Pamulapati Soujanya, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 1206 AP

            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

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."

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

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

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

KVL, J WP No.3161 of 2021

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

Writ Petition No.3161 of 2021

URGENT

Date: 01.03.2021

BSS