A.U. Pradeep and Others vs University of Calicut

Jagannadha Rao, C.J.—This writ petition was referred to a Division Bench by a learned single Judge of this Court. That is how this writ petition comes before me.

The four writ petitioners filed the writ petition on 21-1-1992 seeking the issue of a writ of certiorari to quash Ext. P 1 scheme of examination for M.Com. Course in so far as the said scheme insists securing of a minimum of 35% of marks for viva voce examination for the purpose of obtaining M.Com. degree. They also seek the consequential declaration that the petitioners must be deemed to have successfully passed the M.Com. examination with Second Class. The four petitioners are privately enrolled candidates for M.Com. Course conducted by the Calicut University. The Course spreads over two years and comprises of compulsory and optional subjects. Part I comprises of compulsory subjects, which are in four papers. Part II comprises of optional subjects which are again in four papers. At the end of each year, there will be examinations comprising of written test and an oral interview or viva voce. Ext. P 1 is the scheme of examinations as published by the Faculty of Commerce of the Calicut University. The first, 2nd and fourth petitioners appeared for the first year examination in 1990, while the third petitioner appeared for the first year examination in 1986. All the petitioners are said to have secured more than 50% marks in the written examination as per Ext. P 2 series. The viva voce was conducted by a committee consisting of five teachers. These teachers are senior professors of various colleges affiliated to the University. It is submitted that the private students, such are the petitioners, do not have financial capability to meet the tuition fees of regular colleges or otherwise handicapped in attending regular colleges, and that therefore the scheme is arbitrary in insisting on 35% of minimum marks in the viva voce examination. It is submitted that for no other academic course in the University, this 35% of pass mark for viva voce is insisted upon. The petitioners appeared for the final year M.Com. examination held in April, 1991 and all the petitioners secured more than 55% to 60% marks in the written examination as per Ext. P 3 series. However, the petitioners contend that they were deliberately given low marks in viva voce, and this was done with a view to fail them in the examination. The petitioners therefore contend that the prescription of 35% of minimum marks for the viva voce examination for M.Com. examination must be declared to be arbitrary. Consequently, it must be declared that the petitioner have passed the M.Com. examination in second class.

A statement is filed by the respondent-University stating that it is the right of the Academic Council of the University to prescribe the necessary qualifications for grant of a degree, and this is mentioned in Section 25 of the Calicut University Act, 1975. The University has an Academic Council consisting of experts, who decide the requirements for each course of study, and the same cannot be interfered with by court. It is stated that the viva voce Board of M.Com. (Final Examination) was constituted with five senior teachers of the Examination Board. In addition to these members, a senior teacher of the concerned college is also permitted to attend the viva voce. The interview Board is constituted with senior teachers having vast experience in teaching the post-graduate students and the Board frames the guidelines for conducting the interview and awarding the marks. It is stated that there are also other courses where there is a viva voce examination with a similar stipulation of minimum narks in the viva voce examination, as in the case of M.Sc. Statistics. It is stated that in addition to the minimum marks for viva voce examination for M.Com. degree, the candidates should also secure 40% marks in the aggregate total for a pass in the examination. It is pointed out that in the viva voce examination held during 1991 more than 270 private candidates have secured pass marks, and in fact there are several private candidates who secured more than 60% marks in the viva voce examination. It is therefore contended that there is no substance in the point raised in the writ petition.

The point that arises for consideration in this case is whether the prescription of 35% of minimum marks in the viva voce examination for obtaining M.Com. degree is arbitrary and violative of Article 14 of the Constitution of India.

u/s 24(2) of the Calicut University Act, 1975, it is stated that the Academic Council shall, subject to the provisions of this Act and the Statutes have the control and general regulation, and be responsible for the maintenance of standards of instruction, education and examination within the University, and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes. Section 38 of the Act which deals with the power of the Academic Council to frame regulations states:

"Subject to the provisions of this Act, the Statutes and the Ordinances, the Academic Council may make regulations providing for all or any of the following matters, namely:--

(a) the courses of studies and the conduct of examinations;

(b).....

....."

Chapter 15 of the Calicut University First Statutes, 1977 made by the University u/s 82 of the Act on 24-2-1976 deals with the Faculty of Commerce and Management Studies and states that for the purpose of acquiring a Degree of Master of Commerce, the candidates shall be required to have passed the Bachelor of Commerce Degree Examination of this University or any other examination accepted by the Academic Council as equivalent thereto with a minimum of 45% marks in the optional subjects and to have subsequently undergone the prescribed course of study by attending a college for a period of not less than two academic years or six terms and passed the prescribed examinations. The condition regarding institutional study is subject to the provisions made in the regulations regarding private appearance. It is pursuant to the aforesaid powers that the Faculty of Commerce had prescribed that 35% minimum marks must be obtained in the viva voce examination.

Therefore, so far as the power of University and its Academic Council to prescribe 35% of minimum marks in the viva voce examination is concerned, there can be no serious doubt about it.

The question, however, is whether the prescription of 35% of minimum marks in an academic examination conducted by the University can be described as arbitrary and struck down by courts under Article 226 of the Constitution of India. At the outset, we must point out that this being an academic matter, it will not be proper for this Court to interfere with the policy decisions made by the academicians. The Supreme Court has, in fact, stated so in Rajendra Prasad Mathur Ors. Vs. Karnataka University and Another, ; Javid Rasool Bhat and Others Vs. State of Jammu and Kashmir and Others, ; Krishna Priya Ganguly and Others Vs. University of Lucknow and Others, and Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, .

Even otherwise, the point raised in the writ petition is settled by the observations of the Supreme Court in State of U.P. Vs. Rafiquddin and Others, . In that case prescription of minimum marks for the purpose of selection to the U. P. Civil Service (Judicial Branch) as District Munsiff was in question. While dealing with the question of prescription of minimum marks for selection to District Munsiffs to the Judicial Branch, their Lordships of the Supreme Court incidentally considered the question of prescription of minimum marks for the viva voce examination by the academic institutions. It was observed that so far as the prescription of minimum marks for the viva voce examination for grant of a degree is concerned, it was open to the concerned University or authority to prescribe minimum mark for the viva voce examination, and this could be done in advance. The power to prescribe the minimum marks for selection of District Munsiffs was also upheld. While pointing out the distinction between the grant of a degree by academic bodies and selection of candidates in public service, the Supreme Court observed in paragraph 12 as follows:

" .... In our opinion the High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character....."

From the above passage in the judgment it is clear that the power of prescription of minimum marks by academic body for the purpose of grant of degrees cannot be interfered with by courts, and all that is required is that candidates must have notice in advance. In the present case, the petitioners knew about it in advance, which is clear from Ext. P 1 produced by the petitioners themselves. The power to prescribe minimum marks for the viva voce examination, in so far as recruitment to the civil services is concerned was reiterated in Mehmood Alam Tariq and Others Vs. State of Rajasthan and Others, , wherein the above said decision in State of U.P. Vs. Rafiquddin and Others, , was followed.

Learned counsel for the petitioner, however, referred us to various other cases decided by the Supreme Court in regard to prescription of minimum marks either for admission to University or for entry into a service. We do not think that those decisions are relevant for the present case before us. In the case on hand before us, the Academic Council prescribed the minimum marks, which it considered it to be reasonable, for the purpose of grant of a degree. In such an area, the jurisdiction of the Court is very limited, and the court cannot go into the question as to whether the percentage of marks prescribed by the academic bodies for grant of a degree is unreasonable.

For the aforesaid reasons, this O.P. is dismissed.