Kerala High Court
Dr. Aizel Sherief vs Kerala University Of Health Sciences on 13 July, 2017
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939
WP(C).No. 24211 of 2017 (B)
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PETITIONER :
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DR. AIZEL SHERIEF
S/O. P.I SHERIEF MOHAMMED,
PALASSERIL HOUSE, THOTTUMUGHAM P.O,
ALUVA.5
BY ADVS.SRI.P.RAVINDRAN (SR.)
SRI.SREEDHAR RAVINDRAN
RESPONDENTS :
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1. KERALA UNIVERSITY OF HEALTH SCIENCES
THRISSUR - 680596, REPRESENTED
BY ITS REGISTRAR.
2. THE REGISTRAR,
KERALA UNIVERSITY OF HEALTH SCIENCE,
THRISSUR - 680596.
3. MEDICAL COUNCIL OF INDIA,
REPRESENTED BY THE SECRETARY,
POCKET 14, SECTOR 8, DWARAKA,
NEW DELHI. 110077.
R1 & R2 BY SRI.P.SREEKUMAR,SC,
R3 BY SRI.TITUS MANI VETTOM, SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 07/08/2017, THE COURT ON 18-08-2017
DELIVERED THE FOLLOWING:
bp
WP(C).No. 24211 of 2017 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: RELEVANT EXTRACT OF THE REGULATIONS WITH
EFFECT FROM 1.6.2010
EXHIBIT P2: TRUE COPY OF THE PROVISIONAL REPORT DATED
13.7.2017
RESPONDENT(S)' EXHIBITS :
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ANNEXURE R3(a): COPY OF THE APPEAL MEMORANDUM FILED
BY MCI- WRIT APPEAL 1535/2016.
ANNEXURE R3(b): COPY OF LETTER MCI-23(1)/2-016.MED/112168
DT 31/5/2016 ISSUED BY MCI TO THE KUHS.
//TRUE COPY//
P.A. TO JUDGE
bp
SHAJI P. CHALY, J.
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W.P.(C) No.24211 of 2017
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Dated this the 18th day of August, 2017
JUDGMENT
This writ petition is filed by the petitioner seeking to declare that the petitioner has successfully cleared the examination for theory papers for MS Orthopedics, and therefore, need not clear the test for theory papers again only for the reason that he has not secured pass mark for the practical test, and also seeking a writ of mandamus commanding respondents 1 and 2, not to insist the petitioner to retake the examination in theory papers as a condition for permitting him to appear for the practical test. Material facts for the disposal of the writ petition are as follows:
2. Petitioner, after completion of his MBBS course, is doing his three year MS Orthopedics course. As a part of attaining the Post Graduation, petitioner has to undergo the examinations comprising of two parts: (1) Theory and (2) Practicals including viva-voce. Regulations of the 1st respondent University, which are attached as Ext.P1, prescribe W.P.(C) No.24211 of 2017 2 the conditions for a post graduate medical student to be declared as "passed" or "failed". According to the petitioner, in W.P.(C) No.31364 of 2015, this Court has declared that to the extent KUHS Regulations require a post graduate student to attain a minimum of 50 per cent marks in theory and practical simultaneously in order to secure a pass in the examinations is inconsistent with the MCI Regulations. It is also stated that the MCI Act being a Parliamentary legislation, would have overriding effect over the provisions of the Regulations of the 1st respondent University.
3. It is submitted, petitioner has attained more than the minimum pass marks in the theory papers, but failed to obtain the stipulated marks for his practicals. In the normal course, in view of the judgment of this Court referred to supra, petitioner need only to have cleared the practicals to secure his MS Degree. However, the provisional report shows that petitioner has failed in the examination. It is also contended, requiring the petitioner to re-take the whole examination, when Regulations 3.16 of the 1st respondent University has been declared to be devoid of legal sanction by this Court, is arbitrary and illegal.
W.P.(C) No.24211 of 2017 3
4. Respondents 1 and 2 have filed a joint statement, refuting the allegations and claims and demands raised by the petitioner. It is submitted that the reliance made by the petitioner in the judgment rendered by this Court in 'Dr. Geethu S. v. Kerala University of Health Sciences and others' [2016 (2) KHC 325] cannot be applied in the case of the petitioner, as the Medical Council of India [MCI] has categorically stated that the Post Graduate Medical Examination has to be passed in a single sitting. Therefore, the stand of the MCI assumes greater significance in the light of the findings in paragraph 19 of the aforesaid judgment. The Medical Council of India as well as the 1st respondent filed writ appeals against the judgment in 'Dr. Geethu's case' (supra), and the same are pending consideration before a Division Bench of this Court. In similar circumstances, the students who were similarly placed like the petitioner has approached this Court with writ petitions placing reliance on the said judgment, and this Court did not grant any relief to them.
