitioner in the first BDS examination adopted to declare their result was strictly according to the relevant provisions viz., Clauses (1) and l(a) under the sub-heading "RESULTS" contained in the said Scheme of Examination and, therefore, they are legally correct and do not call for any interference.
6. On the basis of averments and rival contentions of both parties the following three" material questions were raised for determination by the learned Single Judge.
"1. Whether it is sufficient for a candidate to secure Minimum 50% marks in aggregate in Part A and Part B examination subjects or is it a must for them to secure minimum 50% marks in each of the University conducted examination for a pass in the First year BDS course?
2. Whether a candidate can seek awarding of Grace Marks in the examination and further ask for revaluation and retotalling of answer scripts on the sole ground that it is prevalent in other Universities and the same is not yet framed by Rajiv Gandhi University?
3. Whether this Court can direct the University to frame regulations providing Gracing marks in the examination and provisions for providing revaluation and retotalling of answer scripts in the absence of such provision in the statute?"
7. On consideration of the relevant provisions in the Scheme of Examination as also the provisions under Section 62 of the RGUHS Act the learned Judge arrived at his negative conclusions on all the aforestated questions and thus they are answered by him in the negative. As a result he passed the impugned judgment dismissing the petitions.
8. We have heard the arguments of learned counsel for both parties.
9. At this stage it is pertinent to observe and note that Mr. Madhusudan Naik, learned Counsel for appellants, submitted that for the purposes of these appeals he does not press for our consideration the challenge to the negative findings of the learned Single Judge recorded on the above stated question Nos. 2 and 3.
10. Therefore, we are now called upon to examine the validity or otherwise of the negative finding of the learned Judge on the aforestated question No. 1 only.
10a. It is not in dispute that respondent 2, Dental College was earlier affiliated to Kuvempu University. On coming into force of the RGUHS Act, 1994 the said College came to be admitted to the privileges of or affiliated to the respondent University. Section 62 of this Act provides for continuance of the applicability of the Statutes, Ordinances, Regulations and Rules made under the Karnataka State University Act, 1976 ('the Act of 1976' for short) and in force immediately before the commencement of the RGUHS Act, subject to such adaptation or modifications as may be made therein by the Vice-Chancellor with the approval of the Chancellor obtained through the Government in so far as they are not inconsistent with the provisions of the Act. The said 'New BDS Regulations' are framed by the Vice-Chancellor of respondent-University in exercise of his powers reserved in Section 62 of the RGUHS Act. These Regulations contain the said 'Scheme of Examinations' for the BDS students of all the Dental Colleges in the State of Karnataka that are affiliated to respondent University.
11. For correct appreciation of the controversy in question it is necessary to advert to and keep in mind the relevant provisions of the said scheme of examination and in particular most material Clauses 1 and 1(a) under the head "RESULTS" contained in the said scheme. In this behalf suffice it for us to confine our attention to the subjects prescribed for first year BDS examination and the relevant provisions relating to distribution of marks, methods of examination and results contained in the said scheme. It is evident from the scheme that the whole BDS course is spread over a period of four years and it is divided into 5 professional examinations-First BDS examination to be conducted at the end of the first academic year. The following three subjects are prescribed for first year BDS examination:
1. General Human Anatomy including Embryology and Histology.
2. General Human Physiology and Bio-chemistry.
3. Dental Materials.
The provisions for distribution of marks, methods of examination and results are spelt out thus at Clause II of the Scheme:
"II. Distribution of marks, method of examination and results:
(A)(i) Theory (written) paper consists of Section 'A' and Section 'B'. Each Section consists of the following type of questions ....."
Then there are certain number of notes appended to this Clause II(A) under the heading 'NOTE'. Under this head sub-note (iv) indicates that "Theory (written) paper will be of 3 hours duration and practicaVclinical examination shall not exceed three hours as a routine", and Note 2(v) states that 'Internal assessment marks are as given in the scheme of examination'.
