Karnataka High Court
Mr. Samarth S.S vs Rajiv Gandhi University Of Health ... on 9 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.16352 OF 2022 (EDN-RES)
C/W
WRIT PETITION NO.16606 OF 2022 AND
WRIT PETITION NO.20531 OF 2022
IN WP NO. 16352 OF 2022
BETWEEN
1. MR. SAMARTH S.S
S/O SATISH S R
AGE 21 YEARS,
UNI REG. NO.20M4370
R/O NO.434, 7TH 'B' CROSS
VINAYAKA LAYOUT,
NAGARABHAVI 2ND STAGE
BENGALURU - 560072.
2. MS. SANJANA K
D/O DR. KUMAR GOWDA S M V
AGE: 20 YEARS
UNI. REG. NO. 20M4000
R/O SAI NILAYA MUTHYLPETE
MULBAGAL
KOLAR - 563131.
3. MR. SYED TAHA ZAYD
S/O SYED MOHIUDDIN
AGE: 19 YEARS
UNI REG. NO. 20M6985
2
R/O No.401A, ESTEEM ENCLAVE
AREKERE 2ND CROSS,
BANNERGHATTA ROAD
BENGALURU - 560076.
4. MR. KARTHIK S KUMAR
S/O MR. K K SATHEESH KUMAR
AGE 20 YEARS
UNI. REG. 20M4120
R/O CHENGAT HOUSE,
CHANDERA MANIYAT
KASARGOD PO
KERALA - 673 005.
5. MR. RAKSHITH MUDEGOWDRU
S/O GIRISH MUDEGOWDRU
AGE 20 YEARS
UNI. REG. NO. 20M6196
R/O NO. 1637/10 SADASHIVA
1ST CROSS, 2ND MAIN,
TARALABALU
DAVANAGERE - 577 005.
6. MR. FARHAD VIRAF BHADHA
S/O MR. VIRAF F BHADHA
AGE 21 YEARS
UNI REG. NO. 20M3174
R/O BUILDING NO.15, FLAT NO.4,
OLD KHAREGHAT COLONY
HUGHES ROAD
MUMBAI - 400 007.
7. MR. VINAYAKA M M
S/O MALLIKARJUNA M K
AGE 24 YEARS
UNI. REG. NO. 20M6258
R/O NO. 2543/1, 06TH MAIN ROAD
M C C 'A' BLOCK,
3
DAVANAGERE - 577 004.
8. MS. ANKITA A
D/O ASHOK AMBALGI
AGE 22 YEARS
UNI. REG. NO. 19M5604
R/O MSK MILL, GDA LAYOUT
BEHIND CENTRAL BUS STAND
KALABURAGI - 585 103.
9. MR. VARUN HIREN PATHAK
S/O HIREN TARUN PATHAK
AGE 20 YEARS
UNI. REG. NO. 20M4454
R/O NO.28, SANGAM SOCIETY
CITY LIGHT ROAD
NUPOOR HOSPITAL
SURAT NR
GUJARAT - 395 007.
10 . MR. PRAJWAL BIRADAR
S/O BASAVARAJ BIRADAR
AGE 20 YEARS
UNI. REG. NO. 20M5293
H.NO. 3-104212 DARGA ROAD
SIDDESHWAR NAGAR, GAZIPUR
KALABURAGI - 585 102.
11 . MS. NIDHI SRIDHAR
D/O SRIDHAR N
AGE 21 YEARS
UNI REG. NO. 20M5883
R/O 1217/2, 2ND BLOCK,
BEL LAYOUT NANJAPPA ROAD
VIDYARANYAPURA
BENGALURU - 560097.
4
12 . MS. SAMITHA RANJOLKAR
D/O SHIVARAJ RANJOLKAR
AGE 20 YEARS
UNI. REG. NO. 20M7184
R/O H.NO. 10-3/9/2 PLOT NO.53
8TH CROSS, VITTAL NAGAR
KALABURAGI - 585 102.
13 . MS. LEKHASHREE G
D/O G S GOVINDAPPA
AGE 21 YEARS
UNI. REG. NO. 20M5104
R/O 1ST CROSS, THYAGARAJA COLONY
MULBAGAL
KOLAR - 563 131.
14 . MS. FIRDOSE SIDDIQ D
D/O B DADAPEER
AGE 20 YEARS
UNI. REG NO. 20M6146
R/O GANESH LAYOUT, 2ND MAIN,
5TH CROSS,
DAVANAGERE - 577 001.
