1. This group of four petitions involves common questions of law and, therefore, at the request of the learned Counsel for the parties they have been heard together and are being disposed of by this common judgment. In these petitions the petitioners challenge the examination results declared by the Gujarat Nursing Council, (hereafter called 'Council') on the basis of the interpretation of the Bye-laws and the examination instructions issued there under. In particular the petitioners challenge the power of the Council to amend or alter the provisions contained in the Byelaws and instructions by the Administrative Order contained in the resolution of the Council.
2. At the hearing of these petitions Mr.V. J. Desai, the learned Counsel for the petitioners in the Special Civil Application No. 3761/83 has contended that the Council is not justified in taking a stand that the meeting of the Board of Examiners is not necessary in view of the fact that gracing policy with regard to the candidates who have appeared in the examinations has been framed and enforced. Mr. Desai has relied on Bye-law No. 6 in Part III of the Gujarat Nurses, Midwives and Health Visitors Bye-laws 1971, (hereafter called 'Bye laws'). The Bye-law 6(l) states that there shall be an Examination Board consisting of a President appointed by the Council and not more than six members of the Council, Bye law No. 6(5) states that the Examiners shall meet and discuss the results of the examinations held by them and shall then submit the results to the Registrar who shall declare them under the signature of the President of the Examination Board. Bye-law No. 6(7) laws down that the examiners shall comply with the instructions to the examiners set out in Schedule F. Schedule F contains elaborate instructions to the examiners. The material, 'instructions relevant for ' these petitions are instructions Nos. 7, 11, 12, 13, 14, 15 and 16.
They are as follows:
'(7) The examiners should observe the-, strictest punctuality and should follow these instructions carefully.
(11) The examiners shall not make any alteration (save in the case of clerical errors) in their list of marks when these have been once made over to the Registrar. All corrections should be initialled by the examiner who makes the correction.
(12) The examiners should prepare a joint report of the answers. Such report should include -
(a) A statement of the general standard attained
(b) The main points which are expected;
(c) The reason why marks are lost.
(13) Examiners shall meet among themselves to determine the result before they are submitted to the Registrar. However, meeting of the 'examiners may be held to determine the result before they are declared. Any one of the two examiners must attend the meeting of the examiners to consider the result. Such meeting shall be presided over by the President of the Examining Board, who shall sign the final consolidated result sheet.
(14) Suggestions which the examiners may desire to make in regard to any matter appertaining to the examination shall be submitted to the Council.
(15) Attendance at examiner's meeting is an integral part of the duties attached to the examiner ship and examiners are expected to make their other engagement consistent with such attendance.
(16) The proceedings of all the meetings of examiners shall be kept strictly confidential.'
3. Mr. Desai has argued that these instructions are of mandatory nature and, therefore, it is imperative that there should be a meeting of the examiners. According to him, by not following the mandatory directions to hold the meeting of the examiners the petitioners have suffered inasmuch as most of the petitioners are marginal cases where the candidates have failed by one or two marks while appearing as repeaters in the subject in which they have failed availing themselves of the exemptions which they were entitled to.
