Karnataka High Court

Ms. Nyvedya Narendra vs Rajiv Gandhi University Of Health ... on 6 February, 2021

Author: Hemant Chandangoudar

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF FEBRUARY, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

           WRIT PETITION NO.6105/2020 (EDN-RES)

BETWEEN:

MS. NYVEDYA NARENDRA
D/O. MR. B.P. NARENDRA,
AGED ABOUT 24 YEARS,
REG. NO.14M0877,
R/O.201, SRI SAI MEDOWS,
6TH CROSS, RMV 2ND STAGE,
MLA LAYOUT, DOLLARS COLONY,
BENGALURU-560094.
                                            ...PETITIONER

(BY SRI ABHISHEK MALIPATIL, ADVOCATE)

AND:

1.     RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
       4TH 'T' BLOCK, JAYANAGAR,
       BENGALURU-560 041,
       REP. BY ITS VICE-CHANCELLOR.

2.     THE REGISTRAR (EVALUATION)
       RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
       4TH 'T' BLOCK, JAYANAGAR,
       BENGALURU-560 070.

3.     MEDICAL COUNCIL OF INDIA
       POCKET-14, SECTOR-8, DWARAKA PHASE-1,
                              2



     NEW DELHI-110 077,
     REPRESENTED BY THE CHAIRMAN
     BOARD OF GOVERNORS,
     MEDICAL COUNCIL OF INDIA.
                                             ...RESPONDENTS

(BY SRI N K RAMESH, ADVOCATE FOR R1 AND R2,
    SRI N KHETTY, ADVOCATE FOR R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED 'ORDINANCE GOVERNING UNDER GRADUATE
VALUATIONS' NOTIFIED BY THE RESPONDENT UNIVERSITY VIDE
NOTIFICATION DATED 29.03.2019 PRODUCED AT ANNEXURE-G
AND DIRECT THE R-1 AND 2 TO CONDUCT FRESH EVALUATION
OF THE THEORY ANSWER SCRIPTS OF THE FAILED SUBJECTS
OF THE PHASE III-PART II MBBS EXAMINATIONS OF DECEMBER
2018 UNDERTAKEN BY THE PETITIONER IN TERMS OF THE
REGULATIONS NOTIFIED BY THE MEDICAL COUNCIL OF INDIA
AND TO ANNOUNCE THE RESULTS AFRESH AND ETC.

     THIS WRIT PETITION COMING ON FOR FURTHER ORDERS
THIS DAY, THROUGH VIDEO CONFERENCE, THE COURT MADE
THE FOLLOWING:

                         ORDER

Petitioner has invoked the writ jurisdiction under

Article 226 of the Constitution of India seeking for the

following prayers:

i) Issue a writ or order or direction in the nature of certiorari or any other appropriate writ, quashing the impugned 'Ordinance Governing

Under Graduate Valuations' notified by the Respondent University vide notification No.RGU/AUTH/140-SYN/117-7(Exam)/2018-19, dtd. 29.3.2019 produced at Annexure-G; and

ii) Issue a writ or order or direction in the nature of mandamus directing the respondents No.1 and 2 to conduct fresh evaluation of the theory answer scripts of the failed subjects of the Phase III - Part II MBBS Examinations of December 2018 undertaken by the petitioner in terms of the regulations notified by the Medical Council of India and to announce the results afresh; and

iii) Issue any other appropriate writ, or order or direction as this Hon'ble Court deems fit to grant in the ends of justice.

2. Learned counsel for the parties submit that the

prayer No.(i) sought for in this writ petition is already

quashed by the coordinate Bench of this Court in WP

No.31335/2019 and other connected writ petitions,

disposed of on 10.8.2020. Hence, the prayer (i) does not

survive for consideration.

3. It is not in dispute that the petitioner appeared

for Phase III MBBS - Part II examination in Pediatrics and

Obstetrics conducted in the month of December 2018 by

the respondent - University.

4. Petitioner is before this Court seeking for a

direction to the respondents - University to conduct fresh

evaluation of theory answer scripts of the failed subjects of

the Phase III - Part II MBBS Examinations of December

2018.

5. Learned counsel for the respondents - University

would submit that the petitioner is not entitled fresh

evaluation of the failed subjects of Phase III - Part II MBBS

in terms of Regulation 13(2) of the Regulations on

Graduate Medical Education, 1997. However, the

coordinate Bench of this Court in WP No.31335/2019 and

connected matters has held that it is mandatory for the

respondents - University to follow the MCI Regulations.

