Madras High Court
R.Indu vs The Tamil Nadu Dr.M.G.R. Medical ... on 26 November, 2012
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:: 26 ..11 ..2012
CORAM
THE HONBLE Mr.M.Y.EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr.JUSTICE T.S.SIVAGNANAM
W.P.Nos.30080 to 30084, 30171, 30176, 30217 to 30222, 30231 to 30250, 30253 to 30258, 30421 to 30424, 30395 to 30406, 30698, 30852, 30888 to 30898, 29683, 30533 to 30540, 30575 to 30583, 30919 to 30932 and 31069 to 31078 of 2012
and
W.P.(MD)Nos.14115 to 14118, 14201 to 14211, 14212 to 14222 and 14276 to 14285 of 2012
and
Connected Miscellaneous Petitions
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W.P.No.30080 of 2012
R.Indu ..Petitioner.
Vs.
1. The Tamil Nadu Dr.M.G.R. Medical University,
rep. by its Registrar,
No.69, Anna Salai,
Guindy, Chennai 600 032.
2. The Controller of Examinations,
No.69, Anna Salai,
Guindy,
Chennai 600 032.
3. Medical Council of India,
rep. by its Chairman,
Sector 8, Dwaraka Phase I,
New Delhi 110 077.
4. The Dean,
Sri Muthukumaran Medical College
Hospital and Research Institute,
Chennai 69. ..Respondents.
PRAYER:
W.P.No.30080 of 2012
Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned guidelines of the 1st respondent University dated 14.01.2011 in Ref.Rc.No.ACAD-1(3)/18100/10, and quash the same, and direct the respondents 1 & 2 to follow the Regulation 12(4) of the Medical Council of India Regulations 1997 (as amended upto 2010), and consequently declare the petitioner having Regn.No.52118340 as pass in the subjects Anatomy and Physiology including Bio-Physics in the first year MBBS examination 2011-12, and consequently direct the respondents to permit the petitioner to continue her MBBS second year course forthwith.
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Mr.S.Thankasivan :: For Petitioners
Mr.N.Subramaniyan
Mr.K.Sakthivel
Mr.Ajmal Khan,Sr.Counsel
for M/s Ajmal Associates
Mrs.Chitra Sampath,Sr.Counsel
for Mr.T.S.Baskaran
Mr.A.L.Somayaji, Sr.Counsel :: For Respondents
for Mrs Narmadha Sampath
Mr.V.P.Raman
C O M M O N O R D E R
THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM J Since, all these writ petitions have been filed challenging the impugned guidelines dated 14.01.2011 in Ref.Rc.No.ACAD-1(3)/18100/10 issued by the respondent Dr.M.G.R.Medical University, they have been heard together and are being disposed of by this common order. We have elaborately heard the learned counsel appearing for the parties and perused the materials available on record. As the questions involved in all these writ petitions are one and the same, for the sake of convenience, the facts leading to the filing of the first case viz., W.P.No.30080 of 2012 alone are narrated hereinbelow.
2. Facts in W.P.No.30080 of 2012:-
It is stated that the petitioner joined M.B.B.S. Course in the 4th respondent college viz., Sri Muthukumaran Medical College Hospital and Research Institute, Chennai affiliated with the 1st respondent University viz., the Tamil Nadu Dr.M.G.R.Medical University, Chennai. She has completed her first year course and also appeared for her 1st year MBBS Examinations conducted by the 1st respondent University during August 2012. It is stated that the conduct of examinations and mode of distribution of marks to various disciplines have been stipulated by the Medical Council of India Regulations on Graduate Medical Education, 1997 (herein after referred to as the Regulations) framed by the Medical Council of India under the powers conferred to it under Sections 19-A and 33 of the Indian Medical Council Act, 1956. According to the petitioner, the aforesaid Regulations regarding the distribution of marks to various disciplines have to be strictly followed by all Universities in India imparting medical education, as they are statutory in nature. As per the said Regulations for a pass in a particular subject, a candidate must obtain 50% in aggregate with a minimum of 50% in theory including orals (viva voce) and 50% in practical/clinical. The above mode of distribution of marks in the discipline/subjects was being smoothly followed by the respondent University till the academic year 2009-2010. But, during the academic year 2010-11, the 1st respondent University arbitrarily introduced new guidelines dated 14.01.2011 in Ref.Rc.No.ACAD-I(3)/18100/10 to the first year MBBS students, wherein it has stipulated that individual pass mark should be obtained by the students in each part of a subject, if a subject is divided into more than one paper. According to the new guideline, if a subject is divided into two papers, then the candidate has to secure the minimum pass marks of 50% in each paper, otherwise he/she has to again appear for the subject with two papers including clinical/practical examination. According to the petitioner, by introducing such guidelines, the respondent university has changed examination pattern as well as the distribution of marks pattern drastically in total contradiction to the MCI guidelines. Because of the application of the impugned guidelines about 50% students of the 1st respondent University were declared as failed during the academic year 2010-11.
