Kerala High Court
Muhammed Sabith vs State Of Kerala Represented By ... on 3 July, 2020
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942
WP(C).No.10153 OF 2020(T)
PETITIONER/S:
MUHAMMED SABITH, AGED 24 YEARS
S/O. ABOOBAKKAR PALAKKODAN,
RESIDING AT SHAMEENAS, PADINHAREKKARA, KADANNAPALLY P
O, KANNUR-670501, STUDENT OF BDS 2014 BATCH,
PARIYARAM DENTAL COLLEGE, PARIYARAM MEDICAL COLLEGE P
O, KANNUR-670503, HAVING UNIVERSITY REGISTRATION NO.
140021660.
BY ADVS.
SRI.JOHNSON JOSE PANJIKKARAN
SRI.T.R.JERRY SEBASTIAN
KUM.P.H.RIMJU
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO
GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
2 KERALA UNIVERSITY OF HEALTH SCIENCES,
REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P O,
THRISSUR, PIN-680596.
3 THE BOARD OF ADJUDICATION FOR STUDENTS GRIEVANCES,
THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL
COLLEGE P O, TRICHUR, PIN-680596,
REPRESENTED BY ITS CHAIRMAN.
4 PARIYARAM DENTAL COLLEGE,
PARIYARAM MEDICAL COLLEGE P O, KANNUR-670503,
REPRESENTED BY ITS PRINCIPAL,
R2,R3 SHRI.P.SREEKUMAR, STANDING COUNSEL, KERALA UNIVERSITY
OF HEALTH SCIENCES
R1,R4 SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-
2020, THE COURT ON 03-07-2020 DELIVERED THE FOLLOWING:
2
WP(C).No.10153 OF 2020
C.S.DIAS, J.
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WP(C) No.10153 of 2020
======================
Dated this the 3rd day of July, 2020.
JUDGMENT
The petitioner is pursuing his BDS course in the fourth respondent College, which is affiliated to the second respondent University.
2. The petitioner has averred that he passed in all the examinations, except in the final year BDS examination. He appeared for the final year examination for the first time in July 2019. He failed in Paediatric and Preventive Dentistry and Oral and Maxillofacial Surgery. In the subject Paediatric and Preventive Dentistry, the petitioner passed in the practicals, but failed in the theory paper. In the subject Oral and Maxillofacial Surgery, the petitioner passed in the practicals but failed in the theory paper.
3. In the supplementary examinations held in 3 WP(C).No.10153 OF 2020 January, 2020, in the subject Paediatric and Preventive Dentistry, the petitioner passed in the practicals, but failed in the theory paper, and in the subject Oral and Maxillofacial Surgery, the petitioner passed in the theory paper, but failed in the practicals. Accordingly, the petitioner was declared as failed in both the above papers.
4. It is the case of the petitioner that, in the examination conducted in July 2019 in respect of the Oral and Maxillofacial Surgery, the petitioner secured 81 marks in the practical out of 100 marks and in the supplementary examinations, he secured only 44 marks in the practicals. Similarly, in the Paediatric and Preventive Dentistry examination held in July 2019, the petitioner secured 60 marks out of 100 marks in practicals, whereas in the supplementary examination the petitioner secured only 52 marks. The petitioner is confident that he attended to the practical examinations well and that he had secured 4 WP(C).No.10153 OF 2020 high marks. If the petitioner passes in the Oral and Maxillofacial Surgery examination, he can avail the benefit of grace marks and pass in the Paediatric and Preventive Dentistry .
5. As per the BDS Course Regulations of the second respondent, grace marks can be awarded for an examination limiting it to a maximum five marks.
