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2018 DIGILAW 2179 (MAD)

Nahakpam Rojita Devi v. Medical Council of India

2018-07-19

S.VAIDYANATHAN

body2018
ORDER : The sum and substance of the case on hand is as to whether there was more than one Regulation of the year 2009-2010 with regard to the award of grace marks and whether the students, as a matter of right, can demand the grace/incentive marks. 2. The Medical Council of India Regulations, 1997 (amended upto 10th March 2017) and the Examination Regulations of Pondicherry University, 2009-10 onwards, deal with the grace marks, which are extracted below : "Pondicherry University Regulations : Grace Mark: Grace Mark in case of failure in ONE out of all subjects for the particular semester : A passing board is constituted for finalizing the results of each phase. The Heads of the Departments or the members, the board allots grace marks maximum 5 for one subject. The grace mark of 5 will be added for one subject only after the marks obtained in the University examination are scaled down to 100% in the particular subject - Theory. The grace mark of 5 is applicable to all the University examinations of MBBS conducted semester-wise. No Grace marks will be added for practicals. Grace Mark will not be applicable when the candidate takes up the University Examination in a compartmental manner. Grace Mark will not be applicable when the candidate takes up a single subject in the University Examination" Medical Council of India Regulations : The 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. 3. According to the petitioners, nowhere in the MCI Regulations, it has been mentioned that the students who take up the examination in the compartmental system of examination, will not be entitled to grace marks. 4. In the present batch of cases, some of the students have failed in theory for more than once and some of them have failed in Practicals. Learned counsel for the petitioners relied upon the decision of a Division Bench of this Court reported in CDJ 2011 MHC 5744 = 2011 (6) CTC 801 = 2012 (1) MLJ 865 = 2011 Writ LR 1086 (The Tamil Nadu Dr.M.G.R. Medical University, Rep. by its Registrar and another Vs. P.Anand and others). Learned counsel for the petitioners relied upon the decision of a Division Bench of this Court reported in CDJ 2011 MHC 5744 = 2011 (6) CTC 801 = 2012 (1) MLJ 865 = 2011 Writ LR 1086 (The Tamil Nadu Dr.M.G.R. Medical University, Rep. by its Registrar and another Vs. P.Anand and others). The learned counsel for the petitioners also relied upon the judgment of a Division Bench of this Court in Writ Appeal No.869 of 2018, dated 28.04.2018 and in that decision, this Court's order in W.P.No.4497 of 2018, dated 09.04.2018, has been taken up on appeal and that the Division Bench has held that the grace marks could be granted, taking note of the Circular of the year 2016 and 2017, i.e. dated 29.06.2016 and 17.10.2017 of the University. 5. The respondent-University contended that there are no two Regulations and only one Regulation is applicable and that the Regulation produced before this Court is manipulated and that the petitioners would not be entitled to the grace marks. It is further submitted that when the Regulation is in force, the petitioner would not be entitled to grace marks. It is further contended by Mrs. A.V. Bharathi and Mr. Stalin Abhimanyu, learned counsel appearing for Pondicherry University that the petitioners are trying to mislead the Court, as the order passed by this Court on 10.04.2018 in W.P. No. 4565 of 2018 has become final and Writ Appeal has not been filed against the same. 6. That apart, the issue with reference to the judgment of the Division Bench (cited supra) in Writ Appeal No.869 of 2018, dated 28.04.2018 is with regard to the grant of marks for the improved internal assessment. The decision in W.A.No.869 of 2018 is distinguishable on facts and that said judgment will not support the case of the petitioners. They have not drawn the attention of this Court to the review order passed by this Court and in the Review Applications in Rev.A.Nos.67 to 75 of 2018, by order dated 10.04.2018, it has been categorically held that there can be no grace marks for practicals. 7. Mr. V.P. Raman, learned counsel appearing for MCI submitted that the issue with regard to the University Regulations, need not be gone into, as the students have joined the College after Regulations 2009-2010 have been notified. 7. Mr. V.P. Raman, learned counsel appearing for MCI submitted that the issue with regard to the University Regulations, need not be gone into, as the students have joined the College after Regulations 2009-2010 have been notified. But however, when they have joined, MCI Regulations of the year 1997 was in force and that the grace marks cannot be granted. It is further submitted that when the said Writ Appeal judgment was pronounced, they were not heard and in the review, the petitioners in the Review informed that they ought to have been heard, but at that stage, the Court held that as an one time measure, the persons can be granted the relief and that they are not entitled to grace marks for practicals. He further submitted that when this Court has already held that MCI Regulations will prevail than the University Regulations and that has attained finality, and that it cannot be superseded by any other Regulation that may be framed by the University. It is further submitted that the relief sought for by the petitioners cannot be granted. 