Kerala High Court
Ashar.A.M vs Kerala University Of Health Sciences on 19 March, 2013
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY,THE 13TH DAY OF DECEMBER 2013/22ND AGRAHAYANA, 1935
W.P.(C).No.28528 of 2013 (M)
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PETITIONERS:-
--------------------------
1. ASHAR.A.M.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
2. NIRMAL KRISHNAN. B.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
3. JAICE DAVIS,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
4. ABIN GEORGE,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
5. AZIYASULTHANA,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
6. AMRUTHA ANAND,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
7. ANJALI SREEKUMAR,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
8. ABHIRAMI. R.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
9. SNIGDHA B.S.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
10. NEETHU P.T.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM 695 005.
W.P.(C).No.28528 OF 2013-M
- 2 -
11. ABHINYA N. SUDHEER,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
12. JAYALEKSHMI.S.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
13. KRISHNA.P.S.,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
14. U.KARTHIKA,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM - 695 005.
15. NAMITHA SRINIVAS,
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD P.O, TRIVANDRUM 695 005
BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SENIOR ADVOCATE)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
SRI.JIJI THOMAS.
RESPONDENTS:-
----------------------------
1. KERALA UNIVERSITY OF HEALTH SCIENCES,
REPRESENTED BY ITS REGISTRAR,
MEDICAL COLLEGE P.O., TRICHUR - 680 596.
2. THE MEDICAL COUNCIL OF INDIA,
REPRESENTED BY ITS SECRETARY,POCKET 14, SECTOR 8,
DWARAKA, NEW DELHI - 110 077.
R1 BY STANDING COUNSEL SRI.P.SREEKUMAR.
R2 BY STANDING COUNSEL SRI.ALEXANDER THOMAS.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04/12/2013, ALONG WITH W.P.(C). 27902/2013-K AND CONNECTED CASES, THE
COURT ON 13/12/2013 DELIVERED THE FOLLOWING:-
W.P.(C).No.28528 of 2013 (M)
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APPENDIX
PETITIONERS' EXHIBITS:-
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EXT.P1 COPY OF THE RELEVANT PAGES OF MEDICAL COUNCIL OF INDIA
REGULATION.
EXT.P2 TRUE COPY OF THE RELEVANT PAGES OF THE REGULATION
FRAMED BY THE UNIVERSITY.
EXT.P3 TRUE COPY OF THE RESULT SCORE OF THE 1ST PETITIONER.
EXT.P3(a) TRUE COPY OF THE -DO- OF THE 2ND PETITIONER.
EXT.P3(b) TRUE COPY OF THE -DO- OF THE 3RD PETITIONER.
EXT.P3(c) TRUE COPY OF THE -DO- OF THE 4TH PETITIONER.
EXT.P3(d) TRUE COPY OF THE -DO- OF THE 5TH PETITIONER.
EXT.P3(e) TRUE COPY OF THE -DO- OF THE 6TH PETITIONER.
EXT.P3(f) TRUE COPY OF THE -DO- OF THE 7TH PETITIONER.
EXT.P3(g) TRUE COPY OF THE -DO- OF THE 8TH PETITIONER.
EXT.P3(h) TRUE COPY OF THE -DO- OF THE 9TH PETITIONER.
EXT.P3(i) TRUE COPY OF THE -DO- OF THE 10TH PETITIONER.
EXT.P3(j) TRUE COPY OF THE -DO- OF THE 11TH PETITIONER.
EXT.P3(k) TRUE COPY OF THE -DO- OF THE 12TH PETITIONER.
EXT.P3(l) TRUE COPY OF THE -DO- OF THE 13TH PETITIONER.
EXT.P3(m) TRUE COPY OF THE -DO- OF THE 14TH PETITIONER.
EXT.P3(n) TRUE COPY OF THE -DO- OF THE 15TH PETITIONER.
EXT.P4 TRUE COPY OF THE MINUTES OF MEETING OF BOARD OF
STUDIES UG PRECLINICAL HELD ON 16-02-2013.
EXT.P5 TRUE COPY OF THE NOTIFICATION DATED 19-03-2013 OF THE
1ST RESPONDENT.
W.P.(C).No.28528 of 2013 (M)
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- 2 -
RESPONDENTS' ANNEXURES:-
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ANNEXURE R1-A TRUE COPY OF THE ORDER DATED 3.6.2011 ISSUED
BY THE UNIVERSITY.
ANNEXURE R1-B TRUE COPY OF THE AGENDA AND MINUTES OF THE
1ST MEETING OF THE ACADEMIC COUNCIL.
ANNEXURE R1-C TRUE COPY OF THE RELEVANT PORTION OF THE
MINUTES OF THE MEWETING OF THE ACADEMIC COUNCIL.
ANNEXURE R1-D TRUE COPY OF THE ORDER DATED 24.7.2012 ISSUED
BY THE UNIVERSITY.
ANNEXURE R1-E TRUE COPY OF THE RELEVANT PORTION OF THE
MINUTES OF THE GENERAL COUNCIL MEETING
HELD ON 29.12.2011.
ANNEXURE R1-F TRUE COPY OF THE COLLEGE WISE PASS PERCENTAGE OF
FIRST PROFESSIONAL MBBS DEGREE (2012 ADMISSIONS)
EXAMINATIONS, 2013 HELD IN AUGUST 2013 UNDER THE
KERALA UNIVERSITY OF HEALTH SCIENCES.
ANNEXURE R2(a) - TRUE COPY OF DECISION OF THE APEX COURT
REPORTED IN 1986 Supp.SCC 542.
ANNEXURE R2(b) - TRUE COPY OF DECISION OF THE APEX COURT
REPORTED IN 1999 (7) SCC 120.
ANNEXURE R2(c) - TRUE COPY OF DECISION OF THE APEX COURT IN
2004 (4) SCC 513.