12. As per Clause II(B) each subject from first year to third year will have a maximum of 200 marks and their distribution is as per the following table:
TABLE Theory and Orals Practieals/Clinicals University paper Viva Internal Assessment Total University Internal Assessment Total Grand Total I.B.D.S Human Anatomy including Embryology and Histology 70 20 10 100 90 10 100 200 Human Physiology and Bio-chemistry 70 20 10 100 90 10 100 200 Dental Materials 70 20 10 100 90 10 100 200
13. Now let us turn to the breakup of marks under the Scheme of Examination for each of the three subjects of first year BDS as indicated in the said tabular form. It was submitted at the bar that there is no subject in 'Clinicals' in the category of practicals for first year BDS course. Therefore, the practical subject 'Clinicals' shown at the right hand side box therein is not relevant and does not call for any consideration. Then, as shown in the tabular form, we find each examination subject divided into two portions. They are: 1. "THEORY AND ORALS" with total maximum marks of 100 and 2. 'PRACTICALS' with maximum 100 marks. For easy reference each of these two parts may be denoted with capital letters "A" and "B", respectively. "A part" is further sub-divided into three segments which are (i) "University Paper" with maximum 70 marks; (ii) "Viva" with maximum 20 marks, and (iii) "Internal Assessment" carrying maximum 10 marks, the sum-total of maximum marks of all these segments is 100. Each of these three segments could be specified as A(a), A(b) and A(c), respectively. Similarly, "B part PRACTICALS" is shown sub-divided into two examinations-(i) "University" and (ii) "Internal Assessment". Each of these two sub-parts could be referred with letters "B(d)" and "B(e)" respectively. Maximum of 90 marks are earmarked for "B(d)" and maximum 10 marks for "B(e)". Thus the grand total of 200 max. Marks for Parts A and B of each subject stands distributed.
14. The distribution of marks for each of the examination papers under the three said subjects of the first BDS course as given in the tabular form extracted above is shown reflected in the prescribed 'Statement of Marks' of first year BDS examination-1977, the whole proforma whereof could be seen from the 'Statement of Marks' of one of the appellants named Ajay Babu is reproduced below:
TABLE STATEMENT OF MARKS IST YEAR BDS EXAMINATION-SEPTEMPER 1997 Register Number : 96D4401 Sl. No. SK 001194 Name of the Student : AJAY BABU M. Subjects Theory Theory Viva & IA Practical clinical Grand Total Remarks Max.
Sec.
Max.
Sec.
Max.
Sec.
Max.
Sec.
Human Anatomy including Embryology and Histology 070 042 100 057 100 074 0200 0141 Pass Human Physiology and Bio-chemistry 070 032 100 052 100 060 0200 0112 Fail Dental Materials 070 039 100 060 100 070 0200 0130 Pass Grand Total 210 113 300 179 300 204 0600 0383 Fail Min.
to Pass: 50% in University Theory, 50% in Theory Aggregate, 50% in University Practical and 50% in Practical Aggregate.
Total marks obtained (in words) :
Three Hundred Eighty Three.
Name of the college :
Sharavathi Dental College, Shimoga.
Name and Signature of verifier :
Sd/-
Dated :
03/11/1997 Registrar (Evaluation) The material Clauses 1 and l(a) pertaining to the "RESULTS" in the said scheme of examination are as reproduced below:
"1. A candidate shall be declared to have passed the Examination if he secures not less than 50% of the total marks for theory and Viva Voce 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.
1(a) For University conducted examinations for Theory/Practical/Clinical/Viva Voce the minimum marks shall be 50% for a pass."