6. Being aggrieved by the results published by the second respondent, the petitioner has approached the third respondent - the Board of Adjudication for Students' Grievances and submitted Ext P4 representation by e-mail. However, the petitioner has not received any reply to Ext P4 representation. The petitioner relies on the decision of this Court in Geethu.S, (Doctor and another) vs Kerala University of Health Sciences [2016 (2) KHC 325]. The petitioner prays that he may be declared to have passed in the subject Oral and Maxillofacial Surgery or in the alternative direct the third 5 WP(C).No.10153 OF 2020 respondent to take decision on Ext P4 expeditiously.
7. The respondents 2 and 3, have through their Standing Counsel, filed a statement. It is the specific case of the respondents 2 and 3 that the petitioner's claim for grace marks is not tenable as the Regulations do not permit the splitting up of the marks for two subjects. The petitioner does not have a case of any mala fides in the evaluation process. The evaluation of the answer scripts are done by qualified examiners and their assessment cannot be substituted through a writ petition. It is a fact that Ext P4 representation is pending before the third respondent, which could not be considered due to the pandemic. The third respondent has to go through the records and other relevant papers, which will be done in the next Board meeting.
8. The petitioner has filed a reply affidavit refuting the allegations in the statement. The petitioner has contended that no where in the BDS 6 WP(C).No.10153 OF 2020 Course Regulations it is insisted that a candidate who fails in one subject either theory/practical has to appear for all the papers including theory and practical. The petitioner has not challenged the Regulations because there is no such stipulation in the Regulations which is adverse to the petitioner. There is a lacuna in the BDS Course Regulations which cannot be filled up arbitrary. In the instant case, an exception can be made to award grace marks to the petitioner, which will enable him to pass the BDS course itself. The University has inherent powers to take such a decision in extra- ordinary circumstances. Hence, the writ petition may be allowed.
9. Heard Sri. Johnson Jose Panjikkaran, the learned counsel appearing for the petitioner, Sri.P.Sreekumar, the learned Standing Counsel appearing for the respondents 2 and 3 and Smt.Nisha Bose, the learned Senior Government Pleader appearing for the first respondent.
7WP(C).No.10153 OF 2020
10. At the outset the decision in Geethu.S cited supra has been overruled by a Division Bench of this Court in Medical Council of India vs. Dr Jayesh K.Thampi and others (W.A No.1559/2016). The Division Bench of this Court in paragraphs 19 to 21 has held as follows:
"19. Now keeping in mind the above criteria, let us read the substantive part of clause 14 of the MCI Regulation. The emphasis would be on obtaining minimum 50% marks in Theory as well as practical separately. This means that you cannot average out to reach 50%, meaning thereby, if a student gets 70% in theory but only 30% in practical, but on averaging he gets 50% yet he would not be declared to have passed the examination, as he has failed in practical. In other words, for theory and practical, individually he will have to secure 50%.
20. Then the expression reads "for passing examination as a whole". Plain, simple, ordinary meaning would be that it is an examination as a whole and passing in both the theory and practical is a mandatory requirement. In our view, on a plain and simple reading, it would lead to the unmistakable conclusion that a candidate has to pass simultaneously in both the papers to clear the examination. Conversely, if he fails in either theory or practical, then he will be regarded as failed over all and 8 WP(C).No.10153 OF 2020 has to repeat everything and not just the failed part.
21. We hold that a statute has to be read in its ordinary, plain and simple meaning and reading as such would be consistent with the consistent practice adopted both by the University and the MCI in the matter. Reading the statute as such, we do not think we can agree with the judgment first rendered by the Court and we would accept the view of the second judgment. This itself is enough to allow the appeals of the MCI and the University and to dismiss the rest of the appeals as preferred by the students."
(emphasis given)
11. The Hon'ble Supreme Court in Ran Vijay Singh vs State of U.P [ (2018) 2 SCC 357] observed as follows:
"32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally 9 WP(C).No.10153 OF 2020 great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination-whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. Thus unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
12. In view of the categoric declaration of law by the Hon'ble Supreme Court and the Division Bench of this Court in the aforecited decisions, I do not find any scope of interference by this Court in this writ 10 WP(C).No.10153 OF 2020 petition.
