Fathima S. Hameed, Joel George and Sinsil P. v. Kerala University of Health Sciences and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 13TH DAY OF JANUARY 2015/23RD POUSHA, 1936** ## **WP(C).No. 35305 of 2014 (K)** **----------------------------------------** ## **PETITIONER(S):** ## **----------------------** ## **1. FATHIMA S.HAMEED, AGED 19 YEARS** - **D/O.SHAHUL HAMEED, PUTHENPURAYIL, CHANGANKULANGARA OACHIRA P.O., KOLLAM DISTRICT.** **2. JOEL GEORGE, AGED 20 YEARS S/O.K.U.GEORGE, KAZHAMKOTTAIL HOUSE, MANAMTHADAM PUTHENCRUZ P.O., ERNAKULAM DISTRICT-682 308.** **3. SINSIL P., AGED 20 YEARS,** - **S/O.LUKHMAN NAZEER, PULLAT HOUSE KUMARANELLORE P.O, MUKKAM (VIA), KOZHIKODE -673 602.** **BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENT(S):** - **-------------------------** ## **1. KERALA UNIVERSITY OF HEALTH SCIENCES** - **REPRESENTED BY ITS REGISTRAR, THRISSUR - 680 596.** **2. THE VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCES THRISSUR - 680 596.** **3. THE CONTROLLER OF EXAMINATIONS KERALA UNIVERSITY OF HEALTH SCIENCES, THRISSUR - 680 596.** **4. EXAMINATION PASS BOARD - 2014 KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY ITS CHAIRMAN, THRISSUR - 680 596.** **5. THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.** ## **6. THE PRINCIPAL,** - **KUNHITHARUVAI MEMORIAL CHARITABLE TRUST MEDICAL COLLEGE MANASSERRY (P.O), MUKKAM, KOZHIKODE - 673 602.** **R1 -R 4 BY ADV. SRI.P.SREEKUMAR,SC R5 BY SENIOR GOVERNMENT PLEADER SRI.BIJU MEENATTOOR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-01-2015, ALONG WITH WPC.35306/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 35305 of 2014 (K) ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** |**EXT.P-1:**|**TRUE COPY OF THE CERTIFICATE SHOWING THE STATEMENT OF**| |---|---| ||**MARKS OBTAINED BY THE IST PETITIONER ISSUED BY THE COUNCIL**| ||**FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATIONS, NEW DELHI.**| |**EXT.P-2:**|**TRUE COPY OF THE CERTIFICATE OF THE 2ND PETITIONER ISSUED**| ||**BY THE CENTRAL BOARD OF SECONDARY EDUCATION.**| |**EXT.P-3:**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE BOARD OF HIGHER**| ||**SECONDARY EXAMINATION, GOVERNMENT OF KERALA TO THE 3RD**| ||**PETITIONER**| |**EXT.P-4:**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE SALES MANAGER**| ||**ELSEVIER HEALTH SCIENCES TO THE 2ND PETITIONER**| |**EXT.P-5:**|**TRUE COPY OF THE RELEVANT PAGES OF THE REGULATIONS**| ||**CURRICULUM, AND SYLLABUS OF UNDER GRADUATE MEDICAL**| ||**COURSE.**| |**EXT.P-6:**|**TRUE COPY OF THE MARK SHEET OF THE IST YEAR M.B.B.S.**| ||**EXAMINATION OF THE IST PETITIONER**| |**EXT.P-7:**|**TRUE COPY OF THE MARK SHEET OF THE IST YEAR M.B.B.S.**| ||**EXAMINATION OF THE 2ND PETITIONER**| |**EXT.P-8:**|**TRUE COPY OF THE MARK SHEET OF THE IST YEAR M.B.B.S.**| ||**EXAMINATION OF THE 3RD PETITIONER**| |**EXT.P-9:**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE IST**| ||**PETITIONER BEFORE THE CONTROLLER OF EXAMINATION DATED**| ||**12.12.2014**| |**EXT.P-10:**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND**| ||**PETITIONER BEFORE THE CONTROLLER OF EXAMINATION, DATED**| ||**12.12.2014**| |**EXT.P-11:**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD**| ||**PETITIONER BEFORE THE CONTROLLER OF EXAMINATION DATED**| ||**12.12.2014**| ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **/ TRUE COPY /** **P.S. TO JUDGE** **NIL.** **PJ** ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).Nos. 35305 & 35306 of 2014 - - - - - - - - - - - - - - - - Dated 13[th] January, 2015 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioners are all 1[st] year students of the MBBS course for the academic year 201415. The petitioners herein failed in Physiology Practical examination alone, having not obtained minimum qualifying marks. The petitioners challenged the Regulation of the University which declines grace marks in practicals. Medical Council of India (MCI) has provided that, maximum of five marks can be granted as grace marks, without any stipulation as to whether the same has to be in theory or practicals. Specification is only with respect to such marks being awarded to the single subject. 