Madras High Court
Dr.R. Geetha vs Dr.M.G.R. Medical University on 10 October, 2011
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.10.2011 CORAM: THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.NO.17259 Of 2011 & M.P.Nos.1 & 2 of 2011 Dr.R. Geetha ... Petitioner Versus 1. Dr.M.G.R. Medical University, rep.by its Registrar, Anna Salai, Guindy, Chennai 600 032. 2. The Indian Medical Council, rep.by its Secretary, Pocket-14, Sector-8, Dwaraka Phase-I, New Delhi. 3. Dr. Anantharaman, Assistant Professor, Institute of Community Medicine, Madras Medical College, Chennai ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus, calling for the records of the first respondent relating to the publication of results of the petitioner's registration No.20085401 dated 23.6.2011 to the course of M.D. Community Medicine insofar as it relates to the practical exam and viva voce and quash the same and consequently direct the first respondent to conduct the practical and viva voce exam by a qualified internal examiner as provided under the P.G.Medical Education Regulation 2000. For Petitioner : Mr.D.Krishnakumar For 1st Respondent : Mr.R.Vijayakumar for Dr.B.Cheran For 2nd Respondent : Mr.V.P.Raman For 3rd Respondent : No appearance O R D E R
By consent of the petitioner and the contesting respondents, the writ petition is taken up for final disposal.
2. The prayer in the writ petition is to issue a writ of certiorarified mandamus, calling for the records of the first respondent relating to the publication of results of the petitioner's registration No.20085401 dated 23.6.2011 to the course of M.D. Community Medicine insofar as it relates to the practical exam and viva-voce and quash the same and consequently direct the first respondent to conduct the practical and viva-voce exam by a qualified internal examiner as provided under the P.G. Medical Education Regulation 2000.
3. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner, after passing M.B.B.S. Degree, joined in the Tamil Nadu Government Service in the year 2001 and she worked at Primary Health Centre in Erode District. She joined in D.G.O. course at Kasturibai Gandhi Hospital, which is attached to Madras Medical College and she came out as rank holder in the year 2007.
(b) Petitioner was selected for M.D. Course in Community Medicine and joined at Madras Medical College in the year 2008. In the theory examinations conducted after first year course of study, she scored first rank. According to the petitioner, she was an outstanding student throughout her studies.
(c) After completion of three years M.D. Course as per The Dr.M.G.R. Medical University norms, candidates should appear for theory examinations in four papers and for practical examination. The practical examinations are conducted for two days, which include viva-voce. On day one of practical examination, in the forenoon session, candidates should do long case and short case as well as viva-voce with case sheet and in the afternoon session, statistics examination with three sums is held and each sum carries 20 marks. On the second day in the forenoon pedagogy and Objective Structured Practical Examination (OSPE) are conducted. These tests carry 50 marks. In the afternoon, viva-voce is conducted, which carries 50 marks.
(d) For conducting practical examination, internal and external examiners are appointed. Under PG Medical Examination Regulations, 2000 framed by the Indian Medical Council, no person shall be appointed as internal examiner in any subject unless he/she has three years experience in the concerned subject as PG teacher. The term P.G. Teacher is defined in Rule 11(1) of the amended regulation, which states that only those faculty members who possess total eight years of teaching experience of which five years should be after P.G. qualification and thereafter the said Teacher is treated as P.G. Teacher.
(e) The petitioner appeared in the theory papers and took part in the practical examination. One Dr.Umadevi, HOD, Community Medicine, K.M.C, Chennai, was initially appointed as one of the examiner for petitioner's practical examination, who is the seniormost recognised PG teacher in the subject of Community Medicine in the State of Tamil Nadu. But suddenly the third respondent, who completed PG degree only in the year 2007, who is not a P.G. Teacher qualified to be an internal examiner, was appointed as internal examiner in the place of Dr.Umadevi.
(f) The third respondent functioned as internal examiner in the practical examination and viva-voce. It is alleged that the third respondent gave only seven minutes time though the allotted time is ten minutes for the practical examination. It is alleged in the affidavit that after completion of the practical examination, the third respondent collected a sum of Rs.12,000/- from each students stating that he has to give gifts to the external examiners during the pedagogy session.
