Kerala High Court
Devashree Jayakrishnan vs The Kerala University Of Health ... on 1 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
WP(C) NO. 40004 OF 2023
PETITIONER:
DEVASHREE JAYAKRISHNAN
AGED 22 YEARS
D/O. JAYAKRISHNAN KRISHNANKUTTY, STUDENT,
2ND YEAR MBBS COURSE,
P. K. DAS INSTITUTE OF MEDICAL SCIENCES,
VANIYAMKULAM IN PALAKKAD DISTRICT, KERALA,
NOW RESIDING AT 37/966, ANDUMADOM,
FATHIMA CHURCH ROAD, ELAMKULAM, ., PIN - 682020
BY ADVS.
SRI.K.RAMAKUMAR (SR)
ASWINI SANKAR R.S.
T.RAMPRASAD UNNI
S.M.PRASANTH
T.H.ARAVIND
RESPONDENTS:
1 THE KERALA UNIVERSITY OF HEALTH SCIENCES
REPRESENTED BY ITS REGISTRAR,
MEDICAL COLLEGE CAMPUS, THRISSUR P.O.,
THRISSUR, PIN - 680596
2 THE CONTROLLER OF EXAMINATIONS
KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE CAMPUS, THRISSUR P.O.,
THRISSUR., PIN - 680596
3 THE NATIONAL MEDICAL COMMISSION
REPRESENTED BY ITS SECRETARY, POCKET - 14,
SECTION 8, DWARAKA PHASE - 1,
NEW DELHI,, PIN - 110077
BY ADVS.
R1 & R2 SRI.P.SREEKUMAR
R3 BY SRI.K.S.PRENJITH KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING
ON 29.01.2024, THE COURT ON 01.02.2024 DELIVERED THE FOLLOWING:
-2-
WP(C)No.40004 of 2023
MOHAMMED NIAS C.P., J.
---------------------
WP(C) No.40004 of 2023
---------------------------
Dated this the 1st day of February, 2024
JUDGMENT
The petitioner is a second-year MBBS student at P.K. Das Institute of
Medical Sciences, Vaniyamkulam, in Palakkad District. The classes for the
second year started in April 2023, and the results of the first-year
examinations were published on May 10, 2023. The petitioner could not
clear the subject 'Human Anatomy'. A supplementary examination referred
to as 'Say' was conducted three weeks after the commencement of the
second-year classes and when the petitioner was attending the same till
3rd July 2023. The petitioner submits that she had joined the course in the
year 2020, but the classes started only in 2021 when they should have
normally started in August 2020. The COVID-19 pandemic was the reason
for the delay in starting the course; accordingly, the first-year final
examination was conducted only in February 2022. The petitioner could
not clear the supplementary examination as well, and accordingly, she
attended the classes with the junior students and wrote the examination
again. A true copy of the examination results along with the score sheet
issued by the first respondent University is Ext.P1.
2. The petitioner, aggrieved by the marks given to her, raised a
grievance before the first respondent University, which accepted the same
following the recommendations from the college and ordered a fresh
revaluation by the evaluators from the University who had not evaluated
the paper earlier. Pursuant to Ext.P2, results were published on
20.10.2023, a copy of which is marked as Ext.P3, where again the
petitioner was declared 'failed' in the Human Anatomy paper. A student
gets four chances only to clear the papers. The petitioner submits that as
per communication dated 1.9.2023 issued by the National Medical
Commission, considering the Covid pandemic and as classes could not be
conducted in full stream, amended the existing regulations and held that
'subjects that have two papers, the learned must secure a minimum of 40%
of marks in aggregate' replacing the earlier 50% of the marks aggregate'.
Considering the queries raised by the students, Ext.P5 was provided by the
National Medical Commission. The petitioner contends that as per Ext.P4,
the pass percentage is declared as 40%, and therefore, the amendment
applies to the petitioner, and her results declared on 20.10.2023 must be in
tune with the amendment that came into force with effect from 1.8.2023.
However, the petitioner was still declared as 'failed', for which the
petitioner submitted Exts.P6 and P7 representations. In these
circumstances, the petitioner prays for a declaration that she has passed
the first year MBBS examination under the first respondent University
going by the amended Ext.P4 regulation and also to allow the petitioner to
continue to attend the classes for the second year MBBS course.
3. The University has filed a statement contending that the fresh
valuation was conducted and the original pass criteria of the examination
concerned apply to the fresh valuation also. It is contended that Ext.P4 is
applicable only for the examinations notified after 1.8.2023, and the same
has been clarified by the National Medical Commission as well. The norms
applicable when the examination was notified are relevant and not while
preparing the result sheet by the University. If the petitioner took the
examination based on old rules, the new notification will not apply to the
petitioner.
4. A memo has been filed on behalf of the third respondent
National Medical Commission producing Ext.R3(a)dated 3.10.2023, which
held that there is no retrospective effect to the notification dated 1.9.2023.