4. Mr. N. J. Mehta, the learned Counsel for the respondents in all these four petitions has submitted that the provisions in the instructions regarding holding of the meeting of examiners prior to the finalisation of the results are of a directory nature and hence if they are not followed no prejudice is caused to the petitioners. Mr. Mehta stated that the Council having framed a Policy regarding giving grace marks to the candidate appearing in the examination there was no need for holding the meeting of the examiners because, according to him, the sole object of the meeting of examiners was to determine the cases of those candidates who deserve grace marks. When Mr. Mehta was reminded that instruction No. 12 sets out the three topics on which the report has to be prepared by the examiners and, therefore, his contention that the sole purpose of the meeting of the Board of Examiners is to consider the question of gracing only was untenable he urged that the purpose of the meeting of the examiners was not only to give grace marks but also to prepare a report contemplated under instruction No. 12 which according to him, was nothing more than a post audit operation which could be of some guidance for future. He submitted that in any case the report under instruction No. 12 was in the nature of recommendation which could be dispensed with and not much importance should be attached to the preparation of the said report. This contention of Mr. Mehta cannot be accepted because, if we see the relevant Bye-laws and- the instructions given to the examiners it becomes very clear that the meeting of examiners is considered to be of vital importance in the preparation of the results of the examinations. It is wholly incorrect to say that the sole purpose of the meeting of examiners is to consider the cases of the candidates who deserve grace marks. In fact, examining the contents of the aforesaid instructions Nos. 7 and 11 to 16 it is quite clear that considerable emphasis has been laid on the meeting of he examiners. Instruction No. 15 says that attendance at examiners meeting is an integral part of the duties attached to the examiner ship and examiners are expected to make their other engagement consistent with such attendance. It is, therefore, quite clear that every examiner is expected to attend the meeting. The examiners also have to prepare the report as required by instruction No. 12.One of the important tasks of the examiners in the meeting is to determine the results before they are submitted to the Registrar which means that they have to consider the cases of all these candidates whose cases need to be considered whether that may be for the purpose of gracing or to determine the relative merits. or being qualified for getting awards. The examiners have also been given power to make alterations in their list of marks which means that they can make necessary alterations when they find it necessary as a result of discussion among themselves. The power to make corrections contained in instruction No. 11 is available to the examiners till the list of marks is submitted to the Registrar. If, however, any alteration is made by any examiner he is required to initial the correction which clearly shows that the examiner has power to make correction. Mr. Mehta in the course of his argument has stated that the examiner has no power to make any alteration in the marks assigned by him to any candidate in any particular paper; This contention of Mr. Mehta is obviously untenable. Instruction No. 11 is very clear and specific. The only restriction on the power of the examiner to make correction is that it can be done prior to the results are submitted to the Registrar. After the results are submitted to the Registrar the examiner cannot make any alteration but in the nature of things the corrections would be made prior to the results are submitted to the Registrar and this can happen when there has been a meeting of examiners. It seems that the dominant object in making provision for the meeting of the examiners is that when the examiners sit together they would be able to pool their assessment about every single candidate and to take an integrated view of the performance of each candidate. Every examiner individually would know the performance of a candidate in the section which he has examined but he would not know the-performance of that candidate in the sections which are examined by other examiners. Therefore, meeting of the examiners is provided for so that the overall assessment -of -the performance of each candidate can be arrived at and proper placing can be done not only in respect of showing grace in the eligible cases but also consider relative merits among the top scorers for scholarships, awards and some other matters. To hold that the provisions regarding holding the meeting of examiners are of directory nature and hence they can be dispensed with would result in doing away with quite a lot of good and useful work which the meeting is Nursing Council intended to do. It is, therefore imperative that instructions with regard to holding meeting of examiners must be held to be of mandatory nature. The purpose served by the meeting of the examiners is salutary and hence it deserves to be retained. In the absence of the meeting of the examiners the results of the candidates would be of fragmentary nature and there will not be an overall assessment of the performance of a given candidate in the entire examination.
5. If, however, it is thought necessary that the provision with regard to holding of the meeting of examiners is to be done away with, it could be done by amending the Bye-laws. It cannot be done by an administrative order or by an executive direction. The Bye-laws having been framed under the statute, they have the statutory force and can be amended only as provided for by the law. They can under no circumstances be amended by the Resolution as it is sought to be done in this case.