ANNEXURE R2(d) - TRUE COPY OF DECISION OF THE APEX COURT
REPORTED IN 2011 (4) SCC 606.
ANNEXURE R2(e) - TRUE COPY OF DECISION OF THE APEX COURT
REPORTED IN 2007 (10) SCC 201.
ANNEXURE R2(f) - TRUE COPY OF DECISION OF THE APEX COURT
REPORTED IN 2002 (6) SCC 153.
vku/- ( true copy )
"C.R."
K. Vinod Chandran, J
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W.P.(C).Nos.28528/2013-M, 27902/2013-K, 27903/2013-K,
27993/2013-Y,28027/2013-C, 28041/2013-E, 28120/2013-L,
28388/2013-W, 28389/2013-W, 28390/2013-W, 28391/2013-Y,
28400/2013-Y,28428/2013-C, 28687/2013-I, 28688/2013-I,
28690/2013-I, 28701/2013-K, 28702/2013-K, 29031/2013-D,
29036/2013-D, 29072/2013-H, 29287/2013-I & 29562/2013-U.
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Dated this the 13th day of December, 2013
JUDGMENT
The 1st year students of the M.B.B.S. course, conducted by the respondent-University, who failed to measure up to the standards required by the University in one or various subjects on which they were examined in the 1st year, challenge the prescription of standards, of minimum 50% in Theory, by the University as violative of the stipulations of the Medical Council of India (for brevity "MCI").
2. The First Professional examination of the course consists of three subjects, in Anatomy, Physiology and Bio-Chemistry. In addition to the prescription of a minimum qualifying criteria in the Internal Assessment, which includes Theory and Practical with 20 marks set apart for each, each subject has two Theory papers of 50 marks each and a Viva voce of 20 marks with 40 marks set up for Practical examinations. For qualifying in the First Professional WP(C).No.28528 of 2013-M & - 2 - connected cases.
examinations, as is provided by the Regulations on Graduate Medical Education, 1997 [Exhibit P1 in W.P.(C).No.28528 of 2013], issued by the MCI, a candidate must obtain 50% in aggregate with a minimum of 50% in Theory, which includes Orals and minimum of 50% in Practicals. Hence, out of the total marks of 200, a student, to be declared passed, has to obtain a minimum of 100 marks in aggregate and 60 marks for Theory, including Viva voce, as also 20 marks in Practicals. What is assailed in all the writ petitions is the additional requirement prescribed by the respondent-University; requiring 50% of marks in the Theory papers. Hence, over and above the stipulations of the MCI, a student appearing for the First Professional examination in the respondent-University, to be declared passed, has to obtain a minimum 50% marks in Theory papers of each subject.
3. On behalf of the petitioners, learned Senior Counsels Sri.Kurian George Kannanthanam and Sri.N.Nandakumara Menon; and learned counsels Sri.A.Mohamed Mustaque, Smt.Vaheeda Babu and M.Sasindran addressed the Court. The respondent-University was defended by learned Standing Counsel Sri.P.Sreekumar, who was supported by Sri.Alexander Thomas, learned Standing Counsel for MCI.
4. The petitioners basically challenge the requirement brought in, as a Regulation, as being not within the competence of the WP(C).No.28528 of 2013-M & - 3 - connected cases.
authority and as having been brought out, giving a complete go-by to the provisions of the Kerala University of Health Sciences Act, 2010 (hereinafter referred to as "KUHS Act"). The prescription of standard by the University is also attacked as being incompetent, in so far as the legislative field has been completely occupied by the Regulations issued by the MCI. Though it is conceded that the Hon'ble Supreme Court has judicially recognized the right of the State and the Universities to prescribe higher standards of education; the prescription assailed herein would not be such prescription of higher qualification, but in effect would be repugnant to the Regulations of the MCI, is the contention. On a practical working of the requirement too, the petitioners allege, the repugnancy of the prescription made by the University tested against the regulations of the MCI, is writ large on facts and hence, the same is liable to be struck down. Arguments were addressed on the classification made as also the discrimination meted out to the students who gets admitted to the M.B.B.S. course, in the course commencing from 2012-2013 alone.
5. The learned counsel for the University seeks to support the prescription on grounds of expediency, upon which the Vice-Chancellor was competent to act, and maintains the prescription as one brought in to ensure higher standards of education. The learned WP(C).No.28528 of 2013-M & - 4 - connected cases.
counsel for the MCI supports the stand of the University and concedes to the University the power and authority to make such a Regulation in addition to that prescribed by the MCI. Reliance was placed by both sides on various judgments of the Hon'ble Supreme Court, this Court and other High Courts, which shall be referred to in the course of the judgment.
6. For the proper adjudication of the contentions raised on either side, one has to first look at the KUHS Act. It is admitted that when the prescription was made in the nature of Regulations, the First Statutes had not come into effect; which has been brought out only on 04.04.2013. The bulwark of the submissions of the petitioners is on the competence of the authority who is said to have framed the Regulations and the repugnancy of such Regulations tested with that of the MCI. The KUHS Act provides for Regulations by Section 44, wherein the Academic Council is conferred with such power, to be exercised in the manner prescribed by Statutes. By clause (i) of sub-section (1) of Section 44, such Regulations can provide for the courses of studies and conduct of examinations. Sub-section (2) of Section 44 makes effective, the Regulations made under the KUHS Act, from such date as the Academic Council may direct and also prescribes a mandate to lay it before the Governing Council. A hierarchy of authorities of the University WP(C).No.28528 of 2013-M & - 5 - connected cases.
is prescribed by Section 19, wherein the Senate heads the hierarchy, followed by the Governing Council, the Academic Council, the Board of Examinations, the Board of Studies, the Faculties, and then the various Committees. The Vice-Chancellor, by sub-section (2) of Section 9 is the principal executive and academic officer of the University and ex-officio Chairperson of the Senate, the Governing Council, the Academic Council and Finance Committee. The powers of the Vice-Chancellor have been enumerated in Section 12, wherein he has been conferred with the authority to oversee and monitor the administration of the academic programmes as also general administration ensuring efficiency and good order of the University, coupled with the responsibility for development of academic programmes. Powers too have been granted under sub-section (7) of Section 12 to act in an emergency situation and under sub-section (8) in the absence of Statutes and Regulations.
