IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 3913 of 2009 Between: M. Karthik S/o. M.S.S. Purushotham Guntur Medical College, Guntur. ..... PETITIONER AND 1 N.T.R. University of Health Sciences, A.P., Vijayawada, rep. by its Registrar. 2 Guntur Medical College, Guntur, rep. by its Principal. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in not allowing the petitioner from appearing for Gynecology in theory and practical in the Final Year M.B.B.S. Examination's commencing from 9th March, 2009 or on any other date, as illegal, arbitrary, opposed to principles of natural justice, null and void and consequently direct the respondents to permit the petitioner to appear for the subject of Gynecology in theory and practical of the Final Year M.B.B.S. Examination commencing from 9th March, 2009 or on any other date, and pass Counsel for the Petitioner : MR. MOVVA.CHANDRASHEKAR RAO Counsel for the Respondents : MR. D.V.NAGARJUNA BABU The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.3913 OF 2009 ORDER : The petitioner is a final year student of MBBS course in the 2nd respondent college. He is a bright student and stood first during the entire course scoring the highest percentage of marks. He appeared for the United States Medical Licensing Exam-Step1 held in December, 2007, and was declared eligible to undergo Observership Programme in the Department of Cardiology at Heartford Hospital, University of Connecticut by participating in Cardiology rounds in Coronary Care Unit for a period of two months. For the said purpose, he was granted leave by the 2nd respondent College on for a period of one month from 1st June, 2008 to 30th June, 2008 excluding the vacation period of May. Accordingly, the petitioner went to USA and attended the Observership Programme which is essential for seeking residency in U.S. Hospitals after graduation from any recognized Indian University. After his return from U.S.A., the petitioner resumed his studies in the 2nd respondent College and completed the final year. The examinations of the final year MBBS consisting of four papers namely Surgery, Medicine, Paediatrics and Gynaecology were held from 9th March, 2009. However, the petitioner was not allowed to appear for the Gynaecology examination on the ground that he failed to put in the minimum percentage of 75% attendance. It is learnt by the petitioner that a report sent by the Head of the Department of Gynaecology reporting shortage of attendance was forwarded by the 2nd respondent College and on the basis of the same the 1st respondent University held that he was not eligible to appear for the Gynaecology examination. Aggrieved by the said action, the present writ petition is filed contending that the action of the Head of the Department of Gynaecology as well as the 2nd respondent College in sending the report to the 1st respondent without taking into consideration the period of leave granted to the petitioner to attend the Observership Programme in USA for one month was arbitrary and illegal. It is contended that had the leave period of one month been taken into consideration there would not have been shortage of attendance. While pointing out that none of the students of the 2nd respondent College were detained at any point of time on the ground of shortage of attendance, it is contended that the impugned action of the Head of the Department of Gynaecology and the 2nd respondent College in reporting that the petitioner did not have the required percentage of attendance was mala fide apart from being arbitrary and illegal. On behalf of the 2nd respondent College, a counter-affidavit has been filed stating that as per the Rules and Regulations made by the Medical Council of India a student shall have a minimum of 75% attendance both in theory and clinical postings / practicals separately which is mandatory to appear for the University Examinations irrespective of merit. Though the petitioner has got notable academic achievements and secured high percentage of marks in the first, second and third year of MBBS course, his percentage of attendance in the Obstetrics and Gynaecology Subject in Theory as well as Clinical postings/Practicals was found to be below the required minimum percentage of attendance. Hence, the petitioner’s name was mentioned in the list of ineligible candidates to appear for the said examination i.e., Obstetrics and Gynaecology of the final year MBBS. The fact that the petitioner was granted leave by the then Principal of the 2nd respondent College for a period of one month from 1.6.2008 to 30.6.2008 excluding the vacation period of May, 2008 has not been disputed. However, it is stated that the petitioner had overstayed in the U.S.A. beyond the permission period and he had returned to India only on 18.7.2008. It is further explained that as per the University schedule of clinical postings the period of 3rd to 9th Semesters is divided among various clinical units and attendance of 75% in each clinical unit is compulsorily. As the petitioner went abroad from 17.5.2008 to 17.7.2008 he was totally absent for his regular ward postings in Obstetrics and Gynaecology Department from 1.6.2008 to 30.6.2008 and Surgery Department from 1.7.2008 to 17.7.2008. It is further stated that the lists of eligible students as received from the Professors and Heads of Departments of Medicine, Surgery, Paediatrics and also Obstetrics and Gynaecology were forwarded to the University after due verification. The petitioner was declared ineligible by the Professor of Obstetrics and Gynaecology and in that subject he did not have the required minimum percentage of attendance. He had