Bombay High Court
Sheetal A. Abhyankar (Ms.) And Ors. vs Maharashtra University Of Health ... on 12 December, 2003
Equivalent citations: 2004(2)MHLJ689
Author: V. G. Palshikar
Bench: V.G. Palshikar, S.C. Dharmadhikari
JUDGMENT V. G. Palshikar, J.
1. All these petitions challenge the Rules 56 and 57 of Ordinance 1 of 2002 framed by the Maharashtra University of Health Sciences (hereinafter referred to as the Health University) on the ground that the same are inconsistent with the Regulation framed by the Medical Council of India and it is therefore prayed that these Rules should be quashed insofar as they are inconsistent with the Medical Council of India Regulations.
2. Since all these petitions raise identical question, by consent of all concerned, all the petitions were taken up together and were heard together and are now being decided together by this order. Certain facts giving rise to the present petitions will have to be noted briefly.
3. The Medical Education in the State of Maharashtra was administered by various Universities situated in the State. Each University has its own independent college or colleges for imparting instructions in medical education leading to diploma, degrees at post graduate level including diplomas and decrees on graduate level. Each University was independent of each other and had its own Rules, Regulations and Ordinance etc. framed for imparting instructions and holding examinations in the Medical Education in the State of Maharashtra. In the year 1998 it was considered necessary by the State of Maharashtra that all faculties dealing with the health science including medical education should be brought under one umbrella and therefore the Government legislated the Maharashtra Universities of Health Science Act 1998. This Act had exhaustive provisions for establishment and management of the Maharashtra University of Health Sciences, and all provisions necessary for establishment and working of the University are to be found in this connection.
4. It was provided by the Act that all colleges should be affiliated to each Universities in Maharashtra. The courses in medical education were thereafter conducted by the Health University. It was provided by the Act that colleges witherto before affiliated to various Universities in Maharashtra be after the promulgation of the Act of 1998 affiliated to Maharashtra University of Health Sciences.
5. On 8th of August 2001 the Vice Chancellor of Health University gave a direction being Direction No. 22 of 2001 titled as "Conduct of Examinations" by which an ordinance was proposed for the purpose of conduct of examination and accordingly Ordinance No. 1 was promulgated. This ordinance proposed for framing of Rules for the conduct of examination by the Health University in regards to colleges affiliated thereto. This Ordinance and the Rules contained therein therefore govern the conduct of examination by the Health University. The petitioners are studying in different colleges all of whom are affiliated to the Health University.
6. In July 2003 examinations for the second year and final year MBBS were conducted and the results were declared. In the declared results certain students, some of whom are the present petitioners failed and they have therefore filed these various petitions, the subject matter of dispute being Rules 56 and 57 of the Ordinance No. 1 of 2002 which corresponds to Rules 58 and 59 of Direction issued earlier by the University. As aforesaid the basic challenge to these Rules is their inconsistency with the Rules framed by the Medical Council of India in that regard.
7. Rule was given in all petitions and detailed replies have been filed in some of the petitions by the Health University as also by the Medical Council of India and in some cases by the University. They contested the claim made by the petitioners that Rules 56 and 57 of the Ordinance No. 1 of 2002 are in any manner inconsistent with the Rules framed by the Medical Council of India in that regard.
