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Judgment
Though these writ petitions are listed for Preliminary Hearing, with the consent of the learned counsel on both sides, they are heard finally.
Petitioners have sought the following reliefs:
(i) to issue a writ of certiorari or an order or a direction and to read-down the following clause of impugned notification
No.ACA/DCD/Misc./28/2016-17 dated 9.8.2016 (Annexure-B) of the 1st respondent,
''13. Results and re-admission to examination:
(vii) The University shall have the discretion to award grade marks at the maximum to ten (10) marks in total not more than 5 marks for individual
subject, if a student fails in one or more subject.''
(ii) to issue a writ of mandamus or an order or a direction directing the respondents to grant them the benefit of Regulation 11(viii) of Homeopathy
(Degree Course) BHMS Regulation, 1983, and award them maximum of 10 grace marks and declare them as having passed in the 1st year
BHMS degree, allowing them to join the 2nd year BHMS course,
(iii) to pass such other reliefs as this Hon''ble Court deems fit in the facts and circumstances of the case.
Petitioners have averred that they are students of I Year Bachelor of Homeopathic Medical and Surgery (''BHMS'' for short), studying at the
3rd and 4th respondent colleges, which are affiliated to the 1st respondent University. They were admitted to the course in 2015-16 and 2016-17,
and have appeared for the I year examinations conducted by the respondents. According to them, they are entitled for grace marks up to 10 in
terms of Regulation 11(viii) of the Homeopathy (Degree Course BHMS) Regulations, 1983, (hereinafter referred to as the Central Regulations, for
brevity) as per notification dated 10.8.2015. However, the 1st respondent has restricted award of grace marks to a maximum of 5 marks only by
issuing an amended notification, a copy of which is produced at Annexure-B dated 9.8.2016.
Learned counsel for the petitioners submits that when the Central Regulations issued as per Annexure-A by the 2nd respondent Council
categorically states that a student is entitled to a maximum of 10 grace marks if he/she has failed in one or more subjects, the University could not
have added an additional rider or condition for the award of 10 grace marks by stating that not more than 5 grace marks could be awarded in an
individual subject. He contended that by the said rider, the petitioners would be unable to have the benefit of the Central Regulations and therefore,
the additional condition stipulated by the 1st respondent University is unjust and illegal apart from being contrary to the Central Regulations.
Per contra, learned counsel for the 1st respondent contended that although such stipulation has been made by the University, the Central
Regulations permit relaxation in the application of the said regulations and therefore, the said relaxation could be made and 10 marks by way of
grace marks could be awarded in one subject in which they have failed. He further submits that the power to award grace marks has been
categorically stated in the Central Regulations pursuant to the amendment made with effect from 2015-16 academic year onwards. Therefore, he
submits that the petitioners may be entitled to the said benefit and that if a direction is issued in this regard, the same would be considered.
Learned counsel for the 2nd respondent Central Council of Homeopathy submits that as long as the 1st respondent University does not violate
the letter and spirit of the Regulations and acts within the scope of the same, the Council would not have any grievance vis-?vis the reliefs sought
before this court.
Having heard the learned counsel for the parties, it is noted that the Central Regulations have been amended from time to time and as per the
amendments made, clause 11(viii) has been incorporated which empowers award of grace marks of a maximum of 10 marks in accordance with
the discretion to be exercised by the University or examination authority. The same reads as under:
''11(viii) The University or examining authority shall have the discretion to award grace marks at a maximum to ten marks in total if a student fails in
one or more subjects.''
Regulation 14(iii) of the Central Regulations reads as under:
''14.Authorities empowered to conduct examinations:
(iii) Power to relax:
Where any University or medical institution in India which grants medical qualification, is satisfied that the operation of any of these regulations
causes undue hardship in any particular case, that University or medical institution as the case may be, may by order, for reasons recorded in
writing, dispense or relax the requirement of that regulation in such an extent and subject to such exceptions and conditions as it may consider
necessary for dealing with the case in a just and equitable manner.
Provided that no such order shall be made except with the concurrence of the Central Council.''
On the basis of the Central Regulations, the 1st respondent University has issued a revised ordinance governing BHMS course as per the
notification dated 9. 8.2016.
Regulation 13(vii) issued by the 1st respondent University reads as under:
''13. Results and re-admission to examination:
(vii) The University shall have the discretion to award grade marks at the maximum to ten (10) marks in total not more than 5 marks for individual
subject, if a student fails in one or more subjects.''
On a comparison of Regulation 11(viii) of the Central Regulations with Regulation 13(vii) of the 1st respondent University, what becomes apparent
is the fact that while the Central Regulations has reserved discretion with the University or examining authority to award a maximum of 10 grace
marks if a student fails in one or more subjects, Regulation 13(vii), while endorsing to the same, however, has added a rider which says ''and not
more than 5 (five) marks for an individual subject.''
Learned counsel for the petitioners submits that the additional stipulation is an impediment, inasmuch as a student who requires 10 grace marks
in a subject to pass the course, cannot be restricted by the additional condition imposed by the 1st respondent University which is to the effect that
not more than 5 marks could be awarded for an individual subject. He submits that the petitioners are entitled to get 10 grace marks to pass the
course and the same could be awarded, having regard to the provision for relaxation incorporated in the Central Regulations.
Learned counsel for the 1st respondent University submits that if a direction is to be issued in this regard to consider the case of the 1st
petitioner, in that light, the same would be done. In the circumstances, it would not be necessary in these petitions to go into the vires or legality of
Regulation 13(vii) of the Regulations issued by the 1st respondent. Instead, the 1st respondent is directed to consider award of grace marks to the
petitioners in terms of the Central Regulations by exercising power under Regulation 14(iii) and in that regard, consider their case.
In the result, I pass the following order:
ORDER
The writ petitions are disposed of in the following terms:
I) The 1st respondent University is directed to consider the representation of the petitioners dated 11.12.2017 (Annexure-D) with regard to
awarding grace marks to them in terms of the Central Regulations by exercising power under Regulation 14(3) thereof.
II) Considering the urgency in the matter, the 1st respondent University shall consider the said representations as expeditiously as possible, and at
any rate within a period of two weeks from the date of receipt of a certified copy of this order.
III) Having regard to the fact that the last date for payment of fee for the supplementary examinations is on 31.1.2018, the operative portion of this
order is to be made available to the learned counsel for the petitioners as well as the learned counsel for the respondents.