IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.7.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.14130 and 13744 to 13748 of 2011 B.Aanantha Lakshmi .. Petitioner in W.P.No.14130 of 2011 S. Anand .. Petitioner in W.P.No.13744 of 2011 R. Ravindra babu .. Petitioner in W.P.No.13745 of 2011 Rajesh .. Petitioner in W.P.No.13746 of 2011 P. Rajkumar .. Petitioner in W.P.No.13747 of 2011 A. Paul Ram shankar .. Petitioner in W.P.No.13748 of 2011 v. 1. The Tamil Nadu Dr.M.G.R. Medical University rep. By its Registrar 69, Anna Salai, Guindy Chennai – 600 032. 2. The Controller of Examination Tamil Nadu Dr.M.G.R. Medical University 69, Anna Salai, Guindy Chennai – 600 032. 3. The Medical Council of India rep. By its Chairman Sector 8, Dwaraka Phase-I New Delhi – 110 077. 4. The Director of Medical Education 162, EVR Periyar Salai Kilpauk, Chennai – 600 010. ...Respondents 1 to 4 in all WPs 5. The Dean K.A.P.Viswanatham Government Medical College, Trichy. .. 5th Respondents in W.P.No.14130/2011 The Dean Government Madurai Medical college Madurai ...5th Respondent in W.P.Nos.13744 to 13748/ 2011 https://hcservices.ecourts.gov.in/hcservices/ and batch cases. PRAYER in W.P.No.14130 of 2011: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the first respondent culminating in its impugned letter bearing Rc.No.ACAD-1(3)/ 18100/10, dated 14.1.2011, quash the same insofar as it restrains the awarding of grace marks for Practical Examination and direct respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Register No.52065201, 52061606, 52061721, 52061713, 52061718, 52061703 for the subject General Surgery – Clinical and declare the petitioner as 'Pass'. For Petitioners : Mr.C.A.Diwakar in all writ petitions For Respondents : Mr.A.L.Somayajee, Sr.Counsel for Mr.A.Saravanan for respondents 1 and 2 in all writ petitions Mr.V.P.Raman for 3rd respondent in all writ petitions Mr.E.Sampathkumar Spl. Government Pleader for respondents 4 and 5 in all writ petitions ORDER In all these writ petitions, the petitioners have challenged the impugned letter dated 14.1.2011 of the Registrar, Tamil Nadu Dr.M.G.R. Medical University, whereby the University, while re- introducing the award of grace marks up to a maximum of five in theory papers, has informed that the same shall be awarded only in one subject or shall be distributed among the other two or three subjects, however no grace marks shall be awarded for practical examination for all courses. The operative portion of the impugned letter, which is in effect challenged, is as follows: "1) RE-INTRODUCTION OF AWARD OF GRACE MARKS (UP TO A MAXIMUM OF FIVE MARKS IN THEORY PAPERS FOR UNDER GRADUATE & POST GRADUATE DEGREE/DIPLOMA AND SUPER SPECIALITY DEGREE COURSES. The awarding of grace marks upto a maximum of five marks in theory papers to the students of Under- graduate. Post graduate in Medical, Dental, Indian https://hcservices.ecourts.gov.in/hcservices/ Medicine and Homoeopathy, Allied Health Sciences and Super Specialty courses be re-introduced from February/April 2011 examination onwards. The grace marks of five (5) shall be awarded in one subject or shall be distributed among the other two or three subjects. No Grace marks shall be awarded for Practical Examination for all courses." In all these cases, the petitioners have challenged the non grant of grace marks for practical examinations when the University has re-introduced the grant of grace marks. 2.1. The writ petitioner in W.P.No.14130 of 2011 has secured the following marks: (a) 75% in the First year – 78.75% in Anatomy (Distrinction), 76.75% in Biochemistry (Distinction and Gold Medalist) and 3rd Rank in the College, (b) 71.07% in the Second year – 72.2% in Microbiology, 71% in Pathology, 74% in Pharmacology and 63% in Forensic Medicine, and (c) 70% in the Third year Part I – 67% in Opthamology, 65.5% in E.N.T. and 73.75% in Community Medicine. 2.2. She has appeared in the Third year Part-II (Final Year) examinations conducted in February, 2011 by the first respondent/ University. As per the requirement, for a pass in the Third year Part II (Final Year) examination which consists of General Medicine, General Surgery, Obstetrics, Gynecology and Family Welfare and Pediatrics, including Neonatology, a candidate is to obtain 50% in the relevant papers. In the paper General Surgery, which consists of various parts, the petitioner in W.P.No.14130 of 2011 has obtained the following marks: Marks Awarded Passing Minimum Maximum Marks a.Theory 123 100 200 b.Clinical Surgery 53 50 100 c.Clinical Orthopedics 20 25 50 d.Viva Voce 63 50 100 e.Internal Assessment 72 50 100 2.3. Thus, in Clinical Orthopedics, which is a practical paper, she has obtained 20 marks out of 50, while the requirement is 25 marks. Therefore, in the final year, in one paper, viz., practical paper, if she is given five marks, she will be able to successfully complete the course. She was declared failed only https://hcservices.ecourts.gov.in/hcservices/ based on the portion of the impugned guideline awarding grace marks only in respect of theory papers. 