IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 37955 of 2010(T) -------------------------- PETITIONER(S): --------------- 1. ARUM MOZHI VARMAN.K, AGED 23 YEARS, S/O.KARTHIKESAN.G,NO.4,10TH CROSS ROAD, BAKTHAVATCHALAM STREET,TAGORE NAGAR, PONDICHERRY 605 008. 2. BINEESH CHANDRAN,AGED 24 YEARS, S/O.P.B.BALACHANDRAN,POZHIYIL HOUSE, PLOT NO.78,HOUSING BOARD COLONY,CHALAKUDY, THRISSUR 680 307. 3. SHAMEER.V,AGED 25 YEARS, S/O.KOYAKUTTY.V, ANALIL HOUSE, CHENOLI PO, PERAMBRA,CALICUT 673 525. 4. SUHAIR.P,AGED 24 YEARS, S/O.LATE MOHAMMED KUTTY,PONNETH HOUSE, CHAPPANANGADI PO, KOTTAKKAL VIA,MALAPPURAM-676 503 5. ARUN.K.P,AGED 23 YEARS, S/O.CHANDRAN.K.P,KIZHAKKECHALIL HOUSE, EDAKKAD PO, KANNUR 670 663. 6. BIJOY VISWANATHAN,AGED 23 YEARS, S/O.P.VISWANATHAN,C-90,DAIRY FARM,WARD NO.8, PORT BLAIR, ANDAMANS 744 103. 7. POOJA PRADEEP,AGED 24 YEARS, D/O.PRADEEP,PRAYAG,T.C.17/1238,SASTHA NAGAR, LANE,THIRUMALA PO,THIRUVANANTHAPURAM 695 006. 8. HARIKUMAR.K.V,AGED 24 YEARS, S/O.K.K.VAVA,KANIYAMPARAMBIL HOUSE,MEMMURY PO, MANVETTOM,KOTTAYAM 686 617. 9. KIRAN.R, AGED 23 YEARS,S/O.KUNHI, KAMMARAN N.P,RAMAPURATH HOUSE,CHATTIOL, OLAYAMBADI PO, KANNUR 670 306. 10. BON SEBASTIAN,AGED 23 YEARS, S/O.DR.T.D.SEBASTIAN,THADATHILAMKAL, MANNANTHALA PO, THIRUVANANTHAPURAM-5. /2/ 11. BINU KRISHNAN,AGED 24 YEARS, S/O.KRISHNA KUMAR.P.G,'GOKULAM',KARYAVATTOM PO, THIRUVANANTHAPURAM. 12. V.HARITHA JOTHI,AGED 24 YEARS, S/O.DR.S.VENKIDUSAMY,8-A,SANKARA EYE HOSPITAL ROAD, SIVANANDHAPURAM,SARAVANAMPATTY PO, COIMBATORE 641 035. 13. AHAMED ROSHAN.S, AGED 25YEARS, S/O.SALIM.K.M,AKSHARA, PADA NORTH, KARUNAGAPPALLY,KOLLAM 690 518. 14. DEEPA MARIA.K.V, AGED 24 YEARS, D/O.K.V.VARGHESE, KUTTIKADAN HOUSE, PO KAIPAMANGALAM BEACH,THRISSUR 680 681. 15. ANITHA ROSE PHILIP,AGED 24 YEARS, D/O.PHILIP POTHEN VADAKEKALAM , OPP.JAIN TEMPLE, GUJARATHI STREET,ALAPPUZHA. 16. MUFSIL.P.P,AGED 25 YEARS, S/O.MOOSSA.P.P, ABHAYAM HOUSE, KOVOOR PO, MEDICAL COLLEGE, CALICUT 673 008. 17. AMARNATH.P.P,AGED 25 YEARS, S/O.SADANANDAN.P, PALOLI HOUSE,MISSION COMPOUND, OPP.KSEB,PO CHOVVA,KANNUR 670 006. 18. M.ABIN SURAJ,AGED 27 YEARS, S/O.K.P.MOHANLAL,'SARADA VILAS', OORAMPALLIL,MUNDAKKAL, KOLLAM 691 001. 19. JIBIN.C.P, AGED 27 YEARS, S/O.DR.C.P.KUNHEEN,'NEST',ERANHIKODE PO, EDAVANNA, MALAPPURAM 676 541. 20. NAVAS.P,AGED 25 YEARS, S/O.MOHAMMED,'MUBARAK MANZIL',PO PERUVALLUR, VIA KONDOTTY,MALAPPURAM. 21. FAZAL.M.S, AGED 24 YEARS, S/O.K.MUHAMMED,KIZHAKKOTTUMMAL,EKAROOL POST, UNNIKULAM,CALICUT 673 574. 22. SUBIN.K,AGED 23 YEARS, S/O.CHATHUNNI.P, KUMNARI HOUSE, CHULUR PO, VIA RTC,CALICUT 673 601. 23. NISHA.G,AGED 24 YEARS, D/O.P.C.GOPALAN,'NISHA BHAVAN', CHAITANYA NAGAR LANE-6, EROOR WEST, TRIPUNITHURA,ERNAKULAM-682 306. 24. VEENA MONEY,AGED 23 YEARS, D/O.P.N.MONEY,'XANADU',TRIPUNITHURA PO, PUTHIYAKAVU,ERNAKULAM 682 301. /3/ BY ADV. SRI.K.RADHAKRISHNAN, SENIOR ADVOCATE SRI.SAJEEV KUMAR K.GOPAL SRI.ARUN KUMAR.P SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): --------------- 1. THE UNIVERSITY OF CALICUT,REP.BY THE REGISTRAR,CZLICUT UNIVERSITY PO, KOZHIKODE 673 635. 2. THE VICE CHANCELLOR,UNIVERSITY OF CALICUT,THENJIPALAM,CALICUT UNIVERSITY PO, KOZHIKODE 673 635. 3. THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT,THENJIPALAM, CALICUT UNIVERSITY PO,KOZHIKODE 673 635. 4. EXAMINATION PASS BOARD-2010, CALICUT UNIVERSITY,REP.BY ITS CHAIRMAN, CALICUT UNIVERSITY PO,KOZHIKODE 673 635. 5. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM 695 011. ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. FOR R1TO4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4/02/2011, THE COURT ON 17.2.2011 DELIVERED THE FOLLOWING: APPENDIX Ext.P1. Tue copy of the marks list issued by the University to the Ist petitioner. Ext.P2. Tue copy of the marks list issued by the University to the 2nd petitioner. Ext.P3. Tue copy of the marks list issued by the University to the 3rd petitioner. Ext.P4. Tue copy of the marks list issued by the University to the 4th petitioner. Ext.P5. Tue copy of the marks list issued by the University to the 5th petitioner. Ext.P6. Tue copy of the marks