8. We will notice the basic contentions raised by Mr. Ramrao Adik the learned Senior Counsel appearing on behalf of the petitioners. According to Mr. Adik the provisions of the Indian Medical Council Act of 1956 create the Medical Council of India and a comprehensive analysis of all the provisions therein leads to an unequivocal statement of law that Medical Council of India as established by this Act, is the Supreme Authority in the matter of governing all aspects of medical education in India. The contention stated briefly is that the Medical Council of India has framed rules in exercise of its powers under the Act of 1956. These Rules provide for conduct of examination after completion of different courses in the branch of medicine. Even though Universities have their own right to frame rules regarding conduct of examination, that being the primary duty of the University, it cannot frame regulations which are inconsistent with the Rules framed by the Medical Council of India. The learned counsel then elaborated how Rules 56 and 57 of Ordinance No. 1 are inconsistent with the Regulation 12 of the Regulation framed by the Medical Council of India, called Regulations on Graduate Medical Education 1997 (hereinafter referred to as Regulations). The Regulation 12 provides for Examination Regulation and provides the manner in which the examinations shall be conducted including coaching leading to conduct of that examination. The submission is that these Regulations provide for assessment of students taking the examination in a particular manner. Rules 56 and 57 of the Ordinance No. 1 are contrary to the Rules or Regulations framed by the Medical Council of India and the Rules framed by the Health University are inconsistent with the Regulations and therefore they are liable to be struck down to the extent of the inconsistency.
9. The Health University has filed its reply and stoutly denied all the contentions raised by the petitioner. It was submitted by the learned counsel appearing for the University that there is no inconsistency in Rules 56 and 57 of the Ordinance No. 1 of 2002 and provisions of Regulation 12 as framed by the Medical Council of India. The detailed affidavit filed on behalf of the University expresses elaborately its own Ordinance and points out how it is not inconsistent with the Regulations.
10. Certain factual aspect has to be noted before adverting to the affidavit filed by the Medical Council of India. The Ordinance 1 of 2002 was framed by the Health University in pursuance to the Direction No. 22 of 2002 issued on 8th August 2001. The Ordinance No. 1 of 2002 was promulgated thereafter in the obedience of the direction issued by the Vice Chancellor on 8th August 2001. The Ordinance is thus in existence since 2002 and the examinations, result of which is assailed, was conducted in pursuance of this Ordinance No. 1 of 2002. We will have to consider therefore, the contentions raised by the petitioner that the provisions of 56 and 57 of the Ordinance are inconsistent with the provisions of Medical Council of India and the Regulations as they were existing in the year 2002. It is in this context that we have to consider the submissions made on behalf of the Medical Council of India.
11. The affidavit on behalf of the Medical Council of India was filed by Mr. Jagtar Singh Assistant Secretary, Medical Council of India, New Delhi. He states that he is acquainted with the facts and circumstances of the present case and is competent to swear this affidavit. He then proceeds to submit that it is a higher authority established under the Medical Council of India Act 1956 with the object of regulating medical education in India. The affidavit then pointed out the supremacy of the Medical Council of India as recognised by the Supreme Court of India. As annexure "A" to the affidavit, a copy of the 1997 Regulations framed by the Medical Council of India, are enclosed. These were framed in the year 1997. Chapter IV thereof deals with the Examination Regulations. The affidavit then explains how Chapter IV of the 1997 Regulations controls the conduct of examinations. Then in para 11 the following is contended.
"It is respectfully submitted that the aforesaid rules of the Maharashtra University of Health Sciences Ordinance are not in conformity with the 1997 Regulations of the Medical Council inasmuch as they treat Internal Assessment as a separate head of passing along with Theory and Practical/Clinical. It is submitted that the same is not in consonance with the scheme provided by the Medical Council of India vide the 1997 Regulations, it is reiterated that as per the scheme prescribed by the 1997 Regulations only two passing heads, namely Theory and Practical/Clinical have been identified. The aforesaid Rules which purport to add another passing head, namely Internal Assessment is therefore inconsistent with the 1997 Regulations".