(g) The PG results were published in the internet of the first respondent University. The petitioner obtained first rank in theory papers. However, she was shown as failed in the practical and viva-voce. In the desertation petitioner obtained 71 marks out of 100.
(h) The petitioner verified the qualifications and experience of the third respondent and came to know that he is not qualified for appointment as internal P.G. examiner. Petitioner also submitted a representation before the first respondent on 13.7.2011 and pointed out the illegality in declaring the petitioner as failed in the practical examination as well as in viva-voce due to the vindictive attitude of the third respondent and requested the first respondent to do the needful. No action being taken petitioner filed this writ petition with the above prayer.
(i) The contentions raised in the writ petition are that the third respondent is not eligible to be appointed as internal examiner to conduct practical and viva-voce for PG degrees as he has not satisfied the eligibility prescribed under the PG Medical Education Regulation, 2000, which is binding on the University; that the third respondent, who completed PG degree in Community Medicine in the year 2007, has gained only four years of teaching experience as Assistant Professor after obtaining PG degree and therefore he is not qualified to be appointed as an internal examiner; that the third respondent is not a recognised PG teacher and unless a P.G. teacher is having three years of experience in PG cadre in the concerned subject, he or she cannot be appointed as an internal examiner and therefore the conduct of practical examination by an unqualified internal examiner is illegal and liable to be set aside; that due to the action of the first respondent in appointing the third respondent as an internal examiner for conducting practical examination M.D.Community medicine and viva-voce, petitioner who is an outstanding student, though secured first rank in the theory paper is declared failed, which causes great hardship and mental agony to the petitioner; and that, only at the instance of the third respondent the University replaced Dr.Umadevi, HOD Community medicine, KMC, Chennai, and appointed the third respondent as the internal examiner to ensure that the petitioner fails in the practical examination.
4. The writ petition was posted for admission on 22.7.2011. The learned counsel appearing for the petitioner was directed to serve notice to the respective standing counsel for respondents 1 and 2 and private notice was ordered to the third respondent. Private notice to the third respondent was served on 27.7.2011 and proof of service along with postal acknowledgement card was filed on 1.8.2011 with USR No.5961. In spite of personal allegations made against the third respondent, who has been impleaded by name, the third respondent has not chosen either to appear before this case or to file counter affidavit contraverting the personal allegations made against him.
5. The first respondent has filed counter affidavit contending as follows:
(i) The petitioner joined in M.D.Community Medicine in Madras Medical College during the academic year 2008-2009. Petitioner's name was registered in the University and as per 2004-2005 regulations, the petitioner was permitted to appear in part-I examination at the end of first year i.e, in March, 2009. Petitioner appeared for Paper-II examinations held in May, 2011 i.e, Clinical/oral, practical examinations, conducted on 23.5.2011 and 24.5.2011 at the Madras Medical College.
(ii) Petitioner has failed in Clinical examination and the marks scored by the petitioner are as follows:
Subjects Marks Scored by Petitioner Minimum Pass Marks Paper I 55/100 50 Paper II 67/100 50 Paper III 68/100 50 Clinical 81/200 100 Viva Voce 44/100 50 Dissertation 71/100 50 In the viva-voce petitioner scored 44 marks out of 100 and the minimum prescribed marks for getting pass is 50 out of 100. Thus, the petitioner is lacking six marks in viva-voce to get a pass.
(iii) According to the first respondent, third respondent is having three years of teaching experience in the concerned subject and therefore the third respondent is qualified for appointment as an internal examiner. It is also stated in the counter affidavit that initially the following four persons were appointed as Board of Examiners for conducting M.D. Community Medicine practical examinations held on 23.5.2011 and 24.5.2011:
Dr.Uma Devi, M.D., Convenor 10 years teaching Professor, experience Kilpaul Medical College, Chennai.
Dr.Vasantha Elango, M.D., Member 17 years teaching Professor and H.O.D., (Internal) experience Coimbatore Medical College Dr.Ashwini Kumar, M.D., Member 8 years teaching Associate Professor (External) experience Manipal Dr.K.N.Prasad, M.D., Member 15 years teaching Professor (External) experience Kuppam, Andhra Pradesh.