3. It is stated that earlier, the 1st year MBBS students have filed several writ petitions, individually, challenging the impugned guidelines dated 14.01.2011 issued by the 1st respondent University. When the matters came up for hearing, the respondents submitted that they would not implement the changed evaluation pattern for the 1st year MBBS students of academic year 2010-2011.The said submission of the respondents was recorded on 08.11.2011, and all the writ petitioners students, who were eligible for pass as per MCI guidelines were directed to be permitted to attend the 2nd years MBBS Course. However, the impugned guidelines, as far as the final year students are concerned, were struck down in the writ petitions filed by the final year students, which was ultimately confirmed by the Supreme Court also. According to the petitioner, therefore, the respondent University should follow the MCI guidelines only. But, in spite of the above factual and legal position, the respondent University is again attempting to follow the same guidelines, which have been struck down by the Apex Court as contrary to the MCI guidelines. Hence, a representation dated 31.07.2012 had been sent to the respondent University requesting them to follow MCI guidelines for the first year MBBS examination for the academic year 2011-12. But, in spite of the letter dated 25.10.2012 sent by the MCI to all the Universities informing them to follow the MCI guidelines in the matter of evaluation of answer scripts, the Vice Chancellor of the 1st respondent University is making confusing press statements that the MCI has permitted them to follow the impugned guidelines. By following the impugned guidelines the petitioner herein was declared as fail in the subjects Anatomy and Physiology including Bio-Physics, even though she obtained more than 50% marks in the said subjects, which according to her is sufficient marks to declare her as pass in the said subjects as per MCI guidelines. Aggrieved, she preferred the present writ petition to quash the impugned guidelines dated 14.01.2011 and direct the respondents to follow the Regulation 12(4) of the MCI Regulations, 1997 (as amended upto 2010), and consequently, declare her as pass in the subjects Anatomy and Physiology including Bio-Physics in the first year MBBS Examinations 2011-12.
4. Likewise, the other writ petitioners students also sought the quashing of the impugned regulations dated 14.01.2011, to direct the respondents to follow the MCI Regulations in the matter of evaluation of their answer scripts, and also declare them as pass in the subjects in which they were failed following the impugned guidelines.
5. The 1st respondent University in its counter affidavit categorically stated that the Standing Academic Board is the highest academic body of the 1st respondent University, and it is conferred with the following powers under Section 29(3) of the Tamil Nadu Dr.M.G.R.Medical University Act, 1987 (hereinafter referred to as the Act):-
(i) to make regulations and amend or repeal the same
(ii) to advise the Governing Council on the promotion of research of the University; and
(iii) to suggest measures for revisions and innovations in academic and research programmes.
6. That apart, as per Section 44(1) of the Act, the Standing Academic Board may make regulations consistent with the Act, the Statutes and the Ordinances to carry out the duties assigned to it thereunder, and all such regulations shall have effect from such date as the Standing Academic Board may specify and every such regulation so made shall be placed before the Governing council for information.
7. It is further stated that the 1st respondent University is following standards higher than that prescribed by MCI for MBBS course from the year 1998 onwards. Till February 2009 the following norms were followed:-
The candidates should secure 50% aggregate pass mark in theory If a subject is divided into two papers, the candidates have to get a minimum of 100 marks as a pass, out of 200 marks.
If a subject has single paper, the candidates should secure minimum 50 marks as a pass out of 100 marks.
Theory marks + oral marks candidates should score 50% in aggregate for a pass.
50% marks in practical for a pass.
50% in aggregate (total of theory, oral, practical and internal assessment) for a pass.
8. In August 2009 a change was brought in Clinical Orthopaedics. In final MBBS Part-II, the subject Surgery has two theory papers:-
Paper - I General Surgery (Section A) Orthopaedics (Section B)
Paper II General Surgery including Anaestheosiology, Dental Diseases and Radiology.
