Karnataka High Court
Dr. Karthik Jayachandran vs The Rajiv Gandhi University Of Health ... on 15 March, 2006
Equivalent citations: ILR2006KAR1909, 2006(3)KARLJ663, 2006 (3) AIR KAR R 392
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. In this case, the petitioner has sought for a mandamus directing the respondent Nos. 1 and 2 to revalue the answers and to award full marks and for a further direction to consider him for selection to M.C.H. Degree Course for the academic year 2005-2006 on the basis of marks obtained in the written test. A direction is sought for striking down Sub-clause (7) of Clause 4 of Ordinance governing conduct of Entrance Test for admission to Post-Graduate Super-Specialty Course 2002. He has further sought for a declaration that the selection and admission of respondent Nos. 3 t(sic) to M.C.H. course for the academic year 2005-2006 as illegal.
2. The brief facts of the case are as follows:
Petitioner has passed the M.B.B.S. Degree Examination from Dr. M.GR. Medical University, Tamil Nadu. He has passed his M.S. in General Surgery from the same University in the year 2004. The Rajiv Gandhi University of Health Sciences (for short University'), by a notification dated 10.6.2005 invited applications from the eligible candidates to take the entrance test for Post-Graduate Super Speciality Course for the academic year 2005-2006. In response to the same, the petitioner submitted his application and took the entrance test as per the calender of events published by the University. Petitioner appeared for the entrance test on 26.6.2005 and the result was announced on 29.6.2005. He has scored 53 marks out of 90 marks in the written test. According to him the University has not provided the correct key answers. It is further contended that he ought to have been awarded a minimum of 58 marks. Thereafter, the petitioner was subjected to viva-voce test and was awarded 3 marks, while the candidates placed at the bottom of the list were given the maximum marks. Therefore, petitioner has challenged his non-selection for the study of MCH Degree Course in this petition on various grounds.
3. The University has filed its objections. It is contended that the petitioner had appeared for the entrance test conducted for admission to Post-Graduate Super-Speciality Course in the subject M.Ch. Urology and has secured 53% marks and was ranked at No. 2. Petitioner had attempted 88 questions out of 90 questions, out of which 28 were wrong answers and he has not attempted 2 questions. It is further submitted that there were two seats in M.Ch., Urology. On 17.7.2005 a viva-voce examination was conducted for the six short-listed candidates by the P.G.E.T. Committee. After considering the inter-se merit in the P.G.E.T. and the marks obtained in viva-voce, selection was made and respondent Nos. 3 to 5 were selected for the course. It is further contended that there was absolute transparency in the entire process of selection. The University has maintained uniformity in the entire selection process without any discrimination. Respondent Nos. 3 to 5 were better merited than the petitioner and performed well both in entrance test and viva-voce and hence, they were selected for the study of the said course.
4. In the additional statement of objections, the University has contended that it has adopted a method of evaluating the merit on the basis of entrance test as per Regulation 9(2) of the M.C.I. Regulations. The nitty gritty of conducting the entrance test like the mode and methods, subjects to be specified, method of evaluation of papers, etc., has not been provided in M.C.I. Regulations. Therefore, the M.C.I, has left the above factors to the discretion of the selecting bodies i.e., University/Institutions. In that view of the matter, the university in its Ordinance governing conduct of Entrance Test for admission to Post Graduate Super Speciality Courses has provided for conducting the entrance test by way of written test and viva-voce. It is submitted that viva-voce is an integral part of entrance test so as to assess the academic merit and personality of a candidate for being selected to a coveted super speciality course. While earmarking 90 marks for written examination, only 10 marks have been earmarked for viva-voce examination to evaluate the candidate's personality, potential, ability to plan, establish and manage a super speciality independently. The viva-voce is also conducted by a subject expert and it gives an opportunity to assess the higher intellectual abilities like application of knowledge, synthesis and Judgment, the nature of practical training undergone in the qualifying examination, etc., of candidate which could not be easily assessed in a multiple choice objective test with four options. The M.C.I. Regulations have not specifically excluded such an evaluation of merit by the University/ Institution. It is submitted that Clause 4(7) of the Ordinance made by the University is not in conflict with the M.C.I. Regulations. The M.C.I. Regulations and clause 4(7) of the Ordinance can co-exist and can continue to operates and provisions are not inconsistent with each other. It is further contended that the petitioner having participated in the entrance test cannot now turn around and question the very proceedings.
