PRINCYMOL T.B. v. Kerala University of Health Sciences & Medical Council of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 11TH DAY OF MARCH 2014/20TH PHALGUNA, 1935** ## **WP(C).No. 27673 of 2013 (H)** **----------------------------** ## **PETITIONER :** **--------------------** **PRINCYMOL T.B., D/O.P.R.PRASAD, AGED 21 YEARS RESIDING AT PUTHENPURAYIL MUHAMMA P.O., ALAPPUZHA DISTRICT.** **BY ADVS.SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SMT.GRACY POULOSE** **RESPONDENT(S) :** **----------------------------** **1. THE KERALA UNIVERSITY OF HEALTH SCIENCES TRICHUR, MEDICAL COLLEGE P.O., THRISSUR-680596 REPRESENTED BY ITS REGISTRAR.** ## **2. THE MEDICAL COUNCIL OF INDIA** **POCKET-14, SECTOR-8, DWARKA PHASE-1 NEW DELHI-110077, INDIA, REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. SRI. P. SREEKUMAR, SC R2 BY ADVS. SRI.TITUS MANI VETTOM, SC, MCI SRI.ALEXANDER THOMAS, SC, MCI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-03-2014, ALONG WITH WP(C) NO. 27905/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 27673 of 2013 (H)** ## **APPENDIX** |**PETITIONERS' EXHIBITS :**|**PETITIONERS' EXHIBITS :**| |---|---| |**-------------------------------------**|| |**EXHIBIT-P1:**|**TRUE COPY OF THE MARK SHEET OF THE PETITIONER.**| |**EXHIBIT-P2:**|**TRUE COPY OF THE RELEVANT PAGES OF MEDICAL COUNCIL**| ||**OF INDIA REGULATION.**| |**EXHIBIT-P3:**|**TRUE COPY OF THE RELEVANT PAGES OF THE REGULATION**| ||**FRAMED BY THE 1ST UNIVERSITY.**| |**EXHIBIT-P4:**|**TRUE COPY OF THE JUDGMENT IN WA NO.409/2011 PASSED BY**| ||**THIS HON'BLE COURT.**| |**RESPONDENT(S)' EXHIBITS : NIL**|| |**-------------------------------------------------------------**|| **//TRUE COPY//** **P.A. TO JUDGE Mn** ## K. VINOD CHANDRAN, J. -----------------------------------------------------W.P.(C).Nos. 27673 & 27905 OF 2013 -----------------------------------------------------Dated this the 11[th] day of March, 2014 ## J U D G M E N T The plea, in the above writ petitions, is with respect to the denial of grace marks to the practicals, taken by both the petitioners, in the 1[st] year examination of the MBBS Course in the academic year 2012-2013. Admittedly, both the petitioners failed in one subject, that too, in the practicals alone, having not obtained the minimum qualifying marks. The petitioners respectively failed in the subject Anatomy and Physiology. The petitioners, it is specifically pointed out, has passed in all the other papers. 2. The petitioners challenge the regulation as such of the University. Reliance is placed on Exhibit P2 regulations of the Medical Council of India (for brevity MCI), which permits award of grace marks up to a maximum of 5 marks at the discretion of the University, but, however, subject to the condition that such marks can be awarded only to one subject; to a student who has passed in all other subjects. W.P.(C).Nos.27673 & 27905/13 2 The regulation of the University which is produced as Exhibit P3, however, would show that the University has by regulations, decided that the grace marks permitted by the MCI shall be granted only in the theory papers. The contention of the petitioner is that the University regulation is repugnant and contrary to the regulation of the MCI and that the stipulation is arbitrary and discriminatory. The petitioner also relies on a Division Bench decision of this Court in W.A.No.409 of 2011 dated 28.03.2011, which is produced as Exhibit P4. 3. The learned Standing Counsel for the MCI, does not join issue, but, however contends that, as long as there is no dilution of standards, the University has got enough elbow -room to decide on the standards prescribed for qualifying an examination and award of grace marks. In the present case, according to the MCI, this prescription of grace marks, to theory alone, does not stand against the regulation of the MCI, since it only seeks to better the standards of examination. The learned counsel appearing for the W.P.(C).Nos.27673 & 27905/13 3 University also would distinguish the judgment relied on by the writ petitioner. The learned counsel points out that the discretion granted to the University, in the cited case, was to be exercised by the Passing Board and it is the exercise of such discretion, which was interfered with by the Divison Bench of this Court. 4. The learned Standing Counsel for the University specifically relies on the regulation of the University to contend that the same prohibits any award of grace marks, in so far as the University is concerned, for the practical examination. Reliance is placed on **[(1994) (2) SCC 526] Board of School Education, Haryana v. Arun Rathi and others** and **[(2002) 6 SCC 153] Maharashtra State Board of Secondary & Higher Secondary Education v. Amit and another** to contend that the Honourable Supreme Court has also in circumstances were the award of grace marks were involved, deprecated the practice of students, seeking it as a matter of right, especially, since it was a concession, which results in dilution of academic W.P.