HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
Writ Petition No.3161 of 2021
ORDER:
This writ petition is filed to direct the 4th respondent to conduct special examination for the students of 2nd and 3rd year MBBS studying in all the Medical colleges affiliated to Dr. NTR University of Health Sciences, A.P., Vijayawada, before conducting the final year examinations.
Case of the petitioner is that, she is the 4th year student of MBBS studying in Viswabharathi Medical College, Kurnool; she appeared for the 3rd year (Final MBBS Part I) examination conducted on 04.11.2020 and 06.11.2020 for the subject ENT and she failed in the said subject by 3 marks; petitioner secured 46 marks and had she secured 49 marks, 5 grace marks would have been added as per the rules of the University; as she failed in one subject, she is not allowed to appear for final year (4th year Part II) regular examinations and the examinations are commencing from 02.03.2021 to 15.03.2021; the University is also not conducting supplementary examinations for the failed students before commencement of the examination; the University Grants Commission vide proceedings dated 29.01.2021 issued guidelines, according to which, in case a student of terminal semester/final year could not appear for the examination conducted by the University, she/he may be given opportunity to appear in special examinations, which may be conducted by the University as and when feasible; the said provision is applicable only for the current academic session 2019-20 as a onetime measure; when the petitioner made representation on 03.01.2021 to the 5th respondent to conduct special examination and to give five grace 2 KVL, J WP No.3161 of 2021 marks, the University did not respond to the said representation; Rajeev Gandhi University of Health Sciences, Karnataka, and JNTU, Hyderabad have decided to give grace marks. Hence, the writ petition.
Counter-affidavit is filed by the 4th respondent-University stating inter-alia that the petitioner has secured only 17 marks in theory + oral, out of 50 and thereby short of 8 marks and hence, she is not eligible for grace marks of 5 as per the eligibility criteria; if the final MBBS Part-II examinations are not held as per the schedule notified, the students will not be eligible for NEET PG or any other entrance examinations for admission into PG courses for the academic year 2022 to be held in April, 2022, as they have to complete 12 months compulsory rotator internship after passing final MBBS Part-II examinations before the cutoff date as prescribed by the various entrance examinations boards; the UGC guidelines which provide for examination through special chance is applicable only for those candidates who have contacted COVID-19 and could not appear for the said examination and not for the candidates who have appeared and failed in the examinations; the above guidelines are not for Medical Universities which are governed by the National Medical Commission, New Delhi and prays for dismissal of the writ petition.
Learned counsel for the petitioner relied upon Clause 10 of Medical Council of India Regulations on Graduate Medical Education, 1997, which reads as follows:
"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
KVL, J WP No.3161 of 2021 Learned standing counsel for the 4th respondent-University drew the attention of this Court to Clause 4(d) Third Professional-(c), which reads as follows:
"In each of the subjects a candidate must obtain 50% in aggregate with a minimum of 50% in theory including orals and minimum of 50% in practical/clinical."
Basing on the said clause, learned standing counsel for the University submits that the contention of the petitioner that the marks awarded to the petitioner is 46 and that five grace marks have to be added, is not correct, since in theory examination, petitioner secured only 17 marks out of 50 marks instead of 25 and hence, there is shortage of eight marks and not five marks as contended by the learned counsel for the petitioner.
The fact that the petitioner secured only 17 out of 25 marks in the theory examination is not in dispute. According to Clause 10 of the Regulations of the Medical Council of India, grace marks up to a maximum of five 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. The minimum marks are specified separately for the theory and practical examinations and for the theory subject, it is categorically stated that the minimum marks is 50% in theory including orals and minimum of 50% in practicals/clinicals. Admittedly, for the subject of ENT, maximum theory marks are 50 and the minimum a candidate is supposed to get is 25. In the present case, the petitioner got 17 marks in theory, which is eight marks less than the maximum marks of 25. Hence, the petitioner is not eligible for award of five grace marks and it is not correct to contend that total marks have to be taken into consideration and five marks have to be added to the said marks, as the rule is clear 4 KVL, J WP No.3161 of 2021 that a candidate has to secure the minimum 50% marks in theory examination.
The next contention of the learned counsel for the petitioner is that supplementary examination has to be conducted to the failed candidates and that till then, present examination should not be held. If the examinations which are now scheduled to be held are not held, the students who are going to write this examination will become ineligible for NEET PG examinations or any other entrance examinations for admission into PG course for the academic year 2022, as they have to complete 12 months compulsory rotator internship after passing final MBBS Part-II examinations before the cutoff date as prescribed by the various entrance examination boards. Hence, the examinations cannot be postponed and special examination guidelines are not applicable to the facts of the present case.
Learned counsel for the petitioner relied upon the judgment of the Madras High Court in WP Nos.9932 and 9659 of 2016 dated 17.03.2016. In the said case, petitioners sought one mark as grace mark in the practical examination, basing on the regulation that five grace marks can be awarded at the discretion of the University. The said writ petition was allowed, basing on the regulations of Pondicherry University and the MCI guidelines and directed the University to award one grace mark. The said judgment does not apply to the facts of the present case, as the petitioner is short of eight marks and not 5 marks in the theory examination.
In the facts and circumstances as discussed above, no direction as sought for in the writ petition can be granted to the petitioner and the writ petition is devoid of merits and is accordingly dismissed. No order 5 KVL, J WP No.3161 of 2021 as to costs. Consequently, miscellaneous petitions, if any pending, in this writ petition, shall stand closed.
________________________ KONGARA VIJAYA LAKSHMI, J Date: 01.03.2021 Note: Furnish CC in two days.
(BO) BSS 6 KVL, J WP No.3161 of 2021 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI Writ Petition No.3161 of 2021 URGENT 113 Date: 01.03.2021 BSS