9. As per the Regulation of Graduate Medical Education Regulations, 1997 framed by the MCI 100 marks are allotted to Surgery Clinical including Clinical Orthopaedics. A candidate has to secure minimum 50% of aggregate marks in Surgery including Orthopaedics (No minimum pass mark has been prescribed separately either in surgery or in orthopaedics). From August, 2009 the University has enhanced the total mark in clinical surgery from 100 to 120 marks. The split up of marks is as follows:-
Subject Total Marks Pass Marks Clinical Surgery 90 45 Clinical Orthopaedics 30 15 Total 120 60
10. The above resolution was passed in the 34th Meeting of the Standing Academic Board held on 17.12.2007. The resolution was given effect to from February 2009 examination onwards. At that time the final year MBBS students were not challenged the said regulation.
11. It is stated that during the 39th Meeting of the Standing Academic Board (S.A.B.) held on 21.06.2010 the total marks of 120 was enhanced from 120 to 150 for final MBBS Part II students. Correspondingly, the pass mark was enhanced from 15 to 25. However, the percentage of pass mark remained the same in each subject. In the very same 39th Meeting of the S.A.B. held on 21.06.2010 it was resolved to accept the recommendations of Board of Students with regard to I MBBS Degree Course. As per the resolution of the S.A.B. every candidate has to secure 50% in each component as mentioned hereunder:-
1. Theory Examinations 2 papers in each subject X 100 marks = 200 marks
2. Practicals = 100 marks
3. Viva = 100 marks
4. Internal Assessment Theory (50) + Practicals (50) = 100 marks
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Total 500 marks -----------------
12. The S.A.B. has approved to implement the above resolution from August 2011 onwards. It was also approved by the Governing Council in its meeting held on 14.07.2010. Further, a common agenda was placed in the 40th Meeting of the Standing Academic Board on 22.12.2010 to consider individual pass for all Under Graduate Courses in Medical, Dental, Indian Medicine and Homoeopathy and Allied Health Science Courses. According to it, if a subject is divided into two papers, a candidate has to secure the minimum pass mark of 50% in each paper, otherwise he/she has to again appear for the subject with two papers including clinical/practical examination. The above decision of the S.A.B. was placed before the Governing Council for its approval, and it was also approved by the Governing Council in its 201st Meeting held on 25.01.2011. In the meantime, the said decision of the S.A.B. was communicated to all the affiliated colleges on 14.01.2011.
13. It is stated that all the First Year MBBS students have accepted the norms of the 1st respondent University, and they wrote their First Year examinations as per the norms of the University during August, 2011. However, after the publication of the result, several candidates filed several writ petitions for revision of results. In the meantime, the Government of Tamil Nadu has also addressed a letter dated 04.11.2011 to the 1st respondent University to consider maintaining status quo in the matter of fixing norms for passing the first year MBBS examinations in the larger interest of the students. The above letter was placed before the Special Governing Council Meeting held on 08.11.2011. The Governing Council discussed the issue in detail taking cognizance of the representation from the students, parents and doctors in conjunction with the views given by the State Government in its letter dated 04.11.2011. The Governing Council felt that the steps taken by the University in improving the academic standards are in the long term interest of the student community and health system. However, considering the fact that the time frame for implementation of such changes and acclimatization time for First Year MBBS students may not have been adequate, and there is a case to re-look at the implementation of the changes for the current examinations of August, 2011, and therefore, resolved not to implement the changes in the evaluation pattern of First year MBBS examinations for the August 2011 examinations. Therefore, the 1st respondent University reported to the Court that the First Year MBBS examination results of the August 2011 batch will be published as per the norms of the Medical Council of India, and accordingly, the Court dismissed all the writ petitions filed by the First Year students on 09.11.2011.
14. It is stated that in view of the above said circumstances, during the 43rd meeting of the Standing Academic Board held on 19.12.2011 it was resolved not to implement the resolutions passed in its 39th and 40th meetings. However, after discussions and deliberations the Standing Academic Board has passed the resolution regarding enhancing of standards in respect of First Year MBBS students on 19.12.2011. Based on the said resolution, to declare as pass every First Year MBBS students has to secure minimum 50% of marks in each component viz.,
(i) Theory I - 50 marks out of 100
(ii) Theory II - 50 marks out of 100
(iii) Oral - 25 marks out of 50
(iv)Practical - 50 marks out of 100
(v) Internal Assessment 25 marks out of 50
15. The same was minuted and made applicable from this academic year, after the receipt of the letter from the MCI. It is stated that in view of the above said resolution, a letter was addressed to the MCI on 26.12.2011 to get its concurrence for implementing higher standards in the exams. Similarly, a letter was also sent to the Dental Council of India, Central Council of Indian Medicine, Indian Nursing Council and Pharmacy Council of India requesting their concurrence in implementing higher standards in the pattern of examinations. However, no reply was received from the MCI till January, 2012. Therefore, in February, 2012 a web message was published in the University Website that the University norms will be followed for the August, 2012 examinations. Subsequently, several reminders were also sent to the MCI on 01.02.2012, 03.04.2012 and 25.05.2012.
