Shubham Raj vs Medical Council Of India & Others

Ashis Kumar Chakraborty, J

The petitioner in this writ petition is a student of Andaman & Nicobar Islands Institute of Medical Sciences (in short, ANIIMS), affiliated to the Pondicherry University. The petitioner appeared in the supplementary examination for the Second Professional Examination (hereinafter referred to as 'the said examination"). On August 22, 2019 the Pondicherry University published the result of the petitioner declaring him to have failed in the said examination. The subjects/ disciplines of the said examination comprised Pathology, Microbiology, Pharmacology and Forensic Medicines.

In the writ petition, the petitioner has challenged his result declared by the Pondicherry University on the ground that the Regulation framed by the said University, based on which his result has been declared, is contrary to the Regulation 12 (4) framed by the Medical Council of India (in short, 'the MCI'), under Section 33 of the Indian Medical Council Act, 1956 and void. The petitioner has also filed a supplementary affidavit affirmed by him on September 26, 2019.

As per the Pondicherry University Regulation a student appearing for the second professional examination has to appear in the examination of four subjects, (a) Pathology, (b) Microbiology, (c) Pharmacology and (d) Forensic Medicine. All the said four subjects comprises (i) Theory, (ii) Oral (viva), (iii) Practical and (iv) Internal Assessment. The total marks for the Theory papers of Pathology, Microbiology and Pharmacology is 160 marks together with oral (viva) of 20 marks. The practical marks for Pathology, Microbiology and Pharmacology is 100 each. The internal assessment marks of all the said three subjects comprises "Theory" - 40 marks and "Practical" - 30 marks. Thus, total marks for each of the subjects, namely Pathology, Microbiology and Pharmacology is 350. So far as the subject of Forensic Medicine, as per the Pondicherry University Regulation the Theory part comprises one paper for 80 marks, oral (viva) is for 20 marks Practical/Clinical is for 50 marks and Internal Assessment, comprising Theory is for 20 marks and Practical for 30 marks. Therefore, the total marks of Forensic Medicine is 200. As per the Pondicherry University Regulation in order to clear any examination of the MBBS course a student is required to obtain the following marks:

Minimum marks for declaration of pass

University

Internal Assessment

University + Int. Assessment aggregate + Viva

Theory (Minimum)

40%

35%

50%

Practice/Clinical (Minimum

50%

35%

50%

*Viva marks should be added to the theory marks and not to the Practical/Clinical marks

As per the Pondicherry University Regulation for Pathology, Pharmacology and Microbiology the total marks of theory including viva, is 180. Therefore, in order to pass in the Theory part of the said examination, a student has to secure 72 marks. For Forensic Medicine the theory paper is for 80 marks and oral (viva) is for 20 marks. In order to obtain pass mark for theory for Forensic Medicine a student has to secure 40% of 100 i.e. 40. The total marks for theory in internal assessment for the three subjects Pathology, Pharmacology and Microbiology is 40 and as per the Pondicherry University Guidelines the pass mark of the theory in internal assessment is 35% of 40, i.e., 14. So far as the Forensic Medicine is concerned the total marks for theory internal assessment is 20 and as per the Pondicherry University Guidelines the pass mark would be 35% of 20 i.e.

The total marks for theory in University + internal assessment aggregate + viva for the Pathology, Pharmacology and Microbiology is 220 and the required pass mark is 50% of 220 i.e. 110. With regard to the Forensic Medicine the total marks for theory in University + internal assessment + viva is 120 and the required pass mark being 50% of 120 is 60. The total marks for practical in University examination for Pathology, Pharmacology and Microbiology is 100 and the required pass mark is 50% of 100, i.e. 50. With regard to Forensic Medicine the total marks for practical in University is 50 and the required pass mark being 50% of 50 is 25. Further, the total marks for practical in internal assessment for Pathology, Pharmacology and Microbiology and Forensic Medicine is 30 and as per the Pondicherry University Guidelines the required pass mark for practical in internal assessment for the said three subjects, is 35% of 30, i.e. 10.5 with regard to Pathology, Pharmacology and Microbiology the total marks for practical in University + internal assessment aggregate + viva is 130 (since there is no viva attached to practical) and the required pass mark being 50% of 130 is 65. With regard to the Forensic Medicine the total marks for practical in University + internal assessment aggregate + viva is 80 (as there is no viva attached to practical) and the required pass mark is 50% of 80, i.e. 40. In order to be declared as passed the in theory part of Pathology, Pharmacology and Microbiology, a student has to obtain 72 marks i.e. 40% of the theory. From the marksheet issued by the Pondicherry University to the petitioner it is evident that in all the theory papers of the said three subjects he has secured more than 72 marks. Similarly, the petitioner has also passed the practical part of each of the papers as he has secured more than 50% in each of the said four subjects.

Regarding internal assessment the petitioner can be said to have secured less than 35% in theory in Pathology. However, in practical the petitioner has secured 35% in all the subjects. So far as the third category (University+ internal assessment agreement + viva) is concerned the petitioner has secured 50% more in Pharmacology and Pathology. In Microbiology and Forensic Medicine the petitioner has secured less than 50% mark. In the category of practical/clinical the petitioner has secured less than 50% mark in Pharmacology in the third category i.e. University + internal assessment aggregate. So far as the Pathology is concerned, the petitioner has secured the pass mark both in theory and practical but in the third category (internal assessment) the petitioner secured less than 35% mark in theory category of Pathology.