2.4. According to the petitioner, awarding of grace marks was in vogue earlier. Therefore, she has filed the present writ petition challenging the said portion of the guidelines and also for a direction against respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Registration No.52065201 for the subject General Surgery - Clinical and declare her to have passed. 3.1. In W.P.No.13744 of 2011, the petitioner has obtained 57.7% in the First Year, 60.5% in the Second Year and 61.1% in the Third Year. In the paper General Surgery, which consists of various parts, the petitioner in W.P.No.13744 of 2011 has obtained the following marks: Marks Awarded Passing Minimum Maximum Marks a.Theory 109 100 200 b.Clinical Surgery 53 50 100 c.Clinical Orthopedics 20 25 50 d.Viva Voce 77 50 100 e.Internal Assessment 55 50 100 3.2. Thus, in Clinical Orthopedics, which is a practical paper, he has obtained 20 marks out of 50, while the requirement is 25 marks. Therefore, in the final year, in one paper, viz., practical paper, if he is given five marks, he will be able to complete the course. He was declared failed only based on the portion of the impugned guideline awarding grace marks only in respect of theory papers. Therefore, he has filed the present writ petition challenging the said portion of the guidelines and also for a direction against respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Registration No.52061606 for the subject General Surgery - Clinical and declare him to have passed. 4.1. Likewise, the petitioner in W.P.No.13745 of 2011 has obtained 58.5% in the First Year, 66.57% in the Second Year and 60.87% in the Third Year. In the paper General Surgery, which consists of various parts, the petitioner in W.P.No.13745 of 2011 has obtained the following marks: https://hcservices.ecourts.gov.in/hcservices/ Marks Awarded Passing Minimum Maximum Marks a.Theory 119 100 200 b.Clinical Surgery 54 50 100 c.Clinical Orthopedics 20 25 50 d.Viva Voce 66 50 100 e.Internal Assessment 72 50 100 4.2. Thus, in Clinical Orthopedics, which is a practical paper, he has obtained 20 marks out of 50, while the requirement is 25 marks. Therefore, in the final year, in one paper, viz., practical paper, if he is given five marks, he will be able to complete the course. He was declared failed only based on the portion of the impugned guideline awarding grace marks only in respect of theory papers. Therefore, he has filed the present writ petition challenging the said portion of the guidelines and also for a direction against respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Registration No.52061721 for the subject General Surgery - Clinical and declare him to have passed. 5.1. Similarly, in W.P.No.13746 of 2011, the petitioner has obtained 65.92% in the First Year, 61.07% in the Second Year and 62.38% in the Third Year. In the paper General Surgery, which consists of various parts, the petitioner in W.P.No.13746 of 2011 has obtained the following marks: Marks Awarded Passing Minimum Maximum Marks a.Theory 105 100 200 b.Clinical Surgery 50 50 100 c.Clinical Orthopedics 20 25 50 d.Viva Voce 61 50 100 e.Internal Assessment 66 50 100 5.2. Thus, in Clinical Orthopedics, which is a practical paper, he has obtained 20 marks out of 50, while the requirement is 25 marks. Therefore, in the final year, in one paper, viz., practical paper, if he is given five marks, he will be able to complete the course. He was declared failed only based on the portion of the impugned guideline awarding grace marks only in respect of theory papers. Therefore, he has filed the present writ petition challenging the said portion of the guidelines and also https://hcservices.ecourts.gov.in/hcservices/ for a direction against respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Registration No.52061713 for the subject General Surgery - Clinical and declare him to have passed. 6.1. Likewise, the petitioner in W.P.No.13747 of 2011 has obtained 58.7% in the First Year, 57.8% in the Second Year and 66% in the Third Year. In the paper General Surgery, which consists of various parts, the petitioner in W.P.No.13747 of 2011 has obtained the following marks: Marks Awarded Passing Minimum Maximum Marks a.Theory 118 100 200 b.Clinical Surgery 52 50 100 c.Clinical Orthopedics 20 25 50 d.Viva Voce 62 50 100 e.Internal Assessment 75 50 100 6.2. Thus, in Clinical Orthopedics, which is a practical paper, he has obtained 20 marks out of 50, while the requirement is 25 marks. Therefore, in the final year, in one paper, viz., practical paper, if he is given five marks, he will be able to complete the course. He was declared failed only based on the portion of the impugned guideline awarding grace marks only in respect of theory papers. Therefore, he has filed the present writ petition challenging the said portion of the guidelines and also for a direction against respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Registration No.52061718 for the subject General Surgery - Clinical and declare him to have passed. 