P. Ramachandra Raju, J.
1. This writ appeal is directed against the judgment D/- 27th Mar. 1981, of our learned brother Punnayya, J., dismissing W. P. No. 707/81.
2. The material facts can now be noticed. In all 19 students, including the six appellants and respondents 5 to 8 sat for the M.D. (Gynaecology and Obstetrics) Part-II examinations held by the Osmania University in January, 1981, at the Osmania Medical College and the Gandhi Medical College centres. 12 of them including appellants 5 & 6 sat for the examination at the Osmania Medical College centre and seven of them, including the first four appellants sat for the examination at the Gandhi Medical College Centre. M. D. course in Gynaecology and Obstetrics is a clinical subject course. The subjects are divided into two parts; Part-1 comprises of basic science and Part-11 comprises of other subjects. Part-I examination was held at the end of the 1st year and it is common ground that the candidates in question have all passed their Part-I examination and became eligible to sit for the Part-II examination held in January, 1981. The Part-II examination consists of (a) 'Written', (b) 'Oral and Practical' and (c) 'Clinical'. The written examination comprises of three papers and the examination in those three papers was held on the 3rd, 5th and 6th January, 1981. Those papers were set by two external examiners, one Dr. Sheela Rajaratnam of Stanley Medical College, Madras and another Dr. Padma Rao of Kasturba Medical College, Manipal. The internal examiners are respectively Dr. T. Seetha and Dr. Khursheeda Begum for the Osmania Medical College centre and Dr. Lokabai and Dr. Savitri for the Gandhi Medical College centre. The oral and practical examinations for all these candidates were held at the respective centres on the 10th, 11th and 12th of January, 1981. Under the Osmania University Rules, Regulations and Syllabus for M.D. and M.S. (Faculty of Medicine), the examiners shall be severally and jointly responsible for all the examinations and the marks shall not ordinarily be assigned to any part of the examination, but the examiners concerned shall confer after the examination is complete, and shall report whether the candidate has 'passed with honours', 'passed' or 'failed'. The final result will be incorporated only after all the examiners of the aforesaid two centres conferred with one another and finalised the result on the evening of 12th January, 1981 and all of them signed on the tabular form prepared to that effect and the said form indicating the result of the examination was sent to the University. Such result revealed that out of the 19 candidates the six appellants and two other candidates who are not parties before us were shown as 'passed' and respondents 5 to 8 and six others who are not parties before us were shown as 'failed' and the remaining 19th candidate was shown as 'failed' because of his absence at the 'oral and practical' and 'clinical' tests. In making such evaluation, Dr. Padma Rao maintained a note with regard to each of the candidates indicating her evaluation during the aforesaid examination. She also happened to be the external examiner for D.G.O. held at Gandhi Hospital on 13th January, 1981. She took along with her the record she maintained about the M. D. examinations which were over on 12-1' 1981. On 13th January, 1981, she discovered that somebody removed the said personal record prepared by her and she informed the Dean and the Super-intendent of the Gandhi Hospital about the loss of the personal record maintained by her. A news item dated 16th January, 1981 with some corrections made in the personal record of Dr. Padma Rao appeared in the 'Eenadu' edition of 17th January, 1981, a local daily published from Hyderabad. The said news item proceeded to say that Sri A. Madan Mohan, the Minister for Health ordered an enquiry to be made into the allegations made by the students of Gandhi Medical College regarding the irregularities allegedly committed in finalising the list. Respondents 5 to 7 made a similar representation to the 3rd respondent, the Vice-Chancellor of the Osmania University who, by hisproceedings dated 22nd January, 1981 appointed an enquiry committee consisting of Prof. T. Navneeth Rao, Director, P.G. Centre, Prof. P.S. Ramachandran, Principal, University College of Technology and Sri P. Narsimha Reddy, Controller of Examinations to enquire into the alleged irregularities by the examiners of M.D. (Gynaecology and Obstetrics) examinations held in January, 1981 at Gandhi Medical College centre and submit its report before 2Ist January, 1981. The said committee held the enquiry during which, some of the aggrieved students, the four internal examiners, the member and the Dean of the Faculty of Medicine were examined. It is, however, common ground that neither the six appellants nor the two other candidates, who passed the examinations nor the two external examiners Dr. Sheela Rajaratnam and Dr. Padma Rao were examined by the committee. The committee, on consideration of the various statements made before it, came to the conclusion that the allegations made by the complainants in regard to the conduct of M. D. (Gynaecology and Obstetrics) examinations held in January, 1981 are not established. They, however, observed :