5. Respondent No. 4 in his statement of objections has contended that pursuant to his selection, the University has allotted admission in Bangalore Medical College on 11.7.2005. Pursuant to the letter of allotment, he got himself admitted to Bangalore Medical College on 15.7.2005 and that he has been attending the classes from 01.8.2005. It is further contended that he hails from Rajasthan and he was working in Government Medical College, Chandigarh as a Senior Resident in the department of urology and was drawing salary of Rs. 25,000/- per month inclusive of house rent and other allowances and benefits, hi view of his selection, he has opted out of the job and has shifted to Bangalore along with his wife who was also working as Emergency Medical Officer in Government Medical College, Chandigarh and was drawing a salary of Rs. 17,000/- per months. It is further contended that the writ petition was filed on 4.8.2005 though the results have been declared on 29.6.2005 after a lapse of more than one month. The petitioner had appeared in the entrance examination conducted by Madras Medical College on 26.7.2005 for selection to MCH Course. Since he was not selected in the said examination he has filed the present writ petition to some how get a seat by challenging the admission of the respondents on untenable grounds. The petitioner having appeared for the written examination and viva-voce, cannot challenge marks being awarded and viva-voce on the ground that conducting of viva-voce and awarding of marks is without authority of law. Petitioner was aware of the mode and manner of examination to be conducted by the University. The petitioner not having protested and having participated in the examination cannot challenge the same, at this belated stage.
6. I have heard Sri. Ravivarma Kumar, Learned Senior Counsel for the petitioner along with Sri. J. Prashanth, learned Advocate, Sri N.K. Ramesh, Learned Counsel for the respondent Nos. 1 and 2, Sri Veeresh B. Patil, Learned Counsel for the respondent No. 3 and Sri Shahikiran Shetty, Learned Counsel for the respondent No. 4
7. Learned Senior Counsel appearing for the petitioner submits that the M.C.I. Regulations do not provide for conducting of viva-voce and award of marks for the viva-voce test. It is contended that holding of viva-voce is contrary to Regulation 9 of Post-Graduate Medical Education Regulations, 2000. It is argued that the University is not justified in conducting viva-voce and awarding marks for the purpose of selection to Super Speciality Course and that holding of viva-voce is without authority of law and ultra virus of Regulation 9 of MCI Regulations. It is further argued that petitioner was only awarded 53 marks out of 90 marks in the written test. He is entitled for award of 58 marks as per the answers given by him in the written test. It is further contended that the key answers given by the University to some of the questions are incorrect. Petitioner has answered the said questions in accordance with the answers provided in the prescribed text-books. The University has not provided an opportunity to contest the key answers. Thus, the evaluation process is arbitrary. It is further argued that the Ordinance of the university is contrary to law. Super speciality course is the highest degree awarded in the field of medicine. The power to legislate on the subject is exclusively vested in the Parliament and under Entry 66 of List I of Schedule VII to the Constitution of India. The field of Super Speciality Course in medical faculty is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution of India. Hence, neither the State nor the University is competent to regulate the admission to Super Speciality Course.
8. On the other hand, Sri. N.K. Ramesh, Learned Counsel appearing for the respondent Nos. 1 and 2 submits that the University is within its power to provide for viva-voce test. It is argued that the M.C.I. Regulations provides for selection of P.G. students shall be strictly on the basis of academic merit as determined by the University/ Institution. The University has adopted a method evaluting merit on the basis of entrance test as per Regulation 9(2) of the M.C.I. Regulations. The nitty gritty of conducting of entrance test like the mode and methods, subjects to be specified, method of evalution of papers, etc., has not been provided in the M.C.I. Regulations and M.C.I. has left the above factors to the discretion of the selecting body. The University in its Ordinance has provided for conducting of entrance test by way of written test and viva-voce. Vica-voca is also an integral part of the entrance test so as to assess the academic merit and personality of a candidate for being selected to a coveted super speciality course. Viva-voce is also conducted by a subject expert and it gives an opportunity to assess the higher intellectual abilities like application of knowledge, synthesis and judgment and nature of practical training undergone in the qualifying examination of candidate which could not be easily assessed in a multiple choice objective test.
