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2021 DIGILAW 520 (JHR)

Rishaw Kumar v. State of Jharkhand

2021-07-14

RAJESH SHANKAR

body2021
ORDER : 1. This case is taken up through video conferencing. 2. The present writ petition has been filed for quashing the letter as contained in Memo no.NC/CE/KU/977/20 dated 04.07.2020 (Annexure-13 to the writ petition) issued under the signature of the Controller of Examination, Kolhan University, Chaibasa-respondent no.5, whereby the petitioner has been informed that his result has already been published on 31.03.2020. Further prayer has been made for issuance of direction upon the respondent no.5 to declare the result of the petitioner for MBBS 3rd Professional Part-II (I) Annual Examination, 2020 (hereinafter to be referred as ‘the Annual Examination, 2020’), as the same has been withheld despite the fact that the petitioner has successfully cleared all papers of the said examination. The petitioner has also prayed for direction upon the respondents to issue his mark sheet for the Annual Examination, 2020 declaring him pass and to further allow him for internship with academic session 2014 to 2019. 3. The factual matrix of the case as stated in the writ petition is that the petitioner is a student of MBBS (Bachelor of Medicine & Bachelor of Surgery) at MGM Medical College, Jamshedpur in academic session 2014-2019. He has already passed 1st professional examination, 2nd professional examination and 3rd professional examination Part-I of MBBS. The petitioner appeared in all four subjects i.e. Surgery, Medicine, Paediatrics and Obstetrics & Gynaecology of MBBS 3rd Professional Part-II (I) Annual Examination-2019 (hereinafter to be referred as ‘the Annual Examination, 2019’), but he cleared only one subject i.e. Surgery in the said examination and was declared fail in other three subjects. Thereafter, he appeared in MBBS 3rd Professional Part-II (II) Supplementary Examination, 2019 (hereinafter to be referred as ‘the Supplementary Examination, 2019’) for the subjects Medicine, Paediatrics and Obstetrics & Gynaecology, wherein he cleared only two subjects i.e. Medicine and Paediatrics and failed in one subject Obstetrics & Gynaecology. Thereafter, the petitioner filled up the form of Annual Examination, 2020 for clearing his Part-I and Part-II of the subject Obstetrics & Gynaecology. The competent authority issued the admit card for the said purpose and accordingly the petitioner appeared in the said examination. Thereafter, the petitioner filled up the form of Annual Examination, 2020 for clearing his Part-I and Part-II of the subject Obstetrics & Gynaecology. The competent authority issued the admit card for the said purpose and accordingly the petitioner appeared in the said examination. At the time of declaring the result though the petitioner was shown pass in the subject Obstetrics & Gynaecology, he was declared fail in other papers showing his marks zero in theory papers ignoring the fact that those papers were already cleared by him in Annual Examination, 2019 and Supplementary Examination, 2019. The petitioner made representation before the respondent no.5 on 01.04.2020 through the Principal, Mahatma Gandhi Memorial Medical College, Jamshedpur- respondent no.7 for publishing his result. Pursuant to the said representation, the tabulator of the concerned college wrote letter under Ref. No.MC/410/2020 dated 21.05.2020 to the respondent no.5, stating therein that as per MCI Regulation and the relevant records, the students, who are declared fail in an examination but secure pass mark in any subject, are exempted from re-examination in that subject. Hence, the petitioner was required to appear only in Obstetrics & Gynaecology subject in which he obtained pass marks and as such a request was made for publication of the result of the petitioner. However, nothing was done by the respondent no.5 on the representation of the petitioner and the letter dated 21.05.2020 issued by the Tabulator of M.G.M. Medical College, Jamshedpur. The petitioner, thereafter, moved this Court by filing a writ petition being W.P.(C) No.1485 of 2020, which was disposed of vide order dated 24.06.2020 without entering into the merit of the case, directing the respondent no.5 to take informed decision in this regard. In compliance of the aforesaid order of this Court, the respondent no.5 issued the impugned letter dated 04.07.2020, informing the petitioner that his result was declared on 31.03.2020 itself with all the examinees. In the said letter, it has also been observed that there is no provision in the MCI Regulations on Graduate Medical Education, 1997 as amended up to 2018 (in short ‘Regulations, 1997’) that unsuccessful students in MBBS 3rd Professional Part-II (II) Supplementary Examination are eligible to pass only in failed paper of MBBS 3rd Professional part-II (II) Supplementary Examination in the next year’s annual examination. Hence, the present writ petition. 4. Hence, the present writ petition. 4. The learned counsel for the petitioner submits that the Ministry of Health and Family Welfare, Government of India vide letter no.V-11917/4/77-ME(P) dated 30.11.1977 has approved the recommendations on professional education adopted by the Medical Council of India in April, 1977 as regulations under Section 33 of the Indian Medical Council Act, 1956, wherein it has been specifically provided that the candidates who have passed in one subject need not appear in that subject again in any subsequent examination. It is further submitted that the procedure which is in practice as on date is that whenever a student clears a paper he/she is not required to appear in those subjects in Supplementary Examination or Annual Examination held in the next year. In other States also, some Universities came up with regulations in order to regulate a particular course semester-wise. For example, Tamil Nadu Dr. MGR Medical University, Chennai has formulated Second MBBS Degree Course Revised (Non-Semester) Regulations-2005, which