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Judgment
Moushumi Bhattacharya, J
All four writ petitioners are students of Andaman and Nicobar Islands Institute of Medical Science (ANIIMS), Port Blair. The petitioners took the examination for Phase-II/Second Professional Examination for the MBBS Course and were declared to have failed in certain subjects which are part of the curriculum for the Phase-II University Examination. The subjects for the Second Professional Examination are Pathology, Microbiology, Pharmacology and Forensic Medicine.
ANIIMS is affiliated to Pondicherry University and the results of the petitioners were declared under the Pondicherry University Regulations on Graduate Medical Education (Amendment), 2008- Part III. The petitioners' case is that the system of marking under the said Regulations is contrary to the Medical Council of India Regulations on Graduate Medical Education, 1997, (the MCI Regulations) which were framed with reference to Section 33 of the Indian Medical Council Act, 1956.
On 27th September, 2019 when these matters were taken up, the learned Judge in Circuit had thought it fit to give an opportunity to the Pondicherry University as well as ANIIMS for filing affidavits for explaining if the Regulations framed by MCI would apply in the present case. Such affidavits were to be filed within two weeks from the date of communication of the said order. The petitioners were given liberty to file replies thereto. Learned counsel for the Administration as well as MCI were present on the last occasion.
The affidavits of service show that the Pondicherry University as well as the other respondents were served on 25th and other dates in September, 2019. The affidavits of service are kept on record. Despite such service, none of the concerned respondents have filed affidavit-in-opposition to the writ petition.
The petitioners appear in person by reason of an ongoing cessation of work in the local bar. The 'No objections' from the concerned advocates are taken on record.
Part I of Phase -III Examination is scheduled to be held from 26th November, 2019 onwards hence there is sufficient urgency to warrant a decision in the matter.
The facts of all four writ petitions are substantially similar where the mechanism of assessment adopted by the Pondicherry University is under challenge in each of the writ petition. The only factual difference arises from the particular subject and the distribution of marks which has resulted in the particular petitioner being declared "failed". In the four proceedings, the petitioners' contention is had the MCI Regulations been applied to the marking, all the petitioners would have passed the Phase-II/second professional examination. The results were uploaded in the University Website on 22nd August, 2019 soon after which the writ petitions were filed. All four writ petitioners made representations to the concerned respondents in August and September, 2019 but the concerned respondents did not respond to such representations.
In the facts placed by the petitioners, the petitioner in WP No.251 of 2019 failed in Microbiology. The marks obtained by the petitioner, as published by the University, shows that the petitioner was given 100/180 (55.55%) in the external total - (Theory + viva) of the University Examination and 59/100 (59%) in practical external total. Therefore, the petitioner got 159/280 in the external total. By way of internal assessment, the petitioner got 16/40 in theory with an aggregate of 116/220 and 9/30 in internal assessment practical with an aggregate of 68/130. Since 9/30 is 30%, the petitioner was declared to have failed in Microbiology. The contention of the petitioner is that under the Pondicherry University Examination Regulations, the minimum marks for declaration for Pass is that a candidate has to obtain minimum of 35% in internal assessment under each of the heads of theory and practical/clinical. The petitioner submits that due to such criteria, the petitioner who got 9/30 (30%) was declared to have failed in Microbiology. It is submitted that the said mechanism of assessment is contrary to rules 12(4) of the MCI Regulations relating to "distribution of marks to various disciplines". Under the said rules, for passing "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".
Relying on Regulation 12(4), the petitioner submits that in accordance with the MCI Regulations on Graduate Medical Education, 1997 as amended upto May 2018, the minimum marks for declaration of Pass is 50% and if the said regulations had been applied, the petitioner would have got 59/100 which is 59% taking the marks for practical/ clinical (only external examination) in the external total and in practical.
The case of the petitioner in WP No.252 of 2019 is that the petitioner was declared to have failed in Pathology and Microbiology by a similar focus on the 35% minimum requirement in practical/clinical internal assessment under the Pondicherry University Examination Regulations. In this case, the petitioner obtained 104/180 (57.77%) in external total which is theory and viva and 57/100 (57%) in practical in Pathology. The petitioner got 17/40 in internal assessment theory and 9/30 in internal assessment practical. The total internal assessment was hence 26/70(37.14%) and the aggregate total 187/350 (53.42%). In Microbiology, the petitioner obtained 94/180 (52.22%) in external total of theory and viva and 60/100 (60%) in practical making an aggregate of 154/280. In the internal assessment for theory the petitioner got 14/40 and 11/30 in practical. Under the Pondicherry University Examination Regulation, the petitioner was declared to have failed in Pathology since the petitioner scored 9/30 which is 30% in the internal assessment for practical/clinical. The petitioner submits that if the MCI Regulation had been applied, the petitioner would have got 57/100 (57%) in Pathology and 60/100 (60%) in Microbiology. The petitioner, in this case, makes a further point that contrary to the decision of the Supreme Court in Maharashtra University of Health Sciences -vs- Paryani Mukesh Jawaharlal and others reported in (2007) 10 SCC 201, where it was held that the internal and external marks should not be clubbed. The petitioner's external total in theory and viva in Microbiology is 94/180 was clubbed with the internal assessment of 14/40 amounting to an aggregate of 108/220 which translates to below 50%. The petitioner says that if the clubbing in Microbiology had not been done, the petitioner would have got 52.22% in external and 14/40 in internal assessment in Microbiology which would have been above the required 35% under the Pondicherry University Regulations. However, since the University applied the minimum requirement of 35% in both in internal assessment theory and internal assessment in practical, taken separately, the petitioner having obtained 9/30 (30%) in internal assessment practical, was declared to have failed the Pathology Examination.
