Madras High Court
Miss.Aheli Bal vs The Director on 25 April, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2014
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.21814 of 2013
Miss.Aheli Bal .. Petitioner
-vs-
1. The Director
JIPMER
Puducherry 605 086
2. Medical Council of India
represented by its Secretary
Sector 8
New Delhi .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the first respondent to treat the marks secured by the petitioner in the second semester of the M.B.B.S. Course in the subject of Anatomy as a pass.
For Petitioner :: Ms.R.Vaigai for Mr.R.Syed Mustafa
For Respondents :: Mr.Mohan Parasaran
Solicitor General of India
assisted by Mr.M.T.Arunan for R1
Mr.V.P.Raman for R2
ORDER
Ms.Aheli Bal has come to this Court seeking a prayer for issuance of a writ of mandamus, to direct the first respondent-JIPMER, Puducherry to treat the marks secured by her in the second semester of the M.B.B.S. Course in the subject of Anatomy as a pass and to pass further orders.
2. Ms.R.Vaigai, learned counsel for the petitioner argued that Ms.Aheli Bal, a brilliant student who got the 27th rank in the medical entrance examination on all India basis, was selected purely on merits by the first respondent- Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Puducherry and after joining the M.B.B.S. Course, she cleared the first semester and also wrote all the subjects in the second semester examination held between 7th June, 2013 and 19th June, 2013. But the provisional list was published on 23.7.2013 in the notice board of the first respondent showing that the petitioner failed in the subject of anatomy, although she secured more than 50% in aggregate in all the subjects. When the petitioner enquired with the first respondent, she was informed that so far as the practical part of anatomy subject is concerned, when the minimum mark is 50 and for practical internal assessment, the minimum mark is 11, however, the aggregate marks should be 65, but the petitioner having got the minimum of 50 marks in practical and 13 marks under practical internal assessment, miserably failed to get the aggregate of 65 marks, as she secured only 63 out of 130 marks. Hence, two marks less the minimum pass percentage of 50% has made her to fail in the subject of anatomy. However, so far as the theory part of anatomy subject is concerned, the petitioner secured 120 out of 220 marks, which is more than 50% of marks. Moreover, even in the aggregate for the subject of anatomy as a whole, the petitioner has secured 183 out of 350 marks, which is also more than 50% marks. As a matter of fact, when the requirement prescribed by the Medical Council of India under the Graduate Medical Education Regulations, 1997 states that a candidate securing in each of the subjects 50% in aggregate with a minimum of 50% in theory including oral and the minimum of 50% in practical/clinical to be given a pass in the subject, while so, the petitioner, having secured the total of 183 marks out of 350 marks in the subject of anatomy as a whole as against 50%, should be declared as pass in the subject of anatomy, since the petitioner has complied with the benchmark prescribed by the Medical Council of India under the Graduate Medical Education Regulations, 1997. But to her shock and surprise, the first respondent informed about the concept of break system stating that as per Regulation 7(3) of the Graduate Medical Education Regulations, a failed candidate could attend the subsequent semester only on clearing the failed subject in the subsequent examination after six months and till then, would not be permitted to attend the next semester. In view of that, the petitioner was denied permission to attend the third semester classes that had commenced on 29.7.2013 without any written order to that effect. Therefore, the petitioner and her father made representations in writing on 27.7.2013 and 30.7.2013 with a request to the first respondent to consider the claim on the aforesaid facts and permit the petitioner to attend the classes along with her original batch to continue her studies. Even though the petitioner applied for re-totalling by paying Rs.500/- towards the same on 1.8.2013, there was no response. Under these circumstances, the petitioner was constrained to come to this Court.
3. Continuing her arguments, Ms.R.Vaigai further contended that when the first respondent has given both the maximum marks and the minimum marks to be secured in the subject, as per the following table, Theory Theory-IA Oral Theory Total Practical Prac.-IA Total Grand Total Max. Marks 160 40 20 220 100 30 130 350 Min. Marks 64 14 0 110 50 11 65 175 the petitioner, as against the minimum marks of 64 in theory paper, has secured 92 marks. In theory internal assessment, as against the minimum marks of 14, the petitioner has got 18, in oral, has secured 10 marks and all these put together comes to 120 marks in theory. So far as practical is concerned, as against the minimum marks of 50, the petitioner has secured exactly 50 in practical, as against the minimum marks of 11 in practical internal assessment, the petitioner has secured 13 and instead of securing 65 i.e., 50%, she has secured only 63 marks, although the grand total comes to 183 marks out of 350 marks. Although the petitioner secured 63 marks instead of 65 in practical, the aggregate marks of 183 secured by the petitioner clearly shows that she has more than 50% in aggregate. Therefore, the first respondent cannot fail the petitioner in the subject of anatomy. Even as per the regulations of the Medical Council of India, a student must secure at least 50% marks in internal assessment in order to be eligible to appear for the final university examination. In other words, it is only when a student secures 50% marks, he/she becomes eligible to be admitted for the final university examination. Indeed, the marks obtained in the internal assessment ought not to be treated under a distinct head or subject. This could be seen from the language of Regulation 12(2)(iv) the Medical Council of India Regulations, which states that weightage for the internal assessment shall be 20% of the total marks in each subject. However, in spite of the marks obtained for theory in the internal examination, those marks will be added to the marks obtained in theory for the final examination and similarly the marks relating to practicals of internal assessment will be added to the marks obtained in practicals at the final examination. Therefore, when the Medical Council of India Regulations stipulate that there is no requirement that a student must secure 50% aggregate in the internal assessment as a distinct head, the petitioner should be allowed to move forward to the third semester. Adding further, it was contended that as per Regulation 12(2)(iv) of the Medical Council of India Regulations, when a candidate must obtain 50% aggregate with minimum 50% marks in theory and 50% marks in practicals, the petitioner, having secured more than 50% in aggregate in the subject of anatomy read with Regulation 7(3) of the Graduate Medical Education Regulations, 1997, should be construed as a passed candidate.
