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2005 DIGILAW 234 (PAT)

Kumar Satya Prakash v. Patna University

2005-03-02

S.K.KATRIAR

body2005
Judgment S.K.Katriar, J. 1. Heard Mr. Baidyanath Thakur for the petitioners, and Mr. Syed Iqbal Ahmad for the respondents. We have also been assisted by Dr. Syed Ehteshamuddin, Pro-Vice Chancellor of the Patna University. 2. Four petitioners have joined this writ petition raising a seemingly joint cause of action which really is not correct and they have separate cause of action, which was overlooked by the Registry at the time of scrutiny. However, this defect in the frame of the writ petition has been detected during the course of submissions today and, therefore, it may not be in the interest of justice to confine this writ petition to one petitioner. However, the four petitioners have paid separate sets of court fee. Let it be brought to the notice of the learned Registrar General. 3. It is stated in the petition that the four petitioners had joined the MBBS Course of the Patna University, the classes and examination of which are conducted by Patna Medical College and Hospital, Patna. It is further stated in the writ petition that the petitioners have failed in MBBS, Phase III, Part-I examination details of which are given in paragraph-5 of the writ petition, and are set out hereinbelow : ----------------------------------------------------------------------- Candidate Subject Marks obtained Pass Mark ----------------------------------------------------------------------- Petitioner No. 1 Opthalmology 26 30 ----------------------------------------------------------------------- Petitioner No. 2 -do- 26 30 ----------------------------------------------------------------------- Petitioner No. 3 -do- 27 30 ----------------------------------------------------------------------- Petitioner No. 4 -do- 28 30 ----------------------------------------------------------------------- This is accompanied with the marksheets of the four petitioners of the relevant years marked Annexure-1 series. The petitioners raise a grievance before this Court that they have not been given the benefit of grace marks to which they are entitled under the Regulations of the University. 4 The learned Pro-Vice Chancellor has placed the relevant provisions of the Regulations governing the issue and has explained the manner in which the same has been applied in the case of each petitioner. I shall deal with them one by one hereinafter. 5. I must at the outset state that the pleadings on behalf of the petitioners are seriously wanting and merit dismissal on the ground of vagueness of pleadings. We have, however, taken a lenient view of the matter and decided to dispose of the matter on merits, particularly in view of the submissions of the learned Pro-Vice Chancellor. 5. I must at the outset state that the pleadings on behalf of the petitioners are seriously wanting and merit dismissal on the ground of vagueness of pleadings. We have, however, taken a lenient view of the matter and decided to dispose of the matter on merits, particularly in view of the submissions of the learned Pro-Vice Chancellor. The relevant provisions (Para-5 of the 1965 Regulations) are set out hereinbelow for the facility of quick reference : (5) That for the examinations in the Faculty of Medicine the Board of Moderators shall re-examine the following cases of failure : (a) In a single subject up to a maximum of five per cent of the total marks of that subject provided that in the cases so considered by the Board failure in each of the portions, namely, (a) written and Oral, (b) Practical or (c) Practical and Clinical, shall not exceed five per cent of the total marks in that portion, (b) In the written and oral portions of examination by not more than ten per cent of the total marks in the written and oral portions, provided that the candidate has secured sixty per cent of the total marks in Practical or Practical and Clinical portions of the subject. (6) There shall be no re-examination by the examiners in the Faculty of Engineering, Education, Law and Medicine." Paragraphs 1 and 2 of the Rules of Moderation of Results of MBBS Examinations are also relevant in the present context and set out hereinbelow for the facility of quick reference : 1. There shall be no moderation of the results in the clinical portions of the examination. 2. In the remaining portions the results shall be moderated as follows : (i) FIRST MBBS EXAMINATION (a) A candidate who has appeared in both the subjects of the examination but has failed in the aggregate of written-cum-viva-cum-practical portion of one subject by a margin not exceeding 5 per cent of the total marks allowed in the above portion of the subject shall be given the marks by which he is short and allowed to pass. (b) A candidate who has appeared in both the subjects of the examination but has failed in the aggregate of written- cum-viva-cum practical portion of both the subjects by a margin not exceeding 2 per cent in each subject of the total marks allotted in the above portion of the subject, shall be given the marks by which he is short and allowed to pass. (c) A candidate who has appeared in one subject only (having been exempted from the other) but has failed in the aggregate written-cum-viva-cum-practical portion by a margin not exceeding 3 per cent of the total marks in the above portion of the subject, shall be given the marks by which he is short and allowed to pass. (ii) 2nd MBBS and Final MBBS Examinations or where applicable. Final MBBS Part i and II Examinations (a) A candidate who has appeared in all the subjects of the examination but has failed in the aggregate of written-cum-viva-cum-practical portion of one subject only by a margin not exceeding 5 per cent of the total marks allotted in this portion the subject, shall be given the marks by which he is short and allowed to pass. (b) A candidate who has appeared in all the subjects of the examination but has failed in the aggregate of written-cum-viva-cum-practical portion of more than one subject by a margin not exceeding : (i) 3 per cent each in case of failure of two subjects. (ii) 2 per cent each in case of failure of three subjects. OR (iii) 1 per cent each in case of failure of all subjects; shall be given the marks by which he is short and allowed to pass. 5.