With reference to W. P. No. 253 of 2019, the petitioner was declared to have failed in Pathology on account of the same reason as the petitioner in WP No.252 of 2019. In this case, the petitioner obtained an external total of 95/180 (52.72%) in theory and viva and 16/40 in internal assessment, the petitioner scored 55/100 (55%) in external total in practical and 9/30 in internal assessment and was declared failed in Pathology by reason of the minimum requirement of 35% in internal assessment for practical/clinical. 9/30 which the petitioner obtained, translates to 30%.
As in the case made out by the writ petitioner in WP No.252 of 2019, the petitioner says that clubbing the marks of the external total and the internal assessment, the petitioner got 64/130 which is 49.23%. This clubbing is contrary to the decision of the Supreme Court in Paryani Mukesh and had the clubbing not been done, the petitioner would have passed the Pathology examination by getting 55% (55/100).
The fourth writ petitioner in WP No.254 of 2019 was declared to have failed in Pathology for a reason similar to the petitioner in WP No.251 of 2019. In this case, the petitioner got 105/180 (58.33%) in external total comprising of theory and viva and 68/100 (68%) in practical and the petitioner got 19/40 in internal assessment theory (47.50%) and 6/30 in internal assessment practical which is 20%. The petitioner submits that since the University applied its Regulations of the minimum requirement of 35% in each head of theory and practical in the internal assessment, the petitioner was declared Failed since she got 6/30 which is 20%. According to the petitioner, this marking system is contrary to the MCI Regulation (Regulation 12(4) in particular) under which the petitioner's marks in the external - practical/clinical of 68/100 which is 68% should have been taken.
Upon considering the submissions of the petitioners appearing in person and comparing the mechanisms of assessment adopted by the Pondicherry University and the Medical Council of India under the Regulations framed by them, it appears that if the MCI Regulation had been made applicable to each of the petitioners, then the petitioners would have successfully passed the Phase-II/Second Professional Examination of the MBBS Course. The Supreme Court's decision in Paryani Mukesh considered the issue of application of the MCI Regulation to Universities in detail. In that case, the students were pursuing MBBS Course in different Medical Colleges affiliated to Maharashtra University of Health Sciences. The students were shown to have failed in one or more subjects and as a consequence failed in the MBBS Part-II examination conducted by the University. After considering the factual aspect in detail, the Supreme Court opined that the Medical Council of India had been set up as an expert body to control the minimum standards of medical education and that the Regulation framed by the MCI with regard to any of the matters referred to in Section 33 of the Indian Medical Council Act, 1956 will have statutory force and are mandatory in nature. The Supreme Court was of the view that " universities must necessarily be guided by the MCI Regulations. Any regulations made by the Universities which are inconsistent with the MCI Regulations, or which dilute the criteria laid down by MCI will not be valid to the extent of inconsistency or dilution".
Upon considering Regulation 12(4) of the MCI Regulations under which a candidate should obtain 50% in the aggregate with a minimum of 50% in Theory including orals and minimum of 50% in Practical, the Supreme Court held that Clause 12(4) makes it clear that for passing in each subject, a candidate must obtain 50% of marks in the aggregate which means external examination marks and internal assessment marks. In paragraph 20 of the decision, the Supreme Court held against clubbing the marks for internal assessment that the marks secured in external examination with the interpretation that the scheme of distribution of marks is that the University Examination (external assessment) should be kept separate and distinct from the internal assessment. In paragraph 23 of the decision, the Supreme Court clarified the scheme under which a student has to secure marks for passing in a subject. This scheme as laid down by the Supreme Court is as follows:-
"(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)"
The decision in Paryani Mukesh was followed in a decision of the High Court of Judicature at Madras in V.Bhavithra vs. The Medical Council of India and others where the scheme as laid down by the Supreme Court for assessment for passing in a subject was followed by the Madras High Court.
Several aspects were clarified in the decision of the Supreme Court. Firstly, the MCI Regulations are to be applied by the concerned universities and any Regulation which is inconsistent with the MCI Regulations will be invalid to the extent of the inconsistency. Second, there should not be clubbing of marks of internal assessment with external assessment. Third, under Regulation 12(4), a student has to secure marks for passing an examination in accordance with the scheme laid down in paragraph 23 of the decision.
The scheme as laid down by the Supreme Court has not been applied by the University in any of the four writ petition in assessing the final results of the writ petitioners. If the scheme, as set out above have been applied, the petitioner in WP No.251 of 2019 would have got the following marks in Microbiology.
