IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.6.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.8472 to 8475, 9038 to 9041 and 9220 of 2011 P.Anand ...Petitioner in W.P.8472/2011 R.Antony Arockia Vinoth ...Petitioner in W.P.8473/2011 T.Pavitra ...Petitioner in W.P.8474/2011 G.M.Varadharajan ...Petitioner in W.P.8475/2011 A.Prasanna ...Petitioner in W.P.9038/2011 B.Sujee Kiruthika ...Petitioner in W.P.9039/2011 Krishna Murari Dhaker ...Petitioner in W.P.9040/2011 Lokesh Choudhary ...Petitioner in W.P.9041/2011 K.Karthikeyan ...Petitioner in W.P.9220/2011 Vs. 1. The Tamil Nadu Dr.MGR Medical University rep. by its Registrar No.69, Anna Salai Guindy, Chennai – 600 032. 2. The Controller of Examination The Tamil Nadu Dr.MGR Medical University No.69, Anna Salai Guindy, Chennai – 600 032. 3. Medical Council of India rep. by its Chairman Sector 8, Dwaraka Phase-I New Delhi – 110 077 4. The Director Directorate of Medical Education 162, EVR Periyar Salai Kilpauk, Chennai – 600 010 (R4Impleaded by order dated 25.4.2011 in MP:2 of 2011 in WP:8472/2011) .. Respondents in M.P.2/11 in W.P.8473/11 w.P.8475, 9038 to 9041/11 M.P.2/11 in W.P.8474/11 Respondents 1 to 4 in M.P.2/11 in W.P.8475/11, W.P.9220/11 M.P.2/11 in W.P.9038/11 M.P.2/11 in W.P.9039/11, M.P.2/11 in W.P.9040/11 M.P.2/11 in W.P.9041/11 https://hcservices.ecourts.gov.in/hcservices/ 5.The Dean, Government Theni Medical College, Kanavilakku, Theni. (R.5 impleaded as per order dated 26.4.2011 in M.P.NO.3/11 in W.P.No.9220/2011) ...5th Respondents in W.P.9220/2011 PRAYER in WP.No.8472 of 2011: Petition under Article 226 of the Constitution of India for issue of a writ of declaration to declare that the impugned guidelines, viz., Guidelines for Clinical/Viva Voce examination final year MBBS Course (Non Semester) Part-II examination concerning the subject "General Surgery" introduced/followed by the first respondent insofar as the same insisting minimum of 50% mark individually in the sub-branches, viz., Practical for "General Surgery" and Orthopedic as contrary to Regulation 12(4) of the Medica Council of India Regulations on Graduate Medical Education 1997 and declare the same as illegal and unconstitutional and consequently direct the respondents 1 and 2 to declare the petitioner having Register No.52061307 (W.P.8472/2011) Register No.52061313 (WP.No.8473/2011) Register No.52065756 (WP.No.8474/2011) Register No.52061443 (WP.No.8475/2011) Register No.52065759 (WP.No.9038/2011) Register No.52061435 (WP.No.9039/2011) Register No.52061671 (WP.No.9040/2011) Register No.52061673 (WP.No.9041/2011) Register No.52067035 (WP.No.9220/2011) respectively. as "Pass" in the University Examination in the paper "General Surgery" in the final year MBBS Course 2010-2011. and batch cases. For Petitioners : Mr.S.Thanka Sivan in WP:8472 to 8475, 9038 to 9041 of 2011 For Petitioner : Mr.C.A.Diwakar in WP:9220 of 2011 For Respondents : Mr.A.Saravanan for respondents 1 and 2 https://hcservices.ecourts.gov.in/hcservices/ Mr.V.P.Raman for 3rd respondent Mr.G.Sankaran Special Government Pleader assisted by Mr.E.Ranganayaki Government Advocate (Edn.) for 4th respondent in W.P.8472 to 8475/11, 9038 to 9041/11, and R4 and R5 in W.P.9220/11 COMMON ORDER The writ petitioners are all final year M.B.B.S. students of the academic year 2010-2011 and they have all sought a writ of declaration to declare that the impugned guidelines, viz., Guidelines for Clinical/Viva Voce Examinations Final Year MBBS (Non Semester) Part-I examinations concerning the subject "General Surgery" (for brevity "the impugned guidelines") introduced/followed by the first respondent insofar as the same insists minimum of 50% marks individually in the sub-branches, viz., Practical for General Surgery and Orthopedic, a contrary to Regulation 12(4) of the Medical Council of India Regulations on Graduate Medical Education 1997 (for brevity, "the MC Regulations, 1997") and declare the same as illegal and unconstitutional and consequently declare the petitioners having passed in the university examination in General Surgery in the final year 2010-2011, so as to enable them to proceed with the internship in the year 2011-2012. 2.1. The petitioner in W.P.No.8472 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Stanley Medical College, Chennai and he has passed the First, Second and Final Year Part-I examinations. 2.2. The petitioner in W.P.No.8473 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Stanley Medical College, Chennai and he has passed the First, Second and Final Year Part-I examinations. 2.3. The petitioner in W.P.No.8474 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Medical College, Vellore and she ha passed the First, Second and Final Year Part-I examinations. https://hcservices.ecourts.gov.in/hcservices/ 2.4. The petitioner in W.P.No.8475 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Stanley Medical College, Chennai and he has passed the First, Second and Final Year Part-I examinations. 