{"id":70668,"date":"2003-03-21T00:00:00","date_gmt":"2003-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-maharashtra-university-of-vs-vibhavari-dilip-pawar-on-21-march-2003"},"modified":"2019-03-03T23:32:40","modified_gmt":"2019-03-03T18:02:40","slug":"the-maharashtra-university-of-vs-vibhavari-dilip-pawar-on-21-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-maharashtra-university-of-vs-vibhavari-dilip-pawar-on-21-march-2003","title":{"rendered":"The Maharashtra University Of … vs Vibhavari Dilip Pawar on 21 March, 2003"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Maharashtra University Of … vs Vibhavari Dilip Pawar on 21 March, 2003<\/div>\n
Equivalent citations: 2003 (5) BomCR 440<\/div>\n
Author: D Chandrachud<\/div>\n
Bench: C Thakker, D Chandrachud<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
D.Y. Chandrachud, J.  <\/p>\n
1.
\nRule, returnable forthwith. The
\nLearned counsel for the Respondents waives service.
\nBy consent taken up for hearing and final disposal.\n<\/p>\n
2. In these proceedings, the Maharashtra
\nUniversity of Health Sciences (“MUHS”) prays for a
\nmodification of directions (i) to (iv) contained in
\nparagraph 34 of the judgment and order dated 25th
\nFebruary, 2003 passed by this court. These
\ndirections are as follows:\n<\/p>\n
“(i) In terms of Rule 56 of Ordinance 1 of
\n2002, which provides three heads of
\npassing, namely (i) Theory, (ii)
\nPracticals and (iii) Internal
\nAssessment and in view of Rule 57, a
\nstudent in order to pass the
\nexamination must obtain 50% marks in
\neach of the three heads of passing as
\naforesaid separately;\n<\/p>\n
(ii) Consequently, so long as Rules 56 and
\n57 of Ordinance 1 of 2002 continue to
\nhold the field, it would not be open
\nto MUHS to regard the Orals as a
\nseparate head of passing either
\nindependently or in conjunction with
\nany of the three heads of passing
\nstipulated in Rule 56;\n<\/p>\n
(iii) The results of the petitioners and
\nother similarly placed students at the
\nOctober 2002 examination shall be
\nreprocessed so as to bring them in
\nconformity with Rules 56 and 57 as
\nclarified with Rules 56 and 57 as
\nclarified above; and this shall be
\ndone as expeditiously as possible:\n<\/p>\n
(iv) MUHS shall within a period of two
\nweeks from today, resubmit to the
\nChancellor, either (a) a statement of
\ncompliance with the Chancellor’s
\nDirective dated 30th March, 2001 on
\nthe adoption of the Ordinances for
\nconduct of examinations based on the
\nReport of the Nigavekar Committee or\n<\/p>\n
(b) such objections which MUHS has to
\nthe adoption of the aforesaid
\nOrdinances based on the applicable
\nregulations of statutory bodies such
\ns the M.C.I., C.C.I.M., and C.C.H. or
\nfor any other reason:”\n<\/p>\n
In so far as direction (iv) is concerned, an
\nextension of time to comply with the order of the
\nCourt is sought since meetings of the Academic and
\nManagement Councils are scheduled to be held on 9th
\nand 22nd April, 2003. The prayer for extension
\nwill be considered subsequently. As would be clear
\nfrom directions (i) to (iii) and the discussion in
\nconnection therewith contained in paragraphs 18 to
\n20 of the judgment of the Court, the underlying
\nrationale in respect thereof is that under Rule 56
\nof Ordinance 1 of 2002, there are three heads of
\npassing, namely (i) Theory, (ii) Practicals and\n<\/p>\n
(iii) Internal Assessment. Under Rule 57, a
\nstudent, in order to pass the examination has to
\nobtain 50% marks in each of the three heads of
\npassing as aforesaid separately. The grievance of
\nthe Petitioner before the Court was that the
\nUniversity was acting in a manner contrary to the
\nordinance by requiring that the students must pass
\nin oral tests either as a separate head of passing
\nor in conjunction with one of the other heads. The
\njudgment of the Court proceeded on the
\ninterpretation of Rules 56 and 57 since that was
\nthe issue argued.\n<\/p>\n
3. MUHS has in the Review Petition now
\nplaced before the Court, the applicable rules and
\nregulations of the Medical Council of India, the
\nDental Council of India, Central Council of
\nHomoeopathy and Central Council of Indian Medicine.
