Civil Appeal No 2828 of 1977
Appeal by Special leave from the Judgment and order dated the 7th September 1976 of the Punjab  Haryana High Court in Letters Patent Appeal No 352 of 1975
Jawahar Lal Gupta Janendralal and BR Agarwala for the Appellant
Randhir Jain for the Respondent
The Judgment of the Court Was delivered by VARADARAJAN J
This appeal by special leave is by Punjab University against the Judgment of a Full Bench of the Punjab and Haryana High Court in the Letters Patent Appeal 352 of 1975 confirming the judgment of a learned Single Judge in WP 1017 of 1975
Subash Chander respondent 1 in this appeal joined the Daya Nand Medical College Ludhiana for the MBBS course in 1965 when Regulation 25 of the Punjab University was in force
That regulation required a minimum of 50 per cent of marks to pass in each subject
However Rule 71 relating to the MBBS and certain other courses provided that a candidate who fails in one or more paperssubjects andor aggregate may be given grace marks up to 1 per cent of the total aggregate marks including marks for practical and internal assessment to his best advantage in order to be declared to have passed the examination
 But in May 1970 an amendment was made by the University in the form of an exception to Rule 21 which corresponds to Rule 71 which was in force in 1965 in the following terms 21 A candidate who appears in all subjects of the examination and who fails in one or more subjects writ ten practical sessional or viva voce andor aggregate if there is a separate requirement of passing in the aggregate shall be given grace marks upto 1 of the total aggregate marks excluding marks for internal assessment to make 825 up for the deficiency if by such addition the candidate can pass the examination
While awarding grace marks fraction working to 12 or more will be rounded to whole
 Exception In the case of MBBS and BDS examinations however the grace marks shall be given up to one per cent of the total of each subject and not upto one percent of aggregate of all the subjects
In other words each subject will be for this purpose a separate unit and a candidate who fails in a subject by not more than one per cent of the aggregate marks of that subject may be given the required number of marks in order to pass in that subject
 Subash Chander respondent 1 appeared for the final MBBS examination in 1974 and secured the following marks and remarks Medicine 202 out of 400 p Surgery 225 out of 400 p Eye and ENT 204 out 400 p Midwifery i Theory 95 out of 200 ii Practical 106 out of 200 Reappear According to Regulation 25 read with Rule 71 which was in force when Subash Chander joined the course in 1965 he would be eligible for grace marks at 1 per cent of the aggregate marks of 1600 for all the above four subjects which will be 16 and he would have passed in Midwifery also
But he was given only 1 per cent of the total marks of 400 for Midwifery as per the amended Regulation 25 read with Rule 21 of the Punjab University Calendar 1974 namely four as grace marks and held to have failed in Midwifery as the total of 95 marks which he actually secured and the 4 grace marks in the theory in that subject fell short of 50 per cent by 1 mark
His contention is that the old Regulation 25 read with the old Rule 71 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to have passed the final examination in full including Midwifery
826 Before the High Court it was contended for the Punjab University that there is no element of retrospectivity in the application of the amended regulation and rule to students appearing for the examinations subsequent to the amendment and that students are bound to secure marks as per the regulation in force at the time of commencement of the examination concerned and they have no vested right to claim the benefit of any regulation or rule which was in force when they were admitted to the course
Chief Justice SS Sandhawalia who spoke for the FULL Bench in the Letters Patent Appeal out of which this appeal before us has arisen noticed certain decisions of the Punjab and Haryana a High Court and observed that they did not lay down clear guide lines for deciding the question at issue namely whether the University is entitled to change the regulation relating to the percentage of grace marks to be awarded to students and the basis for awarding the game ie whether it is on the aggregate of the marks of all the subjects for which the students appeared in the concerned examination or the aggregate of the marks of the
subject in which they had failed ii that examination
The learned Chief Justice noticed this Court s observation in Hukum Chand vs Union of India which is this The underlying principle is that unlike sovereign legislature which has power to enact laws with retrospective operation authority vested with the power of making subordinate legislation has to act within the limit of its power and cannot transgress the same
 And he proceeded to consider whether section 31 of the Punjab University Act under which the regulations in question have been framed empowers the Senate to frame regulation with retrospective effect
Section 31 reads thus section 311 The Senate with the Sanction of the Government may from time to time make regulations consistent with this Act to provide for all matters relating to the University
2 In particular and without prejudice to the generality of the foregoing power such regulations may provide for