15. It is an undisputed fact that the examination of theory and viva shown with letters A(a) and A(b), and the examination in practicals shown as B(d) are conducted by the University and, therefore, they are 'University conducted examinations' within the meaning of said Clause 1(a). As per said Clause 1 thereof which is excerpted above, for a student to pass in each subject of examination the marks secured by him in the papers of "theory" and "Viva Voce" examinations and "internal assessment" combined together i.e. A(a)+A(b)+A(c) must not be less than 50% of the maximum marks of 100; and likewise the marks secured by him in "practical and internal assessment" combined together i.e., B(d)+B(e) must also be not less than 50% of maximum marks 100. In other words, out of maximum 100 marks for Part A the aggregate marks obtained by a student for A(a)+A(b)+A(c) together must be 50 and above. So also out of 100 marks for Part B, the marks obtained by a student in papers B(d)+B(e) together should be 50 and above. There is no dispute whatever about this requirement of the score of marks by a student of I BDS in each of the said three subjects to fulfill the test of Clause 1 of the RESULTS.
16. But, it is Clause l(a) thereof which is the bone of contention and the entire controversy between the parties centres around it. The case of respondent University is that for a student to pass by fulfilling the requirement of this clause, he has to secure 50% of the maximum marks separately in each of the University conducted examination for 1. A(a) (Theory), 2. A(b) and 3. B(d); apart from satisfying the requirement of Clause 1 by securing 50% marks of the maximum 100 marks in each part A and Part B examinations. Mr. Nazeer Ahmed, learned Counsel representing respondent-University submitted that the computation of the marks secured by each student of I B.D.S. is made on this basis by the respondent-University to meet the requirement of Clause 1(a) in respect of the University conducted examination papers viz., A(a), A(b) and B(d), for the purpose of their examination results.
17. Mr. Madhusudhan Naik, appellants' Counsel, refuting the contention of Nazeer argued that the analysis of Clause 1(a) of the 'RESULTS' would clearly go to show that for a student to pass in terms thereof he/she should obtain 50% of the maximum marks in the University conducted examination papers A(a), A(b) and B(d) combined together' and not 50% of the maximum marks in each of these papers individually as maintained by the learned counsel for respondent University. To elucidate his argument he invited our attention to the marks secured by appellant-Ajay Babu M. in the subject "Human Physiology and Bio-chemistry" as recorded in his "Statement of Marks" issued by the respondent University. His submission was that in the said examination subject Ajay Babu is shown as failed adopting the incorrect method of calculation of percentage of the marks secured by him in each of the said University conducted examination papers pertaining to the the said subject. Out of the maximum marks of 70 for University conducted Theory examination, Ajay Babu has secured 32 marks which is less than 50% thereof-which comes to 35 marks. Therefore he is failed in the said subject when his score in all other sub-divided branches of the subject is more than 50% of the respective max. marks therefor, since per University a student to pass the examination in a subject he must, under Clause l(a), secure minimum 50% marks in each University conducted examination paper. Mr. M. Naik's contention was that the declaration of result of Ajay Babu in that subject as "fail" is illegal, because the requirement of Clause l(a) to pass is the securing of minimum 50% marks in both 'Theory and Viva' (University conducted examination papers) together and not 50% min. marks in each of these subjects, which requisite percentage of marks is secured by Ajay Babu in the said examination subject.
18. It is shown in his statement of marks that out of maximum 100 marks for Part A of the subject comprising A(a), A(b) and A(c) (Theory, Viva and LA.) Ajay Babu has secured 52 marks. We do not find separate columns in the prescribed 'statements of marks' providing for explicit recording and mention of the marks secured by a student for 'viva voce' out of 20 marks reserved for it; and his score out of 10 marks of A(c) i.e., internal assessment. But, from the two figures of marks "32 and 52" shown as secured by Ajay Babu out of 70 marks of theory, and out of total maximum marks 100 of Part A of the examination papers of the subject, respectively; it becomes clear that of the said total 52 marks secured by him 20 marks are his score for "University conducted Viva and College conducted Internal Assessment". Similarly, for "Part B" of the subject he is shown to have secured 60% marks in Part B 'practical' examination out of "maximum 100". We have seen above from the scheme of distribution of max. 200 marks for each subject that 'maximum 100' marks are reserved for Part B of the subject, which consists of 'University conducted Practical' and 'College conducted Internal Assessment' -- the maximum marks earmarked for each of these sub-divided branches being '90' and '10' respectively. Curiously, in the 'statement of marks' issued by the University no column is provided for disclosing the student's score in 'Internal Assessment' of Part B division of the subject. On the other hand whole of the maximum of 100 marks of 'Part B' is shown as for "Practical examination" only whereas as per the scheme of examination only 90 marks are the maximum marks for "Practicals", and ten are maximum marks set apart for internal Assessment the mention of which is omitted from the "Statement of Marks". This is a serious lacuna in computation made by the respondent University of the marks secured by a student in the subject in which he is shown as failed. This infirmity seriously reflects on the credibility of the result of the appellants in respect of failed subjects announced by the University.