2.5. The petitioner in W.P.No.9038 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Medical College, Vellore and he has passed the First, Second and Final Year Part-I examinations. 2.6. The petitioner in W.P.No.9039 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Stanley Medical College, Chennai and she has passed the First, Second and Final Year Part-I examinations. 2.7. The petitioner in W.P.No.9040 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Madurai Medical College, Madurai and he has passed the First, Second and Final Year Part-I examinations. 2.8. The petitioner in W.P.No.9041 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Madurai Medical College, Madurai and he has passed the First, Second and Final Year Part-I examinations. 2.9. The petitioner in W.P.No.9220 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-200 and was allotted Government Theni Medical College, Theni and he ha passed the First, Second and Final Year Part-I examinations. 2.10. The final year M.B.B.S. Course consists of two parts, viz. Part I and Part II and, as stated above, in respect of Part I examination all the petitioners have passed. The final year Part II which is conducted in the fourth year of the course, contains the discipline General Surgery with two papers, viz., Paper-I which includes General Surgery (Section-1) and Orthopedics (Section-2) and Paper-II which includes Anaesthesiology, Dental diseases and Radiology, Oral (viva) and Interpretation of Investigative Data Clinical (Bed Side). 2.11. The MCI Regulations, 1997 stipulates that in respect o the said Part II of the final year a candidate must obtain 50% mark in aggregate with a minimum of 50% in theory, including orals, and https://hcservices.ecourts.gov.in/hcservices/ minimum of 50% in practical/clinical, which means that in each of the subjects the candidate must obtain 50% in aggregate with minimum 50% in theory and 50% in practical/clinical. 2.12. It is stated that the first respondent has also been following the MCI Regulations, 1997 till the academic year 2008-2009 However, thereafter, the first respondent/University in respect of the final year Part II – General Surgery of M.B.B.S. Course has introduced the impugned guidelines by dividing the practical/clinical into two separate branches, one as Clinical Surgery Clinical (Practical) and the other Ortho Clinical (Practical). According to the MC Regulations, 1997, the total quantum of marks fixed for practical/clinical is 100, however, under the impugned guidelines, the first respondent/University has fixed the total marks for practical a 150 and divided the same into two, viz., Clinical Surgery Clinical (Practical) – 100 Marks with minimum requirement of 50 and Ortho Clinical (Practical) – 50 marks with minimum requirement of 25 for a pass. 2.13. Therefore, in effect, according to the petitioners, in respect of the practical/clinical marks in General Surgery of Part-I of the Final Year, when the MCI Regulations, 1997 contemplate obtaining of 50% of the total marks, the first respondent University has divided them into two subjects, stating that in each of the subjects 50% of marks have to be obtained individually. In all these cases, it is not in dispute that the petitioners have obtained 50% of the total marks in the Part-II General Surgery as stipulated by the Medical Council of India and therefore, according to them, they are entitled to be declared passed in the final year MBBS Course, so as to be eligible to go for internship. However, as per the impugned guidelines of the first respondent University, the petitioners were unable to secure 50% in each of the papers in General Surgery and on the basis that in individual papers the petitioners have not obtained 50% marks, they were declared to have been failed, thereby depriving them to go for the internship. 2.14. The petitioner in W.P.No.8472 of 2011 in Part-II Final Year M.B.B.S. Examination held in February, 2011 has obtained the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 266/400 66.50% Marks obtained in Practical/Clinical : 80/150 53.33% Total : 346/550 62.90% The MCI Regulations, 1997 requires 50% as aggregate for a pass in practical/clinical and he has obtained 53.33%. However, the first respondent University has declared the petitioner failed for the reason that in two papers in practical/clinical he has not individually secured more than 50% marks. https://hcservices.ecourts.gov.in/hcservices/ 2.15. Likewise, the petitioner in W.P.No.8473 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 232/400 58.00% Marks obtained in Practical/Clinical : 76/150 51.00% Total : 308/550 56.00% and thus has obtained more than 50% in practical/clinical put together. 