827 a to m x x x x x x x n the courses of study to be followed and the conditions to be complied with by candidates for any University examination and for degrees diplomas licences titles marks of honour scholarships and prizes conferred or granted by the University
 The words other than an examination for matriculation which previously occurred in sub clause n have been omitted by the Government of India notification dated 6121969
The learned Chief Justice opined that there is nothing in section 31 of the Punjab University Act which would clothe the Senate explicitly or impliedly with the power to frame regulations retrospectively and held that the regulation as amended in 1970 has retrospectively altered the condition of Subhash Chander respondent 1 taking the examination to his detriment and could not apply to him and that he is governed only by Regulation 25 read with Rule 71 as it was in force when he joined the course in 1965
The learn ed Chief Justice thus differed from the view taken by a Division Bench of the Punjab and Haryana High Court DK Mahajan and PC Jain JJ in Sewa Ram vs Kurukshetra University in which it has been held thus The University is an autonomous body and has every right in the matter of altering the requisite rules concerning the conduct of examinations and the qualifying marks necessary for a degree provided the regulation are made well in advance to the examination which a candidate is required to take
 The learned Chief Justice rejected the submission made on behalf of the Punjab University that the change in the regulation made in 1970 by the addition of an exception to Rule 21 related to examinations to be held only in future and there is no question of the rule having retrospective operation and held that when Subash Chander respondent 1 joined the course in 1965 he obviously did so with the intention of obtaining the degree in Medicine and Surgery and that it is a single integrated composite course
The learned Chief Justice observed that the change in the regulation by 828 way of addition of the exception to Rule 21 is a change in the course of that single integrated course and is retrospective in nature
The other two learned Judges agreed with this view of the learned Chief Justice and the Full Bench accordingly dismissed the appeal and directed the Punjab University to declare the result of Subash Chander respondent 1 afresh after affording him the benefit of 16 grace marks in accordance with the old Regulation 25 read with Rule 71 which was in force at the time of his admission to the course in 1965 and not only 4 marks as per the amended regulation
We are of the opinion that this appeal has to succeed
Section 311 of the Punjab University Act extracted above enables the Senate of the Punjab University with the sanctions of the Government to make from time to time regulations consistent within the provisions of that Act to provide for all matters relating to the University
Section 312n provides that in particular and without prejudice to the generality of the foregoing power such regulation may provide for the courses of study to be followed and the conditions to be complied with by candidates for any University examination and for degrees diplomas licences titles marks in honour scholarships and prizes conferred or granted by the University
Obtaining the requisite percentage of marks in the subject of the examination falls under the clause conditions to be complied by candidates for any University examination occurring  in sub clause n of section 31 of the Act
Therefore the Senate had the power to award some percentage of marks as grace marks to candidates appearing in University examinations in considering whether they are eligible to pass the examination in the subject or subjects in which they had appeared
There is no dispute that the minimum number of marks required for passing the examination in a papersubject is 50 per cent of marks
When Subash Chander respondent 1 was admitted to the MBBS course in 1965 Rule 71 as it stood then and extracted above provided that the candidate who fails in one or more paperssubjects or aggregate may be given grace marks upto 1 per cent of the total aggregate marks excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the examination
Subash Chander respondent 1 who appeared for the final MBBS examination only nine years latter in 1974 had to pass in four subjects namely Medicine Surgery Eye and ENT and Midwifery for each of which the aggregate was 400 marks
He secured 202 225 and 204 marks in Medicine Surgery and Eye and ENT respectively and was declared 829 to have passed the examination in those subjects
Midwifery consists of two parts namely theory and practical for each of which the aggregate was 200 marks
Subash Chander respondent 1 secured 106 out of 200 in the practical examination and only 95 out of 200 in the theory examination
Since the total aggregate of all the four subjects for which he appeared in 1974 was 1600 marks under the old Regulation 25 read with Rule 71 as it stood at the time of his admission to the course in 1965 he would be entitled to 16 grace marks and would have been declared to have passed the examination as the addition of 16 grace marks to the 95 marks actually secured by him in the practical examination in Midwifery would satisfy the required minimum of 50 per cent