list issued by the University to the 6th petitioner. Ext.P7. Tue copy of the marks list issued by the University to the 7th petitioner. Ext.P8. Tue copy of the marks list issued by the University to the 8th petitioner. Ext.P9. Tue copy of the marks list issued by the University to the 9th petitioner. Ext.P10. Tue copy of the marks list issued by the University to the 10th petitioner. Ext.P11. Tue copy of the marks list issued by the University to the 11th petitioner. Ext.P12. Tue copy of the marks list issued by the University to the 12th petitioner. Ext.P13. Tue copy of the marks list issued by the University to the 13th petitioner. Ext.P17. Tue copy of the marks list issued by the University to the 17th petitioner. Ext.P18. Tue copy of the marks list issued by the University to the 18th petitioner. Ext.P19. Tue copy of the marks list issued by the University to the 19th petitioner. Ext.P20 . Tue copy of the marks list issued by the University to the 20th petitioner. Ext.P21. Tue copy of the marks list issued by the University to the 2Ist petitioner. Ext.P22. Tue copy of the marks list issued by the University to the 22nd petitioner. Ext.P23. Tue copy of the marks list issued by the University to the 23rd petitioner. Ext.P24. Tue copy of the marks list issued by the University to the 24th petitioner. Ext.P25. True copy of the relevant pages of the Regulations 1997 containing Regulation 13. Ext.P26. True copy of the relevant pages of the MBBS Curriculum and Academic Calendar for the year 2004-2010 deals with Examination Regulations. Ext.P27. True copy of the representation submitted by the petitioners and others too the 2nd respondent. Ext.P28. True copy of the judgment of this Hon'ble Court in Writ Appeal No.2067/2002 dated 28.3.2003. Ext.P29. True copy of the relevant pages of the prospectus of the Postgraduate Institute of Medical Education and Research, Candigarh. Ext.P30. True copy of the relevant pages of the prospectus of the Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry. Ext.P31. True copy of the relevant pages of the prospectus of All India Institution of Medical Sciences, New Delhi. Ext.P32. True copy of the communication issued by the University, vide No EPR.1/RTI.2010 under the Right to Information Act to the 20th petitioner dated 6.1.2011. // true copy // P.S to Judge ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.37955 OF 2010(I) -------------------------------------------------- Dated this the 17th day of February, 2011 J U D G M E N T Petitioners were MBBS students during the academic years 2005-2010. Petitioners 1 to 7 underwent the course in the Government Medical College, Kozhikode, 8 to 15 in Jubilee Mission Medical College and Research Institute, Thrissur, 16 to 20 in MES Medical college, Perinthalmanna, 21 to 23 in Amala Institute of Medical Science, Thrissur and petitioner No.24 in the Government Medical College, Thrissur. These Medical Colleges are affiliated to the first respondent University. 2. Petitioners appeared for the IIIrd Professional Part II (Final professional) examination during the 9th semester which was conducted in September, 2010. The four subjects for final professional are Medicine, Surgery, Obstetrics and Gynecology and Pediatrics. Exts.P1 to P24 are copies of the mark lists issued to the petitioners which show that petitioners 1 to 16 failed in one subject in practicals for less than 5 marks. Petitioners 17 and 18 failed in Pediatrics in written and oral examination and in clinical and practical examination for marks ranging from 1 to 5. Details of the marks secured by the petitioners and shortage of marks WPC.No. 37955/2010 :2 : are indicated in paragraph 5 and 6 of the writ petition, which are extracted below for easy reference. Petitioner Subject Marks obtained for clinical & practical Minimum marks required for pass Shortage of marks Ist petitioner Medicine 61 65 4 2nd petitioner Medicine 64 65 1 3rd petitioner Pediatrics 15 20 5 4th petitioner Pediatrics 15.5 20 4.5 5th petitioner Obstetrics & Gynaecology 34 35 1 6th petitioner