4. Continuing her arguments, it was stated that when the petitioner has complied with the bench mark outlined by the Medical Council of India, the same cannot be diluted by the first respondent on the ground that the curriculum of 2008-09 is applicable to the students pursuing medical education in JIPMER. Adding further, it was stated that when the Hon'ble Apex Court in the case of Annamalai University represented by its Registrar v. Secretary to Government, Information and Tourism Department and others reported in (2009) 4 SCC 590 has clearly held that the provisions of the University Grants Commission Act shall prevail over the Indira Gandhi National Open University Act, by placing heavy reliance on the above said judgment, it was stated that the provisions of the UGC Act are binding on all universities whether conventional or open, since its powers are very broad. Moreover, when the regulations framed by the UGC in terms of clauses (e), (f), (g) & (h) of sub-section (1) of Section 26 are of wide amplitude, they apply equally to open universities as also to formal conventional universities. Therefore, in the matter of higher education, it is necessary to maintain minimum standards of instructions and such minimum standards of instructions are required to be defined by the UGC and the standards and co-ordination of works or facilities in the universities must be maintained. In view of that, the powers of University Grants Commission under Section 26(1)((f) & (g) are very broad in nature. On the basis of the aforesaid judgment, learned counsel for the petitioner stated that when the petitioner has secured the marks as per the regulations issued by the Medical Council of India to get a pass, any other higher standards fixed by the first respondent-JIPMER, which are running contrary to the Medical Council of India Regulations, are no longer permissible in view of the above ratio laid down by the Hon'ble Apex Court.
5. Concluding her arguments, Ms.R.Vaigai further pleaded that when the Apex Court, while considering a similar conflict between the provisions of the UGC Act and the IGNOU Act, had given its final verdict that in the matter of higher education, in order to maintain minimum standards of instructions, the powers of UGC are very broad in nature, hence, the provisions of the UGC Act are binding on all universities whether conventional or open, the UGC Act shall prevail over the IGNOU Act, but the peculiar stand taken by the first respondent in this case that the non obstante clause under Section 24 of the Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry Act, 2008 will prevail over the Indian Medical Council Act, 1956, cannot be accepted and as such, the affidavit dated 30/31.8.2013 seeking to challenge the curriculum 2008-09 onwards issued by the Director of JIPMER so far as the chapter of examination and the distribution of marks are concerned as ultra vires the JIPMER Act should be accepted, resultantly, a direction should be issued to the first respondent to treat the marks secured by the petitioner in the second semester of the M.B.B.S. Course in the subject of anatomy as a pass.
6. Mr.Mohan Parasaran, learned Solicitor General of India appearing for the first respondent-JIPMER, replying to the above submissions, submitted that the Jawarharlal Institute of Postgraduate Medical Education and Research, Puducherry Act, 2008 (for short, the JIPMER Act) was enacted to develop the JIPMER as one of the institutions of national importance with a specific object to develop patterns of teaching in undergraduate and postgraduate medical education in order to demonstrate a high standard of medical education. The second purpose of bringing the said Act is to attain self-sufficiency in postgraduate medical education to meet the country's needs for specialists and medical teachers with a further object to bring together, as far as possible, in one place educational facilities of the highest order for the training of personnel in all important branches of health activity. With a view to promote all the above objects specified under Section 12, the Institute was given special power to specify courses and curricula for both undergraduate and postgraduate studies.
7. Adding further, learned Solicitor General further submitted that the non obstante clause provided in Section 23 of the JIPMER Act makes the position of the Institute clear that the JIPMER shall have the power to grant medical, dental, nursing degrees, diplomas and other academic distinctions and titles under this Act, notwithstanding anything contained in any other law for the time being in force. One another Section 24 also makes the position of the Institute independent and away from the control of the Medical Council of India, inasmuch as the non obstante clause under the said section also states that notwithstanding anything contained in the Indian Medical Council Act, 1956, the Dentist Act, 1948, the Indian Nursing Council Act, 1947, the medical degrees and diplomas, dental degrees and nursing degrees granted by the Institute under this Act shall be recognised medical qualifications for the purpose of the Act and shall be deemed to be included in the schedules to the respective Acts. Therefore, the degrees and diplomas granted by the JIPMER on the basis of holding examinations with the curriculum adopted for both the undergraduate and postgraduate studies need not be once again recognised by the Medical Council of India, since by virtue of Section 24, all the degrees and diplomas issued by the first respondent Institute shall be recognised and they shall be deemed to be included in the schedules to the respective Acts. To grant the degrees by the Institute independently without being regulated by the Medical Council of India, sub-section (1) of Section 30 shows that the Institute with the previous approval of the Central Government may make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act by issuing a notification in the official gazette. Again pointing out sub-section (2) of Section 30 of the JIPMER Act, the learned Solicitor General submitted that the above section clearly indicates that the first regulation under this Act shall be made by the Central Government and any regulations so made may be altered or rescinded by the Institute in exercise of its powers under sub-section (1) of Section 30, hence, the first respondent Institute has got enough and sufficient power to specify courses and curricula for both undergraduate and postgraduate studies, the same cannot be questioned on the ground that the standards prescribed by the first respondent is higher than the Medical Council of India Regulations.