\nOn that basis, MUHS seeks to submit that in the
\nexercise of their statutory powers, these Central
\nCouncils require that the marks obtained in the
\noral examinations should be taken into account for
\ndetermining whether an student has passed an
\nexamination. MUHS has submitted that under the
\napplicable regulations of the Medical Council of
\nIndia and the Dental Council of India, the marks
\nobtained in the oral examination are clubbed with
\nanother head of passing. In the case of the
\nCentral Council of Homoeopathy and the Central
\nCouncil of Indian Medicine, it is urged, the oral
\nexaminations are prescribed as a separate head of
\npassing for the Bachelors Degree courses in
\nHomoeopathy and Ayurveda, respectively. Counsel
\nfor MUHS stated fairly that these regulations ought
\nto have been but were not produced before the Court
\nwhen arguments were addressed by MUHS in the batch
\nof Petitions.\n<\/p>\n
4. In these circumstances, MUHS has
\nprayed for a modification of operative directions\n<\/p>\n
(i) to (iv) in the previous judgment and order of
\nthis Court dated 25th February, 2003. The Learned
\nCounsel appearing on behalf of the MUHS in the
\ncourse of the submissions has stated that MUHS
\nwould rest content with a clarification of this
\nCourt to the effect that while reprocessing the
\nresults of candidates who have been declared as
\nhaving failed in the examinations, the University
\nis directed to act in accordance with the rules and
\nregulations laid down by the competent Central
\nCouncils under the enactment by which each of them
\nis governed.\n<\/p>\n
5. Before dealing with the merits of the
\nsubmissions which have been urged on behalf of MUHS
\nwe must, at the outset, record that during the
\ncourse of the hearing of the batch of matters
\nbefore this court which resulted in the judgment
\nand order dated 25th February, 2003, MUHS had not
\nplaced before the Court for its consideration, the
\nregulations of the diverse Central Councils which
\nare now sought to be relied upon at this stage.
\nMUHS had in fact, urged submissions before the
\nCourt on the basis of the Ordinances as they stand
\nand it was on the interpretation of those
\nOrdinances that the operative directions of the
\nCourt were issued. Indeed, on a separate issue
\nrelating to the award of grace marks, where a
\nregulation of the Medical Council of India was
\ndrawn to the attention of the Court, this Court has
\ncategorically held that once the MCI has framed
\ncertain regulations which hold the field, these are
\nbinding and must be scrupulously observed. Though
\nthe matter was argued before us over several days,
\nMUHS had in the course of its submissions not
\napprised the Court of the relevant regulations
\nframed by the Central Councils in this regard. Be
\nthat as it may, since the matter relates to a
\nsubject as important as medical education and since
\nthe attention of the Court has now been drawn to
\nstatutory regulations framed by competent
\nregulatory authorities established under Acts of
\nParliament, it would be necessary for the Court to
\nconsider the impact of those regulations and to the
\nextent it is necessary to do so, to modify or
\nclarify the operative directions contained in the
\njudgment of the Court dated 25th February, 2003.
\nThe Learned Counsel for MUHS has stated that he has
\ngiven notice of the Review Petition to the other
\nLearned Counsel. We have accordingly, had the
\nbenefit of hearing, besides the Learned Counsel for
\nMUHS, Mr. S.D. Rupwate who appears in Review Petition
\nNo. 33 of 2003 in Writ Petition No. 591 of 2003 and
\nMr. M.M. Vashi, the Learned Counsel appearing on
\nbehalf of the Petitioner in Writ Petition No. 312 of
\n2003 on the Original Side.\n<\/p>\n
6. A perusal of the statutory regulations
\nwhich have been placed before the Court by MUHS
\nwould reveal that marks obtained in oral
\nexaminations are required to be taken into account
\nin the manner and to the extent to which this has
\nbeen mandated in the regulations. The Medical
\nCouncil of India has framed Regulations on Graduate
\nMedical Education, 1997. In the Regulations,
\nRegulation 12 of Chapter IV is entitled
\n“Examination Regulation”. Sub-regulation (4)
\nprovides for “Distribution of Marks to Various
\nDisciplines”. For the first professional
\nexamination (Pre clinical subjects) marks are
\nrequired to be allotted to the oral examination in
\nAnatomy, Physiology including Biophysics and
\nBiochemistry. The following note is appended to
\nsub-regulation 4(A) of Regulation 12 :\n<\/p>\n
“Pass ” In each of the subjects, a
\ncandidate must obtain 50% in aggregate
\n with a minimum of 50% in Theory
\n]including orals and minimum of 50% in
\nPracticals”\n<\/p>\n
For instance, in the subject of Anatomy, there are
\ntwo theory papers each of 50 marks. Besides, the
\nOrals carry 20 marks, Practicals 40 marks and
\nInternal Assessment 40 marks. Similar notes are
\nappended to the other sub-regulations of Regulation\n<\/p>\n
12. <\/p>\n
7. In so far as the Bachelor of Dental
\nSurgery is concerned, the Regulations framed by the
\nDental Council of india with the approval of the
\nCentral Government under the Dentists Act, 1948,
\nalso provides for the manner in which marks
\nobtained in the oral examinations must be graded.