provides that the candidates who fail in an examination but obtain pass marks in any subject shall be exempted from re-examination in that subject. Similarly, Kerala University of Health Sciences, Thrissur has also formulated regulation with similar provision. It is also submitted that the petitioner has cleared all the papers of MBBS 3rd Professional Part-II Examination as per rules and regulation framed by the MCI but respondent no.5 has not declared him pass in an arbitrary manner and without assigning any cogent reason. There is no complexity or ambiguity in publication of result of the petitioner as per the regulations of MCI and letter of the concerned college and as such declaring the petitioner as “failed” without any rhyme or reason is unsustainable in the eyes of law. 5. Per contra, the learned counsel appearing on behalf of the respondent-University submits that since the petitioner had not cleared all papers in the supplementary examination, he was required to appear in all the papers in the annual examination of the next academic session. However, the petitioner did not do so and as such he was declared failed in the result published on 31.03.2020. As per Regulations 1997, there is no provision of clearance of backlog papers in the next academic session’s annual examination. However, the petitioner did not do so and as such he was declared failed in the result published on 31.03.2020. As per Regulations 1997, there is no provision of clearance of backlog papers in the next academic session’s annual examination. The examination board of the University is of the view that the petitioner cannot be said to have passed the examination in question as per the relevant guidelines of the MCI. 6. The learned senior counsel appearing on behalf of the respondent no.6 submits that the Parliament has framed the National Medical Commission Act, 2019 and the National Medical Commission has been constituted as a successor in interest of the MCI. It is further submitted that in view of section 61(2), even after repeal of the Act, 1956 the educational standards, requirements and other provisions of the Act, 1956 as well as the Rules and Regulations made thereunder shall continue to be in force and shall operate till new standards or requirements are specified under the Act, 2019 or the Rules and Regulations made thereunder. The proviso to Section 61(2) further provides that any action taken under the repealed enactment as well as the Rules and Regulations made thereunder shall be deemed to have been taken under the corresponding provisions of the said Act, 2019 and shall continue to be in force unless and until superseded by any action taken under the said Act, 2019. The petitioner was required to appear and pass in all four subjects of the 3rd professional part II examination either taken together in the Annual examination or in the corresponding Supplementary Examination obtaining minimum of 50% in aggregate with minimum of 50% in theory including oral and minimum of 50% in practical in order to be declared as pass in the concerned subjects. The petitioner cannot be permitted to appear and qualify in the said four subjects in a piecemeal manner so as to qualify in one subject either in the Annual or Supplementary Examination and thereafter to qualify in other subjects in the same manner over a period of more than one year. 7. Heard the learned counsel for the parties and perused the materials available on record. 7. Heard the learned counsel for the parties and perused the materials available on record. The thrust of the argument of the learned counsel for the petitioner is that since he had cleared three papers in the Annual examination, 2019 and Supplementary Examination 2019, there was no need for him to again appear in those papers in the Annual Examination, 2020 and as such he appeared in only one remaining paper in which he has been declared pass, the respondent-University should have declared the result of the petitioner as passed. In support of the said contention, learned counsel for the petitioner has relied upon the Professional Education Recommendations of the MCI adopted by it in April, 1977, extract of which has been annexed as Annexure-9 to the writ petition. The said recommendations provide that the candidates who have passed in one subject need not appear in that subject again in any subsequent examination. The petitioner further relied upon the Regulations of some universities of Tamilnadu and Kerala to contend that the students who fail in an examination but obtain pass mark in any subject are exempted from re-examination in that subject. 8. On the other hand, the case of the respondent nos.5 and 6 is that a candidate may not be allowed to pass 3rd Professional Part-II examination in piecemeal manner. A candidate who does not pass in all papers in the annual and supplementary examination, he will have to appear and pass in all the papers in the next annual examination. 9. This court vide order dated 08.07.2021 directed the respondent nos.3 to 5 to file supplementary counter affidavit stating as to whether any examination guideline/regulation/rules in relation to conducting the examination of MBBS and other medical courses has been framed by the Kolhan University, Chaibasa in furtherance of Medical Council of India Regulations on Graduate Medical Education, 1997 (amended up to May, 2018), if so, copy of the same be annexed with the said supplementary counter affidavit. 10. 10. In compliance of the said order of this Court, the respondent nos.3 to 5 have filed counter affidavit dated 14.07.2021 stating therein that there is no provision in Kolhan University Examination Regulation which provides that a student who does not clear all the papers in the annual and supplementary examinations, will have to appear in all the subjects including the subjects in which he has already passed, in the following annual examination. It has further been stated that the decision of the Examination Board of Kolhan University in the case of the petitioner is based on the MCI Regulation, 1997 and no specific and separate guidelines/regulations/rules in relation to conducting MBBS examination and other medical courses have been framed by Kolhan University, Chaibasa in furtherance of the MCI Regulation, 1997. 