JUDGMENT
D.Y. Chandrachud, J.
1.
Rule, returnable forthwith. The
Learned counsel for the Respondents waives service.
By consent taken up for hearing and final disposal.
2. In these proceedings, the Maharashtra
University of Health Sciences (“MUHS”) prays for a
modification of directions (i) to (iv) contained in
paragraph 34 of the judgment and order dated 25th
February, 2003 passed by this court. These
directions are as follows:
“(i) In terms of Rule 56 of Ordinance 1 of
2002, which provides three heads of
passing, namely (i) Theory, (ii)
Practicals and (iii) Internal
Assessment and in view of Rule 57, a
student in order to pass the
examination must obtain 50% marks in
each of the three heads of passing as
aforesaid separately;
(ii) Consequently, so long as Rules 56 and
57 of Ordinance 1 of 2002 continue to
hold the field, it would not be open
to MUHS to regard the Orals as a
separate head of passing either
independently or in conjunction with
any of the three heads of passing
stipulated in Rule 56;
(iii) The results of the petitioners and
other similarly placed students at the
October 2002 examination shall be
reprocessed so as to bring them in
conformity with Rules 56 and 57 as
clarified with Rules 56 and 57 as
clarified above; and this shall be
done as expeditiously as possible:
(iv) MUHS shall within a period of two
weeks from today, resubmit to the
Chancellor, either (a) a statement of
compliance with the Chancellor’s
Directive dated 30th March, 2001 on
the adoption of the Ordinances for
conduct of examinations based on the
Report of the Nigavekar Committee or
(b) such objections which MUHS has to
the adoption of the aforesaid
Ordinances based on the applicable
regulations of statutory bodies such
s the M.C.I., C.C.I.M., and C.C.H. or
for any other reason:”
In so far as direction (iv) is concerned, an
extension of time to comply with the order of the
Court is sought since meetings of the Academic and
Management Councils are scheduled to be held on 9th
and 22nd April, 2003. The prayer for extension
will be considered subsequently. As would be clear
from directions (i) to (iii) and the discussion in
connection therewith contained in paragraphs 18 to
20 of the judgment of the Court, the underlying
rationale in respect thereof is that under Rule 56
of Ordinance 1 of 2002, there are three heads of
passing, namely (i) Theory, (ii) Practicals and
(iii) Internal Assessment. Under Rule 57, a
student, in order to pass the examination has to
obtain 50% marks in each of the three heads of
passing as aforesaid separately. The grievance of
the Petitioner before the Court was that the
University was acting in a manner contrary to the
ordinance by requiring that the students must pass
in oral tests either as a separate head of passing
or in conjunction with one of the other heads. The
judgment of the Court proceeded on the
interpretation of Rules 56 and 57 since that was
the issue argued.
3. MUHS has in the Review Petition now
placed before the Court, the applicable rules and
regulations of the Medical Council of India, the
Dental Council of India, Central Council of
Homoeopathy and Central Council of Indian Medicine.
On that basis, MUHS seeks to submit that in the
exercise of their statutory powers, these Central
Councils require that the marks obtained in the
oral examinations should be taken into account for
determining whether an student has passed an
examination. MUHS has submitted that under the
applicable regulations of the Medical Council of
India and the Dental Council of India, the marks
obtained in the oral examination are clubbed with
another head of passing. In the case of the
Central Council of Homoeopathy and the Central
Council of Indian Medicine, it is urged, the oral
examinations are prescribed as a separate head of
passing for the Bachelors Degree courses in
Homoeopathy and Ayurveda, respectively. Counsel
for MUHS stated fairly that these regulations ought
to have been but were not produced before the Court
when arguments were addressed by MUHS in the batch
of Petitions.
4. In these circumstances, MUHS has
prayed for a modification of operative directions
(i) to (iv) in the previous judgment and order of
this Court dated 25th February, 2003. The Learned
Counsel appearing on behalf of the MUHS in the
course of the submissions has stated that MUHS
would rest content with a clarification of this
Court to the effect that while reprocessing the
results of candidates who have been declared as
having failed in the examinations, the University
is directed to act in accordance with the rules and
regulations laid down by the competent Central
Councils under the enactment by which each of them
is governed.