8. Therefore, a conjoined reading of both the sub-sections (1) & (2) of Section 30 would show that any regulations made may be altered by the Institute in exercise of its powers given under sub-section (1). Accordingly, while exercising the power conferred by sub-section (2) read with sub-section (1) of Section 30 of the Act, when the Central Government has made the regulations called Jawaharlal Institute of Postgraduate Medical Education and Research Puducherry Regulations, 2008, the same having been notified by the Central Government in the gazette of India published on 4.8.2008, both the Act and Regulations are a code by themselves governing the medical education in JIPMER without reference to the regulations framed by the Medical Council of India. In view of the special national importance given to the JIPMER Institute, the regulations prescribed by the Medical Council of India are not applicable to the JIPMER, he pleaded. When the JIPMER has been given a special status, sufficient power has been given under Section 10(5) of the Act to constitute as many standing committees and as many ad hoc committees as it thinks fit for exercising any power or discharging any functions of the Institute or for inquiring into any matter which the Institute may refer to them. In exercise of the power conferred under sub-section (5) of Section 10, sufficient standing academic committee had been constituted and the standing academic committee, in its meeting held on 8th July, 2009, approved the M.B.B.S., curriculum in agenda item No.2009.01.02. As the minutes of the meeting clearly shows that when the Dean presented the curriculum of various courses conducted by JIPMER, they were accepted by the Pondicherry University, no fault can be found. Adding further, learned Solicitor General further pleaded that several members were drawn from medical institutions from South India and they were approved by the academic council of Puducherry University, therefore, when the M.B.B.S., curriculum approved by the standing academic committee is in accordance with law, the same is applicable only to the students admitted to the M.B.B.S., course in JIPMER and this curriculum framed by JIPMER is in exercise of the power conferred under Section 24(3) of the Jawaharlal Institute of Post Graduate Medical Education and Research Puducherry Regulations, 2008, hence, there is no requirement for gazette notification of the curriculum of M.B.B.S. Course applicable to the students admitted to M.B.B.S. Course in JIPMER from 2008-09 onwards, because the curriculum is in tune with the objects set forth in Section 12(a) of the Act to maintain a high standard of medical education. As per the curriculum for M.B.B.S. Course, the period of study is 4 = years and the same is divided into three phases. Phase-I consisting of two semesters, will have pre-clinical subjects viz., human anatomy, physiology and bio-chemistry. Similarly, Phase-II will have three semesters consisting of para-clinical / clinical subjects and Phase-III, which is a continuation of study of clinical subjects for seven semesters after passing the first phase, have been made applicable from 2008-09 onwards. As per the curriculum, no student shall be permitted to join the Phase-II, i.e., para-clinical / clinical group of subjects until the student had passed in all the subjects in Phase-I. Clause-3 of the university examination regulation also clearly mentions the minimum marks for declaration of pass, as follows:-
University Internal Assessment University+Internal Assessment aggregate + Viva Theory (Minimum) 40% 35% 50% Practical/Clinical (Minimum) 50% 35% 50% 8(a). While coming to the marks obtained by the petitioner, the learned Solicitor General submitted that when the total marks for theory is 220 and for practical it is 130 and the grand total is 350 marks, a student has to independently pass in theory and practical by obtaining a minimum of 50% in the university examination plus internal assessment plus viva-voce in theory and a minimum of 50% in the practical examination plus practical internal assessment. While so, the petitioner, who was admitted to the first year M.B.B.S., course during the academic year 2012-13, had obtained only 63 marks as against the requisite 65 marks in practical. As the petitioner failed to obtain the minimum 65 marks in practical, she has failed in the subject of anatomy as per the M.B.B.S., curriculum applicable to the students admitted in the JIPMER from 2008-09 onwards. When the petitioner has secured 63 marks and running short of 2 marks in the practical part of anatomy subject, the contention of the petitioner that since 50% marks had been obtained by her in aggregate in the practical part, therefore, she should be declared a pass in the subject of anatomy, is not acceptable. As per the curriculum, since the petitioner had failed in the subject of anatomy, she is not eligible to proceed to Phase-II, second year, third semester, as she has to re-appear in the examination in the subject of anatomy.
9. Reiterating the validity of the JIPMER curriculum of the M.B.B.S. Course for the year 2008-09, the learned Solicitor General further submitted that the curriculum framed by the JIPMER is in exercise of power conferred under Section 24(3) of the Jawaharlal Institute of Post Graduate Medical Education and Research Puducherry Regulations, 2008 and there is no requirement for gazette notification of the curriculum of M.B.B.S. Course, as it is applicable only to students admitted to JIPMER in 2008-09 onwards. Hence the curriculum is in tune with the object set forth under Section 12(a) of the Act to maintain a high standard of medical education. Therefore, when the curriculum of M.B.B.S. Course that has been approved by the standing academic committee of the Institute in pursuance of the power conferred under Section 24(3) of the Jawaharlal Institute of Post Graduate Medical Education and Research Puducherry Regulations, 2008 is sustainable in law, the argument advanced by the learned counsel for the petitioner that the curriculum of Medical Council of India is applicable to the colleges governed by the Medical Council of India Act is not correct, as it is not applicable to JIPMER and as such, the petitioner, who was admitted to M.B.B.S. Course in JIPMER, cannot take shelter under the MCI regulations and cannot be permitted to say that the marks obtained by her in the second semester in the practical subject of anatomy is a pass mark.
