Nithin S. v. Kerala University of Health Sciences

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** ## **WP(C).No. 28561 of 2016 (U)** **-------------------------------------------** ## **PETITIONER(S) : --------------------------** **NITHIN S., S/O.DR.SAINUDEEN.S, MBBS-I STUDENT, GOVERNMENT MEDICAL COLLEGE, KANNUR.** ## **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA** **RESPONDENT(S) :** **-----------------------------** **1. KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR - 680 596.** **2. THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR 680 596.** **3. VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR 680 596.** **4. BOARD OF ADJUDICATION FOR STUDENTS GRIEVANCE, REPRESENTED BY ITS CHAIRMAN, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE P.O., THRISSUR 680 596.** **BY ADV. SRI.P.SREEKUMAR, S.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-10-2016, ALONG WITH W.P(C).NO. 31572 OF 2016, THE COURT ON 24-11-2016 DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 28561 of 2016 (U) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF REGULATIONS ON GRADUATE MEDICAL EDUCATION, 1997.** **EXHIBIT P2 TRUE COPY OF THE RESULTS OF THE FIRST PROFESSIONAL MBBS DEGREE REGULAR EXAMINATION OF THE PETITIONER PUBLISHED ON 07/12/2015.** **EXHIBIT P2(A) TRUE COPY OF THE RESULTS PUBLISHED ON 21.05.2016.** - **EXHIBIT P3 TRUE COPY OF THE REGULATIONS CURRICULUM AND SYLLABUS OF THE UNDER GRADUATE COURSES OF THE 1ST RESPONDENT UNIVERSITY.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 07/01/2016 IN W.P(C).NO. 452/2016.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 10/02/2016.** - **EXHIBIT P6 TRUE COPY OF THE SCORE SHEET OF BIO-CHEMISTRY PAPER I.** - **EXHIBIT P7 TRUE COPY OF THE SCORE SHEET OF BIO CHEMISTRY PAPER II.** - **EXHIBIT P8 TRUE COPY OF THE SCORE SHEET OF PHYSIOLOGY PAPER I.** - **EXHIBIT P9 TRUE COPY OF THE SCORE SHEET OF PHYSIOLOGY PAPER II.** - **EXHIBIT P10 TRUE COPY OF THE ANSWER SHEET OF BIO CHEMISTRY PAPER I.** - **EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF THE DECISION NO.8.17 IN THE MEETING OF THE ACADEMIC COUNCIL.** - **EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 9TH MEETING OF THE ACADEMIC COUNCIL ON 21/7/2015.** - **EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 9/11/2015 IN W.P(C).NO. 32279/2015.** - **EXHIBIT P14 TRUE COPY OF THE DECISION DATED 16/6/2016 BY THE PRO VICE CHANCELLOR.** - **EXHIBIT P15 TRUE COPY OF THE RESULT PUBLISHED ON 26/5/2016.** - **EXHIBIT P16 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE BOARD OF ADJUDICATION FOR STUDENTS GRIEVANCES.** - **EXHIBIT P17 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 22127/16.** ## **WP(C).No. 28561 of 2016 (U)** ## **------------------------------------------** **EXHIBIT P18 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 19133/16.** **EXHIBIT P19 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 19305/2016 EXHIBIT P20 TRUE COPY OF THE ORDER DATED 9/8/2016.** *** EXHIBIT P3 AND EXHIBIT P10 SUBSTITUTE AND REPLACE** **EXHIBIT P3 TRUE COPY OF THE REGULATIONS CURRICULUM SYLLABUS ISSUED BY THE 1ST RESPONDENT UNIVERSITY. EXHIBIT P10 TRUE COPY OF THE QUESTION PAPER OF THE PAPER BIO-CHEMISTRY-I ALONG WITH ANSWER SHEET.** *** AS PER ORDER DATED 24.11.2016 IN I.A.NO. 15730 OF 2016.** **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) Nos. 28561 & 31572 of 2016 ======================= Dated this, the 24[th] day of November, 2016 ## **J U D G M E N T** In WP(C) No. 31572/16, petitioner is a student of Bachelor of Dental Surgery (“BDS” for short), which is affiliated to the Kerala University of Health Sciences ('University' for short). The issue projected by the petitioner is regarding the manner in which the results had been published with reference to Ext.P1 examination results in which she is declared to have failed in two papers i.e., 'General Pathology and Microbiology' and 'General and Dental Pharmacology and Therapeutics'. Petitioner while contending that on a proper evaluation of the result, she would have passed the examination, challenges clause 10(i)(ii) in Ext.P3 B.D.S. Course Regulations/Syllabus, which mandates separate 60% in theory examination. 2. The short facts as disclosed in the writ petition would disclose that the petitioner has scored in the theory paper for General Pathology and Microbiology, 42 out of 100 and in the theory paper of General and Dental Pharmacology and Therapeutics, she W.P(C) Nos.28561 & 31572/16 -:2:- got only 49 out of 100. According to her, if all the marks are totalled, she will get more than the minimum for a pass. Petitioner refers to Ext.P2, the Regulations of Dental Council of India (DCI), and contends that for declaration of pass in a subject, a candidate shall secure 50% marks in the University examination both in theory and practical/clinical examinations separately and a candidate shall secure 50% marks in aggregate in University theory including viva voce and internal assessment obtained in University written examination. The contention of the petitioner is that over and above DCI Regulation, the University has prescribed BDS Course Regulation which indicates that a candidate shall secure the minimum aggregate of 50% marks in theory section which includes University Theory Examination, Viva Voce Examination and Theory Internal Assessment. Petitioner, therefore, submits that the instance of separate minimum of 50% is _ultra vires_ the DCI Regulation. 