G. C. BHARUKA, J. ( 1 ) THE petitioners herein are students of first year M. B. B. S. course. They are pursuing their studies in Dr. Ambedkar Medical College, Bangalore, which is affiliated to respondent-Rajiv Gandhi University of Health Sciences. These petitioners had sat at the first year M. B. B. S. examination which was conducted by the respondent-University in May 1998. The examination was held in three papers namely Anatomy, Physiology and Biochemistry. Each of these petitioners have failed in one of the three papers. They failed to secure the minimum of 50% in theory papers. The shortfall in marks is of 7, 6, 6 and 6 respectively. Under the said circumstances they have approached this Court seeking the following reliefs :"i) to declare that the petitioners are entitled for the gracing marks adopted in the case of a student with Register No. 96 MO 774 of Kempegowda Institute of Medical Sciences for a pass in the respective subject of May 1998 Examination of phase-I M. B. B. S. ;ii) to call for records as to gracing procedure adopted in May 1998 Examination of M. B. B. S. ;iii) for a writ of mandamus to include the gracing regulations in the scheme of examination in the Ordinance published by the University governing M. B. B. S. degree programme. " ( 2 ) ). The M. B. B. S. course conducted by the University is admittedly governed by the regulations framed by the Medical Council of India for Post-Graduate Medical Education, 1997 ("the MCI Regulations" for short ). The said regulation has been framed under Section 33 of the Indian Medical Council Act, 1956. In the case of Medical Council of India v. State of Karnataka, AIR 1998 SC 2423 the Supreme Court has held the said regulation to be mandatory having overriding effect over any State Law or regulation. Paragraph 25 of the report reads as under. "the Indian Medical Council Act is relatable to Entry 66 of List I (Union List ). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries 25 or 26 of List III (Concurrent List ). Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries 25 or 26 of List III (Concurrent List ). Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa), (fb) and (fc) (which have been introduced by the Amendment Act of 1993 w. e. f. August 27, 1992) and Clauses (j), (k) and (l) of Section 33. " ( 3 ) REGULATION X (10) of the MCI Regulations provides for grant of grace marks, which reads thus :"regulation X (10) : Grace marks up to a maximum of 5 may be awarded at the discretion of the University for a student who has failed only in one subject but has passed in all the other subjects. ". As per the above regulation, grant of grace marks in M. B. B. S. examination is circumscribed by two conditions namely; i) student should have failed only in one subject, and ii) at the discretion of the University, a maximum of 5 marks can be so awarded. ( 4 ) IN flagrant violation of the aforesaid conditions contained in the MCI Regulations, a committee constituted by Vice-Chancellor of the respondent-University made the following recommendations for grant of grace marks :"after detailed discussions, the Committee resolved to recommend for the award of moderation marks as follows in respect of all the examinations under Health Science faculty-"five marks to be added to the best advantage of the students as moderation marks not exceeding two marks per subject provided the candidate has secured 40 per cent in University conducted Theory Components and completely pass all the subjects prescribed for the Examination. This moderation marks shall not be applicable to practical component. This moderation marks shall not be applicable to practical component. "an order was accordingly issued by the Registrar on the same date in the following terms :-"pursuant to the orders of the Vice-Chancellor, moderation is to be made to an extent of a maximum of two marks per subject provided the candidate satisfies the following conditions :-1) Candidates should have obtained a minimum of 40% in the University conducted Theory Examination of the concerned subject. 2) Benefit of moderation to be extended provided the candidate passes the subject by obtaining 50% in the aggregate. 3) Moderation marks to be added only to the University conducted Theory Component. 4) Moderation is not applicable to Practicals/ Clinicals. By orderregistrar (Evaluation)A reading of the above would show that the University has introduced a system of grace marking which is inconsistent with the one envisaged by the Regulations framed by the M. C. I. Whereas the M. C. I. Regulations permit award of up to 5 grace marks in one subject provided the candidate has passed in all other subjects, the order issued by the Vice-Chancellor permits moderation i. e. grace marking to an extent of two marks per subject provided the candidate has obtained a minimum of 40% in the theory examination conducted by the University in the concerned subject, which meant that even if a student had failed in all the three subjects, he could have been favoured with grace marks. The order also restricts itself to the first M. B. B. S. examination of May 1998. ( 5 ) THE legality of the said decision of the Vice-Chancellor came up for consideration in Writ Petition No. 20578/98 and connected cases 31-7-1998 (Divya Shree K. R. v. Rajiv Gandhi Health University and others ). The learned single Judge hearing the writ petitions came to the conclusion that :". . . . . . ANY provision made for the award of the grace marks by the University which is in conflict with the M. C. I. Regulation would be legally bad. The order issued by the University is in that view clearly in violation of the Regulation made by the M. C. I. Award of grace marks by whatever name the same may be called in more than one subjects is not permissible in terms of the said Regulations. The order issued by the University is in that view clearly in violation of the Regulation made by the M. C. I. Award of grace marks by whatever name the same may be called in more than one subjects is not permissible in terms of the said Regulations. The fact that the beneficiaries may not have been given more than 5 marks in all the subjects put together does not make any material difference. What is important is that such marks could be claimed only in one subject and that too on the condition that the candidate claiming the same had passed in all other subjects. "any how this Court further held that :"coming then to next question the Award of two marks in each subject although not envisaged by the M. C. I. Regulations has not been questioned