Prajwal Manikrao Sahare And Anr. vs Maharashtra University Of Health ...
2005 Latest Caselaw 1447 Bom

JUDGMENT

S.A. Bobde, J.

1. Rule returnable forthwith. Heard by consent.

2. These petitions are by students who have completed the second year course in Bachelor of Dental Surgery with the respondent University. All the petitioners have failed in the subject of Pre-Clinical Prosthodontics. They, therefore, claim that they be allowed to keep terms in the third year of B.D.S. Course.

3. In Writ Petition No. 5087 of 2005 the three petitioners, in addition to the above, claim grace marks. Since a common point is involved in all the three petitions they have been heard and are being disposed of simultaneously by this judgment at the admission stage.

4. The petitioners have all been admitted to the B.D.S. Course being conducted by the Maharashtra University of Health Sciences (hereinafter referred to as Health University). This course is a 4 years' course. It is conducted, admittedly, in accordance with the Regulations framed by the Dental Council of India under the Dentists Act, 1948 by the Central Government. The course is also regulated and governed by the Maharashtra University of Health Sciences Ordinance No. 1 of 2002, which deals with the conduct of examinations.

5. The main contention on behalf of the petitioners is as follows:

That under Regulations framed by the Dental Council of India the subjects in which the University is entitled to conduct examination are:

1. General Pathology and Microbiology

2. Human Oral Anatomy including Embryology and Histology

3. General and Dental Pharmacology and Therapeutics.

Therefore, according to them the respondent-University could not have examined the petitioners in Pre-Clinical Prosthodontics, in which subject they have failed and, therefore, their failure must be treated as inconsequential and they should be allowed to keep terms in the third year. It must be observed that the petitioners have not at any stage objected to the subject of Pre-Clinical Prosthodontics being included in the syllabus of the 2nd year B.D.S. and have attended the classes and appeared for the examination without any objection. Now, the submission is that the subject in which they have failed could not have been a subject for the examination in the second year and, therefore, their failure in that subject is inconsequential.

6. The argument on behalf of the petitioners is supported by the Dental Council of India Regulations which prescribes that Prosthodontics Crown and Bridge is a subject for the final B.D.S. examination.

7. This contention on behalf of the petitioners is opposed by the respondent-University on the ground that the petitioners have not been examined in the subject of Prosthodontics Crown and Bridge which is meant for the final B.D.S. examination but have been examined in Pre-Clinical Prosthodontics which is merely a preparatory training course prescribed by the Maharashtra University of Health Sciences Nasik for the following purpose:

1. To facilitate minimum skills and to prefect these skills by working on the models so as to have hands-on experience when required to work on the patients directly in the practical clinical in IV BDS course.

2. Dental education also expects the development of neuromuscular skills to be performed in day-to-day practice. All this is done through teaching and training in pre-clinical Dental subjects to have better uniformity in various institutions and to have evaluation of acquired skills before the students are allowed to perform the same skill in clinical training set up directly on patients. Therefore the students are given practical knowledge and made to work on models to have hands on experience. By working on these models priorly/initially then working on the patients directly they are given enough time to develop neuromuscular skills.

4. This subject i.e. 'Pre-Clinical Prosthodontics' is included in the II BDS for purpose of skill development of the student in no way it is linked with IV BDS subject for passing as it is only concerned with Practical nature of the subject without 'Theory' or 'Viva' for the University examination. This point can be clarified with the help of Statement of Marks of II BDS and IV BDS respectively wherein there is no link of passing the mentioned subject. As per Rule 56.3 of Oridnance 1/2002 (Amended) passing in the subject 'Pre-Clinical Prosthodontics' for II BDS and passing in the subject 'Prosthodontics' for IV B.D.S. Course is mandatory. It is not interlinked for passing, but only knowledge and skill development is interconnected.

Now it must be noted at the outset that it is not the petitioners contention that Pre-Clinical Prosthodontics is the same subject which is prescribed for 4th year BDS. That subject is Prosthodontics Crown and Bridge. Prosthodontics, we are informed, is that branch of dental art and science pertaining to the restoration and maintenance of oral function, health, comfort and appearance by the replacement of missing or lost natural teeth and associated tissues either by fixed or removable artificial substitutes.