Medicine 64 65 1 7th petitioner Obstetrics & Gynaecology 33 35 2 8th petitioner Medicine 59.9 65 5.1 9th petitioner Medicine 62 65 3 10th petitioner Medicine 62 65 3 11th petitioner Medicine 61.9 65 4.1 I2th petitioner Medicine 64 65 1 13th petitioner pediatrics 18.1 20 1.9 I4th petitioner Medicine 63.8 65 1.2 I5th petitioner Medicine 63.4 65 1.6 I6th petitioner Medicine 61 65 4 I9th petitioner Surgery 61 65 4 20th petitioner Obstetrics & Gynaecology 33 35 2 21st petitioner Medicine 60 65 5 22nd petitioner Obstetrics & Gynaecology 31 35 4 23rd petitioner Medicine 60 65 5 24th petitioner Pediatrics 18 20 2 WPC.No. 37955/2010 :3 : Petitioner subject marks awarded minimum marks required for a pass maximum marks shortage of marks. 17th petitioner Paediatrics Written University marks Oral University marks Internal assessment Total Clinical & Practical University Marks Internal assessment Total 18.25 6.25 5 29.5 13.25 5 18.25 - - - 30 - - 20 40 10 10 60 30 10 40 0.5 1.75 18th petitioner Paediatrics Written University marks Oral University marks Internal assessment Total Clinical & Practical University Marks Internal assessment Total 18.25 4.75 5 28 12 5 17 - - - 30 - - 20 40 10 10 60 30 10 40 2 3 WPC.No. 37955/2010 :4 : 3. Petitioners submit that in exercise of the powers conferred under Section 33 of the Indian Medical Council Act, 1956 and with the previous sanction of the Central Government, the Medical Council of India framed “Regulations on Graduate Medical Education, 1997” (here-in-after referred to as Regulations 1997). Regulation 13 of Regulations 1997 deals with appointment of examiners, an extract of which is Ext.P25. Regulation 13(10) provides for grant of grace marks, which reads as under. “(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.” 4. It is also stated that the 5th respondent, the Director of Medical Education framed MBBS Curriculum and Academic Calendar 2004-2010, the relevant extract of which is Ext.P26. Petitioners submit that Ext.P26 also provide for awarding of grace marks at the discretion of the Passing Board of the University, which reads as under. “Grace marks up to a maximum of five in total may be awarded for an examination(I MBBS, II MBBS, III MBBS Part I or III MBBS Part II) at the discretion of the passing board for a student to pass one subject (theory/practical/oral) provided the students has passed in all other subjects. Grace marks will not be awarded to change internal assessment marks.” WPC.No. 37955/2010 :5 : 5. According to the petitioners, if grace marks are awarded as provided in 1997 Regulations and the Academic Calendar 2004-2010, they would pass the final professional examination and would have been eligible to undergo internship. The grievance in the writ petition is that inspite of the position as above, neither the University nor the Pass Board exercised the discretion vested in them and awarded them grace marks. It is stated that they submitted Ext.P27 representation which also did not evoke any response. It is in these circumstances they have approached this court by filing this writ petition with the following prayer. “Issue a writ of mandamus or other appropriate writs, directions or orders directing the respondents 1 and 4 to grant/award grace marks between 1 to 5 as required to the petitioners in respect of the one subject in which they have failed to obtain the minimum marks required for a pass in the IIIrd professional Part II(Final Professional) Examination.” 6. Along with I.A.No.449/2011, petitioners have produced Ext.P33 an information obtained by one of them from the University pursuant to a request made under the Right to Information Act. Ext.P32 shows the details of the grace marks awarded by the University during the period 2005-2010, the relevant portion of which reads as under. WPC.No. 37955/2010 :6 : “Moderation Year 2005 - Moderation up to five(5) marks for a single subject either in theory or practical, provided the candidate has failed only in one subject. 2006 - 5 marks as moderation to get a whole pass in any one subject. 