Karnataka High Court
Desmond Dominic Rego And Others vs Rajiv Gandhi Universities Of Health ... on 4 February, 1999
Equivalent citations: AIR1999KANT203, ILR1999KAR3820, 1999(3)KARLJ391, AIR 1999 KARNATAKA 203, 1999 (2) KANTLD 193, (1999) ILR (KANT) 3820, (1999) 3 KANT LJ 391
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. Since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed off by this common order.
2. To understand the legal issues canvassed by the learned Counsel for the petitioners, it is useful to refer to the facts narrated by one of the petitioners in Writ Petition Nos. 1842 to 1844 of 1999. The factual position is more or less common in all the other writ petitions.
3. First petitioner in Writ Petition No. 1842 of 1999 is a student of I Year MBBS. He has joined the Kempegowda Institute of Medical Sciences, Bangalore, during the academic year 1997-98. The said institute is affiliated to Rajiv Gandhi University. Petitioner had appeared for the I Year MBBS examinations conducted by the respondent-University some time in the month of October, 1998. Petitioner claims that he has secured I class marks in the first two papers namely, Anatomy and Physiology and he has failed in the Biochemistry paper by only one mark in the aggregate in the theory papers, though he has secured more than 50% in Biochemistry practicals. He claims, apart from educational excellence commendable confidence in his performance. He is surprised by the results of the examination declared by the University. He blames the University and pours out his grievance against the valuers of the answer scripts. He makes a pathetic appeal to this Court to secure the answer scripts from the University and peruse the same to clear the dark clouds and restore his confidence in the results declared by the University. Similar is the case of other petitioners. Some of them have failed by few marks and some of them have failed in one subject and some of them have failed in two or three subjects but the common prayer of these petitioners before this Court is to direct the respondent-University to correct the results of the petitioners in the subject of Biochemistry and other subjects in the examination held in the month of October, 1998.
4. Respondent-University has filed its detailed statement of objections resisting the relief sought for by the petitioners in these writ petitions and it is firm in its inflexible adhesion to the rules.
5. The University and its official were very obliging and were good enough to produce the answer scripts of all these petitioners before this Court for its perusal and satisfaction with regard to the valuation of answer scripts by the University valuers. These petitioners had an occasion to see their answer scripts and they were satisfied with the valuation of the answer papers and the totalling of the marks awarded by the valuers, but at the same time, they were also frustrated since the optimism they were cherishing in their mind was cruelly blasted after seeing their performance and they were ready to make their pace to the college campus once again, but their learned Counsel Sri Devadas was not prepared to accept the verdict, therefore he raises the following legal contentions for consideration of this Court to expose the 'heartless' acts of the University and its officials. He contends that the method of examination conducted by the respondent-University is wholly contrary to the regulations prescribed by the Medical Council of India. Therefore, submits that the methodology adopted by the University requires to be declared as not only illegal but invalid. The learned Counsel further contends that there must be a direction by this Court to the University to value/revalue all the papers of these petitioners who are before this Court in the manner and method suggested by the Medical Council of India in its regulations. The learned Counsel also submits that the regulations of the Medical Council of India are mandatory in character in view of the law declared by the Supreme Court in the case of Medical Council of India v State of Karnataka and Others. Therefore, the University had no other option but to strictly follow the regulations of the Medical Council of India. In support of these contentions, the learned Counsel strongly relies upon the observations made by the Supreme Court in the case of M.P. Oil Extraction v State of Madhya Pradesh.
6. The other contention canvassed by the learned Counsel for the petitioners is that the Examination Manual notified by the University prescribes the method of appointment, duties and responsibilities of the examiners. In that, the learned Counsel would submit that the examiner should value the answer scripts strictly in accordance with the scheme of valuation notified by the University in its Examination Manual. He also submits that when an examiner values the answer scripts, if he is of the view that the answers written by the student is incorrect then he necessarily has to award 'zero' marks and in the instant cases, the learned Counsel would submit that in the facing sheet of the answer scripts, the examiners have noted only 'dash', that indicates that they have not applied their mind to the answers written by the students. Therefore, he submits that the valuation method adopted by the valuers while valuing the answer scripts of these petitioners is contrary to the method prescribed by the Examination Manual. Therefore, submits that a direction should be issued to the respondent-University to value those answers, where the examiners have only indicated 'dash' on the facing sheet of the answer scripts.
7. The learned Counsel also submits that this Court should issue more or less similar directions as has been done by this Court in the case of M. Ajay Babu v Rajiv Gandhi University of Health Sciences, and then direct the University to apply the regulations of Medical Council of India and declare the results of these petitioners of I Year MBBS examinations.
