ORDER I.A.No.3024 of 2014 1. An interlocutory application has been filed wherein prayer has been made to allow him to amend the writ petition by incorporating the prayer made in the interlocutory application to the effect that the authority be directed to allow the petitioner to appear in the 2nd professional MBBS (2011 Batch), 2014 Annual Examination. 2. The prayer in the facts and circumstances is hereby allowed. 3. Let the aforesaid I.A form part of the main application. W.P.(C) No.1814 of 2013 4. The grievance which has been raised by the petitioner in this writ application is that despite the provision contained in regulation of Medical Education, 1997 permitting the University to award maximum of five marks to a student who has failed only in one subject, the respondent-University has not given single mark in the Anatomy (practical) paper of the first year examination of the session 2011-16. 5. According to the case of the petitioner, the petitioner did take examination of the first year MBBS but he failed in practical paper as the petitioner got three marks less than the pass mark. When the matter came up before the University to consider to grant grace mark maximum limit of which is five marks, the University took a decision to the effect that no grace marks be awarded in practical/clinical portion of the subject for all M.B.B.S. Examinations. However, it was decided that maximum of five marks be awarded as grace mark in theory portion only of a subject in M.B.B.S course. That decision was communicated to the Director, RIMS, Ranchi vide letter no.Ex/C/248 dated 10.11.20122 as contained in Annexure 3. 6. Being aggrieved with that order, the petitioner has filed this application. 7. Mr. Tandan, learned counsel appearing for the petitioner submits that by virtue of the provision as contained in Section 33 of the Medical Council of India Act, 1956, regulation has been framed in the year 1997 by the Medical Council of India wherein clause 13(10) of the said regulation does stipulate that the grace marks upto the maximum of five marks may be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subjects. In that event, there was no rational on the part of the authority to take a decision that they will not award five grace marks in practical/clinical examination, rather they will be giving five grace marks in the theory paper. 8. Similar issue fell for consideration before the Kerala High Court in a case of Arun Mazhi Varman K and others vs. The University of Calicut [NP(C) No.37955 of 2010 (IT)] as the petitioners in that case had also not been given grace mark in the practical examination, in view of the decision taken by the University to the effect that the grace marks shall be awarded only in theory paper. That decision was set aside and the University was directed to grant five grace marks in the practical examination to each of the petitioners. 9. Similar is the case here and therefore, since no rational seems to be there in taking such kind of decision, the impugned order needs to be set aside wherein decision has been taken to the effect that grace marks shall not be awarded in practical examination. 10. Mr. Sinha, learned counsel appearing for the University submits that it is the discretion of the authority which has been spelt out in clause 13(10) of the regulation, to award grace marks or not to award grace marks to the candidate who has failed in one subject and therefore, in terms of the said clause, one cannot claim grace marks be awarded as a matter of right. 11. It be stated that in exercise of power conferred under Section 33 of the Medical Council of India Act, 1956 and with the previous sanction of the Central Government, Medical Council of India has framed regulation on Graduate Medical Education, 1997. One of the clauses, clause 13(10) pertains to the matter relating awarding of the grace marks. It does provide that grace marks up to a maximum of five marks may be awarded at the discretion of the University to a student, who has failed only in one subject but has passed in all other subjects. 12. One of the clauses, clause 13(10) pertains to the matter relating awarding of the grace marks. It does provide that grace marks up to a maximum of five marks may be awarded at the discretion of the University to a student, who has failed only in one subject but has passed in all other subjects. 12. It is true that discretion lies with the authority to grant grace marks to the student or not but once the decision has been taken to the effect that five grace marks would be awarded to a student who has failed in the theory examination, it was not just on the part of the authority to deny such benefit to the student, who has failed in practical examination. There does not appear to be any rational for taking such decision. Had there been any reason or rational for taking such decision, one would have have some idea as to why decision has been taken for not awarding five grace marks to the student who has failed in practical examination. Since no such reason has been assigned, the said decision can certainly be said to be discriminatory. Accordingly, the decision taken by the University to the effect as has been pointed out above, is hereby set aside. 13. The respondent-University is directed to award grace mark as provided in the regulation 1997 to the petitioner in practical examination. 14. Consequently, if the petitioner on awarding five grace marks comes out successful, he be allowed to take second year M.B.B.S examination for which he be permitted as a special case to fill up form and to pay requisite fees by 11.07.2014. 15. With this observation, this application stands disposed of. 16. Let a copy of this order be handed over to the learned counsel appearing for the RIMS and the University for needful.