IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WP(C).No. 36818 of 2009(V) -------------------------------------- PETITIONER: ------------------- DR.SHABEER, ABDUL RAUF,S/O.ABDUL RAUF VALIYANGADI PARAMBIL HOUSE, KUNDALIYOOR P.O, CHETTUVA, THRISSUR -680 616. BY ADVS. MR.V.M.KURIAN, MR.MATHEW B. KURIAN, MR.K.T.THOMAS, MR.C.N.SREEKUMAR. RESPONDENTS: ------------------------ 1. MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM, REPRESENTED BY ITS REGISTRAR. 2. THE CONTROLLER OF EXAMINATIONS, MAHATMA GANDHI UNVERSITY, PRIYADARSHINI HILLS, KOTTAYAM. R1 & R2 BY MR.T.A. SHAJI, S.C, M.G.UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36818/2009-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROVISIONAL CERTIFICATE FOR AYURVEDACHARYA (BAMS) DEGREE EXAMINATION ISSUED BY THE UNIVERSITY OF KERALA. EXT.P.2: COPY OF THE REGISTRATION CERTIFICATE ISSUED BY REGISTRAR, TRAVANCORE COCHIN COUNCIL OF INDIGENOUS MEDICINE. EXT.P.3: COPY OF THE MEMORANDUM FOR FIRST PROFESSIONAL MBBS EXAM ISSUED BY R.2. EXT.P.4: COPY OF THE MEMORANDUM FOR SECOND PROFESSIONAL MBBS EXAM. ISSUED BY R.2. EXT.P.5: COPY OF THE APPLICATION FOR SCRUTINY SUBMITTED BY THE PETITIONER. EXT.P.6: COPY OF THE CHALAN RECEIPT FOR REMITTANCE OF FEE FOR SCRUTINY. EXT.P.7: COPY OF THE APPLICATION FOR REVALUATION SUBMITTED BY THE PETITIONER. EXT.P.8: COPY OF THE CHALAN RECEIPT FOR REMITTANCE OF FEE FOR REVALUATION. EXT.P.9: COPY OF THE NOTIFICATION DTD. 16/11/2009 ISSUED BY R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36818 of 2009-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2010. JUDGMENT The petitioner has approached this Court seeking mainly for a direction to complete the scrutiny and revaluation of answer papers of ENT and Ophthalmology subjects for the Third Professional MBBS Part I Degree examination held in June, 2009. There is a challenge against the cut off marks fixed at 55% in respect of the remaining subjects for grant of moderation of 5 marks by the University. 2. The petitioner is a qualified BAMS Degree holder. He completed the said course from the University of Kerala in November 2001. He started practicing in Ayurveda thereafter. To learn the allopathy system of medicine, he appeared for the entrance examination for the MBBS course conducted by the Commissioner of Entrance Examinations and was selected for the said course under the Ayurveda quota at the Government Medical College, Kottayam. After completing the first year, he appeared for the first Professional MBBS Degree examination in July 2006 comprising 3 subjects, viz. Bio-Chemistry, Anatomy including Embryology and Physiology including Bio-physics and successfully completed the same. He wpc 36818 /2009 2 appeared for the second Professional MBBS Degree examination in April 2008 comprising of four subjects, viz. Pathology, Microbiology, Pharmacology and Forensic Medicine and passed in all the subjects. These are evidenced by Exts.P1 to P4. 3. The petitioner appeared for the third Professional MBBS Part I Degree examination in June 2009 and the results were published on 16.11.2009. He cleared ENT and Ophalmology papers, but failed in Community Medicine. The details of the marks obtained by him have been shown in para 4 of the writ petition. Thereafter he submitted an application for scrutiny and revaluation of the answer books of ENT and Ophthalmology papers, on 26.11.2009. Exts.P5 to P8 are the copies of the applications and the challan receipts evidencing payment. 4. The prayer in the writ petition is to conduct the revaluation within a specified time. The further complaint is that even though five marks have been provided for each subjects as moderation, which can be applied herein, as the petitioner has obtained only 96 out of 200 for Community Medicine, he is not being given the moderation since he has obtained only 53% marks in the other two subjects, viz. ENT and Ophthalmology. It is in these circumstances that the criteria for granting moderation to the effect that only those candidates who have secured 55% marks in other subjects alone will be entitled for moderation, is under challenge. wpc 36818 /2009 3 5. The respondents have filed a statement in the matter. It is pointed out that the criteria fixed is reasonable and not arbitrary. It is the Pass Board of the examination which decides the awarding of grace marks. The Pass Board in their meeting convened on 19.11.2009 resolved to award five marks as grace marks only to those who have obtained 55% or above in aggregate for the other two subjects passed in the examination. Reliance is also placed on the judgment of a Division Bench of this Court in W.A. No.665/2004, to contend that it is up to the Pass Board to fix the criteria. 6. The Division Bench, after considering a similar contention, held as follows in para 11: “11. In the light of the discussion above, we are of the view that in this case the following principles should govern the grant of grace marks to the petitioners: (i) The Examination Pass Board has no discretion to take a decision not to grant any grace mark at all in a particular year. (ii) A mere pass in the other two subjects by itself need not entitle a student to get the grace marks to enable him to pass in the failed subject. A pass in the other two subjects is only the minimum eligibility for the award of grace marks. The Pass Board has the discretion to fix a higher percentage of marks in the other subjects to entitle a student for grace marks in the failed subject and to decide that unless the student has obtained the said cut off percentage of marks in the other two subjects, no grace mark will be awarded to him. wpc 36818 /2009 4 (iii) If a student has secured such cut off percentage of marks in the other subjects and if he will pass in the failed subject if he is awarded five or less marks as grace marks, he is entitled to be awarded the required grace marks to pass in that subject. In other words, if a student fails in one of the subjects due to shortage of only 5 or less marks and if he has passed in all the other subjects and has also obtained the higher percentage of marks, if any, fixed by the Pass Board, he should be awarded the grace marks required for a pass in the failed subject. The Pass Board has no discretion to deny grace marks to such a student.” I respectfully follow the same. In the light of the above findings, herein also it cannot be said that the Pass Board has fixed a criteria which is unreasonable or arbitrary. Therefore, the rlief sought for in the writ petition as far as the challenge fixation of 55% marks to be obtained for other subjects for the purpose of giving moderation, is not liable to be granted. 7. With regard to the main relief sought for the completion of revaluation, there will be a direction to the University to complete the scrutiny and revaluation of the answer books within a period of six weeks from the date of receipt of a copy of this judgment and communicate the result thereof to the petitioner. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.)