But long before Subash Chander appeared for the final MBBS examination in 1974 the rule relating to award of grace marks to MBBS and BDS students was changed by the Senate of the University in 1970 by the addition of an exception to Rule 21 as mentioned above
It is not contended that the sanction of the Government had not been obtained for making this change
The exception says that in the case of MBBS and BDS examinations however the grace marks shall be given upto 1 per cent of the total marks of each subject and not up to 1 per cent of the aggregate marks of all the subjects in other words each subject will be for this purpose a separate unit and a candidate who fails in a subject by not more than 1 per cent may be given the required number of marks in order to pass in that subject
Under this rule as amended in 1970 Subash Chander respondent 1 was entitled to only 4 marks as grace marks being 1 per cent of the aggregate of 400 marks for Midwifery alone
As the addition of 4 grace marks to 95 marks actually secured by him in the practical examination in Midwifery for which the aggregate was 200 out of that total aggregate of 400 marks for that subject marks only 99 out of 200 it was less than 50 per cent and he was declared to have failed in Midwifery and asked to reappear for that subject
The minimum prescribed for passing in each subject is 50 per cent
Under the old rule as it stood prior 1970 Subash Chander could have passed by getting 16 grace marks being 1 per cent of the aggregate of all the four subjects namely Medicine Surgery Eye and ENT and Midwifery even if he had secured only 84 marks out of 200 in the practical examination in Midwifery which comes to only 42 per cent and he had secured more than 50 per cent in the other subjectspapers
The Senate thought it fit to remedy this glaring defect so far as MBBS and BDS examinations are con 830 cerned by adding the exception to Rule 21 in 1970 under which the grace marks would be only 1 per cent of the aggregate marks in the particular subject
We do not think that the Senate did not have the necessary power to effect that change or had acted unreasonably in making the change
We think that the Senate had the necessary power under section 312n of the Act to fix from time to time the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance or reduce the quantum of grace marks
It has not been contended before us that there was any mala fides on the part of the Senate in making this change
It could not be contended that Subash Chander who appeared for the final examination in 1974 did not a have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by the change
We do not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 21 of the calender for the year 197
Retrospective according to the Shorter Oxford English Dictionary Third Edition in relation to Statutes etc
means operative with regard to past time
The change brought about by the addition of the exception to Rule 21 does not say that it shall be operative with effect from any earlier date
It is obviously prospective
It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander respondent 1 who appeared for the final examination in 1974 after he had joined the course earlier in 1965
No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating there to which were in force at the time of his admission would continue to be applied to him until he finished his whole course
In the Calendar for 1979 we find the following at page 1 Notwithstanding the integrated nature of a course spread over more than one academic year the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year
Nothing in these regulations shall be deemed to debar the University from amending the 831 regulations subsequently and the amended regulations if any shall apply to all students whether old or new
 This is as it should be though there was no such provision in the Calendar of 1965 when Subash Chander was admitted to the course
It is admitted that it was introduced only in 1971
The absence of such a provision in the Calendar of 1965 is of no consequence
It is necessary to note in this connection what this Court had said in regard to retrospectivity in such matters in BN Misra vs State
It is this The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can be made
As we read the rule we do not find any retrospectivity in it
All that the rule provides is that from the date it comes into force the age of retirement would be 55 years
It would therefore apply from that date to all government servants even though they may have been recruited before May 25 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all government servants even though they were recruited before 1957
But it is urged that the proviso shows that the rule was applied retrospectively
We have already referred to the proviso which lays down that government servants who had attained the age of 55 years on or before June 17 1957 and had not attained the age of 55 years on May 25 1961 would be deemed to have been retained in service after the date of superannuation namely 55 years
This proviso in our opinion docs not make the rule retrospective it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961
Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no government servant was retired before the date of new rule ie May 25 1961 and all of them were continued in service up to December 31 1961 and were therefore to retire on reaching the age of superannuation according to the old rule