8. During the pendency of the present batch of Writ Petitions, some of the students have passed the examinations and some of them have written the examination on compartmental basis and some have taken up the examinations as second, third or fourth attempt in the papers. 9. Heard both sides and perused the materials available on record. 10. A circular of the years 2016 and 2017, were issued, in which "compartment" would mean that it is the first attempt or only one attempt. That is to say that any person who is going to appear for a particular paper, for more than one time, or going to make an attempt after skipping the first attempt, would mean that the person is taking up the paper only in the second attempt. De-hors the Circulars of the year 2016 and 2017, referred to supra, the Court will have to consider only with regard to the grant of grace marks based on the Regulations that are framed by the University, provided the same is not inconsistent with the MCI Regulations. That is to say, MCI Regulations will prevail over the University Regulations. 11. De-hors the Circulars of the year 2016 and 2017, referred to supra, the Court will have to consider only with regard to the grant of grace marks based on the Regulations that are framed by the University, provided the same is not inconsistent with the MCI Regulations. That is to say, MCI Regulations will prevail over the University Regulations. 11. In this case, from the MCI Regulations relating to grace marks, that is extracted supra, it is clear that the grace marks upto a maximum of 5 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. This means that the student will have to take up the examination and in case he fails in that attempt, he would be entitled to get the grace marks as per the Regulations. If he is going to make another attempt, he would not be entitled for award of grace marks. 12. That apart, grant of grace marks is not a matter of right. It is very unfortunate that though this Court cannot sit in appeal over the administrative decision of the University or the MCI, the concept of grant of grace marks itself is absurd. If anybody who is going to grant the grace marks to a student, then the family members of that person who is granting the grace marks, must be asked to go for treatment under that person who is going to be given MBBS Degree. No Court can alter the Regulations of MCI, unless it is arbitrary or violative of the provisions of Law. 13. In this case, the MCI Regulations framed as early as in 1997, are valid and it stood test of time for two decades. That being the case, the students cannot as a matter of right, ask the University to grant grace marks, as it is only the discretion of the University and if that is exercised, it should only be for the first/one attempt and not with regard the subsequent attempts. The decision rendered in W.A.No.869 of 2018 (cited supra), referred to by the learned counsel for the petitioner, may not be apply to the facts of the present case. Firstly, that judgment deals with the improvement attempt of the examination. The decision rendered in W.A.No.869 of 2018 (cited supra), referred to by the learned counsel for the petitioner, may not be apply to the facts of the present case. Firstly, that judgment deals with the improvement attempt of the examination. Secondly, the Circular referred to in that judgment, which has also been referred to by me supra, cannot have an over-riding effect than that of the MCI Regulations. 14. That apart, no marks can be granted to the practical examination. It has been answered by the Division Bench in the Review Application Nos. 67 to 75 of 2018 (cited supra). In view of the observations of the Division Bench and that the University Regulations are very clear that no grace marks will be added to the practicals, the contention of the petitioners cannot be accepted. 15. The contention of the petitioners that the students who have joined along with them, have appeared and cleared the examination, cannot be accepted. The Apex Court in the decision reported in 2010 (2) SCC 59 (Union of India and others Vs. M.K. Sarkar) has held that if someone is wrongly extended the benefit, that cannot be cited as a precedent for claiming similar benefit by the others, and that the claim on the basis of equity, is permissible only when persons similarly placed, had been deprived of the relief. 