19. However, the total score of Ajay Babu for the maximum of 200 marks for the said entire subject is 112. This score is more than 50% of the total maximum of 200 marks. Be that as it may.
20. Dealing with the rival contentions of both sides in the light of said Clauses 1 and 1(a), learned single Judge recorded his negative finding on the said material question No. 1, holding:
".....an harmonious construction of these clauses would clearly indicate that it is not mere 50% in subject Part A and Part B is sufficient for a candidate to get his results declared as passed in 1st year BDS examination along with it, he has to secure minimum 50% marks in each of the University conducted examination" (vide para 18). On the basis of this conclusion the petitions were dismissed by him.
21. Mr. Madhusudhan Naik, reiterating his contentions seriously assailed the correctness of the above conclusion of the Single Judge. He maintained that the reading of the learned Judge of the words "in each of" in construction of Clause 1(a) is contextually impermissible and not warranted and it is the import of these words which has lead to misconstruction of the said clause which vitiates its interpretation as made by the learned Judge. His point of contention is that the import of the words "in each of in construction of Clause 1(a) is repugnant to the intent and purport of the words "combined together" occurring in Clause 1. He argued that Clause l(a) does not require a student to secure 50% of the marks out of the maximum marks assigned to 'each' University conducted examination viz, in papers A(a), A(b) and B(d) separately. But, he argued that, the requirement of this clause for a student to pass is that he should obtain 50% of the marks of the total maximum marks for the said papers i.e., "A(a)+A(b)+B(d) combined together", in addition to fulfilling the requirement of Clause 1. He submitted that when the marks secured by appellants in the subjects in which they are shown as failed in the respective statement of marks, produced with the memorandum of appeal, we find most of them having fulfilled the test of Clause 1(a) and therefore, they will have to be declared "passed". Stretching his argument he submitted that in case of Ajay Babu his total score in the university conducted examination comes to 92 out of total maximum marks of 180 viz., A(a)+A(b)=90 marks, leaving out the maximum marks of 10 for internal assessment in Part A; and B(a)=90 leaving out maximum 10 marks of internal assessment -- assuming that marks on this count were allotted to him. Then his total score in all the three University conducted examination papers of the subject combined together being 92 he passes in that subject. So arguing Mr. Madhusudan Naik maintained that Ajay Babu is entitled to be declared pass in the subject in terms of Clause 1 and 1(a) of the RESULTS but he is wrongly shown in his statement of marks as 'failed'.
22. Mr. Nazeer representing respondent University, reiterating his aforementioned contentions, argued in support of the impugned order of the learned Judge repelling the contentions of Mr. Madhusudhan Naik.
23. On our careful examination of the Scheme of Examination of respondent University we find considerable force in the contentions of Mr. Madhusudhan Naik though they cannot be accepted in totality. In the context of the scheme of the division and sub-division of various subjects of first BDS examination and the distribution of marks to each of them out of maximum 200 marks for each subject we find that the words 'in each of do not admit of being imparted into the plain language of relevant Clauses 1 and 1(a) of the RESULTS in the scheme of examination as rightly highlighted by Mr. Madhusudan Naik. It is necessary to quote here the said Clauses 1 and 1(a) at the cost of repetition for clear understanding thereof and the same are:
"1. A candidate shall be declared to have passed the Examination if he secures not less than 50% of the total marks for theory and Viva Voce 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.
