WPC No. 34131 of 2011 (N) and connected matters

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933** **WPC.No. 34131 of 2011 (N) -------------------------** **PETITIONER(S):** **-----------------------** **FAWAS AJMAL, SON OF DR. AJMEL HABEEB, AGED 20 YEARS, 2ND YEAR BACHELOR OF DENTAL SCIENCE STUDENT, ROYAL DENTAL COLLEGE, CHALISSERY, PALAKKAD DISTRICT.** **BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA.** **RESPONDENT(S): -------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE KERALA UNIVERSITY OF HEALTH SCIENCES, THRISSUR-680 596, REPRESENTED BY ITS REGISTRAR.** **3. THE PRINCIPAL, ROYAL DENTAL COLLEGE, CHALISSERY, PALAKKAD DISTRICT-679 536.** **R1 BY GOVT. PLEADER MR.MOHAMMED SHAH. R2 BY ADV. SRI.P.SREEKUMAR,SC, KERALA UTY.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-01-2012, ALONG WITH WP(C) NO.34643/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **WPC.No. 34131 of 2011 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 TRUE COPY OF THE EXTRACT OF THE REGULATION OF BDS COURSE.** **EXT.P2 TRUE COPY OF THE EXAMINATION RESULTS OF THE PETITIONER. EXT.P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT.** **EXT.P4 COPY OF THE EXTRACT OF THE REGULATION ON BDS (BACHELOR OF DENTAL SCIENCE).** ## **EXT.P5 COPY OF THE LETTER NO.2369/ACC-II.KUHS/2011 OF THE UNIVERSITY ALONG WITH MINUTES OF THE DEANS MEETING DATED 28/04/2011.** **EXT.P6 COPY OF THE EXAMINATION RESULTS OF MANASI MENON THROUGH WEBSITE DATED NIL.** **EXT.P6A COPY OF THE EXAMINATION RESULTS OF SHILPA SASIKUMAR THROUGH WEBSITE DATED NIL.** **EXT.P6B COPY OF THE EXAMINATION RESULTS OF LAMIYA ABBOBACKER THROUGH WEBSITE DATED NIL.** **EXT.P6C COPY OF THE EXAMINATION RESULTS OF AMULYA SAHAJAN THROUGH WEBSITE DATED NIL.** **EXT.P6D COPY OF THE EXAMINATION RESULTS OF ASWATHY T. THROUGH WEBSITE DATED NIL.** **EXT.P6E COPY OF THE EXAMINATION RESULTS OF REENA HALIT G. THROUGH WEBSITE DATED NIL.** **EXT.P6F COPY OF THE EXAMINATION RESULTS OF REVATHY UNNIKRISHNAN THROUGH WEBSITE DATED NIL.** **EXT.P6G COPY OF THE EXAMINATION RESULTS OF FATHIMA M. THROUGH WEBSITE DATED NIL.** ## **RESPONDENT'S EXHIBITS & ANNEXURES:-** **ANNEXURE R2A COPY OF THE RELEVANT PORTION OF THE BDS COURSE REGULATIONS/SYLLABUS.** **WPC.No. 34131 of 2011 (N)** |**EXT.R2A**|**COPY OF THE RELEVANT PORTION OF THE BDS COURSE**| |---|---| ||**REGULATIONS/SYLLABUS 2010 PUBLISHED ON 10/05/2011.**| |**EXT.R2B**|**COPY OF THE NOTIFICATION DATED 18/06/2011 BY THE**| ||**CONTROLLER OF EXAMINATION.**| |**EXT.R2C**|**COPY OF THE MODEL QUESTION PAPER ISSUED TO THE STUDENTS**| ||**OF THE 1ST YEAR BDS EXAMINATION.**| **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **S.SIRI JAGAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)NOs.34131 of 2011, 34429 of 2011, 34643 of 2011, 35010 of 2011, 35012 of 2011, 35138 of 2011, 35139 of 2011, 35140 of 2011, 77 of 2012, 78 of 2012, 94 of 2012, 111 of 2012, 187 of 2012, 677 of 2012, 1496 of 2012. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of January 2012 --------------------------------------------------- ## **JUDGMENT** In all these writ petitions, the petitioners raise the same issue and therefore, all these writ petitions are heard and disposed of by this common judgment. All the petitioners are candidates who appeared for the 1[st] year BDS examination conducted by the Kerala University of Health Sciences in August/September 2011. They were admitted to the course in 2010. When they were admitted to the course, the criteria for pass was as per Ext.P1 Regulations which stipulated the criteria for pass as follows: “a. fifty percent of the total marks in any subject computed as aggregate for (a) theory, i.e., written, viva voce and internal assessment and (b) practicals including internal assessment (150 marks out of 300). b. A candidate shall secure a minimum aggregate of 50% marks in the theory section, which includes University theory examination, viva voce examination and internal assessment (i.e., a minimum of 100 marks out of 200). Besides there should be a separate minimum of 45% for the University theory (i.e., 45 marks out of 100)”. 2 2. According to the petitioners, the petitioners wrote the examination while Ext.P1 Regulations were in force and after the examinations, by Ext.P3 order, the University changed the criteria for pass and instead of 45%, separate minimum for theory and practical, separate minimum was increased to 50%. According to the petitioners, the same is illegal and unsustainable. 