7. According to the petitioners, the Academic Council is the authority conferred with the power to frame Regulations, that too in the manner prescribed in the Statutes, with only the rider of laying it before the Governing Council. In the absence of Statutes, as is in the case herein, they concede the power of the Vice-Chancellor to make Regulations; but that, according to them, has to be done under WP(C).No.28528 of 2013-M & - 6 - connected cases.
sub-section (8) of Section 12 and not under sub-section (7), the latter of which provision has been invoked in prescribing the higher standards by way of Regulations.
8. On the undisputed facts, regarding the framing of Regulations, the Regulations, Scheme and Syllabus of the M.B.B.S. course from 2010-2011 were framed by the Board of Studies and recommended by the Faculty of Medicine, prior to consideration by the Vice-Chancellor. By proceedings dated 03.06.2011, produced as Annexure R1-A in W.P.(C).No.28528 of 2013, the Vice-Chancellor approved the same invoking the power conferred under sub-section (7) of Section 12. At that point of time, there was no Academic Council constituted; but, subsequently on such constitution, the decision of the Vice-Chancellor was placed before the first meeting of the Academic Council, as is evident from Annexure R1-B and Annexure R1-C. So much does not arise for adjudication in the present case, since the same is accepted as being made effective, by both sides. Later on, the Director of Medical Education (for brevity "DME"), put forward certain suggestions before the Governing Council meeting on 29.12.2011. The extract of the Minutes of the said meeting is produced as Annexure R1-E, which indicates the agenda put forward by the DME, including the prescription of minimum percentage of marks for University WP(C).No.28528 of 2013-M & - 7 - connected cases.
examinations. The Governing Council decision to make compulsory a separate minimum of 50% marks for Theory paper for University examinations, is also evident from Annexure R1-E. The same, after being placed before the Board of Studies and the Faculty of Medicine, again came up for consideration before the Vice-Chancellor, who approved it and made the prescription applicable from the admission year 2012-2013 onwards.
9. Briefly put, the challenge against the Regulation, prescribing 50% minimum marks for Theory papers, is anchored on the lack of statutory imprimatur and the same being repugnant to the Regulations of the MCI. That the power to frame Regulations is on the Academic Council brooks no dispute, going by Section 44 of the KUHS Act. Though the Academic Council was constituted at the time when the Regulation came into force, it is again undisputed that no Statute or Ordinance was in place and there was no procedure prescribed as to how a Regulation is to come into effect. The KUHS Act, 2010 established and incorporated the University of Health Sciences within the State of Kerala and affiliated all the medical and para-medical courses as also the colleges, conducting such courses, to the said University. The Regulation, Scheme and Syllabus of the MBBS course commencing from 2010-11; the first course in MBBS commencing under WP(C).No.28528 of 2013-M & - 8 - connected cases.
the University, was approved by Annexure R1-A at a point of time when the Academic Council was not convened and the University itself was in a nascent form. Annexure R1-A also invoked the power under sub-section (7) of Section 12 of the KUHS Act to approve the Regulation, which was framed by the Board of Studies and was recommended by the Faculty of Medicine. It was also placed and approved by the Academic Council at its first meeting, as is evident from Annexures R1-B and R1-C.
10. One could divine a departure from procedure, since the cart was placed before the horse, i.e., the Academic Council was the last body to see and approve the Regulations; while Section 44 indicates the very initiation of framing a Regulation at the Academic Council level. The expediency or requirement in bringing out such Regulations, when Medical Colleges, which had been carrying on medical courses under the various Universities in the State of Kerala for very many years, were affiliated to a fledgling University, cannot at all be ignored. Hence, in invoking sub-section (7) of Section 12, to approve the Regulations, in an emergency situation, the Vice-Chancellor was acting perfectly within the powers conferred under the said sub-section. The only change in situation, when the impugned Regulation was brought in, is that there was an Academic Council in place. But again, WP(C).No.28528 of 2013-M & - 9 - connected cases.
the Statutes or the procedure upon which the Academic Council could have acted, was absent.
11. By Section 24, the Academic Council has been conferred with the responsibility to lay down the academic policies with respect to maintenance and improvement of standards of teaching, research and other programmes. The Academic Council, chaired by the Vice-Chancellor, inter alia comprises of the Chairpersons of the Board of Studies, the Deans of Faculties and one Teacher representing each Faculty. The Board of Studies is constituted for every subject or group of subjects and is comprised of the Head of the Department in the University, six Heads of Departments in the affiliated Colleges, two post-graduate teachers and two persons nominated by the Vice-Chancellor. The "Faculties" are defined as 'the principal academic co-ordination authorities of the University in respect of studies and research in the subjects included in the Faculty'.
12. With respect to the impugned Regulation, it is to be noticed that the decision to prescribe minimum 50% marks for Theory papers did not emanate from any of these bodies or even the Vice-Chancellor. The suggestion put forward by the DME of the State was placed before the Governing Council, as disclosed from Annexure R1-E. The Governing Council accepted the agenda placed before it by WP(C).No.28528 of 2013-M & - 10 - connected cases.
the DME and the same was referred to the Board of Studies, which approved it at the meeting held on 20.01.2012. The proposal was also recommended by the Faculty of Medicine in its meeting held on 24.02.2012. Though it was argued that going by sub-section (2) of Section 44 the role of the Governing Council is only to peruse the Regulation as framed by the Academic Council, sub-section (1) belies the said contention. The Regulations made by the Academic Council is not laid before the Governing Council as a mere formality; but sub-section (1) mandates approval of the Governing Council. The present decision to prescribe a minimum percentage of marks for Theory papers having been made by the Governing Council and the said prescription not requiring any further deliberation on academic nuances, this Court would think that, placing it before the Academic Council would, in the context, be an empty formality.
