THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.No. 1342 of 2009 And W.A.No. 1377 of 2009 Dated: 21-06-2011 W.A.No. 1342 of 2009 Between: Dr. N.T.R. University of Health Sciences, Andhra Pradesh, Vijayawada, Krishna District, Rep., by its Registrar. ….Appellant And Dr. K. Nithesh Kumar and others. ….Respondents. W.A.No. 1377 of 2009 Between: Dr. N.T.R. University of Health Sciences, Andhra Pradesh, Vijayawada, Krishna District, Rep., by its Registrar. ….Appellant And Dr. R. Sujatha Devi & others. ….Respondents. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.No. 1342 of 2009 And W.A.No. 1377 of 2009 Dated: 21-06-2011 Oral common order: (Per GR, J): Heard Sri D.V.Nagarjuna Babu, learned counsel representing the learned Advocate General for the State of Andhra Pradesh, for appellant. There is no representation on behalf of the respondents, though the names of learned counsel Sri K.R. Prabhakar and Sri Chekuri Yadagiri are reflected in the cause list. W.A.No. 1342 of 2009 is directed against the order dated 09-11- 2009 in W.P.No. 16002 of 2009 whereby a learned single Judge of this Court allowed the writ petition filed by the respondents herein (in substance seeking grant of moderation/grace marks to them) and directed awarding of grace marks to the respondents and for declaration of their results without any loss of time. W.A.No. 1377 of 2009 is similarly directed against the order dated 16-11-2009 in W.P.No. 24613 of 2009 allowing the writ petition and directing addition of five (5) grace marks to the respondents herein, if such facility enables them to pass the course as such and declare the results within a period of two weeks from that day, following the judgment dated 09-11-2009 in W.P.No. 16002 of 2009. Since the facts in W.P.No. 16002 of 2009 wherefrom arises W.A.No. 1342 of 2009 is illustrative of the matrix of facts and applicable legal provisions in respect of both the writ appeals, the facts pertaining to W.A.No. 1342 of 2009 may be stated: The writ petitioners joined different Post Graduate courses in Medicine during the academic year 2006-07 in various medical colleges affiliated to the appellant University –Dr. N.T.R. University of Health Sciences, Andhra Pradesh, Vijayawada, Krishna District (for short ‘the University’). They appeared for the final examinations of the Post Graduate Courses in June, 2009. Admittedly, as per the norms stipulated by the University, a candidate must secure a minimum of 50% of marks, both in theory papers and practicals. Each of the petitioners were declared failed in one subject or the other on the ground that they failed to secure 50% of marks in the subject concerned, be it theory or practical. The petitioners asserted that they failed for falling short of five or less marks, in the papers concerned, theory or practicals as the case may be. The writ petitions were thus filed for a declaration that the action of the appellant-University in not providing moderation/grace marks to the students who joined prior to the decision to abolish granting of grace marks; in sending the theory papers to a different set of examiners (other than the set of examiners who have conducted practicals), is illegal, contrary to the Medical Council of India guidelines and sought a consequent direction to the University either to grant moderation/grace marks to the petitioners or send the theory papers of the petitioners to the same set of examiners who conducted the practical examinations for evaluation; and to award appropriate marks to them. The appellant-University in the counter affidavit (in the writ petition) asserted that earlier there was a practice of addition of five (5) grace marks which was dispensed with pursuant to the resolution of the Executive Council of the University at its 172nd Meeting held on 17-07-2007, since the University in its expertise and wisdom was of the opinion that award of grace marks at the Post Graduate level for medical education is unwarranted. Insofar as appointment of same examiner for the theory and practical examinations is concerned, the University contended that the rule is not mandatory and it would depend upon the convenience and availability of adequate number of examiners to value the theory and practical performance of the candidates. The University clearly asserted unequivocally that the writ petitioners’ claim for awarding grace marks is not a claim based on any right. The learned single Judge applied the principle of promissory estoppel and relied on the judgments of the Supreme Court in Motilal Padampat Sugar Mills v. State of U.P.