15 . MS. RAKSHITHA K M
D/O MURALIDHARA K R
AGE 21 YEARS
UNI REG. NO. 20M6197
R/O GIRLS HOSTEL
S S INSTITUTE OF MEDICAL SCIENCES
AND RESEARCH CENTRE, SOG COLONY
SHRI RAMANAGARA
DAVANAGERE - 577 003.
16 . MS. AISWARYA T S
D/O SURESHBABU T V
AGE 20 YEARS
UNI. REG. NO. 20M4580
5
R/O THARAYIL HOUSE, ELTHURUTH
KODUNGALLUR PO
THRISSUR
KERALA - 620 680.
17 . MS. POOJA M REDDY
D/O MANJUNATH REDDY M M
AGE 22 YEARS
UNI. REG. NO. 20M3699
R/O NO. 1495, 18TH CROSS,
14TH MAIN, KUMARASWAMY LAYOUT
1ST STAGE
BENGALURU - 560078.
18 . MS. SHREYA
D/O CHANNABASAVARAJ K PATIL
AGE 20 YEARS
UNI. REG. NO. 20M1013
R/O H. NO. 8-4-45 BHER PETH NEAR
NATH TEMPLE, ALAND
KALABURAGI - 585 302.
19 . MS. NIKITA ARUNKUMAR KOLUR
D/O ARUNKUMAR KOLUR
AGE 20 YEARS
UNI REG. NO. 20M4335
ARUNKUMAR KOLUR DSP OFFICE
TELAGI ROAD, BASAVANA BAGEWADI
VIJAYAPURA - 586 203.
20 . MS. SREELAKSHMI RENJITH
D/O RENJITH THARAMMAL
AGE 20 YEARS
UNI REG. NO. 19M3865
R/O HARISREE VILLA NO.15
SHALIMAR GARDEN,
ATHANIKKAL
WESTHILL KOZHIKODE
6
KERALA - 673 005.
21 . MR. DRUPADH K P
S/O SUNIL K P
AGE 23 YEARS
UNI. REG. NO. 19M3779,
R/O SNEHATHEERAM (H) KURUNGOTTU
PADIKKAL KANNADIKKAL VENGERI
KOZHIKODE,
KERALA - 673 005.
22 . MS. ELSA AJU THOMAS
D/O AJU THOMAS
AGE 21 YEARS
UNI REG. NO. 19M3936
R/O A J LADIES HOSTEL
A J INSTITUTE OF MEDICAL SCIENCES,
MANGALORE - 575 004
23 . MR. M B SHREYAS
S/O M K BHASKAR
AGE 22 YEARS
UNI REG. NO. 19M4012
R/O NO. 1959, 1ST MAIN,
1ST CROSS, E BLOCK,
3RD STAGE, DATTAGAHALLY
MYSORE - 570 022.
24 . MS. HAFEEZAH KHANUM
D/O NOOR KHAN
AGE 22 YEARS
UNI. REG. NO. 19M0885
R/O ABOVE INDIAN CUMC
GANGAMMA TEMPLE ROAD,
M V EXTENSION
HOSKOTE
BENGALURU - 562114.
7
25 . MS. GOWRI M PATTANASHETTY
D/O MURUGESH P H
AGE 21 YEARS
REG. NO. 19M3650
R/O GIRLS HOSTEL,
BASWESHWARA MEDICAL
COLLEGE AND HOSPITAL
CHITRADURGA - 577 502
26 . MS. SHALINI S
D/O SHIVAPPA N
AGE 21 YEARS
UNI. REG. NO. 19M5529
R/O WARD NO.15, STREET NO.4,
VINAYAKA NAGAR, CHINTAMANI
CHIKKABALLAPURA - 563 125.
27 . MS. SUJATHA S CHAVAN
D/O MR. SHIVAPPA H LAMANI
AGE 21 YEARS
UNI. REG. NO. 19M1712
NO.7, 4TH CROSS, D-BLOCK
KRISHNA GARDEN, R R NAGAR
BENGALURU - 560098.
....PETITIONERS
(BY SRI ABHISHEK MALIPATIL, ADVOCATE)
AND
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH 'T' BLOCK, JAYANAGAR
BENGALURU - 560041
REP. BY ITS VICE CHANCELLOR.