5. It is also stated that, petitioner has not challenged the regulation of the MCI, which prescribes that the student has to pass the examination as a whole. That apart, it is W.P.(C) No.24211 of 2017 4 contended, in Dr. Geethu's case, the issue in the light of the MCI regulation and the prescription made by the University that a student who fails in any paper has to appear in the whole examination afresh was considered. The University has only clarified the provisions contained in the MCI regulation, which is also in the same import. In the said circumstances, this Court found it fit to direct the University to frame regulations, and to seek clarifications from the MCI on the subject. The University has sought clarification from the MCI and has framed the new set of regulations for the post graduate medical course, and the same is awaiting publication in the official gazette. However, it is stated that, the absence of the University regulation will in no way help the petitioner, since the MCI regulation governs the field and the said regulation also insists for pass in the examination as a whole.
6. It is also contended that, the University is competent and authorized to make regulations which prescribe higher standards in the field of education, and the same is applicable in the case of post graduate medical education as well. Therefore, the University is competent to bring in regulations which are intended to bring in higher standards W.P.(C) No.24211 of 2017 5 and the same cannot be struck down on the ground that there is deviation from the regulations framed by the Medical Council of India.
7. The decision mentioned in Dr. Geethu's case resulted in the circumstances when the words "as a whole"
used in the MCI regulations was not clarified by the MCI. The learned Single Judge in the judgment in 'Dr. Geethu's case' (supra), granted liberty to the Medical Council of India to clarify the import of the idiom "as a whole". The deviation or variation of the KUHS Regulations from the MCI Regulation was observed only when the words "as a whole" were interpreted in a different way. Once the MCI has clarified the position and has taken stand in the writ appeals filed by them to the effect that the words denote passing the whole examination in a single sitting, there remains no deviation or difference between the two regulations. The pass percentage in the post graduate examinations conducted by the University is around 85% which is on the higher side, considering the nature of the examination. The aim and purpose of conducting post graduate medical courses is to make qualified specialists in the field of medical science. The regulations issued by the W.P.(C) No.24211 of 2017 6 MCI make the point clear, and if the reliefs sought for by the petitioner are granted, it would dilute the very purpose of conducting post graduate medical education. Petitioner appeared in the examinations fully knowing the conditions prescribed for the post graduate course regulations framed by the MCI and the University, and it is not permissible to turn around and challenge the same at a later point of time. Other contentions are also advanced justifying the action of the University that a post graduate student shall pass the examination as a whole, which thus means, the theory and practical together, and the failure of the student in any one of them obligates the student to participate, in both the parts.
8. The 3rd respondent, Medical Council of India, has also filed a statement, and explanations are offered in the light of the judgment of this Court in 'Dr. Geethu' (supra). Among other contentions, it is stated that the "MCI Post Graduate Medical Education Regulations, 2000" prescribe standards of post graduate medical education for the guidance of Universities and to advise Universities in the matter of securing uniform standards for post graduate medical education throughout India, and that the above regulations are framed W.P.(C) No.24211 of 2017 7 under powers referable to List I, Entry 66, that 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, and though the State cannot, while controlling education in the State, impinge on standards in institutions for higher education, they are competent to prescribe additional norms that are complementary or supplementary to the prescriptions laid down by the Central Government.
9. It is also stated that this Court in the judgment in 'Dr. Geethu' on issue No.(i) held that there is no direct conflict/repugnancy between MCI Regulations and KUHS Regulations, but only held that the University Regulations are inconsistent with MCI Regulations. The learned Single Judge in the said judgment has held that the MCI is free to advise the University in the matter of securing uniform standards for post graduate medical education throughout India, as per Sec.20(1) of the Indian Medical Council Act, 1956, and directed that MCI should clarify as to whether each candidate should simultaneously pass the theory and practical securing 50% marks in each which can be incorporated in KUHS Regulations, within an outer limit of four months from the date of receipt of W.P.(C) No.24211 of 2017 8 the judgment.
10. Therefore, in order to erase all confusions and as an abundant caution, an appeal is preferred, which is pending consideration. According to the 3rd respondent, Regulation 14 of MCI Postgraduate Medical Education Regulations, 2000 as it is understood in its correct perspective, there is no inconsistency with the University Regulation, i.e., Regulation 3.16 and the words "as a whole" appearing in Regulation 14 of the Postgraduate Medical Education Regulations, 2000 means that exams shall be passed in one sitting, which is the same that is intended by the KUHS Regulations. The said position has been clarified to the University also.
11. It is also contended that, the contention advanced by the petitioner that the MCI has not made any amendment to Regulation 14 consequent to the judgment of this Court in 'Dr. Geethu's case' (supra), is not at all correct and the direction issued by this Court was only to clarify the position by the MCI. The words "as a whole" introduced substituting the words "the whole examination" by amendment notification dated 20.10.2008 by the MCI, was with the intention to clarify, to mean passing of all examinations as a composite unit. W.P.(C) No.24211 of 2017 9
12. Heard learned Senior Counsel for the petitioner and the respective Standing Counsel appearing for the University as well as the Medical Council of India. Perused the documents on record and the pleadings put forth by the respective parties.