10. Adding further, learned Solicitor General submitted that when ten students of 2012-13 batch failed in the examination held in May, 2013, nine students submitted their examination applications and as per the permission accorded by this Court in M.P.No.1 of 2013 in W.P.No.25992 of 2013, supplementary examination were specifically conducted to enable them to join the main batch from 19.10.2013 to 30.10.2013. Barring those nine students, the petitioner alone did not submit her examination application. As the petitioner had not applied, she was unable to face the supplementary examination, therefore, she is considered to have not cleared Phase-I, as a result, she is not entitled to continue in the third semester. When it is the consistent stand of both the MCI and the JIPMER that every student has to clear Phase-I as specified in both the curriculum of JIPMER and MCI, unless he/she clears the subject, he/she is not eligible to proceed to Phase-II, the petitioner, who has not appeared in the supplementary examination conducted by the first respondent Institute, is not entitled to continue the third semester. By drawing the attention of this Court to the interpretation on the definition sections or interpretation clauses, the learned Solicitor General stated that when a word has been defined in the interpretation clause, prima facie, that definition governs whenever that word is used in the body of the statute, unless the context requires otherwise. In view of the non obstante clause in Section 24 stating that notwithstanding anything contained in the Indian Medical Council Act, 1956, the Dentist Act, 1948 and the Indian Nursing Council Act, 1947, the medical degrees shall be recognised as medical qualifications for the purpose of the Act, the meaning of the above non obstante clause is clear and exhaustive to mean only one thing that the provisions and curriculum of the Indian Medical Council Act, 1956 are excluded from the JIPMER Act, hence, they are not applicable to JIPMER. Therefore, the petitioner, having been admitted to JIPMER, cannot take shelter under the MCI regulations.
11. Again relying upon one another judgment of the Hon'ble Apex Court in University Grants Commission and another v. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519, the learned Solicitor General argued that in academic matters, unless there is clear violation of the statutory provisions, regulations or the notification issued, the Courts should keep their hands off, since those issues fall within the domain of the experts. Urging further, it was stated that since in the above judgment, the Apex Court has held that the Court shall not generally sit in appeal over the opinion expressed by the expert academic bodies, normally it is wise and safe for the courts to leave the decision of the academic experts who are more familiar with the problem they face, than the Courts generally are.
12. Concluding his arguments, the learned Solicitor General, by referring to the judgment of the Apex Court in Annamalai University case (supra), submitted that the Apex Court in the said judgment, while dealing with the provisions of the UGC Act and IGNOU Act, has held that the provisions of UGC Act are not in conflict with the provisions of IGNOU Act. By overruling the submission of the IGNOU that in terms of sub-section (2) of Section 5 of the IGNOU Act, the non obstante clause has been created and thus would prevail over the earlier Act cannot be accepted, the Apex Court held that in the matter of laying down qualification of the teachers, running of the University and the matters provided for under the UGC Regulations are applicable and binding on all concerned, for the reason that the IGNOU has not made any regulation and it has not made any ordinance. Moreover, it is guided by the regulations framed by UGC. On this basis, the Apex Court held in Annamalai University case that the UGC Act would prevail over the IGNOU Act and the said ruling is inapplicable to the present case, since Section 24 of the JIPMER Act clearly excludes the applicability of the Indian Medical Council Act, 1956 to the medical degrees being granted by the JIPMER. Moreover, when the JIPMER Act has been enacted to develop the institute as one of national importance, the curriculum adopted by the JIPMER is in fine tune with the object set forth in Section 12(a) of the Act, to maintain a high standard of medical education, hence, the claim of the petitioner that she has passed Phase-I of the examination as stipulated by the Medical Council of India regulations is inapplicable to JIPMER.
13. While further urging the Court not to accept the prayer for amendment, the learned Solicitor General submitted that when the petitioner has filed the writ petition with the original prayer for issuance of a writ of mandamus to direct the first respondent to treat the marks secured by her in the second semester of M.B.B.S. Course in the subject of anatomy as a pass, during the pendency of the writ petition, the subsequent affidavit dated 30/31.8.2013 filed to amend the prayer to challenge the curriculum 2008-09 onwards issued by the first respondent-JIPMER in so far as the chapter of examination and distribution of marks as ultra vires the Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry Act 2008 and to consequently treat the marks secured by the petitioner in the second semester of the M.B.B.S. Course in the subject of Anatomy as a pass, is impermissible in law, therefore, the said prayer should be rejected, for the reason that the same was sought to be made after the order of this Court dated 20.8.2013 in M.P.No.1 of 2013 permitting the petitioner to attend the third semester classes without claiming any equity.
14. Even otherwise, it was urged before this Court that when the petitioner was very well aware of the curriculum 2008-09 showing the relevant criteria for a pass in each subject, since the same was also easily accessible from the website, knowing pretty well the criteria for admission and the pass marks stipulated for the first year M.B.B.S. Course, the petitioner appeared in the examination and failed to secure the minimum marks in the subject of anatomy, since she secured only 63 marks in practical, therefore, she was declared failed in the subject of anatomy. It is a settled legal position that when a candidate appears in the examination without protest and subsequently found to be unsuccessful in the examination, cannot challenge the said examination, the petitioner, who was unsuccessful in the second semester examination, cannot challenge the curriculum. In support of the above submission, he has placed reliance on the judgments of the Hon'ble Apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp.SCC 285 and Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127. Even after her failure, when the JIPMER informed the petitioner and nine other students of 2012-13 batch who failed in the examination held during May, 2013 to write the supplementary examination, except the petitioner, nine other students submitted their examination applications and they were issued with the hall tickets. Subsequently they appeared in the supplementary examination held from 19.10.2013 to 30.10.2013. But the petitioner alone did not submit her application, as a result, she did not even appear in the supplementary examination held during October, 2013. When the petitioner failed to avail the opportunity provided to her to appear in the supplementary examination, she is not entitled to claim any equitable relief under the present proceedings. When the supplementary examination was specifically granted as per the permission accorded by this Court in M.P.No.1 of 2013 in W.P.No.25992 of 2013 for the failed students of 2012-13 batch to enable them to join the main batch, the petitioner alone failed to make use of the opportunity. Therefore, she is not entitled to get any equitable relief. On this basis, he prayed for dismissal of the present writ petition.