before me. It is possible that a large number of candidates who may have otherwise failed have been declared successful only on the basis of the award of the said moderation/grace marks. I am not, therefore, inclined to interfere with the award of such marks. . . . . . . . "this Court further directed that the University should make regulations for grant of grace marks keeping in view the M. C. I. Regulations fixing the norms providing outer limits fixed therein for grant of grace marks. After so holding it was further observed that :". . . . . . . IF on the basis of any such norms the petitioners or any one of them is found entitled to any additional grace marks over and above what has already been awarded by way of moderation the benefit so admissible shall be granted with all consequential reliefs by way of modification of the results and permission to continue in the next higher phase of the course. The University shall do the needful expeditiously and as far as possible within four weeks from today. "5a. The above judgment of the learned single Judge was upheld in Writ Appeal No. 3530/98, 25-9-98 : (reported in 1999 AIR (Kar) 49) (Ku. R. Shubha Sangeetha v. Rajeev Gandhi University of Health Sciences ). The University shall do the needful expeditiously and as far as possible within four weeks from today. "5a. The above judgment of the learned single Judge was upheld in Writ Appeal No. 3530/98, 25-9-98 : (reported in 1999 AIR (Kar) 49) (Ku. R. Shubha Sangeetha v. Rajeev Gandhi University of Health Sciences ). After the above judgment, the Vice-Chancellor of the respondent-University, under the guise of its powers under Section 13 (2) of the Rajiv Gandhi University of Health Sciences Act, 1994 framed the following regulations : "in exercise of the powers conferred under Sec. 13 (2) of the Rajiv Gandhi University of Health Sciences Act, 1994 (Karnataka Act No. 44 of 1994) the Vice-Chancellor has been pleased to make following Ordinances, as recommended by Committee referred to at (ii) above in the matter of moderating/gracing at the MBBS examination for 1996-97 batch of students-1) Candidates should have obtained a minimum of 40% in the University conducted Theory Examination (written) in the subject to be moderated/grace. 2) Benefit of moderation/gracing be extended up to a maximum of five marks for a student who has failed in only one subject and has obtained a minimum of 40% in the University conducted theory examination (written) of failed subject and has passed in all the other subjects provided the candidate passes the failed subject by obtaining 50% in the aggregate. 3) Moderation/gracing marks to be added only to the University conducted Theory (Written) Component. 4) Moderation/gracing is not applicable to Practicals/clinicals. This Ordinance is applicable to the 1996-97 batch of MBBS students for the examination of I, II and Final Phases including supplementary examinations. " the validity of the above Ordinance has been upheld by this Court in W. P. 26716/98, 25-9-98 (Vasudha B. Rao v. Rajiv Gandhi University of Health Sciences ). ( 6 ) COMING to the facts of the present cases admittedly the petitioners herein are not entitled to the benefit of any grace marks either pursuant to the earlier order of the Vice-Chancellor providing for two grace marks in each failed subject nor under the Ordinance quoted above which inter alia provides for grant of five grace marks in case the candidate fails in only one of the subjects as prescribed provided under the M. C. I. Regulations. ( 7 ) FACED with the above situation, the petitioners have questioned the grant of grace marks to one of the students of Kempegowda Institute of Medical Sciences who had failed in two subjects, namely, Biochemistry and Anatomy by one and four marks respectively. As admitted in the counter-affidavit filed by the Registrar of the University, the said student had been given benefit of the earlier order by giving one grace mark in the subject 'biochemistry' under the guise of moderation and subsequently once again he has been awarded four grace marks in Anatomy under the Ordinance framed pursuant to the direction of this Court in Divyashree case (supra) though taken independently, the awarding of grace marks in both the subjects and thereby declaring him having passed, was not permissible. But nonetheless in the first instance under the earlier order, the student was given one mark by moderation in Biochemistry and declared him as passed therein. Subsequently after framing of the Ordinance for grace marks in conformity with the M. C. I. Regulations as per the direction of this Court, he was granted four grace marks in Anatomy and thus declared passed in the second subject as well. The favour shown by the University to this student appears to be quite surprising and puts a question mark on their understanding of law. A student could not have been permitted to take benefit of both grace marking provisions to derive best out of them. The University could have given benefit to a student under the subsequent grace marking regulation made in conformity with the M. C. I. Regulation by awarding up to 5 grace marks only if as per his own performance at the examination he would have failed only in one subject. No doubt a student who had failed in only one subject by up to five marks and was given up to 2 marks under the earlier invalid grace marking order, is/was surely entitled to grace marks up to 5 in that subject in accordance with the subsequent validly made Ordinance. In the case of the student of Kempegowda Institute favour has been shown to him by violating both the grace marking instruments i. e. , the earlier order and the subsequent Ordinance. It is high time that the University authorities must take corrective measures to stop perpetuation of such illegal acts. In the case of the student of Kempegowda Institute favour has been shown to him by violating both the grace marking instruments i. e. , the earlier order and the subsequent Ordinance. It is high time that the University authorities must take corrective measures to stop perpetuation of such illegal acts. ( 8 ) SO far as the petitioners are concerned, admittedly, they are not entitled to any grace mark either under the earlier order passed by the Vice-Chancellor nor under the subsequent Ordinance made in conformity with the M. C. I. Regulations. Accordingly, subject to the directions set out above, writ petitions are dismissed. ( 9 ) A copy of this order may be given to Mr. Nazeer, counsel of the respondent-University. --- *** --- .