13. The whole issue revolves around the judgment of this Court in 'Dr. Geethu's case' referred to supra. According to the learned Senior Counsel for the petitioner, as per the judgment rendered by this Court, Regulation 3.16 of the 1st respondent University insisting for pass in both theory and practical including viva-voce was deprecated by this Court in the judgment and it is held as follows:
"MCI Regulations do not explicitly state that a candidate should secure a minimum of 50 percent marks in the theory and practical simultaneously in order to be successful as in the KUHS Regulations in which case only there would be a direct conflict. KUHS Regulations on the other hand explicitly state that a candidate should secure a minimum of 50 percent marks in the theory and practical simultaneously in order to be successful which is absent in MCI Regulations. The inevitable conclusion therefore is that there is no direct conflict or repugnancy between the MCI Regulations and the KUHS Regulations in the prescription of a simultaneous minimum. But one cannot lose sight of the fact that a candidate could be declared as 'passed' if the MCI Regulations are adopted and at the same time declared as 'failed' if the KUHS Regulations are adopted. The KUHS Regulations are not consistent with or in conformity with the MCI Regulations in the matter of prescribing a minimum of 50 percent marks in theory and practical simultaneously in order to secure a pass in the examinations."
W.P.(C) No.24211 of 2017 10
14. Therefore, according to the learned Senior Counsel, having rendered such a clear cut finding by a learned Single Judge, without amendment of the MCI Regulations, the 1st respondent University cannot insist for a pass in theory and practical as a whole, since the petitioner has passed in theory papers, he need appear only for the practicals, and therefore, the insistence otherwise made by the University is against the proposition of law laid down by this Court in Dr. Geethu's case, and is against the tenor and terms of the judgment.
15. On the other hand, learned Standing Counsel appearing for the 1st respondent University submitted that, the notification dated 20.10.2008 issued was for bringing clarity on the issue and the words "as a whole" was introduced, substituting the words "the whole examination". That apart, consequent to the judgment rendered by this Court, Annexure- R3(b) clarification was issued by the Medical Council of India. It is also submitted that, "as a whole" means the entire examination i.e. theory and practical. It is further submitted that the State as well as the University are entitled to prescribe Regulations over and above the regulations prescribed by the MCI to provide better standards to W.P.(C) No.24211 of 2017 11 postgraduate medical education. It is also contended that, it is for the purpose of achieving maximum advantage in medical field, higher standards of education is fixed as benchmark and therefore, such stipulations cannot, in any manner, be watered down by the University or MCI. That apart, it is contended that, the learned Single Judge in 'Dr. Geethu's case' only directed the Medical Council of India to clarify the position with respect to the 'whole examination' and it was accordingly that clarifications are issued to interpret and mean that the entire examination including theory and practical. Therefore, petitioner having lost in the practical examination, even though passed in theory, has to undertake the whole examination.
16. Having evaluated the rival contentions advanced by the respective counsel, I am of the considered opinion that in 'Dr. Geethu's case', this Court expressed a doubt with respect to the words "Examination as a whole" stipulated in Regulation 3.16 of the regulations of the 1st respondent is commensurate with Regulation 14 of the MCI Regulations, and directed the MCI to clarify the position. It was doubting so only, this Court held that the Regulations of the 1st respondent University on that account has got some inconsistency with the W.P.(C) No.24211 of 2017 12 Regulations of the MCI. The Medical Council of India has now issued Annexure-R3(b) and has clarified the position as follows:
"PG Examination, "The examinations shall be organized on the basis of 'Grading' or 'Marking system' to evaluate and to certify candidate's level of knowledge, skill and competence at the end of the training.
Obtaining a minimum of 40% marks in each theory paper and not less than 50% cumulatively in all the four papers for degree examination and three papers in diploma examination. Obtaining of 50% marks in Practical examination shall be mandatory for passing the examination as a whole in the said degree/diploma examination as the case may be. The examination for M.D./MS, D.M., M.Ch shall be held at the end of 3rd academic year and for Diploma at the end o 2nd academic year. An academic term shall mean six month's training period."
17. The clarification made to the regulation is self- explanatory and is intended to carry a meaning that "the examination as a whole" means theory and practical together. Therefore, in my considered opinion, even though certain findings and observations were made by the learned Single Judge in 'Dr. Geethu's case' with respect to the regulation of the 1st respondent University, ultimately the MCI was given the liberty to clarify the position. Thereupon, the MCI has clarified the position in accordance with the directives contained in the W.P.(C) No.24211 of 2017 13 judgment. The Medical Council of India is the authority to do so, and now there is no inconsistency. Even though 1st respondent has not yet brought out the amendment in accordance with the clarification, MCI regulation is binding on all Universities. As contended by the learned Senior Counsel for the petitioner, there was no direction issued with respect to any amendment to be made in the Regulations of the Medical Council of India. Moreover, the Chambers new edition 20th century dictionary has interpreted the word "whole" to mean;
"the entire thing or a system or combination of parts".
Therefore, I have no reasons to think that the directives issued in 'Dr. Geethu's case' is any manner violated by the respondents.
18. Taking note of the totality of the circumstances discussed above, I am of the considered opinion that no manner of interference is warranted to the issue with respect to "the examination as a whole" for the Postgraduate medical course conducted by the 1st respondent University, meaning thereby to include the theory and practical inclusive of viva- voce.
W.P.(C) No.24211 of 2017 14
Resultantly, the writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE St/-
14.08.2017