As per Supreme Court interpretation of MCI Regulation 12(2) & (4)
Microbiology
35% in internal assessment (for eligibility to appear for university examination)
25/70 (35.71%)
50% of the total marks for Theory with Orals (only externals)
100/180 (55.55%)
50% of the marks for Practicals /Clinicals (only externals
59/100 (59%)
50% of the aggregate (total of externals and internals)
184/350 (52.57%)
Similarly, the writ petitioner in WP No.252 of 2019, would have got the following marks in Pathology and Microbiology.
As per Supreme Court interpretation of MCI Regulation 12(2) & (4)
Pathology
Microbiology
35% in internal assessment (for eligibility to appear for university examination)
26/70 (37.14%)
25/70 (35.71%)
50% of the total marks for Theory with Orals (only externals)
104/180 (57.77%)
94/180 (52.22%)
50% of the marks for Practicals / Clinicals (only externals
57/100 (57%)
60/100 (60%)
50% of the aggregate (total of externals and internals)
187/350 (53.42%)
179/350 (51.14%)
For writ petitioner in WP No.253 of 2019, the result for Pathology, would have in the following nature.
As per Supreme Court interpretation of MCI Regulation 12(2) & (4)
Pathology
35% in internal assessment (for eligibility to appear for university examination)
25/70 (35.71%)
50% of the total marks for Theory with Orals (only externals)
95/180 (52.77%)
50% of the marks for Practicals /Clinicals (only externals
55/100 (55%)
50% of the aggregate (total of externals and internals)
175/350 (50%)
The writ petitioner in WP No.254 of 2019, the result of the petitioner would be in the following nature.
As per Supreme Court interpretation of MCI Regulation 12(2) & (4)
Pathology
35% in internal assessment (for eligibility to appear for university examination)
25/70 (35.71%)
50% of the total marks for Theory with Orals (only externals)
105/180 (58.33%)
50% of the marks for Practicals /Clinicals (only externals
68/100 (68%)
50% of the aggregate (total of externals and internals)
198/350 (56.57%)
It is evident therefore that by application of MCI Regulations under which the Supreme Court as laid down the scheme of assessment for passing a student, none of the petitioners would have failed in their respective subjects.
In view of the impending Phase-III Part-I Examination which is scheduled to commence from 26th November, 2019, there is sufficient urgency in the present fact to warrant an interim order.
The petitioners have approached this Court in September, 2019 and have made representations before the concerned respondents both in August and October, 2019 but in vain. Despite directions, no such affidavits have been filed by any of the respondents and the respondents have also not cared to represent themselves from 18th November, 2019 onwards when the matters were listed before the present Circuit Bench.
This Court is of the view that the petitioners, being young students who are pursuing their MBBS Course and are losing valuable time every day, should not kept on tenterhooks any further. The assessment made by the University applying the Pondicherry University Regulation is contrary to the MCI Regulations as well as the scheme laid down by the Supreme Court in Paryani Mukesh. There is every reason, therefore, to grant, the petitioners' prayer for being allowed to sit for the Phase - III Part I Examination beginning from 26th November, 2019. Since there are only five days left for the examination to begin, certain directions are necessary for effective compliance of this order.
These directions would include:
(i) The petitioners will be allowed to appear in the third MBBS Part-I Examination under the Pondicherry University to be held on and order 26th November, 2019.
(ii) The petitioners will be issued hall tickets for the examination hall so that the petitioners can enter examination hall/venue and appear and write the third MBBS Part-I examination.
(iii) The internal assessment marks and the attendance for the petitioners in third MBBS Part-I should be uploaded by the ANIIMS in the Pondicherry University Website.
(iv) The results declared by the Pondicherry University in the IInd MBBS Course in the concerned subjects should be corrected and the results as would be applicable under the MCI Regulation as well as the scheme framed by the Supreme Court should be declared in the University Website at the earliest.
It is made clear that the above directions should be complied with by the concerned respondents within 26th November, 2019. In the event the concerned respondents are not able to comply with such directions within 26th November, 2019, such non-compliance will not interfere with the petitioners appearing and writing the third MBBS Part-I Examination on and from 26th November, 2019. It is expected that the concerned respondents will take all steps to ensure that the directions contained in this order are effectively complied with so that the petitioners do not suffer any interruption with the examination schedule and their appearance in it on and from 26th November, 2019.
ANIIMS Port Blair, being the respondent nos.3 and 4 will take all follow up actions so that this order can be implemented without any further delay. ANIIMS will also communicate this order to the respondent nos.1 and 2 so that the order is given effect to at the earliest.
Since affidavits have not been filed, this Court deems it fit to give one last opportunity to the concerned authorities to file affidavits-in-opposition within three weeks from the date of communication of this order. It is made clear that the views expressed in this order are without prejudice to the rights and contentions which the respondents may take in their affidavits and will not influence the Court which will finally hear these writ petitions.
List the writ petitions before the next available Circuit Bench.
Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be supplied to the petitioners upon compliance of the usual formalities.