Delhi High Court
Poonam Chaurasia vs University Of Delhi And Ors. on 2 April, 2019
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 2nd April, 2019
+ W.P.(C) 1834/2019 & CM Nos. 8571/2019, 14538/2019
POONAM CHAURASIA ..... Petitioner
Through: Mr. Rajiv Dewan, Adv.
versus
UNIVERSITY OF DELHI AND ORS. ..... Respondents
Through: Mr. Mohinder J.S. Rupal and
Mr. Prang Newmai, Advs. for
University of Delhi
Mr. T. Singhdev, Mr. Tarun
Verma and Ms. Puja Sarkar,
Advs. for the MCI
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% J U D G M E N T (ORAL)
1. This writ petition deals with the mark sheet of the petitioner in
the Third Provisional Part-II MBBS-2018 Examination, conducted by
the Faculty of Medical Sciences, University of Delhi, specifically the
marks awarded to the petitioner with respect to Paper 1 in the
Examination, i.e. the „Medicine‟ paper. The marks awarded to the
petitioner, in the „Medicine‟ paper, in the aforestated examination,
may be set out in a tabular form thus:
2. Regulation 12(4)(d) of the Medical Council of India, Regulation
on Graduate Medical Education, 1997 (hereinafter referred to as the
„1997 Regulations‟) stipulates that, in order to pass in each subject, a
candidate is required to obtain 50% aggregate with the minimum of
50% in the theory including oral and a minimum of 50% in practicals.
It is this clause which forms the fulcrum of the controversy in the
present case. Apart from this, the candidate is also required to obtain,
overall in all the papers, 50% of the total aggregate marks, which, it is
not disputed, the petitioner has obtained.
3. A glance at the above tabular statement would reveal that the
petitioner has been awarded a grand total of 159 marks out of 300 in
his Medicine paper. This figure of 159 out of 300 is a sum of two
individual totals, being 84 out of 170 and 75 out of 130. The figure of
84 out of 170 is, in turn, a cumulative total of the marks obtained in
the written, oral and internal assessment components, whereas the
figure of 75 out of 130 is similar a total of the practical and internal
assessment components. In other words, in working out the marks
obtained of 84 out of 170 and 75 out of 130, the University has taken
into account, in each case, the marks obtained by the petitioner in the
internal assessment components.
4. As a consequence, in the practical part of the Medicine paper,
the petitioner has been awarded only 75 marks out of 130, which falls
short of 50%. The petitioner has, therefore, effectively failed in his
Medicine paper.
5. The contention of Mr. R.K. Saini, learned counsel for the
petitioner is that the inclusion of the marks awarded for internal
assessment, in the total marks awarded to the petitioner for the
"Practical" part of the Medicine paper, is directly contrary to the law
laid down by the Supreme Court in Maharashtra University of Health
Sciences v. Pariyani Mukesh Jawaharlal & Ors., (2007) 10 SCC 201.
6. As against this, Mr. Rupal submits that, in awarding marks to
the petitioner, the University has acted on the basis of the following
Clause 10(a) of the Scheme of Undergraduate Examination and
Distribution of Marks, which reads thus :
"To pass: In each of the subject a candidate must obtain 50%
aggregate with a minimum of 50% in theory including oral
and minimum of 50% in practicals."