7.1. In W.P.No.13748 of 2011, the petitioner has obtained 58.9% in the First Year, 63.57% in the Second Year and 63.25% in the Third Year. In the paper General Surgery, which consists of various parts, the petitioner in W.P.No.13748 of 2011 has obtained the following marks: Marks Awarded Passing Minimum Maximum Marks a.Theory 122 100 200 b.Clinical Surgery 60 50 100 c.Clinical Orthopedics 10 25 50 d.Viva Voce 70 50 100 e.Internal Assessment 65 50 100 https://hcservices.ecourts.gov.in/hcservices/ 7.2. Thus, in Clinical Orthopedics, which is a practical paper, he has obtained 10 marks out of 50, while the requirement is 25 marks and therefore, he was declared failed. Hence, he has filed the present writ petition challenging the said portion of the guidelines and also for a direction against respondents 1, 2, 4 and 5 to grant grace marks to the petitioner bearing Registration No.52061703 for the subject General Surgery - Clinical and declare him to have passed. 8. The petitioners in all these writ petitions rely upon the Medical Council of India Regulations on Graduate Medical Education, 1997 (for brevity, "the MCI Regulations, 1997"), which contemplates that the students who fail to obtain minimum required marks less by five marks in one subject but have passed in all other subjects are entitled to grant of grace marks up to a maximum of five marks and therefore, according to the petitioners, it is applicable for both practical as well as theory papers. 9.1. In all these cases, respondents 1 and 2 (University), in the counter affidavit, have stated that the Standing Academic Board, which is the highest academic body of the University, as per Section 29(3) of the Tamil Nadu Dr.M.G.R. Medical University, Chennai Act, 1987 is empowered to make regulations and amend or repeal the same. The Standing Academic Board, as per Section 44(1) of the Tamil Nadu Dr.M.G.R. Medical University, Chennai Act, 1987 is also empowered to make regulations consistent with the Act. 9.2. It is stated that the Standing Academic Board, in the meeting held on 21.6.2010, has considered the awarding of grace marks for theory papers for Under Graduate and Post Graduate degree courses and resolved that no grace marks shall be awarded both in theory and practical examinations to all Under Graduate and Post Graduate courses from August, 2010 examination onwards. However, in the 40th Meeting of the Standing Academic Board held on 22.12.2010, it was decided to extend grant of grace marks up to a maximum of five marks in theory papers for all Under Graduate and Post Graduate degree courses, including the students of Super Specialty courses, and not to grant the said grace marks to practical examinations. 9.3. It is also stated that the Practical/Clinical examination is very important for Under Graduate and Post Graduate medical students and its objective is to assess the candidate's proficiency and skill, conduct of experiment, interpretation of data and logical conclusion and its emphasis is on candidate's capability in eliciting physical signs and interpretation and the viva/oral https://hcservices.ecourts.gov.in/hcservices/ includes evaluation of management, approach and handling of emergencies. It is stated that the diagnosis by the students in practice by investigation is more important and the same is a basic feature for medical profession and taking note of the fact that there are minimum four examiners for 100 students, out of whom not less than 50% must be external examiners, and assessment is made uniformly by the Chairman and the Coordinator of the whole examination programme, it was decided by the University not to grant any grace marks in respect of practical examinations. 9.4. It is also stated that as per the MCI Regulations, 1997, the awarding of grace marks is only the discretionary power of the University and the University has exercised its discretion as per Regulation 13(10) of the MCI Regulations, 1997 and passed the said guidelines. 9.5. In the additional affidavit filed by the Registrar of the first respondent/University dated 29.6.2011, it is stated that the University has not been granting any grace marks in practical/clinical examinations before the resolution of the 40th Meeting of the Standing Academic Board. 