8. Insofar as the first contention raised by the learned Counsel for the petitioners, the respondents in their statement of objections have stated as under:
"5. It is further submitted that a Division Bench of our High Court, in the case of State of Karnataka v A Citizen of India, had taken a view that the MCI Regulations are recommendatory in nature. The said judgment held the field when the ordinance was issued by the University. However, the Hon'ble Supreme Court in the case of Medical Council of India, supra, has again held that the MCI Regulations are mandatory in nature. The said decision was rendered by the Supreme Court on 16-7-1998. Therefore, the University had no other option but to follow its ordinance made under Section 35(2) of the RGUHS Act for the purpose of declaration of result. In similar circumstances, this Hon'ble Court in the case of H.K. Bippin Chandra v Registrar, at para 8 has held as follows:
The law with regard to mandatory nature of the Medical Council of India Regulations was settled by the Supreme Court in MCI case, supra, under its judgment delivered on 16-7-1998. But, the respondent-University had framed its own Ordinance governing the MBBS course for the academic year 1997-98, under notification dated 24-3-1998 i.e., much prior to the Supreme Court judgment. At that time, the issue was governed by the judgment of the Division Bench of this Court in W.A. No. 8413 of 1996, DD: 16-7-1997, wherein it was held that the MCI Regulations are merely recommendatory in nature. Subsequently, on appeal, the Division Bench judgment has been set aside by the Supreme Court in MCI case, supra".
6. Therefore, the petitioners are not justified in claiming that they are entitled for the benefit of the MCI Regulations, in view of the observations made in Bipin Chandra's case".
9. In resisting the second prayer of the petitioners, the respondent-University in their statement of objections at para 9 have stated as follows:
"9. The respondents deny the allegations made in the additional grounds. It is denied that the answer scripts of the petitioner is not valued. In some of the answer scripts, instead of using the expression 'O', the examiner used the expression '--' which means nil. However, it cannot be construed that the examiner has not valued a particular answer in an answer script".
10. Sri Nazeer, learned Counsel appearing for the respondent-University while reiterating the stand taken in the objection statement, further submits that the petitioners had appeared for examination pursuant to the ordinance issued by the University exercising its powers under Section 35(2) of the Act. Having appeared for the examination with their eyes wide open and having failed in one or two subjects, contends that they cannot turn back and submit, the methodology of the University in calculating the aggregate marks is contrary to the regulations of the Medical Council of India. In support of that contention, the learned Counsel relies upon the observations made by the Supreme Court in the case of Smt. Swaran Lata v Union of India and Others and the University of Cochin v N.S. Kanjoonjamma and Others.
11. Further, the learned Counsel also submits that the valuers of the answer scripts after applying their mind and being of the view that the students have not answered the particular answer in a proper way, have indicated only a 'dash' in the facing sheet of the answer scripts. Merely because the valuer has not awarded 'zero' marks as per the examinations manual, it does not mean that the valuer has not applied his mind while valuing the answer scripts of the petitioners. Further, the learned Counsel would submit that the Examination Manual only indicates the method that could be adopted by the valuer while valuing the answer scripts and the Examination Manual has no statutory force at all and in the absence of it, merely because the valuer has awarded a 'dash' it does not mean to say that the valuer has not applied his mind.
12. Having noticed the rival contentions of the learned Counsels for the parties to the lis, the question that requires to be considered and decided by this Court, is whether the method adopted by the University in calculating the aggregate regarding 50% of the aggregate marks to be secured by each of the students is contrary to the prescription prescribed by the Medical Council of India in their Regulations and whether petitioners who had appeared for the examinations and since they have failed in one or two subjects could come before this Court and contend that the Regulations of the University is contrary to the Medical Council of India Regulations. Secondly, whether indication of 'dash' on the facing sheet of the answer scripts means the valuer has not examined the answers in the answer scripts. Lastly, whether the valuer was obliged to write 'zero' on the facing sheet of the answer papers to those answers which according to him was not correctly written as required under the Examination Manual.
13. Let me take up the second issue first for consideration. The Vice-Chancellor of the University exercising his powers under Section 35(2)(d) read with Section 60 of the Rajiv Gandhi University of Health Sciences Act, 1994, has notified the ordinance pertaining to the examinations manual for the University. It is contended that the examiners who have valued the answer scripts have not followed the instructions prescribed in the manual. Before deciding this issue and for appreciating the arguments advanced at the bar by the Counsel for the parties, it is necessary in the first instance to have a look at the relevant clauses in the manual. The relevant clauses are called "Method of Appointment, Duties and Responsibilities of Examiners". Clause IV of the Examination manual reads as under:
"IV. Method of appointment, duties and responsibilities of examiners.--The Registrar (Evaluation) shall appoint examiners for each examination from among the list of eligible examiners approved by the Syndicate depending upon the need in each paper in consultation with the Chairman of the Board of Examiners and subject to other ordinances that govern these appointments. Persons whose names are not in the approved list shall not be appointed. However, under special circumstances after obtaining the permission of the Vice-Chancellor exceptions may be made and such cases shall be reported to the Syndicate at its next meeting.
