IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 WA.No. 409 of 2011() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.37955/2010 Dated 17/02/2011 .................... APPELLANT(S): RESPONDENTS 1 T0 4 -------------------------------------------------------- 1. THE UNIVERSITY OF CALICUT,REP.BY THE REGISTRAR,CALICUT UNIVERSITY PO, MALAPPURAM. 2. THE VICE CHANCELLOR,UNIVERSITY OF CALICUT,THENJIPALAM,CALICUT UNIVERSITY PO, MALAPPURAM. 3. THE CONTROLLER OF EXAMINATIONS, UNIVERSITY OF CALICUT,THENJIPALAM, CALICUT UNIVERSITY PO,MALAPPURAM. 4. EXAMINATION PASS BOARD, CALICUT UNIVERSITY,REP.BY ITS CHAIRMAN, CALICUT UNIVERSITY PO,MALAPPURAM. BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. RESPONDENT(S): PETITIONERS & 5TH RESPONDENT ---------------------------------------------------------------------------- 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. tss W.A. NO.409/2011 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. 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 25 YEARS, 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. tss W.A. NO.409/2011 16. MUFSIL.P.P, AGED 25 YEARS, S/O.MOOSSSA.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. 25. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTOR OF MEDICAL EDUCATION,MEDICAL COLLEGE PO, THIRUVANANTHAPURAM 695 011. R1 TO R24 BY SRI.K.RADHAKRISHNAN, SENIOR ADVOCATE R1 TO R24 BYADVS. SRI.ARUN KUMAR.P, SMT.AMBIKA RADHAKRISHNAN, SRI.SAJEEV KUMAR K.GOPAL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.N. RAMACHANDRAN NAIR & B.P. RAY, JJ. ........................................... W.A.NO.409 OF 2011 ............................................. Dated this the 28th day of March, 2011. JUDGMENT CR Ramachandran Nair, J: This is an appeal filed by the University challenging the judgment of the learned Single Judge directing the University to award grace marks up to 5 to the respondents in the practical examination for the final year MBBS Part- II examination held by the University in September, 2010. 2. We have heard standing counsel appearing for the University and the senior counsel K. Radhakrishnan, who appeared for the respondents. 3. All the respondents have failed in one out of four subjects for the final year MBBS Examination and the shortage of marks ranges from 1 to 5, which is in the practical examination. Grace marks are provided in one subject for the final year MBBS examination also to allow the students to pass the examination as a whole. However, the Pass Board constituted by the University for the final year MBBS Examination decided not to grant grace W.A.NO.409 OF 2011 : 2 : marks in the practical examination. By virtue of the decision of the Pass Board, the University declined to award grace marks to the respondents in the practical examinations which led to their failure in the final year examination. In other words if each of the respondents were awarded up to 5 marks in the practical examination in one subject, all of them would have passed the final year (Part-II) MBBS examination. 4. Before the learned Single Judge, the respondents contended that the University arbitrarily decided not to award any grace marks in the practical examination which is in deviation from the practice followed for the last 5 years. Their further contention was that this decision is against the law declared by the Division Bench of this Court in W.A.No.2067/2002 (Ext.P28). They also relied on the curriculum committee decision issued by the Director of Medical Education applicable to all Medical Colleges in Kerala which again is based on the Regulations issued by the Medical Council of India providing for award of grace marks up to 5 to a student in any one subject in theory or practical at the discretion of the University for helping the students, who have failed in one subject to obtain the W.A.NO.409 OF 2011 : 3 : degree. 5. The standing counsel appearing for the University submits that grace marks are awarded at the discretion of the University and no student can claim it as a matter of right or seek direction from the court to compel the University to award grace marks. According to him, the University delegated it's discretion under the circular issued by the Director of Medical Examination to the Pass Board to decide how and when and to what extent and subject to what conditions moderation by way of grace marks up to 5 could be awarded. University's counsel submitted that the Pass Board can within their powers decline to award grace marks in the practical examinations. 6. Senior counsel appearing for the respondents on the other hand referring to MCI's MBBS course regulations, the circular issued by the Director of Medical Examination and also the Division Bench decision referred to above submitted that grace marks are awardable even in practical examinations also. Referring to Ext.P32 information furnished by the appellant University counsel pointed out that the prohibition against award of grace marks in practical is introduced in the University for the W.A.NO.409 OF 2011 : 4 : first time in the 2010 examination and for the last 5 preceding years grace marks up to 5 were awarded to students in one subject either in practical or in theory or for both. 7. The MCI regulations of Graduate Medical Education, 1997 provides for award of grace marks as follows: “Clause-10. The grace marks at a maximum of 5 marks may be awarded at the discretion of the University to a student who has failed in only one subject but has passed in all other subjects” 8. The Director of Medical Education in Kerala has issued a circular of the curriculum committee which provides for award of grace marks for MBBS examination as follows: “Grace marks up to a maximum of 5 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 student has passed in all other subjects. Grace marks will not be awarded to change internal assessment marks”. 9. The appellant University has not issued any circular with regard to award of grace marks but leaves it to the W.A.NO.409 OF 2011 : 5 : decision by the Pass Board which is constituted every year for conducting medical examination for the University. A decision on award of grace marks or moderation marks is taken by the Pass Board, the minutes of which for the 2010 examination, relevant for the purpose of this case is as follows: “Maximum of 5 marks in a single subject in theory only to get a whole pass. No moderation for the practical examination”. 