7. The afore-extracted clause, on which the University of Delhi
seeks to place reliance, it may be noted, is identical to Regulation
12(4) of the Regulations on Graduate Medical Education, 1997,
framed by the Medical Council of India. The Supreme Court, in its
judgment, in Maharashtra University of Health Sciences (supra) has
examined this Regulation and categorically held, in that regard thus :
"16. The point in controversy in regard to interpretation
of MCI Regulation 12(4) can be understood with
reference to the following illustration:
Subject Total Candidates'
Marks Marks
50 marks each)
(b) Practical
17. Regulation 12(4) provides that to pass in a subject,
a candidate should obtain 50% in the aggregate with a
minimum of 50% in theory including orals and minimum
of 50% in practical. The marks secured by the candidate
(in the illustration), when assessed as per the
interpretation of the University, results in the candidate
failing in the subject. The very same marks when
assessed as per the interpretation of the students (and
MCI), result in the candidates passing in the subject. The
calculations are given below:
University interpretation (candidate fails in the subject):
1. Aggregate : 107 marks out of 200
(I+II+III+IV) marks
2. Theory plus oral : 59 marks (out of 120)
(I + II) (47 and 12 out of 100
and 20 marks)
3. Practicals (III) : 17 (out of 40)
As the candidate secured less than 50% in theory
including orals (that is 59 out of 120) and less than 50%
in practicals (that is 17 out of 40), he failed under the
heads of theory (plus orals) and practicals. As a
consequence, though he secured more than 50% in the
aggregate, he failed in the subject.
Interpretation of MCI/students (candidate passes in the subject):
1. Aggregate (I+II+III+IV) : 107 marks out of 200
marks
2. Theory plus oral : 75 marks out of 140
[I+II+IV(a)] (47, 12 and 16 out of
100, 20 and 20)
3. Practicals [III+IV(b)] : 32 marks out of 60
(17 and 15 out of 40
and 20)
As the candidate secured more than the minimum of 50% under all
the heads of passing, that is, in the aggregate, in theory (plus orals),
and practicals, he passed in the subject.
18. MCI Regulation 12 is divided into four parts, namely (i)
attendance, (ii) internal assessment, (iii) University examination,
and (iv) distribution of marks to various disciplines. Clause (1)
makes it clear that unless a student has the minimum attendance
(75%) he cannot appear in the University examination (external
evaluation). Similarly, Clause (2) makes it clear that unless a
student secures 35% of the total marks fixed for internal
assessment in a particular subject, he will not be eligible to appear
in the University examination of that subject. Thus, the
requirement relating to attendance and requirement relating to
internal assessment act as eligibility requirements to participate in
the University examination.
19. The scheme of MCI Regulation 12 also makes it clear
that there will be internal assessment as well as the external
assessment (University examination) in regard to theory as well as
practicals. Clause (2) of MCI Regulation 12 makes it clear that in
addition to providing the eligibility to appear in the University
examination, the internal assessment also provides a weightage to
an extent of 20% of the total marks in each subject. Clause (4) of
MCI Regulation 12 makes it clear that for passing in each subject,
a candidate must obtain 50% of marks in the aggregate. There is no
controversy in regard to what is meant by aggregate. It is the
aggregate of external examination marks and internal assessment
marks. Where the maximum of 100 marks are for theory papers, 20
marks are for oral, 40 marks are for practicals, in all 160 for
externals and 40 marks are for internal assessment, the aggregate is
200. A candidate should secure in all a minimum of 100 marks out
of 200. The requirement relating to passing in aggregate complies
with sub-clause (iv) of Clause (2) of Regulation 12, as internal
assessment marks (secured out of 40 marks, which is 20% of total
marks) are also counted.
20. The controversy is in regard to the method of calculating
the passing marks for the other two heads of passing, namely,
"theory including orals" and "practicals". The scheme of the MCI
Regulations requires the student to pass the University
examination (externals) with 50% in theory (including oral) and
50% in practicals, and also secure 50% of marks in the aggregate
of the total marks for external examination and total marks for
internal assessment.