5. Heard Sri. Sri.K.Ramakumar the learned senior counsel for the
petitioner, assisted by Sri. T.Ramprasad Unni, Sri.P.Sreekumar, the learned
standing counsel for respondents 1 and 3 and Sri.K.S.Prenjith Kumsr, the
learned standing counsel for the third respondent.
6. It is undisputed that the petitioner had appeared for the
examination before the issuance of Ext.P4. However, the results were
revalued after the notification came into existence. Learned senior counsel
argues that Ext.P4 deals with fixing minimum marks for the pass, which
has to be after the examination and therefore, Ext.P4 applies on all fours to
the petition. The contention of the respondents that Ext.P4 notification has
no retrospective cannot be accepted.
7. Learned senior counsel for the petitioner also brings to my
notice the judgment of this Court in WP(C)No.34075/2023 dated
1.10.2023, wherein the candidate appeared for the supplementary
examination in July 2023, and the results were published on 30.9.2023.
This Court considered the rival submissions and held that the amendment
has to be prospectively applied to all cases where the examinations are
held after the amendment and the Pass Board meets to decide on the
result. The application cannot be restricted on the basis of the notification
of the examination. In that case, also the University contended that the
amendment will apply only to examinations that are notified after the
amendment. The relevant portion of the judgment is extracted hereunder:
"4 xxxxxxx
The learned Standing Counsel for the University contends
that the amended notification will apply only to
examinations which are notified after the amendment.
5. The contention raised by the Standing Counsel for the
4th respondent cannot be countenanced. The amendment
had to be prospectively applied to all cases where the
examinations are held after the amendment and the Pass
Board meets to decide on the result. The application
cannot be restricted on the basis of the notification of the
examination. "
8. In short, the crucial question is whether, for the application of
Ext.P4 notification, the date of the examination or the date of valuation of
the answer sheets is relevant. Learned senior counsel argues that Ext.P4
notification concerns fixing of marks, which determines whether a
candidate passes or fails and therefore, the notification only concerns the
valuation and does not have a bearing on the date of examination. On going
through Ext.P4 and also the judgment referred, I find considerable force in
the argument on behalf of the petitioner. Maybe the petitioner takes
advantage of Ext.P4 as it applies from 1.8.2023, and the result published
after that must be in tune with Ext.P4 notification. The stand of the NMC
that it is prospective also does not militate against this position.
Accordingly, the writ petition is allowed. It is declared that the petitioner
has passed the first year MBBS examination in tune with Ext.P4, and she
shall be permitted to attend the classes for the second year MBBS
examinations. The University will issue consequential orders forthwith.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
dlk/30.1.2024
APPENDIX OF WP(C) 40004/2023
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF EXAMINATION RESULTS (PROVISIONAL)
NO. 200013782-10-05-2023 ALONG WITH SCORE SHEET
ISSUED BY THE FIRST RESPONDENT
EXHIBIT P2 TRUE COPY OF ORDER NO. U.O.NO. 296/21717/DSA-
A1/KUHS/2023 DATED 16..08..2023
EXHIBIT P3 TRUE COPY OF RESULT (200013782-21-10-2023) OF
THE PETITIONER PUBLISHED ON 20..10..2023 ISSUED
BY R1
EXHIBIT P4 TRUE COPY OF COMMUNICATION F.NO.
U/14021/8/2023-UGMEB DATED 01..09..2023 BY THE
THIRD RESPONDENT
EXHIBIT P5 TRUE COPY OF FREQUENTLY ASKED QUESTIONS RELATED
TO CBME COURSE CORICULUM
EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 23..10..2023
SUBMITTED BY THE PETITIONER BEFORE THE
CONTROLLER OF EXAMINATIONS, KERALA UNIVERSITY
OF HEALTH SCIENCES, THRISSUR
EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 23..10..2023
SUBMITTED BY THE PETITIONER BEFORE THE DEAN
STUDENT AFFAIRS, BOARD OF ADJUDICATION OF
STUDENT GRIEVANCE, KERALA UNIVERSITY OF HEALTH
SCIENCES, THRISSUR
EXHIBIT P8 A TRUE COPY OF PUBLIC NOTICE NO.
U.13021/01/2023/UGMEB DATED 11..12..2023 ISSUED
BY THE NATIONAL MEDICAL COMMISSION
EXHIBIT P9 A TRUE COPY OF CIRCULAR BEARING NO.
7404/2023/ACI/MED/83/KUHS DATED 21..12..2023
HAS BEEN ISSUED BY THE UNIVERSITY
RESPONDENTS ANNEXURES
Annexure R1A A true copy of the minutes of the meeting of
the Pass Board held on 10.5.2023, for
considering the publication of the results of
the First Professional MBBS examination
February 2023 [2020 Admissions]
