THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18239 OF 2010 DATED AUGUST, 2010 BETWEEN Dr.G.Vikram Reddy and Others … Petitioners And Dr.N.T.R. University of Health Sciences of Andhra Pradesh, Vijayawada, rep. by its Registrar and Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18239 OF 2010 ORDER: The petitioners seek a Mandamus to the Dr.N.T.R. University of Health Sciences, Vijayawada (for brevity, ‘the University’), to declare them to have passed Master of Dental Surgery (MDS), Part-II theory (Papers-II, III & IV) examinations held in April, 2010 as per Table-1 issued under Regulation 13.3 of the Regulations for Post Graduate Dental Courses, 2006 (for brevity, ‘the Regulations for PG Dental Courses, 2006’) and to issue them Degree Certificates. They also assail the action of the University in failing them in the said examinations by applying the Dental Council of India Revised MDS Course Regulations, 2007 (for brevity, ‘the DCI Revised MDS Course Regulations of 2007’). The petitioners joined the three year Post Graduate Dental Course (Master of Dental Surgery) in April/May, 2007 in respondents 4 to 7 Dental Colleges. The course of their study was during the academic years 2007-2010. Their common grievance is with regard to the action of the University in not adhering to Regulation 13.3 of the Regulations for PG Dental Courses, 2006 with regard to the pass criteria, resulting in their being declared as failed in the theory (Part-II) examinations of the final year of MDS Course. These Regulations are said to have been supplied to the petitioners at the time they joined their respective Colleges. As per Regulation 13.1 of these Regulations, the examinations for the MDS Course are to be held at the end of the first year and the third year. The examinations consist of dissertation, theory examinations; clinical/practical examinations and viva voce. Regulation 13.3 reads as under: 13. Examination: 1. ………… 2. ………… 3. Scheme of Examination: MDS Examinations in any subject shall consist of Dissertation, Theory examinations, Clinical/ Practical examinations and Viva-Voce. Table-1 Showing marks distribution and scheme of examination: Exami- nation Theory Paper-I Theory Paper- II Theory Paper- III Theory Paper- IV Practical Viva Including Pedagogy & Dissertation review Year At the end of 1st year <<------ At the end of 3rd year ------>> Marks 100 100 100 100 200 100 Pass Criteria 50 marks (of Paper-I) 200 marks out of 400 (Total of Papers I + II + III + IV) Aggregate 150 marks out of 300 (Total of Practical + Viva) Regulation 13.4 provides that a minimum of 50% marks in theory and a minimum of 50% marks in practical/clinical & viva voce put together are required to pass the examinations. Table-2 appended to Regulation 13.4 showing the criteria for award of division is as under: 13.4 . Criteria for Pass & Award of Division: ………… ………… Table-2 Showing criteria for award of division: Division Percentage Aggregate of Marks (Theory + Practical + Viva) Remarks Pass 50% Single/Multiple attempts Second Class 51 to 64% Part-I & II shall be cleared in single & first attempt only First Class 65 to 74% Distinction 75 & above Thus, the petitioners having joined the MDS Course during the academic year 2007-08 were required to take the first year examination at the end of that academic year and thereafter, the final year examination at the end of the academic year 2009-10. Accordingly, the petitioners wrote the first year examination in May, 2008 and secured over and above the minimum pass mark of 50%. Relevant to note, petitioner No.1 herein along with others approached this Court by way of Writ Petition No.7565 of 2008 questioning the action of the University in requiring them to write the first year examination scheduled to be held at the end of the academic year 2007-08 on the ground that the same was contrary to the DCI Revised MDS Course Regulations of 2007. It was their case that they were required to write all the examinations at the end of the final year as per the DCI Revised MDS Course Regulations of 2007. Per contra, the University took the stand in the said writ petition that the DCI Revised MDS Course Regulations of 2007 were notified only on 20.11.2007 by which time the academic session for the year 2007-08 had already commenced and therefore, the petitioners therein being members of the said batch had to follow the pattern as per the Regulations which were in force by then and not the DCI Revised MDS Course Regulations of 2007. As the the Regulations for PG Dental Courses, 2006 required the students of MDS Course to take the examination in Paper-I at the end of the first year, this Court did not find fault with the insistence of the University that the petitioners therein should take the first year examination scheduled to be held in May, 2008. It was in this scenario that petitioner No.1 herein and others of his batch, including petitioners 2, 3 and 4 herein, appeared for theory Paper-I at the end of the first year in May, 2008 itself. Thereafter, upon completion of the second and third years of the course study the petitioners appeared for their final year examinations in respect of theory Papers-II, III & IV and also the practical examinations along with viva voce in April, 2010. The results thereof were declared on 19.05.2010. Though the petitioners were shown to have passed the practical examination and viva voce with 180, 221, 164 and 178 marks respectively out of 300 marks (over and above the required 50%), they were declared to have failed in the theory papers. It is the case of the petitioners that had the Regulations for PG Dental Courses, 2006 been followed they would have passed the examinations in the theory papers also as the said Regulations require the marks obtained by them in theory Papers-I, II, III & IV to be clubbed together and once they secure a minimum of 200 marks out of the 400 marks allotted for these four papers, they satisfy the pass criteria. As