(iv) On 20.5.2011 a telegram has been received from the Convenor stating that due to her sickness, she is proceeding on medical leave and declining her examinership and at that time the third respondent, who was working as Assistant Professor in Madras Medical College was appointed as an internal examiner, who also sent an acceptance form stating that he has five years of teaching experience after completing P.G. course in Community Medicine (M.D).
(v) The practical examination was conducted in the laboratories or hospital wards in the presence of both the internal and external examiners, having vast teaching experience in the concerned subject.
(vi) The objects of the practical examination is to assess the candidate's proficiency and skills, conduct of experiments and interpretation of data and logical conclusion. Clinical cases should preferably include common diseases, which the medical student is likely to come in contact in practice. Candidate's skill in interpretation of common investigative date, x-rays, identification of specimens, ECG, etc., also were evaluated during the practical examination. If the candidate failed to diagnose the patients by interpreting the common investigative data, x-rays, identification of specimens and ECG etc., he is unfit for practice in medical profession. The examination shall be organised on the basis of grading or marking system to evaluate and certify candidate's level of knowledge, skill and competence at the end of the training which are mandatory for passing the whole examination.
(vii) In the examination held in May, 2011, along with the petitioner, five other candidates (four regular and two arrear candidates) have wrote the examinations in MMC in the presence of the above Board of Examiners. There was no vindictive attitude towards the candidates in the practical examinations. Out of the six candidates, four candidates have passed their examinations. Only the petitioner and the another candidate, who appeared as an arrear candidate, failed in the examinations held in May, 2011.
(viii) Petitioner has not raised any allegation against the examiners either at the time of writing examination or subsequently and she has also not challenged the appointment of third respondent immediately after completion of the examination. After declaration of results the petitioner is raising various allegations and if the examination is cancelled now it will affect other four candidates who have passed in the examinations conducted in May, 2011. It is also stated that if re-examination is ordered to be conducted it will become a wrong precedent.
6. The second respondent has filed separate counter affidavit stating that the Medical Council of India is a body constituted under the provisions of the Indian Medical Council Act, 1956 and has been given the responsibility of discharging the duty of maintenance of higher standard of Medical Education in the country. The Medical Council of India framed statutory regulation under section 33 of the Act with prior approval of the Central Government prescribing minimum required infrastructural, teaching facilities, including conduct of examinations in U.G., P.G., and Diplomas as well as Super Speciality courses, without which there cannot be proper teaching, training and assessment in the medical course. The said regulations are statutory in character and are binding all concerned to strictly follow. The provision relating to the appointment of qualified internal examiners for P.G.Course are prescribed in PG Medical Education Regulation, 2000. As per the amended notification dated 20.10.2008 it is stated that no person shall be appointed as internal examiner in any subject unless he/she has three years experience as recognised P.G.Teacher in the concerned subject. For external examiners, he or she should have minimum six years of experience as recognised P.G. teacher in the concerned subject. According to the said regulation, a person possessing a total of eight years of teaching experience, of which at least five years should be as an Assistant Professor gained after obtaining P.G. Degree, and such Assistant Professor completed five years of service after passing P.G. be recognised as P.G. Teacher. For appointment as internal examiner, one must possess three years experience as recognised P.G.teacher in the concerned subject. It is specifically stated in paragraph 7 of the counter affidavit that the third respondent has only four years of teaching experience after completion of P.G. Degree in Community Medicine and therefore he is not qualified to be appointed as external examiner for M.D.Community Medicine. It is also pointed out in the counter affidavit that the first respondent has not stated the number of years of teaching experience of third respondent as Assistant Professor after obtaining P.G.degree.
7. Petitioner has filed reply affidavit stating that the faculty members of the Department of Community Medicine, MMC have been sending representations to the first respondent University stating that the third respondent is not qualified to be appointed as internal examiner and he shall not be appointed as P.G.internal examiner. It is further stated that one Dr.Mary Romola, a recognised P.G.Teacher with nine years of teaching experience after completing M.D. course was available to be appointed as internal examiner. Similarly, Dr.Srinivasan, Professor in the Department of Community Medicine at Stanley Medical College was also available to be appointed as internal examiner. If Dr.Uma Devi expressed her difficulty in functioning as internal examiner due to her sickness, anyone of the above two P.G. Teachers could have been appointed as internal examiner. It is also stated that clinical examination consists of two parts i.e, 20 marks are awarded for question and answer type and 30 marks are awarded based on performance. The said 30 marks are to be awarded by four internal examiners i.e., 7.5 marks each. The petitioner is lacking six marks alone to get minimum pass in M.D. Community Medicine.