13. Looking at Section 23, defining the powers of the Governing Council; it confers power to regulate the internal assessments and other evaluation procedures conducted by the affiliated colleges or institutions by sub-clause (xiii); and sub-clause (xvi) enables taking steps for the maintenance of academic standards. The prescription of a minimum mark for Theory can only be taken as an attempt to maintain certain academic standards, weaning out students WP(C).No.28528 of 2013-M & - 11 - connected cases.
who do not achieve the same, especially in the subject of medicine which requires not mere alacrity; but indepth learning and astute skills which has to be ensured by higher academic standards.
14. The petitioners would point out that Annexure R1-E, i.e., the decision of the Governing Council, was taken on 29.12.2011 while the Vice-Chancellor had invoked subsection (7) of Section 12 to approve the Regulations only on 24.07.2012. The contention seems to be that, in the intervening period there was absolutely no impediment in placing it before the Academic Council. This Court having found that the same was not a necessary requirement, since any Regulation made by the Academic Council would have to be approved by the Governing Council, the said contention is negatived. The attempt of the University is to sustain the Regulation despite the alleged irregularity, by taking recourse to Section 83. Section 83 provides that no act of an authority as defined under the Act or otherwise shall be deemed to be invalid merely on a procedural irregularity as indicated in sub-clause (i) and (ii). The said contention is countered by the petitioners on the ground that it is not an irregularity alone that they advance but one of gross illegality, in so far as the Academic Council having not been participated at all in the proceedings. The hierarchical supremacy of the Governing Council and the specific requirement of any Regulation made by the Academic WP(C).No.28528 of 2013-M & - 12 - connected cases.
Council to be approved by the Governing Council, would take the wind out of the sails, of such argument put forward by the petitioners. On the clear finding of the Regulation having emanated from the Governing Council itself, which has the necessary powers so to do, this Court need not look at Section 83 of the Act, for the Regulation can be sustained even otherwise. This Court finds that, the Regulation or the procedure, by which it was brought in, has the statutory imprimatur.
15. The reliance placed on the decision in Bavakutty v. University of Calicut [2005 (3) KLT SN 48 (Case No.58)] is not significant. As is noticed above, it was an emergency situation warranting invocation of powers under sub-section (7) of Section 12, since the academic year was commencing on 01.08.2012. Statutes were not framed and the University had to necessarily implement the directions issued by the Governing Council. Whether the Vice-Chancellor could have invoked powers under sub-section (8) of Section 12 is immaterial insofar as this Court has found the invocation of power under sub-section (7) of Section 12 to be proper.
16. The petitioners also contend that by sub-section (2) of Section 44, the Regulations are to be made effective from such date as may be directed by the Academic Council and such direction being absent, the Regulation cannot be said to have come into effect. The WP(C).No.28528 of 2013-M & - 13 - connected cases.
Vice-Chancellor, as has been found, was acting in expediency under sub-section (7) of Section 12 to bring in a Regulation before the commencement of the academic year. The first admissions admittedly were over on 25.07.2012 and the bringing into effect of the Regulations in the course of the academic year would definitely have raised a challenge, sustainable or not, on the ground of the rules of the game having been changed midway. The Vice-Chancellor has acted in conformity with the situation and brought in the Regulations on 24.07.2012, effective from the commencement of the MBBS course from the admission year 2012-13. The date as such need not be prescribed, since evidently it would apply for the admissions commencing from 2012-13.
17. The next contention is with respect to the Regulation being repugnant and running contrary to the provisions of the Regulations issued by the MCI. The Regulations issued by the MCI have been clearly held to be a subordinate legislation under Entry 66 of List I of the Seventh Schedule of the Constitution. It is also clearly recognized that by virtue of Entry 25 of List III of the Seventh Schedule, the State, along with the Union Government, has powers to legislate in matters of education, including medical education and universities, subject inter alia to the provisions of Entry 66 of List I. The Medical WP(C).No.28528 of 2013-M & - 14 - connected cases.
Council of India has been constituted under a legislation of the Union Government sourcing power from both Entry 66 of List I and Entry 25 of List III of the Seventh Schedule to the Constitution. Hence, the alternative contention of the petitioners is that the present Regulation entrench upon the field occupied by the Central legislation and also is repugnant to the Regulations issued under Entry 66. The powers of the States and the Centre in matters of education is no longer res integra.
18. Post-graduate degree and diploma admissions were made more stringent in Uttar Pradesh; by disabling any graduate who had less than 55% or 52%, respectively, from seeking admission. The Government Order bringing in such rigour was subject of challenge in Ambesh Kumar v. Principal, L.L.R.M.Medical College, Meerut [1986 (Supp) SCC 543], on the ground of encroaching upon the field occupied by the MCI Regulations, under Entry 66 of List I Schedule VII of the Constitution. The Court found that the stipulation resulted in many seats in various disciplines, in the post-graduation, remained vacant with the consequence of faculty members being maintained in excess of the teacher-student ratio. Nevertheless, the stipulation was upheld and the Government Order was sustained as a valid executive action under Entry 25 of List III, which did not at all trench upon the field occupied by Entry 66 of List I. WP(C).No.28528 of 2013-M & - 15 - connected cases.