We are therefore of opinion that the new rule reducing the age of retirement 832 from 58 years to 55 years cannot be said to be retrospective
The proviso to new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule
The new rule therefore cannot be struck down on the ground that it is retrospective in operation
 Therefore we are clearly of the opinion that there is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the MBBS course in 1965 when the rule regarding award of grace marks was different
In these circumstances we affirm the view of DK Mahajan and PC Jain JJ
expressed in the Division Bench judgment in Sewa Ram vs Kurukshetra University Supra and disapprove the view taken by the learned Judges of the Full Bench in the decision under appeal in this case and hold that the University was right in holding that Subash Chander respondent 1 was not entitled to 16 grace marks under the old rule but was entitled to only 4 grace marks under the new rule and had therefore not passed the examination in Midwifery
We allow the appeal but without any order as to costs
However this decision will not effect the result of the examination of Subash Chander in Midwifery if it had been declared as per the direction of the learned Judges of the Full Bench in the Letters Patent Appeal
HSK Appeal allowed


Summary:
The first respondent joined MBBS course of the appellant Punjab University in 1965
At that time Regulation 25 of the Punjab University framed under section 31 of the Punjab University Act required a minimum of 50 per cent of marks to pass in each subject and Rule 71 relating inter alia to MBBS course provided that a candidate who fails in one or more paperssubjectsor aggregate may be given grace marks upto 1 per cent of the total aggregate marks excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the examination
In 1970 Rule 71 was amended by the addition of an exception to Rule 21 which provided that in the case of MBBS examination however the grace marks shall be given upto 1 per cent of the total marks of each subject and not upto 1 per cent of the aggregate marks of all the subjects
The first respondent who appeared for the final MBBS examination in 1974 was declared to have failed in one subject because he could not secure 50 per cent in that subject even after being awarded the grace marks according to the new rule
This was challenged before the High Court by the first respondent on the ground that the old Regulation 25 read with the old Rule 71 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to have passed in that subject
The Punjab University contended that there was no element of retrospectivity in the application of the amended rule and that students were bound to secure marks as per the regulation in force at the time of commencement of the examination concerned and they had no vested right to claim the benefit of any regulation or rule which was in force when they were admitted to the course
Confirming the judgment of a single Judge a Full Bench of the High Court in a Letters Patent appeal opined that there was nothing in section 31 of the Punjab University Act which would clothe the Senate explicitly or impliedly 823 with the power to frame regulations retrospectively and held that the regulation as amended in 1970 had retrospectively altered the condition of the first respondent taking the examination to his detriment and  could not be applied to him and that he was governed only by Regulation 25 read with Rule 71 as it was in force when he joined the course in 1965
The High Court observed that MBBS was a single integrated composite course and the change in the regulations was a change in the course of that single integrated course and was retrospective in nature
Hence this appeal
Allowing the appeal  HELD The Senate of the Punjab University had the necessary power under section 31 of the Act to fix from time to time the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance or reduce the quantum of grace marks
830 B There is no element of retrospectivity in the change brought about by the addition of the exception to Rule 21 of the Calendar for the year 1970
Retrospective according to the Shorter Oxford English Dictionary Third Edition in relation to Statutes etc means Operative with regard to past time
The change brought about by the addition of the exception to Rule 21 does not say that shall be operative with effect from any earlier date
It is obviously prospective
It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to the first respondent who appeared for the final examination in 1974 after he had joined the course earlier in 1965
No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course
830E G Shorter Oxford English Dictionary Third Edition referred to There is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to the first respondent who had joined the MBBS course in 1965 when the rule regarding award of grace marks was different
832C The University was right in holding that the first respondent was not entitled to grace marks under the old rule but was entitled to grace marks under the new rule and had therefore not passed the examination
832D Sewa Ram vs Kurukshetra University LPA 97 of 1967 decided on 1771968 by Punjab and Haryana High Court upheld
BN Mishra vs State  referred to 824