1(a). For University conducted examinations for Theory/Practical/Clinical/Viva Voce the minimum marks shall be 50% for a pass".
Both these clauses read together in the context of other relevant provisions of the 'Scheme of Examination' bring this clear position to the fore that for a student to pass in any of the examination subjects of BDS Course it is not required of him that he must secure 50% of the maximum marks in each of the University conducted examination papers viz, A(a)-Theory, and A(b)-Viva Voce, and B(d) Practical; as was, maintained by the learned counsel for respondent University, but it is enough if he secures not less than 50% of the total marks for Theory and Viva Voce examination papers; and Internal Assessment all combined together on the one hand, and 50% of the total marks in Practical/Clinical Examinations and Internal Assessment combined together on the other hand in each of the examination subject for the purpose of said Clause 1, and that in the case of University conducted examinations for the purpose of said Clause 1(a) he has to secure minimum 50% of the total marks for Theory + Viva Voce' together on the one hand, and 50% of the maximum on Practical on the other, in that particular subject. This requirement of the minimum marks and the mode of its computation for a student to pass is also indicated at the foot of the prescribed 'statement of marks' stating "Min. to pass : 50% in University Theory, 50% in Theory aggregate, 50% in University Practical and 50% in Practical aggregate". This is the real test for the score of marks in each of the examination subjects for a student to pass as laid down by Clauses 1 and 1(a) of the RESULTS.
24. Let us now apply this test to the case of Mr. Ajay Babu. In the said subject "Human Physiology Bio-chemistry" he has secured in total 112 marks for the maximum of 200 marks which exceeds 50% thereof. He is shown to have secured 52% of the marks for Part A of the subject i.e., Theory, Viva Voce and Internal Assessment combined together; and he has also secured not less than 50% of the maximum marks in Part B i.e., Practical and Internal Assessment (Presumably) combined together, and thereby he indisputably meets the requirement of Clause 1. If there were to be no Clause 1(a) then he was entitled to have his result declared as "passed" in that subject. But he is failed in the subject by the University on the ground that the marks secured by him in the University conducted examination papers i.e., A(a), A(b) and B(d) fall short of the minimum limit prescribed by Clause l(a), in that, he has failed to secure 50% of the marks in each of the University conducted examination in sub-divided papers of the subject. In other words, he is declared failed in 'Theory' as he has secured '32' marks out of 70 i.e., less than 50% although he is shown to have secured more than 50% in each of the other remaining papers of the subject and exceeding 50% of the total maximum of 200. Patently the approach of the respondent University in seeking the score of 50% by a student out of the maximum marks of each of the University conducted examination papers (A(a), A(b) and B(d)) is incorrect and a wrong approach. To meet the requirements of said Clauses 1 and 1(a) what is required to be seen by the University to declare a student as passed is whether he has secured "50% in University Theory, 50% in Theory aggregate, 50% in University Practical and 50% in Practical aggregate". The pattern of sub-divisions of each of the examination subjects as shown in the aforestated tabular form when read with the paper 'Theory' clarified as the 'written paper' -- the word 'written' given in parenthesis, by the provision under Clause II (A) and by its NOTE 2(iv) of the 'Scheme of Examination' makes it obvious that all the three sub-divided parts of each of the examination subjects under sub-heads A(a) University Paper, A(b) Viva Voce, A(c) Internal Assessment together comprise the full 'Theory Part' of the examination subject and whole of this part is described as "Theory Aggregate" and this description makes the matter further clear that the University conducted examination of 'Theory and Viva Voce' together signify the "University Theory" as described at the foot of each of the 'Statement of Marks' of the respective appellants.