only 43% attendance in theory and 18.03% in clinicals / practicals in the subject of Obstetrics and Gynaecology as per the attendance particulars subjected by the Head of Department of Obstetrics and Gynaecology. The said report was forwarded to the University after thorough verification of the relevant material available in the Department. Though there was no such procedure, the petitioner was called by the Professor of the Department of Obstetrics and Gynaecology while preparing the list of eligible candidates, but he could not offer any valid explanation for his shortage of attendance. The College was closed for summer vacation during the month of May, 2008 and for calculation of attendance the vacation period was excluded for all the students as it was not academic period. It is further stated that the petitioner was very well aware that he had to put up minimum 75% of attendance in the subject concerned and his claim that he would have put up the requisite percentage of attendance if the period of absence for which the permission was granted by the then Principal of the 2nd respondent College was incorrect. It is stated that even if the attendance for the said period of leave is added the petitioner’s attendance is less than the minimum percentage of 75% and therefore he is ineligible to appear for the examination of Obstetrics and Gynaecology. It is further stated that as per the Rules and Regulations made by the Medical Council of India, condonation of shortage of attendance is not allowed either by the Principal of the College or by anybody else. Hence, the impugned action cannot be held to be arbitrary or illegal. In the counter-affidavit filed on behalf of the 1st respondent University, it is stated that in view of the discrepancies in the attendance particulars of various students including the petitioner studying in the 2nd respondent college, the University appointed the Principal, Siddartha Medical College, Vijaywada to conduct an enquiry and to report the matter to the University. Accordingly, the Principal, Siddartha Medical College, Vijayawada, inspected and checked the college records in respect of the petitioner. He categorically observed that his attendance in theory and practicals is 52% and 70% respectively. Therefore, petitioner did not have requisite attendance to write the exam as prescribed by the MCI and University. The minimum required attendance is 75% both in theory and practicals/clinical and there is no power vested in the University to relax the above stipulation made by the M.C.I. Furthermore, such relaxations are not in the public interest in as much as they would result in dilution of the standards of education prescribed by the regulating bodies especially in the field of Medical Education. The petitioner filed a Reply affidavit contending that though as per the timetable prescribed by the University 300 hours are to be conducted from 4th Semester to 9th Semester in the subjects of Obstetrics and Gynaecology, only 150 hours were conducted by the 2nd respondent college. It is also alleged that whereas 80 classes were earmarked for the final year MBBS, the College had conducted only 54 classes and according to the college the petitioner had put up 43% of attendance in the practicals which comes to 23 classes. If 80 classes were conducted as prescribed, the petitioner could have attended those classes and could have put up the minimum percentage of attendance. As a matter of fact, the college had conducted special classes for the students who did not put up the minimum percentage of attendance. However, the college did not give any intimation to the petitioner about the shortage of attendance either in theory or practicals and therefore the college is now estopped from contending that the petitioner had shortage of attendance. It is also alleged that the Head of the Department of Obstetrics and Gynaecology had intentionally detained the petitioner alleging shortage of attendance. Since he secured more than 75% attendance in three subjects namely, Surgery, Medicine and Paediatrics, it is un-understandable how he could not put up the minimum 75% in Obstetrics and Gynaecology. It is also alleged that the Obstetrics and Gynaecology Department did not maintain any attendance register and the register that was produced before the Enquiry Officer was cooked up and there were several discrepancies. Even the enquiry report was very vague and several discrepancies were apparent. The enquiry officer failed to explain on what basis he had arrived at the figure of 52% in exams. The said repot was vitiated on account of interference by the Head of the Department of Obstetrics and Gynaecology. I have heard the learned counsel for both the parties. In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India made Regulations on Graduate Medical Education, 1997. Regulation 12 which deals with examinations runs as under : “12. EXAMINATION REGULATIONS : Essentialities for qualifying to appear in professional examinations. The performance in essential components of training are to be assessed, based on: (1) ATTENDANCE: 75% of attendance in a subject for appearing in the examination is compulsory provided he/she has 80% attendance in non lecture teaching, i.e., seminars, group discussions, tutorials, demonstrations, practicals, Hospital (Tertiary, Secondary, Primary) postings and bed side clinics, etc. (2) External Assessment : … … … … ….. (3) University Examinations : … … … … ….. (4) Distribution of marks to Various Disciplines: … … … ….. …. …. ….” Regulation 12 (1) has been subsequently amended on 15.10.2003 and the said amended regulation runs as under : “(1) ATTENDANCE : 75% attendance in a subject for appearing in the examination is compulsory inclusive of attendance in non-lecture teaching i.e., seminars, group discussions, tutorials, demonstrations, practicals, hospital (Tertiary, Secondary, Primary) posting and bed side clinics, etc”. A reading of the above provision, as substituted by the amendment dated 15.10.2003, shows that 75% attendance in a subject is compulsory for appearing in the examination and that such 75% includes attendance in non-lecture teaching which is known as clinicals / practicals. Though Regulation 12 (1) does not expressly provide that minimum attendance of 75% is mandatory both in theory and practicals / clinicals, it is represented by the learned counsel appearing for the University that it has been understood by the University that it is essential to put in minimum 75% of attendance both in theory and practicals and that the same is being implemented all along consistently. It is further stated that in the handbook made available to the students in which all the relevant regulations are consolidated, Regulation 12 (1) has also been included and that all the students are very well aware of the said essential requirement. The said fact has not been disputed before this Court by the writ petitioner and it is not the case of the petitioner that there is no need to put in 75% of attendance both in theory and practicals / clinicals. It is also not disputed before this Court that the University has been following the same procedure in respect of all the colleges affiliated to it. In the circumstances, the only question that requires consideration is whether the University is justified in detaining the petitioner in the subject - Obstetrics & Gynaecology on the ground of shortage of attendance. According to the 2nd respondent College, the petitioner had 43% of attendance in theory and 26% of attendance in practicals in Obstetrics & Gynaecology. During the pendency of this writ petition, the 1st respondent University appointed the Principal of Siddartha Medical College, Vijayawada, to enquire into the various complaints received from the students with regard to the attendance particulars furnished by the Heads of Departments of different Colleges. Accordingly, the 2nd respondent College was visited on 19.3.2009 and after verifying the attendance registers and after recording the statements of the Heads of Departments, the Enquiry Officer submitted his report dated 21.3.2009. So far as the writ petitioner is concerned, it was found by the Enquiry Officer as under : “Among the students roll, No.35 Mr. M. Karthik has left for USA from 17.5.2008 to 18.7.2008 and was absent for all the theory and practical postings. He was permitted by the Principal, GMC, Guntur leave for a period of one month from 1.6.2008 to 30.6.2008. He was instructed to restore to his academic duties on or before 1.7.2008. But the individual has returned to India on 18.7.2008. In the month of June when he was officially permitted to go abroad, even if the classes were added, his attendance in theory would be 52% and 70% in practical / clinical.” On the basis of the said report, it is contended on behalf of the respondents that the percentage of attendance of the petitioner both in theory and practical was below the required minimum i.e., 75% and therefore he was not eligible to appear for the examination in the said subject. It is further contended that even if the classes from 1.6.2008 to 30.6.2008, for which period he was granted leave by the Principal of the College, were added his attendance in theory would be 52% and 70% in theory and practicals / clinicals respectively. However, in his reply affidavit dated 12.6.2009 it is contended by the petitioner that whereas the timetable prescribed by the University mandates holding 300 hours from 4th to 9th semesters in the subject of Obstetrics & Gynaecology, the 2nd respondent College had conducted only 150 hours. It is also alleged that whereas 80 classes were earmarked for the final year MBBS the college had conducted only 54 classes. It is contended that if 80 classes were conducted as prescribed, the petitioner could have attended those classes and could have put up the minimum percentage of attendance. While pointing out that even according to the respondents he had secured 43% of attendance out of 54 classes conducted, it is contended by the petitioner that if the College has conducted 80 classes as prescribed he could have attended the remaining 26 classes and would have put in the minimum attendance of 75%. It is also contended that since he had put in more than 75% attendance in other subjects (Surgery, Medicine and Paediatrics) during the same period, there is no possibility of the alleged shortage of attendance in Obstetrics & Gynaecology. It is further alleged that the Head of Department did not maintain any attendance register for Obstetrics & Gynaecology and detained the petitioner intentionally even though there was no shortage of attendance. It is also specifically alleged that the attendance register produced before the Enquiry Officer is fabricated only to substantiate the alleged shortage of attendance. It is also alleged that there were various discrepancies in the attendance register and that the Enquiry Officer had failed to take notice of the said discrepancies. It is also alleged that the Enquiry Officer failed to verify all the registers maintained in the Department and he had submitted his report only on verification of the attendance particulars from some of the registers produced by the Department. Thus it is contended by the petitioner that the report