'After going through the report and the rough grading sheet of one of the examiners, the Committee has come to the opinion that the practical examinations have influenced the theory grading and vice-versa in the M.D., examination of Obstetrics and Gynaecology conducted in January, 1981. The theory grading should not be influenced by the performance of the candidates in practicals or in orals and vice versa. A candidate should earn the grades in theory by virtue of his performance of a candidate in clinicals and orals should not be influenced by the performance of the candidate in theory papers, (sic) Hence it is suggested, to give benefit of doubt to the candidates, the practical examination of M.D. (Obstetrics and Gynaecology) may be conducted again and the theory papers for which they had already appeared may be revalued by any two external examiners and the average of that may be taken for the theory results. These examiners may be taken from outside the State and the panel of these examiners may be suggested bythe Controller of Examinations to the Vice-Chancellor for approval. But immediately the University may declarethe cancellation of the practical examinations of M.D. (Obstetrics and Gynaecology) examinations which were con-ducted in January, 1981 at Osmania and Gandhi Medical College centres. Dates may be fixed and notification maty be given for the reconduct of these practical examinations'.
3. The third respondent has accepted the recommendation of the Committee and the University passed orders on 6-2-1981 cancelling only the practical examinations of M.D. (Gynaecology an Obstetrics) conducted in the month of January, 1981. The six appellants thereupon filed W. P. No. 7,07/81 on 11-2-1981 for a writ of mandamus directing the first respondent University to publish the results of the examination held in January, 1981 on basis of their performance at the examination already held and to declare as illegal and void the action of the third respondent in cancelling the examination held in January, 1981 and in proposing to hold a re-examination. According to the appellants, the third respondent has no jurisdiction to cancel the examination which was held in accordance with the regulations framed 'by the University and that the said cancellation ordered without notice to them is violative of the principles of natural justice and the appellants who were declared passed because of their performance in the examination cannot be required to sit for the practical examination over again when there is no malpractice alleged against any of the candidates, including the appellants. They have also stated that the Committee arrived at its conclusions without examining the passed candidates and the two external examiners and in making their recommendations, they have ignored the scheme of the examination for a Post-Graduate degree in the Faculty of Medicine and have misdirected themselves in making the recommendation that the practical examination alone could he conducted separately and their performance evaluated by persons different from persons who evaluated their performance in theory. According to the appellants, the result of the examinations held for other Faculties were declared on the basis of the results arrived at by the examiners on similar evaluations made by them and the action of tine third respondent in adopting a different procedure in dealing with candidates who appeared (or the M.D. (in Gynaecology and Obstetrics) is discriminatory and violative of Article 14 of the Constitution of India. Some of the appellants have also given some special reasons personal to themselves how it is difficult for them to sit for the practical examination proposed to be held by the University. Subsequent to the filing of the writ, the first respondent issued a press note on 17-2-1981 stating that the practical examinations only would be held on 25th, 26th and 27th of February, 1981. Respondents 1 and 3 alone have, in their counter, taken the stand that the third respondent Vice-Chancellor has jurisdiction to order the enquiry and that the report of the Enquiry Committee has brought into prominence that the relative merits of the candidates have not been properly assessed by the examiners and that the action of the Vice-Chancellor was subsequently ratified by the Syndicate and as the cancellation was done to undo the injustice which the candidates, in general, have suffered, there is no need to give individual notice to any of the appellants or the two external examiners and there is no discrimination made against the appellants and whatever was done was only in the interest of maintaining the academic standards and to ensure fairness in the process of examinations and that the personal difficulties set out by any of the appellants are not valid grounds for not proceeding with the practical examinations as per the programme of the University, Respondents 2 and 4 who are respectively the State of A. P., and the Director of Medical Education did not file any counter. Respondents 5 to 8, on whose complaint the enquiry was ordered by the third respondent, have come on record on their application, but did not file any counter.