19. Dr.Preeti Srivastava v. State of M.P. [1997) 7 SCC 120] was a case in which the question arose as to whether for admission to P.G. Medical courses the prescription of a lower minimum percentage of marks for reserved category was permissible. While 45% was the cut off marks for general category, the States prescribed round about 20% (slightly lesser or greater) for various reserved categories. Though not directly concerned with the question of validity of reservations at the post-graduate level in Medicine; a number of decisions of the Supreme Court, wherein doubts were raised as to such reservations at higher levels of education demanding higher proficiency, were noticed to hold that the "special provision under Article 15(4) has to balance the importance of having, at the higher levels of education, students who are meritorious and who have secured admission on their merit, as against the social equity of giving compensatory benefit of admission to the Scheduled Caste and Scheduled Tribe candidates who are in a disadvantaged position" (para 20). After noticing Entry 25 of List III and Entry 66 of List I of Seventh Schedule of the Constitution, it was held so in paragraphs 35 and 36:
"Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List-I which deals with laying down standards in institutions for higher education or research and WP(C).No.28528 of 2013-M & - 16 - connected cases.
scientific and technical institutions as also co-ordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. xxx xxx xxx For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education".
It was categorically held so in paragraph 39:
"In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down".
WP(C).No.28528 of 2013-M & - 17 -
connected cases.
20. Answering the specific issue raised, it was held that a Common Entrance Examination envisaged under the Regulations framed by the MCI requires fixing of minimum qualifying marks. The question whether lowering of minimum qualifying marks for reserved category candidates, in admissions to post-graduate level, was left to the MCI; but the Court held that there cannot be a widespread disparity between the minimum qualifying marks for reserved category and the general category. It is to be noticed that the specific contention of the States in the said case was that the Regulations issued by the MCI would only apply to prescribing standards of education and not to admissions. The Court negatived the plea; but categorically held that the standard prescribed by the MCI cannot be adversely affected by the State, but upheld any augmentation or prescription of higher standards.
21. The petitioners placed heavy reliance on two decisions of the Bombay High Court and the Madras High Court. Gaurav Uday Nagarsekar v. State of Goa [CDJ 2009 BHC 651] was a case in which post graduate admission to Dentistry was sought to be regulated by prescribing a requirement of 60% marks in the subject of speciality, over and above that prescribed by the Dental Council of India. The petitioner therein was rendered disqualified for admission to one subject of speciality, for reason only of not having 60% marks in that subject in the WP(C).No.28528 of 2013-M & - 18 - connected cases.
under-graduate examinations. Consequently a candidate having lesser cumulative merit than the petitioner stole a march over the petitioner, since she had the required 60% marks in the subject of speciality. It was held that the stipulation was not a prescription of higher standard; but would be in direct conflict with the prescription of "individual cumulative performance" as prescribed by the DCI. In the context of the "individual cumulative performance" prescribed by the DCI being completely and totally effaced; it was held that the State Legislature trenched upon the legislative field reserved for the Parliament, which field was fully occupied by the regulation of DCI. There it is to be noticed that the working of the additional requirement in effect diluted the norm prescribed by the DCI and the cumulative merit prescribed by the DCI, stood substituted. No such dilution of the minimum standard is apparent herein.
22. The Tamil Nadu Dr.M.G.R.Medical University v. P.Anand and others (W.A.No.901 of 2011 & connected cases, dated 16.11.2011 of the High Court of Madras) dealt with an identical challenge rooted on grounds of repugnance, discrimination and arbitrariness. An additional prescription whereby the practicals/clinical were divided into two separate branches of Clinical Surgery and Ortho Clinical with requirement of obtaining minimum of 50% in each was WP(C).No.28528 of 2013-M & - 19 - connected cases.
struck down, upholding the challenge on all the grounds raised. The University sought to sustain the guidelines as prescribing 'higher standards'; and the thrust of the contention was on the rising significance of Orthopaedics and the general tendency of the students to ignore the subject due to the relaxed standards of the MCI. The division so attempted by the University in Tamil Nadu was artificial and the emphasis on Orthopaedics could be said to be a matter best left for decision with the MCI itself. Though the grounds were identical, this Court is of the opinion that the prescription challenged therein and that assailed here stand on separate footing.
23. Considerable reliance has also been placed by the petitioners on Maharashtra University of Health Sciences v. Paryani Mukesh Jawaharlal [(2007) 10 SCC 201] to contend that the impugned Regulation is repugnant to that prescribed by the MCI. The said decision also referred to the Constitution Bench decision in Dr.Preeti Srivastava and followed it in so far as finding the State competent to prescribe higher standards than that prescribed by the MCI. However, what came up for consideration in the said case was the question whether the MCI Regulation permitted the aggregate of Theory including Orals and Internal (Theory) to be taken for the purpose of deciding the minimum 50% required for a pass. It was also contended WP(C).No.28528 of 2013-M & - 20 - connected cases.
that a minimum of 50% in Practicals, take in Practicals plus Internal (Practicals). The University contended that the same cannot be permitted, since the requirement was a separate minimum in Internal assessment and a minimum for Theory, including Orals (External), as also separately in Practicals (External). The stand of the students, contrary to the Regulations issued by the University, was supported by the MCI also. The Supreme Court, however, accepted the interpretation put forth by the University, illustrating how the stand of the students would in fact violate the Regulations of the MCI. Hence, it was held that the 35% in Internal assessment should be taken as an eligibility to appear for the University examinations and the ultimate passing of a candidate would depend upon the minimum prescribed for Theory with Orals, Practicals and Clinical (both Externals) as well as a 50% aggregate in Externals and Internals. This Court does not discern any deviation from the principle declared by the Constitution Bench in Dr.Preeti Srivastava (supra).
24. The Constitution Bench decision was followed in State of T.N. v. S.V.Bratheep [(2004) 4 SCC 513] and Visveswaraiah Technological University v. Krishnendu Halder [(2011) 4 SCC 606]. S.V.Bratheep (supra) will be discussed later.Visveswaraiah Technological University (supra) has held so in paragraph 13: WP(C).No.28528 of 2013-M & - 21 -
connected cases.