16. In the 44th Meeting of the Standing Academic Board held on 15.06.2012 it was resolved to approve the proposals of the University in conducting examinations as per the University Regulations from August, 2012 examination onwards in all Medical, Dental, AYUSH and Allied Health Science Courses. For the supplementary (arrear batch) alone, the examinations in August, 2012 will be conducted as per the norms of the respective Councils. From February, 2013 onwards all the candidates must appear for examinations as per the regulations of the 1st respondent - University. The same was also uploaded in the University Website well in advance and the communication was also sent to all the institutions on 19.07.2012 after approval of the Governing Council. Accordingly, the University Regulations were implemented in August, 2012 examinations. It is stated that the main purpose of the regulation prescribing individual pass is that a student does not merely mug up one subject and ensure that he clears the examination. Whereas by the impugned regulation the University has ensured that a student prepares well in all the subjects, applies his mind to each and every subject and gain more knowledge on both theory and practical, so as to equip himself to the academic standards.
17. It is stated that since there was no reply from the Medical Council of India, the 1st respondent University filed W.P.No.23894 of 2012 against the Medical Council of India for a writ of mandamus to consider their representation with regard to implementing higher standards in the pattern of examinations from August 2012 onwards. Pending writ petition, meanwhile, the respondent University conducted the First year Examinations during the month of August 2012. Thereafter, on 18.09.2012 the Court allowed the writ petition and directed the MCI to consider the representation of the 1st respondent University dated 26.12.2011, and pass orders within six weeks period from the date of receipt of a copy of the order. Subsequently, on 25.10.2012 by fax the MCI communicated its resolution.
18. According to the 1st respondent University the term training programme should cover the entire stream of study. The letter dated 25.10.2012 of the MCI clearly states that it is open to the University to frame higher standard for training even for First year MBBS, since the regulations of the MCI prescribe only the minimum standard. Hence, it is not correct to state that the MCI has not explicitly given its consent to the respondent University in the matter of evaluation of answer scripts.
19. According to the 1st respondent University the letter dated 25.10.2012 received from the Medical Council of India does not contemplates any amendment to any of the regulations of the MCI, which is to be notified under Section 33 of the Indian Medical Council Act, but it only conveys the consent of the MCI for the proposed enhancement in the minimum standards by the 1st respondent University, and therefore, the consent of the Central Government in the matter is absolutely not necessary.
20. It is stated that the subject papers, wherein the writ petitioners have failed and seek the help of this court to declare them as pass, as per the minimum norms fixed by the MCI Regulations, are very essential papers relating to medical education. Their prayer is that they should be given the advantage of passing the examinations on the combined aggregate marks in all the three papers i.e., Theory I & II and Oral, Practical and Internal Assessment. If their request is allowed a student getting less mark will get through the examination without getting a pass mark in all the subjects like Anatomy, Bio Chemistry and Physiology.
21. It is stated that because of giving the aggregate marks, the 1st year students showed a downward slide in the marks obtained by them in the essential subjects like Anatomy and Physiology. Therefore, there is a need to change the pattern of examination for the First Year MBBS students. Hence, the Standing Academic Committee resolved to make the above change, which is under challenge. According to the 1st respondent University, the curriculum, the pattern of questions and the duration of the examinations have not been changed. But, only the pattern of evaluation of answer scripts was changed. It is with the good intention to test the knowledge of the students in respect of each medical paper.
22. The 1st respondent University denied the allegation that due to new pattern of evaluation of answer scripts more than 50% of the 1st year students failed in their examinations. It is stated that in August 2011 examinations more than 60% of the students have passed their exams in the new pattern. Likewise, in August 2012 examinations also more than 67% of the 1st year students got cleared their subjects without any arrear.