2. THE REGISTRAR
RAJIV GANDHI UNIVERSITY
OF HEALTH SCIENCES,
4TH 'T' BLOCK, JAYANAGAR
BENGALURU - 560041.
8
3. NATIONAL MEDICAL COMMISSION
UNDER-GRADUATE MEDICAL EDUCATION BOARD
POCKET - 14 SECTOR 8,
DWARAKA PHASE-I
NEW DELHI - 110 077
BY ITS PRESIDENT/CHAIRMAN.
...RESPONDENTS
(BY SMT. FARAH FATHIMA, ADVOCATE FOR R1 AND 2
SRI N KHETTY, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT UNIVERSITY TO RECOMPUTE THE RESULTS OF
THE FAILED SUBJECTS OF THE MBBS (RS4) EXAMINATIONS OF
MAY, 2022 UNDERTAKEN BY ALL THE PETITIONERS BY
CONSIDERING THE HIGHEST MARKS AWARDED BY THE
EXAMINERS FROM AMONGST THE VALUATION MARKS
AWARDED, FOR THE PURPOSE OF COMPUTATION OF THE
RESULTS; IN TERMS OF THE DECISION OF THE ACADEMIC
COUNCIL OF THE RESPONDENT UNIVERSITY TAKEN ON
20.04.2022 AS PER ANNEXURE-E; IN THE ABSENCE OF ANY
ORDINANCE APPLICABLE TO THE PETITIONER STUDENTS
(RS4); AND TO ANNOUNCE THE RESULTS AFRESH WITHOUT
AND DELAY; AND ETC.
IN WP NO.16606 OF 2022
BETWEEN
MR. HRISHIK REDDY R
S/O RAJA REDDY
AGE 21 YEARS
UNI REG NO.20M3334
R/O 91/B KEMPAMMA DEVI ROAD
NEW THIPPASANDRA
BENGALURU-560 075.
...PETITIONER
9
(BY SRI ABHISHEK MALIPATIL, ADVOCATE)
AND
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH 'T' BLOCK, JAYANAGAR
BENGALURU-560 041.
2. THE REGISTRAR
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH 'T' BLOCK, JAYANAGAR
BENGALURU-560 041.
3. NATIONAL MEDIAL COMMISSION
UNDER- GRADUATE MEDICAL EDUCATION BOARD
POCKET-14, SECTOR
DWARAKA PHASE-I
NEW DELHI-110 077.
BY ITS PRESIDENT/CHAIRMAN.
...RESPONDENTS
(BY SMT. FARAH FATHIMA, ADVOCATE FOR R1 AND 2;
SRI N KHETTY, ADVOCATE FOR R3 (V/K NOT FILED))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT UNIVERSITY TO RECOMPUTE THE RESULTS OF
THE FAILED SUBJECTS OF THE MBBS(RS4) EXAMINATIONS OF
FEBRUARY, 2022 AND MBBS (RS4) EXAMINATIONS OF MAY,
2022 UNDERTAKEN BY THE PETITIONER BY CONSIDERING THE
HIGHEST MARKS AWARDED BY THE EXAMINERS FROM
AMONGST THE VALUATIONS MARKS AWARDED FOR THE
PURPOSE OF COMPUTATION OF THE RESULTS IN TERMS OF
THE DECISION OF THE ACADEMIC COUNCIL OF THE
TH
RESPONDENT UNIVERSITY TAKEN ON 20 APRIL, 2022 AS PER
ANNEXURE-D IN THE ABSENCE OF ANY ORDINANCE APPLICABLE
TO THE PETITIONER STUDENT (RS4) AND TO ANNOUNCE THE
RESULTS AFRESH WITHOUT ANY DELAY.
10
IN WP NO. 20531 OF 2022
BETWEEN
MS. MAANYA H
D/O MR. H R HARISH KUMAR
AGE 20 YEARS
UNI REG NO.20M4945
R/O NO.94, 10TH MAIN
I STAGE, I BLOCK
MANJUNATHNAGAR
BENGALURU-560 010.
...PETITIONER
(BY SRI ABHISHEK MALIPATIL, ADVOCATE)
AND
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH 'T' BLOCK, JAYANAGAR
BENGALURU-560 041.
2. THE REGISTRAR
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH 'T' BLOCK, JAYANAGAR
BENGALURU-560 041.