9. It is further argued that the Courts should be very slow to . interfere with the decisions of the experts in academic matters. The paper setter is an expert and that the key answers provided by him should not be doubted. On the question as to the validity of the regulations, Ordinance of the University, It is submitted that the M.C.I. Regulations do not provide the mode and method of conducting the entrance test, subjects to be specified, the method of evaluation of papers. These factors have been left to the discretion of the selecting bodies like the University. The Ordinance of the University is in aid of the M.C.I. Regulations and it is not contrary to the M.C.I. Regulations.
10. It is further argued that the Ordinance of the University was in force with effect from 11.11.2002. Petitioner is fully aware of the mode and method of holding the examinations. Having appeared in the examination, he cannot turn around and challenge the examination conducted by the University. He is estopped by his conduct. The entrance test conducted on 26.6.2005 and the selection was made on 29.6.2005. The contesting respondents have joined the course on 15.7.2005 and the writ petition was filed on 4.8.2005. Thus, the petition is belated and it should not be entertained at this stage.
11. Respondent Nos. 3 to 5 have supported the stand of the University.
12. Having regard to the rival contentions of the learned Counsel for the parties, the following points arise for consideration in this writ petition.
1. Whether the conducting viva-voce and awarding of marks is contrary to Regulation 9 of the M.C.I. Regulations 2000?
2. Whether the Ordinance of the University is ultra virus and unconstitutional and is opposed to M.C.I. Act?
3. Whether the University has conducted the written test in a fair and transparent manner?
4. Whether the petition is liable to be rejected on the ground of acquiescence and estoppel by conduct?
Re. Point No. 1 :
13. In exercise of powers conferred under Section 33 read with Section 19-A of the Indian Medical Council Act, 1956, the Medical Council of India has framed 'Post-Graduate Medical Education Regulations, 2000' (for short 'Regulations'). The said Regulations provides the general conditions to be observed by the Post Graduate Teaching Institutions, general objectives of Post Graduate Training expected from students at the end of post-graduate training, statement of the competencies, components of the post-graduate curriculum, criteria for selection of post-graduate students, etc. Regulation 2 states that post-graduate medical education in broad specialities shall be of three years of duration in the case of degree course and two years in the case of Diploma Course after MBBS and in the case of super specialities, the duration shall be of three years after MD/MS with the exceptions wherever indicated. It further states that post-graduate curriculum shall be competency based and that the training of PG students shall involve learning experiences 'derived from' or 'targeted to' the needs of the community. Regulation 3.1 states that the goal of post-graduate medical education shall be to produce competent specialists and/or medical teachers, who shall have mastered most of the competencies, pertaining to the speciality, that are required to be practiced at the secondary and the tertiary levels of the health care delivery system, and who shall be aware of the contemporary advances and developments in the discipline concerned, and who shall have acquired the basic skills in teaching of the medical and paramedical professionals. One of the components of post-graduate curriculum is attitude including communication skills. Regulation 9 provides for selection of post-graduate students which is as under:
9. SELECTION OF POSTGRADUATE STUDENTS (1) Students for Post-graduate medical courses shall be selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the University/institution may adopt any one of the following procedures both for degree and diploma courses:
(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same state; or
(ii) On the basis of merit as determined by a centralised competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same University; or
(vi) Combination of (i) and (iii) Provided that wherever entrance test for Postgraduate admissions is held by a State Government or a University or any other authorised examination body, the minimum percentage of marks for eligibility for admission to post-graduate medical courses shall be fifty percent for all the candidates;
Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty per cent by the management of the institution on the basis of merit.
