Rajiv Gandhi University Of Health ... vs Dr Haroon Adoni
2023 Latest Caselaw 7472 Kant

                                            -1-
                                                       NC: 2023:KHC:38799-DB
                                                         WA No. 909 of 2023



                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 2ND DAY OF NOVEMBER, 2023

                                          PRESENT

                   THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE

                                            AND

                           THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                           WRIT APPEAL NO. 909 OF 2023 (EDN-RES)

                   BETWEEN:

                   RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
                   4TH T BLOCK, JAYANAGAR,
                   BENGALURU, KARNATAKA 560 041.
                   REPRESENTED BY REGISTRAR EVALUATION
                                                                ...APPELLANT
                   (BY SRI. GIRISHKUMAR R.,ADVOCATE)
                   AND:
                   DR HAROON ADONI,
                   S/O LATE KHAJAMOINUDDIN,
                   AGED ABOUT 32 YEARS,
Digitally signed   R/AT NO FLAT NO 302, SAHARA RESIDENCY,
by SHARADA
VANI B
                   3RD FLOOR, MODEL COLONY, AMBEDKAR NAGAR,
Location:          YASHAVANATHPURA, BANGALORE 560 022.
HIGH COURT                                                  ...RESPONDENT
OF
KARNATAKA          (BY SMT.SUMANA BALIGA.,ADVOCATE FOR C/R)

                        THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
                   KARNATAKA HIGH COURT ACT PRAYING TO A) SET-ASIDE THE
                   ORDER DATED 11/04/2023 PASSED BY THE LEARNED SINGLE
                   JUDGE, HIGH COURT OF KARNATAKA BENGALURU IN W.P.
                   4448/2023 AND B) PASS ANY SUCH ORDERS AS THIS HONBLE
                   COURT DEEMS FIT IN THE INTEREST OF JUSTICES AND
                   EQUITY.
                        THIS APPEAL, COMING ON FOR PRELIMINARY HEARING,
                   THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
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                                               NC: 2023:KHC:38799-DB
                                                  WA No. 909 of 2023




                             JUDGMENT

This intra-court appeal seeks to lay a challenge to a

learned Single Judge's order dated 11.04.2023 whereby

the respondent's W.P.No.4448/2023 has been allowed.

The operative portion of the order reads as under:-

"(2) The writ of mandamus is issued directing the respondent-University to round off the marks obtained by the petitioner in Paper-I at 51.25 % to 52% and Paper-II at 45.25% to 46% in the examination of the discipline of MD Pathology (RS-3) conducted November 2022 by them. Further, to round off the total average marks to 199 instead of 197 out of 400 secured by the petitioner, then in total the average marks of 49.75% to 50%."

2. Learned panel counsel appearing for the

appellant vehemently argues that the ordinance dated

29.03.2019 which governs valuation of answer scripts

inter alia in P.G. courses provides for rounding off the

marks to the next nearest decimal unit, is only as a One

Time Measure; and therefore, learned Single Judge is not

justified in issuing the mandamus of the kind. In support

of his submission, he relied upon a decision of the Apex

Court in RAJIV GANDHI UNIVERSITY OF HEALTH

SCIENCES, BANGALORE VS. G.HEMLATHA AND OTHERS,

(2012) 8 SCC 568.

NC: 2023:KHC:38799-DB WA No. 909 of 2023

3. Having heard the learned counsel for the parties

and having perused the appeal papers, we decline

indulgence in the matter broadly agreeing with the

reasoning of learned Single Judge. Clause 4 of the subject

Ordinance reads as under:-

"4. Procedure for General Valuation: a. All answer scripts of Post graduate including PG-Diploma and super specialty courses in Medical/Dental/Homeopathy shall be subjected to Digital Valuation as prescribed by RGUHS. The average of the total marks awarded by the four valuation of the paper, which is rounded off to the nearest value, shall be considered for computation of the results.

b. All answer scripts of Post graduate including PG-Diploma courses in PG-Allied Health Sciences, PG-Ayurveda, PG-Nursing, PG- Pharmacy, PG-Unani, PG-Yoga and Naturopathy, Masters in Physiotherapy, MGA and MPH, shall be subjected to Digital Valuation as prescribed by RGUHS. The average of the total marks awarded by the two valuators for the paper which is rounded off to the nearest value, shall be considered for computation of the results.

The marks awarded and the results declared after general valuation shall be the final and under no circumstances further valuation shall be entertained."