15. Heard the learned counsel for the parties.
16. Parliament, to declare the Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry to be an institution of national importance and to provide for its incorporation, enacted the Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry Act, 2008 (hereinafter called as the Act), as it was previously affiliated to Pondicherry University. The Central Government by its notification bearing S.O.1672(E) dated 14th July, 2008, in exercise of the powers conferred under sub-section (2) of Section 1 of the Act, brought the above said Act into force from the same date. As Section 2 of the Act enjoins that one of the objects of the institution is to make the institution as one of national importance, it declared that the said institution is an institution of national importance. Section 10 of the Act states that there shall be a governing body of the Institute, which shall be constituted by the Institute in such manner as may be specified. However, the number of persons who are not members of the Institute shall not exceed one- third of the total membership of the governing body. Sub-clause (5) of Section 10 further states that the Institute may constitute as many standing committees and as many ad hoc committees as it thinks fit for exercising any power or discharging any functions of the Institute or inquiring into any matter which the Institute may refer to them. While so, Section 12 of the Act speaks about the objects of the Institute and therefore the said section is reproduced hereunder:-
12.The objects of the Institute shall be--
(a) to develop patterns of teaching in undergraduate and postgraduate medical education in all its branches so as to demonstrate a high standard of medical education;
(b) to bring together, as far as may be, in one place educational facilities of the highest order for the training of personnel in all important branches of health activity; and
(c) to attain self-sufficiency in postgraduate medical education to meet the country's needs for specialists and medical teachers.
17. A close reading of Section 12 shows that the Act was enacted with a specific purpose to develop patterns of teaching in undergraduate and postgraduate medical education in order to demonstrate a high standard of medical education and also to attain self-sufficiency in postgraduate medical education to meet the country's needs for specialists and medical teachers. With a view to promote the above object, the Institute is further given power to specify courses and curriculum for both undergraduate and postgraduate studies under Section 13(e) of the Act. In this context, it will be useful to extract Section 13 of the Act as follows:-
13. With a view to the promotion of the objects specified in section 12, the Institute may--
(a) provide for undergraduate and postgraduate teaching in the science of modern medicine and other allied sciences, including physical and bilogical sciences;
(b) provide facilities for research in various branches of such sciences;
(c) provide for the teaching of humanities
(d) conduct experiments in new methods of medical education, both undergraduate and postgraduate, in order to arrive at satisfactory standards of such education;
(e) specify courses and curricula for both undergraduate and postgraduate studies;
(f) notwithstanding anything contained in any other law for the time being in force, establish and maintain--
(i)one or more medical colleges with different departments, including a department of preventive and social medicine, sufficiently staffed and equipped to undertake not only under medical education but also postgraduate medical education in different subjects,
(ii)one or more well-equipped hospitals;
(iii)a dental college with such institutional facilities for the practice of dentistry and for the practical training of students as may be necessary,
(iv) a nursing college sufficiently staffed and equipped for the training of nurses,
(v)rural and urban health organisations which will form centres for the field training of the medical, dental and nursing students of the Institute as well as for research into community health problems, and
(vi) other institutions for the training of different types of health workers, such as physiotherapists, occupational therapists, pharmacists, drug analysts and medical technicians of various kinds;
(g) train teachers from different medical colleges in India;
(h) hold examinations and grant such degrees, diplomas and other academic distinctions and titles in undergraduate and postgraduate medical education as may be laid down in the regulations;
(i) institute, and appoint persons to, professorships, readerships, lecturerships and posts of any description in accordance with regulations;
(j) receive grants from the Government and gifts, donations, benefactions, bequests and transfers of properties, both movable and immovable, from donors, benefactors, testators or transferors, as the case may be;
(k) deal with any property belonging to, or vested in, the Institute in any manner which is considered necessary for promoting the objects specified in section 12;
(l) demand and receive with the prior approval of the Central Government such fees and other charges as may be specified: Provided that such fees and other charges payable by the students shall in no case exceed the fees and other charges specified by a medical Institute of the Central Government;
(m) reserve at least twenty seats out of every seventy-five seats in undergraduate courses in the institute for local applicants;
(n) provide free treatment to the poor patients in the same manner as are being provided by a medical Institute of the Central Government;
(o) construct quarters for its staff and allot such quarters to the staff in accordance with such regulations as may be made in this behalf;
(p) borrow money, with the prior approval of the Central Government, on the security of the property of the Institute;
(q) do all such other acts and things as may be necessary to further the objects specified in section 12.
18. A cursory reading of Section 13 also distinctly indicates that in order to promote the objects set out under Section 12, the first respondent-JIPMER is given power to specify courses and curricula for both undergraduate and postgraduate studies and notwithstanding anything contained in any other law for the time being in force, the Institute is given further power to establish and maintain one or more medical colleges with different departments, one or more well equipped hospitals and to hold examination and grant such degrees, diplomas and other academic distinctions and titles in undergraduate and postgraduate medical education as may be laid down in the regulations. Moreover, in the light of Sections 12 and 13, if Sections 23 and 24 of the Act are read conjointly, one could see that the first respondent Institute, which has been given power to specify courses and curricula for both undergraduate and postgraduate studies and to hold examination, shall have power to grant medical degrees, dental degrees, nursing degrees, diplomas and other academic distinctions and titles and the same shall be recognised as medical qualifications for the purposes of this Act. Therefore, it is also useful to extract Sections 23 and 24 of the Act as follows:-
23. Notwithstanding anything contained in any other law for the time being in force, the Institute shall have the power to grant medical, dental, nursing degrees, diplomas and other academic distinctions and titles under this Act.
