IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10/11/2005 Coram The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.K. KRISHNAN WP.No. 557 of 2004 and WP.Nos, 558 and 610 of 2004 Bharat Guthikonda. .. Petitioner in W.P.No.557/2004. Jacob Pavothi Kunnel Philip .. Petitioner in W.P.No.558/2004. P. Ashok. .. Petitioner in W.P.No.610/2004. -Vs- 1. The Pondicherry University, represented by its Registrar, Kalapet, Pondicherry. 2. The Controller of Examinations, Pondicherry University, Kalapet, Pondicherry. 3. The Medical Council of India, represented by its Chairman, Opp. To Matusundari College for Women, New Delhi-110 002. 4. The Vinayaka Missions Medical College, represented by its Dean, Keezakasakdi Post, Karaikal, Pondicherry. .. Respondents in all the W.Ps.
Writ Petitions have been filed under Article 226 of the Constitution
of India,
i) for issuance of a writ of declaration declaring that the petitioner has
passed in the subject of Obstetrics and Gynaecology of Final year MBBS
Examination held in November, 2003 with Registration No. 861 7510 as per MCI
Regulations 1997 and also in the subject of Paediatrics by awarding one grace
mark, making eligible to undergo Internship and become a Registered Medical
Practitioner;
ii) for issuance of a writ of declaration declaring that the petitioner has
passed in the subjects Surgery of Final year MBBS Course Examination held in
November 2003 with Registration No. 96177525 as per the MCI Regulations 1997
and also in the subject of Obstetrics and Gynaecology by awarding two Grace
Marks making eligible to undergo Internship and become Registered Medical
Practitioner; and
iii) for issuance of a writ of declaration declaring that the petitioner has
passed in the subject of Paediatrics, in final year MBBS Examination held in
November, 2003 with Registration No. 8617508 as per the MCI Regulations
making him eligible to undergo internship and become Registered Medical
Practitioner.
Mr. N. Paul Vasanthakumar:- For petitioner in W.P.
Nos. 557 and 558/2004.
Mr. L. Chandrakumar:- For petitioner in W.P.No.
610/2004.
Mr. K. Srinivasan:- For Respondents 1 and 2 in all W.Ps.
Mr. R. Singaravelan:- For 3rd Respondent in all W.Ps.
:COMMON ORDER
(Order of the Court was made by P. Sathasivam, J.,)
Since the issue raised in these petitions is one and the same, they are being
disposed of by the following common order:
In W.P.No. 557/2004 the petitioner Bharat Guthikonda seeks to issue a Writ of
Declaration declaring that he has passed in the subject of Obstetrics and
Gynaecology of Final year MBBS Examination held in November, 2003 with
Registration No. 8617510 as per Medical Council of India Regulations (“MCI”
in short),1997 and also in the subject of Paediatrics by awarding one grace
mark, making eligible to undergo Internship and become a Registered Medical
Practitioner. In the other two writ petitions, the respective petitioners,
namely, Jacob Pavothi Kunnel Philip and P. Ashok have prayed for similar
relief.
2. For convenience we shall refer the case of the petitioner in W.P.No.
557/2004. According to the petitioner, he has joined in the fourth respondent
Medical College for the 1st Year MBBS Degree course during the academic year
1997-98 under the new regulations. He completed the MBBS course and passed
all the examinations except OG and Paediatrics in which he is declared fail in
the examination conducted in November, 2003. His Registration Number is
8617510. The petitioner has passed in all other subjects and in November,
2003 examination he passed in other two subjects viz., Surgery and Medicine.