4. Our learned brother held that third respondent has the necessary power to appoint the Committee and to cancel the examination and the Committee had the material before it to come to the conclusion that the practicals have been influenced bv theory grading and vice-versa and that the omission on the part of the Committee to examine the external examiners did not make the conclusions arrived at and the recommendation made by it arbitrary and thathaving regard to the principles laid down by the Supreme Court in Bihar Secondary Education Board v. Subhash Chandra : 3SCR963 which are applicable to the facts of the case on hand, there was no need for the Committee or the Vice-Chancellor to have given an opportunity to the appellants to show cause before the Committee recommended the cancellation of the results or to show cause before the Vice-Chancellor issued the notification cancelling the examination and in directing the appellants to take their examination again in practicals. He accordingly dismissed the writ petition without costs.
5. Mr. Upendralal Waghray, learned counsel appearing for the appellants has reiterated the same submissions before us in support of this appeal, and Mr. Babulu Reddy, learned counsel appearing for the University has supported the recommendations made by the Committee and the action taken bv the Vice-Chancellor.
6. We have first addressed ourselves to deal with the rival submissions made on the merits, by the learned counsel. It is common ground that no malpractices are alleged against any of the appellants or against any of the other candidates who sat for the M. D. examination held in January, 1981. The appellants are all students with a good and consistent academic record. Their performance had been assessed by the examiners who, after conferring with one another as required by rules, recommended that the appellants be declared as having passed. The private record maintained by Dr. Padma Rao is not a record required to be maintained by any University regulation. Each examiner, however, maintained such a record to note therein the assessment made of each candidate by that examiner. At the end of the examination, all the four examiners met and conferred with one another and arrived at a consensus before recommending whether a candidate has passed or failed. In the process of making the evaluation and conferring with one another, the grades which a particular examiner originally awarded to the candidates were being revised. All these appellants have qualified for a pass in each of the nine tests in the examination conducted by the examiners. So far as the appellants areconcerned, no alteration was made by any of the examiners with a view to pass them. No malpractices are alleged against any of the six examiners.
7. Respondents 5 to 8 in their representation to the 3rd respondentalleged that the examiners have failed them deliberately by changing their original grades awarded during the examinations and that the results at the two examination centres were not finalised on the days on which the examinations were held, but they were manipulated on 13th January, 1981, after all the examinations were over. The committee, during its enquiry, has examined various witnesses and has come to the conclusion that the allegations made by respondents 5 to 8 have not been established. The members of the committee, without leaving the matter there, went further and came to the opinion that the practical examinations have influenced the theory grading and vice-versa and have suggested cancellation of the practical examinations and re-conduct of the practical examinations by taking the services of external examiners and the theory papers may be got revalued also by any two external examiners and the average of the marks in theory examinations may be taken for the theory results. One of the submissions made on behalf of the appellants is that the Committee went beyond the limits of the enquiry which they were required to make. When once the Committee found that none of the allegations made by respondents 5 to 8 have been established, the Committee should not have taken upon themselves the responsibility to indicate anything further as to how the University should deal with the results already sent to it by the examiners. In making those observations requiring a revaluation of theory papers and a re-examination in the practicals, the Members of the Committee have exceeded their Jurisdiction. Even assuming that the Members of the Committee had the need to make any such recommendations, the Court has to be satisfied whether there was any material gathered by the Committee which warranted the making of such recommendations. Dr. Y.R. Reddy, the Dean of the Faculty of Medicine was examined by the Committee and his statement is that six examiners in this case have conducted the examination in accordance withthe normal procedure. To a similar effect was the statement given before the Committee by Dr. Seetha, the Chairman of the Board of Examiners and also by Dr. Kurshida Begum, Dr. Lokabai and Dr. Savitri, the other internal examiners. Dr. Bhaskar, the Principal of the Gandhi Medical College has also made a statement that as Chief Supervisor, he conducted the theory examinations and during the practicals also, no complaint was alleged and all the practical examinations were conducted properly in accordance with the normal procedure. All these persons who are interested in maintaining the high academic standards have given a consistent account as to how each individual examiner assesses the performance of each candidate and