(1) To summarise the position relevant in the context, it appears to me that the Board of Moderators shall re-examine the case of failures within the ambit of paragraph 5 of the 1965 Regulations with a view to help the failed candidates so that they are able to pass the examination with the aid of extra marks which they are not otherwise entitled, but are allowed in view of the special provisions of the Regulations which is known in common parlance as "grace marks", although I do not find the expressions occurring in the Regulations. In other words, a lenient and compassionate view is writ large on the face of it, which is by way of exception which the candidates really do not deserve on merit. The mode and manner in which, and the exception to which, the grace marks shall be allowed is indicated in paragraph 2 (b) of 1987 Regulations, paragraph-1 whereof lays down in unambiguous terms that this benefit of moderation of the results shall not be applicable to the clinical portion of the examination. 6. Now we shall proceed to apply these principles in the case of each petitioner. The marksheet of petitioner No. 1 is at page 15 of the brief (Annexure 1 series). The petitioner failed in two subjects. The petitioner has scored 14 marks in the Clinical portion of Obthalmology, whereas he is required to secure minimum of 15 marks, in view of paragraph 1 of the 1987 Regulations, this portion of the result cannot be subjected to moderation as a result of which he fails beyond redemption. Furthermore, the petitioner has also failed in Opthalmology. He has secured 27 marks out 60, whereas the minimum aggregate mark required to be secured is 30. According to paragraph 2(b) (i) even if the petitioner is given 3% of 60 marks, he would get 1.8 marks. I do not find any provision for rounding off in the Regulations. Even if a lenient view is taken, the petitioner gets 2 marks as a result of which the petitioner is unable to complete the aggregate of 30. This however does not end the woes of petitioner No. 1. He has secured only 48 marks out of 100, whereas the minimum aggregate marks in the Opthalmology paper is 50. The petitioner has thus presented a hopeless case. I, therefore, agree with the decision of the respondent authorities in declaring him failed. 7. In so far as petitioner No. 2 (Minu Kumari) is concerned, she has failed in two papers. In so far as Opthalmology is concerned, she has secured 28 out of 60 in the combined portion of theoretical and oral of Opthalmology, whereas she has to score a minimum of 30. She is entitled to the benefit of Clause 2(b) (i), as a result of which she will get 3% of 60 marks which comes to 1.8 and, after rounding off, comes to 2 and she reaches the minimum aggregate marks. She is entitled to the benefit of Clause 2(b) (i), as a result of which she will get 3% of 60 marks which comes to 1.8 and, after rounding off, comes to 2 and she reaches the minimum aggregate marks. This, however, does not end the problem of petitioner No. 2. She has also failed in ENT Paper wherein she has secured 18 out of 40 in theory portion, whereas she was required to score a minimum of 20 marks. She is entitled to have the benefit of Clause 2(b) (i), i.e. 3% of 40 marks which is equal to 1.2, and after rounding off ultimately comes to 1, and takes her on to 19 marks. She is yet short by 1 mark. The respondent authorities have, therefore, rightly declared her failed. 8. In so far as petitioner No. 3 (Ashish Ranjan) is concerned, he has failed in two papers. In so far as Community. Medicine is concerned, he has secured 29 out of 60 marks, whereas the. minimum marks to be secured is 30. Applying the provisions of Paragraph 2(b) (i), he is entitled to 3% of 60 marks which is equal to 1,8 marks, and the petitioner No. 3 will, therefore, be deemed to have passed the paper of Community Medicine. This, however, does not end his woes. He has also failed in the paper of Opthalmology on two counts. In so far as the theory portion is concerned he has secured 16 out of 40 marks, whereas the minimum marks required to be secured is 20. He is entitled to the benefit of Clause 2 (b) (i) as a result of which he is entitled to 3% of 40 marks which is equal to 1.2, and, after rounding-off comes to 1 mark and takes him on to 17 marks. He has also failed in the combined portion of theory as well as oral. He has secured 26 marks out 100, whereas he is required to score minimum of 30 marks. He is entitled 3% of 60 marks which is equal to 1.8 which, after rounding-off, comes to 2 marks, and takes petitioner No. 3 on to 28 marks. He yet does not reach 30 marks. The petitioner has, therefore, rightly been declared as failed candidate. 9. In so far as petitioner No. 4 (Prakash Kumar) is concerned, he has also failed in Opthalmology paper at two stages. He yet does not reach 30 marks. The petitioner has, therefore, rightly been declared as failed candidate. 9. In so far as petitioner No. 4 (Prakash Kumar) is concerned, he has also failed in Opthalmology paper at two stages. He has secured 16 out of 40 marks in theory portion, whereas he is required to secure minimum of 20 marks. Giving him the benefit of 3% out of 40, he gets 1.2 which after rounding-off comes to 1 and reaches 17 marks. 17. The petitioner fails. In so far as the total of theory and the oral portions are concerned, he has secured 26 out of 60 whereas the minimum aggregate marks required to be secured is 30 marks. Giving him the benefit of 3% of 60 comes to 1.8 marks, which, after rounding-off comes to 2 and takes the petitioner on to 28 marks which is yet short by 2 marks. Petitioner No. 4 has, therefore, rightly been failed. 10. In the results, I do not find any merit in this writ petition and accordingly dismissed.