The Maharashtra University Of ... vs Vibhavari Dilip Pawar
2003 Latest Caselaw 393 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule, returnable forthwith. The Learned counsel for the Respondents waives service. By consent taken up for hearing and final disposal.

2. In these proceedings, the Maharashtra University of Health Sciences ("MUHS") prays for a modification of directions (i) to (iv) contained in paragraph 34 of the judgment and order dated 25th February, 2003 passed by this court. These directions are as follows:

"(i) In terms of Rule 56 of Ordinance 1 of 2002, which provides three heads of passing, namely (i) Theory, (ii) Practicals and (iii) Internal Assessment and in view of Rule 57, a student in order to pass the examination must obtain 50% marks in each of the three heads of passing as aforesaid separately;

(ii) Consequently, so long as Rules 56 and 57 of Ordinance 1 of 2002 continue to hold the field, it would not be open to MUHS to regard the Orals as a separate head of passing either independently or in conjunction with any of the three heads of passing stipulated in Rule 56;

(iii) The results of the petitioners and other similarly placed students at the October 2002 examination shall be reprocessed so as to bring them in conformity with Rules 56 and 57 as clarified with Rules 56 and 57 as clarified above; and this shall be done as expeditiously as possible:

(iv) MUHS shall within a period of two weeks from today, resubmit to the Chancellor, either (a) a statement of compliance with the Chancellor's Directive dated 30th March, 2001 on the adoption of the Ordinances for conduct of examinations based on the Report of the Nigavekar Committee or

(b) such objections which MUHS has to the adoption of the aforesaid Ordinances based on the applicable regulations of statutory bodies such s the M.C.I., C.C.I.M., and C.C.H. or for any other reason:"

In so far as direction (iv) is concerned, an extension of time to comply with the order of the Court is sought since meetings of the Academic and Management Councils are scheduled to be held on 9th and 22nd April, 2003. The prayer for extension will be considered subsequently. As would be clear from directions (i) to (iii) and the discussion in connection therewith contained in paragraphs 18 to 20 of the judgment of the Court, the underlying rationale in respect thereof is that under Rule 56 of Ordinance 1 of 2002, there are three heads of passing, namely (i) Theory, (ii) Practicals and

(iii) Internal Assessment. Under Rule 57, a student, in order to pass the examination has to obtain 50% marks in each of the three heads of passing as aforesaid separately. The grievance of the Petitioner before the Court was that the University was acting in a manner contrary to the ordinance by requiring that the students must pass in oral tests either as a separate head of passing or in conjunction with one of the other heads. The judgment of the Court proceeded on the interpretation of Rules 56 and 57 since that was the issue argued.

3. MUHS has in the Review Petition now placed before the Court, the applicable rules and regulations of the Medical Council of India, the Dental Council of India, Central Council of Homoeopathy and Central Council of Indian Medicine. On that basis, MUHS seeks to submit that in the exercise of their statutory powers, these Central Councils require that the marks obtained in the oral examinations should be taken into account for determining whether an student has passed an examination. MUHS has submitted that under the applicable regulations of the Medical Council of India and the Dental Council of India, the marks obtained in the oral examination are clubbed with another head of passing. In the case of the Central Council of Homoeopathy and the Central Council of Indian Medicine, it is urged, the oral examinations are prescribed as a separate head of passing for the Bachelors Degree courses in Homoeopathy and Ayurveda, respectively. Counsel for MUHS stated fairly that these regulations ought to have been but were not produced before the Court when arguments were addressed by MUHS in the batch of Petitions.

4. In these circumstances, MUHS has prayed for a modification of operative directions

(i) to (iv) in the previous judgment and order of this Court dated 25th February, 2003. The Learned Counsel appearing on behalf of the MUHS in the course of the submissions has stated that MUHS would rest content with a clarification of this Court to the effect that while reprocessing the results of candidates who have been declared as having failed in the examinations, the University is directed to act in accordance with the rules and regulations laid down by the competent Central Councils under the enactment by which each of them is governed.