The examiners shall maintain strict secrecy regarding their appointment and work in connection with the examinations.
The examiners shall value the scripts strictly in accordance with the scheme of valuation given by the paper setters. They shall get 10% of the scripts valued by the reviewer or additional reviewer appointed for the purpose.
The examiners shall value the answer scripts assigned to them only in Red Ink. Marks awarded for each answer or part shall be entered in Red Ink on the facing sheet of the answer script along the columns provided for them. After entering both in figures and in words the total marks obtained by the examinee, the examiner shall record his full signature and name in the column provided for on the facing sheet.
The examiner shall write 'ZERO' wherever the answer do not deserve any marks. The examiner shall total up the marks.
The examiner shall ensure that no answer or parts of any answer is left out in valuation".
(Since other clauses are unnecessary for the purpose of the case, the same is not extracted)
14. In the Examination Manual apart from others, the University provides the methods of appointments, duties and responsibilities of examiners. The manual envisages that the examiner shall write 'zero' wherever the answers do not deserve any marks. The examiner shall also total up the marks. In the instant cases, this Court had the occasion to see the answer scripts of these petitioners which was produced by the learned Counsel for the University at the directions of this Court. Some of the valuers have indicated only 'dash' on the facing sheet of the answer scripts where the valuer was of the view that the answers do not deserve any marks whatsoever. A contention is raised by the learned Counsel for the petitioners that mere writing of 'dash' on the facing sheet of the answer script would indicate that the examiner has not applied his mind while valuing the particular answer written by the student in the answer script. According to the learned Counsel, it was expected of the examiner/valuer to have written 'zero' wherever the answers do not deserve any marks. Since the same is not done, it is violation of statutory provisions and therefore a direction requires to be issued to value the answer scripts once over again.
15. The Manual of Examinations issued by the University exercising its powers under Section 35(2)(d) of the Act has statutory status having been framed under the Act and the manual requires to be treated as part of the Act and has necessarily interpreted as intra vires of the Act under which it has been issued. It is the breach of the mandatory statutory instruction is questioned. The valuers of the answer scripts are bound by the instructions issued in the said manual. Any deviation from the procedure prescribed in the Examination Manual would be violation of statutory provisions.
16. In the instant cases, the examiners while valuing the answer scripts have only awarded 'dash' to the answers, which according to them do not deserve any marks. This sort of awarding marks gives an impression that the examiners have not properly applied their mind while awarding marks. When the Examination Manual clearly mandates that the examiner shall write 'zero' wherever the answer does not deserve any marks, the examiners are bound by such instructions. Since the same has not been done, a direction requires to be issued to the University.
17. Nextly, keeping in view the observations made by the Apex Court in the case of Medical Council of India, the learned Counsel for the petitioners contends that Regulations on Graduate Medical Education framed by Medical Council of India is mandatory in character and therefore the respondent-University could not have framed any rules or regulations or ordinances contrary to the regulations prescribed by Medical Council of India. In that, learned Counsel would submit, in Chapter IV under the sub-heading "Distribution of marks to various disciplines", the Medical Council of India regulations prescribe that for declaration of result of a student in the first professional examination, the candidate should secure in each subject 50% in aggregate with a minimum of 50% in theory including orals and minimum of 50% in practicals but this procedure is not adopted by the University while declaring the results of these petitioners is the grievance and the complaint of the learned Counsel. In support of this submission, the learned Counsel further contends that the respondent-University was a party to the proceedings in the case of Medical Council of India and the law was declared by the Apex Court on 16-7-1998 and the University while conducting the examination in the month of October, 1998 should have suitably amended its regulations, ordinances, etc., and since the same has not been done, a direction requires to be issued to the University to ignore their statutory regulations/ordinances and declare the results of these petitioners by following the procedure prescribed by Medical Council of India regulations for declaration of results of first professional examination.
18. Having considered the submission of the learned Counsel for the petitioners, I am of the opinion that it has no merit for number of reasons. Firstly, the respondent-University had framed its ordinance exercising its power under Section 35(2) of the Act and had notified the same in the Official Gazette dated 26-3-1998 for the purpose of declaration of results of the University conducted examination. This exercise had been done by the University keeping in view the observations made by a Division Bench of this Court in the case of Citizen of India, supra. These petitioners had appeared for the examinations conducted by the University in October, 1998 knowing fully well the methodology that would be adopted by the University while declaring their results of the examinations. Having appeared for the examination and only because they have failed in one or two subjects, in my view, they cannot come and contend before this Court that the regulations of the University is contrary to Medical Council of India Regulations. The Supreme Court in a matter, which arose under Service Law Jurisprudence was pleased to observe that:
"The appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuasion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent 6 by direct recruitment through the Commission was invalid as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essential qualifications of the candidate called for interview or that respondent 6 was not eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of the advertisement, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds". (Swaran Lata's case, supra, para 62)
19. Similarly, the Supreme Court in the case of N.S. Kanjoonjamma, supra, was pleased to observe that:
"In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure".