3. NATIONAL MEDIAL COMMISSION
UNDER-GRADUATE MEDICAL EDUCATION BOARD
POCKET-14, SECTOR
DWARAKA PHASE-I
NEW DELHI-110 077.
BY ITS PRESIDENT/CHAIRMAN.
...RESPONDENTS
(BY SRI M S DEVARAJU, ADVOCATE FOR R1 AND 2;
SRI N KHETTY, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE NOTIFICATION DATED 05.09.2022 WITH
11
NO.RGU/AUTH/24THCON/SYND/04/2022-23 NOTIFYING THE
"ORDINANCE / NOTIFICATION GOVERNING CENTRAL
ASSESSMENT PROGRAMME (CAP) FOR THEORY PAPER
ASSESSMENT OF ALL UNDER GRADUATE HEALTH SCIENCE
COURSES OF UNIVERSITY" ISSUED BY THE RESPONDENT
UNIVERSITY VIDE ANNEXURE-J; ONLY INSOFAR AS IT RELATES
TO THE COMMENCEMENT / COMING INTO FORCE FROM THE
EXAMINATIONS CONDUCTED ON OR AFTER 01.09.2022 AND TO
DECLARE THE ORDINANCE TO COME INTO FORCE FROM THE
EXAMINATIONS CONDUCTED ON OR AFTER 01.05.2022 IN
TERMS OF THE DECISION OF THE ACADEMIC COUNCIL OF THE
RESPONDENT UNIVERSITY TAKEN ON 20.04.2022 VIDE
ANNEXURE - E; AND ETC .
IN THESE PETITIONS, ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS" TODAY, THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions, petitioners are pursuing MBBS Course for the academic year 2019-2020 and 2020-2021 under Revised Scheme No.4 (RS4) at various medical colleges affiliated to respondent-Universty.
2. The petitioners had taken examination conducted by the respondent-University in May, 2022 and being aggrieved by non- implementation of the Resolution/decision of the Academic Council of the respondent-University dated 20th April, 2022 regarding the procedure to be adopted for valuation of the MBBS 12 Theory answer-scripts, have approached this Court, seeking writ of mandamus to respondent-University to re-compute the results of the failed subjects of the MBBS (RS4) examination of May, 2022, by considering the highest marks of two examiners for the purpose of computation of the results in terms of the decision of the Academic Council dated 20th April, 2022 (Annexure-E) to the writ petition.
3. It is the case of the petitioners that the Medical Council of India/National Medical Commission has amended the Regulations pertaining to the MBBS Course for the Academic year 2019-2020 onwards by Notification dated 04th November, 2019. In furtherance of the same, respondent-University had notified the MBBS Degree course having curriculum for Phase-I and Phase-II subjects and same was introduced for MBBS RS4 Examination. Under RS4 scheme, the scheme of examination, question paper pattern, model question papers, etc. have been modified and the petitioners are governed under the New MBBS RS4 scheme and as such, the respondent-University promulgated the "Ordinance Government Central Assessment 13 Program" (CAP) dated 01st February, 2021 for theory assessment of MBBS Course, in terms of Section 35 of the Karnataka Rajiv Gandhi University of Health Sciences Act, 1994 (for brevity hereinafter referred to as "Act') The Ordinance dated 01st February, 2021 was challenged before this Court in Writ Petition No.13626 of 2021 and connected petitions (MS. SAHANA KALASAGOND AND OTHERS v. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES) and this Court, by Order dated 07th October, 2021 set aside the ordinance dated 01st February, 2021 and directed the respondent-University to rectify the procedural irregularity in not securing the permission of the Academy Council before passing the Ordinance. It is the case of the petitioners that, upon setting aside the Ordinance dated 01st February, 2021 by this Court, thereafter, the issue was deliberated on 20th April, 2022 by the Academic Council with regard to procedure to be adopted for the purpose of evaluation and arrived at a conclusion that insofar as the examination conducted from 01st May, 2022, only the highest of the marks awarded by the examiners would be considered for computation of results. Minutes of the meeting dated 20th April, 2022 is 14 produced at Annexure-E. At this juncture, it is relevant to mention that the petitioners had appeared in the MBBS RS4 examination of May 2022 conducted by the respondent- University and most of the students in the respondent- University, including the petitioners herein, failed in theory subjects. The respondent-University had adopted the procedure that the marks obtained in Paper-I and II are calculated together and those who have secured 50% aggregate, have been declared 'Passed'. Five grace marks was also added to the respective subjects. Thereafter, the petitioners sought for copies of the answer-scripts from the respondent-University and came to know that the petitioners had failed in the examination after additional valuations being conducted. The difference between the highest and lowest marks awarded after two valuations is ≥15% between the examiners and therefore, it is case of the petitioners that the respondent-University has not adopted the procedure as directed by the Academic Council by calculating the highest of the two valuation marks awarded by the examiners. Hence, petitioners have approached this Court in the present writ petitions.