they individually secured 203, 217, 204 and 200 marks respectively, basing on this norm they claimed that they have passed the theory examinations also. Their grievance is that the University did not adopt this method but failed them in Part-II (theory Papers-II, III & IV) on the ground that they had not secured a minimum of 150 marks out of the 300 marks allotted for these three papers. They alleged that the University informed them that the DCI Revised MDS Course Regulations of 2007 had been adopted in respect of the pass criteria. Reference is made to these Regulations which posit a different structure as the four theory papers are adjudged for 75 marks each, totaling 300 marks, and a candidate is required to secure at least 150 marks out of the 300 marks allotted for the four theory papers to pass the theory examinations. The petitioners pointed out that they were subjected to examinations for a total of 100 marks for each theory paper, be it at the end of the first year or at the end of the final year. They therefore filed the present writ petition assailing the varying stances adopted by the University and in applying different Regulations at different points of time to their detriment. In its counter, the University stated that prior to the DCI Revised MDS Course Regulations of 2007, the Dental Council of India Master of Dental Surgery Course Regulations, 2002 (for brevity, ‘the DCI MDS Course Regulations of 2002’) were in force. It is stated that as per these Regulations the course consisted of four theory papers of 75 marks each, totaling 300 marks, along with clinical examination for 200 marks added to viva voce of 100 marks. To pass the examinations, a candidate had to secure 50% marks in theory examinations and 50% marks in practical/clinical examination including viva voce. The University further stated that vide resolution of its Academic Council dated 07.08.1994, Part-I theory examination had to be conducted at the end of the first year and candidates were required to pass the said examination before appearing for Part-II examination at the end of the third year. Part-I consisted of theory Paper-I while Part-II comprised theory Papers-II, III & IV. Further, in theory Paper-I, 100 marks were allotted while for theory Papers-II, III & IV no marks were prescribed and instead, a grading system was adopted by providing three Grades, viz., Grade-A (Distinction), Grade-B (Pass) and Grade-C (Fail). This system continued upto the academic year 2005-06. At that time the Executive Council of the University is said to have framed Regulations for PG Dental Courses, 2006, vide resolution dated 28.04.2007 providing for 100 marks each for theory Papers II, III & IV also. Thereafter, in respect of the batch of the academic year 2008-09 the DCI Revised MDS Course Regulations of 2007 were adopted. As per these Regulations, examinations in all the four theory papers had to be conducted at the end of the final year. With regard to the Regulations for PG Dental Courses, 2006, the University stated that when the same were placed before the Academic Senate and the Executive Council of the University for approval, a decision was taken to constitute a Committee to finalize and submit a report but in the meanwhile, the DCI Revised MDS Course Regulations of 2007 came into force. The University further asserted that the petitioners could not take shelter under what it called the draft Regulations of 2006. The University therefore denied the petitioners’ claim that their marks in all the four theory papers should be clubbed together for applying the pass criteria. However, the University concluded by stating that the matter was proposed to be placed before the Executive Council to decide the applicability of the draft Regulations of 2006 to the students of 2007-08 batch. Heard Sri D.Prakash Reddy, learned senior counsel appearing for the petitioners and Sri D.V.Nagarjuna Babu, learned standing counsel for the University. Though much ado is made about the Regulations for PG Dental Courses, 2006 and the DCI Revised MDS Course Regulations of 2007, it is pertinent to note that there is not much difference between the two in so far as the pass criteria for MDS Course is concerned. The DCI Revised MDS Course Regulations of 2007 stipulate the following criteria for being declared as passed:– “To pass in the University examination, a candidate shall secure in both theory examination and in practical/clinical including viva voce independently an aggregate of 50% of total marks allotted (150 marks out of 300 allotted for theory and 150 out of 200 for clinical + 100 for viva voce together). A candidate securing less marks as described above shall be declared to have failed in the examination.” Therefore, except for the variation of the total marks allotted for each theory paper, the required minimum 50% for a pass remains the same under both sets of Regulations. Under the Regulations for PG Dental Course, 2006, each theory paper is adjudged for 100 marks totaling 400 in all. Under the DCI Revised MDS Course Regulations of 2007 each theory paper is adjudged for 75 marks totaling 300. There is thus no difference, so to say, between the pass criteria prescribed in these two sets of Regulations. Even earlier under the DCI MDS Course Regulations of 2002, 75 marks were allotted to each of the theory papers adding upto 300 and a candidate was required to secure 50% thereof, i.e., 150 out of the 300 for passing the theory examinations. The pass criteria was therefore uniform throughout in the scheme of all these Regulations. The interpretation of the University however appears to be that Part-I and Part-II of the theory examinations are to be assessed separately whereby a candidate is required to secure the minimum 50% marks in theory Paper-I (Part-I) and a minimum of 150 marks out of the 300 (50%) allotted for theory Papers-II, III & IV (Part-II). As the petitioners failed to satisfy this criteria, it is