2.16. The petitioner in W.P.No.8474 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 251/400 62.75% Marks obtained in Practical/Clinical : 77/150 51.33% Total : 328/550 59.63% and thus has obtained more than 50% in practical/clinical put together. 2.17. The petitioner in W.P.No.8475 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 231/400 57.75% Marks obtained in Practical/Clinical : 82/150 54.66% Total : 313/550 56.91% and thus has obtained more than 50% in practical/clinical put together. 2.18. The petitioner in W.P.No.9038 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 256/400 64.00% Marks obtained in Practical/Clinical : 86/150 57.33% Total : 342/550 62.18% and thus has obtained more than 50% in practical/clinical put together. 2.19. The petitioner in W.P.No.9039 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 254/400 63.50% Marks obtained in Practical/Clinical : 93/150 62.00% Total : 347/550 63.09% and thus has obtained more than 50% in practical/clinical put together. https://hcservices.ecourts.gov.in/hcservices/ 2.20. The petitioner in W.P.No.9040 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 259/400 64.75% Marks obtained in Practical/Clinical : 80/150 53.00% Total : 339/550 61.63% and thus has obtained more than 50% in practical/clinical put together. 2.21. The petitioner in W.P.No.9041 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 266/400 66.50% Marks obtained in Practical/Clinical : 79/150 52.00% Total : 345/550 62.72% and thus has obtained more than 50% in practical/clinical put together. 2.22. The petitioner in W.P.No.9220 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment : 262/400 65.50% Marks obtained in Practical/Clinical : 78/150 52.00% Total : 340/550 61.80% and thus has obtained more than 50% in practical/clinical put together. 2.23. Therefore, according to the petitioners, the impugned guidelines of the first respondent/University are opposed to the MC Regulations, 1997 and hence, the present writ petitions are filed to strike down the impugned guidelines on the following grounds; (i)the impugned guidelines of the first respondent University is unconstitutional and opposed to the MCI Regulations, 1997; (ii)that as per the judgments of this Court, a candidate who has obtained 50% of marks as per the MCI Regulations, 1997 is eligible for a pass; (iii)that the MCI Regulations, 1997 is binding on the first respondent University as well as the fourth respondent – Director of Medical Education; (iv)that the MCI Regulations, 1997 have been framed by the Medical Council of India to have uniform standard in medical education throughout India; (v)that when all other universities in the country are following the MCI Regulations, 1997 in this regard, the https://hcservices.ecourts.gov.in/hcservices/ first respondent alone by virtue of the impugned guidelines has created a gross discrimination by failing the petitioners despite the fact that they have obtained more than 50% of the marks in practical/clinical examination put together as required under the MCI Regulations, 1997 and therefore, the impugned guidelines of the first respondent University are discriminatory and violative of Article 14 of the Constitution of India; (vi)that Regulation 12(4) of the MCI Regulations, 1997 is binding on the first respondent University and under the guise of adopting a better standard the first respondent University cannot fail the petitioners simply because in the subject practical/clinical they have not obtained minimum 50% of marks in each of the papers, especially by stipulating a separate paper Ortho, which is unlawful and such stipulation by the first respondent University is without jurisdiction; and (vii)that at the time when the petitioners were admitted in the First Year MBBS Course in 2006-2007, such guidelines were not available and they were introduced only in the year 2009-2010 during the middle of the course by the first respondent University and therefore, there is a violation of the legitimate expectation. 3.1. In the counter affidavit filed by the first respondent University, it is admitted that the petitioners have appeared for Final Year MBBS Part II Examination in February, 2011 and stated that the results of the Final Year MBBS were published on 20.3.2011. It i stated by the first respondent that the petitioner in W.P.No.8472 of 2011 in General Surgery Paper has secured the following marks: Marks Secured Minimum Maximum Written 134 100 200 Clinical Surgery 64 50 100 Clinical Orthopaedics 16 25 50 Viva – voce 68 50 100 Internal Assessment 64 50 100 3.2. Likewise, the petitioner in W.P.No.8473 of 2011 has secured the following marks: Marks Secured Minimum Maximum Written 104 100 200 Clinical Surgery 56 50 100 https://hcservices.ecourts.gov.in/hcservices/ Clinical Orthopaedics 20 25 50 Viva – voce 57 50 100 Internal Assessment 71 50 100 3.3. The petitioner in W.P.No.8474 of 2011 has secured the following marks: Marks Secured Minimum Maximum Written 125 100 200 Clinical Surgery 55 50 100 Clinical Orthopaedics 22 25 50 Viva – voce 59 50 100 Internal Assessment 67 50 100 3.4. Similarly, the petitioner in W.P.No.8475 of 2011 has secured the following marks: Marks Secured Minimum Maximum Written 113 100 200 Clinical Surgery 62 50 100 Clinical Orthopaedics 20 25 50 Viva – voce 63 50 100 Internal Assessment 55 50 100 3.5. Similar is the case in respect of the other writ petitioners. 