IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7985 of 2010 1. ABHISHEK KUMAR SRIVASTVA, S/O VIJAY KUMAR SHRIVASTAVA R/O VILL.- BHERIA, P.S. THAWEY, DISTT.- GOPALGANJ 2. ANGESH KUMAR S/O RAJENDRA PRASAD SINGH R/O VILL.- SIDHPUR, P.O. NARHAN, P.S. BIBHUTIPUR, DISTT.- SAMASTIPUR 3. PANKAJ KUMAR S/O SRI GANGA RAM R/O VILL.- BHABUA WARD-3 P.S. BHABUA, DISTT.- KAIMUR 4. PRABHAT KUMAR S/O MANDEO BAITHA, R/O VILL. AND P.O. ANDAR, SIWAN, DISTT.- SIWAN ….. PETITIONERS Versus 1. THE STATE OF BIHAR 2. SECRETARY, HIGHER EDUCATION, GOVT. OF BIHAR, PATNA 3. VICE-CHANCELLOR, TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR 4. REGISTRAR, TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR 5. EXAMINATION CONTROLLER, TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR 6. PRINCIPAL, JAWAHARLAL NEHRU MEDICAL COLLEGE & HOSPITAL, BHAGALPUR ….. RESPONDENTS For the Petitioners:- Mr. Ramakant Sharma, Senior Advocate, Mr. Rajesh Kumar & Mr. Manish Kumar For the State:- Mr. Ranjeet Kumar Pandey, A.C. To G.P-19 & Mr. Ajit Kumar, A.C. to G.P.-20 For the University:- Mr. Ashok Kumar Keshari With CWJC No.7986 of 2010 1. ARUN KUMAR AJAY, S/O SHRI RAMCHANDRA YADAV, RESIDENT OF MOHALLA-SARDA NAGAR, P.S.- ROSERA, DISTRICT- SAMASTIPUR, PRESENTLY RESIDING AT ROOM NO.3, HOSTEL NO.1, JAWAHARLAL NEHRU MEDICAL COLLEGE & HOSPITAL, BHAGALPUR. 2. SUNIL KUMAR, S/O SRI SANT KUMAR SINGH, RESIDENT OF VILLAGE- KURMA, P.S.- KAHALGAON, DISTRICT- BHAGALPUR ….. PETITIONERS Versus 1. THE STATE OF BIHAR 2 2. SECRETARY, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA 3. VICE-CHANCELLOR, TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR 4. REGISTRAR, TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR 5. EXAMINATION CONTROLLER, TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR 6. PRINCIPAL, JAWAHARLAL NEHRU MEDICAL COLLEGE & HOSPITAL, BHAGALPUR ….. RESPONDENTS ----------- 04. 24.08.2010 Heard learned counsel for the petitioners, learned counsel for the Tilkamanjhi University, Bhagalpur (hereinafter called the University) as also learned counsel for the State. The petitioners in both the writ applications are stated to be students of the first year and third year professional M.B.B.S. course respectively in the Jawaharlal Nehru Medical College and Hospital, Bhagalpur. They are stated to have failed to secure qualifying marks in certain papers and seek the relief for grant of five grace marks. Learned counsel for the petitioners submits that the Medical Council of India has framed Regulations on Graduate Medical Education, 1997 (hereinafter called the Regulations). A fresh notification dated 1.7.2002 has been published in the Gazette amending Regulation 13 of the aforesaid Regulations inserting a new Sub-clause- 10 which reads as follows:- “10. The grace marks up to a maximum of five marks may be 3 awarded at the discretion of the University to a student, who has failed only in one subject but has passed in all other subjects.” He submits that once the Medical Council of India has framed regulations to the extent providing for grant of five grace marks, the University has no discretion in the matter but to grant the same. He strongly relies upon two orders of this Court in C.W.J.C. No. 14076 of 2004 and C.W.J.C. No. 7080 of 2007. Counter affidavit has been filed on behalf of the University. The counter affidavit appears to have been filed by the deponent without proper appreciation. It states at paragraph-10 that by Annexure-B the proposal for grant of five grace marks has been rejected. Annexure-B nowhere states that it has been so rejected. A Bench of this Court in C.W.J.C. No. 14076 of 2004 held that the Medical Council of India being the highest regulatory body for Graduate Medical Education, any regulations made by it is binding on all University providing medical education to arrive at the conclusion that this discretion was to be exercised in favour and for the benefit of the students. In C.W.J.C. No. 7080 of 2007, another Bench of this Court arrived 4 at the conclusion that the University was unable to demonstrate that any decision has been taken by the University to exercise its discretion, when it proceeded to issue directions for grant of necessary grace marks in terms of the aforesaid amendment of the regulations. A bare perusal of Regulation- 13 (10) makes it apparent that discretion has been given to the University by the Medical Council of India to grant or not to grant grace marks up to five. The statutory power to grant or not to grant the grace marks therefore vests in the University. A supplementary affidavit has been filed today on behalf of petitioners enclosing Annexure-9 series dated 6.4.2010 by which they claimed to have represented to the University for grant of grace marks as above. When a power is vested in an administrative authority to act at its discretion, it does not include the discretion not to act at all. There is a statutory compulsion to exercise its discretionary powers either ways in accordance with law. This Court, therefore, holds that, if the petitioners had made a request for grant of grace marks under the regulations, the University was under statutory obligation to exercise its discretionary powers in accordance with law in its 5 wisdom. It is unfortunate that the University appears to have treated its discretionary powers as to include the power not to act at all in its discretion. The Court is constrained to observe that the University by its actions has only generated a wholly avoidable litigation. If the regulations vests discretionary powers in the University, it shall not be the jurisdiction of the Writ Court to usurp the discretionary powers of the University. The Court cannot pre-empt the University from exercising