24. Notwithstanding anything contained in the Indian Medical Council Act, 1956, the Dentist Act, 1948, the Indian Nursing Council Act, 1947, the medical degrees and diplomas, dental degrees and nursing degrees granted by the Institute under this Act shall be recognised medical qualifications for the purposes of the Acts aforesaid and shall be deemed to be included in the Schedules to the respective Acts. (emphasis supplied) The above Sections 23 and 24 of the JIPMER Act, having two non obstante clauses, shall have special significance. The non obstante clause under Section 23 would prevail over anything contained in any other law for the time being in force to grant medical, dental, nursing degrees, diplomas and other academic distinctions and titles under the Act. Again the second non obstante clause under Section 24 specifically stating that notwithstanding anything contained in the Indian Medical Council Act, 1956, the Dentist Act, 1948, the Indian Nursing Council Act, 1947, the medical degrees and diplomas, dental degrees and nursing degrees granted by the first respondent Institute under the JIPMER Act shall be recognised as medical qualification, clearly excludes not only the Indian Medical Council Act, 1956, but also the Dentist Act, 1948, the Indian Nursing Council Act, 1947, therefore, the non obstante clause under Section 24 specifically and explicitly excludes the Indian Medical Council Act, 1956. In the light of the above position, the first respondent-JIPMER invited applications from eligible candidates to apply for the 4= years M.B.B.S. course for the July, 2012 session by specifically showing the details of marks to be obtained by the students in the first year M.B.B.S., course as follows:-
Theory Theory-IA Oral Theory Total Practical Prac.-IA Total Grand Total Max. Marks 160 40 20 220 100 30 130 350 Min. Marks 64 14 0 110 50 11 65 175
19. Accepting the above criteria for passing the first year of the M.B.B.S. Course, the petitioner applied and got selected by securing the 27th rank in the all India entrance examination for JIPMER M.B.B.S. Course for the session July, 2012 and she joined the course that commenced from 30.7.2012. The petitioner cleared the first semester and after writing all the subjects in the second semester examination held between 7.6.2013 and 19.6.2013, the provisional list was also published on 23.7.2013 in the notice board of JIPMER with the following marks obtained by the petitioner:-
Theory Theory-IA Oral Theory Total Practical Prac.-IA Prac t total total lal Grand total Result Anatomy 92 18 10 120 50 13 63 183 Fail By looking at the marks prescribed by the first respondent-Institute and the marks obtained by the petitioner, it clearly shows that a student has to pass independently in theory and practical by obtaining the minimum of 50% in the university plus internal assessment plus viva-voce in theory. Similarly, another minimum of 50% in the university practical plus practical internal assessment, should be secured. But the second column showing the marks obtained by the petitioner for the subject anatomy indicates that the petitioner as against 64 minimum marks in theory, has obtained 92 marks. Similarly, in theory internal assessment, as against minimum marks of 14, has got 18 marks. Again, the petitioner secured 10 marks in oral. Totally the marks secured by the petitioner is 120 in theory independently. In respect of practical part, the petitioner, as against the minimum of 50%, has secured only the minimum mark of 50 and in practical internal assessment, as against the minimum mark of 11, has secured 13 marks independently. But instead of securing 65 marks in aggregate, the petitioner secured only 63 marks, namely, 2 marks less than the requisite aggregate. Therefore, she was declared failed in the subject of anatomy as per the curriculum of JIPMER for the students admitted to the M.B.B.S. Course from the year 2008-09 onwards.
20. Now the dispute raised by the petitioner shows that having secured the 50% aggregate in the subject of anatomy as a whole, she should be declared as pass in the said subject, whereas the respondent Institute contends that the petitioner has failed in the subject of anatomy, hence, she is not eligible to proceed to Phase-II, third semester and unless she re-appears in the examination in the subject of anatomy, she is not entitled to go to the second year. Relying upon the Medical Council of India regulations, one of the contentions placed by Ms.R.Vaigai on behalf of the petitioner shows that the petitioner has secured 13 marks in the internal assessment of practical and 50 marks in practical, thereby the total practical marks secured by the petitioner is 63 marks out of 130 marks, therefore, the two marks less to the minimum pass percentage of 50% aggregate marks should not be put against her, for the reason that in the theory part of anatomy, the petitioner has secured 120 marks out of 220 marks, namely, more than 50% of marks. Moreover, in aggregate, for the subject of anatomy as a whole, the petitioner has secured 183 out of 350 marks, which is also more than the minimum of 50% marks. Therefore, the petitioner has secured the requisite marks prescribed by the Medical Council of India under the Graduate Medical Education Regulations, 1997, which states that any candidate obtaining in each of the subjects 50% in aggregate with the minimum of 50% in theory including oral and minimum of 50% in practical to be given a pass in the subject, while so, the petitioner, having secured the total marks of 183 out of 350 marks in the subject of anatomy, as against the requirement of 175 marks, should be declared as having passed the subject of anatomy and for one another reason that the petitioner has cleared the criteria prescribed by the Medical Council of India Regulations, she brought to the notice of this Court Regulation 12(2)(iv) of the Medical Council of India Regulations, which reads as follows:-
12. Examination Regulations:
Essentialities for qualifying to appear in professional examinations. The performance in essential components of training are to be assessed, based on: (1) Attendance:
.....
(2) Internal Assessment:
(i) to (iii)....
(iv) weightage for the internal assessment shall be 20% of the total marks in each subject.
(v)....
.....
21. The further argument of the learned counsel for the petitioner that the standard of passing the M.B.B.S. Course prescribed by the Medical Council of India having been duly complied with by the petitioner, she should be declared passed, as the curriculum and course specified by the JIPMER is not in conformity with the regulations framed by the Medical Council of India, therefore, the first respondent cannot ignore the mandated regulations framed by the Medical Council of India. This contention that higher standards prescribed by JIPMER for passing the M.B.B.S. Course being contrary and inconsistent with the regulations framed by the Medical Council of India, the same should be declared as ultra vires the Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry Act, 2008, as a similar issue had already been concluded in favour of the petitioner in Annamalai University case (supra) holding that the provisions of the UGC Act are binding on all universities whether conventional or open, since the powers of UGC Act are very broad, is far from acceptance for the following reasons.