2007 - 5 marks as moderation to get a whole pass in any one subject. 2008 - Moderation to maximum of 5 marks in a single subject either in theory or practical examination to get whole pass. 2009 - Moderation to maximum of 5 marks in a single subject either in theory or practical examination to get whole pass. 2010 - Maximum of 5 (five marks) in a single subject in theory only to get a whole pass. No moderation for the practical examination. “ 7. According to the petitioners, discretion has been conferred on the Pass Board and the University to award grace marks to students who have failed in one subject but have passed in all other subjects. It is stated that this provision of the regulations was considered by this court in Ext.P28 judgment in W.A. No.2760/2002 and the judgment in W.A.No.665/2004, where following the principles laid down by the Apex Court in the judgment in Maharashtra State Board of Secondary & WPC.No. 37955/2010 :7 : Higher Secondary Education v. Amit {(2002)6 SCC 153}, the claim of the students for awarding grace marks has been upheld and the respondent University and its Pass Board were directed to award grace marks in the manner as provided in the Regulations. It is stated that in the instant case also, the University is liable to be directed to award grace marks to the petitioners so that they would pass in the final MBBS examinations. 8. A counter affidavit has been filed on behalf of respondents 1 to 4. According to the respondents, in terms of the Regulations of Graduate Medical Education, to be declared successful, a candidate must obtain 50% in aggregate with minimum 50% in theory including orals and minimum 50% in practical prescribed under distribution of marks for various disciplines. It is submitted that Regulation enables the grant of grace marks up to 5 for a subject and that grant of grace mark is at the discretion of Pass Board of the University. It is stated that the Pass Board considered the entire issue and decided to grant grace marks for theory paper only. According to the respondents, the practical examination is supervised by the internal and external experts and the physical verification of experience/practical is completed at the venue itself. University WPC.No. 37955/2010 :8 : submits that in the morning practical examination will be evaluated at two stations by two sets of examiners and that in the afternoon the viva examination will be conducted at four different stations, each examiner sitting separately. It is stated that after completion of both examinations, all the four examiners will sit together and will add the marks together for each student. According to the University, out of the total students, the marks of the failed students will be taken again and their performance will be again discussed by the examiners and that finally, only a very few students whose performance at the examination was not up to the standard alone fail. It is stated that in the said process chances of subjective variation of marks is much less as compared to theory papers where evaluation is done by a single examiner and that it was therefore that after considering various aspects, the Pass Board decided not to award grace marks for practical examination. It is submitted that this recommendation of the Pass Board was made to the Controller of Examinations, who in turn placed the matter before the Syndicate of the University and it was with the approval of the Syndicate that the results were published. Therefore, according to the University in terms of the Regulations, they have exercised the discretion vested in them and therefore, the petitioners cannot claim that they WPC.No. 37955/2010 :9 : should be awarded marks for the practical examination as a matter of right. 9. I have considered the submissions made by both sides. 