He is declared fail in the said two papers by applying Pondicherry University
Regulations which prescribe separate minimum in Theory and Practical which is
contrary to Chapter IV 12 (4) of the Medical Council of India Regulations 1997
which deals with the Professional examinations, distribution of marks to
various disciplines. Under the MCI norms in the subject of Obstetrics and
Gynaecology, the petitioner is required to get 70/140 and he secured 75/140
and in the subject of Paediatrics he is required to get 30/60. However, he
got only 29 out of 60 which means he is lacking one mark for reaching
aggregate of 50%. The MCI Regulation clearly states that if a candidate has
passed in the other subjects in an examination but failed in only in one
subject upto 5 marks can be awarded as Grace Marks. In November, 2003
examination, the Pondicherry University awarded upto 5 marks including in the
subject of Paediatrics and if the petitioner is awarded one grace mark as per
the MCI Regulations which is followed by the Pondicherry University even for
the November, 2003 examination, he can be declared pass in the subject of
Paediatrics also and thereby he is completing the MBBS Degree. Even though
the petitioner has satisfied MCI Regulations prescribed norms for declaring
pass in the subject, is declared fail in the said two subjects of Paediatrics
and O and G. The said action of respondents 1 and 2 i.e., Pondicherry
University is contrary to the MCI Regulations.
3. On behalf of Pondicherry University, its Registrar has filed a separate
but identical counter affidavit. Here again, we shall consider the stand of
the University as stated in W.P.No. 557/2004. The petitioner was declared
failed in two subjects, namely, obstetrics and Gynaecology and Paediatrics and
declared pass in the other two subjects, namely, General Medicine and General
Surgery. The Pondicherry University Regulations and Syllabus for Bachelor of
Medicine and Bachelor of Surgery which came into effect from July, 1997
onwards prescribes the standard of pass namely, Part II subjects, a candidate
should secure at least 40% marks in University Theory Examinations and 50%
marks in University Clinical examinations. But he must secure 50% marks in
theory (Theory + Theory internal Assessment + Oral and Practical
(Practical/Clinical + Practical Internal Assessment) separately. As per
M.C.I., in each of the subjects a candidate must obtain 50 per cent in
aggregate with a minimum of 50% in theory including orals and minimum of 50%
in practicals/clinicals. By applying the standard fixed by the Pondicherry
University, the petitioner in W.P. No. 557/2004 was declared fail by the
University in the examinations conducted during November, 2003 in the two
subjects namely Obstetrics and Gynaecology and Paediatrics. But as per the
Standard fixed by the MCI the petitioner in W.P.No. 557 of 2004 has passed in
Obstetrics Gynaecology but failed in Paediatrics and he claims grace marks to
be awarded in Paediatrics. There is no prohibition under the Indian Medical
Council Act, 1956 to prescribe higher standards. Though the University
largely and substantially follow the MCI Regulations, it has however put
higher condition than MCI with respect of pass determination in order to
maintain standards. Similar averments have been made in the other two writ
petitions also.
4. Medical Council of India has also filed identical but separate counter
affidavit in all the 3 writ petitions. The stand of the Medical Council of
India is that the Regulations framed by it are statutory in character and as
has been held by the Supreme Court of India, the same are binding and
mandatory. The 1997 Regulations stipulate the following:
a) A student must secure at least 50% (now reduced to 35%) of the total marks
fixed for internal assessment in order to be eligible to appear in the
University Examination in that subject.
b) If the student is able to obtain the minimum marks as above-said in the
internal assessment, he shall be eligible to appear in the University
Examination.
c) Upon appearance in the University Examination the student must obtain
(i) 50% in Theory including orals
(ii) as well as 50% in Clinical/Practical.
d) The aggregate of the student in that subject must add up to more than 50%.
e) The total score of the student in a particular subject is to be calculated
on the following basis:
ON A SCALE OF 100
i) The marks scored by the student in the Final University Examination must be
given 80% weightage.
ii) The marks scored by the student in the internal assessment must be given
20% weightage.
f) The total marks of the student, after calculating it on the abovementioned
basis must be more than 50%.
Further, to clear any subject successfully in accordance with the Regulation
on Graduate Medical Education, 1997, a candidate must get minimum of 50% marks
in the Theory including Oral and Practicals examination conducted by the
University. Further, the candidate must also get minimum of 50% marks in
aggregate in the respective subject. If any student fails in only one subject
then grace marks up to maximum of 5 marks can be awarded to such a student at
the discretion of the University. In view of the marks secured, the prayer as
claimed cannot be granted. Similar stand has been taken in other two writ
petitions.