12. The Council therefore takes a stand that the provisions of Ordinance No. 1 are inconsistent with the Regulations. It then proceeds to elaborate how it is inconsistent. The affidavit then proceeds to narrate the facts leading to the amendment of the Regulations framed by the Council in 1997. Certain recommendations of the Medical Council of India were forwarded to the Government of India under the heads Graduate Medical Education (Amendment) Regulations of 2002. The Central Government by its letter dated 1-11-2002 forwarded the recommendations so made and its comments to Director General of Health Science with respect to each amendment. The Executive Committee of the Council considered the recommendations made by the Government of India and decided to amend Regulations 12(2)(v) and fix the minimum marks in Internal Assessment to be eligible to appear in the University Examinations as 35%. This decision was approved by the members of the Council. It was then communicated to the Central Government, and the Central Government vide its letter dated 14th August 2003 forwarded a copy of the Graduate Medical Education (Amendment) Regulations, which were duly approved by it. By narrating these facts it is contended on behalf of the Medical Council as under:
"The answering respondent most respectfully submits that it can be well gathered from the above mentioned amendment to the Regulation 12(2)(v) of the 1997 Regulations that it was never the intention to the Medical Council of India to treat Internal Assessment as a separate passing head."
"In view of the submissions made hereinabove, it is most respectfully prayed that this Hon'ble court be pleased to set aside and quash the impugned Rules, being Rules 56 and 57 of the Ordinance 1 of 2002 of the Maharashtra University of Health Sciences inasmuch as they are inconsistent with the 1997 Regulations of the Medical Council of India. The answering respondent prays accordingly".
13. The counsel is thus contending that the Ordinance No. 1 of 2002 framed by the University is inconsistent with the Regulations which were amended in 2003. It has nowhere pointed out inconsistency. In effect the Medical Council of India supports the claim of the petitioner in toto. It is surprising that such a stand is taken by the medical council of India when no inconsistency is pointed out.
14. We will consider whether the Ordinance No. 1 of 2002 (Rules 56 and 57) are in any manner inconsistent with the Regulations as framed by the Medical Council of India. Regulation 12 provides for regulation of examinations. It also provides for Internal Assessment. In Regulation 12(2) there is a note which speaks of Internal Assessment and states that Internal Assessment shall relate to different ways in which students participation in learning process during semesters is evaluated. It then proceeds to elaborate by giving examples, what Internal Assessment should comprise of. A combined and cohesive reading of entire Regulation 12, which pertains to conduct of examination, clearly indicates that Internal Assessment has to be a different separate head and passing in that head is made compulsory. Regulation 12(2)(v) reads thus :
"Student must secure at lest 50% marks of the total marks fixed for internal assessment in a particular subject in order to be eligible to appear in final university examination of that subject."
According to the Regulation of Medical Council of India therefore a student must secure 50% of marks for Internal Assessment.
15. We would therefore note, what exactly is provided by Rules 56 and 57 of the Ordinance No. 1 of 2002.
"56. Maximum number of attempts :
An examinee shall be eligible to appear in examination for such number of attempt as may be prescribed by the University from time to time for respective examinations.
The candidate to be eligible to pass in a subject shall pass in :
i) i) Theory ii) ii) Practical iii) iii) Internal Assessment. in the same attempt. 57. The Standard of passing :
A candidate to be eligible to pass the examination must have obtained not less than 50% marks in :
i) i) Theory
ii) ii) Practical
iii) iii) Internal Assessment.
separately."
It will thus be seen that what has been provided by the Rules 56 and 57 of Ordinance No. 1 is that an examinee to be eligible to appear for subsequent higher examination should pass in Theory, Practical and Internal Assessment in the same attempt i.e. to say, the subject for which Theory, Practical and Internal Assessment is provided must be cleared under all the three heads in one attempt. It also empowers the University to fix maximum number of attempts which any examinee can take in the University. Rule 57 then provides the standard of passing and requires that a candidate to be eligible to pass examination must obtain not less than 50% of marks in (i) Theory, (ii) Practical and (iii) Internal Assessment separately. The contention of the petitioner is that this requirement of getting 50% of marks in each of the three heads namely Theory, Practical and Internal Assessment is inconsistent with the Regulation framed by the Medical Council of India. We have seen above what is the requirement of Regulation 12 in this regard and still repeat that Regulation 12 specifically observes that a student must secure atleast 50% of marks fixed for Internal Assessment in a particular subject in order to be eligible to appear for the final examination of that subject. The requirement of obtaining 50% of the total marks fixed for Internal Assessment is clearly spelt out by Regulation 12. What has been provided by Rule 57 is same. That is to say a candidate must obtain not less than 50% of the total marks prescribed for Theory, Practical and Internal Assessment separately. It only explains what has been ordered by Medical Council of India. Medical Council of India asserts that he must secure 50% of marks. University asserts he must secure so in each of the three heads. This cannot therefore be termed as inconsistent Rule with the Regulation of Medical Council of India.