23. It is contended by the 1st respondent University that it has not applied the impugned regulations dated 14.01.2011, which is under challenge in all these writ petitions. According to the 1st respondent University it has decided to implement the new scheme of examinations only in the 43rd Meeting of the S.A.B. and not under 14.01.2011 notification. Hence, the relief sought for in all the writ petitions are not maintainable, and accordingly, the writ petitions are liable to be dismissed at the admission stage itself. Further, the failed candidates, having appeared in the examinations accepting the new pattern of evaluation, have no locus standi to question the regulations of the University as well as the letter dated 25.10.2012 issued by the MCI. The new pattern of evaluation is not illegal and repugnant to the provisions of MCI, and it is not violative of Article 14 of the Constitution. The candidates have been informed about the new pattern of evaluation well in advance viz., 6 months prior to the examinations. Hence, the question of improper intimation will not arise at all. Since, there is a break system even in the Regulations of MCI, the question of moving to II Year MBBS without clearing the I Year MBBS subjects is not possible.
24. It is stated that the main purpose for having prescribed individual pass in each paper is that a separate syllabus has been framed for Paper I and Paper II, where subjects are divided in two papers. Further, a student of the medical faculty should learn all the subjects so as to equip himself to become an efficient doctor.
25. According to the 1st respondent University it has not lowered the minimum standards fixed by the MCI. It has got every right to bring in regulations over and above the minimum stipulated by the MCI to improve the academic standards. The new regulations are not repugnant to MCI Regulations. The Medical Degrees are issued by the University and the evaluation of the answer scripts and the stipulation of passing in all the subjects are well within the powers assigned to the Universities.
26.The Medical Council of India in their reply/counter affidavit stated that it is an expert body constituted under the provisions of the Medical Council of India Act, herein after referred to as the Act and has been given the responsibility of discharging the duty of maintenance of minimum standards of Medical Education and to regulate their observance. It is further stated that in discharge of its statutory obligations towards maintenance of minimum standards in medical education, by virtue of provisions of section 33 of the Act, the MCI has been empowered with the prior approval of the Central Government to frame regulations for laying down minimum standards of infrastructure teaching and other requirements for conduct of medical courses. Further, MCI lays down the course content, the duration, the distribution of teaching and training days on various subjects and also for conduct of examination etc.
27.It is further submitted that in terms of decision of the Supreme Court in MCI v. STATE OF KARNATAKA [(1998) 6 SCC 131], the regulations of the MCI are binding and mandatory. Reference has been made to Section 19 A of the Act, which lays down the minimum standards of medical education for granting recognised medical qualifications by Universities or Medical Institutions in India. Chapter IV of the Graduate Medical Regulations 1997 deals with examination regulation, University Examination and distribution of marks to various disciplines and every M.B.B.S. Student is required to obtain minimum 50% mark in aggregate with a minimum of 50% in theory including orals and minimum of 50% in practical/clinical.
28. It is submitted that in terms of the decision of the Supreme Court in Dr. AMBESHKUMAR v. PRINCIPAL, L.L.R.M. MEDICAL COLLEGE [(1986) SUPP. SCC 543], that in addition to the qualifications prescribed by the MCI, additional or further qualifications may be prescribed by the State and this would not be in conflict with the Central Regulations as it has been designed to further the objective of the Central Regulations which are to promote proper standards. Therefore, it is submitted that in order to fulfill the aim and objective and to impart skills, methods adopted may be fixed by University/College and each University/College can frame higher norms.
29.The writ petitioners would contend that the new norms fixed by the respondent University are directly in conflict with the regulations of MCI and therefore, the same has to be declared as illegal and consequently a direction has to be issued to publish the resolution of the petitioner and to declare them as 'pass'. Strong reliance was placed on the decision of this Division Bench in TAMIL NADU M.G.R.MEDICAL UNIVERSITY v P.ANAND [(2011 (6) CTC 801].
30.As noticed above, the respondent University submitted that all the writ petitioners have challenged the Regulation dated 14.01.2011, but, none of them have questioned the Regulations which was approved in the 43rd Standing Academic Board held on 19.12.2011. It is submitted that in the 43rd Meeting of the Standing Academic Board, it was resolved not to follow the Resolutions of the 39th and 40th Meeting. However, after discussions and deliberations, the Standing Academic Board passed the Resolution regarding enhancement of standards in respect of the First year M.B.B.S. Students on 19.12.2911 and based on such resolution it was resolved to declare as 'Pass' of every First year M.B.B.S. candidate who secured 50% marks in each component viz. Theory Part-I 50/ 100, Theory Part-II 50/ 100, Oral 25/ 50, Practical 50/ 100 and Internal Assessment 25/50.