dated 21.3.2009 cannot be relied upon to justify the action of the respondents. It is also his case that a 3-Member Committee was appointed by the Vice-Chancellor of the 1st respondent University consisting of Dr. C. Padmavathi Devi, Dr. B. Raj Kumar and Dr. N. Prabhavathi and the report submitted by the said Committee was in his favour. It is alleged that at the instance of the Head of the Department of Obstetrics & Gynaecology in the 2nd respondent College, the Principal of the Siddartha Medical College, Vijayawada, was again appointed as an Enquiry Officer and the report submitted by the said Enquiry Officer has been pressed into service to justify the impugned action of the respondents suppressing the earlier enquiry report submitted in favour of the petitioner by the 3-Member Committee. Nothing could be placed before this Court by the respondents contradicting the allegations made by the petitioner in his Reply affidavit. However, it is contended that there is no power vested in the University to relax the stipulations made by the Medical Council of India and moreover such relaxations are not in the public interest since they would result in dilution of the standards of the education prescribed by the regulating bodies especially in the field of medical education. On a careful consideration of the entire material on record, it is clear that the correctness of the attendance particulars maintained by the Head of the Department of Obstetrics & Gynaecology in the 2nd respondent College is seriously disputed by the petitioner. Not only it is alleged that the Head of the Department did not maintain any attendance register and the registers that were produced before the Enquiry Officer were cooked up for the purpose of enquiry, but the specific allegations also included that the Head of the Department having developed hostility towards the petitioner was bent upon detaining the petitioner in this particular subject. As noticed above, it is also the specific case of the petitioner that a 3-Member Committee was earlier appointed and the report of the said Committee has been deliberately suppressed by the respondents since the same is in his favour. Having regard to the objections raised by the petitioner, this Court is not inclined to take the enquiry report dated 21.3.2009 as conclusive. Though the attendance registers have been produced before this Court by the 2nd respondent College, it is not possible for this Court to examine the correctness of the attendance particulars maintained therein and record a finding. Moreover, as rightly contended by the learned counsel for the petitioner, the attendance has to be calculated from the total number of hours prescribed by the University/MCI. Such an exercise cannot be undertaken by this Court and it would be appropriate to entrust the verification to an independent authority who is well versed with the academic aspects. It is also relevant to note that pursuant to the interim orders passed by this Court on 27.2.2009 and 29.04.2009, the petitioner was permitted to appear for the examination in Obstetrics & Gynaecology both in theory and practical and it was reported to this Court by the learned counsel for the University that though the petitioner had secured 31 marks out of 40 in internal examinations, 69 marks out of 110 in theory, he had secured in practicals only 19 as against the 25 minimum marks out of 50 and therefore he had failed in the practicals in Obstetrics & Gynaecology. The fact that the petitioner is a bright student and had secured highest marks in all the subjects in all the semesters including Surgery, Medicine and Paediatrics in the final year is borne out of the record. Even in Obstetrics & Gynaecology he had secured good marks both in internal assessment and theory. In the circumstances, the fact that the petitioner has failed only in the practicals in Obstetrics & Gynaecology supports the alleged mala fides attributed to the Head of the Department of Obstetrics & Gynaecology and therefore on that ground also this Court is of the opinion that the matter requires further enquiry by an independent authority who is well acquainted with the academic aspects of the medical education. Accordingly, the Director of Medical Education (Academic), A.P., Hyderabad, who is also an ex officio member of the Academic Council of the 1st respondent University is hereby directed to make a detailed enquiry into the particulars of attendance maintained by the Department of Obstetrics & Gynaecology in the 2nd respondent College and submit a report with regard to the petitioner’s attendance in Obstetrics & Gynaecology. The petitioner is hereby granted liberty to submit his objections, if any, with regard to the attendance particulars maintained by the Head of the Department of Obstetrics & Gynaecology in the 2nd respondent College to the Director of Medical Education (Academic) on or before 03.08.2009. The Enquiry Officer – Director of Medical Education (Academic) shall make the necessary enquiry taking into consideration the objections, if any, raised by the petitioner and submit his enquiry report within ten days thereafter to the 1st respondent University. Thereafter, the 1st respondent shall pass appropriate orders in accordance with law as to the eligibility of the petitioner to appear for the examination in Obstetrics & Gynaecology and communicate the same to the petitioner as expeditiously as possible preferably within a period of one week from the date of receipt of the Enquiry Officer’s report. Writ Petition is accordingly disposed of. No costs. _______________ G. ROHINI, J. Dt.29.07.2009 Note:- CC by tomorrow. (B/O) gbs