Andhra HC (Pre-Telangana)
M.Venkata Vishnu Vardhan vs Medical Council Of India, Rep. By Its ... on 10 August, 2015
Equivalent citations: AIR 2015 HYDERABAD 157
Author: A. Ramalingeswara Rao
Bench: A. Ramalingeswara Rao
THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.13154 of 2014 10-08-2015 M.Venkata Vishnu Vardhan..... PETITIONER Medical Council of India, rep. by its Secretary, Pocket-14, Sector-8, Dwaraka Phase I, New Delhi 110 077 and another .....RESPONDENTS Counsel for the petitioner: Sri T.P.Acharya Counsel for respondents: Sri A.Prabhakar Rao <Gist: >Head Note: ?Cases referred: (2007) 10 SCC 201 HONBLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.13154 of 2014 ORDER:
Heard the learned counsel for the petitioner and the learned Standing Counsel for the 2nd respondent.
The petitioner was a student of Government Medical College, Anantapur and he appeared for the Final MBBS Part-II examinations held in February, 2014. There are four subjects in Final Year MBBS Part-II, which is a final examination. If the candidate is unable to secure minimum marks in one paper, he would be given five grace marks provided he passed in the other three papers. The papers are Medicine, Surgery, Obstetrics and Gynaecology and Pediatrics consisting of two papers each. It is his case that it was declared that in Medicine paper, he secured 72 marks in Theory and Orals, 50 in Practical and 26 in Internal Assessment, thus in all, he secured 148 marks and the minimum marks required are 150. Similarly in Surgery paper, he secured 68 marks in Theory and Orals, 52 marks in Practical and 28 in Internal Assessment and he secured 148 marks, and 150 marks are the minimum marks to be secured. Accordingly, he was declared as failed in the above two subjects. He filed W.P.No.10575 of 2014 seeking revaluation of Medicine paper and after production of marks in Papers III and IV secured in General Medicine and Surgery, he withdrew the said writ petition on 23.04.2014 with liberty to question the procedure adopted by the 2nd respondent in awarding marks.
It is the case of the petitioner that the Internal Assessment marks are only eligibility criteria for appearing for University Examination and they should not be counted for the purpose of verifying whether the candidate passed or failed. As per the MCI Regulation No.11.3.8, criterion for passing in a subject is that a candidate shall obtain 50% of marks in University conducted examination separately in theory and practical. But he was declared to have failed by taking the marks in Internal Assessment also. In his case, the paper was valued thrice and the best of two should be taken. The practice adopted by the 2nd respondent is contrary to the Regulations and practice that is being followed in Karnataka and Tamilnadu. In those circumstances, he filed the writ petition seeking a declaration that he passed in Final Year MBBS examination held in February, 2014.
A counter affidavit is filed admitting the appearance of the petitioner for Final MBBS Part-II examination held in February, 2014. It is stated that there are four subjects in Final Year MBBS Part-II, viz., Medicine, Surgery, Obstetrics and Gynaecology and Pediatrics. In respect of Obstetrics and Gynaecology and Pediatrics, he secured more than 50% of total marks in aggregate, i.e., 122 marks out of 200 in Obstetrics and Gynaecology and 55 marks out of 100 marks in Pediatrics and passed in those two subjects, but in respect of Medicine and Surgery, he got only 148 marks in Medicine out of 300 marks and secured 148 marks in Surgery out of 300 marks, thus he failed in those two subjects. The Regulations of the Medical Council of India, 2003, which were in force at the time of admission of the petitioner to course are applicable till the completion of the course of study and the amended Regulations issued by the Medical Council of India (MCI), 2012 are not applicable to his case. The University is following the Regulations framed by the MCI in the year 2003. The counter further states that in the Surgery paper, in the first valuation, the petitioner got 22 marks and in the second valuation, he secured 15 marks and since the difference is more than 20% between the two valuations, the answer paper was referred to for third valuation, where he got 18 marks. As per the Notification issued by the University dated 08.06.2011 approved by the Executive Council, if there is a difference of 15% or more in between the first valuation and the second valuation, the paper shall be subjected to third valuation by the new set of examiners appointed by the University. Out of the marks awarded in two valuations, closest among the first and second valuations to the third valuation will be awarded to the answer paper. The close marks to the third valuation, i.e., 15 marks and the third valuation marks of 18 were taken, which came to 33 marks and an average of 17 was awarded to the petitioner.