16. In this case, if the contention of the petitioners is accepted, those who have already cleared the examination by grant of grace marks or having more than one attempt, then the degrees have got to be withdrawn. But those persons who have already got the benefit, unfortunately, by accident, became Doctors, and that they shall not be disturbed. We must pray that we don't fall prey to them. In this case, in view of the said decision of the Supreme Court reported in 2010 (2) SCC 59 (cited supra), the petitioners cannot claim that they must also be given the similar benefit. The details of those persons who have cleared the examinations, as stated by the petitioners, should find a place in the Web Portal along with the photos and other details. 17. It has been brought to the attention of this Court that in certain cases in this batch of Writ Petitions, i.e. W.P. Nos. The details of those persons who have cleared the examinations, as stated by the petitioners, should find a place in the Web Portal along with the photos and other details. 17. It has been brought to the attention of this Court that in certain cases in this batch of Writ Petitions, i.e. W.P. Nos. 22272, 28543 and 28544 of 2017 and 3837 to 3839 of 2018, 27160, 27163 and 29932 of 2017, the petitioners have passed the examinations by appearing in the subsequent examinations and cleared the exams without reference to the grace marks. Since those petitioners have already cleared the papers, the contention that the question of the attempt that they have appeared, has to be taken as an extra attempt and that they may be given one more chance, does not arise. 18. If the students have got more attempts, and it was not the last attempt, pursuant to the interim orders of the Court, the right to appear for the remaining attempts, is protected. But if the attempt made pursuant to the interim order of the Court, was more than the one prescribed under the Rules and Regulations, then this attempt shall be treated as the last attempt. Judges would not like to grant grace marks, as they may not like to take treatment under those persons, if they become Doctors. It is very doubtful whether the counsel who is appearing for these persons, will go and take treatment and dare enough to send their family members to those persons for treatment. 19. No one would like to risk their life. It is not fair on the part of the Court to make the other citizens of this country to suffer at the hands of those students by giving grace marks and make them Doctors. It will be an unjust act on the part of the Judiciary to direct the respondents to award grace marks, which is not in the welfare of the citizens. As a gesture, the Vice Chancellor has got powers to permit more attempts and that the dream of the parents to make the children Doctors, should not be spoiled. One more attempt may be granted by the Vice Chancellor, provided the students have not exceeded the maximum attempt. 20. It is to be noted that there is mushrooming growth of Doctors and hospitals. One more attempt may be granted by the Vice Chancellor, provided the students have not exceeded the maximum attempt. 20. It is to be noted that there is mushrooming growth of Doctors and hospitals. One day will come where the patients may not be in a position to find out as to who the real Doctor is. Similar incidents like fake Advocates, may crop up for medicine also, more particularly, after these kinds of litigations where many of them seek grace marks and some how, want to become Doctors and practice the profession. Hence, by way of abundant caution, this Court is of the view that the Medical Council of India, Dental Council of India and other authorities who can monitor the enrolment of Doctors, shall keep periodical watch so that proper Doctors come to practice to give treatment to the needy. That apart, this Court of the view that there must be amendment to the Regulations, scrapping the grant of grace marks. Even though the Regulations are very clear that the grace marks is only at the discretion of the University, the students/parents are trying to misuse the word "discretion" as a matter of right. 21. If there is any conflict between the Medical Council of India Regulations and the Pondicherry University Regulations, the Medical Council of India Regulations will only prevail and if the MCI Regulations is silent, there is no hard and fast rule for the University to fix the higher norms. It is not in dispute that the Pondicherry University Regulations that is prescribed on the date of the joining the College, shall continue till the date of completion of the course. MCI Regulations of the year 2008 will prevail for those who have joined prior to 2008 and after the introduction of Regulations 2009-2010, in respect of the candidates who have joined from academic year from 2009-2010, the new Regulations of the University/MCI will apply. 22. It is useful to extract the relevant clauses of Pondicherry University Regulations dealing with migration, and in Phase-III, Clauses 8 and 9 reads as follows : "8. Maximum duration permitted to complete MBBS Course is 8 years. An extension of 3-1/2 years only is allowed beyond the scheduled time for that batch of MBBS in which the candidate was enrolled. 