1996 PLP 2050 (CLC)

"No candidate shall be declared to have passed in this examination unless he obtains a minimum of 50% of the total marks assigned to written and oral Examination 50 % of the marks assigned of Practical and Clinical Examination separately in each subject and 50% of the marks assigned to clinical part of each subject (and 50% in the aggregate). "

2. It was submitted in the comments that in view of provisions contained in the above‑quoted Regulation the candidates were required to obtain 50% marks assigned to Practical and Clinical Examination separately in each subject and since the petitioners did not obtain the requisite marks, therefore, they were not declared to have passed the examination. The Controller of Examinations, University of Punjab i.e. respondent No.2 appeared in the Court and informed that according to previous practice the matter was usually referred to the Examiner to pass such candidates, who obtained aggregate of 150 marks out of 300 marks in the Clinical and Practical tests. The Examiners in the past used to comply with such references and the concerned candidates were declared successful in the revised Awards. An example to that effect was quoted from the petitioners' side relating to Award dated 7‑12‑1993 concerning the examination held in 1992 and its photo copy was produced and placed on record as Annexure‑D. The Controller of Examinations when confronted with the aforesaid Award, admitted that it was true and even if in the present case the Examiner would have revised the list as was the practice in the past, the University would have no hesitation in declaring the present petitioners as successful because each of them had obtained minimum of 50% marks in aggregate in that Part of the Subject. The Controller also submitted his supplementary comments in which he also contended that failure statement was prepared only because of the existence of Regulation No.3 and that it was conceded that the Statutes approved by the Board of Studies in Medicine did not provide for any such condition as given in Regulation No.3 ante. A photo copy of the Regulation was produced by the learned counsel for the petitioners Annexure‑DDD, which has been admitted as correct by the respondents. It runs as fellows:‑‑ "Examination in each subject shall be in two parts (i) written and oral and (ii) practical and clinical. Oral Examination in each subject shall be conducted during the clinical practical examination and its marks will be added to the marks of the written papers: A candidate to pass in a subject shall have to obtain a minimum of fifty per cent. of total marks of each part of subject separately." It follows from the above that the statutes do not provide any condition as laid down in Regulation No. 3 ante that a candidate has to get 50% marks separately in practical and clinical tests.

3. Now it is to be seen whether the Statutes or the Regulation will have a binding force in respect of schemes etc. for examinations to be conducted by the University. In this respect a reference to section 31 of University of the Punjab Act, 1973 (Act IX of 1973) will obviate the situation. It shows that subject to the provisions of the aforesaid Act, Statutes may be made to regulate or prescribe for all or any of the matters specified therein. Clause (1) of subsection (1) of the aforesaid section reads as follows:‑‑‑. "the general scheme of studies including the duration of courses and the number of subjects and papers for an examination.

4. It follows from the above that the scheme of studies including the duration of courses, number of subjects and papers for an examination are to be provided by the Statutes. The statute quoted above relates to the examination in question, and it does not prescribe any condition that a candidate has to obtain 50% marks separately in practical and clinical tests, in order to pass in the subject. However, the Regulation No.3 (ibid) lays down such a condition as pointed out above. It is to be seen as to what will be the legal status of the Regulation qua the Statutes. In this respect reference to section 32 of the Act (ibid) will be necessary. The aforesaid section says that subject to the provisions of this Act, and the Statutes, Regulations may be made for the matters specified therein. It is thus obvious that the Regulations are to be made subject to the provisions of the Act and the Statutes and cannot take precedence over any of the two as those have to be framed in the light of such Statutes and the Act. In the instant case the Regulation No.3 ante is in conflict with the Statutes framed under section 31 of the Act and as such would be ultra vires to the extent of its A conflict with the Statutes.

5. In view of the above legal position the candidates appearing in the final Professional M.B.,B.S. Examination are not required to obtain 50% marks separately in each of the practical and clinical tests in order to pass in the subject of Medicine. The Award List prepared by the Examiner is not in conflict with the Statutes and as such is valid to that extent. It has shown the petitioners to have passed the subject of Medicine. The impugned notification issued contrary to the Award List prepared by the Examiner, is therefore, illegal and void. The petition is accordingly accepted. The impugned notification is set aside and all the 9 petitioners are directed to be declared successful by the respondents in the subject of Medicine and they are further directed to issue fresh notification‑ to that effect without any loss of time. 6 In the peculiar situation parties are left to bear their own costs. A.A./A‑62/L Petition accepted THE END