8. It is also not the petitioners contention that the respondent Health University has no authority to prescribe and conduct examinations in the subject of any Pre-Clinical Prosthodontics. The contention as noted earlier is only that the result of the examination is inconsequential.

9. The only question therefore is whether the subject of the 2nd year B.D.S. i.e. Pre-Clinical Prosthodontics is the same as the subject for the Final Year i.e. Prosthodontics Crown and Bridge. From the description of the above it appears that the two subjects i.e. Pre-Clinical Prosthodontics and Prosthodontics Crown and Bridge are different in their content in academic terms.

10. Having examined the Regulations prescribed by the Dental Council of India we find that Prosthodontics Crown and Bridge is a subject which is prescribed for students for the final B.D.S. examination and not for any of the earlier three years. It is also apparent from the Regulations that the subjects which are prescribed by the Dental Council of India for the second year BDS examination are those mentioned earlier and do not include Prosthodontics. However, there is no bar, expressed or implied in the Regulations framed by the Dental Council of India against the University proving for a subject and an examination for the said subject in a particular year. In other words, the University may in its wisdom decide if a particular subject can be taught and an examination be conducted for the said subject for a particular year unless it is conflict with the Regulations. Indeed, the learned Counsel for the petitioners fairly accepted the position that Regulations of Dental Council of India do not prohibit the respondent-University from prescribing certain subject for a particular year and for conducting an examination in it.

11. The Health University has for the purposes set out earlier prescribed the subject of Pre-Clinical Prosthodontics for the second year BDS and has also held an examination in the said subject. Having regard to the absence of any prohibition we are of the view that the University is entitled to prescribe such a subject for study and examine the students in it since there is no bar in law.

12. Once it is held that examination can be conducted in this subject and they are so held, the results of such examination cannot be treated as inconsequential as contended by on behalf of the petitioners. If a student, therefore, fails to pass any particular subject he will attract the bar imposed by Ordinance 1/2002 which provides vide Clause 56.3 and 58 which read as follows:

56.3 : The candidate to be eligible to pass in a subject shall pass in all heads of passing in the respective subject in the same attempt.

58. ATKT: There shall be no ATKT in any case in any class for any faculty.

In this view of the matter we see no reason in law to allow the petitioner to keep terms in the third year since they have failed to clear the subject of Pri-Clinical Prosthodontics which is different from Prosthodontics Crown and Bridge meant only for final year.

13. At this juncture Mr. Haq, the learned Counsel for the petitioner submitted that there is a variance between the ATKT Rules framed by the University and the one prescribed by the Dental Council of India, in that Rules framed by the latter permit a student to keep terms in the next year if he has failed in one subject. This apparent conflict has however been considered and resolved by this Court in a decision of Division Bench in the case of Swapnil Dynaneshwar Ghodke v. Maharashtra University of Sciences Nashik and Anr. in Writ Petition (Lodging) No. 943 of 2005 decided on 18-11-2005, where this Court following the decision of the Supreme Court in Dr. Priti Shrivastava and Anr. v. State of Madhya Pradesh and another decision of this Court in Forum for Fairness in Education and Ors. v. University of Mumbai and Ors. 2003(4) BCR 9, which have held that the University is entitled to lay down that the student would not be allowed to keep terms in the higher class if he fails in any subject of qualifying examination since it is entitled to set up higher standard than those prescribed by the Dental Council of India. We, therefore, hold that the petitioners are not entitled to keep terms in the 3rd year B.D.S. Course.

Writ Petition No. 5087 of 2005:

14. In Writ Petition No. 5087 of 2005 filed by three students the only contention that is raised on behalf of the petitioners is that they are entitled to grace marks which is a matter governed by Rule 60.2 of Ordinance 1/2002 framed by the Health University. Rule 60.2 reads as follows:

60.2 : Grace Marks for Condonation for Dental, Ayurved, Unani, Homoeopathy and Allied Health Sciences faculties only. Where an examinee is failing in only one head of passing, having passed in all other heads of passing without using grace marks under Section 60.1 of this Ordinance, his/her deficiency of marks in such head of passing may be condoned by awarding 5 grace marks or up to 5% of the maximum marks of that head of passing, subject to the following conditions:

a) For Dental and Allied Health Sciences faculties these grace marks should not exceed 5.

b) For Ayurved, Unani and Homoeopathy faculties these grace marks should not exceed 10.

c) Provided further that the benefit of gracing of marks under this provision shall be applicable only if the candidate passes the entire examination.