5. Before dealing with the merits of the submissions which have been urged on behalf of MUHS we must, at the outset, record that during the course of the hearing of the batch of matters before this court which resulted in the judgment and order dated 25th February, 2003, MUHS had not placed before the Court for its consideration, the regulations of the diverse Central Councils which are now sought to be relied upon at this stage. MUHS had in fact, urged submissions before the Court on the basis of the Ordinances as they stand and it was on the interpretation of those Ordinances that the operative directions of the Court were issued. Indeed, on a separate issue relating to the award of grace marks, where a regulation of the Medical Council of India was drawn to the attention of the Court, this Court has categorically held that once the MCI has framed certain regulations which hold the field, these are binding and must be scrupulously observed. Though the matter was argued before us over several days, MUHS had in the course of its submissions not apprised the Court of the relevant regulations framed by the Central Councils in this regard. Be that as it may, since the matter relates to a subject as important as medical education and since the attention of the Court has now been drawn to statutory regulations framed by competent regulatory authorities established under Acts of Parliament, it would be necessary for the Court to consider the impact of those regulations and to the extent it is necessary to do so, to modify or clarify the operative directions contained in the judgment of the Court dated 25th February, 2003. The Learned Counsel for MUHS has stated that he has given notice of the Review Petition to the other Learned Counsel. We have accordingly, had the benefit of hearing, besides the Learned Counsel for MUHS, Mr. S.D. Rupwate who appears in Review Petition No. 33 of 2003 in Writ Petition No. 591 of 2003 and Mr. M.M. Vashi, the Learned Counsel appearing on behalf of the Petitioner in Writ Petition No. 312 of 2003 on the Original Side.

6. A perusal of the statutory regulations which have been placed before the Court by MUHS would reveal that marks obtained in oral examinations are required to be taken into account in the manner and to the extent to which this has been mandated in the regulations. The Medical Council of India has framed Regulations on Graduate Medical Education, 1997. In the Regulations, Regulation 12 of Chapter IV is entitled "Examination Regulation". Sub-regulation (4) provides for "Distribution of Marks to Various Disciplines". For the first professional examination (Pre clinical subjects) marks are required to be allotted to the oral examination in Anatomy, Physiology including Biophysics and Biochemistry. The following note is appended to sub-regulation 4(A) of Regulation 12 :

"Pass " 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 Practicals"

For instance, in the subject of Anatomy, there are two theory papers each of 50 marks. Besides, the Orals carry 20 marks, Practicals 40 marks and Internal Assessment 40 marks. Similar notes are appended to the other sub-regulations of Regulation

12.

7. In so far as the Bachelor of Dental Surgery is concerned, the Regulations framed by the Dental Council of india with the approval of the Central Government under the Dentists Act, 1948, also provides for the manner in which marks obtained in the oral examinations must be graded. The following provision has been made therein:

"Maximum marks and duration of examination Each subject will have a maximum of 200 Marks as follows:-

Theory Practical/Clinical

University Examination

Written Orals

-University  Examination

Internal Assessment

-Internal  Assessment

=    200

(1) For a pass the candidate must secure a minimum of 50% marks in the University examination and 50% marks in the aggregate i.e. University examination and internal assessment in each division viz., theory and practical and or clinical separately."

On 21st January, 2003, DCI has recognised the B.D.S. Degree Court of MUHS.

8. In so far as the Central Council for Homoeopathy is concerned, Regulations have been framed with the approval of the Central Government, called the Homoeopathy (Degree Course) B.H.M.S. Regulations, 1983. Part VI of these Regulations deals with the Examination. For the first year of the B.H.M.S. course, it has been provided, for instance, that "pass marks in all subjects both homoeopathic and allied medical subjects shall be 50% in each part (written, oral and practical)". In the subject of Anatomy, the written examinations carry 200 marks while the Orals and Practicals carry 100 marks each. The student has to obtain at least 100 marks in the written examination and 50 each in orals and practicals to pass. Similar provisions have been made for the other subjects in the B.H.M.S. degree course.