3. On facts, the petitioner raised one more contention. Ext.P4 is the evaluation sheet of the petitioner in respect of the paper General and Dental Pharmacology and Therapeutics wherein she obtained 50 marks in the first evaluation and 69 W.P(C) Nos.28561 & 31572/16 -:3:- marks in the second evaluation. If the average of the same is taken, she would have obtained 59.5 marks and would have obtained a pass. The University had sent the paper for a third evaluation since there was a difference of 50% between the 1[st] evaluation and 2[nd] evaluation. During the 3[rd] evaluation, she got only 47 marks. The University had taken the average of the nearest 2 marks that is 47 and 50 by which she got only 49. The contention is that for MDS course, Ext.P5 is the Regulation which requires a 3[rd] evaluation if the difference is between the first two evaluation is more than 15%, whereas such an evaluation was not contemplated for BDS. Petitioner had submitted a request before the Board of Education of the University highlighting her grievance. However, she was informed by Ext.P11 letter dated 09.08.2016 that her claim cannot be considered. Hence, this writ petition is filed. 4. Learned counsel for the University having obtained instructions submits that the valuation strategy as well as the criteria for pass in the examination is covered by University order dated 15.11.2011. In regard to valuation strategy, the order indicates that double valuation of answer papers in two different W.P(C) Nos.28561 & 31572/16 ## -:4:- centres will be performed and if there is variation in marks more than 15% of the total marks, the paper should go for 3[rd] valuation. The average of marks obtained for double valuation is taken as the original mark of the student. In the case of answer paper going for 3[rd] valuation, the average of nearest 2 marks is taken. In regard to the scheme of examination also, it is contended that the order clearly indicated that the theory, practical and viva voce shall be considered as single block. If a candidate fails in any one of them, he/she will have to re-appear for the entire subject. It is contended that there is no conflict with DCI Regulation which clearly indicates that for declaration of a pass in a subject, a candidate shall secure 50% marks in the University Examination both in theory and practical/clinical examinations, separately. However, it is contended that nothing prevents the University in prescribing a better standard other than that is prescribed by the DCI. 5. Ext.P3 is the B.D.S Course Regulations/Syllabus. Clause 10(i)(ii) reads as under:- _“A candidate shall secure a minimum aggregate of 50% marks in the theory section, which includes_ W.P(C) Nos.28561 & 31572/16 -:5:- _University theory examination, viva voce examination and theory internal assessment (i.e. a minimum of 75 marks out of 150). Besides this there should be a separate minimum of 50% in the university theory examination (i.e. 50 marks out of 100).”_ This provision is impugned by the petitioner. When the University has published a Syllabus and Regulation for the conduct of examination, assuming it being a higher standard other than what is prescribed by DCI, petitioner will have to comply with the same. 6. In regard to the valuation scheme, it might be true that there is no provision in the BDS Regulation, but the University had been following it based on the University order dated 15.11.2011 over a period of time and such a method of valuation had been adopted continuously thereafter. The main contention urged by the petitioner is that the University order dated 15.11.2011 have no statutory force as held by this Court in judgment dated 31.03.2016 in W.P.(C) No.31648/2015 ( _**Dr.Karnan T.K. v. Kerala University of Health Services and 5 Others**_ ). A question arose whether post graduate medical students would fail in their respective subjects for not securing the minimum in one W.P(C) Nos.28561 & 31572/16 -:6:- of the four theory papers or in one of the clinical/practical test. They challenged the Regulations of the University as being inconsistent with MCI Guidelines. It was held that the _adhoc_ regulations of the University made by the Vice Chancellor of the University cannot out live the statute and fresh regulations have to be made by the Academic Council under Section 44 of the Kerala University of Health Sciences Act, 2010. Therefore, the Regulations contained in the impugned clause have no legal sanctity and ceased to have any force. It was therefore held that the examination cannot be conducted on its basis. It was further held that the Medical Council of India is to free to advise the University in the matter of framing uniform standards for post graduate medical education throughout India as per Section 20(1) of the Act. Direction was also issued to Medical Council of India to clarify as to whether each candidate should simultaneously pass the theory and practical scoring 50% marks in each, which can be incorporated in the University Regulations appropriately. 