"Once the power of the State and the examining body, to fix higher qualifications is recognised, the rules and regulations made by them prescribing qualifications higher than the minimum suggested by AICTE, will be binding and will be applicable in the respective State, unless the AICTE itself subsequently modifies its norms by increasing the eligibility criteria fixed by the University and the State".
25. On the strength of the binding precedents, this Court finds that the Regulation made by the University would only ensure better standards and such prescriptions have been held to be well within the powers of the State.
26. Elaborate arguments have been addressed on the practical working of the Regulations. It is pointed out with specific reference to Exhibits P10 and P11 in W.P.(C).No.27903 of 2013 that in Exhibit P10 the candidate obtained 52/100 in Theory, 10/20 in Viva voce and 21/40 in Practicals. Having obtained 50% in Theory including Viva voce and also Practicals; and also 50% in Theory alone, the candidate in Exhibit P10 has been declared 'passed' in the subject. In Exhibit P11 the candidate obtained 48/100 in Theory, 17/20 in Viva voce and 27/40 in Practicals, but failed only for the reason of the candidate having not obtained 50% in Theory alone. Over all, the candidate in Exhibit P11 got 92/160 while the candidate in Exhibit P10 got only 83/160, but the former failed and the latter passed. In Practicals and Viva voce too the WP(C).No.28528 of 2013-M & - 22 - connected cases.
candidate in Exhibit P11 was more meritorious than the candidate in Exhibit P10. This lays bare the blatant and practical unworkability, is the contention.
27. Of course, a hypothetical situation may arise, wherein a person who got 60% in Theory would stand to be qualified, despite his having 'zero' marks in the Viva voce. There could also be a situation where a person who obtains 20 marks in Viva voce fails for reason only of his getting only 49% in Theory. What the learned counsel pointed out in Exhibits P10 and P11, is that there could be situations where one person who receives aggregate marks more than another would fail only for the reason of he/she having not obtained 50% marks in Theory papers. That, however, is a necessary consequence of prescribing minimum standards. It is also pertinent that the petitioners have not attempted to show this Court, instances of students having exceptional marks in Theory, having floundered in Viva voce, and by virtue of marks in Theory alone obtained a pass. The emphasis laid on practical skills does not have so much significance at the graduate level. It may also not be proper for this Court to proceed on mere hypothetical situations. Courts tread cautiously in matters of academic policy and hesitate to, nay desist from, interfering, unless shown blatant and obvious arbitrariness.
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connected cases.
28. The learned Standing Counsel for the University has produced before me a statistics on the pass percentage of the total students who appeared with reference to the 22 Medical Colleges in the State. It is seen that out of the total number of 2694 students, only 100 are before this Court, pointing out the alleged anomaly in prescription of minimum standards. The average pass percentage is 69.89. When the Government Medical Colleges as also two Christian Mission Medical Colleges have more than 80% of pass, a sizeable number of colleges, specifically 12 medical colleges, have 50 to 70 percentage of pass, while 3 medical colleges have less than 50%.
29. This Court is not well-versed in the subject of statistics. However, on the insistence of the learned counsel for the petitioners; pointing out the discrepancies in the practical working of the system, this Court reluctantly but meticulously went through each and every mark list produced herein. This Court has a sample of 100 in the above writ petitions, being the mark-lists of the petitioners in the writ petitions. However, the sample available is only of the students who have failed in one or more subjects and who do not have an exceptional merit even in the passed subjects. All have failed in one subject, many in two and some in all the three subjects.
30. On the basis of the fundamental principles of averages, WP(C).No.28528 of 2013-M & - 24 - connected cases.
this Court has come to the following conclusions:- In perusing the mark lists, this Court has looked at the marks awarded in the failed subjects as also passed subjects, as the latter would give some indication as to what was the general criteria for a pass. It is to be reiterated that the students, who are petitioners herein, cannot be termed to be the brightest students in the course. They are a mere 100 from among the total of 2694 candidates who appeared for the examinations, out of which 1941 passed. Even in the subjects in which the petitioners have passed, the marks for Theory are between 50 and 60; but in some cases above 60. The marks awarded for Viva voce out of 20, on looking at the 100 samples before this Court, range mostly between 11 to 16 and a significant percentage within that level is in the range of 12 to 14. There are, of course, instances where students who obtained 10 marks in the Viva voce have qualified. Only in very few instances, less than a handful students have got 8 and 9 marks for the Viva voce, but they have not reached the minimum standard in Theory too. There are also instances where students received 17 and 18 marks in Viva voce, all of whom, except three, have obtained 50% in Theory alone too. The three exceptions being the 5th petitioner in W.P.(C).No.27993 of 2013, 1st petitioner in W.P.(C).No.28389 of 2013 and the 2nd petitioner in W.P.(C). No.28687 of 2013. Of course, instances are there where students who WP(C).No.28528 of 2013-M & - 25 - connected cases.
got 15 and 16 marks for Viva voce, failed, but not in every case the marks for Theory were between 45 and 49, they were further lower. Such instances of students getting 15 and 16 in the Viva voce failing for reason of lack of minimum in Theory, is less than 50 in number. This has to be compared with reference to the total of 2694 students who appeared in the First Professional examinations. It is also very significant that not even in one single instance a student who has passed in a subject having obtained 50% or above in the Theory; has less than 50% in the Viva voce. Equally relevant is the fact that students herein, who got marks between 45 and 49, were disentitled from the grace mark of 5 for reason only of their having failed in more than one subject.
