-l^- HIGH COURT OF CHHATTISGARH AT BILASPUR WMT PETITION (O No. 5823 of2006 PETITIONER RESPONDENTS 2. Aditya Avnash Kaushik S/o Shri Avnash Sharma, aged about 23 years, Oecupation-Student, studying in Final Year ofMBBS course in CIMS, Bilaspur, pennanetit R/o Prachi Saingarh Road, Pathankot (Punjab), C/o Boys Hostel, Block No. 1, D/2, CIMS,Bilaspur(C.G.) VER8US Gum Ghasidas University, Throu^i its Registrar, Bilaspur (C.G.) Deaii, Chhattisgarh Institute of Medical Science (CIMS),Bilaspur(C.G.) WRIT PETmON UNDER ARTICLE 226/227 OF THE CONSTrTUTION OF INDIA Sinfi'le Bench: Hon'Me Justice Shri Satish K. Asnihotri. Presenfc Shri Ashok Sharma Nabhewala, Advocate with Shri Rajiv Shrivastava, Advocate forthe petitionw. Shri Asffish Slmvastava, Advocate for the i-espondents. ORDER (Passed on ..^'?...day of July, 2007) 1. The petitioner, by this petition seeks a vwit in the nature of mandamiis directing fhe respondents autfaorities to correct the mark-sheet of the petitioner of M.B.B.S Final Part-I (Supplementary) Examination, yaatmg him 20 marks in intemal assessment (Sessioaal) iu the Commumty Medicine subject. 2. The petitioner was admitted to the M.B.B.S. course in Ae academic year 2(X)1-2002. The petitioner successfully conapleted four years of M.B.B.S. eourse. The petitioner appeared in the M.B.B.S. Final Year Part-I examination held in July, 2005. The result was declared in November, 2005. The petitioaer was shown to have secured 41 maiks in tfae theory papers of the Community Medicine, 5 maiks in oral test, 15 maiks in practical test and 12 marics in intemalassessment (Sessioiial) examination, intotal 73 marks in fhe list (Annexure P/l). The petitioner wasaccordingly declared faUed in the Community Medicine subject and he was permitted to appear in the supplementary exammation in the said subject which was held on 16 Jan. 2006. The marks obtained by the petitioner in '&ie Fiaal Part-I (Supplementary) Exanunation in tfie intemal assessmeirt (Sessional) was notified as20 maiks infhe subject of Conmmnity Medicine (Annexure P/3). In the statement of marks of Supplementary Examination of MBBS Final Part I (Annexure P/4) the marics obtained by the petftioner in fhe intemal assessment (Sessional) was shown as 15 instead of20, as notified earlier. The petitioner, beeause of the reduction of marks in Sessional i.e. intemal assessment, was declared as failed. The minimum passing marks in the Conimunity Medicine subject is 100 i.e. 50% ofthe maximum marks i.6. 200. After adding 15 maiks in mtemal assessment (Sessional) in the Community Medicine, fhe petitioner seeured 98 maiks in the subject and was declared failed. Had the petitioner been given the total maiks obtained in intemal assessment (Sessional) i.e. 20, the petitioner would have secured 103 and ought to have been declared as passed. Consequently, tfae petitioner was not allowed to appear in the MBBS Final Part-II Examiaation held in the month ofJuly, 2006. Thus, the petitioner sufifered loss ofsix monfhs on aecount of mistake committed byfhe respondent aufhorities. However, by order dated 31.10.2006 passed by this Court, the petitioner was pennitted to appear in MBBS Part-II (Supplementary) examination condueted bythe respondents. Shri Ashok Shanna Nabhewala, leamed counsel with Shri Rajiv Shrivastava, leamed counsel for Ifae petitioner, would submit that the petitioner had obtained 20 maiks in fhe intemal assessmeat (Sessional) in the supplementary examination. The petitioner has vwongly been denied the ff benefit of20 marks on the ground that fhe petitioner had ohtained 15 marks earlier aad tfaat was final. The madcs obtained in supplementary examination was due to mistake. Leamed eounsel further submite fhat in the subsequent examination wherein the petitioner was permitted by fhe authorities to appear, was not on Ihe basis of any mis-representation made by tfie petitioner, and the petitioner was properly assessed and awarded 20 marks; The denial ofthe said marks is prejudicial to fhe mterest ofthe petitioner. The action ofthe respoadents is arbitrary, unreasonable and discriminatory. Thus, leamed counsel seeks forfhe relieffor declaringthe result after adding 20 marks instead of 15 maiks in intemal assessment (Sessional) in the Community Medicine subject. Shri Ashish Shrivasta.va, leamed counsel appearing for the respondents, per contra, would submit that in Ifae suppl.ementary exammation, the candidate is allowed to appear only in Ifaose subjects where he had failed. The petitioner had obtained 15 marks in the ititemal assessment (Sessional) of the Community Medicine subject. Thus, the petitioner wrongly appeared in the intemal assessment and the petitioner could not have been granted tiie marks obtained m supplementary examination in intemal assessment which he had already obtained qualtfying marks earlier. Leamed counsel relied upon clause 7 ofMedical Council oflndia's Regulation which reads as under: "(7) Supplementary examination may be conducted within 6 months so that &e students who pass canjointhe main batch and Ihe failed students will have to appear in the subsequent