PUNJAB AND HARYANA HIGH COURT

                                               Panjab University

                                                         Vs

                                                Subash Chander

                                   Letters Patent Appeal No. 352 of 1975

                      (S.S. Sandhawalia, Prem Chand Jain and Gurnam Singh, JJ.)

                                                   07.09.1976

                                                  JUDGMENT

S.S. Sandhawalia, J.

1. The larger issue that looms before the Full Bench in this appeal under clause 10 of the Letters
patent is - whether the Panjab University can so frame or alter its Regulations as to prejudicially
affect its students in the mid-stream of their course of studies.

2. Subhash Chander, petitioner-respondent, joined the Daya Nand Medical College, Ludhiana, in
the year 1965, to study for the degree of M.B.B.S. in the Faculty of Medical Science. At that
time he was governed by the prevalent Regulation 25 of the Panjab University Calendar Volume
II, P. 383, which provided that the minimum number of marks required to pass in the
examination would be 50 per cent in each subject separately. However, the relevant and the
particular provision of this Regulation at that time stood in the following terms :-

        "A candidate who fails in one or more papers/subject and/or aggregate by not more than 1
        per cent of the total aggregate marks shall be given the marks required to pass the
        examination in accordance with the rules approved by the Syndicate from time to time."

However, later in May, 1970, an amendment of the aforesaid provision was made by the
University which was in the form of an exception to Regulation 2.1 in the 1970, Panjab
University Calendar Volume I page 116 -

        "2.1. A candidate, who appears in all subjects of an examination and who fails in one or
        more subjects (written, practical, sessional or viva voce and/or the aggregate (if there is a
        separate requirement of passing in the aggregate) shall be given grace marks up to
        maximum of 1 per cent of the total aggregate marks (excluding marks for internal
        assessment) to make up the deficiency, if by such addition the candidate can pass the
        examination. While awarding grace marks fraction working to 1/2 or more will be
        rounded to a whole.
Exception. - In the case of M.B.B.S. and B.D.S. examinations, however, the grace marks shall be
given up to one per cent of the total marks of each subject, and not up to one per cent of the
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."

3. The petitioner-respondent having duly qualified and passed in the earlier professional
examinations appeared in the M.B.B.S. Final professional examination in the year 1974 and
obtained the following marks :-

        1. Medicines - 202 out of 400 P.

        2. Surgery - 225 out of 400 P.

        3. Eye and ENT - 204 out of 400 P.

        4. Midwifery

        (i) Theory - 95 out of 200

Reappear.

        (ii) Practical - 106 out of 200

Reappear.

4. As is evident according to Regulation 25 in force in the year 1965, read with rule 7(1) of P.U.
Calendar, 1966 (Volume 14 Page 142) the petitioner-respondent was entitled for grant of grace
marks to the extent of 1 per cent of the total aggregate marks which in effect would mean that he
was entitled to 16 grace marks in all which benefit he could claim in respect of any one or more
of the different subjects. It is the respondent's claim that this concession was continued to be
allowed in the cases of Shri Anil Kumar, Miss Chand Rani and Sarvshri Pawan Kumar Garg and
Madan Mohan even in the year 1973. However, in the petitioner-respondents's case the
University refused to apply the earlier Regulation 25 and insisted upon governing his case under
the new Regulations whereby he could get grace marks only to the extent of one per cent of the
total marks of each subject and not of the aggregate. The result consequently was that the
petitioner-respondent was directed to reappear in the subject of midwifery.

5. The petitioner-respondent challenged the declaration of his result primarily on the ground that
the new Regulations could not be made with retrospective effect to adversely affect his rights and
he would, therefore, continue to be governed by the old Regulation 25 as existing in the year
1965. The learned Single Judge accepted this plea and held that the petitioner was governed by
the old Regulation and not by the new amended one and consequently allowed the writ petition
with a direction to the University to declare the result of the petitioner afresh after affording him
the benefit of grace marks in accordance with the old Regulation 25. The Panjab University
appeals.