31. It can also be safely presumed from the marks awarded for Viva voce that the norm was 50% or above, since very few even among the failed students got less than that in Viva voce. This reflects the general evaluation pattern of Theory and Viva voce and the minimum norm in Viva voce being 50%, the insistence of 50% separate minimum in Theory is a reasonable prescription of standard, which is also higher than that prescribed by the MCI.
32. It is also to be noticed that the University has on prescribing the higher standards, without at all diluting the minimum WP(C).No.28528 of 2013-M & - 26 - connected cases.
standards prescribed by the MCI; provided for grace marks. A total of 5 marks is awarded as grace marks for Theory, to be awarded to those candidates who have failed in one subject alone. That is to say if a student does not acquire 50 out of 100 in a Theory paper and had passed in the other two, then if his marks are above 45 he would be entitled to be awarded the grace mark upto 5 and he would be declared as passed. This essentially takes out the sting, as argued by the petitioners, in a student being disqualified for reason alone of getting 49; i.e., one mark short of 50, in Theory. Such a student would be declared failed only if he has failed in more than one subject. Even based on the principle of averages, this Court is not convinced that the prescription of minimum standards by the University visits the students with blatant or obvious arbitrariness. Much less sustainable, would be the challenge on the ground of discrimination, since the passed students and the failed ones belong to two different classes, which classification cannot at all be faulted.
33. It is trite that Courts would not enter into such fields where expertise is required and would not import its reasonableness over and above that decided upon by bodies and institutions having competence and expertise in the particular field. The burden to prove unreasonableness lies heavy and is not easily discharged on a plea of a WP(C).No.28528 of 2013-M & - 27 - connected cases.
mere flaw in procedure or unfairness visited on certain individuals. Courts cannot exercise judicial review in a manner which reduces the jurisdiction itself to be an instrument of unreasonableness. It is not for the Court to say that the significance given to Theory is unreasonable. What an academic body looks for, especially in training professionals at the graduate level, is not the individual skill, but the over all performance of a candidate. Though the age old adage, deprecates "a jack of all trades who is master of none", in academic evaluation the over-all development of a candidate is what is important, especially at the initial graduation level where a student is first exposed to a concentrated study on a particular subject with avenues for specialization available at the higher levels of post-graduation and super-speciality. Neither in law nor in practise the prescription can be said to be running contrary to the Regulations of the MCI; nor is it repugnant to the prescription of the MCI for a pass with 50% minimum marks in Theory including orals. Such minimum standards having been prescribed by the MCI, it cannot be said that the State or the University can, in prescribing higher standards, only hike the percentage of marks and no other prescription could be brought in. This Court cannot take higher standards to be mere quantitative upgradation of marks and not at all a qualitative prescription of standards.
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connected cases.
34. Following the Constitution Bench decision in Dr.Preeti Srivastava (supra), the question framed in S.V.Bratheep (supra) was whether the prescription of standards made by the State Government is in any manner adverse to or lower than the standard prescribed by the AICTE. The AICTE prescribed two modes of admission in that case; one dependant on the marks secured in the qualifying examination, and the other by resort to a common entrance test. The State of Tamil Nadu prescribed a certain minimum percentage of marks in the related subjects, which was higher than the minimum prescribed in the qualifying examination. It was held; that would not lead to reduction of standards fixed by the AICTE. On facts, it was held that, if, the norm of the AICTE permitting admission on the basis of marks in the qualifying examination is followed, then common entrance test made applicable by the State Government would be an additional prescription. If the norm of the AICTE was taken as the common entrance test, then the prescription of higher marks than the prescription of a higher percentage of marks in the qualifying examination for being eligible to sit for the common entrance test was held to be an additional prescription. It was held so in paragraph 9:-
"In either event, the streams proposed by AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by AICTE is WP(C).No.28528 of 2013-M & - 29 - connected cases.
inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr.Preeti Srivastava case".
There is hence, neither trenching on the legislative field as set apart for the Parliament by Entry 66, nor can the prescription of minimum standards in Theory alone be held to be repugnant to the MCI Regulations.
35. Unreasonable classification is again alleged, on the ground that the Second Professional Course students who sit for the supplementary examinations, though appearing in the very same examinations, would be treated differently as far as evaluation is concerned. When students appearing for the supplementary examinations would be granted a pass with 50% in Theory, including the Orals, the First Professional Course students to whom Annexure R1-D applies, would be evaluated differently and would be failed on not obtaining 50% separate minimum in Theory papers. Second Professional course students though appearing in the supplementary examinations cannot be treated at par with or in the same class as the First Professional Course students. The Second Professional Course students who were not allowed to go to the next year without passing the First Professional Course examinations would have to be evaluated on the same standards as their peers have been evaluated. The WP(C).No.28528 of 2013-M & - 30 - connected cases.
candidates who failed to qualify in the First Professional examination and who appears in the supplementary examinations are neither placed with their batch, for continuance of their studies, nor are they put along with their junior batch. However, if a student is detained in a particular year for not having qualified in the examination, which requirement is essential for going to the next higher year, then such a situation would have to be taken into account by the University. That situation has not yet emerged and on an assumed unreasonable classification, this Court cannot strike down a Regulation.
36. A feeble attempt was made to contend that the present Regulation is applicable only to the admissions of 2012-13. This Court is of the opinion that the said contention, based on Exhibit P12 dated 19.11.2013 produced in W.P.(C).No.28120 of 2013, does not hold good. The notification speaks of a decision of the Academic Council, wherein a decision was taken to exclude the internal assessment marks from the mark list, in view of a judgment of the Hon'ble Supreme Court. The notification restricted it to the First Professional MBBS examination of 2012-13, meaning only that it would not be applicable to the prior admissions, wherein the evaluation was already done and mark list issued with the internal assessment marks. In fact, the notification speaks so:
WP(C).No.28528 of 2013-M & - 31 -
connected cases.