10. Admittedly under the above decision minuted by the Pass Board which is the authority constituted by the University for conducting the final MBBS examination disentitles the respondents to get grace marks in practical examinations. However, the learned Single Judge directed the University to award grace marks in the practical examination following the Division Bench judgment of this Court which is issued against the same University but in the context of the difference of opinion among Pass Board committee members. Even though the learned Single Judge only directed the University to award eligible grace marks to the respondents, it is specifically stated that the W.A.NO.409 OF 2011 : 6 : respondents are entitled to grace marks in practical examination as well, which is against the norms prescribed by the Pass Board constituted by the University. It is in this context, the University has filed this appeal taking the specific ground that the decision taken by the Pass Board to decline moderation marks in practical examination cannot be overruled by this Court. 11. From the norms for award of grace marks stated above, what we find is that award of grace marks under MCI regulation is completely left to the discretion of the University and the restrictions are that maximum shall not exceed 5 marks and grace marks should be awarded to a student only in one subject to get a pass and such student should have passed in all other subjects. When, the MCI regulations are re-enacted by the curriculum committee constituted by the Director of Medical Education, the further restriction introduced is that grace marks should not be awarded to change the internal assessment marks. In other words, except for the prohibition in the award of grace marks to the internal assessment marks under the DME instructions, the University is free to award grace marks up to 5 for a W.A.NO.409 OF 2011 : 7 : single subject either in theory or in practical provided the student has passed in all other subjects. Admittedly, the Pass Board constituted by the very same appellant University from 2005 to 2009 for the final year medical examinations did not introduce any specific prohibition against the award of grace marks in practical examination. For the first time, this restriction is introduced by the Pass Board in the year 2010. The learned counsel appearing for the respondents would contend that the other Universities in Kerala which conducted medical examinations awarded pass marks in practical also. In the Division Bench judgment of this Court referred to above, this Court in a similar situation resolved the controversy between the members of the Pass Board, some of them in favour and others against the award of grace marks in practical examination, and decided in favour of the students holding that they are entitled to grace marks even in practical examination as well. The standing counsel for the University referred to the decisions of the Supreme Court reported in Maharashtra State Board of Secondary & Higher Secondary Education v. Amit & another (2002 (6) SCC 153), University of Mysore v. Govinda Rao (AIR W.A.NO.409 OF 2011 : 8 : 1965 SC 491) and another decision in Basa Vaiah (DR) v. DR. H.L. Ramesh (2010 (8) SCC 372) and contended that award of grace marks is an exception and the court should not permit dilution of educational standards in the University by ordering award of grace marks. 12. After hearing both sides and on going through the regulations and the judgments cited before us including the findings entered by the learned Single Judge, we are of the view that the confusion arose because MCI regulations lack any precision. The stand taken by the University’s counsel is that written examination papers are valued by single valuer and the mark awarded is based on the assessment of a single valuer. However for practical examination evaluation of performance is by a team of examiners from inside and outside the University and therefore no flexibility should be provided for the assessment of performance of the student by a team. According to the counsel, it is in this context, the Pass Board decided to discontinue the previous practice of award of grace marks in the practical examination also. Even though we find force in this contention, we feel the scheme of practical examination conducted by the appellant W.A.NO.409 OF 2011 : 9 : University for the final year MBBS students is the same for the whole Universities not only in Kerala but also outside Kerala. What we notice is that in spite of team evaluation of practicals, the MCI regulations do not contain any prohibition against award of grace marks in practicals. Further, the circular issued by the curriculum committee constituted by the Director of Medical Education which applies to all Universities in Kerala also do not prohibit award of grace marks in practical examination. The Director of Medical Education though left the discretion to the Pass Board to award grace marks in one single subject has specifically stated that it can be either in theory, practical or oral. 13. Probably what the Director of Medical Education intends is that award of grace marks should not be a policy to be applied on a uniform basis but the Pass Board should consider the case of each and every student and the award of grace marks should be by way of an exception to save a student from failure, if he is otherwise excellent and is deficient only in one subject that too up to 5 marks. The only restriction introduced against the award of grace marks by the DME is in the internal W.A.NO.409 OF 2011 : 10 : assessment which according to the DME should not be subjected to any variation. We feel if the policy decision taken by the Pass Board in the case of appellant University against award of grace marks in practical examination is well founded, then it is up to the MCI to consider whether such a restriction should be introduced in the MCI regulations applicable to all Universities which will put an end to all controversies. We are of the view that the DME’s circular is the most reasonable one in as much as discretion is given to the Pass Board to consider award of grace marks considering each student as an individual case and it is absolutely within the discretion of the Pass Board to give grace marks either for the theory or practical in one subject and necessarily Pass Board has to keep in mind the general performance of the student in all subjects. However we feel the decision taken, as a matter of policy by the Pass Board to decline grace marks in the practical examination to any student in any subject is arbitrary. We notice from the marks obtained by the respondents that some have failed by shortage of even one mark and some have failed even on shortage of 2 or 3 marks and the marks required for a pass is up to 5 marks for all the W.A.NO.409 OF 2011 : 11 : respondents. From the practice of the University followed for five years prior to 2010 and the regulations of the MCI and the DME, we feel it will be unjust and inequitable to deny grace marks to the respondents in the practical examinations. We, therefore, decline to interfere with the judgment of the learned Single Judge and therefore, the writ appeal is dismissed. However the time for compliance of the judgment is extended by two weeks from receipt of this judgment. Sd/= C.N. RAMACHANDRAN NAIR, JUDGE. Sd/= B.P. RAY, JUDGE. cl /true copy/ P.A. to Judge. W.A.NO.409 OF 2011 : 12 :