3. The petitioners raise three contentions. The first is that, the paramount body competent to lay down standards for Dental Education in India is the Dental Council of India, who have by the Regulations for the Degree of Bachelor of Dental Surgery, 2007, prescribed minimum criteria for a pass, which is only 50% of the total marks in any subject computed as aggregate for theory, i.e. written, viva voce and internal assessment and practicals including internal assessment separately. Therefore, according to the petitioners, the University has no powers to prescribe different criteria for pass. The second contention is that, the petitioners got admission in 2010 when Ext.P1 Regulations were in force and therefore, in the midst of the academic year, the Regulations regarding criteria for pass cannot 3 be changed. The third contention is that the petitioners having written the examination in accordance with Ext.P1 Regulations, the criteria for pass applicable to such examination cannot be regulated by Ext.P3 order passed on 15.11.2011, published after the examinations. 4. A counter affidavit has been filed by the 2[nd] respondent. The contentions raised therein are that the Board of Studies and the Faculty of Dentistry has recommended the Regulation, Scheme and Syllabus for Bachelor of Dentistry, which recommendations were approved by the Vice Chancellor, since Academic Council has not been constituted yet, exercising emergency powers conferred by Sub Section 7 of Section (12) of the Kerala University of Health Sciences Act, 2010. Ext.R2A is the Regulations so approved by the Vice Chancellor in exercise of powers of the Academic Council. As per the said Regulations for BDS and MDS, the criteria for pass is as follows: ## **“Criteria for a pass:** For declaration of pass in a subject, a candidate shall fulfill the following criteria: i. Fifty percent of the total marks in any subject computed as aggregate for (a) theory i.e., written, viva voce and internal assessment and (b) practicals including internal assessment (125 marks out of 250). 4 ii. A candidate shall secure a minimum aggregate of 50% marks in the theory section, which includes University theory examination, viva voce examination and internal assessment (i.e. a minimum of 75 marks out of 150). Besides this there should be a separate minimum of 50% for the university theory (i.e.50 marks out of 100). iii. In the University Practical /clinical examination, a candidate shall secure 50% of University practical marks and Internal Assessment combined together (i.e. a minimum of 50 out of 100 marks). Besides this there should be a separate minimum of 50% for the University Practical / clinical exam (i.e. 40 marks out of 80). iv. In case of Pre clinical Orthodontics, Pre clinical Prosthodontics and Pre clinical Conservative Dentistry in 2[nd] BDS examination, where there is no written examination, minimum for pass is 50% of combined total marks of the University Practical, viva voce and the internal assessment (i.e. a minimum of 50 out of 100 marks) for each subject. Besides this there should be a separate minimum of 50% for the University Practical examination (i.e. 30 marks out of 60). v. Successful candidates, who obtain 60 to 74% of grand total marks i.e. total of all subjects, shall be declared to have passed the examination in First class. Other successful candidates who obtain 50 to 59% of grand total marks will be placed in Second Class. A candidate who obtains 75% and above of grand total marks is eligible for Distinction. Only those candidates who pass the whole examination in the first attempt will be eligible for distinction or first class.” ## It is submitted that those Regulations were published in the website of the University as early as on 10.05.2011 much before the examinations were notified and therefore, there is nothing wrong in applying the said Regulations for considering the question of criteria for pass in the examination conducted in August/September 2011, which the petitioners have written. It is 5 pointed out that Ext.P3 relates generally to other courses and Ext.R2A Regulations are specifically made for BDS course and the same only has been made applicable to the petitioners. 5. I have considered the rival contentions in detail. 