(C).Nos.27673 & 27905/13 4 standards. It has also been declared that regulations with respect to the grant of grace marks should not be generously or liberally construed. Placed on record is also a decision of a Division Bench of this Court in W.A.No.5 of 2014 dated 19.02.2014, wherein the regulation as such was under challenge and this Court affirmed the validity of such regulations. 5. The overall authority of the MCI to prescribe standards of education cannot be disputed. While the University is obliged to maintain and conform to the standards prescribed by the MCI; it could always provide for better standards. The prohibition is only in diluting the standards prescribed by the MCI or in making a regulation repugnant or inconsistent with that of the MCI. The MCI regulation provides for maximum 5 grace marks that too in only one subject. So long as the University does not provide for grace marks above 5 or for more than one subject or qualifies a person in one subject by such grant while he has failed in more than one subject; then and then alone can an W.P.(C).Nos.27673 & 27905/13 5 inconsistency or repugnancy be found. 6. Declining to award grace marks at all or awarding less than 5 marks, again cannot be said to be violative of the regulation. There could also be numerous instances where the University on its own discretion, decides to restrict grant of grace marks which would not amount to dilution of the regulation. Necessarily award of grace marks would depend on an evaluation of various factors; _inter alia_ being the nature of questions, the results obtained in general by the students in the whole examination or in one subject and so on and so forth. 7. Considering a similar question, this Court held in W.P.(C) No.156 of 2014 dated 21.02.2014 in paragraph 7 as under: _“ 7. Postulating a situation; it would be the prerogative of the University to restrict the award of grace marks to one subject, say, General Medicine alone, and decline it to all other subjects. That could be on an evaluation of the general results of the students and on a finding that in that particular year_ W.P.(C).Nos.27673 & 27905/13 6 _the General Medicine question papers were tougher than other subjects and the students in general, had failed to come up to an expected standard. On an evaluation of such factors, the University could definitely restrict the grant to General Medicine alone. On such a contingency, a student who failed in another subject, cannot claim discrimination, since the discretion would have been exercised on a proper_ _appreciation of the relevant factors. Likewise, another student who had failed in two subjects, one of which being General Medicine, cannot seek award of such grace marks in the General Medicine paper alone on grounds of discrimination or arbitrariness; since that would go against Regulation 13(10) and would entail a dilution of such regulation. Similar would be a restriction against award of marks to Clinical and Practical examinations. Hence, the challenge, on the ground of violation of the regulation of the MCI, cannot be countenanced.”_ The said reasoning is apposite in the instant case also. 9. In W.P.(C) No. 156 of 2014, this Court partially allowed the claim of the petitioners therein and directed reconstitution of the Passing Board. However, that was in W.P.(C).Nos.27673 & 27905/13 7 the context of the regulation of the University conferring discretion on the Passing Board to decide on the grant of grace marks to theory/practical/oral and the minutes of the Passing Board meeting not having disclosed any reasoning. In the instant case the regulation of the University itself prohibits grant of grace marks to practicals. As was noticed earlier, even a total prohibition of award of grace marks by the University, cannot be said to be against the MCI regulations, since that would not be a dilution of standards. 10. Quite significant would be the declaration of law in Maharashtra State Board (Supra) wherein Their Lordships held so in paragraph 6: “ _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_ W.P.(C).Nos.27673 & 27905/13 8 ## _authority.”_ The regulation of the University cannot at all be said to be arbitrary, discriminatory or repugnant to the MCI regulations. The challenge to the regulation, hence fails. No direction can be issued against the regulations, it is trite and in such circumstances, the writ petitions are found to be devoid of merit and the same are dismissed leaving the parties to suffer their respective costs. Sd/K. VINOD CHANDRAN JUDGE // True Copy // P.A. To Judge DSV/11/03 W.P.(C).Nos.27673 & 27905/13 9