8. The learned counsel for the petitioner submitted that the petitioner being a meritorious student, both at the UG level and PG level, having secured first rank in theory examination, has been wrongly assessed in the practical examination by an unqualified internal examiner viz., the third respondent, who was illegally appointed by the first respondent. The first respondent is bound to follow the P.G.Medical Education Regulation, 2000 while appointing external and internal examiners. The third respondent having passed P.G. degree only in the year 2007, is having less than four years of teaching experience after passing P.G. degree and therefore he is only an Assistant Professor having less than four years of experience after passing P.G. degree. The appointment of the third respondent is in violation of P.G. Medical Education Regulation, 2000, and the third respondent's appointment as internal examiner to conduct practical and viva-voce is erroneous and the award of mark by the third respondent to the petitioner in practical/viva-voce is a nullity. The learned counsel also submitted that the petitioner having secured 44 out of 50 marks in the viva-voce, she is lacking only six marks and each examiner could award 7.5 marks after assessment. The third respondent was given discretion to award 7.5 marks and due to the ineligibility of the third respondent to function as internal examiner, he is not competent to award any mark to the petitioner and therefore the petitioner is entitled to get 7.5 marks awardable by the 4th examiner or in the alternative, petitioner is entitled to appear for special practical examination, which can be ordered to be conducted by four qualified internal examiners, who are satisfying the eligibility norms as per the P.G. Medical Education Regulation, 2000. The learned Counsel also cited a judgment of this Court made in W.P.No.17012 of 2009 dated 25.11.2009 (P.J.M.,J.) in support of his contentions.
9. The learned counsel for the first respondent University on the other hand submitted that the regulation prescribed by the Medical Council of India states that a P.G.Teacher having three years experience can be an examiner and the third respondent has satisfied the said requirement as he has passed P.G. Degree in 2007 and therefore the appointment of the third respondent as an internal examiner is valid. The learned counsel also submitted that the petitioner having participated in selection and having failed, cannot challenge the appointment of the third respondent as internal examiner and if the examination is cancelled, four candidates who have passed in the examination conduction in May, 2011 would be affected and therefore the writ petition has to be dismissed. The learned counsel also cited the judgment of the Supreme Court reported in 1993 Supp 3 SCC 9 (V.K.Sood v. Secretary, Civil Aviation) and the decision of the Division Bench of this Court in W.A.No.1541 of 2006 & 1151 of 2007 dated 14.11.2007 in support of his contentions. The learned counsel also submitted that no writ appeal was filed against the order dated 25.11.2009 of P.J.M.,J., relied on by the petitioner.
10. The learned Counsel appearing for the Medical Council of India submitted that in the counter affidavit filed by the first respondent, the third respondent's experience as Assistant Professor after completing P.G. degree is not specifically stated and as per the contention of the petitioner, the third respondent passed P.G. degree only in the year 2007 and therefore he has not completed five years of teaching experience after passing P.G. degree, which is a requirement for treating him as P.G. Teacher and he must possess three years P.G. Teacher experience for appointment as an internal examiner as per the P.G.Medical Education Regulation 2000. The learned counsel also submitted that all universities which conduct medical education courses shall follow the MCI norms/regulations not only for admissions but also for conducting examinations and award of degrees and the said issue is already settled.
11. As the third respondent has chosen not to appear and explain about his qualification and experience, this Court directed the learned Counsel for the first respondent to furnish the service and other details of the third respondent and the same was produced. The said service details are countersigned by the Dean of Madras Medical College on 23.3.2010.
12. I have considered the rival submissions made by the learned counsel for the petitioner and the respective learned Standing Counsel for the respondents 1 and 2.
13. The points arise for consideration in this writ petition are whether the third respondent is qualified for being appointed as an Internal Examiner to conduct practical/internal examination for M.D.Community Medicine held on 23.5.2011 and 24.5.2011 and whether the petitioner's result is materially affected due to the presence of the third respondent as one of the Internal Examiner.