The petitioner filed a reply affidavit stating that the contention of the 2nd respondent that MCI Regulations issued in the year 2012 were not applicable to the petitioner was denied. Though he joined in the year 2008, since he appeared for Final Year MBBS Part-II examination in February, 2014, and the amended regulations came in the year 2012, those Regulations are applicable. He further submitted that the Double Valuation System was notified on 08.06.2011 and if the contention of the 2nd respondent is correct with regard to application of old Regulations of 2003, since the said notification came subsequent to his admission, it could not have been applied to his case. The 2nd respondent cannot take different stands in respect of application of Regulations and notifications.
The above pleadings make it clear that the petitioner passed in Obstetrics & Gynaecology and Pediatrics. The only dispute is with regard to the Medicine and Surgery in the Final Year MBBS Part-II examination. It was stated that the petitioner secured the following marks:
Subject I Valuation Theory II Valuation Theory III Valuation Theory Total Marks (Average) Practicals Internals Orals Total Medicine IA 15 17
--16 50/100 26/60 7/20 148/300
Medicine IB 15 17
--16
Medicine II A 15 14
--15
Medicine II B 18 18
--18
TOTAL:65
Subject I Valuation Theory II Valuation Theory III Valuation Theory Total Marks (Average) Practicals Internals Orals Total Surgery IA 22 15* 18* 17 52/100 28/60 10/20 148/300 Surgery IB 12 07
--10
Surgery II A 18 14
--16
Surgery II B 13 16
--15
TOTAL:58
It is submitted by the learned counsel for the petitioner that the 2nd respondent should apply uniform standard and their contention that they would apply a latter notification dated 08.06.2011 introducing Double Valuation System, while denying the application of amended Medical Council of India Regulations 2012 to the case of the petitioner is self- contradictory.
The learned Standing Counsel for the 2nd respondent submits that after filing of the writ petition, the petitioner appeared for next examination and there also he failed in these subjects, but were are not concerned with the subsequent events. The Medical Council of India framed Regulations called Regulations on Graduate Medical Education, 1997. Chapter-IV of the said Regulations deals with examinations. In Regulation 12(2), the Internal Assessment was dealt as follows: "(2) Internal Assessment:
(i) It shall be based on day to day assessment (see note), evaluation of student assignment, preparation for seminar, clinical case presentation etc.:
(ii) Regular periodical examinations shall be conducted throughout the course. The questions of number of examinations is left to the institution:
(iii) Day to day records should be given importance during internal assessment:
(iv) Weightage for the internal assessment shall be 20% of the total marks in each subject:
(v) Student must secure at least 50% marks of the total marks fixed for internal assessment in a particular subject in order to be eligible to appear in final university examination of that subject.
The above sub-section 12(2)(v) has been substituted in terms of the notification published on 16.10.2003 in the Gazette of India.
(v) student must secure atleast 35% marks of the total marks fixed for internal assessment in a particular subject in order to be eligible to appear in final university examination of that subject."
There is no dispute with regard to the total marks awarded to each paper of Medicine and Surgery. Medicine and Surgery carry 300 marks. They are stated as follows:
"Each paper shall have two sections. Questions requiring essay type answers may be avoided.
(a) Medicine : Theory Two papers of 60 marks each 120 marks Paper I General Medicine
Paper II General Medicine (including Psychiatry, Dermatology and S.T.D.) (Shall contain one question on basic sciences and allied subjects) Oral (Viva) Interpretation of X-ray ECG, etc. 20 marks Clinical (Bed side) 100 marks Internal assessment 60 marks (Theory-30; Practical-30) Total 300 marks
(b) Surgery:
Theory-Two papers of 60 marks each 120 marks Paper-1-General Surgery (Section 1) Orthopaedics (Section 2) PAPER II-General Surgery including Anaesthesiology, Dental diseases and Radiology. (shall contain one question on basic sciences and allied subjects) Oral (Viva) Interpretation of Investigative date 20 marks Clinical (Bed Side) 100 marks Internal assessment 60 marks (Theory-30; Practical-30) 60 marks Total 300 marks Paper 1 of Surgery shall have one section in Orthopaedics. The questions on Orthopaedic Surgery be set and assessed by examiners who are teachers in the Orthopaedic surgery.