15
4. On service of notice, respondents entered appearance and filed statement of objection contending that pursuant to the order of this Court dated 07th October, 2021 (MS. SAHANA KALASAGOND AND OTHERS) passed in Writ petition No.13626 of 2021 and connected petitions, based on the recommendations of the Academic Council, meeting of the Syndicate was held and new Ordinance dated 05th September, 2022, as per Section 35 of the Act, was passed and therefore, the petitioners are governed by the Ordinance dated 05th September, 2022 and not the previous Ordinance dated 01st February, 2021. Accordingly, respondent-University sought for dismissal of writ petitions.
5. Heard Sri Abhishek Malipatil, learned counsel appearing for the petitioners; Smt. Farah Fathima and Sri M.S. Devaraj, learned counsel appearing for the respondent-University; and Sri N. Khetty, learned counsel appearing for the respondent- National Medical Commission.
6. Sri Abhishek Malipatil, learned counsel appearing for the petitioners, reiterated the grounds urged in the writ petitions and argued that non-implementation of the resolution dated 20th 16 April, 2022, as directed by this Court in Writ Petition No.13626 of 2021 (MS. SAHANA KALASAGOND AND OTHERS) in the absence of "Ordinance promulgated for valuation of theory answer-scripts (RS4)" is illegal and arbitrary in nature and requires to be interfered with in these petitions. Emphasising on these aspects, Sri Abhishek Malipatil, argued that this Court, specifically directed the respondent-University to place the Scheme of valuation before the Academic Council and thereafter pass Ordinance in terms of Section 35 of the Act read with Notification dated 04th November, 2019 passed by respondent No.3 and therefore, he contended that the proceedings held by the Academic Council has to be given effect to for the students who had appeared for examination during May, 2022 and therefore, sought for interference of this Court. He further contended that the order dated 27th July, 2022 passed in Writ Petition No.13312 of 2022 and connected petitions (Annexure- R2), is applicable for MBBS RS5 scheme and therefore, same is not applicable to the facts on hand. He further argued that the observation made by this Court in Writ Petition No.14605 of 2022 and connected petitions decided on 06th September, 2022 17 is not applicable to the case of the petitioners and therefore he contended that the petitioners are entitled for relief of the resolution dated 20th April, 2022 of the Academic Council since the examination for MBBS RS4 scheme was held in the month of May 2022.
7. Per contra, Smt. Farah Fathima and Sri M.S. Devaraj, learned counsel appearing for respondent-University, argued that the petitioners are not entitled for the relief sought for, as this Court, by order dated 07th October, 2021 passed in Writ petition No.13626 of 2021 and connected petitions, set aside the Ordinance dated 01st February, 2021 and thereafter, the respondent-University has passed the Ordinance dated 05th September, 2022 and the said Ordinance is not made retrospective in operation and therefore, writ petitions deserve to be dismissed in limine. Inviting the attention of the Court to the Ordinance dated 05th September, 2022 (Annexure-R1) Smt. Farah Fathima pointed out to the Reference in the said Ordinance and further argued that the recommendation of the Academic Council dated 20th April, 2022 was not notified under 18 the Ordinance as mandated under Section 35 of the Act and therefore, the Ordinance dated 05th September, 2022 is the Ordinance that is applicable for the petitioners herein. She further contended that similarly placed students of MBBS RS4 batch who have failed in May 2022 examination, had approached this Court in Writ Petition No.14605 of 2022 and connected petitions and this Court, by order dated 06th September, 2022, dismissed the batch of petitions and hence, sought for similar orders in these petitions.