14. It is not in dispute that the aforesaid Regulations are also applicable to Super Speciality Courses, one of the goal being to produce medical teachers, who shall have acquired the basic skills of teaching of medical and paramedical professionals and the competence and components of post graduate curriculum being attitude including communication skills.
15. Regulation 9(1) states that students for the Post Graduate Courses shall be selected strictly on the basis of their academic merit and Regulations 9(2) states that for determining academic merit, the University/Institution may adopt any one of the procedure prescribed therein. Regulations 9(2)(i) states that the selection may be on the basis of merit as determined by competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/ group of Universities in the same States. Regulation 9(2)(ii) provides for the selection on the basis of merit as determined by the centralised competitive test held at the national level. Regulation 9(2)(iii) is not applicable for selection to Post- Graduate Courses and it is not applicable for selection to Super Speciality Courses. In furtherance of the said Regulations, University has issued an Ordinance Governing Conduct of Entrance Test For Admission to Post Graduate Super Speciality Courses in Medical Faculty in exercise of the powers under Sub-Section 1 and 2(a) of Section 35 of Rajiv Gandhi University of Health Sciences Act, 1994. The M.C.I. Regulations do not provide the nitty gritty of conducting the entrance test like the mode and method, subjects to be specified the method of evaluation of papers, etc. Therefore, the University has framed the Ordinance providing for the same. The Ordinance of the University provides the eligibility criteria for admission to Super Speciality Degree Courses, the conduct of test, preparation of merit list, etc. The Ordinance of the University provides for holding of viva-voce examination for 10 marks. As noticed above, the MCI Regulations make it clear that the students shall be selected on academic merit. The academic merit may be determined both by written test and also by viva-voce. Having examined the scheme of the M.C.I. Regulations, it is clear that a student to be selected should have acquired basic skills in teaching of the medical and paramedical professionals and the components of the curriculum being the attitudes involving communication skills. Thus, if the University has provided for viva-voce test, the same cannot be found fault with. Out of 100 marks, only 10 marks have been allotted to viva-voce examination. As rightly contended by the University, viva-voce is an examination conducted to assess the higher intellectual abilities of a candidate. In Concise English Oxford Dictionary, the meaning assigned to viva-voce is oral examination typically for assessing an academic qualification. Vica-voce is also an integral part of the academic evaluation process. Vica-voce is conducted by subject experts. Thus, viva-voce gives an opportunity to assess the higher intellectual abilities like application of knowledge, synthesis and judgment and nature of practical training undergone in the qualifying examination of candidate which could not be easily assessed in a multiple choice objective test with four options.
16. The M.C.I. Regulations advisedly have not specifically excluded, such an evaluation of merit by the Universities/Institutions. The Regulations of the University are not in any way contrary to the M.C.I. Regulations. Viva-voce has not been relied upon as an exclusive test but it is resorted to only as an additional or supplementary test. It is well settled that both written test and interview are the essential features of a proper selection.
17. Viva-voce test has become an important instrument whenever test of personal attributes are considered essential. No satisfactory written test have yet been devised for measuring such personal characteristics as initiative, ingenuity and ability to elicit co-operation, many of which are of prime importance. When properly employed, the oral test today deserves a place in the battery used by the technical examiner. The viva-voce test performs a very useful function in assessing personal characteristics and traits and in fact, test the man himself and is therefore regarded as in important tool along with the written examination. R. Jagannath and Anr. v. High Court of Karnataka and Ors. ILR 2005 Kar 31/25.
18. Thus, I hold that conducting of viva-voce examination for the selection of a student to Super Speciality Course is not contrary to Regulation 9 of the M.C.I. Regulations, 2000.