year." Leamed counsel appearing for the respondents rely on certain clauses of ordinance No. 109 of PL Ravishankar Shukla University, Raipur regarding examination which, according to the leamed counsel, has been adapted by Ihe respondent-University indicating that if the candidate has obtained at least 4 35% marissoftotal marks for intemal assessment in a particularsubject, he is not pennitted to appear in 1fae subject again in supplementary examiaation, which is as under: "5. EXAMINATIQN R.EOULATIONS (2) INTERNAL ASSES8MENT (i) It shall be based on day to day assessment evaluation pf student assigmnent, preparation for seminar, elmieal case presentationetc. (ii) Regular periodical exanunations shall be conducted throu^i out tiie course. The question of number of exanunation is left to the institution. (iii) Day to day records should be given importaace during ffltemal assessmait. (iv) Wei^rtage forthe intemal assessment shall be 20% ofthe total marks in each subject . (v) Student must secure at least 35% ofthe total marks fixed for intemal assessment in a particular subject m order to be eligible to appear in fmal univereity examination of tiiat subject" (3) uNiVERsrry EXAMINATION: (i) xxx xxx xxs xxx XXX (ii) Students must secure at least 35% maiks oftotal marks fixed for intemal ^sessmeirt in particular subject in order to be eligible to appear in final University exammation. (iii) xxx X3ix xxx xxx xxx (iv) A candidate who has passed in any subject of a professional exammation need not appear in fhat subject in any subsequentexammation." 7. Aceordingly, the petitioner has obtained more than 35% maiks in Ae intemal assessment ofCommunity Medicine subject in 1fae inain examination. He had wrongly appeared in fhe supplementaiy examination. Thus, awarding 20 marks which is not m dispute, cannot be taken mto consideration in the final mark sheet. 8. I have heard the leamed eounsel for fhe parties, pemsed the pleadmgs and papers appended thereto. 9; In fhe case on hand, the petitioner was permitted by the Head of fhe Department of Commumty Medicine, Chhattisgarh Institute of Medical '^ s? % •V Science, Bilaspur (hereinafl.er referred to as "CIMS") to appear in the supplementary exammation and admittedly, as per notice, he secured 20 marks out oftotal 40 in intemal assessment (Sessional). In the final mark list, only 15 maiks were added in the statement of marks (Annexure P/4). ^scordingly, he secured 98 matks. The minimum qualifying marks for declaring a candidate as passed was 100 out of 200 maximum marks, being 50% of fhe maximum marks. The subsequent intemal assessment was completely iguored by Ihe respondents. Had it been added to flie marks obtained under other heads of Ifae esamination, flie petitioner ou^it to have secured 103 and would have been deelared as passed. 10. Be fhat as it may, if a student deserves more marks, he should not be declmed the benefit of more marks on technical ground 1faat by mistake he was permitted to appear in Ifae supplementary examination and he was not required to appear in the examination. The relevant provision of Pt. Ravishankar Shukla University, Raipur, whieh according to tiie leamed counsel for the petitioner has been adapted by fce respondent University, also does not debar in clear terms appearance in the supplementary examination. Sub-clause 4 ofClause 3 ofthe said ordinance provides that a candidate who has passed in any subject of a professional examination need not appear in that subject again in any subsequent exanrination. Here, the word "need not" does not debar the candidate completely from appearing in fhe examination when the authorities including the Head ofthe Department has permitted the petitioner, to appear in 1he exammation. Admittedly the petitioner has obtained 20 marks out of 40 in fhe intemal assessment (Sessional scores). After adding 20 instead of 15 in fhe total marks obtained, the petitioner is 6 declared as passed in Community Medicine subject and consequently in MBBS Final Part-I examination. 11. Looking from all angles, denial of 20 marks to the petftioner in intemal assessment in tfae Community Medicine subject in M.B.B.S Final Part-I exammation would amount to taking hyper-technical view and fhat should not come infhe way ofinterest ofjustice. Thus, Ifae petitioner is entitledto 20 marks in the intemal assessment in fhe said subject and the petitioner be declared as passed in M.B.B.S Part-I Final examination. 12. In view ofthe foregoing, the petitioner was entitled to appear in the MBBS Final Part-II examination held in July 2006, but he was not pemiitted to appear. However, by virtue ofthe order dated 31.10.2006 passed by this Court, the petitioner was allowed to appear in Final Part-II (Supplementary) examination and the same was subject to final decision of this case. The respondents are accordingly du'ected to declare fhe result of M.B.B.S Final Part-H (Supplementary) Exammation of the petitioner with. other eonsequential benefits as permissible under law. 13. As a result, this petition is allowed. No order as tocosts. Sd/- Satish K. Agnihotri Judge Amit