10. Clause 13(10) of the Regulations 1997 framed by the Medical Council of India provides that grace marks up to a maximum of 5 may be awarded at the discretion of the University to the students who have failed in one subject but has passed in all other subjects. In Ext.P26, MBBS Curriculum and Academic Calendar for 2004-2010 also, provision has been made for awarding of grace marks consistent with the Regulations 1997. It is provided that grace marks up to a maximum of 5 in total may be awarded for an examination at the discretion of the Pass Board for a student to pass one subject (theory/practical/oral) provided the student has passed in all other subjects. It is also clarified that no grace marks will be awarded to change internal assessment marks. These Regulations therefore make it clear that discretion has been vested in the Pass Board of the University to award up to 5 grace marks to students who have failed in one subject and have passed in all other subjects. The Regulation provide for awarding grace marks to one 'subject' which includes theory, practical and oral. WPC.No. 37955/2010 :10 : 11. The claim for awarding of grace marks was considered by two Division Benches of this court in the judgments referred to above and the issue in its totality has been discussed in these two judgments. Therefore the burden of this Court has been considerably reduced and I shall straight away make reference to the principles laid down in the aforesaid two judgments. Ext.P28 is the judgment in W.A.No.2067/2002 where the respondents herein are parties. Facts noticed in that judgment show that the appellants therein were students who had passed in all subjects in the MBBS final year Part II examination but were declared failed in the practical examination in surgery. Their case was that if the University had awarded grace marks to practical examination also, all of them would have passed the MBBS examination. Judgment shows that the matter was considered by the Pass Board in its meeting held on 11.6.2002 and the Pass Board had decided to give up to 5 marks for theory examinations for those who have passed in practical examination. As far as awarding of grace marks to the practical examination is concerned, 3 members of the Pass Board opposed the award of grace marks while two members favoured it. It was on that basis, grace marks were denied to the students. WPC.No. 37955/2010 :11 : 12. Considering the above question, Division Bench referred to the regulations and held that normally a Court of law should not interfere with the discretion exercised by the Pass Board, but the Court can examine whether the discretion exercised by the Pass Board is in conformity of the Rules governing the award of grace marks and also to achieve the object sought to be achieved by awarding grace marks. Thereafter reference was made to the Apex Court judgment in Maharashtra State Board of Secondary & Higher Secondary Education v. Amit {(2002)6 SCC 153} and it was held that the discretion should be exercised by the authorities, taking note of the over all performance of the students and the consequences that the students will have to face but for exercising discretion in their favour. Finally Division Bench directed the University to award the students minimum grace marks for pass in the practicals and to declare results on that basis. 13. W.A.No.565/2004 was filed by the respondent University and others against the judgment in WP(c). No.3682/2004. The writ petition was filed by the 7 students who had appeared for first year MBBS examination held by the University of Calicut in September and November, 2003. Their results were declared on 21.1.2004 and each of the petitioners WPC.No. 37955/2010 :12 : passed in two of the three subjects and failed in one subject. Even after the examination Pass Board gave one mark each as grace mark to all of them, the petitioners failed in one subject. With this grievance they filed the writ petition seeking directions to the University to award the required grace marks in theory as well as practical and to declare them passed in the first year MBBS examination. 