10.1. It is the main contention of Mr.C.A.Diwakar, learned counsel appearing for the petitioners, by referring to the relevant portion of the MCI Regulations, 1997 wherein the Regulation in respect of grant of grace marks only uses the words "a student who failed only in one subject", that the same is without any discrimination between the practical and theory papers and according to him, this being a benevolent provision of the MCI Regulations, 1997, it must be made applicable to both the cases of theory examinations and practical examinations. Therefore, according to the learned counsel, the impugned portion of the resolution of the first respondent/University while re-introducing the awarding of grace marks but restricting the same only to theory examinations is arbitrary and illegal. 10.2. By placing reliance on the decision of this Court in a batch of writ petitions in W.P.No.8472 of 2011 and batch cases (P.Anand and others v. The Tamil Nadu Dr.MGR Medical University and others), wherein this Court, by order dated 6.6.2011, has held that in respect of the pass marks in the final year, it must be 50% of the aggregate as per the MCI Regulations, 1997 and the University cannot choose a particular subject alone to say that in that subject the candidate must get 50% necessarily to have a pass, the learned counsel for the petitioner would submit that a similar criteria will apply to the facts of the present case also. https://hcservices.ecourts.gov.in/hcservices/ 11.1. On the other hand, it is the submission of Mr.A.L.Somayajee, learned Senior Counsel appearing for respondents 1 and 2 (University) that when once as per the MCI Regulations, 1997 the awarding of grace marks has been given as discretion, then no student can claim the exercise of discretion as a matter of right. 11.2. It is also submitted by him that the awarding of grace marks was not in force for a long time and it was re-introduced for the first time as per the decision of the 40th Meeting of the Standing Academic Board. It is stated that in the 40th Meeting of the Standing Academic Board, which consists of eminent persons who are professionally skilled, after due deliberation it was decided to exercise the discretion of grant of grace marks only in respect of theory papers on the ground that in respect of the practical/clinical 50% of the examiners must be external examiners and the examiners being the experts in the field are the best persons to study the practical ability of the students to meet the emergent situation and therefore, when such assessment has been made by the experts and decided that the candidate is not eligible to be a professional person, it would be improper for the University to grant grace marks and it was on that criteria it was resolved not to extend the grant of grace marks in respect of practical/clinical examinations. 11.3. That apart, it is his submission that the discretion cannot be expected to be exercised compulsorily unless arbitrariness is shown. It is submitted that in respect of practical/clinical papers in all fields it was unanimously resolved not to extend grace marks and therefore, there is no arbitrariness. 11.4. He would submit that a person belonging to medical profession is expected to be practically proficient and grace marks cannot be liberally awarded by diluting the professional skill. In this regard, he would rely upon the decision of the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Amit and another, [2002] 6 SCC 153. 12. Mr.V.P.Raman, learned counsel appearing for the Medical Council of India would submit that as per the MCI Regulations, 1997, it was only the discretionary power of the University and by granting or not granting grace marks or by extending grace marks only for theory and not granting the same in respect of practical/clinical papers there is no violation of the MCI Regulations, 1997. 13. I have heard the learned counsel for the petitioners, the learned Senior Counsel appearing for the University, the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the Medical Council of India and the learned Special Government Pleader appearing for respondents 4 and 5 and given my anxious thought to the issue involved in this case. 14. In all these cases, it is true that the petitioners have performed reasonably well in all the previous years. Only in the Third Year Part II (Final Year) examinations, in respect of the practical marks, all of them were lacking five or over five marks. In that background, they have come forward with these writ petitions challenging the portion of the resolution passed by the University by restricting the re-introducing of award of grace marks only in respect of the theory papers in the final year, as extracted above. 15. The question to be considered is as to whether the said resolution passed by the University is contrary to the MCI Regulations, 1997. 