IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2983 of 2010 1. ASHUTOSH KUMAR S/O MANI KANT JHA R/O VILL RAMPATTI ,P.S.SINGHESHWER ASTHAN,DISTT-MADHEPURA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY ,DEPARTMENT OF HEALTH & FAMILY WELFARE VIKASH BHAWAN,PATNA 2. THE DIRECTOR IN CHIEF ,DEPARTMENT OF HEALTH & FAMILY WELFARE VIKASH BHAWAN,PATNA 3. MAGADH UNIVERSITY ,BODH GAYA ,THROUGH ITS REGISTRAR DISTT-GAYA 4. THE REGISTRAR,MAGADH UNIVERSITY BODH GAYA,DISTT-GAYA 5. THE EXAMINATION CONTROLLER MAGADH UNIVERSITY ,BODH GAYA,DISTT-GAYA 6. THE PRINCIPAL A.N.MEDICAL COLLEGE GAYA,DISTT-GAYA ----------- 2. 12.03.2010 Heard learned Counsel for the petitioner and the learned counsel for the Magadh University as also the learned Counsel for the State of Bihar. The petitioner is a student of MBBS Part I and appeared in the papers of Physiology and Biochemistry which according to him were the only papers he had to clear in the First Year. He has passed the paper of Biochemistry but in Physiology he is short of the pass mark by two marks. He seeks invocation of the regulation which it is stated provides for grant of grace marks up to five. It is his case that since he has cleared the other paper of the First Year and which were the only paper he was required to clear in the First Year he is entitled for award of grace marks. He relies on a gazette notification dated 2.7.2002 issued by the Medical Council of India amending the Graduate Medical Education Regulation 1997 in exercise of powers under Section 33 of the Indian Medical Council Act, 1956 with the approval of the Central Government. Relying upon Clause (2) of the Gazette notification which incorporates the amending regulation (10) he seeks the aforesaid relief. 2 Counsel for the University points out that Regulation (10) provides that grace marks may be granted at the discretion of the University. He next submits that such a grace mark has to be awarded under Regulation (10) only in the final examination where the candidate otherwise passes other papers but fails in only one paper. The submission therefore is that grace marks cannot be awarded in earlier years as otherwise that may amount to diluting the standards of medical education. That would have required the Court to go into the objects and reasons etc of the amendment made and published in July 2002. No submissions have been made by either parties on the object and reasoning as to the purport, intent and scope of the amendment. Learned Counsel for the petitioner has however placed before this Court an order in CWJC No. 10618 of 2005 relating to a claim for grant of grace marks to the petitioner therein in the MBBS Part II Examination. The order notices from the counter affidavit of the University that at a meeting dated 23.4.2005 certain decisions have been taken with regard to award of grace marks. However the decision has not been quoted or extracted and therefore this Court does not have the benefit of considering the submissions on behalf of the University presently being made in context of the decision dated 23.4.2005. While the contention of the University that grant of grace marks is discretionary cannot be faulted with, but it needs to be observed only that even discretionary power has to be exercised 3 reasonably, fairly and in non- discriminatory manner. Discretion is not absolute discretion unfettered by law. This application is disposed with a direction to the Vice Chancellor to examine the claim of the petitioner for grant of grace marks in accordance with law, the amending Regulation (10) and more particularly its own decision dated 23.4.2005 within a maximum period of three weeks from the date of from the date of receipt and/or production of a copy of this order. Liberty is granted to the petitioner to file an application before the Vice Chancellor for permission to appear in the Second Year Examination stated to be commencing from 15.3.2010. It is clarified that the Vice Chancellor shall have the absolute liberty, if he is otherwise satisfied, to grant conditional permission subject to final decision that he may take in the matter. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)