Re-Point No. 219. The University is a whole body of teachers and scholars engaged at a particular place in giving and receiving instructions in higher branches of learning and as such persons associated together as a society or corporate body, with definite organisation and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, building and other property belonging to such body. Other necessary attributes of University are plurality of teachers teaching more than one higher faculties and other facilities for imparting instructions and research. The State legislature is empowered to legislate and make an enactment for incorporation and establishment of Universities in view of Entry 32 of List II and Entry 25 of List-Ill. The subject 'University' as a legislative head must be interpreted in the same manner as it is generally or commonly understood. Prof. Yashpal and Anr. v. State of Chattisgarh and Ors. 2005 AIR SCW 1168. The RGUHS Act, 1994 is referable to the aforesaid legislative entries. The RGUHS Act provides for framing of Ordinance. The Ordinance in question has been framed in exercise of the powers under Sub-section (1) and 2(a) of Section 35 of the Act.
20. Entry 66 deals with co-ordination and determination of standards in institutions for higher education and research and scientific and technical institutions being in Union List and the parliament alone has the legislative competence to legislate on the said topic. The Medical Council of India Act, is referable to Entry 66 of the Union List. MCI Regulations have been framed in accordance with the provisions of MCI Act. No doubt the Regulation states that the selection of students to Post-Graduate Medical Courses/Super Speciality Courses shall be made on the basis of their academic merit. It also broadly states the evaluation of the academic merit. It does not provide for the nitty gritty of conducting entrance test like the mode and methods, subjects to be specified, method of evaluation of papers etc., It appears that MCI has left the above fact to the discretion of the selection body. As noticed above, the University can frame the Ordinance in question as long as it is not contrary to the MCI Act and the Regulations made thereunder. The University in its Ordinance has provided the mode and method of conducting the entrance test. Ordinance 4(7) provides for holding of viva-voce examination for 10 marks. Viva-voce is also an integral part of the entrance test so as to assess the academic merit for being selected to the course. Viva-voce conducted by a subject expert gives an opportunity to assess the higher intellectual abilities like application of knowledge, synthesis and judgment and the nature of practical training undergone in the qualifying examination of the candidate, which could not be easily assessed in a multiple choice objective test. Even the MCI Regulations make it clear that a student to be selected should have acquired basic skills for teaching on medical and para-medical professions, curriculum of the attitudes involving communication skills. The Ordinance in question is not in conflict with MCI Regulations. Therefore, the Ordinance of the University is neither unconstitutional nor opposed to the MCI Act and the Regulations made thereunder. I am of the view that MCI Regulations and the Ordinance of the University and in particular Ordinance 4(7) can co-exist and can continue to operate and that the provisions are not inconsistent with each other. The second point is answered accordingly.
Re. Point No. 3:
21. The Ordinance framed by the University for conduct of entrance test for admission to the aforesaid course provides the procedure for conducting the said test. As per the said Ordinance, the question papers shall consist of objective type questions each having one. "most appropriate answer" out of four possible alternatives. The question paper is of 90 minutes duration consisting of 90 questions and each question carries one mark for correct answer and for each wrong answer, quarter marks is deducted and if more than one alternative is indicated, one mark is deducted. The answer sheet is evaluated by subject experts/examiners. The syllabus contents is not more than the syllabus prescribed for Post-Graduate Courses under the Indian Medical Council Regulations or R.G.U.H.S. Ordinance. The Ordinance also provides for constitution of Entrance Test Committee, which is as follows:
Entrance Test Committee:
1) The Entrance Test shall be conducted by the following Committee:
a) The Vice-Chancellor, RGUHS Chairman
b) The Director of Medical Education Vice-Chairman
c) The Director of Sri. Jayadeva Institute of Cardiology Member
d) The Director of Kidwai Memorial Institute of Oncology, Bangalore Member
e) The Professor and Head of the Department of Urology, BMC, Bangalore. Member
f) The Professor and Head of the Department of Plastic Surgery, BMC, Bangalore. Member
g) The Professor and Head of the Department of Cardiology, Jayadeva Institute of Cardiology, Bangalore Member
h) The Professor and Head of the Department of Cardio Thoracic Surgery, Jayadeva Institute of Cardiology, Bangalore. Member
i) The Professor and Head of the Department of Surgical Oncology, Kidwai Memorial Institute of Oncology, Bangalore. Member
j) The Professor and Head of the Department of Medical Oncology, Kidwai Memorial Institute of Oncology, Bangalore. Member
k) The Registrar, RGUHS Member Secretary
l) The Committee may co-opt two more members. The duration of membership of co-opted members shall be restricted to the annual Entrance Test of that year only.