5. In the light of the above pleadings, we heard Mr. N. Paul Vasanthakumar,
learned counsel for the petitioner in W.P.Nos. 55 7 and 558/2004; Mr. L.
Chandrakumar, learned counsel for petitioner in W.P.No. 610/2004; Mr. K.
Srinivasan for Pondicherry University; and Mr. R. Singaravelan for Medical
Council of India.
6. In view of the fact that the issue raised in these writ petitions had
already been considered by other High Court and this Court and orders passed,
we are of the view that no elaborate discussion is required in these cases.
The petitioners in these writ petitions are all persons who had completed MBBS
Course through Pondicherry University and they had also undergone and
completed their internship (House Surgeon) on the basis of interim order of
this Court which has also been issued in favour of nearly about 25 other
persons. These writ petitions have been filed for declaration to declare the
petitioners having passed the MBBS examination with respective Registration
Number as per the MCI Regulations, 1997, making them eligible to undergo
Internship and become Registered Medical Practitioners.
7. The basis which culminated for these cases is that while declaring the
results of the petitioners, the Pondicherry University state that separate
minimum for Theory and Practical is required to be obtained as per the
University Regulations. However, the MCI Regulations would prescribe 50%
aggregate which reads as follows:
Pass : In each of the subjects a candidate must obtain 50% in aggregate with
a minimum of 50% in Theory including orals and minimum of 50% in
Practical/clinicals.
The MCI Regulations further prescribe that the grace marks upto a maximum of
five marks may be awarded at the discretion of the University to a student who
has failed only in one subject but has passed in all other subjects
(Regulation 13 (10).
8. Messrs. N. Paul Vasanthakumar and L. Chandrakumar, learned counsel
appearing for the petitioners, after taking us through various provisions from
the MCI Regulations, brought to our notice a Division Bench judgment of the
Kerala High Court interpreting the above regulations and method of calculation
in finding out aggregate mark and subsequent orders by this Court, and
submitted that the petitioners are also entitled to reap the benefits of those
decisions. In Writ Appeal No. 1777 of 2002(C) dated 26-9-2002 (K. FAHAD
MOHAMED AND OTHERS v. CALICUT UNIVERSITY), the Division Bench of the Kerala
High Court (Hon’ble Mr. Justice B.N. SRIKRISHNA and Mr. Justice R. BASANT)
while considering the Regulations of Medical Council of India and Calicut
University, concluded that “In the result, we hold that under the Regulations
a candidate shall be declared to have passed if he has got 50% of the
aggregate marks in University theory orals + internal assessment theory and
50% of the aggregate marks in University practicals + internal assessment
practicals/clinicals”. By saying so, the Division Bench declared the
appellants before them as passed and also issued direction to the University
to redeclare the results in accordance with the above directions and permitted
the appellants to continue their house surgencies.
9. In W.P.Nos. 25492 and 25884/2003 dated 31-10-2003 ( SALINI NAIR AND
ANOTHER v., PONDICHERRY UNIVERSITY REPRESENTED BY ITS REGISTRAR), one of us
(P. Sathasivam, J.,) had an occasion to consider similar question. Following
the Division Bench decision of the Kerala High Court (cited supra), similar
directions have been issued in those Writ Petitions.
10. Though Pondicherry University has filed Writ Appeals only with reference
to their claim that the University is entitled to frame higher standards than
that of MCI, it is brought to our notice that the orders passed/directions
issued have been fully implemented. In CONTROLLER OF EXAMINATIONS,
PONDICHERRY UNIVERSITY v. SUDHAKAR, reported in 2005 (3) CTC 2, First Bench
of this Court, while following the judgment of the Supreme Court in STATE OF
TAMIL NADU v. S. B. PRADHEEP (2004 (2) CTC 227) and another Division Bench
judgment rendered in Writ Appeal No.220 to 224 of 2004 CONTROLLER OF
EXAMINATIONS, PONDICHERRY UNIVERSITY v. T.P. JAYAPRAKASH) dated 23-2-2005,
accepted the contention of the University that they can prescribe higher
qualifications than that fixed by the All India Council for Technical
Education. However, direction has been issued namely that the writ
petitioners are entitled to receive the necessary certificates from the
University to enable them to produce before the Tamil Nadu Medical Council for
registration and further direction was issued that if such certificate is
produced, the Medical Council shall register the names of the appellant and
the writ petitioner. Even in Writ Appeal Nos. 771 and 772 of 2004 dated
04-01-2005 (PONDICHERRY UNIVERSITY REPRESENTED BY ITS REGISTRAR AND OTHERS v.