its power in accordance with law and neither can it pre-judge the decision of the University. These aspects of the matter do not appear to have been raised or considered by the Court in the two decisions relied upon by the petitioners. This Court holds after going through the counter affidavit of the respondents University that no decision has been taken by the University in the exercise of its discretionary powers to grant or not to grant grace marks to the petitioners. In A.I.R. 1952 SC 192 (G. Beerappa Pillai Versus Raman and Raman Ltd.) the High Court gave a direction to grant the transport permit to one of the contesting parties. One of the challenges was that the High Court could not substitute its own view of 6 discretion for the view taken or discretion exercise by the specified authorities. The Court at paragraph- 20 & 23 held as follows:- “20. Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.....” “23. We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by Transport Authorities paying regard to all the facts and the surrounding circumstances.” In 1985 (3) SCC 131 (State of U.P. Versus Rajaram Jaiswal) it has been held at paragraph 16 as follows:- “16. The High Court was, of course, clearly in error in issuing a mandamus directing the District Magistrate to grant a licence. Where a statute confers power and casts a duty to perform any function before the power is exercised. or the function 7 is performed, the Court cannot in exercise of writ jurisdiction supplant the licensing authority and take upon itself the functions of the licensing authority. The High Court was hearing a writ petition praying for a writ of certiorari for quashing the order of remand. The High Court could have quashed the order of remand if it was satisfied that the order suffers from an error apparent on the record. But there its jurisdiction would come to an end. The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant a license. To that extent the judgment of the High Court is set aside....” In 1991 (3) SCC 239 (U.P. State Road Transport Corporation & Another Versus Mohammad Ismail & Others) the regulation provided a discretion in the corporation to a driver who failed the fitness test to offer an alternative job. The Court held at paragraph-12 as follows:- “12. The High Court was equally in error in direction the Corporation to offer alternative job to drivers who are found to be medically unfit before dispensing with their services. The Court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in a given case. The Court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The Court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according 8 to law. Whether alternative job is to be offered or not is a matter left to the discretion of the competent authority of the Corporation and the Corporation has to exercise the discretion in individual cases. The court cannot command the Corporation to exercise discretion in a particular manner and in favour of a particular person. That would be beyond the jurisdiction of the Court.” In 2006 (8) SCC 590 (Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and Ors.) it has been held at paragraph 52 and 57 as follows:- “52. When the special leave petition was heard on 04.07.2006, this Court issued notice limited to the question as to whether the provisions of Section 351 of the MMC Act where it has been left to the discretion of the Commissioner to demolish or not to demolish, the High Court could direct a mandamus for demolition. Respondent No.1 filed a counter affidavit dealing not only with the limited question but also to deal with various other matters which have no bearing on the said question. Respondent No.1 in the counter affidavit mentioned various disputed facts.” “57......In our opinion, Section 351 obliges the Municipal Commissioner in the construction of any building or the execution of any work is commenced contrary to the provisions of the Act to give notice requiring the person doing the work to show cause why it should not be pulled down. The word used in this context is shall. If sufficient cause is not shown it is left to the Commissioner's discretion whether or not to demolish the 9 unauthorized construction and, therefore, the High Court, in our opinion, cannot impede the exercise of that discretion by the issuance of a mandatory order. We, therefore, direct the Commissioner to decide the question as to whether he should pass an order for demolition or not.” The same view has been taken in 2009 (16) SCC 601 (Union of India & Another Versus Bilash Chandra Jain & Another). A discretionary power is required to be exercised reasonably and not arbitrarily. It is required to take into consideration all relevant materials and exclude irrelevant material. A perverse order is an anathema to the discretionary power. In the case of Md. Ismali (supra) it has been held at paragraph 15 as follows:- “15........ The Corporation therefore, cannot act mechanically. The discretion should not be exercised according to whim, caprice or ritual. The discretion should be exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment with fairness and equity........” The Vice-Chancellor of the respondent University is directed to ensure that the discretionary power of the University as discussed in the present order is exercised and a reasoned and speaking order 10 facilitating judicial review, should the need arise, is passed within a maximum period of three weeks from the date of receipt/production of a copy of this order before the Vice-Chancellor of the University. This Court, therefore, issues a mandamus to the University to exercise its discretionary powers. The writ application stands disposed. P.K. (Navin Sinha, J.)