6. Mr. J.L. Gupta, on behalf of the appellant has first forthrightly contended that the University
has the power to frame its regulations with retrospective effect even though they may
prejudicially affect the students during the course of studies which they may be pursuing. It is his
case that a student is entitled to secure his degree or diploma in accordance with the Regulations
existing on the date of the holding of a particular examination and that no student has any vested
right flowing from the regulations which might have been in force when he joined his course of
studies. In the alternative counsel has contended that in the present case there is no element of
retrospectivity in the amended regulations and every annual examination is a separate and
distinct entity. Consequently, it was argued that each such examination has to be governed by the
regulations then in force and the concept of a course of studies is not well founded.

7. Inevitably the learned counsel for the parties have placed reliance on the judgments of this
Court in support of their respective claims. I may, therefore, at the very outset opine that the
relevant case law appears to be in a tangled state, evidencing a clash of precedent, with the result
that either side has been able to rely on authoritative judgments in support of their contending
propositions. Before us learned counsel for the parties have therefore, assailed the correctness of
the judgments relied upon by the opposite side. It therefore, becomes both inevitable and
necessary to make some detailed references to the authorities cited at the bar.

8. Basic reliance on behalf of the appellant is on Sewa Ram's case. This pertained to regulations
framed under Section 16 of the Kurukshetra University Act, 1956. Therein the said University
had retrospectively changed the syllabi, and the quantum of qualifying marks to the prejudice of
the student and the student petitioner had assailed the amendment. The learned Single Judge,
whilst strongly opining that the conditions for obtaining degrees should not normally be changed
by a University in the middle of a course to which candidates might already have been admitted,
nevertheless refused to grant the writ in favour of the affected student in Sewa Ram v. The
Kurukshetra University1,. It was further observed therein that if discipline was to be maintained
in the Universities students must know that the fate of their educational career was entirely in the
hands of educationists and it would be fruitless for them to look to any other source for relief.

9. The aforesaid judgment was challenged in LPA No. 97 of 1967 decided on the 17th of July,
1968. Whilst affirming the judgment and expressly approving the observations of the learned
Single Judge, Mahajan J., speaking for the Bench went further to make forthright and wide
ranging observations to the effect that the Universities are empowered to change and alter the
syllabi and the terms and conditions of holding the examination both prospectively and
retrospectively and a student aggrieved by any such action is merely at liberty to leave the
University and seek admission elsewhere but has hardly any right to challenge the same. Resting
himself firmly on Sewa Ram's case, Mr. Gupta has contended that the ratio of that judgment does
not proceed from any distinction in the language of Section 16(2)(c) of the Kurukshetra
University Act as against the provision of Section 31 of the Panjab University Act under which
the Regulations in the present case have been framed. His submission is that both the learned
single Judge and the affirming Letters Patent Bench in Sewa Ram's case have laid down the
larger principle that all Universities have a blanket power at any time to amend, alter or reframe
their Regulations and no vested legal right accrues to any University student to challenge their
validity even though they may affect him prejudicially. To be candid, the observations in Sewa
Ram's case, if read without reservations would indeed lend patent support to Mr. Gupta's
argument.
10. On the other hand the learned counsel for the respondent had forcefully pointed out that
within this very Court there has been a subsequent whittling down and indeed a recantation from
the extreme stand that seems to have been taken in Sewa Ram's case. Counsel first relied on
Baldev Chand etc. v. Panjab University2, judgment which was rendered by the same learned
Judge (R.S. Narula, J., as his Lordship then was), who had originally decided Sewa Ram's case.
The petitioners in this case were the students of the B.Sc. (Engineering) Course of the Panjab
University in the Engineering College, Chandigarh, who were aggrieved by certain retrospective
changes made in the Regulations to their prejudice by the Panjab University in the course for the
degree of Bachelor of Science (Engineering). The writ petition was allowed and the learned
Judge explained and circumscribed the earlier observations made in Sewa Ram's case. It was
opined that the judgment in that case may have rested on the peculiar language of Section
16(2)(c) of the Kurukshetra University Act and also on other distinguishing features, like the fact
that the petitioner in that case had approached the Courts in 1966 after having actually taken the
examination under the new Regulations which had been promulgated as far back as the 31st of
March, 1964. It was also observed by the learned Judge that the midstream stabbing of the
academic career of the students could be sustained only if it was strictly within the statutory
jurisdiction of the University authorities and it was held that the Panjab University had no
authority to give retrospective effect to any Regulations framed by it under Section 31 of the
Panjab University Act. It is thus evident that an attempt was made to confine and limit the
observations in Sewa Ram's case and the view that the Universities can always retrospectively
alter their Regulations to the prejudice of the students under all circumstances was not adhered
to.