16. It is no doubt true that the Medical Council of India, being a profession body, has been constituted for the purpose of maintaining high and uniform academic standard in medical education. By virtue of the powers conferred under Section 33 of the Indian Medical Council Act, 1956, the Medical Council of India with prior sanction of the Central Government has framed the MCI Regulations, 1997, which came into force from 4.3.1997. 17. The MCI Regulations, 1997 consists of various aspects relating to the medical education, including the examinations, etc. In the said Regulations, in the chapter on Appointment of Examiners, which is in Regulation 13, in sub-clause (10) it is stated as follows: "13. Appointment of Examiners. (1) to (9) *** (10) The grace marks up to a maximum of five marks may be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subjects." A reading of the said part of the MCI Regulations, 1997 makes it abundantly clear that awarding of grace marks up to a maximum of five is at the discretion of the University to a student who has failed in one subject, but has passed in all other subjects. 18. As stated in the affidavit filed by the Registrar of the first respondent/University dated 29.6.2011, in order to maintain the standard and quality of medical education, the first respondent/University has not been granting any grace marks in practical/clinical even before the impugned resolution passed in the 40th Meeting of the Standing Academic Board. That is also https://hcservices.ecourts.gov.in/hcservices/ evidenced from the fact that even under the impugned portion of the resolution of the Standing Academic Board, the words used are "re- introduction of award of grace marks". Therefore, in the previous years, grace marks have not been awarded to the medical students studying in the final year in both Under Graduate as well as Post Graduate Degree Courses by exercising the discretion of the University. 19. It is stated that it was brought to the notice of the University that many students, especially in the Under Graduate courses, have failed in the theory papers by one or two marks resulting in breaking of course. In view of the above, it is stated that the Principals of affiliated colleges have requested the University for award of grace marks in theory papers by re- introducing the same. It is taking note of the fact that the practical/ clinical examination is very important for an Under Graduate and Post Graduate medical student who is going to be a professional doctor; that the practical/clinical examination is to assess the practical application of the theoretical mind of the students; that the practical/clinical examinations are being supervised by not less than 50% of the external examiners who act as Chairman and Coordinator of the programme making uniform assessment of the candidates while doing the practical examinations; that the said external examiners are not from the same University and they are preferably from other States and marks are awarded by them on coordination based on the skill of the students on the spot, in which process the University does not intervene, the Standing Academic Board has resolved that when such professionally skilled examiners have decided about the marks in order to maintain standard and quality of medical education, the awarding of grace marks should be restricted only to the theory papers. 20. When that is the stand taken by the Standard Academic Board of the University in exercising the discretion uniformly to all students who have passed all examinations and only failed in the one theory examination by lack of five marks, by granting grace marks only to the written examination one cannot say that the discretion has been improperly exercised. When a discretion has been vested with the authority to be exercised, especially when that authority is the highest academic body consisting of experts in the field, the scope of this Court in interfering will be only very limited like in cases of arbitrary exercise of powers. 21. If the grant of grace marks is exercised in respect of some of the students in respect of the practical/clinical examinations and that is denied to the petitioners, probably the petitioners may be correct to say that the discretion has been https://hcservices.ecourts.gov.in/hcservices/ arbitrarily exercised. But, on the other hand, the fact remains that the first respondent while re-introducing the grant of grace marks as per the MCI Regulations, 1997 has uniformly restricted the grant of grace marks only to the written examinations, which, in my considered view, cannot be said to be either arbitrary or illegal. 22. In W.P.No.8472 of 2011 and batch cases (P.Anand and others v. The Tamil Nadu Dr.MGR Medical University and others) relied upon by the learned counsel for the petitioners, I had an occasion to decide about the MCI Regulations, 1997 which stipulates that the students in the final year should be deemed to