14. The relevant service details of the third respondent furnished by the learned counsel for the first respondent are as follows:
SERVICE PARTICULARS
1.
Name of the Medical Officer Dr.V.V.Anantharaman, Assistant Professor, Institute of Community Medicine, Madras Medical College, Chennai 3.
2. Educational and other qualifications B.Sc MD (CM) DD
3. Date of Birth 15.11.1956
4. Date of Entry into Government Service 06.02.1989
5. Date of Regularisation 06.02.1989
6. Date of Declaration of Probation 21.02.1991
7. Date of Retirement 30.11.2014 SERVICE DETAILS S.No. Designation & Station From To
1. Assistant Surgeon, Govt. Primary Health Centre, Ayyampet 06.02.1989 F.N. 15.07.1994
2. Assistant Surgeon, Govt. Primary Health Centre, Thiruvonam 22.07.1994 09.10.1995
3. Assistant Surgeon, Govt. Primary Health Centre, Melattur 27.10.1995 18.05.1998
4. DD, PG in Madras Medical College, Chennai-3 29.5.1998 24.3.2000
5. Senior Assistant Surgeon, Govt. Primary Health Centre, Thelungan Kudikadu 25.03.2000 19.06.2000
6. Senior Assistant Surgeon, Govt. Hospital, Thirukkattupalli 20.06.2000 24.01.2001
7. Senior Assistant Surgeon, Govt. Hospital, Rameswaram 27.02.2001 31.12.2002
8. Senior Assistant Surgeon, Govt. Hospital, Pudukkottai 09.01.2003 15.06.2004
9. MD., PG.ICM, Madras Medical College, Chennai-3 16.06.2004 30.03.2007
10. Tutor, ICM, Madras Medical College, Chennai 3.
31.03.2007 30.03.2008
11. Assistant Professor, ICM, Madras Medical College, Chennai-3 31.03.2008 Till date.
15. In the counter affidavit filed by the first respondent it is stated that Dr.Uma Devi, MD, having ten years of teaching experience, Dr.Vasantha Elango, M.D., having 17 years of teaching experience; Dr.Ashwini Kumar, M.D., having 8 years of teaching experience and Dr.K.N.Prasad, M.D., having 15 years of teaching experience were initially appointed as internal examiners for conducting M.D.Community Medicine Practical examinations. However, the said Dr.Uma Devi, M.D., Convenor, due to her sickness proceeded on medical leave and declined her examinership. Therefore, the third respondent was appointed as an internal examiner due to emergent situation.
16. It is the contention of the petitioner that the third respondent is not qualified to be appointed as an internal examiner. It is an admitted fact that the third respondent has passed M.D. Community Medicine in the year 2007. The first respondent rightly understood the implications of P.G. Medical Education Regulations, 2000, as amended and initially appointed four fully qualified persons and no examiner appointed initially was having less than eight years of teaching experience in toto and all of them were possessing five years of teaching experience after possessing P.G.degree and worked as P.G.teachers for more than three years.
17. In the reply affidavit filed by the petitioner it is stated that two other qualified candidates were available viz., Dr.Mary Romola, a recognised P.G.teacher with nine years of teaching experience after completing M.D.course and Dr.Srinivasan, who was also eligible for being appointed as internal examiner and anyone of them could have been appointed. The learned counsel for the second respondent specifically relying on the regulation submitted that a teacher for being appointed as Internal Examiner for P.G. Examinations, must pass P.G.degree and must have five years experience after passing P.G. and must have worked for three years as P.G.Teacher.
18. The P.G.Medical Education Regulation, 2000 as amended upto December 2010 is filed in the typed set of papers. In the said regulation Clause 11(1) deals with staff-faculty, which reads as follows:
"11.1 Staff-Faculty
(a) A clinical department or its unit training candidates for broad or super specialities, shall have a minimum of three full time faculty members belonging to the concerned disciplines of whom one shall be a Professor, one Associate Professor/Reader/ and one Astt. Professor/Lecturer, possessing the qualification and experience prescribed by the Medical Council of India;
Provided that the second or subsequent additional unit may be headed by an Associate Professor.
