(Prayer: This Writ Petitions are filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the second respondent issued in PU/CE/E5/MBBS/2016/650, dated 29.06.2016, and quash the same in so far as the petitioner concerned and to direct the third respondent to send the petitioner's paper for revaluation to the second respondent.)
1. In all these Writ Petitions, the relief sought for is identical and therefore, all the matters were heard together and are disposed of by this common order.
2. In these Writ Petitions, the petitioners seek for quashing the order dated 29.06.2016, passed by the second respondent, who is the Controller of Examination (i/c) of the Pondicherry University, and to direct the third respondent to send the petitioners' paper for revaluation to the second respondent.
3. By the impugned proceedings, the second respondent informed all the Director, Dean, Principals of the Medical College affiliated to the Pondicherry University stating that the Pondicherry University has decided to amend its MBBS Regulation with respect to revaluation and grace marks to theory and practical examination in line with the Regulation framed by the Medical Council of India and give effect to the same from the academic session May 2016 onwards, pending ratification by the Academic Council of the University. Further, it was informed that there will not be any revaluation for MBBS answer papers and grace marks for practical papers from the academic session May 2016 onwards.
4. Mr.N.R.Chandran, learned Senior counsel, assisted by Mr.R.Kannan, learned counsel for petitioners challenged the validity of the impugned order on two grounds. Firstly, by contending that the second respondent/Controller of Examination has no authority to issue the impugned proceedings without obtaining the approval of the Academic Council of the University, hence liable to be set aside. Secondly, it is contended that the impugned order is arbitrary in the wake of wednesbury principles, as the College has received the order only on 02.07.2016, and by that time, the entire examination was completed and the impact of the impugned proceedings cannot have effect on the actions already taken, and if allowed to do so, the legitimate expectation of the candidates would be affected. The third respondent, in these Writ Petition is the college, in which, the petitioners are pursuing their MBBS course.
5. Mr.Stalin Abhimanyu, learned Standing counsel appearing for the respondent-University submitted that the University has followed proper procedures, and passed the impugned proceedings and the same is inconsonance with the Regulations of the Medical Council of India, and therefore, there is no illegality in passing the impugned proceedings and the decision was taken by the Vice Chancellor of the University, and the question of obtaining approval from the Academic Council is not necessary in the light of the powers conferred on the Vice Chancellor, under Section 13(3) of the Pondicherry University Act, 1985 (hereinafter referred to as the Act ).
6. Further, the learned Standing counsel circulated copy of the note file of the University, so as to show that there was due application of mind by the Vice Chancellor when the files were circulated, and bearing in mind that there is no provision for revaluation in MBBS course as per the Regulations of the Medical Council of India, and such regulations are to be strictly adhered to. By the impugned proceedings, the second respondent has only communicated the decision of the University and it is not a decision by the second respondent.
7. After elaborately hearing the learned counsels appearing for the parties, and perusing the materials placed on record, the first issue, that needs to be considered is as to whether the impugned orders suffer from lack of jurisdiction.
8. The contention of the petitioner is that the Controller of the Examination has no jurisdiction to pass the impugned order. On perusal of the material papers, including copies of the note files circulated by the learned Standing Counsel for the respondent-University, it is seen that the Controller of Examination has not taken the decision, but, the Vice Chancellor has taken the decision and at the decision of the University.
9. In terms of sub-section (1) of Section 13 of the Act, the Vice Chancellor shall be appointed by the visitor, in such manner, as may be prescribed by the statutes. As per Sub-section (2) of Section 13, the Vice Chancellor shall be the principal executive, and academic officer of the University, and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University; Sub-section (3) of Section 13 of the Act, the Vice Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority the action taken by him on such matter.
10. Thus, in terms of sub-section (3) of Section 13, the Vice Chancellor can exercise any power conferred on any authority of the University by or under the Act, and all that is required to be done is to intimate such authority about the action taken by him on such matters. Thus, the note file show that the power has been exercised by the Vice Chancellor under Section 13(3) of the Act and it is well within the jurisdiction of the Vice Chancellor to exercise such powers. Therefore, the impugned order is only a communication sent by the Controller of Examination and not a decision by him and therefore, it does not suffer from lack of jurisdiction.
11. The second contention raised is that the action is arbitrary, and that, it can take effect only prospectively, as it was communicated late to the third respondent-Institution, where the petitioners are pursuing the MBBS course. Firstly, the Rules framed by the respondent University, so far as it relates to the MBBS and Post Graduate Medical Courses, shall be inconsonance with the Regulations of the Medical Council of India. If there is any inconsistency, the Regulation of the Medical Council of India will prevail over the statute of the University. This being the legal position, it has to be seen as to whether the respondent-University can have a regulation for revaluation, when in the year 2012, the Medical Council of India has made appropriate amendments to their Regulations and has scrapped the system of revaluation. The answer to this question can only be in the negative, as the University cannot frame a regulation contrary to the regulations of the Medical Council of India. However, the respondent-University did not effect amendments to their Regulations, which should have been done to bring it inconsonance with the Medical Council of India's Regulation.
12. This Court can take judicial notice of the fact that there were serious issues in the manner, in which, the respondent-University was being administered by the predecessor Vice Chancellor, which ultimately led to her replacement. Thus, the present attempt of the Vice Chancellor is to restore the position of the University and with such endeavour, the present order has been passed. Thus, the respondent University has taken a conscious decision to amend its Rules and Regulations to bring it inconsonance with the Medical Council of India Regulation. As observed earlier, even if it is not so, then, the legal interpretation, which has to be adopted, would be that the Regulations of the Medical Council of India has to prevail. Infact, the respondent University ought to have amended its regulation in 2012 itself. Therefore, the contention raised by the petitioner that it cannot be given effect to for candidates like them, is an argument, which is stated to be rejected.
13. For all the above reasons, the petitioners have not made out any case for interference and the Writ Petitions fail and they are dismissed.
14. In terms of the interim order granted by this Court, dated 19.09.2016, it is presumed that the petitioners have all applied for appearing in the arrears examination. The applications shall be processed by the University and the hall tickets may be issued to the petitioners, if otherwise eligible, and permit the petitioners to sit for the arrears examination. No costs. Consequently, connected Miscellaneous Petitions are closed.