The text of the above provision in unmistakable terms

provides for the marks being rounded off to the nearest

NC: 2023:KHC:38799-DB WA No. 909 of 2023

value for the purpose of computation of the results of the

candidate concern.

4. The second submission of the learned panel

counsel appearing for the University that the subject

provision of the Ordinance in question provides for

rounding off, of the marks to the nearest full value only as

a One Time Measure is not supported by the text and the

language of the said provision. There is nothing indicative

of such an intent. The University in support of such a

stand cannot much bank upon the Corrigendum dated

17.11.2020 issued by the Vice Chancellor which mentions

the Covid-19 Pandemic situation in support thereof. The

relevant part of the Corrigendum is reproduced below:

  Subject           Existing                   Shall be read as
    No.
  153(Mum)   In    view   of     the   In view of the prevailing Covid-19
  /06        prevailing  Covid-19      situation, it was recommended to
             situation,  it     was    implement the Hon'ble High Court
             recommended          to   direction regarding Writ Petition
             implement           the   No.11348 of 2020 (EDN-RES) as a
             Hon'ble High Court        one time measure and the
             direction  regarding      following decision taken:

Writ Petition 1. This is one time measure will No.11348 of 2020 be applicable for he candidates (EDN-RES) as a one who all fall short of one mark in time measure theory for declaring as Pass after the computation of result with the existing university ordinances.

NC: 2023:KHC:38799-DB WA No. 909 of 2023

5. The reasons for this Corrigendum not coming to

the aid of the University are not far to seek: Firstly, the

text of the Ordinance as such, has not been changed

pursuant to this Corrigendum per se. It is only in the

nature of a recommendation yet to be expressed in the

form of an amendment to the Ordinance. Secondly,

Section 35 of the Karnataka Rajiv Gandhi University of

Health Sciences Act, 1994 gives power to the Syndicate of

the University to make Ordinances and to amend or repeal

the same, is true. However, sub-section 4 of this provision

requires the same to be submitted to the Chancellor and

the Senate for information as a sine qua non for its taking

effect. The copies of the Corrigendum are marked to the

members of the Syndicate, the Vice-

Chancellor/Registrar/Registrar (Eva)/Finance Officer and

Deputy Registrars. Marking to the Chancellor is

conspicuously lacking. This apart, the said sub-section

requires a date to be specified by the Syndicate with effect

from which the amendment to the Ordinance would come

NC: 2023:KHC:38799-DB WA No. 909 of 2023

into force. Such a date is not forthcoming from the

Corrigendum.

6. There is yet another finer aspect to the matter:

Chapter V of the 1994 Act provides for the making of

STATUTES, ORDINANCES and RULES. Section 35 has

already mentioned above delegates Ordinance making

power to the Syndicate. In exercise of said power, the

Syndicate has promulgated the subject Ordinance vide

Notification dated 29.03.2019. It hardly needs to be stated

that such an Ordinance is a piece of delegated

legislation/sub-ordinate legislation. Its provisions need to

be construed, as far as possible with the aid of principles

of interpretation as are applicable to parent legislations,

subject to all just exceptions. The text of Clause 4 of the

Ordinance in question makes it repetitive in operation and

that the same does not commit a legal suicide, once the

Covid-19 Pandemic withered away. It hardly needs to be

stated that law ceases to exist by desuetude. It continues

on the statute book till repealed by the competent body in

NC: 2023:KHC:38799-DB WA No. 909 of 2023

accordance with the prescribed procedure or is struck

down by a court of competent jurisdiction. Such an

Ordinance having been made for the benefit of the student

community, relief to the deserving candidate cannot be

denied by placing interpretation of the kind as the

University wants this court to place on the clause in

question. An argument to the contrary offends not only

the language of the provisions but also defeats its very

intent.

7. The reliance of the panel counsel for the

University on the decision of the Apex Court in

HEMALATHA supra does not come to his aid even in the

least. The subject matter of this decision did not involve

the Ordinance in question, obvious the same having been

promulgated years before the said decision was rendered.

The Rules which were examined in the said decision did

not permit any such rounding off or giving grace marks

unlike the subject clause of the Ordinance in question. It

hardly needs to be stated that a decision is an authority

NC: 2023:KHC:38799-DB WA No. 909 of 2023

for the proposition that has been laid down in a given set

of facts, actual or assumed, and not for all that which

logically follows from what has been so laid down in

QUINN VS. LEATHEM, (1901) A.C. 495, 506.

In the above circumstances, this appeal being devoid

of merits is liable to be and accordingly dismissed, costs

having been made easy.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

Snb,