how at the end of the examination, the examiners confer with each other and arrive at a consensus of the grade to be awarded to each individual student in each of the subjects. Dr. Lokabai in her statement would appear to have suggested that an effective system of grading should be introduced for future observance in terms of which, each individual examiner may give numerical marks and the final grading could be in letters 'A', 'B' or 'C' according to the performance of each of the candidates. Dr. Savitri has put forward the idea that each examiner should evaluate the theory paper and send it to the Chairman or Controller of Examinations who, after making an average, give the relative grading and the grading of practicals should be separated from theory and the same sent to the Chairman or Controller for average and awarding the final grades. Some of the failed candidates gave statements that the results were finalised on 13th and not on 12th, but none of them have any personal knowledge as to when exactly the results were finalised though they are sure that the examiners met on 12th evening and were conferring with each other till late in the evening. No witness had made any statement that the practical examinations have influenced the theory grading and vice-versa in the examination. Under Rule 10 of the Rules and Regulations for the award of Post Graduate Degree it was laid down:
'Marks shall not ordinarily be assigned to any part of the examination, but the examiners concerned shall confer after the examination is complete, andshall report whether the candidate has 'passed with Honours', 'passed' or failed'',
8. Respondents 5 to 8 have, in support of their representation, relied upon the personal record maintained by Dr. Padma Rao in which corrections do appear to have been made. The six appellants were respectively having their hall ticket Nos. as 4533, 4527, 4532, 4409, 4526 and 4412. On a comparison made of the private sheet maintained by Dr. Padma Rao and the final result sheet, it looks to us that as against the original grading given by Dr. Padma Rao to the Ist appellant, she has noted the revised gradings as were arrived at on conferring in that private sheet. It was similar with regard to the appellants 2 and 3. With regard to the 4th appellant, it was also similar except that Dr. Padma Rao noted her relative grading in the short case for Gynaecology as 'A' when the grading on consensus was 'B'. The grading was suitably corrected in the personal sheet so as to be in line with the grading in the resort sheet so far as appellants 5 and 6 art concerned. It is the common case that if in any one of the papers any candidate got 'C' grade, that candidate would fail. The sheets maintained by the other external examiner also indicate the corrections which they were making and in the nature of things, the corrections in the grading would have been made as a result of conferring with one another and it is this practice that has been prevailing all along. The Committee would appear 1o have questioned the examiners as to the need for making such alterations and the examiners have all stated that such changes are a natural phenomenon when after each examiner gives a grading, they confer and made a final assessment. Evidently because of some grievance expressed by the candidates, the examiners have stated before the Committee that in future each examiner would send the grading given by him or her separately to the Chairman or Controller of Examinations who may take upon himself the responsibility of arriving at an average and give the grading. It was to facilitate the striking of an average that the suggestion would appear to have been made to give in future numerical grading in stead of alphabetical grading. We art concerned with the procedure prevailing in January 1981, when the examinations were held. The grading was given by all the examiners in accordance with the prevailing rules and the then existing practice. If according to the Committee respondents 5 to 8 have not established any of the allegations made by them against the examiners and when the grading was done in accordance with the rules and practice existing by the date of the examination, the committee had no material before it to have arrived at any opinion that the performance of the candidates in practical examinations has influenced their theory grading or vice-versa. Our learned brother would appear to have felt that the alterations made in the personal sheet maintained by Dr. Padma Rao and Dr. Sheela Rajarathnam showed over-writings and alterations and in the sheet maintained by Dr. Padma Rao, some remarks were made 'theory?' and these afforded sufficient material for the Committee to have come to the conclusion that the practical examinations have been influenced by the theory grading and vice versa. We are unable to agree with this reasoning, especially when neither Dr. Padma Rao nor Dr. Sheela Rajaratnam has been asked by the Committee to explain the circumstances in which the over-writings and alterations appear in the personal sheets maintained by each of them. In fact, the other examiners have all explained how such over-writings and alterations come to appear in the personal sheets and they have stated in clear terms that the performance of the candidates in practicals or orals did not influence the theory grading or vice-versa. Our learned brother has also observed:
'As per rules, the theory grading should not be influenced by the performance of the candidates in practical or oral and vice-versa and the practical examinations are, therefore, vitiated'.