(c) Obstetrics and Gynaecology
(d) Padeatrics
Pass: In each of the subjects a candidate must obtain 50% in aggregate with a minimum of 50% in Theory including orals and minimum of 50% in Practicals/Clinicals. The marks mentioned against Clinical i.e. 60 marks have been substituted as 50 marks and internal assessment 60 (Theory- 30; Practical-30) words have been substituted by Internal assessment 40 (Theory-20; Practical-20) in terms of notification published on 20.10.2008 in Gazette of India."
Regulation 13 deals with Appointment of Examiners and Regulation 13(1) states that the grace marks up to a maximum of five marks may be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subjects. Thus, the above Regulations are clear that a candidate, in order to pass a subject has to secure 50% aggregate with a minimum marks of 50% in theory including orals and 50% in oral/practical. In the Regulations of Medical Council of India, there is no clarity with regard to valuation. However, the University issued a notification on 08.06.2011 introducing Double Valuation System after recommendation by the Board of Studies, Academic Senate and Executive Council. It reads as follows:
"1. To introduce and to implement double valuation for theory examination from PG exams April / May, 2011 onwards.
2. The average of the 2 valuations computed shall be taken as the FINAL MARKS awarded for that particular manuscript.
3. In double valuation, if the marks awarded show a deviation of >15% of the maximum possible marks for that paper, such manuscripts shall be subjected to 3rd valuation by a new set of Examiners appointed by the University.
4. Of the first two valuation marks, the marks closest to 3rd valuation will be reckoned as the appropriate among the first two. The average of the 3rd valuation marks and the closest marks of the first two valuation shall be the final marks awarded for that particular manuscript.
5. In view of introduction of double valuation and ensuing fair valuation, after announcement of the result, aggrieved students may apply for retotaling to the University after payment of Rs.2000/- per paper. Personal verification / Identification by the student is not required. Hence, any claim for personal identification of answer book is not permitted. However, the retotalling shall be done by a committee appointed by the University."
The Executive Council met again on 29.03.2012 wherein a decision was taken that the difference between the two valuations should be increased to 20% instead of 15% for considering third valuation of Answer scripts.
In the light of the above, we have to see whether the petitioner secured the required pass marks in accordance with MCI Regulations and the Notification issued by the University. At this stage, it is relevant to note that the Regulations, which were in force makes it clear that 35% of the marks of the total marks fixed for Internal Assessment make a student eligible to appear in final University examination of the subjects. In the final University examination, in order to pass a subject, the student must obtain 50% aggregate with a a minimum of 50% in theory including orals and minimum of 50% in practicals/clinicals. In respect of Medicine, the theory paper was assigned 120 marks and the orals paper was assigned 20 marks. The practicals and clinicals were assigned 100 marks. In respect of Surgery also, the same marks were assigned. The Internal Assessment contains theory as well as the practical of 30 marks each. The petitioner admittedly secured more than 35% of marks in the Internals and he was found eligible to appear for the final examination. It appears that the petitioner secured 72 marks in the Medicine Paper and 68 marks in Surgery out of 140 marks in theory including orals. In Medicine, he got 50% out of 100 marks and in Surgery, he got 52% out of 100 marks in practicals. Since he secured 72 marks out of 140 in Medicine, he shall be declared as passed in Medicine, but it was shown that he secured only 148 marks out of 300 by clubbing the theory, practicals, internals and orals. In fact, as per the Regulations, he should have secured 50% separately as aggregate in theory including orals and 50% in practical/clinicals. In view of the passing of the petitioner in the Medicine paper on his own and he could secure 2 marks less in Surgery paper, the University should have considered the awarding of grace marks up to 5 in Surgery in the case of the petitioner as provided in the Regulations.
In view of the disposal of the writ petition on the basis of facts existing in the case, this court feels that the examination of Shali Nair vs. Pondichery University decided by the High Court of Judicature of Madras on 31.10.2003 in W.P.No.25885 of 2003 relied on by the petitioner and on Maharashtra University of Health Sciences rep. by Dy. Registra v. Paryani Mukesh Jawaharlal and others are not necessary.
Hence, I am of the opinion that the declaration of the petitioner as having failed in the Final Year MBBS Part-II examination is contrary to the Medical Council of India Regulations.
The writ petition is, accordingly, allowed by directing the 2nd respondent to reconsider the case of the petitioner in the light of the Medical Council of India Regulations and declare the result accordingly. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any pending in this writ petition, shall stand closed.
______________________________ A. RAMALINGESWARA RAO, J Date: 10th August, 2015