2. The University has framed Regulations as per Ext.P5 produced in W.P.(C).35305/2014 **WP(C)s.35305 & 35306/14** **==> picture [7 x 9] intentionally omitted <==** wherein it has been stipulated that the grace marks upto a maximum of five in total, would be awarded in an examination at the discretion of the Passing Board for a student to pass one subject in theory alone, provided the student has passed in all other subjects. It was also stipulated that, grace marks will not be awarded to change the internal assessment marks. 3. The petitioners herein failed in only one subject namely 'Physiology' and that too in the practicals. The petitioners' contention on the basis of the marks obtained in the other subjects is that the Regulation prescribed is arbitrary for reason of the grace marks being declined to practicals and confined to theory. Primarily it is to be noticed that the petitioners appeared in the examination in the 1[st] year with open eyes, quite aware of the **WP(C)s.35305 & 35306/14** 3 Regulations, in Ext.P5, without making any challenge to the same. Later on, when they failed to obtain qualifying marks in the practicals they seek to turn round and challenge the Regulation by which grace marks have been declined, specifically for practicals. 4. The issue is covered by a judgment of this Court in W.P.(C)s.27673/2013 and 27905/2013 wherein similarly situated students had challenged a similar Regulation; but, for the academic year 2012-13. The learned counsel, for the petitioners submits that in fact, a Division Bench decision of this Court in W.A.409 of 2011 dated 28.03.2011, held in favour of the petitioners. It is to be noticed that the said decision was noticed by this Court. However, relying on **Board of School Education, Haryana v. Arun Rathi and Others** **WP(C)s.35305 & 35306/14** 4 **(1994 (2) SCC 526)** and **Maharashtra State Board of Secondary & Higher Secondary Education v. Amit and another (2002 (6) SCC 153),** this Court declined to grant any relief in the writ petition. The Regulation of the University was held to be neither arbitrary, discriminatory or repugnant to the MCI Regulations. The challenge having been negatived, the writ petition was dismissed. ## 5. The declaration of law in **Maharashtra State Board of Secondary** in paragraph 6 was ## that :- “However, a rule for the award of grace marks must be construed strictly so as to ensure that the minimum standards are not allowed to be diluted beyond the limit specifically laid down by the appropriate authority. It is only in a case where the language of the statute is absolutely clear that the claim of the award of grace marks can be sustained. Normally the Court shall be slow to extend the concession of grace marks and grant a benefit where none is intended to be given by the appropriate authority”. **WP(C)s.35305 & 35306/14** 5 6. One other contention raised by the learned counsel for the petitioners is that, there was a clear case of victimization by a faculty member who had subsequently left the College. However, the said person has not been impleaded herein and no allegation of victimization could have been urged or considered, when the party against whom the allegation is raised, is not in the party array. 7. The further contention raised is that the University has now taken a decision to award grace marks to the practicals also from the next year onwards and hence the same ought to be allowed in the present year too. The learned Standing Counsel for the University admits that such a recommendation was made; however, nothing has happened on the same, since the Governing Council has to take a **WP(C)s.35305 & 35306/14** 6 final decision in the matter. 8. In any event, the present Regulation for the present academic year prohibits grant of grace marks in practicals. It would not be proper for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to command the University to extend proposed benefits, to students who already appeared in the examination, who are regulated by a valid published prospectus, which does not contain such a provision. The writ petitions are dismissed. Sd **/K.VINOD CHANDRAN Judge** Mrcs //true copy// P.A to Judge