9. These observations run counter to the terms of Rule 10 which we have extracted above. The examination is evaluated as a whole with reference to the performance of the candidate in each of the parts. The members of the Committee had no material before them to have come to the conclusion that the theory grading of any of the candidates was influenced by their performance in the practicals or orals. True, that in the gradings given by Dr. Seetha, Dr.Khursheeda Begum and Dr. Savitri, nosuch alterations or over-writings were found. It could be for the reason that those three examiners did not want toincorporate the final consensus arrived at by the examiners in the personal sheets maintained by them for each candidate. The omission on their part to show in personal sheets maintained by them the final evaluation made by all the examiners together becomes irrelevant when it is admitted that all the examiners conferred and signed the results sheet, giving the gradings to each of the candidates as mentioned in that results sheet. The alteration made by Dr. Padma Rao in the personal sheet regarding the candidate to whom the prize was to be awarded also stands to be explained on the same reasons as we have given above. As between the candidate with Roll No. 4526 and the candidate with Roll No. 4533, the former got three 'B' grades, whereas the iatter got only two 'B' grades, the rest being 'A' grades. It was evidently because of the higher grade which the 1st appellant scored in the examination the examiners would have decided that the prize should go to her. The appellants in this case were declared by the examiners to have passed their M.D. examination. It will be most unjust and inequitable to require them to appear again for freshly conducted practical examination and to have their theory papers evaluated over again by two external examiners when there is no malpractice even alleged against them and when their examination result has been decided by the examiners in accordance with the rules and established practice prevailing at the time they sat for their examination.
10. The cancellation of the examination was ordered by the Vice-Chancellor without giving any show cause notice to the appellants. Our learned brother felt that the issue of such show cause notice is not desirable nor necessary as the record itself clearly demonstrated the material on the basis of which the Committee recommended the cancellation of the examination and for the further reason that the Vice-Chancellor of the University has not charged any candidate with unfair means so that the candidate could claim to defend himself. Our learned brother found support for this view on the decision of the Supreme Court in Bihar S.E. Board v. SubhasChandra : 3SCR963 (supra). That was a case where the Examination Board was satisfied that a vast majority of the examinees at a particular centre have adopted unfair means. When, as in this case, nothing is alleged against the appellants that they have indulged in any malpractices, it is all the more imperative for the Vice-Chancellor to have issued them a show cause notice why the examination should not be cancelled. It is not correct to say that because nothing is alleged against the appellants, there was no need for the Vice-Chancellor to have issued a show cause notice when for no fault attributed to them, the examination at which the appellants sat was ordered to be cancelled. We have, in the preceding discussion, observed that the Enquiry Committee was not called upon to make any recommendations and the recommendations made by it are not based on the evidence adduced before it The private sheets maintained by the examiners do not form part of the examination record expected of the individual examiners to be maintained. The final results sheet is the only examination record which was expected of the examiners to be maintained. Such a final results sheet was in fact sent by the examiners to the University and no alterations are found to have been made by the examiners in that final results sheet. What all remained for the University was to forward the same to the results committee for its approval. When, therefore, no opportunity whatsoever was given to the appellants in this case to show cause why the examination should not be cancelled, the principles of natural justice are violated and the observations made by the Supreme Court in Board of High School and Intermediate Education, U.P. v. Ghanshyam Das Gupta : AIR1962SC1110 become more apposite. In Mohindar Singh Gill v. Chief Election Commissioner, New Delhi (AIR 1976 SC 851), the Supreme Court after noticing Ghamshyam Das Gupta's case (supra) and Subhas Chandra's case : 3SCR963 (supra) referred to above, observed (at pp. 879, 881) :--
'Even in the case of university examinations, it is not a universal rule that notice need not be given. Ghanshyam Das Gupta's case illustrates this aspect. Even there, when an examination result of three candidates was cancelled theCourt imported natural justice. It was said that even if the enquiry involved a large number of persons, the committee should frame proper regulations for the conduct of such enquiries but not deny the opportunity. That case was distinguished in Subhas Chander, the differentia being that in one case the right exercised was of the examining body to cancel its own examinations since it was satisfied that the examination was not properly conducted.....Fair hearing is thus a postulate of decision making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law',
In Swadeshi Cotton Mills v. Union of India, : 2SCR533 the Supreme Court had again observed that the non-observance of the principles of audi alteram partem violates the impugned order. As the impugned decision of the Vice-Chancellor was based on the recommendations of the Committee and the appellants were not given any opportunity either by the Committee or by the Vice-Chancellor to show cause against the cancellation of the examination, the principles of natural justice have been violated and the same have to be set aside.