16. What has been provided by Regulation 12 is that Internal Assessment is an important aspect of education and students must pass independently in that assessment. The contention of the Medical Council is, this requirement has been amended to 35% by August 2003 amendment. The contention appears to be that the Medical Council of India having reduced the percentage of marks required to qualify in a particular Internal Assessment from 50% to 35%, it has automatically provided that 35% need not be calculated separately for three sub heads namely Theory, Practical and Internal Assessment. We are unable to accept this contention for the reason that the Medical Council itself has provided for these three sub heads merely because Rule 57 explains what is meant by 50% of marks for the sub heads, and hence it cannot be said that it is inconsistent with the Regulation 12.
17. Apart from the fact that there is no inconsistency of Regulation 12, it will be seen that wherever the Medical Council of India or University desired to club certain assessment, have specifically provided for the same. Regulation 12 specifically provides while dealing with the final examination that in order to pass in each subject the candidate must obtain 50% in aggregate with minimum of 50% in theory including orals and minimum of 50% in practical/clinical. The council wherever intended to include something it specifically provided for it and such provision has not been made in relation to practicals/clinicals, and internal assessment. It cannot be claimed that clubbing of the same was also intended. Combined reading to the Regulation 12 clearly indicates that the council wanted the students to secure 50% of marks for internal assessment. That exactly what has been done by Rules 56 and 57. They provide that a candidate in order to eligible to pass in a subject shall have to pass in each of the three heads namely Theory, Practical and Internal Assessment separately. Reading of Regulation 12(2)(v) clearly indicates that the Medical Council of India desired that a student must acquire 50% of marks in internal assessment. What is implicitly provided by the council is explicitly stated by the Health University, Medical Council of India provided by Regulation 12 that theory shall include the oral examination marks and did not say so in relation to internal assessment and therefore the University clearly stated that in order to pass that examination each student must get passing marks of 50% in each of the three sub heads namely Theory, Practical and Internal Assessment. In our opinion, there is no inconsistency nor can it be inferred from the Regulation 12 that the Council always desired to club internal assessment in theory and practicals. Regulation 12 clearly provides for different marks for such heads. At each place internal assessment is of 60 marks of which 30 are for internal assessment of theory and 30 are for internal assessment of practicals/clinicals. That being so, a student must obtain 50% marks in theory including orals and minimum 50% in practical/clinical and inclusion of internal assessment of 30 marks for theory and practical in calculating 50% is impermissible. It has been brought out by Rules 56 and 57 or Ordinance 1 of 2002 and therefore there is no inconsistency between the two. Since there is no inconsistency, we need not refer to several decisions cited at the bar for the proposition that where there is inconsistency between the Regulation framed by the council and any University enactment, Regulation of Medical Council prevailed. We find that there is no inconsistency and hence no need to refer to all these decisions.
18. In our opinion, the Rules 56 and 57 of Ordinance No. 1 of 2002 as framed by the Health University are not in any manner inconsistent with Regulation 12 as framed by the Council insofar as they require a student to pass all the three heads with 50% marks i.e. (1) Theory, (2) Practical and (3) Internal Assessment. There is therefore no error in the results as declared by the University. There is therefore no substance in these petitions. The same are therefore dismissed. There shall be no order as to costs. Interim orders if any are vacated.
C. C. expedited.
Parties to act on the authenticated copy of this order.