\nThe following provision has been made therein:\n<\/p>\n
 “Maximum marks and duration of examination
\nEach subject will have a maximum of 200 Marks
\nas follows:-\n<\/p>\n
  Theory
\n  Practical\/Clinical<\/p>\n
  University
\nExamination<\/p>\n
Written
\nOrals<\/p>\n
50 <\/span>
\n25<\/span><\/p>\n
75 <\/span>
\n\u00a0<\/p>\n
-University
\n\u00a0Examination<\/p>\n
  Internal Assessment
\n  25<\/span>
\n  25<\/span>\n<\/p>\n
  -Internal
\n\u00a0Assessment<\/p>\n
 \u00a0<\/p>\n
  \u00a0
\n  \u00a0
\n  100<\/span>
\n  100<\/span>
\n  =\u00a0\u00a0\u00a0\u00a0200<\/p>\n
 \u00a0<\/p>\n
 (1) For a pass the candidate must secure a
\nminimum of 50% marks in the University
\nexamination and 50% marks in the aggregate
\ni.e. University examination and internal
\nassessment in each division viz., theory and
\npractical and or clinical separately.”\n<\/p>\n
On 21st January, 2003, DCI has recognised the
\nB.D.S. Degree Court of MUHS.\n<\/p>\n
 8. In so far as the Central Council for
\nHomoeopathy is concerned, Regulations have been
\nframed with the approval of the Central Government,
\ncalled the Homoeopathy (Degree Course)
\nB.H.M.S. Regulations, 1983. Part VI of these
\nRegulations deals with the Examination. For the
\nfirst year of the B.H.M.S. course, it has been
\nprovided, for instance, that “pass marks in all
\nsubjects both homoeopathic and allied medical
\nsubjects  shall be 50% in each part (written, oral
\nand practical)”. In the subject of Anatomy, the
\nwritten examinations carry 200 marks while the
\nOrals and Practicals carry 100 marks each. The
\nstudent has to obtain at least 100 marks in the
\nwritten examination and 50 each in orals and
\npracticals to pass. Similar provisions have been
\nmade for the other subjects in the B.H.M.S. degree
\ncourse.\n<\/p>\n
9. In so far as B.A.M.S. Degree course
\nis concerned, the Central Council of Indian
\nMedicine has framed Regulations with the approval
\nof the Central Government which have come into
\nforce with effect from 1st July, 1989. These
\nRegulations provide for separate marks to be
\nallocated in theory examinations and in
\npractical\/oral examinations respectively. By a
\ncommunication dated 21st September, 2001, the
\nCentral Council of Indian Medicine has informed
\nMUHS that the Regulations of 1989 are mandatory and
\nthat it would not be open to MUHS to make changes
\nin the syllabus and curriculum.\n<\/p>\n
 10. Regulations which govern Unani courses
\nare also placed before the Court. These provide
\nfor assessment of theory and practicals\/viva.\n<\/p>\n
 11. In view of the regulations which have
\nbeen framed by (i) the Medical Council of India for
\nthe M.B.B.S. degree course, (ii) the Dental
\nCouncil of India for the bachelor of Dental Surgery
\n(B.D.S.) Course, (iii) the Central Council for
\nHomoeopathy for the Bachelor of Homoeopathic
\nMedicine and Surgery (B.H.M.S.) Course, (iv) the
\nCentral Council of Indian Medicine for the bachelor
\nof Ayurvedic Medicine and Surgery (B.A.M.S.)
\nCourse, there can be no gainsaying the fact that
\nMUHS is bound under the law to comply with these
\nminimum standards of medical education which have
\nbeen prescribed by the competent Central Councils.