6. The second challenge in these petitions is to the constitutional validity of the gracing system adopted by the Council. The gracing system was framed in the year 1981 and has been enforced since 1983. The said gracing system lays down somewhat elaborate rules with regard to grace marks that may be given to the candidates failing in certain subjects. The provisions with regard to gracing which is under direct challenge in these petitions are Rules No. I and V of General Rules. The said two Rules lay down that gracing is not applicable to repeaters who appear only in part examination. On account of this gracing, system the petitioners in these petitions have repeatedly failed in one paper while having exemptions in the other subjects. It must be borne in mind that the minimum number of marks required for passing is 50 which is quite a high percentage. Several petitioners have failed by one mark only having obtained 49 per cent marks. Mr. Desai has contended on behalf of the petitioners that the aforesaid Rules Nos. I and V which exclude candidates, who have appeared in part of the examination: from getting any grace mark at all is discriminatory and, therefore, violative of the petitioners' fundamental right of equality guaranteed under Art. 14 of the Constitution of India. Mr. Desai has urged that it is not open to the Council to frame Rules Nos. I whereby the repeaters who appeared in part of the examination-a re totally excluded just because they have chosen to avail of the exemptions available to them in other paper~. He has submitted that the said two Rules are particularly harsh in those cases where candidates have failed by only one mark as in the cases of some of the present petitioners. Mr. Mehta has urged that the gracing policy is within the rearm of discretion of the Nursing Council which is an academic body and hence it should be left to that body which in its wisdom would ordinarily not discriminate. According to Mr. Mehta there is an intelligible difference between a candidate who avails of the exemptions and chooses to appear in part of the examination and a candidate who voluntarily forgoes the benefit of exemptions and takes the entire examination at a time. Mr. Mehra argued that a person who appears in the entire examination necessarily carries more burden than a candidate who appears in part and, therefore, according to him the two cases stand entirely on different footings. Mr. Mehta has also- urged that by adopting the gracing system it is made clear in advance to every intending candidate that grace marks would not be available if candidates choose to avail themselves of the exemptions, This, according to him, is a clear option given to the candidates either to claim exemption and forgo grace marks or to appear in all the subjects including those in which the candidate is entitled to claim exemption. Mr. Mehta is right in his submission only in part. As far as. Distinction between a candidate who appears in part and one who appears in the whole of the examination the two must fall in different categories and the one is not entitled to claim the whole of the benefit available to the other. But, the matter of giving grace marks the distinction would require that each category is shown grace according to what it legitimately deserves. The candidates who have appeared in part of the examination cannot be totally excluded from grace because the basic concept of giving grace marks is to help a candidate who has come very near to the success but by a very narrow margin be is going to fail. When the consideration is to help a person who is very close to success, on a sympathetic ground it seems that the total exclusion of a candidate from being shown the grace simply because that candidate availed of the exemption and appeared only 111 the subjects in which he failed seems to be on the face of it, discriminatory. It is open to the educational. body like the Nursing Council to adopt a system of gracing wherein it may show more grace to those repeaters who appear in entire examination and less grace to those who appear in part examination, but not to show any grace merely on the ground that the candidate has appeared only in part of the examination is being devoid of grace and in a case like that of petitioner No. 1 in Special Civil Application No. 3761 of 1983 where she has been made totally ineligible for appearing in that one paper in which she had secured 49 per cent marks and faded by one mark from appearing ever in future because this is her fifth and last chance with the result that she will remain an unqualified nurse for the rest of her life which amounts to not only being graceless but also it is a matter of disgrace for the academic body like the Council. The said petitioner No. I had the misfortune of appearing in this one paper five times. In the fifth and final attempt her getting 49 per cent marks has been an unmitigated disaster for her. She will never be a qualified nurse. The minimum of grace can save her and similar others. This is the direct result of the so-called gracing system now in, force which :shows grape only selectively: excluding other equally deserving ones. Under the gracing system in force a maximum of three grace marks can be given in one subject up to two subjects only to a candidate who has appeared in the entire examination. The Council, may if it thinks proper give lesser number of grace marks, say two or even one to a candidate who has appeared in part examination but not to give any grace mark at all to a candidate who has appeared in part of the examination is clearly discriminatory. To give less is something basically different from giving nothing at all. There is no doubt that, the two categories namely those who appeared in the entire examination and those who appeared in part stand on a different footing. But that does not mean that one category should be totally excluded from gracing benefit because that would defeat the very purpose for which grace is to be shown. Mr. Mehta has argued that in a gracing system some candidates are bound to be totally excluded, for example, when grace marks in a single paper is 3, a candidate who gets 4 marks less would be excluded. This argument of Mr. Mehta is untenable as in the case of a candidate who is unable to pass even if he is given the grace marks stands on an entirely different footing. Grace marks are to be given only to those who fail by a very narrow margin, which has to be precisely determined. All those who fall outside the limit could be legitimately excluded.