25. For want of clear indication of the marks secured by Ajay Babu in University conducted viva examination which forms part of Theory, and College conducted examination or test for Internal Assessment of Part A Theory and Part B Practical in each of the examination subjects it is impossible to make a clear and correct calculation and find whether or not each of the appellants-students has passed in the subjects in which he is shown to have failed in the statement of marks, satisfying the requirement of the said Clause 1(a). In other words, in the absence of explicit indication of the marks in the statement of marks secured by a student in Viva of Theory part i.e., Part A of the subject, it cannot be stated with certainty whether his percentage of the marks scored in Theory and Viva taken together comes to the requisite minimum of 50% for a pass or not when he has satisfied with the general test of securing not less than 50% for whole Part A of the examination subject i.e. Theory, Viva and Internal Assessment combined together per Clause 1. In the instant cases as could be seen from the statement of marks of each of the appellants/students it is possible to find out the figure of marks secured by a student for both University conducted Viva examination and the College conducted internal Assessment together in Part A of the subject by deducting the figure of total marks shown as secured by him for 100 marks of Part A of the subject from the marks obtained by him out of 70 marks reserved as maximum for the Theory Paper. As an illustration, in case of Ajay Babu we will get this figure of marks as 20 scored by him for both "University Conducted Examination in Viva and College conducted Internal Assessment exam" together. But we cannot further make out as to out of these 20 marks how many marks are secured by him in Viva examination and what is his score in Internal Assessment Test or examination. If his score in Viva exam is 13 marks or more then his total score for University conducted 'Theory aggregate' would be 45 marks or above in which case he scores 50% or above in "University Theory" and he having fulfilled other requirements of Clause 1 in respect of his said examination subject i.e., Human Physiology and Bio-chemistry he becomes entitled to pass and must be so declared. He cannot be failed because his score out of 70 marks in individual Theory paper is 32 as it is less than 50% of the 70 marks. What has to be determined is whether or not the marks secured by him in 'Theory and Viva (University Theory) combined' would be the requisite minimum of 50% of the total marks i.e., 90 earmarked for both these papers which, in law, is the real requirement for his pass according to said Clause 1(a). Therefore, his result in the said examination subject declared by respondent-University as failed cannot be sustained. The same reasoning holds good in case of most of the appellants-students who have been declared by the University as failed in one or more of the examination subjects.
26. Therefore, having given our anxious consideration to the afore-stated and discussed intrinsic material infirmities in the results of the appellants, we find that many of them appear to have been declared as failed when in fact they have scored marks which when computed applying the above test of computation laid down by Clause 1(a) of the RESULTS in the "Scheme of Examination" they are entitled to declaration of their result as 'passed' in those subjects. In that view of the matter we find that the opinion and order of the learned Single Judge under challenge does not sustain and the same is liable to be set aside.
27. Therefore, we hold that such of the appellants who have secured "50% in University Theory, 50% in Theory Aggregate and 50% in University Practical and 50% in Practical Aggregate" computed in the manner pointed out hereinabove and not in the manner calculated by the respondent University, are entitled to be declared as passed in the respective examination subject/subjects in which they are shown to have failed.
28. For the reasons aforesaid, the appeals are allowed. The impugned order of the learned Single Judge is set aside.
The respondent University is directed to determine the results of the appellants/students afresh in the examination subject/subjects in which they are shown as failed, by computing their aggregate marks secured in "University Theory" i.e., in University conducted written Theory Paper and Viva combined together; in "Theory aggregate" i.e., University Theory+Internal Assessment; in "University Practical", and in "Practical aggregate" i.e., Practical keeping in view the observations made in paras 23 and 27 hereinabove + Internal Assessment combined together and it shall declare them passed in the said subjects if they are found to have scored 50% in University Theory, 50% in Theory Aggregate, 50% in University Practical and 50% in Practical Aggregate on their marks being computed in the said manner.
The University shall declare their results afresh after complying with the above directions by end of 31st March, 1998 and such of the appellants any students who will be found to have passed the examination subject in which they are shown as failed in their statement of marks are entitled to and shall be allowed to prosecute their studies in the next higher class i.e., II BDS course when they are not disqualified by reason of any other provision of the Scheme of Examination.
Appellants' W.P. Nos. 564 to 688 of 1998 stand disposed of accordingly.