Of these faculty members only those who possess a total of eight years teaching experience, out of which at least five years teaching experience as Assistant Professor/Lecturer gained after obtaining Post Graduate degree, shall be recognised as Post Graduate teachers."
As per amended Regulation, dated 20.10.2008, namely Guidelines on appointment of Post Graduate Examiners, 'No person shall be appointed as an internal examiner in any subject unless he/she has three years experience as recognised P.G.Teacher in the concerned subject. For external examiners, he/she should have minimum six years of experience as recognised P.G.Teacher in the concerned subject.'
19. On perusal of the above regulation and the counter affidavit filed by the Medical Council of India, it is evident that faculty members are those, who possess a total of eight years of teaching experience, out of which at least five years teaching experience as Assistant Professor/Lecturer gained after obtaining P.G.degree and such person alone are to be recognised as P.G. Teacher. A recognised P.G. Teacher in the concerned subject having three years experience as P.G.Teacher alone is qualified and entitled to be appointed as Internal Examiner for P.G.Degree course. In other words, no person shall be appointed as an Examiner in any subject unless he fulfills the minimum requirements for recognition as a P.G.Teacher as laid down by the MCI.
20. The third respondent having passed P.G.degree i.e, M.D. Community Medicine only in 2007, will complete five years of Assistant Professor experience only in 2012 and cannot at all be qualified for being appointed as internal examiner for P.G. degree course. In any event, he is not having three years experience as P.G.Teacher and even now he is working only as Assistant Professor in Madras Medical College.
21. In W.P.No.17012 of 2009 dated 25.11.2009 (P.Jothimani, J.) the very same P.G.Medical Education Amendment Regulation, 2000 as amended upto 2008 came up for consideration. The question arose in the said case was regarding appointment of an external examiner in Super Speciality Course (Mch). The learned Judge held that the regulation framed by MCI is binding, which has to be mandatorily followed for appointment of examiners by the first respondent University. The appointment of External Examiners in the said case was found to be in violation of the statutory regulation. It was held that the same will certainly affect the very conduct of examination and the same cannot be treated as procedural violation. In the said case, the learned Judge having found that the external examiners appointed were not qualified as per MCI regulations, the examination conducted insofar as the said candidate (writ petitioner) was held illegal and a direction was issued to the first respondent University to take immediate steps to conduct fresh examination in respect of the subject viz., Clinical Mch (Peadiatric surgery) by appointing necessary external and internal examiners as per the statutory regulations framed by MCI within a period of eight weeks. In the said judgement the learned Judge repelled the contention of the first respondent University that under emergent circumstances the External Examiner was appointed, as pleaded in this case.
22. The decision cited by the learned counsel for the first respondent that in academic matters the Courts shall not interfere and it is the academicians to find out whether a person is qualified or not to be appointed as Examiner, is a general proposition. In a given case, if it is proved that a person appointed as Examiner is not qualified as per the norms/regulations, certainly this Court can interfere as the said examiner is not eligible to be appointed as he lacks qualification. It is the prerogative of the experts to appoint examiners from among qualified persons. It is an admitted position in this case that the third respondent was appointed as internal examiner at the last moment due to the sickness of Dr.umadevi. Therefore participation of the petitioner in the examination will not take away her right to challenge the very appointment of the third respondent on the ground of lack of qualification. If a person appointed is fully qualified, the examinee/person attending examination cannot say who should be appointed as examiner.
23. The norms/guidelines issued by MCI for medical education and examinations are binding on the Universities is no longer res integra. The Supreme Court in the decision reported in AIR 1999 SC 2894 : (1999) 7 SCC 120 (Preeti Srivastava v. State of Madhya Pradesh) in para 55 held that, "55. ........... the Universities have to be guided by the standards prescribed by the Medical Council and must shape their programmes accordingly. The Scheme of the Indian Medical Council Act, 1956 does not give an option to the Universities to follow or not to follow the standards laid down by the Indian Medical Council. ............... The Universities must necessarily be guided by the standards prescribed under S.20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. ..............."
In para 57 it is again held thus, "57. In the case of Medical Council of India v. State of Karnataka ((1998) 6 SCC 131 : AIR 1998 SC 2423) a Bench of three Judges of this Court has distinguished the observations made in Nivedita Jain (AIR 1981 SC 2045) (supra). It has also disagreed with Ajay Kumar Singh v. State of Bihar (1994 AIR SCW 2515) (supra) and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala v. T.P. Roshana ((1979) 1 SCC 572 : AIR 1979 SC 765) (SCC at p. 580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning."