5. Before dealing with the merits of the
submissions which have been urged on behalf of MUHS
we must, at the outset, record that during the
course of the hearing of the batch of matters
before this court which resulted in the judgment
and order dated 25th February, 2003, MUHS had not
placed before the Court for its consideration, the
regulations of the diverse Central Councils which
are now sought to be relied upon at this stage.
MUHS had in fact, urged submissions before the
Court on the basis of the Ordinances as they stand
and it was on the interpretation of those
Ordinances that the operative directions of the
Court were issued. Indeed, on a separate issue
relating to the award of grace marks, where a
regulation of the Medical Council of India was
drawn to the attention of the Court, this Court has
categorically held that once the MCI has framed
certain regulations which hold the field, these are
binding and must be scrupulously observed. Though
the matter was argued before us over several days,
MUHS had in the course of its submissions not
apprised the Court of the relevant regulations
framed by the Central Councils in this regard. Be
that as it may, since the matter relates to a
subject as important as medical education and since
the attention of the Court has now been drawn to
statutory regulations framed by competent
regulatory authorities established under Acts of
Parliament, it would be necessary for the Court to
consider the impact of those regulations and to the
extent it is necessary to do so, to modify or
clarify the operative directions contained in the
judgment of the Court dated 25th February, 2003.
The Learned Counsel for MUHS has stated that he has
given notice of the Review Petition to the other
Learned Counsel. We have accordingly, had the
benefit of hearing, besides the Learned Counsel for
MUHS, Mr. S.D. Rupwate who appears in Review Petition
No. 33 of 2003 in Writ Petition No. 591 of 2003 and
Mr. M.M. Vashi, the Learned Counsel appearing on
behalf of the Petitioner in Writ Petition No. 312 of
2003 on the Original Side.
6. A perusal of the statutory regulations
which have been placed before the Court by MUHS
would reveal that marks obtained in oral
examinations are required to be taken into account
in the manner and to the extent to which this has
been mandated in the regulations. The Medical
Council of India has framed Regulations on Graduate
Medical Education, 1997. In the Regulations,
Regulation 12 of Chapter IV is entitled
“Examination Regulation”. Sub-regulation (4)
provides for “Distribution of Marks to Various
Disciplines”. For the first professional
examination (Pre clinical subjects) marks are
required to be allotted to the oral examination in
Anatomy, Physiology including Biophysics and
Biochemistry. The following note is appended to
sub-regulation 4(A) of Regulation 12 :
“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
Practicals”
For instance, in the subject of Anatomy, there are
two theory papers each of 50 marks. Besides, the
Orals carry 20 marks, Practicals 40 marks and
Internal Assessment 40 marks. Similar notes are
appended to the other sub-regulations of Regulation
12.
7. In so far as the Bachelor of Dental
Surgery is concerned, the Regulations framed by the
Dental Council of india with the approval of the
Central Government under the Dentists Act, 1948,
also provides for the manner in which marks
obtained in the oral examinations must be graded.
The following provision has been made therein:
“Maximum marks and duration of examination
Each subject will have a maximum of 200 Marks
as follows:-
Theory
Practical/Clinical
University
Examination
Written
Orals
50
25
75
-University
Examination
Internal Assessment
25
25
-Internal
Assessment
100
100
= 200
(1) For a pass the candidate must secure a
minimum of 50% marks in the University
examination and 50% marks in the aggregate
i.e. University examination and internal
assessment in each division viz., theory and
practical and or clinical separately.”
On 21st January, 2003, DCI has recognised the
B.D.S. Degree Court of MUHS.
8. In so far as the Central Council for
Homoeopathy is concerned, Regulations have been
framed with the approval of the Central Government,
called the Homoeopathy (Degree Course)
B.H.M.S. Regulations, 1983. Part VI of these
Regulations deals with the Examination. For the
first year of the B.H.M.S. course, it has been
provided, for instance, that “pass marks in all
subjects both homoeopathic and allied medical
subjects shall be 50% in each part (written, oral
and practical)”. In the subject of Anatomy, the
written examinations carry 200 marks while the
Orals and Practicals carry 100 marks each. The
student has to obtain at least 100 marks in the
written examination and 50 each in orals and
practicals to pass. Similar provisions have been
made for the other subjects in the B.H.M.S. degree
course.