the stand of the University that they have not passed in the theory examinations. The source for this mode of assessment is said to be the procedure followed by the University pursuant to its resolution dated 07.08.1994. However, according to the University’s own stand as per that resolution, marks were not to be allotted for theory Papers-II, III & IV and only a grading system was to be followed. However, that is not what the University has done in the present case. There is therefore no norm or Regulation which explicitly authorizes the procedure sought to be adopted by the University in this case. Though a feeble attempt is made to state that the Regulations for PG Dental Courses, 2006 were only draft Regulations and were not implemented, the same does not hold water. The learned standing counsel for the University placed before the Court a copy of the resolution said to have been passed by the Executive Council on the recommendations made by the Academic Senate of the University on 28.04.2007, whereby it was resolved to refer the issue of finalizing the MDS Course Regulations to a Committee. However, the subsequent communication bearing F.No.7660/A4/90 dated 05.09.2007 addressed by the University to the Principals of all the Dental Colleges negates the so-called resolution. By the said communication, the University stated as follows: “10. 1. Grading of the Candidates’ performance shall be removed and Marks shall be awarded for theory, viva and practicals separately. 2. There shall be 4 questions in Theory Part-II – Paper-II and Paper-III. Each question shall carry 25 marks. 3. The MDS, Part-II – Paper-IV Essay: - There shall be 2 questions (topics). The candidate shall write one essay carrying 100 marks. 4. The practical minimum marks shall be 200. 5. The viva voce minimum marks shall be 100. 11. ......... 12. ......... 13. Basic Sciences examination of MDS Part-I may be conducted at the end of 1st year only. The above regulations will come into force with effect from the batch of admissions made for the year 2007-08 for B.D.S. and M.D.S. Courses.” The aforestated instructions were obviously in conformity and keeping with the Regulations for PG Dental Courses, 2006. Further, the stand adopted by the University in the earlier litigation clinches the issue. By letter No.299/A4/MDS/06 dated 17.04.2008 addressed to the learned standing counsel, the University, by referring to its letter dated 05.09.2007 circulated amongst the Dental Colleges, stated that it was unanimously decided to implement the DCI Revised MDS Course Regulations of 2007 from the academic year 2008-09 and that there were differences between the University’s Regulations for PG Dental Courses, 2006 and the DCI Revised MDS Course Regulations of 2007 as to syllabus, examination pattern and other things. Therefore, the DCI Revised MDS Course Regulations of 2007 would not be applicable to the 2006-07 and 2007-08 batches. These instructions were intended to oppose the claim of petitioner No.1 herein and the other petitioners in Writ Petition No.7565 of 2008 that they were not required to write Part-I theory examination at the end of the first year in view of the DCI Revised MDS Course Regulations of 2007. However, the present stand of the University that the Regulations for PG Dental Courses, 2006 were only draft Regulations, owing to its resolution dated 28.04.2007 to refer them to a Committee, falls to the ground as the University, by its letter dated 17.04.2008, relied upon its letter dated 05.09.2007 addressed to the Colleges without a mention of its resolution dated 28.04.2007 and the action, if any, taken thereupon. In the light of the aforestated facts and circumstances, it is manifest that the University itself is varying its stand as to what norms should be applied to the batch to which the petitioners belong. Be it under the DCI MDS Course Regulations of 2002 or the DCI Revised MDS Course Regulations of 2007 or the Regulations for PG Dental Courses 2006, the pass criteria is identical, i.e., a candidate should secure 50% on the aggregate in theory Papers-I to IV. Though the University’s resolution in 1994 which is said to have been followed thereafter advocated a different procedure of awarding marks for theory Paper-I and adopting a grading system for Papers-II, III & IV, it is clear that the said procedure was not adopted in the case of the petitioners. The memoranda issued by the University in respect of the petitioners’ performance in theory Papers-I to IV indicate that they were adjudged only on the basis of marks and were not graded. Further, in the light of the University’s own missive dated 05.09.2007 to the Dental Colleges in the State to follow the pattern stipulated in the Regulations for PG Dental Courses, 2006, there can be no doubt that the petitioners performance must be assessed in keeping with the same. There is no dispute that assessed so, the petitioners have passed in theory Papers-I, II, III & IV as they secured over and above the minimum 200 out of the 400 marks allotted for these papers. The action of the University in segregating the marks secured by the petitioners in theory Papers-II, III & IV and assessing them separately in respect thereof is not in keeping with the Regulations for PG Dental Courses, 2006 which the University itself pressed into service under its letter dated 05.09.2007. The said action is therefore illegal, arbitrary and unsustainable. There shall accordingly be a direction to the respondent University to assess the petitioners’ performance in the MDS Course Examinations and more specifically theory Papers-I, II, III & IV in accordance with the procedure prescribed in the Regulations for PG Dental Courses, 2006; to declare them as having passed the said course and consequently to issue them their Degree Certificates. The Writ Petition is accordingly allowed. There shall be no order as to costs. ____________________ SANJAY KUMAR, J. _________ AUGUST, 2010 VGSR