20. In the present cases, petitioners knew what is the methodology that would be adopted by the University. Knowing fully well the procedure that would be applied by the University, they had appeared for their examinations. Only because they have failed in one or two subjects of the examinations conducted by the University, they are before this Court contending that the Regulations of the University is contrary to the Medical Council of India Regulations, which the University could not have framed. In my view, petitioners having appeared for the examination cannot turn round and then contend before this Court that the Regulations framed by the University is contrary to Medical Council of India Regulations and therefore, they are bad and invalid.
21. Secondly, in view of the provisions of Article 141 of the Constitution of India, the decision of the Apex Court will not only have a binding effect upon the Courts in India but also have binding effect upon the officers and all persons of India, whether they are party thereto or not. This well-settled legal position is not disputed by the respondents. The Apex Court in Medical Council of India's case, supra, was pleased to observe that the regulations of Medical Council of India are mandatory in nature. The regulations framed by Medical Council of India insofar as distribution of marks to First Professional Examination only prescribes, the minimum of marks to be secured by a candidate for declaration of results in the University conducted examination. In view of that, since the regulations are mandatory, if the University prescribes less than the minimum prescribed by Medical Council of India, it would be open to Medical Council of India not to recognise the degree awarded by the respondent-University. But if the University prescribes a higher percentage of marks to be secured by a candidate for declaration of his/her results in the University conducted examinations, in my opinion, it does not encroach upon the standard prescribed by the Medical Council of India Regulations. On the other hand, by laying down a higher standard for declaration of results, it only promotes and furthers the standard in the University. In view of this, it cannot be said that the Regulations framed by the University are contrary to the Regulations framed by Medical Council of India. Therefore, the results of the examination declared by the University for the current year is concerned it will stand. However, it is left to the University to amend/modify its methodology for declaration of results to fall in line with the Regulation of Medical Council of India for future years, if it so desires.
22. There is another way of looking at the problem. A learned Single Judge of this Court in Bipin Chandra's case, supra, was pleased to hold that the law with regard to mandatory nature of the regulations was settled by Supreme Court in Medical Council of India's case under its judgment delivered on 16-7-1998. But, the respondent-University had framed its own ordinance governing the MBBS Course for the academic year 1997-98 under notification dated 24-3-1998, much prior to Supreme Court judgment. Therefore, petitioners are not entitled for benefit of Medical Council of India Regulations. In view of the aforesaid decision of this Court, it is difficult for me to take any other view. It is now well-settled that the judicial decorum and certainty of law requires a Single Judge to follow the decision of another Single Judge. Even on this count, the contention of the learned Counsel for petitioners cannot be accepted.
23. Lastly, it is settled legal position that in matters relating to educational institutions, if two interpretations are possible, the Courts would be reluctant to accept that interpretation which would upset and reverse the decision taken by the educational authorities and would accept the interpretation made by such educational institutions. In view of all this, the second contention raised by the learned Counsel for the petitioners is rejected.
24. Lastly, the learned Counsel for the petitioners contends that this Court had to direct the University to declare the results of these petitioners by following the procedure prescribed in the Medical Council of India Regulations. In support of that contention, the learned Counsel Sri Devadas, invites my attention to the observations and directions issued by this Court in the case of M. Ajay Babu, supra. In my view, first and foremost, the facts situation in that decision was totally different and secondly, this Court had passed that order not in respect of those petitioners, who were before them but in the case of all the students, who had appeared for the examinations. In that view of the matter, the request made by the learned Counsel for the petitioners cannot be acceded to by this Court. Accordingly, it is rejected.
25. For the reasons stated, writ petitions are allowed in part. Rule made absolute only to that extent. A direction is issued to the respondent-University to value only those answers where the valuer has indicated 'dash' on the facing sheet of the answer scripts. Further, a direction is issued to the University to value these answer scripts strictly in accordance with the procedure prescribed in the Examination Manual. This exercise, the respondent-University shall do within 15 days from the date of receipt of a copy of this Court's order.
26. With these observations and directions, writ petitions are disposed off. Office is directed to furnish a carbon copy of this Court's order to both the learned Counsels for the parties to the lis. Ordered accordingly.