9. In so far as B.A.M.S. Degree course
is concerned, the Central Council of Indian
Medicine has framed Regulations with the approval
of the Central Government which have come into
force with effect from 1st July, 1989. These
Regulations provide for separate marks to be
allocated in theory examinations and in
practical/oral examinations respectively. By a
communication dated 21st September, 2001, the
Central Council of Indian Medicine has informed
MUHS that the Regulations of 1989 are mandatory and
that it would not be open to MUHS to make changes
in the syllabus and curriculum.
10. Regulations which govern Unani courses
are also placed before the Court. These provide
for assessment of theory and practicals/viva.
11. In view of the regulations which have
been framed by (i) the Medical Council of India for
the M.B.B.S. degree course, (ii) the Dental
Council of India for the bachelor of Dental Surgery
(B.D.S.) Course, (iii) the Central Council for
Homoeopathy for the Bachelor of Homoeopathic
Medicine and Surgery (B.H.M.S.) Course, (iv) the
Central Council of Indian Medicine for the bachelor
of Ayurvedic Medicine and Surgery (B.A.M.S.)
Course, there can be no gainsaying the fact that
MUHS is bound under the law to comply with these
minimum standards of medical education which have
been prescribed by the competent Central Councils.
Therefore, we find that there is merit in the
submission which has been urged on behalf of MUHS
to the effect that in reprocessing the results of
the students who have failed, MUHS would have to
act in accordance with the prescribed regulations.
In the Review Petition it has been stated on behalf
of he MUHS that an Advocate’s notice was addressed
to it on behalf of certain students of the B.H.M.S.
Course in Writ Petition No. 591 of 2003 which has
led to the filing of the Review Petition. MUHS has
urged, and in our view wit justification, that
since the orals have been prescribed as a separate
head of passing for the BHMS Course by the Central
Council for Homoeopathy, and this was adopted in
the Syllabus framed by MUHS, these students are not
entitled to the benefit of directions (ii) and
(iii) in Paragraph 34 of the order of this Court.
The learned Counsel for those students has urged
before the Court that MUHS must implement the
Regulations framed by CCIM in their entirety and
that these also mandate a supplementary examination
for students who are declared to have failed. The
Ordinances which have been framed by MUHS have
already been adverted to in the judgment and order
of this Court dated 25th February, 2003. We find
that the Ordinances have been framed without fully
considering the regulations framed by the Central
Councils governing diverse branches of medicine
such as MCI, DCI, CCH and CCIM which govern diverse
branches of Medicine. The Ordinances of MUHS have
to be brought in conformity with the Regulations
statutorily framed by the Central Councils. The
Learned Counsel for MUHS accepts this position. We
record the assurance given to the Court on behalf
of MUHS that steps will be taken by MUHS
expeditiously for amending the Ordinances framed by
it in relation to examinations so as to bring them
in conformity with the requirements of the
regulations framed by various Central Councils in
pursuance of Parliamentary enactments holding the
field.
12. In so far as the present case is
concerned, we are of the view that the directions
contained in Clauses (i) to (iv) of paragraph 34 of
the judgment and order of this Court dated 25th
February, 2003, would have to be suitably modified
and/or clarified so as to obviate and ambiguity in
actual implementation of the mandatory regulations
framed by the Central Councils. Accordingly, the
following direction shall be inserted as direction
(iii)(a) after direction (iii):
(iii)(a) Where, however, the relevant statutory
regulations framed by a Central
Council established in pursuance of an
Act of Parliament require that the
marks obtained in the oral
examinations be taken into
consideration in preparing the results
of the examination, MUHS shall act in
accordance with the applicable
regulations both as regards the extent
to which and the manner in which the
marks obtained in the oral
examinations shall be taken into
account.
13. Finally, it may be noted that in
paragraph 8 of the Review Petition MUHS has prayed
for extension of time to carry out the direction of
this Court in Clause (iv) of paragraph 34. MUHS
has stated that the meetings of the Academic
Council and of the Management Council are to be
held on 9th April, 2003 and 22nd April, 2003.
Consequently, an extension is sought of the period
which has been prescribed by this Court of two
weeks. In view of what has been stated in
paragraph 8 of the Review Petition, we are of the
view that a case for the extension of time has been
made out. The time prescribed in operative
direction (iv) of paragraph 34 is accordingly
extended until 30th April, 2003.
14. The Review Petition is disposed of in
the aforesaid terms. No costs.