[1]; Nimesh Mehta v. State of Maharashtra[2]; and also a judgment of this Court in A. Sundara Rami Reddy v. Principal, Guntur Medical College, Guntur[3], to hold that since the writ petitioners were admitted into Post Graduate courses during the academic year 2006-07 and the Rules and Regulations framed by the University at that point of time enabled grant of additional five grace marks in case such addition would enable the candidate to pass such examination, whether candidate applies for it or otherwise; law does not permit alteration of rules midstream and accordingly allowed the writ petitions and directed extension of the benefit of addition of grace marks. It requires to be noticed that another learned single Judge of this Court in a decision in Thuramala Madhavi & Ors., v. Dr.N.T.R. Univesity of Health Sciences, Andhra Pradesh, Vijayawada, (W.P.Nos. 8243, 6126 and 196 of 2008, by the judgment dated 09-07- 2008) rejected claims of similarly situated students of Post Graduate courses in Medicine, claiming the benefit of award of grace marks, even after the University had eschewed the practice. I n Punjab University v. Subash Chander[4], the 1st respondent in the appeal before the Supreme Court joined the Medical College in Punjab for pursuing 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 for a pass in each subject. Rue 7.1 pertaining to the MBBS and certain other courses however provided that a candidate who fails in one or more papers/subjects and/or aggregate may be given grace marks up to one per cent of the total aggregate marks (including marks for practical and internal assessment) to enable him to be declared to have passed the examinations. In May, 1970 the University amended the Rule and introduced exception to Rule 2.1 watering down the scheme of award of grace marks. The question inter alia that therefore fell for consideration by the Supreme Court was whether Rules and Regulations prospective in operation could be made after a candidate is admitted to a course of study. The Supreme Court held, allowing the appeal of the Punjab University, that there was no retrospective effect involved in the introduction of exception to Rule 2.1 during the calendar 1970. The 1st respondent before the Supreme Court – Subash Chander had appeared for the final year examination in 1974 (after the exception was introduced in 1970, though he had joined the course earlier in 1965). The Apex Court held that no promise was made or deemed to have been made at the time of admission in 1965 that there would be no alteration of Rules and Regulations in regard to the percentage of marks required for passing any examination or award of grace marks and 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. Consequently, the Court held upholding the amended rule that the provision of an alteration in the schemata of award of grace marks would operate on the 1st respondent and there was no illegality or any other vitiating factor which disables the operation of the current regime pertaining to award of grace marks. The Court clearly held that there is no question of change in the Rules made in the year 1970 having retrospective operation, because it was applied in 1974 to the 1st respondent, who joined the MBBS course in 1965. In view of the clear ratio of Punjab University (4 supra), we hold that qua the Resolution of the appellant/University dated 17-07- 2007 at its 172nd Meeting, the University dispensed with award of grace marks to the students of Post Graduate Medical examinations. The writ petitioners joined Post Graduate medical course during the year 2006-07. The eschewing of awarding of grace marks was not applied by the University to any examinations at which the writ petitioners appeared prior to 17-07-2007. It was applied only in 2009 and as observed by the Supreme Court in Punajb University (4 supra) there was no promise expressed, nor implied either that regulations or rules or the practice pertaining to award of grace marks would be continued either in perpetuity or till the writ petitioners continued in the Post Graduate course. The application of the Resolution of the Executive Council dated 17-07-2007 at its 172nd Meeting has been applied prospectively for the 2009 examinations and as such, suffers from no infirmity warranting interference by this Court under Article 226 of the Constitution or justifying grant of Mandamus as in the judgments under appeal. For the aforesaid reasons, the appeals must succeed and accordingly the judgments in W.P.Nos. 16002 of 2009 and W.P.No. 24613 of 2009 dated 09-11-2009 and 16-11-2009 respectively are set aside. The writ petitions accordingly fail and stand dismissed. No costs. __________________________ JUSTICE GODA RAGHURAM __________________________ JUSTICE P. DURGA PRASAD Dated: 21-06-2011 Pvks/* [1] AIR 1979 SC 621 [2] (2005) 13 SCC 707 [3] 1968 (1) An.W.R. 56 [4] (1984) 3 SCC 603