In the result declared by the Pondicherry University the petitioner has been shown to have failed in Pharmacology since he obtained 64 for Practical in University + internal assessment aggregate + viva, when the required pass mark is 65. The petitioner is also declared to have failed in Pathology since he obtained only 13 marks in internal assessment for Theory, when the required pass mark is 14. He has further been declared to have failed in Microbiology as he has obtained 105 marks for Theory in University + Internal Assessment Aggregate + viva, when the required pass mark is 110. The petitioner has further been declared to have failed in Forensic Medicine as he has obtained 59 marks for Theory in University + Internal Assessment Aggregate + viva, when the required pass mark is 60.

According to the petitioner, the Pondicherry University is bound by the Regulations framed by the Medical Council of India under section 33 of the Medical Council Act, 1956 for conducting any examination by the Medical Colleges affiliated to the said University. It was further submitted that as per Regulation 12 of the MCI Regulations, which is binding upon the Pondicherry University. In order to pass the second professional examination the petitioner is required to obtain 50% of the total marks in Theory including oral, 50% of the marks in Practical and 50% of the marks in aggregate in all the four subjects of Pathology, Pharmacology and Microbiology and Forensic Medicine. As per the said regulation of MCI in order to pass Theory including viva in Pathology, Pharmacology and Microbiology the student is required to obtain 90 marks (50% of 180). So far as the Forensic Medicine is concerned a successful candidate is required to obtain 50 marks (50% of 100). The petitioner has obtained more than 50% marks in Theory + Viva in all the said four subjects. The petitioner has even scored more than 50% in the practical papers of all the said four subjects. The required pass mark under the MCI regulation in the aggregate, i.e. theory + practical + viva + internal assessment for Pathology, Pharmacology and Microbiology is 175 the petitioner has scored 182 in Pathology as well as in Pharmacology and 185 in Microbiology in aggregate (Theory + Practical + Viva + Internal Assessment). So far as the Forensic Medicine is concern under the said MCI regulation the pass marks in the aggregate i.e. Theory + Practical + Viva + internal assessment is 100 marks and the petitioner has scored 104. Therefore, as per Regulation 12 (4) of the MCI Regulations, which is mandatory and binding upon the Pondicherry University, the petitioner has passed in all the said four subjects of the said examination.

The petitioner relied upon the decision of the Supreme Court in the case of Maharasthra University of Health Sciences Vs. Paryani Mukesh Jawaharlal & others reported in (2007) 10 SCC 201. It was submitted that in the said decision the Supreme Court held that any Regulation framed by all Universities for holding any examination for the students studying medicine are mandatorily required to conform the Regulations framed by the MCI and any Regulations of any University for holding examination of the medical students contrary to the Regulations 12 framed by the MCI is void. It was strenuously argued that as per the method laid down by the MCI under their said Regulation 12 (4) in order to pass the said examination, the petitioner is required to obtain (i) 50% of the total marks theory with orals (only external) (ii) 50% of the marks for practical (only external) and 50% of the aggregate (total of external and internal). It was asserted that from a bare reading of his result declared by the respondent Pondicherry University, being Annexure P-3 to the writ petition, it is evident that as per the method prescribed by the MCI under Regulation 12(4) of their Regulations, the petitioner has obtained more than 50% of the total marks for Theory with Orals in all the aforementioned four subjects. He also scored more than 50% marks for Practicals as well as the Aggregate (total Internal and external) of all the aforementioned four subjects. According to the petitioner, the Regulations framed by the Pondicherry University for conducting the examination of the MBBS course, as mentioned above violates Regulation 12 (4) framed by the MCI. Thus, as held by the Supreme Court in the case of Paryani Mukesh Jawaharlal (supra), the Regulations framed by the Pondicherry University for holding MBBS examination, being violative of Regulation 12 (4) of the MCI Regulation are void. The petitioner has asserted that in the present case when the marks obtained by him in all the said four subjects are more than the pass marks stipulated by the MCI Regulations, the petitioner is entitled to a writ of mandamus declaring that he has passed the said examination and he is entitled to appear in the Third Professional Examination scheduled to the held shortly.

It is to be recorded that inspite of service of the copy of the writ petition the Pondicherry University remained unrepresented.

Considering the facts of the case and the decision of the Supreme Court in the case of Paryani Mukesh Jawarharlal & others (supra), I find that the petitioner has substantiated that the Regulation framed by the Pondicherry University on the basis whereof the petitioner has been decaled to have failed in the Second Professional Examination is contrary to the Regulation 12(4) of the MCI. I am prima facie satisfied that as per Regulation 12 (4) of the MCI Regulation, the petitioner has passed in all the aforementioned four subjects of the said examination.

Accordingly, there shall be an interim order directing the respondent Nos.2 and 4 to allow the petitioner to participate in the Pre-University Examination for Phase-III Part-I and third professional Examination Phase-III Part-I, subject to fulfillment of his requirement of attendance.

It is, however, made clear that the participation of the petitioner in the Pre-University Examination of Phase-III Part-I shall abide by the result of the writ petition and the petitioner shall not claim any equity in his favour.

The petitioner shall forthwith communicate this order to the Controller of Examination, as well as the Registrar of the Pondicherry University and the competent officer of the University shall file the affidavit in opposition within November 1, 2019. The petitioner shall be entitled to file his reply, if any, within November 12, 2019. The above time for filing of the affidavits by the respective parties is made peremptory.

It is further made clear that if no Affidavit is filed by the Pondicherry University or its competent officer, the petitioner would be entitled to press for hearing of the writ petition on the basis of the writ petition and the supplementary affidavit filed by him.

The MCI, the respondent No.1 is also granted an opportunity to file affidavit-in-opposition within November 12, 2019.

As prayed for leave is granted to the petitioner to amend the writ petition in the line with the averments made in the supplementary affidavit. Such amendment must be completed within Monday (September 30, 2019).