31.It is seen that that pursuant to the resolution dated 19.12.2011, a letter was addressed to the MCI on 26.12.2011, by the respondent University. As no reply was received from the MCI till the end of January 2012, several reminders were sent to MCI and the respondent University filed a Writ Petition being W.PNo.23894 of 2012, to direct the MCI to consider the University's representation. In the meantime, the First year M.B.B.S. Theory Examination was conducted between 1.8.2012 and 08.08.2012 and practical examinations from 10.08.2012 to 02.09.2012. The valuation of answer sheets were done in the month of September 2012 and in the meantime, the High Court disposed of the Writ Petition by directing the Medical Council of India to consider the representation given by the University.
32.Thus two issues would fall for consideration in the cases. Firstly, whether the decision taken by the Standing Academic Board of the respondent University on 19.12.2011 is repugnant or in conflict with the Regulation 12(4) of the MCI Regulations. If the question to this issue is in the affirmative, then whether the said decision dated 19.12.2011, could be made applicable to the current academic session 2012-13.
33. At this stage, we may refer to the decision of the Supreme Court in MAHARASHTRA UNIVERSITY AND OTHERS v PARYANI MUKESH JAWAHARLAL AND OTHERS [(2007) 10 SCC 201]. The question which fell for consideration before the Supreme Court related to the interpretation of Regulation 12(2) and (4) of Regulations on Graduate Medical Education, 1997, framed by MCI. The students of the Maharastra University of Health Sciences, who were the respondents therein appeared for 3rd year M.B.B.S. (Part-II) examination and the results were published during February, 2006, in which the students were shown as having failed in one or more subjects. Being aggrieved by the same, they filed Writ Petitions before the Bombay High Court, contending that the criteria for passing adopted by the Maharastra University was contrary to the MCI Guideline, to declare the notification issued by the University as illegal and ultra vires and sought for re-determination of the results in the failed subjects by adopting the procedure prescribed in Regulation 12 of the MCI Regulation and to declare them as pass in the examination. The Bombay High Court allowed the Writ Petitions and held that the notification issued by the Maharashtra University is illegal and inconsistent and violative of Regulation 12 of the MCI Regulations. The said decision was challenged by the University before the Supreme Court. Their Lordships, after noting the relevant provisions of the statutes and the circumstances taken by the University, the MCI as well as the students decided the question as to what is the intent of MCI Regulation 12(2). At this stage, we may quote the relevant paragraph from the said judgement:
"15. MCI has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. The regulations framed by the MCI with the previous sanction of the Central Government, in 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. 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. (Vide State of T.N. v. Adhiyaman Educational & Research Institute3, Medical Council of India v. State of Karnataka4 and Preeti Srivastava (Dr.) v. State of M.P.5) It, therefore, follows that if Clauses 56(2) and 57 of amended University Ordinance 1 of 2002 are inconsistent with MCI Regulation 12(4), they will be void to the extent of inconsistency. On the other hand, if the said Clauses merely implement, or make explicit what is implicit in MCI Regulation 12(4), then they will be valid and binding."
34.The Supreme Court after taking note of Regulation 12(4), which provides that to pass in a subject, a candidate should obtain 50% in the aggregate with minimum of 50% in theory including orals and maximum of 50% in practical. As per the notification of the Maharashtra University, the marks secured by the candidates when assessed under the said notification, they were declared as 'failed' , but when they were assessed as per the MCI regulation, the candidates were declared to have passed. The controversy was with regard to the method of calculating the passing marks for the other two heads of passing, namely "theory including orals" and "practical". As per regulation 12(4) of the MCI regulation, what it requires is a minimum of 50% in theory including orals should be obtained by a student, it does not say 50% in theory including orals, and internal assessment (theory). The Supreme Court observed that regulation 12(4) when read in its normal and natural sense, does not contemplate for clubbing of internal assessment with external assessment and when regulation requires that a candidate must obtain a minimum 50% in theory including orals, it is not possible to read it as 50% marks in theory including orals and internal (theory). Similarly when the regulation provides that a candidate must obtain a minimum of 50% marks in practical, it is not possible to read them as in practical and internal (practical). Ultimately, the Supreme Court accepted the interpretation put forth by the Maharastra University in respect of MCI Regulation 12 as correct and held that the notification issued by the Maharastra University is in consonance with Regulation 12(2) & (4). While doing so, the contention of the Maharastra University that their intention was to give the dominant and pre-eminent position to the University examination was accepted because the students are assessed by external examiners in an objective manner and on the other hand an internal assessment is done by the faculty of the Medical College, where the candidates are pursuing their course.
