IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09-11-2017 CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.24226 of 2017 Jerry Mathew.C ... Petitioner Vs
1. The Medical Council of India, Rep.by its Secretary, MCI Building Pocket - 14 Sector -8, Dwarka Phase - I New Delhi - 110 077.
2. The Controller of Examinations Pondicherry University Kalapet, Pondicherry - 605 104.
3. Pondicherry Institute of Medical Sciences, Rep.by its Secretary, Ganapathichettikulam, Kalapet, Puducherry - 605 014. ... Respondents
Prayer: Writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, directing the 2nd Respondent to grant 1 (one) Mark as grace mark towards the Petitioner's practical test of Ophthalmology in the III Professional Part I M.B.B.S held on June 2017
as per the Medical Council of India Regulations chapter IV 13 (10) & Pondicherry University Examination Regulations 2009-2010.
For Petitioner : Mr.E.Koteeswaran For Respondents : Mr.V.P.Raman (for R1) Standing counsel Mr.Stalin Abhimanyu (for R2) Standing counsel Mr.Abishek (for R3) O R D E R The petitioner was selected for admission into medical course in the academic year 2011-12. The petitioner wrote the III Professional Part I M.B.B.S., examination in June 2017 and in one paper namely practical test of Ophthalmology the petitioner was declared failed as the petitioner was short of one marks in practical. However, the University clarified by communication dated 24.05.2017 addressed to the various medical colleges regarding awarding of grace marks that the grace marks would be awarded for papers only if the candidate failed in single subject while appearing for all subjects prescribed for that particular session and if the candidate clears one paper of a particular session and sits for remaining papers in the subsequent sessions he/she would not be eligible for grace marks. The said communication dated 24.05.2017 is being challenged before this Court.
2. Heard Mr.V.P.Raman, learned standing counsel for the first respondent; Mr.Stalin Abimanyu learned standing counsel appearing for the second respondent and Mr.Abishek, learned counsel appearing for the third respondent.
3. There is no doubt regarding awarding of grace marks for single subject, provided the student had cleared the other papers in the single examination for that session and the grace marks should not be granted to those students who appears for examination in compartment.
4. As per the Pondicherry University Examination Regulations, the minimum marks for declaration of pass is given in the following tabular column:
5. A perusal of the records would show that in respect of ophthalmology, the petitioner has got the following marks:
If the internal marks are taken into consideration, the petitioner would be failing in practical by obtaining 39/80 only viz., 27/50+12/30=39/80, as the marks required for passing the paper is 40/80. Therefore, the petitioner is short of 1 mark as per the above said Regulations.
6. However, as per regulation 12 of the Medical Council of India regulation, internal assessment marks cannot be clubbed with the University examination (external) marks to ascertain whether a candidate has passed in theory with oral and practicals. Medical Council of India regulation 12(4) is extracted as follows:
“Pass: In each of the subjects, a candidate must obtain 50% in aggregate with a minimum of 50% in theory including oral and minimum of 50% in Practical/clinicals”
7. Therefore as per regulation 12 of Medical Council of India Regulations, the internal marks namely 12/30 cannot be clubbed with the external marks namely 27/50. If the Medical Council of India regulation prohibits clubbing internal marks with the external marks, in deciding the pass, the Pondicherry University cannot have a regulation contrary to the Medical Council of India's Regulation. Therefore, practical marks taken by the University to club it along with the external marks is erroneous. As far as practical is concerned, 25 is the minimum mark, whereas the petitioner obtained 27/50. Therefore, without application of any grace marks, the petitioner has to be declared as pass in the paper. The above method is also supported by the judgment of the Hon'ble Supreme Court in Maharashtra University Health Sciences, Rep. by Deputy Registrar Vs. Paryani Mukesh Jawaharlal and others reported in (2007) 10 SCC 201 Paragraph 27 of the judgment is extracted as follows:
“27.We, therefore, accept the interpretation put forth by the University in respect of MCI Regulation 12 as correct and hold that Clauses 56(2) and 57 of amended University Ordinance 1 of 2002 are in consonance with Clauses (2) and
(4) of MCI Regulation 12. We also hold that internal assessment marks cannot be clubbed with University examination (external) marks to ascertain whether a candidate has passed in theory with orals, and practicals. We further hold that the clarification given by MCI in its letter dated 17.09.2002 and the clarification in its reply- affidavit are contrary to MCI Regulation 12(4). Consequently, a student has to secure marks as follows to pass in a subject:
(i) 35% in internal assessment (for eligibility to appear for University examination)
(ii) 50% of the total marks for theory with orals (only externals)
(iii) 50% of the marks for practicals/clinicals (only externals)
(iv) 50% of the aggregate (total of externals and internals)”
8. The guidelines given in the above judgment have been employed to declare that the petitioner has passed in practical test of Ophthalmology. Though the petitioner has challenged the clarification dated 24.05.2017 by which it is clarified that no grace marks would be awarded to the student who is appearing for examination in compartment and the question of awarding grace marks would arise only in a single subject provided the candidate cleared all the papers in the examination in one session, except one paper. Further it is found that the petitioner has got the required marks as per Medical Council of India regulation and considering the judgment of the Hon'ble Supreme Court and moulding the prayer, this Court declares the petitioner as having passed practical test of Ophthalmology and the respondent University is directed to give the mark sheet declaring him as “pass”. In view of the declaration that the petitioner has passed the paper namely practical test of Ophthalmology, there should not be any prohibition for the petitioner to go for the III professional (part-II) year and write the examination. The respondent/university is directed to receive the fees from the petitioner and allow the petitioner to write the III professional (part-II) examination.
N.KIRUBAKARAN,J
sai/tkp With the above directions, this writ petition is disposed. No costs.
09.11.2017 sai/tkp To
1. The Medical Council of India, Rep.by its Secretary, MCI Building Pocket - 14 Sector -8, Dwarka Phase - I New Delhi - 110 077.
2. The Controller of Examinations Pondicherry University Kalapet, Pondicherry - 605 104.
3. Pondicherry Institute of Medical Sciences, Rep.by its Secretary, Ganapathichettikulam, Kalapet, Puducherry - 605 014.
W.P.No.24226 of 2017