3.6. According to the first respondent, the Clinical Surgery and Clinical Orthopaedics papers were made as separate papers with maximum 100 marks in respect of Clinical Surgery and maximum 50 marks in respect of Clinical Orthopaedics and a candidate for a pass should obtain separately 50% in Clinical Surgery and 50% in Clinica Orthopaedics. In all these cases, while invariably the petitioner have obtained more than 50% in Clinical Surgery, they have obtained less than 50% in Clinical Orthopaedics. But, it is admitted that both the marks put together, viz., the marks in Clinical Surgery and Clinical Orthopaedics, for which the maximum is 150 marks and the minimum is 75 marks, all the petitioners have obtained more than 50% Therefore, the petitioners having not secured individually 50% mark in each of the two subjects, especially Clinical Orthopaedics, it is stated that they have failed in the Final Year Part II Examination. https://hcservices.ecourts.gov.in/hcservices/ 3.7. It is stated that the Standing Academic Board of the first respondent, which is the highest academic body, is empowered under Section 29(3) of the Tamil Nadu Dr.MGR Medical University, Chenna Act, 1987 to make Regulations, advise the Governing Council on the promotion of research, and suggest measures for revisions and innovations in academic and research programmes, and Section 44(1) o the Tamil Nadu Dr.MGR Medical University, Chennai Act, 1987 enables the Standing Academic Board to make Regulations. 3.8. It is stated that as per the statutes, the Board of Studies of each department makes recommendations in respect of the courses o study and examinations in the subjects and in the meeting of the Board of Studies in Final MBBS Course held on 3.5.2010, various academic issues were discussed, and the revised clinical/practical examination has been implemented in the subjects of Ophthalmology, Oto-Rhino- Laryngology, Community Medicine in Final MBBS Part I and Medicine General Surgery, Obstetrics and Gynaecology and Family Welfare Paediatrics including Neonatology subjects in Final MBBS Part I course. It was also decided in the meeting to implement the revised clinical/practical examination with effect from February, 201 examinations onwards. The said recommendations of the Board o Studies was approved in the 39th Meeting of the Standing Academic Board held on 21.6.2010. 3.9. It is stated that thereafter the qualifying marks for a pas in the Final Year Part II examination were declared as follows: "MARKS QUALIFYING FOR A PASS A candidate shall be declared to have passed the examination in General Surgery if he/she secures. Maximum Minimum 1 Theory 200 100 2 Clinical Surgery/Clinical 100 50 3 Ortho Clinical 50 25 4 Viva Voce 100 50 5 Internal Assessment Theory = Practicals (50 + 50) 100 50 and in the instruction to the candidates, it has been intimated to the candidates clearly explaining the scheme of examination, viz., that the candidate should secure minimum 50% marks in each of the subjects failing which they will be deemed to have failed and it is stated that the communication was made to all the Deans/Principals of Medica Colleges affiliated to the first respondent University in September 2010 for wide publicity among the students community and therefore even before attending the Final Year Part II MBBS examination in February, 2011, much in advance, viz., in September, 2010 itself the candidates were informed about the scheme of examination. https://hcservices.ecourts.gov.in/hcservices/ 3.10. It is stated that the petitioners have not challenged the entire revised guidelines as prescribed by the Standing Academic Board before writing the examination. Having written the examination and failed as per the scheme, they have approached this Court which cannot be entertained. 3.11. It is stated that the MCI Regulations, 1997 only prescribe the minimum standard of education and it is always open to the first respondent University to frame its own regulation and syllabus not below the standard prescribed by the Medical Council of India and that has been confirmed by the Supreme Court also and therefore, the revision of regulations stipulating higher qualification cannot be held to be against the provisions of the MCI Regulations, 1997. 