7. Mr. Mehta has laid considerable emphasis on the fact that the gracing system which is adopted by the Council is similar to the system adopted by several Universities and the Professional Examination Bodies in which this provision finds its candidate who appeared in part of the examination would be excluded from getting after gracing or condonation marks. Mr. Mehta has also stressed that it is a matter of policy for the independent educational bodies to decide for themselves as to who should be entitled to grace marks and that any interference in gracing system would impinge upon the independence of the academic body. This argument of Mr. Mehta also has to be rejected because while it is correct to-say hat the independent educational bodies art free to formulate their own policies it is quite obvious that they cannot do so by impinging upon the fundamental right of equality of the citizens. Academic propriety is quite distinct and separate from the legal and constitutional validity of rules or regulations they may make for achieving their objectives. It is the duty and the privilege of the Courts to determine the legal and constitutional, validity of the Rules, Bye-laws, Regulations, administrative or executive orders or directions. A provision which is found to be illegal or unconstitutional cannot be upheld because it is widely prevalent Dr adopted by most of the Universities and Examination, Bodies or on the ground that it is his exercise-of academic independence. If a particular Rule, regulation Bye-laws, order or direction of an educational body is illegal or unconstitutional it will have to be struck down though widely prevalent. It is not correct to say that this would interfere with the independence or autonomy of the educational bodies. Such bodies can only make bye-laws rules, regulations or give directions, which are legally and constitutionally valid.
8. In the circumstances of the case, this Court has no hesitation in sticking down Rules Nos. I and V of the Gracing System adopted by the Nursing Council which, says that the gracing is not applicable to the repeaters who appear in part examination., The result is that total exclusion from gracing to a candidate who has appeared only in part of the examination is held to be void. It is open to the Council to determine as to how much gracing marks may be given to a repeater who has appeared in part of he examination. That is within the discretion of the Council. It may decide to give either two or one mark to a repeater who has appeared in part of the examination but not to give any mark amounts to a hostile discrimination and hence it is held to be unconstitutional being violative of the petitioners' right to equality guaranteed under Art. 14 of the Constitution.
9. Incidentally it may be noted that it is on account of a curious interpretation put by the Council on the relevant Bye-laws and Examination instructions that the examiners meetings were not held and consequently some of the petitioners have been. Declared failed because they have secured 49 percent marks. It is not very difficult to imagine that if a meeting of the examiners was held as required by the Bye-laws and the instructions their cases could have been considered and they would not have been allowed to fail only one when they had secured as many as 49% of marks. The petitioners Nos. 1, 2 & 3 in Special Civil Application No. 3761 of 1983 who have secured 49 marks each and failed by only one mark have suffered double damage, one on account of not holding the examiners meeting as prescribed where their cases could have been possibly considered with sympathy and the second one on account of the totally arbitrary provision that the repeaters who appeared in part of the examination would be totally excluded from gracing system in.
10. In the result, all the four petitions are allowed on both the counts.. A writ of mandamus is issued directing to, Council. to hold the meeting of the examiners to consider the cases of the stationers and similar other petition cases and if they come to a conclusion that taking into consideration the overall performance of each of them if candidate deserves to get the passing marks they may make such alterations in their marks as they consider necessary as per instruction No. 11 and submit the same to the Registrar for in resp6ct of declaring the appropriate to result of the petitioners. On the second count also, the petitions succeed. A writ of certiorari is issued to quash and set aside Rules Nos. I and V of the General Rules in the gracing system. The academic Council may decide as to how many grace marks should be given to the repeaters who appeared in part of the examination keeping in mind that passing is at a high percentage of 50 out of hundred.
11. The cases of all petitioners and others similarly situated will be considered at the meeting of the examiners in respect of the examinations whose results are challenged here. The petitioners will also be entitled to the grace marks as fixed by the Council for the repeats who appear in part of the examination.
12. Before I part with these matters, it is necessary to observe that the question as to whether the declaration of results has duly been certified by the President of the Board of Examination is not gone into because the same does not arise directly and substantially in these petitions. That question may be examined in an appropriate case. Since the declarations of results of the petitioners in all these four petitions are held to be void they will have to be reconsidered as directed above. The academic Council will carry out the aforesaid instructions as expeditiously as possible. In any event, it would be before the results of July 1984 Examination, which has commenced today, are declared. In the result, all the four petitions are allowed. In the circumstances of the case there shall be no order as to costs. Writs to issue forthwith. Rule made absolute.
13. Petitions allowed.