14. The writ petition was disposed of holding that the discretion vested inn the Pass Board for awarding grace marks was not properly exercised and that the grant of uniform grace marks at the rate of only one to each student was not an exercise of discretion at all. It was held that if a student has done fairly well in all other subjects and is short of up to 5 marks in one subject for a pass, he may be given maximum grace marks or otherwise the very object of providing grace marks up to 5 is defeated. On this basis, the University was directed to re-examine the issue and award grace marks and the Principal of the Medical College was directed to permit the petitioners to attend the second year classes on a provisional basis. 15. It was aggrieved by the aforesaid judgment of the learned Single Judge, University of Calicut, Controller of Examination and the Examination Pass Board filed the writ WPC.No. 37955/2010 :13 : appeal. The Division Bench referred to academic calendar 2002- 2008 which also contained a provision for awarding of grace marks which is similar to Ext.P26 referred to in the earlier part of this Judgment. The Division Bench also referred to Medical Council of India Regulations which also conferred discretion on the Pass Board to award grace marks. Thereafter in paragraph 7 it was held thus. “7. Thus, the MBBS curriculum and Academic Calendar 2002-2008 and the Rules for MBBS Examinations issued by the Director of Medical Education based on the Regulations on Graduate Medical Education, 1997 of the Indian Medical Council, make is clear that the object of granting grace marks under the above mentioned provisions is to enable a student to pass the examination in case he has shortage of only 5 or less marks to pass in one of the subjects and has passed in all other subjects. But such a student cannot claim the grace marks as a matter of right, because as per Exts.P1 and P2, the grant of grace marks is at the discretion of the Pass Board. In other words, even if a student has shortage of only 5 or less marks in one of the subjects and has passed in all other subject, the Pas Board is not bound to grant the required grace marks to enable him to pass in the said one subject also. It is open to the Pass Board to insist that, to become entitled for grace marks in one subject, it is not sufficient to obtain minimum pass marks in the other subjects but should obtain a higher percentage of marks fixed by the Pass Board in each year in the subjects concerned. It means that good performance in other subjects rather than minimum pass marks can be made a condition for claiming grace marks in one subject. Therefore, the Pass Board can refuse to award grace marks to a student on the ground that the student has not obtained the said higher percentage of marks fixed by the Pass Board in the other subjects. Thus the discretion given to the Pass Board under the above mentioned rules is to decide whether a higher percentage of marks in the other subjects should be obtained by the students to entitle them for grace marks in the failed subject or whether it is WPC.No. 37955/2010 :14 : sufficient that they just pass in the other subjects. If the Pass Board decides that it is not sufficient to just pass in the other subjects, the Pass Board has also the discretion to fix the required higher percentage of marks in the subjects concerned, taking into account all relevant aspects. There is no further discretion given to the Pass Board. In other words, all the students who have shortage of only 5 or less marks in one of the subject and have passed in all the other subjects are entitled to be given the required grace marks in the said one subject, provided that they have obtained the higher percentage of marks, if any, fixed by the Pass Board in the other subjects. The Pass Board has no discretion to deny grace marks to any of such students. The award of grace marks is in the nature of a concession. Being a concession, it cannot be claimed as a matter of right.” Proceeding further it was held as follows. “Thus, if a student will pass in the failed subject if he is given grace marks not exceeding five and if the Pass Board is of the opinion that he deserves grace marks on the