Andhra HC (Pre-Telangana)
Mohd. Nayeemuddin Ghouri ... vs Govt., Of A.P., Rep.By Its Pril., ... on 13 March, 2014
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO.
WRIT PETITION No.17686 OF 2010
13-03-2014
Mohd. Nayeemuddin Ghouri S/o.Mohd.Qayyaum Ghouri,Student, Deccan College of
Medical Sciences,Hyderabad ..... PETITIONER.
Govt., of A.P., Rep.by its Pril., Secretary to Govt., Health, Medical & Family
Welfare (E1) Depat., Secretariat Buildings, Hyd., and four thers..RESPONDENTS.
Counsel for Petitioner : Sri K.G.K.Prasad and K.G.Ravi Kanth.
Counsel for Respondents.: Sri Prabhakara Rao for R3
<GIST :
>HEAD NOTE :
?Cases referred :
1. 2010 ILRDLH-20-335
2. (1997) II Supreme Court Cases 410
3. 2006 TLRAJ-0-806
4. 2005(2) Supreme Court Cases 10
5. 2002 TLMPH-O-152
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
Writ Petition No.17686 of 2010
ORDER:
Heard the learned counsel for the petitioner and the learned Standing Counsel for the 3rd respondent. None appeared for the respondents 1, 2, 4 and 5.
The 5th respondent issued Notification on 24-07-2009 inviting applications for admission to 150 seats in the first year M.B.B.S. course for the academic year 2009-10 under A & B category seats. In response to the said Notification, the petitioner submitted his application form and the same was scrutinized by the 5th respondent. The 5th respondent vide its letter dated 28-07-2009 forwarded the merit list of candidates to the 3rd respondent. The 5th respondent thereafter conducted counselling on 29-07-2009 for all the 150 seats and granted admission to the petitioner for the first year M.B.B.S. course.
The petitioner secured 63% marks in Intermediate examination and 49.833% marks in the Botany, Zoology, Physics and Chemistry. It is his case that A.P. Educational Institutions (Regulation of Admissions) Order 1947, Rule 5(2) and Rule 6(3) stipulates that calculation of any fraction above 0.5 shall be treated as 1. Since the petitioner secured 49.833% marks in the optional subjects in the intermediate examination, he is eligible for admission into the first year M.B.B.S. course. He approached the 2nd respondent seeking clarification and the 2nd respondent vide letter Rc.No.27640/ME-C/2009 dated 28-07-2009, clarified and communicated its decision to the 3rd respondent. The petitioner thereafter started attending to the classes from 01-08-2009 onwards and he has completed the entire first year training programme and curriculum. He appeared for the internal examinations in Anatomy, Physiology and Bio-Chemistry subjects. The 5th respondent has forwarded the internal marks obtained by the petitioner together with attendance particulars to the 3rd respondent. While so, on 11-08-2009 the 5th respondent addressed a letter to the 3rd respondent enclosing the registration fee for 150 students admitted by it under A&B categories with a request to the 3rd respondent to register the names of the candidates for the first year M.B.B.S course for the academic year 2009-2010. The petitioner has paid the first year examination fee on 08-06-2010 within the time prescribed and the examinations were about to commence from 20-07-2010. But, however, the 3rd respondent, without assigning any reason, made an endorsement on 20-07-2010 stating that the petitioner is not eligible to appear for the first year M.B.B.S. examinations, which are scheduled to be commenced from 20-07-2010, and in those circumstances, the petitioner filed the present writ petition challenging the action of the 3rd respondent in issuing the endorsement, dated 20-07-2010.
The 3rd respondent filed a counter affidavit stating that there was no dispute with regard to the facts. The 3rd respondent stated that the management of the 5th respondent College contrary to G.O.Ms.No.272, dated 10-07-2006 gave admission to the petitioner under B category seat even though the petitioner did not possess requisite eligibility of 50% marks in optional subjects. Therefore, the petitioner is not eligible for admission into M.B.B.S. course. The 3rd respondent already intimated to the 5th respondent by letter dated 03-09-2010 that the admission of the petitioner was not approved by the 3rd respondent. The admission of the students into M.B.B.S. course is governed by the Medical Council of India Regulations and G.O.Ms.No.272, dated 10-07-2006. The provisions of the A.P.Educational Institutions (Regulation of Admissions) Order, 1974 have no application for the admission into M.B.B.S. first year course.
In support of his contention, the learned counsel for the petitioner relied on a decision in RAVINDER SINGH Vs. MEDICAL COUNCIL OF INDIA , wherein the contention of the Medical Council of India that 49.7% marks secured by the petitioner therein in +2 examinations should not be permitted to be rounded off to 50% was rejected by the Delhi High Court and the said decision has a direct relevancy on the issue involved in the present case.
He also relied on a decision in STATE OF PUNJAB AND ANOTHER Vs. ASHA MEHTA , wherein the action of the Public Service Commission rounding off marks of 32.5% to 33% was upheld.
He also relied on a decision in RAJUL ARORA Vs. JAI NARAIN VYAS UNIVERSITY , wherein the issue of rounding off marks was also considered and 44.83% marks secured by the candidate were considered as 45% for the purpose of admission into L.L.B. course.
He also relied on a decision in STATE OF UTTAR PRADESH and ANOTHER Vs. PAWAN KUMAR TIWARI AND OTHERS , wherein fraction of one-half or more should be treated as 1 and less than one-half should be ignored. However, in case of reserved vacancies it may lead to unconstitutionality and so the said principle should not be applied in case of reservations.
He also relied on a decision in DHARMENDRA KUMAR SHRIVASTAVA VS. JIWAJI UNIVERSITY, GWALIOR , wherein the Madhya Pradesh High Court held that 49.7% marks secured by a candidate in higher secondary grade has to be rounded off to 50% and the Rules in question do not debar rounding off the figure.
On the other hand, learned counsel for the respondent relied on the Regulation issued by the Medical Council of India with regard to Graduate Medical Education, 1997. Regulation 5 (i) reads as follows:-
In case of admission on the basis of qualifying examination under Clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in Clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above.
He also relied on G.O.Ms.No.272, dated 10-07-2006, wherein in the eligibility criteria for admission was mentioned and it reads as follows:-
(b) Educational Qualifications: The candidates should pass two years intermediate examination (10 + 2 pattern) or equivalent examination with Physics, Chemistry, Botany, Zoology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry, Botany and Zoology on the qualifying examination.
In the instant case, it is not in dispute that the petitioner secured 49.833% in Botany, Zoology, Physics and Chemistry and the only point is whether the said marks obtained by the petitioner has to be rounded off to 50% in order to make him eligible for admission to M.B.B.S. course.
In view of the various decisions relied on by the learned counsel for the petitioner cited supra, there is no doubt with regard to rounding off the marks and therefore 49.833% marks can be rounded off to 50% and it does not violate the Regulations framed by the Medical Council of India or G.O.Ms.No.272, dated 10-07-2006.
In the circumstances, the Writ Petition is allowed and the Government is directed to issue necessary general clarification to all the Educational Institutions in order to obviate such situation in future. No order as to costs. Miscellaneous petitions pending, if any, shall stand closed.
___________________________ A.RAMALINGESWARA RAO, J Date: 18-03-2014