35.The Supreme Court in Dr.Preeti Srivastava and another vs. State of M.P. and others, [(1999) 7 SCC 120], among other questions considered the issue as to whether additional norms could be laid down by the Colleges or States. While answering the said issue, the Supreme Court held that in every case, the minimum standards as laid down by the Central statute or under it, have to be complied with by the State, while making admissions and it may in addition lay down other additional norms for admission or regulate admissions in exercise of its powers under Entry 25, list III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.
36. Similarly in the case of Dr.Ambesh Kumar, referred supra, the Supreme Court while considering the question, whether the State can impose qualifications in addition to those laid down by the MCI and the Regulations framed by the Central Government, held that the State Government by laying down the eligibility qualification, namely obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor the State infringed the Central power provided in Entry 66 of list I of the VII Schedule of the Constitution and the order merely provides an additional eligibility qualification.
37.We have in our early part of this Order quoted the decision taken by the Standing Academic Board in its meeting dated 19.12.2011, by virtue of the said resolution passed in such meeting every candidate to be declared as pass in the I MBBS has to secure minimum 50% of mark in each of the component, namely, Theory-I, Theory-II, Oral, Practical and Internal Assessment. Likewise, we have also referred to the minimum standards prescribed under Regulation 12(4) of the MCI Regulation, which states that for a candidate to pass the I MBBS, the candidate has to secure 35% in internal assessment for being eligible to appear for the University examination. On such appearance, the candidate is required to secure 50% marks in aggregate with a minimum of 50% in theory including orals and a minimum of 50% in practical and the candidate should secure 50% of aggregate with minimum 50% in theory and 50% in practical. The respondent-University would state that they have adopted this method with a view to improve the standard of medical education, has resolved to fix 50% mark to be secured in each component.
38. From the counter affidavit, it is seen that about 204 students have filed writ petitions, who are pursuing their MBBS course in the Madras Medical College, Stanley Medical College and Kilpauk Medical College. It is stated that out of the 204 candidates, 54 candidates have requested to publish their results as per the MCI norms and out of those 51 candidates, 41 candidates have passed the first year MBBS without any arrears and only 10 students have failed in the Kilpauk Medical College, Chennai and pass percentage is 67% as per the new pattern. It is stated that the candidates, who are unsuccessful in very essential papers relating to medical education and if their request is allowed to calculate the pass mark as combined aggregate marks, the concerned candidates will pass the examination without securing a pass mark in subjects like Anatomy, Bio-Chemistry and Physiology. It is further stated that the University Standing Academic Board noticed this deficit and resolved to introduce 50% mark for being declared pass in each component. Thus, it is seen that as per the decision of the respondent University, the minimum pass mark of 50% has not been altered, there has been no alteration in the pattern of examination, the subject content or curriculum. As per the stand taken in the counter affidavit only 2% of the students are against the individual pass in each paper and 98% of the students have appeared for the University examination and accepted the system of individual pass in each paper.
39. The earlier decision of this Bench reported in 2011 (6) CTC 801 was rendered on 16.11.2011. Thereafter, a meeting of the Standing Academic Board of the respondent University was convened on 19.12.2011 in which they decided not to follow the resolution of the 39th and 40th Standard Academic Board. By such a resolution, the University had earlier taken a decision to split up the individual component and making it mandatory for securing 50% minimum in each of the subjects. Such decision of the Board was held to be illegal by this Bench. The order was confirmed by the Supreme Court. Subsequently, the Standing Academic Board in its meeting held on 19.12.2011 took a decision that to declare a candidate as pass, the candidate has to secure 50% in each component. The respondent University addressed a letter to the MCI on 26.12.2011, requesting for their response. No reply was received from the MCI and in the mean time, the I M.B.B.S., students submitted representations on 31.07.2012. The Vice Chancellor of the respondent University issued a Press Statement on 09.10.2012, stating that the students in the I MBBS shall be allowed to move to second year, since there was a delay in publication of the results of I M.B.B.S. Thereafter, the University appears to have filed a writ petition before this Court to direct the MCI to consider their representation dated 26.12.2011. The writ petition was disposed of on 18.09.2012 and pursuant to a direction, the MCI sent a letter dated 25.10.2012, to the respondent University communicating its resolution which reads as follows:-
".........that the provisions of UG/PG regulations and MSR,wherever available should be followed by all concerned Universities/colleges, without any deviations. However, to fulfill the aim and objective and to impart skills, methods adopted may be fixed by University/colleges. Each University/college can frame higher standard of training programme."