22. Firstly, when the first respondent Institute has been declared as an institute of national importance by the Act with the specific object to develop the first respondent Institute with the patterns of teaching in undergraduate and postgraduate medical education in all its branches so as to demonstrate a high standard of medical education with a further purpose to attain self-sufficiency in post graduate medical education to meet the country's needs for specialists and medical teachers, giving exclusive power to the first respondent under Section 13(e) of the Act to specify courses and curriculum for both undergraduate and postgraduate studies, the first respondent is entitled to frame its own course and curriculum in respect of M.B.B.S. Course, without being interfered by the Medical Council of India Act or the Regulations framed thereunder. In fact, as mentioned above, Section 30(2) also vividly makes the status of the first respondent Institute clear that the non obstante clause stating that notwithstanding anything contained in sub-section (1) of Section 30, the first regulation under this Act shall be made by the Central Government and any regulations so made may be altered or rescinded by the Institute in exercise of its power under sub-section (1), therefore, every rule and every regulation so made by the Central Government may be altered or rescinded by the Institute in exercise of its power under sub-section (1), gives a superior place to the JIPMER Institute to adopt its own courses and curricula for the purpose of granting degrees or diplomas. Therefore, the curriculum introduced by the first respondent for both the M.B.B.S., and the post graduate degree medical education fixing higher standards than the Medical Council of India regulations, to demonstrate the first respondent as an institute of national importance with a high standard of medical education, cannot be diluted in comparison with the regulations framed by the Medical Council of India.
23. A simple and plain reading of Sections 23 and 24 of the Act vividly answers the argument made by Ms.R.Vaigai, inasmuch as Section 24 clearly and explicitly excludes the Indian Medical Council Act, 1956, the Dentist Act, 1948 and the Indian Nursing Council Act, 1947 from the application of the JIPMER Act, therefore, the medical degrees and diplomas, the dental and nursing degrees, which are being granted by the first respondent Institute under the JIPMER Act, are being recognised as medical qualifications for the purposes of this Act. For the above reasons, the judgment of the Apex Court in Annamalai University case (supra), which had dealt with only the provisions of the UGC Act, 1956 and the IGNOU Act, 1985, has no application to the facts of the present case.
24. To be more clear, let me now consider whether the ratio laid down by the Hon'ble Apex Court in Annamalai University case can be made applicable to the JIPMER Institute and in this context, paragraphs 42 and 43 of the said judgment are reproduced as under:-
42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all-pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof.
43. Indisputably, as has been contended by the learned counsel for the appellant as also the learned Solicitor General that the Open University Act was enacted to achieve a specific object. It opens new vistas for imparting education in a novel manner. Students do not have to attend classes regularly. They have wide options with regard to the choice of subjects but the same, in our opinion, would not mean that despite a parliamentary Act having been enacted to give effect to the constitutional mandate contained in Entry 66 of List I of the Seventh Schedule to the Constitution of India, activities and functions of the private universities and open universities would be wholly unregulated.
25. What emerges from the above observation is that the provisions of UGC Act are binding on all universities whether conventional or open. On this basis, it was held in the said judgment that the provisions of the UGC Act to maintain minimum standards of instructions will be binding on all concerned. But the case on hand is totally different from the issue decided in Annamalai University case by virtue of Sections 23, 24 and 30(2) of the JIPMER Act. Although it cannot be argued that the non obstante clause under Section 23 of the JIPMER Act does not give any clarity on the power for grant of medical degrees by the first respondent, without reference to the regulations and provisions made under the Medical Council of India Act, at the risk of repetition, Section 24 of the JIPMER Act clearly and explicitly, in the matter of providing medical degrees by the JIPMER Institute, excludes the Indian Medical Council Act, 1956, the Dentist Act, 1948 and the Indian Nursing Council Act, 1947 from the provisions of the JIPMER Act for granting medical degrees, therefore, no provision under the Indian Medical Council Act, 1956 and no regulation or rule framed under the said Act prescribing any criteria for passing the M.B.B.S. Course or post graduate medical education course will prevail over the JIPMER Act, hence, it is not open to the petitioner to say that the criteria for passing the M.B.B.S. Course fixed by the Medical Council of India Regulations will prevail over the JIPMER Act, by virtue of the further clarification made under Section 24 indicating that the medical degrees issued by the first respondent shall be deemed to be included in the schedule to the respective Acts inasmuch as Section 24 clearly and explicitly excludes the Indian Medical Council Act, 1956 in toto.
26. That apart, when enormous power is given to the Institute under sub-section (2) of Section 30 of the Act, the Institute may alter or rescind any regulation made by the Central Government to specify courses and curricula for undergraduate and postgraduate studies as given under Section 30(1)(d) to hold examination and grant degrees, diplomas and other academic distinctions, therefore, I am of the considered view that the M.B.B.S. curriculum framed by the standing academic committee of JIPMER in exercise of the power conferred under Regulation 24(3) of Jawaharlal Institute of Postgraduate Medical Education and Research Regulations, 2008 read with Section 10(5) of the Act is perfrectly in order, hence, there is no requirement for gazette notification, accordingly, the prayer of the petitioner to challenge the curriculum of 2008-09 onwards of JIPMER by way of subsequent affidavit dated 30/31.8.2013 is unsustainable in law, hence, the same is rejected. Besides, the curriculum is in fine tune with the object of maintaining a high standard of medical education as set forth under Section 12(a) of the Act. In other words, if the argument of the learned counsel for the petitioner that the JIPMER should also fix the criteria for passing the M.B.B.S. Course as prescribed by the Medical Council of India Regulations is accepted, that would defeat one of the objects sought to be achieved to have the Institute as of national importance under Section 12(a) of the Act. Indeed the JIPMER Act, 2008 was enacted with the specific purpose to have an institution of national importance by enacting Sections 23 and 24, therefore, the provisions contained in the Indian Medical Council Act, 1956 cannot come in the way of granting degrees by the first respondent Institute.