The relevant paras of the said order read as follows:

"6. There is a lot of force in the argument of the petitioners that the aforesaid Regulation 13(2) of 1997 Regulations is in substance pari materia, notwithstanding little textual variance with Regulation 14(1)(b) of the MCI Post Graduate medical Education Regulations, 2000; both the Regulations are reproduced below in juxtaposition:

13(2) There shall be at least four examiners for 100 students out of whom not less than 50% must be external examiners of the four examiners, the senior most internal examiner will act as the Chairman and Coordinator of the whole examination program so that uniformity in the matter of assessment of candidates is maintained. Where candidates appearing are more than 100, one additional examiner, for every additional 50 are part thereof candidates appearing, be appointed.

14(1)(b) For all Postgraduate examinations, the minimum number of Examiners shall be four, out of which at least two (50%) shall be External Examiners, who shall be invited from other recognized Universities from outside the State. Two sets of internal examiners may be appointed one for M.D./M.S. and one for Diploma.

Regulation 14(1)(b) has been considered by a Coordinate Bench of this Court vide judgment dated 27.9.2016 in W.P.NO.49749/2016 etc., between Dr.Haritha Ravipati Vs. RGUHS; the learned Judge having considered all aspects of the matter directed the respondent - University "to conduct fresh evaluation of answer scripts of all the petitioners who have failed in the subjects ...... in accordance with the provisions of Regulations 14(1)(b)...." This judgment having not been challenged has attained finality, is not in dispute.

7) The contention of learned Sr.Panel Counsel for the University that throughout the Country, many Universities have adopted only Double

Valuation Method since very long and that the same method has been followed by this University too ab inceptio with no complaints whatsoever from the MCI or the students, is no justification for such a flagrant violation of law; two millenniums ago the great Roman Lawyer Marcus Tullius Cicero (106-43 B.C) had said "let heavens fall down, law should be obeyed..."; this Court is at loss to know as to how despite uniform mandatory legal prescription, the University could have had one standard for undergraduates and the other for the Postgraduates; to make it's case worse, the University has been following Four Valuation Method for the Undergraduate Practical Examinations, which are only for a frugal 20% of total marks prescribed for the course; however, for the Theory Papers comprising the remaining huge 80%, such a method is not extended; strange it sounds, but fact it is.

8) The contention of learned counsel for the University that the subject MCI Regulations have been amended w.e.f. November, 2019 whereby

discretion is vested in the Universities to adopt Double Valuation Method, does not come to its rescue; the said amendment is in so many words, made applicable to the Courses commencing from the Academic Year 2019-20 onwards as pointed out by Prof. V R Datar; denying relief to the petitioners on the basis of such a prospective Regulation amounts to this Court, unjustifiably giving retrospective effect, thereto; the MCI being a statutory expert academic body in it's wisdom, has enacted a policy with prospective effect by the amendment in question and this Court has to show due deference to the same; the "catch straw" argument that if relief is granted to the petitioners, the same may open up the flood gates of litigations is too poor aground for denying remedy to the deserving litigants.

In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned Ordinance in its entirety; a Writ of Mandamus issues to the respondent-University to cause valuation of all Theory answer scripts of

all the petitioners by a set of Four Evaluators, in terms of Regulation 13(2) of Graduate Medical Education Regulations, 1997, forthwith.

It needs to be mentioned that the benefit of this judgment should be made extended to all the similarly circumstances students who have been failed in the Theory Papers on the basis of assessment under Double Valuation Method, if they so seek within a reasonable period and without driving them to the litigation process unnecessarily; it is open to the respondent- University to devise its own mechanism for giving effect to this judgment.

However, this judgment shall not be construed as warranting a fresh valuation of any Theory Papers in which the students have already been declared passed/successful.

It is needless to mention that the University shall accomplish valuation by two more evaluators of the subject answer scripts before the examinations for the next level are notified; the candidates who do not emerge

victorious on account of valuation by two more evaluators may reappear for the examination in question in accordance with law.

It is open to the University to re-

promulgate similar Ordinance if & when it duly adopts Double Valuation Method under the now amended MCI Regulations, and in accordance with law.

Costs made easy."

6. In view of the order passed by the coordinate

Bench of this Court, evaluation of answer scripts in terms of

the Regulation 13(2) of the MCI Regulations 1997 is

mandatory.

7. In terms of the order passed by the coordinate

Bench of this Court, this writ petition is disposed of

directing the respondents No.1 and 2 to conduct fresh

evaluation of theory answer scripts of the petitioner in the