According to petitioners the total marks obtained in the subject of Pre-Clinical Prosthodontics are 45 and, therefore, they are entitled to be considered for the award of grace marks under the aforesaid rules.

15. This contention is opposed by the respondent Health University on the ground that the petitioners are required to pass in both the heads of passing i.e. a) Practical/Clinical as well as b) Practical/Clinical + Internal Assessment (Practical). The petitioners not having passed in a) Practical/Clinical they are not entitled to grace marks. To put it differently the contention of the University is that apart from others there are two distinct heads of passing:

A) Practical and Clinical and

B) Practical/Clinical + Internal Assessment (Practical) and a student must pass in both of them as in others with which we are not concerned.

15A. It is necessary to examine what is the head of passing. Rule 56.2.2 of Ordinance 1/2002 to the extent it is relevant for Dental reads as follows:

56.2.2 Dental -

i. Oral + Theory

ii. Theory + Oral + Internal Assessment (Theory)

iii. Practical/Clinical

iv. Practical/Clinical + Internal Assessment (Practical).

It is obvious from this Rule that there are four heads of passing. We are concerned with items (iii) and (iv) above. Admittedly, the petitioners have failed in item (iii) i.e. one of the heads of passing. It is, therefore, not possible to accept the contention on behalf of the petitioners that the marks obtained by them by clubbing the, two heads of passing should be taken into account to consider the eligibility of grace marks. The items No. (i) to (iv) above clearly demarcate the heads of passing. Rule 60.2 clearly stipulates that if the examinee is failing in only head of passing, having passed in all other heads of passing without using grace marks his deficiency in such heads of passing may be condoned by awarding 5 grace marks. The purport of the Rule is clear. A student who have passed in all heads of passing but one, and if in that one head of passing if he is short by 5 marks his deficiency may be condoned by the awarding of grace marks upto 5 or upto 5% of the marks of the heads of passing.

16. In the subject of Pre-Clinical Prosthodontics these petitioners can be said to have obtained 45 marks only by clubbing two heads of passing i.e. Practical/Clinical and Practical/Clinical + Internal Assessment (Practical) vide (iii) and (iv) of Rule 56.2.2.

17. We are of the view that the Ordinance clearly stipulates the separate heads of passing and no two heads of passing may be clubbed together for the purpose of calculating the short/deficiency in marks for the purpose of awarding grace marks. In Maharashtra State Board of Secondary and Higher Secondary Education v. Amit and Anr. . Their Lordships observed as follows:

Academic standards are laid down by the appropriate authorities which postulate the minimum marks that a candidate has to secure before the candidate can be declared to have passed the examination. The award of grace marks is in the nature of a concession, and there can be no doubt that it results in diluting academic standards. The object underlying the grant of grace marks is to remove real hardship of a candidate who has otherwise shown good performance in the academic field but is losing one year of his scholastic career for the deficiency of a mark or so in one or two subjects, while on the basis of his overall performance in other subjects, he deserves to be declared successful. The appropriate authorities may also provide for grant of grace marks to a candidate who has taken part in sports events etc. considering the fact that such candidates who have obtained a level of proficiency in any particular game or event may have devoted considerable time in pursuit of excellence in such game or event. However, a rule for the award of grace marks must be construed strictly so as to ensure that the minimum standards are not allowed to be diluted beyond the limit specifically laid down by the appropriate authority. It is only in a case where the language of the statute is absolutely clear that the claim for the award of grace marks can be sustained. Normally the Court shall be slow to extend the concession of grace marks and grant a benefit where none is intended to be given by the appropriate authority.

The aforesaid dictum of the Supreme Court has also been followed by the Division Bench of this Court in Anandkumar N. Patil v. Maharashtra University of Health Sciences .

In this view of the matter it is not possible to grant any relief to the petitioners in these petitions also. Accordingly Rule is discharged. There shall be no order as to costs.