9. In so far as B.A.M.S. Degree course is concerned, the Central Council of Indian Medicine has framed Regulations with the approval of the Central Government which have come into force with effect from 1st July, 1989. These Regulations provide for separate marks to be allocated in theory examinations and in practical/oral examinations respectively. By a communication dated 21st September, 2001, the Central Council of Indian Medicine has informed MUHS that the Regulations of 1989 are mandatory and that it would not be open to MUHS to make changes in the syllabus and curriculum.

10. Regulations which govern Unani courses are also placed before the Court. These provide for assessment of theory and practicals/viva.

11. In view of the regulations which have been framed by (i) the Medical Council of India for the M.B.B.S. degree course, (ii) the Dental Council of India for the bachelor of Dental Surgery (B.D.S.) Course, (iii) the Central Council for Homoeopathy for the Bachelor of Homoeopathic Medicine and Surgery (B.H.M.S.) Course, (iv) the Central Council of Indian Medicine for the bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.) Course, there can be no gainsaying the fact that MUHS is bound under the law to comply with these minimum standards of medical education which have been prescribed by the competent Central Councils. Therefore, we find that there is merit in the submission which has been urged on behalf of MUHS to the effect that in reprocessing the results of the students who have failed, MUHS would have to act in accordance with the prescribed regulations. In the Review Petition it has been stated on behalf of he MUHS that an Advocate's notice was addressed to it on behalf of certain students of the B.H.M.S. Course in Writ Petition No. 591 of 2003 which has led to the filing of the Review Petition. MUHS has urged, and in our view wit justification, that since the orals have been prescribed as a separate head of passing for the BHMS Course by the Central Council for Homoeopathy, and this was adopted in the Syllabus framed by MUHS, these students are not entitled to the benefit of directions (ii) and

(iii) in Paragraph 34 of the order of this Court. The learned Counsel for those students has urged before the Court that MUHS must implement the Regulations framed by CCIM in their entirety and that these also mandate a supplementary examination for students who are declared to have failed. The Ordinances which have been framed by MUHS have already been adverted to in the judgment and order of this Court dated 25th February, 2003. We find that the Ordinances have been framed without fully considering the regulations framed by the Central Councils governing diverse branches of medicine such as MCI, DCI, CCH and CCIM which govern diverse branches of Medicine. The Ordinances of MUHS have to be brought in conformity with the Regulations statutorily framed by the Central Councils. The Learned Counsel for MUHS accepts this position. We record the assurance given to the Court on behalf of MUHS that steps will be taken by MUHS expeditiously for amending the Ordinances framed by it in relation to examinations so as to bring them in conformity with the requirements of the regulations framed by various Central Councils in pursuance of Parliamentary enactments holding the field.

12. In so far as the present case is concerned, we are of the view that the directions contained in Clauses (i) to (iv) of paragraph 34 of the judgment and order of this Court dated 25th February, 2003, would have to be suitably modified and/or clarified so as to obviate and ambiguity in actual implementation of the mandatory regulations framed by the Central Councils. Accordingly, the following direction shall be inserted as direction

(iii)(a) after direction (iii):

(iii)(a) Where, however, the relevant statutory regulations framed by a Central Council established in pursuance of an Act of Parliament require that the marks obtained in the oral examinations be taken into consideration in preparing the results of the examination, MUHS shall act in accordance with the applicable regulations both as regards the extent to which and the manner in which the marks obtained in the oral examinations shall be taken into account.

13. Finally, it may be noted that in paragraph 8 of the Review Petition MUHS has prayed for extension of time to carry out the direction of this Court in Clause (iv) of paragraph 34. MUHS has stated that the meetings of the Academic Council and of the Management Council are to be held on 9th April, 2003 and 22nd April, 2003. Consequently, an extension is sought of the period which has been prescribed by this Court of two weeks. In view of what has been stated in paragraph 8 of the Review Petition, we are of the view that a case for the extension of time has been made out. The time prescribed in operative direction (iv) of paragraph 34 is accordingly extended until 30th April, 2003.

14. The Review Petition is disposed of in the aforesaid terms. No costs.