KRISHNA KABIR ANTHONY AND OTHERS) though the First Bench reiterated that it
was open for the Pondicherry University to fix higher medical standard than
those prescribed by the Medical Council of India, Pondicherry University
itself informed the Bench that since the writ petitioners have completed the
internship, they do not want to disturb them and they may also be registered
as medical practitioners, but insisted a declaration of the law on prescribing
higher standard by the University than that of MCI. It is also brought to our
notice that in similar order dated 14-11-2003 made in W.P.Nos. 27901 to 27904
and 28519 of 2003 (T. JAYAPRAKASH and OTHERS v. THE CONTROLLER OF
EXAMINATION, PONDICHERRY UNIVERSITY), the directions given by the learned
Single Judge of this Court (D. Murugesan, J.,) have been implemented by the
Pondicherry University. Learned counsel have also brought to our notice that
similar directions issued by another learned Single Judge of this Court (N.
Kannadasan, J.,) in W.P.Nos. 20385, 30049, 29882 and 31083/2003 dated
30-03-2005 have also been implemented by Pondicherry University. Mr. R.
Singaravelan, learned counsel appearing for the MCI while admitting that all
the above mentioned directions have been implemented by the Pondicherry
University, contended that there is no need to issue similar directions in the
above cases also. We are unable to accept his claim. It is not in dispute
that as per the Regulations of MCI, as interpreted by the Division Bench of
the Kerala High Court and followed by this Court in subsequent decisions, a
candidate shall declare to have passed if he has got 50 per cent of the
aggregate marks in University theory + orals + internal assessment theory and
50% of the aggregate marks in University practicals + internal assessment
practicals/ clinicals. It is also not in dispute by applying the same, the
petitioners are entitled to grace marks upto a maximum of 5 marks who have
failed only in one subject but have passed in all other subjects. As rightly
pointed out, the Medical Council of India cannot be allowed to take
inconsistent stand at various Courts. It is also brought to our notice that
during the time when the petitioners herein were allowed to continue their
internship course, the law holding the field was that of Adhiyaman’s case
reported in 1994 (4) SCC 104 and therefore based on the interim orders, the
petitioners have been allowed to undergo their internship and have also
completed the same.
11. It is relevant to point out that in para 14 of S.V. BRATHEEP’s case
(2004 (2) CTC 227), the Supreme Court has held that the admission made
already, pursuant to the interim order of this Court, is valid and protected
them to pursue the course and keeping the above aspect into consideration, the
Pondicherry University gave consent for issuance of Certificates for other
similarly placed persons, who are none other than the batchmates of these
petitioners. It is also brought to our notice that the relief had been
granted by this Court in 2005 (3) CTC 2 (cited supra) for the batch of
students who had undergone the course along with the petitioners, lacking
marks as per Pondicherry University Regulations and the results have been
published and they have been completed successfully by grant of grace marks in
one subject upto five marks and all of them registered as Medical
Practitioners. It is also relevant to point out that during the course of
hearing, learned counsel appearing for the Pondicherry University has brought
to our notice that the Pondicherry University itself had informed to their
standing counsel (Mr. K.Srinivasan) to the effect that as per the existing
MCI Regulations, the internal marks both in the written and practical are
taken into account while computing the pass of a student.
12. In the light of our discussion, petitioners are entitled to similar
directions in their writ petitions; consequently, all the writ petitions are
allowed and directions issued as prayed for. No costs.
Index:- Yes.
Internet:- Yes
R.B.