In view of the above, you are hereby informed that the Regulations of the Medical Council of India, which are notified u/s 33 of the Indian Medical Council Act, 1956, are binding and mandatory in character and are required to be followed by all the authorities concerned.
After the reply was received from MCI, the respondent University declared the results and held that the petitioners/candidates have failed. Therefore, the candidates filed these batch of cases.
40. In the light of the aforementioned facts, we are of the definite view that the respondent University should not implement their decision taken in its 43rd Standing Academic Board meeting for this academic year i.e., for 2012-13, as it would be unfair and the students would be put in a disadvantageous position as they had appeared for the I M.B.B.S., examination in August 2012, much prior to the decision taken in the 43rd Board meeting and the candidates are said to have been permitted to move over to the II M.B.B.S., prior to publication of the results of the I M.B.B.S., examination.
41. Mr.A.L.Somayaji, learned Senior counsel appearing for the respondent University produced before us a letter written by the Registrar (FAC) of the University addressed to Mrs.Narmadha Sampath, Standing Counsel for the University, dated 26.11.2012, which reads as follows:-
"To Mrs.Narmadha Sampath, Standing Academic Counsel, The Tamil Nadu Dr.M.G.R. Medical University, Guindy, Chennai.
Madam, The University will not apply the University regulations passed in 43rd Standing Academic Standing Meeting held on 19.12.2011, for the students of the First Year MBBS who wrote their examinations in Aug' 2012 and the University will apply Medical Council of India regulations for this batch of students. This may be brought to the notice of the Hon'ble Bench hearing the writ petitions.
We request you to request the Hon'ble Court to decide the validity of the regulations framed in the 43rd Standing Academic Board meeting held on 19.12.2011, so that the University can apply these regulations for the next batch of students.
Registrar(FAC)"
42.In the light of the above communication, the respondent-University have decided that they will not apply the regulation passed in the 43rd Standing Academic Board Meeting for the I MBBS students, who wrote their examination in August 2012 and will apply the MCI Regulation for this batch of students.
43.For all the above reasons and taking note of the letter of the respondent-University dated 26.11.2012, we hold that the respondent-University shall not implement their decision taken in the 43rd Standing Academic Board Meeting held on 19.12.2011, for the first year MBBS students, who wrote their examinations in August 2012. Insofar as it relates to the validity of the decision of the Standing Academic Board dated 19.12.2011, though we are prima facie inclined to hold that the same is not inconsistent with the Regulation 12(4) of the MCI Regulations, but a step intended to prescribe higher standards, we refrain from expressing any opinion on the said issue, since the petitioners herein are no longer aggrieved in view of this decision as well as the stand taken by the respondent-University, as quoted above. Hence, we leave this question open.
44.In the result, the writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
(M.Y.E., C.J) (T.S.S., J)
26th , November, 2012
Sm/Rpa/Pbn
Index : Yes
Internet :Yes
Copy to:
1. The Tamil Nadu Dr.M.G.R. Medical University,
rep. by its Registrar,
No.69, Anna Salai,
Guindy, Chennai 600 032.
2. The Controller of Examinations,
No.69, Anna Salai,
Guindy,
Chennai 600 032.
3. Medical Council of India,
rep. by its Chairman,
Sector 8, Dwaraka Phase I,
New Delhi 110 077.
4. The Dean,
Sri Muthukumaran Medical College
Hospital and Research Institute,
Chennai 69.
The Hon'ble Chief Justice
and
T.S.Sivagnanam, J
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Sm/Rpa/Pbn
W.P.Nos.30080 to 30084, 30171, 30176, 30217 to 30222,
30231 to 30250, 30253 to 30258, 30421 to 30424, 30395 to 30406, 30698, 30852, 30888 to 30898, 29683, 30533 to 30540, 30575 to 30583, 30919 to 30932 and 31069 to 31078 of 2012 and W.P.(MD)Nos.14115 to 14118, 14201 to 14211, 14212 to 14222 and 14276 to 14285 of 2012
26..11 ..2012.