\nTherefore, we find that there is merit in the
\nsubmission which has been urged on behalf of MUHS
\nto the effect that in reprocessing the results of
\nthe students who have failed, MUHS would have to
\nact in accordance with the prescribed regulations.
\nIn the Review Petition it has been stated on behalf
\nof he MUHS that an Advocate’s notice was addressed
\nto it on behalf of certain students of the B.H.M.S.
\nCourse in Writ Petition No. 591 of 2003 which has
\nled to the filing of the Review Petition. MUHS has
\nurged, and in our view wit justification, that
\nsince the orals have been prescribed as a separate
\nhead of passing for the BHMS Course by the Central
\nCouncil for Homoeopathy, and this was adopted in
\nthe Syllabus framed by MUHS, these students are not
\nentitled to the benefit of directions (ii) and\n<\/p>\n
(iii) in Paragraph 34 of the order of this Court.
\nThe learned Counsel for those students has urged
\nbefore the Court that MUHS must implement the
\nRegulations framed by CCIM in their entirety and
\nthat these also mandate a supplementary examination
\nfor students who are declared to have failed. The
\nOrdinances which have been framed by MUHS have
\nalready been adverted to in the judgment and order
\nof this Court dated 25th February, 2003. We find
\nthat the Ordinances have been framed without fully
\nconsidering the regulations framed by the Central
\nCouncils governing diverse branches of medicine
\nsuch as MCI, DCI, CCH and CCIM which govern diverse
\nbranches of Medicine. The Ordinances of MUHS have
\nto be brought in conformity with the Regulations
\nstatutorily framed by the Central Councils. The
\nLearned Counsel for MUHS accepts this position. We
\nrecord the assurance given to the Court on behalf
\nof MUHS that steps will be taken by MUHS
\nexpeditiously for amending the Ordinances framed by
\nit in relation to examinations so as to bring them
\nin conformity with the requirements of the
\nregulations framed by various Central Councils in
\npursuance of Parliamentary enactments holding the
\nfield.\n<\/p>\n
 12. In so far as the present case is
\nconcerned, we are of the view that the directions
\ncontained in Clauses (i) to (iv) of paragraph 34 of
\nthe judgment and order of this Court dated 25th
\nFebruary, 2003, would have to be suitably modified
\nand\/or clarified so as to obviate and ambiguity in
\nactual implementation of the mandatory regulations
\nframed by the Central Councils. Accordingly, the
\nfollowing direction shall be inserted as direction\n<\/p>\n
(iii)(a) after direction (iii):\n<\/p>\n
(iii)(a) Where, however, the relevant statutory
\nregulations framed by a Central
\nCouncil established in pursuance of an
\nAct of Parliament require that the
\nmarks obtained in the oral
\nexaminations be taken into
\nconsideration in preparing the results
\nof the examination, MUHS shall act in
\naccordance with the applicable
\nregulations both as regards the extent
\nto which and the manner in which the
\nmarks obtained in the oral
\nexaminations shall be taken into
\naccount.\n<\/p>\n
 13. Finally, it may be noted that in
\nparagraph 8 of the Review Petition MUHS has prayed
\nfor extension of time to carry out the direction of
\nthis Court in Clause (iv) of paragraph 34. MUHS
\nhas stated that the meetings of the Academic
\nCouncil and of the Management Council are to be
\nheld on 9th April, 2003 and 22nd April, 2003.
\nConsequently, an extension is sought of the period
\nwhich has been prescribed by this Court of two
\nweeks. In view of what has been stated in
\nparagraph 8 of the Review Petition, we are of the
\nview that a case for the extension of time has been
\nmade out. The time prescribed in operative
\ndirection (iv) of paragraph 34 is accordingly
\nextended until 30th April, 2003.\n<\/p>\n
 14. The Review Petition is disposed of in
\nthe aforesaid terms. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Maharashtra University Of … vs Vibhavari Dilip Pawar on 21 March, 2003 Equivalent citations: 2003 (5) BomCR 440 Author: D Chandrachud Bench: C Thakker, D Chandrachud 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-70668","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Maharashtra University Of ... vs Vibhavari Dilip Pawar on 21 March, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-maharashtra-university-of-vs-vibhavari-dilip-pawar-on-21-march-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Maharashtra University Of ... vs Vibhavari Dilip Pawar on 21 March, 2003 - 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