21. What is to be noticed is that Clause (4) of Regulation 12
requires that a minimum of 50% in theory including orals, should
be obtained by a student. It does not say 50% in theory including
orals and internal assessment (theory). It should be remembered
that the marks are distributed as 100 for theory (external), 20 for
oral (external), 40 for practical (external) plus 20 for theory
(internal) and 20 for practicals (internal). If the intention was to
club the marks for internal assessment with the marks secured in
external examination, the marks would have been distributed in the
following manner:
(a) Theory:
(i) Two papers of 50 marks each 100 marks
(ii) Internal Assessment 20 marks
(b) Oral (viva) 20 marks
(c) Practical/Clincial:
(i) External Assessment 40 marks
(ii) Internal Assessment 20 marks
Total 200 marks
But the distribution of marks under Regulation 12(4) is as
under:
(a) External:
(i) Theory - 2 papers 100 marks
(ii) Oral (viva) 20 marks
(b) Practicals 40 marks
(c) Internal:
(ii) Practical 20 40 marks
Total 200 marks
22. The scheme of distribution of marks makes it clear that
University examination (external assessment) is kept separate and
distinct from the internal assessment. Regulation 12(4) when read
in its normal and natural sense, does not contemplate for clubbing
of internal assessment with external examination. When the
provisions of Regulation 12 are clear and unambiguous, it is
impermissible to add words into it. When the Regulation requires
that a candidate must obtain a minimum of 50% of marks in
"theory including orals", it is not possible to read it as 50% marks
in "theory including orals and internal (theory)". Similarly, when
the Regulation provides that a candidate must obtain a minimum of
50% of marks "in practicals", it is not possible to read them as "in
practicals and internal (practicals)". Therefore, when the
Regulation provides that a minimum of 50% of marks in theory
including orals, it excludes internal assessment and it means that
the candidate should secure a minimum of 50% marks out of 120
marks (that is 100 marks for theory and 20 marks for orals).
Similarly, when the Regulation provides that a candidate must
obtain a minimum of 50% of marks in practicals, it means he
should secure 20 out of 40 marks in practicals."
(Emphasis supplied)
8. In conclusion, the Supreme Court holds in para 27 of the report,
thus :
"27. We, therefore, accept the interpretation put forth by
the University in respect of MCI Regulation 12 as correct
and hold that clauses 56(2) and 57 of amended University
Ordinance 1/2002 are in consonance with clauses 92) and
(4) of MCI Regulation 12. We also hold that internal
assessment marks cannot be clubbed with University
examination (external) marks to ascertain whether a
candidate has passed in Theory with orals, and
practicals. We further hold that the clarification given by
MCI in its letter dated 17.9.2002 and the clarification in
its reply affidavit are contrary to MCI Regulation 12(4).
Consequently, a student has to secure marks as follows to
pass in a subject :
(i) 35% in internal assessment (for eligibility to
appear for university examination)
(ii) 50% of the total marks for Theory with Orals (only
externals)
(iii) 50% of the marks for Practicals/Clinicals (only
externals)
(iv) 50% of the aggregate (total of externals and
internals)"
(Emphasis supplied)
9. Clearly, while working out the two totals for the Medicine
paper, the University erred in adding the marks obtained by the
petitioner in the "Internal Assessment" Components. Sans the said
addition, the petitioner would score 70 out of 140 in his Written and
Oral Papers, and 60 out of 100 in practicals - in each case, above the
prescribed pass percentage of 50%.
10. Mr. Rupal candidly acknowledges that if one were to apply the
principles laid down by the Supreme Court, the petitioner would
undoubtedly pass in his medicine paper.
11. It be noted that the writ petition also includes a prayer for
awarding of grace marks. However, these grace marks are relatable to
the internal assessment components of the medicine paper. In view of
the fact that the said marks are not includible while working out the
marks obtained by the candidate, the issue of award of marks becomes
unnecessary. No findings are, therefore, being given on this prayer.
12. In view thereof, the issue in controversy being covered in
favour of the petitioner by the judgment of the Supreme Court in
Maharashtra University of Health Sciences (supra), the writ petition
is allowed. The petitioner is declared as having passed in his
medicine paper in Part-II of his Third Professional MBBS
Examination, 2018.
13. Needless to say, consequential reliefs, if any, would enure to the
benefit of the petitioner.
14. There shall be no order as to costs.
C. HARI SHANKAR, J
APRIL 02, 2019/kr