13. The learned counsel for the petitioner contended that the Division Bench decision is not applicable to the facts of the case because that was a case where there were Regulations and it pertains to Post Graduate studies, whereas, in the present case it relates to an Under Graduate BDS course for which there is no Regulation. 14. Clause (i) of Ext P2 lays down the condition for criteria for a pass.
i) Criteria for a pass:
i. Fifty percent of the total marks in each subject computed as aggregate for a) theory, i.e., written, viva voce and internal assessment and b) practicals including internal assessment (125 marks out of 250). ii. A candidate shall secure a minimum aggregate of 50% marks in the theory section, which includes University theory examination, viva voce examination and theory internal assessment (i.e., a minimum of 75 marks out of 150). Besides this there should be a separate minimum of 50% in the university theory examination (i.e 50 marks out of 100).
iii. A candidate shall secure minimum aggregate of 50% marks in practical/clinical section, which includes University practical/clinical examination and 11 WP(C).No.10153 OF 2020 practical/clinical internal assessment (i.e a minimum of 50 out of 100 marks). Besides this there should be a separate minimum of 50% in the University practical/clinical exam (i.e 40 marks out of 80) iv. In case of Pre clinical Orthodontics, Pre clinical Prosthodontics and Pre clinical Conservative Dentistry in 2nd BDS examination, where there is no written examination, minimum for pass is 50% of combined total marks of the University practical, viva voce and the internal assessment (i.e a minimum of 50 out of 100 marks) for each subject. Besides this there should be a separate minimum of 50% for the University practical examination (i.e 30 marks out of 60).
v. A candidate who obtains 75% and above of grand total marks is eligible for Distinction. Successful candidates- who obtain 60% to 74% of grant total marks i.e total of all subjects, shall be declared to have passed the examination in first class. Other successful candidates will be placed in second class. Only those candidates who pass the whole examination in the first attempt will be eligible for distinction or first class.
(emphasis given)
15. Clause (i) i. is unambiguous. It stipulates that for declaration of pass in a subject, the student has to secure 50% of the total marks in the subject computed as aggregate for a) theory b) practicals. The above 12 WP(C).No.10153 OF 2020 criteria for securing a pass has to be interpreted in its plain and literal meaning and have to be read conjunctively. Thus, it cannot be contended that there is no Regulations for the BDS Course which stipulates that the student need not secure 50% marks in the theory as well as practicals. The ratio decidendi in Geethu.S (cited supra), wherein the learned Single Judge of this Court held that, the repeated appearance in examinations under the Regulations has no rational nexus with the object sought to be achieved and that the insistence as per the Regulations that a candidate who fails in one subject either theory/practical has to appear for all the examinations including theory and practical is unreasonable and arbitrary, was overruled by the Division Bench in W.A No.1559/2016.
16. Therefore, in light of the categoric declaration of law in W.A No.1559/2016, there is no room for any further interpretation on the said aspect. 13 WP(C).No.10153 OF 2020 In light of the Regulations in Clause (i) of Ext P2, the petitioner is not entitled for a declaration that he has passed in the subject Oral and Maxillofacial Surgery. Nevertheless, considering the fact that Ext P4 representation is pending consideration before the third respondent, I direct the third respondent to consider Ext P4 representation submitted by the petitioner and pass appropriate orders on the same, in its next proposed meeting.
The writ petition is disposed of accordingly.
Sd/-
C.S.DIAS
SKS/1.7.2020 JUDGE
14
WP(C).No.10153 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE FINAL BDS DEGREE EXAM
RESULTS BEARING REG NO.140021660 DATED 05.09.2019.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF BS COURSE REGULATIONS OF THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE FINAL BDS DEGREE EXAM RESULTS BEARING REG NO. 140021660 DATED 24.03.2020.
EXHIBIT P4 TRUE COPY OF THE E-MAIL SENT BY THE PETITIONER TO 3RD RESPONDENT DATED 29.04.2020.