3.12. As per the impugned guidelines of the first respondent University, unless a candidate passes the Final Year Part-II MBB Examination he is ineligible to undergo the internship course. 4.1. In the counter affidavit filed by the Medical Council of India, which is arrayed as the third respondent in all these cases, it is stated that the Medical Council of India is an expert body created to maintain highest standard of medical education under the Indian Medical Council Act, 1956 having the power of supervision regarding the qualification and eligibility standards for admission into medical institutions and having overall invigilation by relying upon the decision in State of Kerala v. T.P.Roshana, [1979] 1 SCC 572. 4.2. The Medical Council of India also would rely upon the judgment in Medical Council of India v. State of Karnataka, [1998] SCC 131 signifying the importance of medical education, which deal with human beings, and the facilities that must be available for such studies. 4.3. It is stated that keeping in mind its statutory obligations in maintaining the highest standard in medical education in the country, by virtue of the powers conferred under Section 33 of the Indian Medical Council Act, 1956 and with the prior approval of the Central Government, the Medical Council of India framed rules laying down the minimum standard of infrastructure, teaching and other requirements for conduct of medicine course. The Medical Council o India also lays down various details regarding the course content duration, distribution of teaching and training days on variou subjects and also for conduct of examination, etc. and the stipulations of the Medical Council of India are binding and mandatory and all the State enactments, rules and regulations framed by the Universities, in relation to the conduct of medicine courses to the extent they are inconsistent with the Act and the Regulations made by the Medical Council of India are repugnant by virtue of Article https://hcservices.ecourts.gov.in/hcservices/ 254 of the Constitution of India, as held by the Supreme Court in Dr.Preeti Srivastava v. State of M.P. and others, [1999] 7 SCC 120. 4.4. It is stated that as per Chapter IV of the MCI Regulations 1997, which deals with the examination regulation, every MBBS student is required to obtain minimum 50% marks in aggregate with a minimum of 50% in theory, including orals, and minimum of 50% in Practical/Clinicals. 4.5. The Medical Council of India also relies upon a clarification issued by it in implementing the order of the Supreme Court in Civil Appeal No.3883 of 2006, dated 1.6.2007, which is to this effect: "1. The candidate has to secure 35% in internal examination to make him eligible to appear in the University examination of the concerned subject. 2. He has to secure 50% in Theory as well as in oral, for example Medicine i.e. Theory + Oral total 140 marks and 50% of thereof is 70 marks. 3. 50% of the University examination in clinical or practical for example in the subject of medicine total 100 marks 50% of thereof is 50 marks. 4. 50% of the aggregate of theory and oral (Internal & External), Clinical/Practical (Internal & External) for example in subject of medicine total 300 marks and 50% whereof is 150 marks. For a student to pass in the subject of medicine, a student has to secure 70 marks in Theory & Oral; 50 marks in clinical/practical and 150 marks in aggregate are required." 4.6. By relying upon the judgment in Dr.Preeti Srivastava case especially paragraphs (39), it is stated by the Medical Council of India that while the Medical Council of India prescribes the minimum standard laid down by the Central statute, in respect of admission the State may lay down other additional norms for admission and regulate admission in exercise of its powers under Entry 25 of List III of the Seventh Schedule to the Constitution of India, however in a manner not inconsistent with or diluting the criteria laid down by the Medical Council of India. 4.7. While citing various judgments of the Supreme Court in respect of the maintenance of quality of medical education throughout India, the Medical Council of India referred to Chapter IV of the MC Regulations, 1997 and stated that nobody can request the Court to direct the statutory authorities to act against its statutory regulations. In this regard, reliance was placed on the decisions in Krishna Priya Ganguly v. University of Lucknow, [1984] 1 SCC 307 and A.P.Christian Medical College v. Government of A.P. and another https://hcservices.ecourts.gov.in/hcservices/ [1986] 2 SCC 667. 5.1. According to Mr.S.Thanka Sivan and Mr.C.A.Diwakar, learned counsel for the petitioners, the impugned guidelines in the guise of attempting to impose better qualification than prescribed by the Medical Council of India has, in effect, resulted in gros