"The Board of studies (Pre Clinical U.G. and Clinical U.G.) meetings held on 5.9.13 has restricted the above decision of the Academic Council only to the 1st professional MBBS examination of 2012-13 batch and its subsequent supplementary examinations where the internal assessment marks will be considered only as an eligibility criteria and framed the following pass criteria for MBBS course which was approved by the Faculty of Medicine at its meeting held on 12/09/13, 5th meeting of Academic Council held on 07.10.2013 and 15th meeting of Governing Council held on 11/10/2013, which is applicable from 2nd professional MBBS examination of 2012-13 batch and for all examinations of MBBS course from 2013-14 batch onwards".
37. The notification indicates that the Faculty of Medicine, Academic Council and the Governing Council approved the said pass criteria, one of which is assailed in the writ petitions, and applied it to the Second Professional MBBS course of 2012-13 batch, (i.e., the batch of the petitioners herein) and from the 2013-14 batch onwards. The impugned Regulation, hence, has been subsequently approved by the Academic Council and that, if at all, provides ratification. The Regulation brought in as per Annexure R1-D, was by the above notification, approved for the subsequent batches also.
38. One other argument is the discrimination meted out to the students, in so far as the other Universities having more relaxed norms of evaluation. This particular issue in a different context was WP(C).No.28528 of 2013-M & - 32 - connected cases.
considered elaborately in Dr.Preeti Srivastava (supra) in paragraph 28, which is extracted herein below:-
"This argument ignores the reasons underlying the need for a common entrance examination for postgraduate medical courses in a State. There may be several universities in a State which conduct MBBS courses. The courses of study may not be uniform. The quality of teaching may not be uniform. The standard of assessment at the MBBS Examination also may not be uniform in the different universities. With the result that in some of the better universities which apply more strict tests for evaluating the performance of students, a higher standard of performance is required for getting the passing marks in the MBBS Examination. Similarly, a higher standard of performance may be required for getting higher marks than in other universities. Some universities may assess the students liberally with the result that the candidates with lesser knowledge may be able to secure passing marks in the MBBS Examination; while it may also be easier for candidates to secure marks at the higher level. A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates who have passed the MBBS Examination from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made. Similarly, candidates who have obtained very high marks WP(C).No.28528 of 2013-M & - 33 - connected cases.
in the MBBS Examination where evaluation is liberal, would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick. One must, therefore, also take into account the possibility that some of the candidates who may have passed the MBBS Examination from more "generous"
universities, may not qualify at the entrance examination where a better and uniform standard for judging all the candidates from different universities is applied".
39. The said observations were made with respect to admissions to post-graduate studies, but, it recognises and accepts the various systems of evaluation followed by the various Universities, subject, however, to conforming to the minimum standards required by the apex educational bodies; in this case the MCI. In the present scenario of intense professionalism and ever increasing competition, the Universities and professional schools strive for a name for themselves, which is achieved by the quality of professionals they sent out from their institutes. In seeking out professionals, it is not also uncommon for the employers, to look at the schools or institutions they were taught in and from which they qualified. The rigour of syllabi and the maintenance of higher standards, in an institute, speak eloquent for WP(C).No.28528 of 2013-M & - 34 - connected cases.
the professionals sent out from such schools. Such students, as professionals, stand out from others and lend further credence to the name acquired by their alma matter. If the University in its wisdom thought their students should be put to more rigour, that should be taken as a challenge to rise up to the standards. The students would do well to keep in mind the oath they need to take as a professional medical practitioner and imbibe the qualities; extolled by Hippocrates, at the threshold of studies itself. An oath, the fulfilling of which, grants "honor with fame among all men for all times to come" and failing "the opposite be thine lot". That would only stand them in good stead in the exactingly demanding profession voluntarily chosen; which, not only require them to soothe a fever and cure the common cold but confers upon them the awesome responsibility to alleviate pain, preserve life and, at times, avert death.
40. A similar question arose with respect to a Regulation framed by the respondent-University itself in relation to the BDS examination conducted in August/September, 2011. The Regulation challenged therein was an upgradation of the criteria for pass from 45% to a separate minimum of 50% for Theory. Therein also the Vice-Chancellor had invoked the powers under sub-section (7) of Section 12; of course, at that point of time the Academic Council was WP(C).No.28528 of 2013-M & - 35 - connected cases.
not constituted. The exercise of emergency powers was found to be proper by the learned Single Judge and the prescription was held to be only an upgradation of standards from the benchmark of minimum standards prescribed by the Dental Council of India (DCI). Ambesh Kumar, Dr.Preeti Srivastava and S.V.Bratheep (all supra) were specifically referred to and relied on by the learned Single Judge. The said judgment dated 30.01.2012 in W.P.(C).No.34131 of 2011 and connected cases was reversed by a Division Bench in W.A.No.192 of 2012 and connected cases, by judgment dated 25.02.2012. But, the same was subject of challenge in a batch of Civil Appeals before the Hon'ble Supreme Court and by order dated 11.07.2012, without going into the merits of the issues, the impugned judgment of the Division Bench was reversed and suitable directions were issued, so as to facilitate the University to implement the Regulations, even with respect to students who stood qualified as per the Division Bench judgment. The order of the Supreme Court in Civil Appeal Nos.5137-5150 of 2012 was also produced before this Court and this definitely lends further support to the stand of the University; insofar as the judgment of the learned Single Judge of this Court having merged with that of the Hon'ble Supreme Court (vide Kunhayammed v. State of Kerala [(2000) 6 SCC 359] .
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connected cases.
On the reasoning above, this Court finds that the Regulation brought in is not illegal, going by the provisions of the Act and definitely not irrational when looked at from the perspective of a prudent man. The irregularities in procedure advanced too, does not persuade this Court to strike down the Regulations. The writ petitions, hence, are found to be devoid of merit and fail. They are accordingly dismissed. There shall be no order as to costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
( true copy )