6. It is true that as per the Regulations for the Bachelor of Dental Surgery, 2007 modified on 25.07.2007, the Dental Council has prescribed the following as the criteria for a pass. ## **“Criteria for a pass:** Fifty percent of the total marks in any subject computed as aggregate for theory, i.e., written, viva voce and internal assessment and practicals including internal assessment, separately is essential for a pass in all years of study. For declaration of pass in a subject, a candidate shall secure 50% marks in the University examination both in Theory and Practical/Clinical examinations separately, as stipulated below: A candidate shall secure 50% marks in aggregate in University theory including Viva Voce and Internal assessment obtained in University written examination combined together. In the University Practical / clinical examination, a candidate shall secure 50% of University practical marks and Internal Assessment combined together. In case of pre clinical Prosthetic Dentistry and Pre clinical conservative dentistry in II BDS, where there is no written examination, minimum for pass is 50% of marks in Practical and Viva voce combined together in University examination ; including Internal Assessment i.e. 50/100 marks. Successful candidates who obtain 65% of the total marks or more shall be declared to have passed the examination in First Class. Other successful candidates will be placed in Second Class. A candidate who obtains 75% and above is 6 eligible for Distinction. Only those candidates who pass the whole examination in the first attempt will be eligible for distinction or class. First class and Distinction etc. to be awarded by the University as per their respective rules.” But according to me, the same constitute only a bench mark and are only minimum standards prescribed by the Dental Council of India. The Supreme Court has in several decisions held that individual States and Universities can prescribe higher standards than those prescribed by National bodies like Medical Council of India, Dental Council of India, AITC etc. Some of those decisions are, **Ambesh Kumar** vs **Principal** , **L.L.R.M. Medical College Meerut [(1986) (Supp) Supreme Court cases 543], Dr.Preeti Srivastava** vs **State of M.P.[(1999) 7 Supreme Court cases 120] and State of T.N. and another** vs. **V.Bratheep and others, [(2004) 4 Supreme Court cases 513]** . Therefore, it is perfectly open to the University to prescribe higher standards in so far as standards so prescribed are not lesser than the standards prescribed by the Dental Council of India. No two views are possible, in respect of the fact that in Ext.R2A the University has prescribed higher standards than those prescribed by the Dental Council of India. Therefore, I do not find any merit in the 7 first contention raised by the petitioners. 7. The second contention is that in the middle of the academic year, the University cannot change the rules applicable for fixing the criteria for pass. There is no such rule prohibiting the University from changing the criteria for pass in the middle of the year. Of course, the change cannot be after the notification of the examination. The candidates are bound by the change of regulations made by the University from time to time to safeguard the standards of education, as the situation warrants. That only has been done by the University by issuing Ext.R2A Regulations fixing higher criteria for pass. 8. Of course, the petitioners would contend that at the time of writing the examination, Ext.P1 criteria for pass was in force and Ext.P3 order changing the criteria was issued only on 15.11.2011 much after the examinations were over and therefore, what is to be followed for this examination is the criteria for pass fixed in Ext.P1 Regulation and not Ext.P3 order. In their counter affidavit, the University has produced Ext.R2A, which was issued on 10.05.2011. In their counter affidavit, they have categorically stated that those Regulations were published 8 in the website of the University for information of all colleges and students. I cannot disbelieve the averments of the University in a counter affidavit, in the absence of any material on record to disprove the same. Therefore, I have no hesitation to hold that for the examination written by the petitioners, the minimum criteria for pass is as prescribed in Ext.R2A, which the petitioners were not able to secure. 