8. In the backdrop of these contentions raised by the learned counsel for the parties, the legal issue involved in these writ petitions are required to be answered with relevant provisions of the Enactments. Indian Medical Council Act, 1956 (for short hereinafter referred to as the "IMC Act") has been enacted with an object of providing for reconstitution of the Medical Council of India, and the maintenance of a Medical Register for India and for matters connected therewith. The IMC Act was amended by way of Notification dated 04th November, 2019 and in exercise of the powers conferred by Section 33 of 19 the said Act, the Board of Governors, in supersession of Medical Council of India with previous sanction of the Central Government, made the following regulation to further amend the "Regulations on Graduate Medical Education, 1997". Clause (2) of the amended Regulations, reads thus:
"2. (i) The Regulations of Graduate Medical Education, 1997 from clause 2 to 14 contained in Chapters I to V and the Appendices and Schedules appended therein shall be included as Part I of the Regulation. These provisions shall be the governing Regulations with respect to batches admitted in MBBS courses until academic year 2018-19.
(ii) Part II containing the following Chapters shall be added to the Regulations on Graduate Medical Education, 1997 that shall be the governing Regulations with respect to batches admitted in MBBS course from academic year 2019-20 onwards."
9. The above provision of Part-II Regulations shall apply to MBBS Course starting from academic year 2019-20. The object of the Part-II Regulations is to create an "Indian Medical Graduate" possessing requisite knowledge skills, attitudes, values and responsive, to achieve national goals. Chapter VI of 20 the Part-II Regulations provide for Assessment; Clause 11.1 provides for Eligibility to appear for professional examination; Clause 11.2.1 provides for direction to the Universities relating to conduct of examinations; Clause 11.2.9 provides of appointment of Examiners; Clause 11.2.9(j) provides that "all theory paper assessment should be done as central assessment programme (CAP) of concerned University". The State Universities, like Rajiv Gandhi University of Health Sciences in the present case, is to establish and incorporate a Health University for the purpose of ensuring proper and systematic instruction, teaching, training and research in Modern Medicine and Indian systems of Medicine in the State. Section 35 of the Act empowers the Syndicate to make ordinances and amend or repeal the same. Section 35(3)(b) of the Act stipulates that in the matter relating to conduct or standard of examination or conditions of residence of Students, the Academic Council of the University could be consulted. Section 35(4) of the Act makes it clear that every ordinance made by the Syndicate shall have effect from such date as the Syndicate specifies. Ordinance dated 15th June, 2012 promulgates, average of best of two out 21 of three valuation marks or average of best of four out of five valuation marks for final computation of results in Under- graduate and Post-graduate medical examinations respectively.
10. This Court, in the case of DR. MENAKA MOHAN AND OHTERS v. REGISTRAR (EVALUATION), RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES made in writ petition No.48194-98 of 2018 and connected matters, held that the Ordinance of the year 2017 is not enforceable and therefore, directed the University to conduct examination in terms of 2012 Ordinance. Therefore, wherever there is a difference of ≥15% in the valuation of two examiners, the same is required to be sent for third valuation. Thereafter, the Ordinance governing Under- graduate evaluation of answer-scripts 2019 was promulgated on 29th March, 2019 and the said 2019 Ordinance was questioned before this Court in the case of SRI NEELESH MEHTA v. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES AND ANOTHER in Writ Petition No.31335 of 2019 and connected matters and this Court, by order dated 18th August, 2020, quashed the 2019 Ordinance and in the meanwhile, the Medical Council of India 22 amended its Regulations from the Academic Year 2019-20, as discussed above. Thereafter, the Ordinance governing valuation of answer-scripts of MBBS course (RS-III Scheme) promulgated on 13th October, 2020 was extensively considered with regard to digital valuation system relating to the answers in the nature of multiple choice, and directed the Universities to adopt the system of 'Model Key Answers' in all the examinations of all the courses. Further, as this Court quashed the Ordinance notified on 13th October, 2020, thereafter, the new Ordinance was promulgated on 01st February, 2021 by the respondent- University governing 'Central Assessment Programme' for theory assessment of MBBS Course as per the amended provisions under MCI Act. This Court, by order dated 07th October, 2021 passed in Writ Petition No.13626 of 2021 and connected matters (MS. SAHANA KALASAGOND AND OTHERS) quashed the Ordinance dated 01st February, 2021 and as such, directed the respondent-University to apply the provisions of the Ordinance of 2012. However, in the case of VISHWESHWARA C. (supra), this Court, upheld the Ordinance dated 01st February, 2021. It is also to be noted that the learned Single Judge of this Court, in 23 the case of MS. PRAGYA v. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES made in Writ petition No.9004 of 2022, by its order dated 28th April, 2022, held that the Order dated 17th December, 2021 in the case of VISHWESHWARA C (supra) is per-incuriam and as such, followed the judgment of this Court in WRIT PETITION No.13626 of 2021 Connected petitions (SAHANA KALASAGOND). Thereafter, the respondent-University has issued another Ordinance on 05st September, 2022. In the meanwhile, this Court, by order dated 06th September, 2022 made in the case of SAHANA SHIVANAGOUDA MARIGOUDAR v. RAJIV GANDHI HEALTH UNIVERSITY OF HEALTH SCIENCES (Writ Petition No.14605 of 2022 and connected matters), rejected the contentions raised by the petitioners therein seeking additional valuation and thereby directed the respondent-University to conduct third valuation in respect of the petitioner therein in terms of the Ordinance dated 15th June, 2012, issued by the respondent-University on the ground that the new Ordinance dated 05th September, 2022 cannot be made applicable retrospectively. It is also relevant to mention that the question before this Court in the case of JORDAN RIDHYA RASQUINHA 24 AND OTHERS v. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES AND OTHERS made in Writ Petition No.13312 of 2022 and connected petitions decided on 27th July, 2022 is pertaining to RS-III (Annexure-R2) and the judgment in Writ petition No.13626 of 2021 and connected petitions disposed of on 07th October, 2021, has been rendered insofar as MBBS RS4 batch (petitioners herein). Operative portion of the said judgment reads thus:
"(1) The impugned Ordinance dated 01.02.2021, is quashed and set aside. Before promulgating the next Ordinance, the respondent-University shall ensure that the matter is placed before its Committee of Academic Council and act according to the advise of the Academic Council.
(2) Consequently, applying the provisions of the Ordinance of 2012, wherever there is difference of 15% or more between the marks awarded by the two evaluators, the same shall be sent for third valuation. In case where third valuation was already done pursuant to the impugned Ordinance, nevertheless, revaluation shall be conducted even in such cases, in terms of the Ordinance of 2012. This shall apply not only to the petitioners, but to all students, similarlysituated.25
(3) Consequent to the revaluation, if a student becomes eligible to be promoted to the second year course, such student shall be permitted to attend to the second year classes.
(4) Such students shall be provided with make-up classes. However, if such students are found wanting on account of attendance to write the semester examination of the second year, alternative examination shall be conducted for such students after the minimum requirement of attendance is met.
(5) Such students who become eligible for the second year course shall be treated on par with the present second year students.
(6) The revaluation shall be conducted and results shall be announced as expeditiously as possible and at any rate within a period of three weeks from the date of receipt of a certified copy of this order.
(7) In case of all other students who are not successful even after the revaluation, they shall be entitled for one more additional opportunity, beyond the four prescribed attempts.
Ordered accordingly."
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11. On careful examination of the observation made by this Court in the aforementioned matters, the same would indicate that the impugned Ordinance dated 01st February, 2021 was quashed, however, respondent-University was directed to place the matter before the Committee of Academic Council and act according to the advise of Academic Council before promulgating the next Ordinance. The discussion made in the said judgment would fortify the fact that in view of quashing the Ordinance dated 01st February, 2021, there is no Ordinance governing the MBBS RS4 scheme students and therefore, I find force in the submission made by the learned counsel appearing for petitioners that the Resolution dated 20th April, 2022 by the Academic Council shall be made applicable to the petitioners herein i.e. MBBS RS4 Scheme. This Court set aside the Ordinance dated 01st February, 2021 only on the ground that the said Ordinance was promulgated without placing the same before the Academic Council. The observation made at paragraph 20 of the order is extracted hereinbelow:
"20. It is unfortunate that no material is placed before this Court to show that the issue was placed 27 beforethe Academic Council and the Academic Council deliberated upon the issue. The decision in Parents Association case was rendered on 19.12.2003. Thereafter several Ordinances have come and gone. But, other than contending that the rocedure prescribed has been followed by placing the matter before the Academic Council and thereafter Ordinances were promulgated, no material is forthcoming to show that the Academic Council deliberated upon the issue threadbare."