(Emphasis Supplied) The Division Bench of this Court in the decision reported in 2006 WLR 185 (Bharat Guthikonda & 2 Others v. The Pondicherry University) held that the examination regulations issued by MCI is bound to be followed by the Universities. In the decision reported in (2007) 10 SCC 201 (Maharashtra University of Health Sciences v. Paryani Mukesh Jawaharlal) the Honourable Supreme Court had an occasion to consider Regulation 12(4) of the MCI Regulations, 1997 framed under Section 33 of the MCI Act, 1956 regarding distribution of marks to various disciplines and heads of passing in each subject in respect of examinations in M.B.M.B course and the Maharashtra University issued different norms for declaring pass. In para 15 it is held thus, "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 Institute, Medical Council of India v. State of Karnataka and Preeti Srivastava (Dr.) v. State of M.P.) 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."
This Court in the decisions reported in 2011 WLR 481 (P.Anand v. The Tamil Nadu Dr.M.G.R. Medical University) considered a similar issue in prescribing separate marks for practical in ortho clinical to get a pass in Surgery paper in Final M.B.B.S course prescribed by the respondent University was valid as it is in conflict with MCI Regulations 1997, which states that aggregate marks of 50% i.e, both theory and practical is sufficient to declare pass. This Court held that the University's decision is invalid as it is in violation of MCI Regulations. Thus, it is beyond doubt that the first respondent University is bound to appoint examiners for P.G. Examinations in terms of MCI Regulations as amended on 20.10.2008. The third respondent being not eligible to be appointed as an internal examiner, the examination conducted to the petitioner is not valid.
24. The right of an Examinee to assess his/her performance by a qualified examiner as prescribed by statute cannot be denied. How the qualified examiner awarded marks in a given answer or answers, though cannot be questioned, unless there is a provision for revaluation/scrutiny the examinee can definitely has a right to get his/her performance assessed by a qualified Examiner and denying the said right will have disastrous consequences. If in a given case even after establishing the said fact the Court is not looking into the grievance and not rendering justice to the affected person, the object of judicial review in administrative actions will be a teasing illusion and a promise of unreality.
25. A perusal of the marks obtained by the petitioner in viva-voce shows that the petitioner is awarded 44/100 marks and the minimum marks required is 50/100. Thus, the petitioner is lacking six marks to get a pass. It is an admitted position that four Internal Examiners are given discretion to award 7.5 marks each. If the petitioner is lacking more than 7.5 marks, one can safely conclude that the presence of the third respondent as an Internal Examiner has not materially vitiated the result of the petitioner. Here, the lack of marks being only six, I am of the view that appointment of the third respondent as an Internal Examiner has materially affected the prospect of the petitioner in getting pass marks in viva-voce examination. There cannot be any dispute in the proposition that every student is having the legal right to get teaching from fully qualified Teachers and every examinee is entitled to get assessment of their performance in all examinations by fully qualified Examiners. The School authorities as well as the University authorities are not expected to deny the said right to the students to preserve the excellence in education.
26. In the light of the above findings, I am of the view that the petitioner is entitled to succeed in both the issues. The result of the petitioner declared by the first respondent insofar as practical and viva-voce in M.D.Community Medicine declared on 26.3.2011 is hereby quashed. The first respondent is directed to conduct re-examination to the petitioner by appointing qualified Internal Examiners, in respect of practical and viva-voce alone, within a period of two weeks from the date of receipt of copy of this order and publish her results within one week thereafter.
The writ petition is allowed with the above direction. No costs. Connected miscellaneous petitions are closed.
Index : Yes/No Internet : Yes/No 10-10-2011 vr To 1. The Registrar, Dr.M.G.R. Medical University, Anna Salai, Guindy, Chennai 600 032. 2. The Secretary, Indian Medical Council, Pocket-14, Sector-8, Dwaraka Phase-I, New Delhi. N.PAUL VASANTHAKUMAR, J. vr Pre-Delivery Order in W.P.NO.17259 OF 2011 10-10-2011