9. The petitioners would take a further contention that Ext.R2A Regulations cannot hold the field since the same have not been published in the Official Gazette as required by the Kerala University of Health Sciences Act, 2010. They rely on Sections 44, 45 and 46 of those Regulations, which read as follows: “44. Regulations - (1) Subject to provisions of this Act, the Statutes and Ordinances and the approval of the Governing Council, the Academic Council may make regulations in the manner prescribed by Statutes, providing for all or any of the following matters, namely:- (i) the courses of studies and the conduct of examinations; (ii) the admission of students to the various courses of study and to the examinations; (iii) the qualifications of teachers; (iv) the appointment and prescription of duties of the Boards of Studies and examiners: 9 (v) recognition of examinations, degrees and diplomas of the Universities as equivalent to the examinations, degrees and diplomas of the University; and (vi) all other matters which under the provisions of this Act, the Statutes and the Ordinances are to be, or may be, prescribed by the Regulations. (2) All Regulations made under this Act shall have effect from such date as the Academic Council may direct, but every Regulation so made shall be laid before the Governing Council during its next succeeding meeting. 45. Bye-laws and Orders - (1) Any authority or body may, subject to the previous approval of the Governing Council shall have the power to make bye-laws and orders not inconsistent with this Act, the Statutes, Ordinances and Regulations, for the guidance and working of the Boards and Committees and other bodies constituted under the provisions of this Act, the Statutes, the Ordinances and the Regulations and for regulating the procedure and conduct of business at the meetings of any authority of the University and providing for all matters solely concerning such authority or body. (2) Such bye-laws and orders shall be submitted to the Governing Council which may amend or annul them in such manner as it thinks proper, after ascertaining and considering the views of the authority or body making them. 46. Publication in the Gazette - All Statutes, Ordinances and Regulations made under this Act shall be published by the University in the Gazette.” According to the petitioners, in so far as Ext.R2A Regulations have not been published in the Official Gazette, they cannot be held to have come into force yet. On this point also, I am unable to agree with the petitioners. Sub Section 2 of Section 44 specifically stipulates that all regulations made under the said Act shall have effect from such date as the Academic Council may 10 direct, but every Regulations so made shall be laid before the Governing Council during its next succeeding meeting. Ext.R2A specifically states thus: “As the academic council is not constituted the Vice Chancellor has approved the Regulation, Scheme & Syllabus of B.D.S and M.D.S. course from admission year 2010 onwards by exercising the Powers conferred by Sub Section 7 of Section (12) of Kerala University of Health Sciences Act 2010 (Act 4 of 2011).” (underlining supplied) Therefore, the Vice Chancellor, in exercise emergency powers of the Academic Council under Section 12(7) of the Kerala University of Health Sciences Act, 2010, has stipulated that the Regulations are approved for the admission year 2010 onwards. As such Section 44(2) has been sufficiently satisfied in Ext.R2A, whereby the commencement of the Regulations have been declared to be effective from the admission year 2010 onwards. The petitioners were admitted in the year 2010 and therefore, the Regulations squarely apply to them in view of the stipulation in Ext.R2A. The reliance of the petitioners on Section 46 of the Act is misconceived. That does not stipulate that the Regulations would be effective only from the date of publication of the Regulations in the Official Gazette. It only says that all Statutes, 11 Ordinances and Regulations made under the Act shall be published by the University in the Gazette. When Section 44(2) specifically empowers the Academic Council to prescribe the date of coming into effect of the Regulations, I cannot read into Section 46 a further condition that the Regulations made shall be effective only with effect from the date of publication in the Gazette. In view of the above findings, I do not find any merit in any of the contentions of the petitioners and accordingly all these writ petitions are dismissed. **S.SIRI JAGAN, JUDGE** ## **STU** 12 13