(emphasis supplied)
12. The above judgment was rendered on 07th October, 2021 and thereafter, the respondent-University placed the material before the Academic Council, in terms of the Order of this Court referred to above. Matter was deliberated on 20th April, 2022 and in the 170th Syndicate held on 07th June, 2022, it was resolved that the matter was deliberated before the Academic Council, Syndicate and Senate; and the Vice- Chancellor would take decision in the matter at the earliest. This would clearly establish the fact that pursuant to the order of this Court, the respondent-University had taken a decision. The relevant portion of the deliberation made on 20th April, 2022 reads as under:
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"Deliberation: the Registrar (evaluation) briefed the members regarding the multiple judgments in the court proceedings related to Examination valuation. In order to reduce the number of students approaching the court for the valuation related matters, it was requested to come up with an ordinance governing the valuation pattern to be followed in concurrence with the respective apex body valuation guidelines and with the best practices followed across the country in other universities. The ordinance be made so that it is applicable from the forth coming examinations scheduled across faculties form 1st May, 2022 onwards, irrespective of the scheme of examination or date of admission."
The members deliberated on the issue and the following resolutions were made.
"All the answer scripts of the under graduate, Post Graduate, Super Speciality and all other courses in Medical/ Dental/ Ayush/ Physiotherapy/ Nursing/ Pharmacy/ Allied Health Sciences shall be subjected to two evaluations by eligible examiners of the respective faculties through the digital valuation system. The highest of the total marks awarded by the two evaluators for the paper which is rounded off to the next highest shall be considered for computation of results. The marks awarded and the results so declared shall be final and under no circumstances further valuation shall be entertained."
This shall be applicable from the forth coming examinations scheduled across faculties from 1st May 2022 onwards, irrespective of the scheme of examination or date of admission."
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13. Having taken note of the judgments referred to above and the conclusion reached out by the Academic Council, I am of the view that the highest of the total marks awarded by the two valuators shall be considered for computation of the results. In that view of the matter, in the absence of any ordinance promulgated for the conduct of the valuation of the answer- scripts of MBBS RS4 scheme, the respondent-University ought to have considered the deliberations made before the Academic Council for the purpose of the examinations held for MBBS RS4 course till the promulgation of the new Ordinance on 05th September, 2022. Suffice to say that the respondent-University ought to have adopted the procedure, as mentioned in the said deliberation that the decision to take the highest of the two valuations shall be made applicable to the examinations commencing from 1st May 2022, irrespective of the scheme of the examination.
14. I am also aware about the settled principle that interference of this Court under Article 226 of the Constitution of India is limited insofar as educational matters are concerned, 30 however, having taken note of the grievance urged by the petitioners, pointing out the illegality committed by the respondent-University by applying Ordinance of their choice contrary to the judgment of this Court in Writ Petition No.13626 of 2021 and connected petitions (MS. SAHANA KALASAGOND AND OTHERS) wherein this Court, specifically directed the respondent-University to rectify the mistake while passing the Ordinance without placing the same before the Academic Council and further the Academic Council had deliberated the matter before the commencement of May 2022 examination and had come to a conclusion to pass the students who had secured highest marks of the two valuers and therefore, I am of the opinion that the arguments advanced by the learned counsel appearing for the respondent is contrary to the directions issued by this Court in writ petition No.13626 of 2021 and connected petitions disposed of on 07th October, 2021 and therefore invites interference of this Court in the peculiar facts and circumstances of the case. In that view of the matter, I am of the considered opinion that the petitioners herein have made out a case for interference in respect of the procedure adopted by the 31 respondent-University for MBBS RS4 scheme. Hence, I pass the following:
ORDER
1. Writ petitions are allowed;
2. Writ of mandamus is issued to the respondent-
University to re-compute the results of the students of MBBS (RS4) Examination conducted during May, 2022 in terms of the decision of the Academic Council of the respondent-University dated 20th April, 2022;
3. The respondent-University is directed to complete the entire exercise of re-computing the results within two weeks from the date of receipt of this order and announce the results in view of the observation made above;
4. Consequent upon revaluation of the result, if the student becomes eligible to be promoted to the second year or third year course, such student shall be permitted to attend the classes of second year or third year of MBBS classes, as the case may be;
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5. Such students shall be provided with make-up classes. However, if such students are found wanting on account of attendance to write the annual examination of second year or third year, alternative examination shall be conducted for such students, after the minimum requirement of attendance is met.
6. Such students who become eligible for the second year or third year course, shall be treated on par with the present second year or third year MBBS Course students.
SD/-
JUDGE lnn