7. The learned counsel for the University, however, placed reliance on the Division Bench of this Court in _**Ashar A.M and others v. Kerala University of Health Sciences, Trichur and**_ W.P(C) Nos.28561 & 31572/16 -:7:- _**another** (_ 2014 (1) KLT 969). In that case, the question considered was regarding the conflict between MCI Regulation and the prescription of separate minimum for theory by the University. The writ petitions were dismissed by the learned Single Judge. The Division Bench after considering the entire scenario considered two questions. One is whether the prescription of a separate minimum in theory which has been done by the Vice Chancellor purporting to exercise power under Section 12(7) of the Kerala University of Health Sciences Act is authorised, and, whether it is repugnant to Regulations enacted by MCI. The issues were found against the appellant. It was held that nothing prevents the University in prescribing a higher standard than the Regulations of the MCI. Secondly, it was held that fixation of minimum in theory paper is a matter which had to be done by framing regulation by the Academic Council. The Vice Chancellor took the impugned decision since there were no first statute. It was further held that the power under Section 12(7) is an extra ordinary power to act in an emergent situation. Section 12(8) specifically empowered the Vice Chancellor to frame Rules when there are no regulations or statutes. The regulation framed W.P(C) Nos.28561 & 31572/16 ## -:8:- by the Vice Chancellor was approved by the Academic Council. The Governing Body approved the Academic Council's decision, which has to be within the meaning of Section 12(8) of the Kerala University of Health Sciences Act. It was thereafter held that the action of the Vice Chancellor is supported by Section 12(7) or 12 (8) of the Act and the judgment of the learned Single Judge was upheld. 8. Even now, it is contended that there are no regulations but when in _**Ashar's case**_ ( _supra)_ the Division Bench had already approved the regulations with reference to MBBS Course, the same principle applies as far as BDS course is concerned. Hence, I do not think that the petitioner is entitled to challenge the method of evaluation or the separate pass marks that are required for theory. Consequently, the challenge to the vires of Clause 10(i)(ii) of Ext.P3 is hereby rejected. 9. In W.P.(C) No.28561/2016, the petitioner, who is an MBBS student had failed in the subject Anatomy and Biochemistry. He has only 48 marks for theory. It is contented that separate minimum is not required as per MCI Regulations. This aspect was already dealt with in W.P.(C) No.31572/2016 and the contention W.P(C) Nos.28561 & 31572/16 -:9:- has been rejected. The same principle applies to the petitioner also. Yet another contention raised is regarding evaluation. In regard to Bio-chemistry, petitioner contends that when 3 marks were awarded in the 1[st] valuation for question No.1, 2[nd] valuer had given only 0.5 marks. In regard to question No.2, 1[st] valuer has given nil marks whereas the 2[nd] valuer has given 1 mark. Petitioner submits that the question was regarding the sources of amonia. Petitioner has given the answer as Urea, Urease, Amonia plus CO2. Correct answer is Urea. It is contended that when the correct answer was available, the 1[st] valuer could have given 1 mark, in which event, he would have passed in the examination. 10. In regard to the evaluation of answer papers, I do not think that this Court will be justified in interfering with the same. One valuer would have felt that the answer was not proper and he would not have given marks, but the other valuer would have given some concession since the correct answer was also available in the answer sheet. In Physiology subject also, petitioner complains about the 3[rd ] valuation method. It is already held that such a method has been adopted for the purpose of avoiding wide disparity in the evaluation process. Petitioner W.P(C) Nos.28561 & 31572/16 -:10:- submits that if he had passed in the Bio-chemistry examination, he would have passed in Anatomy by getting necessary moderation. Having already found that the valuation process cannot be challenged, I do not think that the petitioner is entitled for any reliefs in this writ petition. 11. For the reasons stated above, the Regulations being upheld by this Court in _**Ashar's case**_ , I do not think that the petitioners are entitled to get any relief. Writ petitions are, therefore, dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Rp //True Copy// P.S. to Judge