Delhi High Court
Dr. Shantanu Kadam vs National Board Of Examinations ... on 11 May, 2012
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2785/2012 and CM 6011-12/2012
Decided on: 11.05.2012
IN THE MATTER OF
DR. SHANTANU KADAM ..... Petitioner
Through: Mr. Vinay Navare, Advocate with
Mr. Keshav Ranjan, Advocate
versus
NATIONAL BOARD OF EXAMINATIONS AND ORS. ..... Respondents
Through: Dr. Rakesh Gosain, Advocate for
R-1/NBE.
Ms. Sweety Manchanda, CGSC for R-2/UOI.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The present petition has been filed by the petitioner praying
inter alia for directions to the respondent No.1/NBE to withdraw and
cancel its communication dated 23.04.2012, whereunder he was informed
that his request for being granted grace marks by rounding-off his marks
from 49.66% to 50% and being declared as having passed the Foreign
Medical Graduates Examination (in short 'FMGE') Screening Test held on
25.03.2012, could not be acceded to as there was no provision for grant
of grace marks in the said examination.
2. Learned counsel for the petitioner states that the petitioner
had completed his degree of Doctor of Medicine from Davao City,
Philippines and had applied to the respondent No.1/NBE for appearing in
the FMG Examination that was to be conducted by it on 25.03.2012. As
per the Information Bulletin circulated by the respondent No.1/NBE in
respect of the FMGE Screening Test, it was made clear that the applicant
would be declared as having passed only if he/she obtains a minimum of
50% marks in the examination. The petitioner had secured 149 marks out
of a total of 300 marks, which translated into 49.66% marks that were
below the pass marks. In these circumstances, an application dated
21.04.2012 was submitted by the petitioner to the respondent No.1/NBE,
seeking grant of grace marks by rounding off his result in the FMG
examination to 50% and treating him as having qualified. The aforesaid
request made by the petitioner was turned down by the respondent
No.1/NBE vide letter dated 23.04.2012 by clarifying that he was declared
as having failed in the FMG examination and there was no provision for
grant of grace marks in the said Examination.
3. Learned counsel for the petitioner relies on the judgment of the
Supreme Court in the case of State of U.P. & Anr. vs. Pawan Kumar Tiwari
& Ors. reported as 2005 (2) SCC 10 to submit that grace marks ought to
have been granted to the petitioner and he ought to have been declared
as passed as was done by the Supreme Court in the aforesaid case.
4. Learned counsel for the respondent No.1/NBE, who appears
on advance copy, refutes the aforesaid submission and states that the
issue with regard to the grant of grace marks was considered by the
Supreme Court in the case of Sanjeev Gupta and Ors. vs. Union of India
reported as 2005 (1) SCC 45, particularly, para 31 thereof, wherein the
issue that was considered was whether the candidates seeking
registration from MCI after 15.03.2001 must qualify the screening test
even though they had joined the medicine course abroad prior to
15.03.2002. In the aforesaid decision, it was observed by the Supreme
Court that the scheme of conducting the test was on the basis of a single
paper without any facility of grace marks and in case of failure on the part
of the student to attempt the paper in both parts, i.e. part-I and part-II,
the suggestion that pass marks be reduced below 50% was not found to
be feasible and acceptable and it was held that the same had to be in
tune with the minimum pass percentage fixed for the MBBS examination.
5. Learned counsel further fortifies his submission that grace marks
could not have been granted to the petitioner by relying on a recent
judgment of the Supreme Court in the case of Orissa Public Service
Commission and Anr. vs. Rupashree Chowdhary and Anr. reported as
2011 (8) SCC 108, wherein the Court was considering an appeal filed
against the judgment of the Orissa High Court, whereunder the High
Court had permitted rounding-off of the aggregate marks of the
respondents therein from 44.93 % to 45% alongwith two other
candidates. During the course of arguments in the aforesaid case,
counsel for the respondents therein had relied on some decisions of the
Supreme Court including the case of Pawan Kumar Tiwari (supra). The
Supreme Court had observed that the findings recorded in the said case
were not applicable to the facts of the case in hand and that they were
distinguishable for the reason that the said case had dealt with posts or
vacancies where marks were allowed to be rounded-off to make one
whole post and the said rounding off was permissible for the reason that
there could not be a fraction of a post.
6. The Court has heard the counsels for the parties as also
examined the decisions relied upon by both sides. It is undisputed that
the decision in the case of Pawan Kumar Tiwari (supra) relates to a case
where 93 posts of Civil Judges in the Uttar Pradesh Judicial Services were
to be filled up and the Supreme Court was examining the process adopted
by the State Government with respect to the application of percentage as
against the total number of posts. In the present case, the petitioner has
sat for the FMGE Screening Test held by the respondent No.1/NBE, which
qualifies candidates like the petitioner herein for registration with the
Medical Council of India (MCI) and not for filling up any posts. Therefore,
there can be no comparison with the fact situation in the case of Pawan
Kumar Tiwari(supra) as compared to the case in hand. In fact the
judgment of the Supreme Court in the case of Orissa Public Service
Commission (supra) would stand in the way of the petitioner, wherein it
was categorically held that rounding off is not permissible except in cases
where posts are to be filled up.
7. In view of the above, the prayer made in the present petition
is declined and the petition is dismissed in limine, alongwith the pending
application.
(HIMA KOHLI)
MAY 11, 2012 JUDGE
rkb/mk