11. On perusal of the said counter affidavit of the respondent-University, it is clear that no such rule/regulation has been framed by the Kolhan University which deals with the present issue. Moreover, the respondent-MCI in its counter affidavit has also not mentioned any provision existing in the Regulation, 1997, dealing with the issue in question. It further appears that when MGM Medical College, Jamshedpur raised the grievance of the petitioner before the respondent no.5, the said respondent wrote letter to the Dean, Faculty of Medicine, Kolhan University, Chaibasa to obtain advisory/opinion from Secretary, MCI on that issue, whereupon letter dated 08.07.2020 was sent by the Principal/Dean, Faculty of Medicine, Kolhan University, Chaibasa to the Secretary, BoG, In supersession of MCI to obtain advisory. However, BoG without giving any advisory/opinion on the issue informed the respondent no.7 that the matter of passing a student pertains to the concerned university authorities and it may be decided by the concerned university. It would, thus, be evident that the NMC (in succession of MCI) also does not have clear provision to deal with the present situation. The MGM College in its counter affidavit has not controverted the claim of the petitioner, rather has accepted his claim to some extent as it has also referred the MCI Regulation 1977 and the Regulations of certain universities of Kerala and Tamilnadu wherein it has been provided that a candidate who passes in one subject need not appear in that subject again in any subsequent examination. 12. 12. Thus, the only document i.e. MCI Regulations 1977 has been found on record, which provides that a candidate who has passed in one subject need not appear in that subject again in subsequent examination. However, it is not made clear to the Court by any of the parties as to whether the said recommendation is applicable even after coming into force of the MCI Regulations 1997. Be that as it may. The petitioner has brought on record the marks sheet of some of the students who have got opportunity to clear their papers in the next annual examination. Though, those students were given opportunity to clear the papers in 1st Professional and 2nd Professional and not in 3rd professional part-II examination which is the final examination of the course, yet in absence of any rule that no such opportunity can be allowed to a student in the 3rd Professional part-II examination, a student will certainly have legitimate expectation of his being allowed a chance to clear only the remaining paper in the following annual examination. 13. The learned senior counsel appearing on behalf of NMC (in succession of MCI) has tried to impress this court that a student who fails in annual examination is required to clear the remaining papers in the supplementary examination and if he again fails to clear all the papers, then in the next annual examination he has to appear in all papers and he would not be allowed to clear the course in a piecemeal manner. 14. It is true that the erstwhile MCI had been set up as an expert body for fixing minimum standards of medical education and overseeing that, these standards were maintained. However, Regulations, 1997 as framed by the MCI is silent on the point of clearing the remaining paper in the subsequent annual examination and the precedence shows that earlier some students have been allowed to clear only the remaining paper in the subsequent annual examination and as such the petitioner cannot be deprived of such an opportunity. Had there been any specific rules/regulations/ guidelines declaring that a student who does not clear all the papers in the annual and supplementary examination, will have to appear in all papers in the following annual examination, the petitioner would not have any case. Had there been any specific rules/regulations/ guidelines declaring that a student who does not clear all the papers in the annual and supplementary examination, will have to appear in all papers in the following annual examination, the petitioner would not have any case. I am thus of the view that in absence of any such rule/regulation/guidelines, the petitioner had the bona fide believe that in the next annual examination he was to appear and pass only in the remaining paper and as such he appeared in that very paper and secured pass marks. Thus, the impugned letter dated 04.07.2020 issued by the respondent no.5 is liable to be quashed. 15. Before parting with the case, I would like to add that the question which arose before this Court is a very common situation which would arise frequently from any corner of the country and the NMC is the authority which is responsible to maintain the uniform standard of medical education in the entire country and as such it is high time that the NMC should come with a specific provision in this regard so as to make a student aware of the consequence of not clearing the entire papers in annual and supplementary examination. Had there been any such regulation, the student would have no confusion about it as also the writ courts would not be overburdened with these avoidable litigations. The respondent no.6 is, therefore, directed to frame specific regulation in this regard and to ensure wide publication of the same so as to make the universities, colleges and their students aware of the said provision. 16. In view of the aforesaid discussions, the impugned letter dated 04.07.2020 issued by the respondent no.5 is hereby quashed. The respondent no.5 is directed to republish the result of the petitioner for MBBS 3rd Professional Part-II (I) Annual Examination, 2020 forthwith declaring him pass as he has cleared all papers of the said examination. 17. The writ petition is, accordingly, allowed.