11. Now apart from Baldev Chand's case, primary reliance on behalf of the respondents is on the
Division Bench judgment in Ram Parkash Nagar v. The Haryana Agricultural University3, This
case pertained to the Haryana Agricultural University, Hissar, and the petitioning student had
made a grievance that the Rules and Regulations applicable to him when he joined the course in
July, 1968, had been altered to his disadvantage by the University by amendments of Rules 7.2
and 7.64 in September, 1969. The learned Single Judge whilst dismissing the petition noticed the
apparent conflict betwixt the Single Bench decision in Baldev Chand's case and the Division
Bench judgment in Sewa Ram's case and feeling himself bound by the latter followed the same.
On appeal, the Letters Patent Bench reversed the decision of the learned Single Judge and whilst
allowing the petition directed the University to deal with his case as if the new Regulations were
not applicable to him. The Letters Patent Bench made reference to Sewa Ram's case and
nevertheless allowed the writ petition and approved of the limitations placed on the said case in
Baldev Chand's case.

12. Reliance on behalf of the respondents has also been placed on the Division Bench judgment
in Miss Gurvinder Kaur, etc. v. Panjab University, etc.4, Herein an amendment in the Rules made
by the Panjab University pertaining to the grant of grace marks to the examinees which was
detrimental to their interest was struck down by the Bench and ten writ petitions out of a batch of
12 were allowed. It was, however, observed that such a change could not be made to the
detriment of an examinee after he has appeared in the examination and it was also opined that the
withholding of the result until after the publication of the amendments was equally of no avail
because the students were not given enough time to adjust themselves to the changes introduced
in the Regulations.
13. It would perhaps be wasteful to make a reference to earlier decisions which have been relied
upon in the aforementioned cases. It suffices to mention that Mr. J.L. Gupta for the appellant was
inevitably forced to assail the reasoning of the Letters Patent Bench in Ram Parkash Nagar's
case. He submitted that the reasoning and the ratio of the said authority was incorrect because it
ran patently counter to the earlier Division Bench judgment in Sewa Ram's case. According to
him, the distinctions drawn were without any legal difference. It was pointed out by him that
neither the judgment of the learned Single Judge nor that of the Division Bench in Sewa Ram's
case proceeds on the basis of any peculiarity in the language of Section 16 of the Kurukshetra
University Act and it was contended that subsequent decision cannot supplant or introduce
another rationale into the said case when the relevant judgments themselves do not rely on any
such distinction. Mr. Gupta commended the salutary and extreme principle laid down in Sewa
Ram's case and canvassed for its acceptance.

14. On the other hand learned counsel for the respondents were equally vehement in assailing the
correctness of the judgments of both the learned Single Judge and the Letters Patent Bench in
Sewa Ram's case. It was argued that wide ranging and sweeping observations have been made by
the Letters Patent Bench which were neither supportable on principle or authority. It was
submitted that the extreme rigour of the Rule in the case had been totally eroded by virtual
dissents within this Court itself in Baldev Chand, Ram Parkash Nagar and Miss Gurvinder Kaur's
cases (supra).