11. In the view we have taken, it is not necessary to deal with the other submissions made by Mr. Waghray. However, we have briefly noticed those other submissions and given reasons for not accepting the following submissions made by him.
12. The first subsidiary submission made is that the results in all the other M. D. and M. S. examinations held by the University where similar evaluation process was involved have been announced and in applying different standards so far as the M. D. examination in Gynaecology and Obstetrics is concerned, the University has violated Art. 14 of the Constitution. No complaints were made to the University regarding the manner in which the examinations in other Post Graduate snecialities were conducted by the University. The necessary facts to support the discrimination alleged by Mr. Waghray are not made available before us. In the absence of such material, this submission made by Mr. Waghray has to be rejected.
13. The second subsidiary submission is based upon the personal inconveniences of some of the appellants for again preparing themselves to sit for a fresh practical examination. If on merits the appellants cannot succeed, they cannot also succeed because of the personal difficulties which some of them may be having in sitting again for the practical examination. In passing however, we must observe that the scheme of Rule 10 referred to above does not contemplate the practicals being evaluated separately. The evaluation of a candidate is required to be made, taking the examination as a whole and not piecemeal. If the University wants to adopt such evaluation to be made on a piecemeal basis, it has to amend the rules properly before requiring the examinees to sit for any part of such composite examination.
14. The power of the Vice-Chancellor to have appointed a Committee to go into the allegations made by respondents 5 to 8 is not disputed. Mr. Waghray has, however, disputed the power of the Vice-Chancellor to cancel the examination. Section 34 of the Osmania University Act which provides for the powers and duties of the Vice-Chancellor has also provided a power to the Vice-Chancellor to take such action as may be necessary, when he considers immediate action desirable, the only limitation being that he shall report such action to the authority concerned. Section 21 of the Osmania University Act constitutes the Syndicate of the University the authority to conduct university examinations and to approve and publish the results thereon. In the counter filed by respondents 1 and 3, it was averred and it is not disputed, that the Vice-Chancellor had, in this case, placed the matter before the Syndicate and obtained its approval of the action taken by him. Being so, the action of the Vice-Chancellor in cancelling the examination cannot be impugned for want of jurisdiction. Our learned brother has, after considering the relevant provisions of the Osmania University Act and the statutes, ordinance and regulations relating to the Osmania University, rightly come to the conclusionthat the action of the Vice-Chancellor cannot be impugned on the ground of want of jurisdiction.
15. The appellants having succeeded on the merits, it remains for us to consider the form in which we should grant the relief to them. In the writ petition, the prayers sought were that the University may be directed to publish the results of the examinations on the basis of the performance of the students at that examination and to declare the action of the 3rd respondent in cancelling the said examination and in proposing to hold a re-examination as illegal and void. We have given earlier our reasons for holding that the order cancelling the examination and the notification made for holding a fresh practical are illegal and, therefore, there will be a declaration to that effect. Under the relevant ordinance No. 7, the result of the university examination shall be approved and published by the Results Committee. The final results sheet has still to be approved by the Results Committee before the said Committee can be directed to publish the results thereof. The Court cannot usurp the functions of the results committee. We, therefore, direct the University to place the final results sheet before the results committee and publish the results thereof, after the results committee approved of the same.
16. The writ appeal is accordingly allowed, granting the declaration and direction in favour of the appellants as indicated above. We direct the parties, in the circumstances, to bear their respective costs in this writ appeal. Advocate's fee Rs. 150/-.
17. K.M.R.J. & P.R.R.J.:-- Oral request for leave to appeal to the Supreme Court has been made. We do not consider that any substantial question of law, which needs to be decided by the Supreme Court, arises for determination. Oral request is refused.