The Regulations state that in all matters pertaining to the conduct of Entrance Test, the decision of the Entrance Test Committee shall be final subject to the decision of the Syndicate.
22. It is the case of the petitioner that he is entitled to 58 marks as per the answers given by him in the written test and that he was awarded 53 marks contrary to what he is legitimately due on the basis of his performance. On the other hand, the University contends that out of 90 questions, the petitioner has attempted 88 questions, out of which 28 were wrong answers and he has not attempted 2 questions. The respondents have maintained uniformity in the entire selection process without any discrimination. It is evident that the Entrance Test has been conducted in terms of the Regulations/Ordinance referred to above. The test is conducted by the Entrance Test Committee consisting of Vice-Chancellor and other highly qualified academicians and experts in the field of medical education. This Court cannot sit in judgment on the question papers set and the key answers provided by the experts. This Courts does not have any infrastructure to undertake this exercise. This Court cannot scrutinize the academic activities as it is the function of the University. Since the Court is not equipped with scientific knowledge or knowledge in the branch of medicine, it should refrain from undertaking any investigation in this regard. The Ordinance no doubt states that question paper shall consists of objective type questions each having one most appropriate answers out of four possible alternatives. If the Entrance Test Committee has chosen a particular answer as the right answer, this Court cannot come to conclusion that answer furnished by the University is an incorrect answer.
23. However, in future, the University may consider holding of Entrance Examination, as has been done in Post Graduate Entrance Examination where provisions have been made to challenge the key answers. This process will help the University for rectification of any mistakes in the key answers and the candidates will also get an opportunity for redressal of their grievances in so far as the correctness of the key answers are concerned. This is only a suggestion for consideration by the Syndicate of the University and not a direction, as this is a matter of policy.
24. It is well established that the Courts should be very slow to interfere with the decisions of the experts in academic matters. The material on record clearly establishes that the paper setter is an expert and that he has provided key answers. Accordingly, the answer scripts of the petitioner have been evaluated. This Court cannot sit in judgment on the question papers set and the key answers provided by the experts. The petitioners have not made any allegations of mala fides against the officials of the respondent-University who have conducted the entrance test. On the facts of this case, I am of the view that there is no justification for the petitioners to contend that the written test conducted by the University is not fair and transparent. The third point is answered accordingly.
Re. Point No. 4:
25. As noticed above, the Ordinance in question has come into force with effect from 11.11.2002. The petitioner has appeared for the entrance test on 26.6.2005 without any protest and the result was declared on 29.6.2005. Counselling was held on 11th and 12th July 2005. The contesting respondents have joined the course on 15.7.2005. The writ petition was filed on 4.8.2005. The petitioner has not challenged the Ordinance before appearing for the entrance test. The petitioner having appeared for the written examination and viva voce cannot challenge the marks being awarded and viva-voce on the ground that conducting of viva-voce and award marks is contrary to law. He was aware of the mode and manner of conducting the examination by the University, well before his appearance in the examination. He has participated in the examination without any protest. It is well established that if a candidate takes a calculated chance and appears in the entrance test, only because the result of the examination is not palatable to him, he cannot subsequently turn round and contend that the process of the examination is not in accordance with law. Om Prakash Shukla v. Akilesh Kumar Shukla 1986 SC 1043, Madanlal v. State of Jammu and Kashmir and University of Cochin v. N.S. Kanjoojamma . Thus, the petitioner having participated in the selection process is estopped from challenging the correctness of the procedure, that too at this belated stage. Point No. 4 is answered accordingly.
Writ Petition is devoid of merits and it is accordingly dismissed subject to the observations made in para 23 of this order. No costs.