15. In the afore-mentioned state of the case law it appears to me that no useful purpose would be
served by adverting to the facts and the reasoning in each individual case. Indeed an analysis in
depth of the above-mentioned precedents would reveal that it is not possible to deduce any clear
principle or rationale which may determine whether the particular action of a University to
retrospectively alter its Regulations to the prejudice of its students is justifiable or not. The
pendulum seems to have swung one way or the other and perhaps in some cases influenced more
by the equities of the case and its peculiar facts rather than by cold calculated logic. Subtle
distinctions have been drawn between the standard prescribed by the University for obtaining its
degrees and the conditions for obtaining the same. Views have been expressed that if the change
in the Regulations is made after the examination has been held it would not be valid thereby
suggesting that on principle if it is made before the holding of an examination it may perhaps be
valid. Similarly it has been opined that if reasonable notice is given to the student body of the
retrospective change then perhaps such a change would be sustainable without clearly laying
down or specifying as to what should be deemed as a reasonable notice in such circumstance. In
one case the fact that the student petitioner came to Court after taking the examination and
further that the amendment in the Regulations had been made a considerable time earlier were
made grounds for non-suiting him. It appears to me that even the nature and the gravity of the
hardship in each case seems to have weighed with the Court in upholding or striking down
retrospective amendments in the Regulations. With great humility I am constrained to say that
neither of these conditions appear to me to provide a firm legal basis or a clear guideline for
determining the question at issue. The cases referred to above (as also those to which detailed
reference has not been deemed necessary) would seem to have left the law in so nebulous a state
that it could be modulated either way in the context of the shifting sands of the facts of a
particular case. I hope to rest my view on a clear legal principle rather on such empirical
considerations. This principle to my mind, is a basic one that legislation is normally deemed to
be prospective unless by clear intendment or necessary implication it has to be construed as
retrospective also. However, this power of clothing legislation with retrospectivity is an attribute
primarily of the plenary powers of the legislature itself. Power to legislate retrospectively is a
hydraheaded weapon which must be wielded with care and circumspection and it is, therefore,
that its exercise is normally left to the wisdom of the legislature itself rather than its delegates. To
this rule, there is, however, one clear exception that the legislature whilst delegating its power to
the subordinate authority may in express terms or by necessary intendment clothe the same with
the identical power to make retrospective laws. It is unnecessary to dilate on this legal aspect any
further because the same seems now to be firmly entrenched by pronouncements of the final
Court. After relying on the earlier decisions in Income-tax Officer Alleppy v. M.C. Ponnoose5,
and Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs and Central Excise
Cochin,6 Khanna, J., speaking for the Bench in Hukam Chand etc. v. Union of India and others7,
has pithily observed :-

        "* * *. 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 limits of its power and cannot transgress the
        same."

In the light of the above-said enunciation of the law, the crux of the matter in the present case,
therefore, is whether Section 31 of the Panjab University Act (admittedly under which the
impugned Regulations have been framed) empowers the Senate to frame Regulations
retrospectively. For facility of reference, the relevant part of the said Section may first be set
down -

        "31 (1) 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 -

        (a) to * * * *

        (m) * * * *

        (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;

        (o) * * * * *

to

        (u) * * * * *."

From the plain language of the above-said provision it seems to be manifest that there is nothing
herein which would explicity or implicity clothe the Senate with power to frame Regulations
retrospectively. Indeed even Mr. Gupta did not seriously contend that the language of Section 31
was capable of any such construction. As has already been said, the power to legislate
retrospectively is a vital and potent function which would be exercised with care by the
legislature itself and it is only when it clearly authorises the exercise of such a power to its
delegates that the subordinate authority can be deemed to have such a power. I find no such
authorisation here at all. Consequently it has to be held that the Regulations retrospectively
altering the conditions for taking the examination to the detriment of the petitioner-respondent
could not be made applicable to him. Therefore, he would be continued to be governed by the
Regulations existing at the time when he joined his present course of studies.

16. Before parting with this aspect of the case, I may mention that herein we were concerned
primarily with the relevant provisions of the Panjab University Act and the Regulations framed
thereunder. Consequently I would not wish to opine on any analogous provisions of the other
Universities which must necessarily involve the construction of their peculiar language
authorising the framing of statute in its particular context. I would, however, be failing in my
duty if reference was not made to the wide ranging observations of Mahajan, J. in Sewa Ram's
case (supra). After expressly quoting and approving some observations of the learned Single
Judge it was observed in the penultimate para of the judgment as follows :-

        "* * * In any case, I am not able to accept the contention, that as soon as a candidate
        enters University, the University cannot alter its regulations and prescribe different
        standards for the examinations which the student has not already taken. If the new
        regulations do not suit the student, he has every right to leave the University and seek
        admission elsewhere, where he considers the regulations to be more favourable to him.
        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 regulations are made well in advance to the
        examination which a candidate is required to take."