9. Maximum duration permitted to complete MBBS Course is 8 years. An extension of 3-1/2 years only is allowed beyond the scheduled time for that batch of MBBS in which the candidate was enrolled. 9. In case of a candidate discontinuing in the middle and wishing to rejoin, the period of absence will be condoned only if a prior permission has been sought from the University before discontinuing. 10. Beyond this stipulated period, Mercy chance for any candidate due to prolonged illness, family problem, natural calamities, etc. will be made only by the Vice-Chancellor of the University." 23. The total number of (maximum) years prescribed to complete the MBBS Course is eight years. In the above Regulations, the word "eight" makes it clear that after the period of the medical course of 4-1/2 years, excluding the period of House Surgeon, students will be entitled to complete the course with the extended period of 3-1/2 years and the total period is eight years. The contention that the total period should be construed as 11-1/2 years in terms of Clause 8 extracted supra, cannot be accepted. However, in view of Clause 10 extracted supra, the Vice Chancellor would be entitled to permit the students to write the examination by showing mercy and that leniency/mercy can also be shown only once. Otherwise, the students will knock at the doors of the Vice Chancellor seeking mercy for more than once and that is not the spirit of the Regulations of the Pondicherry University. 24. Some of the petitioners today filed an affidavit stating that once they qualify for Doctor, they will display the number of attempts they have made for obtaining the degree and the marks scored in each subjects in their hospital/clinic where they practice. It is only on that account and taking note of the interest of the citizens and patients, this Court is considering the student's request and that these Doctors' details should be available in the web-site also, apart from the hospital concerned/clinic or in the list/Directory of Doctors of MCI. By a click of the button, the details of the Doctors should be known so that the patients can decide whether they can approach these Doctors or not. 25. By a click of the button, the details of the Doctors should be known so that the patients can decide whether they can approach these Doctors or not. 25. This Court makes it clear that if the students have already made a last attempt pursuant to the interim order of this Court, the extra attempt than what is prescribed under the Regulations, would not be granted. If any person has already made an attempt after eight years, that attempt will be treated as the last attempt. In the Clause dealing with Training Period and Time Distribution of the MCI Regulations on Graduate Medical Education, 1997 (amended upto July 2017), in the heading Phase-III (3), it is stated as follows: "(3) The first 2 semester (approximately 240 teaching days) shall be occupied in the Phase I (Pre-clinical) subjects and introduction to a broader understanding of the perspectives of medical education leading to delivery of health care. No student shall be permitted to join the Phase-I (Para-clinical/clinical) group of subjects until he has passed in all the Phase-I (Pre-clinical subjects) for which he will be permitted not more than four chances (actual examination), provided four chances are completed in three years from the date of enrolment. In the above sub-section 7(3) the words "for which for which he will be permitted not more than four chances (actual examination), provided four chances are completed in three years from the date of enrollment" have been deleted in terms of notification published on 30.09.2003 in the Gazette of India." 26. The MCI Regulations and the University Regulations earlier had similar provisions. Thereafter, some of the words have been removed in the MCI Regulations. But the original Regulations were retained in the Pondicherry University Regulations and there is no amendment therein. When the University has got right to fix the better or more qualification than what is prescribed in the MCI, which is not contrary to the MCI Regulations, deletion of certain words from the MCI Regulations, would not in any way nullify or modify the Pondicherry University Regulations, as the University wanted to stick on to the conditions stipulated in the Prospectus. If there is any contravention in the MCI Regulations and the University Regulations, the MCI Regulations will only prevail. If there is any contravention in the MCI Regulations and the University Regulations, the MCI Regulations will only prevail. As stated earlier, if there is no contradiction between the MCI Regulations and the University Regulations, the University can fall back upon the University Regulations to sustain their view. It is open for the University to remove Clause 10 dealing with showing mercy. 27. With the above observations, the Writ Petitions are disposed of. No costs. Consequently, W.M.Ps. are closed.