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TMI Blog1984 (5) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... tical 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 2.1 which corresponds to Rule 7.1 which was in force in 1965 in the following terms- 2.1-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 and/or 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 up for 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gate 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 v. 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 s. 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:- S. 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) 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 sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse in 1965 and not only 4 marks as per the amended regulation. We are of the opinion that this appeal has to succeed. Section 31(1) 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 31(2)(n) 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 s. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subjects/papers. The Senate thought it fit to remedy this glaring defect s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 B.N. Misra v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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