With great humility I am constrained to observe that it is not possible to subscribe to such a
proposition. A reference to the judgment would show that no principle or precedent has been
cited in support of the same. If, as the aforementioned language suggests, it was the intention of
the Bench to declare that the Universities have an inherent blanket power to alter their
Regulations with retrospective effect without any regard to the enacting statute or the provisions
thereof then I must respectfully take a contrary view and overrule the above-said declaration of
the law to this effect. As has been said earlier the principle which in my view should govern
these cases would be the plain one - whether the particular language of the statute creating the
University authorises it to legislate or frame the regulations with retrospectivity ? Upon that and
that alone should rest the answer to the question whether a University can prejudicially affect
with retrospective effect the syllabi, the conditions of taking the examinations etc., of its student-
community.

17. Repelled on his primary point, Mr. J.L. Gupta then faintly pressed his secondary contention
that the impugned regulation herein should not be construed as retrospective but was indeed a
prospective one. This argument is sought to be sustained on the basis that every University
examination in the Faculty of Medical Science should be deemed as an independent and separate
entity and not merely a step in a consolidated course. On these premises it was submitted that the
change introduced by the University related to the examination which was to follow later and
should, therefore, be interpreted as prospective in essence.

18. I am unable to agree. When the petitioner-respondent joined the Faculty of Medical Sciences
in 1965 he obviously did so with the intention of obtaining the degree of Bachelor of Medicine
and Bachelor of Surgery (M.B.B.S.). It is the common case that no degree or even a diploma is
conferred on a student after he passes the first or the second professional examination. The
scheme of the Regulations then existing leaves no manner of doubt that the whole course of
studies for the Faculty of Medicine was one consolidated and composite course, which could
hardly be treated as consisting of independent annual examinations. Reference to the relevant
regulations existing at the time would itself show that the scheme thereof visualises the course of
study as a single integrated whole. Regulation 2 in this context lays down that throughout the
whole period of study, the attention of the students should be directed to the preventive aspects of
medicine and thus an inkling is given that the course is to be treated as a continuous period of
study rather than an isolated jumble of annual examinations. It is only at the end and the
completion of the course that the student would be entitled to the M.B.B.S. degree as such. A
reference to Regulation Nos. 28 and 29 would further show that the candidates shall be granted a
degree only after they have completed the post examination training for 12 months of
compulsory rotating housemanship It is thus more than evident that the degree of M.B.B.S. in the
Faculty of Medical Sciences of the Panjab University is a single integrated composite course of
study.

19. The above-said view, which I am inclined to take, has the consistent support of precedent
within this Court. In Baldev Chand's case the degree of Bachelor of Science in Engineering was
construed as a single composite course. Similarly in Ram Parkash Nagar's case, the degree of the
Bachelor of Veterinary Science and Animal Husbandry was treated as a single course. In the
batch of writ petitions covered by Miss Gurvinder Kaur's case, the Division Bench held the B.Sc.
(Home Science), the three years degree course (T.D.C.), for Bachelor of Arts and the Bachelor of
Laws degree in the Department of Laws amongst others as consolidated courses. On behalf of
the appellant no serious challenge could be posed to the consistent stream of precedent in this
regard.

20. I do not find any merit in the second contention raised on behalf of the appellant which is
consequently rejected.

21. As both the contentions raised on behalf of the appellant fail, the Letters Patent appeal is
hereby dismissed and the judgment of the learned Single Judge affirmed. The parties, however,
will bear their own costs.

Prem Chand Jain, J.

22. I agree.

Gurnam Singh, J.

23.I agree.

Appeal dismissed.
Cases Referred.

1CW 2450/66, decided on 22nd December, 1966
2CW 3014/70, decided on 27th October, 1970
3LPA 64-71, decided on 27th May, 1971
41961 Current Law Journal 568
5AIR 1970 SC 385
6AIR 1970 SC 1950
7AIR 1972 SC 2427