27. The main line of argument of the learned counsel to the effect that the unique status conferred upon JIPMER to fix the criterion relating to pass-marks either by aggregate or particular calculation for the purpose of maintaining high curriculum standards and that JIPMER should be brought within the operative rigor of the Medical Council of India Regulations irrespective of the notwithstanding clause applicable to it, cannot be accepted even for argument sake. Inasmuch as not only in the field of medical education but in other fields also, there are Institutes of National Importance which are allowed to function in an extraordinary fashion by having sturdy syllabi and strict exam patterns/mark/grade system so as to compete with international standards. For example, when regular law colleges were functioning, the Bar Council of India, in the context of the Councils statutory responsibility for maintaining standards in professional legal education under the Advocates Act, 1961, took initiatives for establishing National Law Schools in the country. As a result, now, India has more than one dozen National Law Schools created by enactments passed by the respective state governments providing world-class quality legal education in the country and simultaneously, the regular law colleges under the old pattern are also in existence with different syllabus and standard. Having regard to the wisdom of the Legislature in permitting those national law schools to have unique system of syllabus and exam/mark patterns to ensure great quality and thereby excluding them from the purview of the general rules and regulations governing the other regular law colleges already in existence, one cannot make any complaint against the special status extended to such Institutes of national importance as any such complaint is absolutely far-fetched. Also, every candidate who desires to pursue studies there is well aware of the fact that the standard of education being high in such special Institutes, the syllabus and the pass-criteria would be tough compared to other regular colleges.
28. Another simile is, in pre-college level education, generally, there are three major syllabus-wise structures viz., State Board, CBSE and ICSE. While State Board system and CBSE is said to be more academic-focused, ICSE is seen to be heavy on languages with Environment Education as mandatory and it includes quite a few non-typical subjects like Home Science, Cookery, Fashion Designing, Agricultural Science etc. which may sound interesting to those think beyond obvious career choices. In such scenario, no parent or student can come to the Courts complaining that the syllabus under ICSE and the percentage of marks fixed for Pass are tough and immoderate and therefore, the given pattern should be brought down to the level of the other regular systems. In other words, when there is a layer-system in the type of same-education having regard to quality, standard, intensity of syllabus etc., one is at his own choice to go for any one of the systems suiting to his individual capacity and any claim to invariably apply the general rules for different categories, particularly, when there is a notwithstanding clause to operate in respect of the Institute of National importance has to be just ignored, as otherwise, the very purpose and intention behind enactment of the legislation by the parliament/legislature allowing operation of the notwithstanding clause for any institute of national importance will be plainly defeated.
29. Lastly, it must be mentioned that the petitioner applied to the first respondent Institute for admission to M.B.B.S. Course for the session July, 2012 knowing pretty well that the first respondent is an institution of national importance having different curricula with special bench mark for obtaining the medical degree. After securing admission, the petitioner also cleared the first semester examination that has admittedly prescribed a higher standard of curriculum than the one fixed by the Medical Council of India. After passing the first semester, when the petitioner attended the second semester examination held between 17.6.2013 and 19.6.2013, she was unable to secure the aggregate pass mark in the anatomy practical examination viz., 65 marks, therefore, the petitioner, having appeared in the second semester examination without any protest and subsequently having been unsuccessful in the examination, is not entitled to challenge the vires of the Act itself, as per the ratio laid down by the Hon'ble Apex Court in Chandra Prakash Tiwari's case (supra) reported in (2002) 6 SCC 127, wherein the Apex Court, while referring to its earlier judgment in Om Prakash Shukla's case reported in 1986 Supp.SCC 285, has held that when a candidate appears at the examination without protest and subsequently found to be unsuccessful in the examination, question of entertaining a petition challenging the said examination would not arise.
30. Moreover, one another aspect of the matter is that when this Court passed an order in M.P.No.1 of 2013 in W.P.No.25992 of 2013 for the students of 2012-13 batch who had failed in May, 2013 examination to enable them to join the main batch, nine other students of the 2012-13 batch, who failed in the examination held in May, 2013, made use of the order passed by this Court by submitting their examination applications and appeared in the supplementary examination held from 19.10.2013 to 30.10.2013. But, unfortunately, the petitioner has not made use of the opportunity given to her by the first respondent Institute, although the petitioner was informed through e-mail regarding the conduct of examination to submit her application on or before 30.7.2013. In that view of the matter, this Court is unable to show any more sympathy in her favour. Moreover, as laid down by the Hon'ble Apex Court in the case of University Grants Commission and another v. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519, the power of judicial review of this Court in academic matters is very limited, for, unless there is a clear violation of the statutory provisions, regulations or the notification issued, the Courts should keep their hands off, as those issues fall within the domain of the experts.
31. For all the aforesaid reasons, the writ petition fails and the same is dismissed. Consequently, interim order stands vacated and the M.P.Nos.1 and 3 of 2013 are also dismissed. For the very same reasons, the prayer of the petitioner to challenge the curriculum of 2008-09 onwards of JIPMER is also rejected. Needless to mention that the petitioner has to clear the subject of anatomy before moving to Phase-II of the M.B.B.S. course. However, there is no order as to costs.
Index : yes 25.04.2014
Internet: yes
Issue copy today
ss
To
1. The Director
JIPMER
Puducherry 605 086
2. The Secretary
Medical Council of India
Sector 8
New Delhi
T.RAJA, J.
ss
Order in
W.P.No.21814 of 2013
25.04.2014