Abhijit vs Dean, Government Medical College, ... on 1 May, 1987 Equivalent citations: AIR1987SC1362, JT1987(2)SC588, 1987(1)SCALE1042, (1987)3SCC478, 1987(1)UJ691(SC), 1987 (3) SCC 478, AIR 1987 SUPREME COURT 1362, 1987 3 JT 588, (1987) 2 JT 588 (SC), (1987) 2 APLJ 21.1, 1987 (1) UJ (SC) 691, (1987) 1 SUPREME 575 Author: O. Chinnappa Reddy Bench: O. Chinnappa Reddy, K.N. Singh JUDGMENT O. Chinnappa Reddy, J. 1. Special leave granted. 2. The appellant who secured the first rank in order of merit in the IIIrd M.B.B.S. examination of the Marathwada University in May, 1985 and who also stood first in Surgery/and/ENT/Ophthalmology, sought admission to the M.S. degree course commencing in July, 1986. Though the selection to the M.S. degree course was on the basis of merit the appellant was not selected as a deduction of five per cent was made from the marks obtained by him on the ground that he had passed the subject in his second attempt. The basis for holding that the appellant had passed in the second attempt was that in the IIIrd M.B.B.S. final term, the appellant suffered from infectious hepatitis and was, therefore, unable to attend classes and clinics. He applied to the Dean to 'cancel third M.B.B.S. final term' and to permit him to attend classes and clinics regularly with the next batch. This was done and he passed the IIIrd M.B.B S. examination, as already stated, creditably by securing the first rank. It is not disputed that the appellant was seriously ill and was hospitalised and that he was unable to attend classes and clinics. It is also not disputed that he did not even submit his application form for the IIIrd year M.B B.S. examination in 1984 It is also not disputed that he appeared for the IIIrd M.B.B.S. examination at the first opportunity that was available to him yet a deduction of five per cent was made from the marks abstained by him on the ground that he passed the IIIrd M.B.B.S. examination in the second attempt. There appears to be no justification for holding that the appellant passed the IIIrd M.B.B.S. examination in the second attempt. 3. On behalf of the respondent, it was submitted that though the rules relating admission to the Post-Graduate Course did not define what a second attempt was the rules for appointment of Residents under the IIIrd year Residency programme at Government Medical Colleges defined what was a second attempt and since those admitted to the M.S. degree course were necessarily to be appointed to Residencies the rules applicable to Residencies were made applicable to those seeking admission to the M.S. Degree course. It the first place, we do not see how the rules relating to Abhijit vs Dean, Government Medical College, ... on 1 May, 1987  1 appointment to Residencies could be made to regulate admission to the M.S. Degree course. In the second place, we do not think that even the rule on which the respondents rely justifies the deduction of five per cent marks. A note under Rule IV5(e) of the rules relating to appointment to Residences is to the following effect : For the purpose of the reductions, non-appearance at any examination when due, is deemed as an attempt at the said examination. We may at once say that the appellant was not 'due' to appear at the examination as he had not put in the necessary attendance of the classes and clinics and not even submitted his application form for the examination. We are also of the view that if the rule has the effect of treating failure to appear at the examination because of serious illness as non-appearance at the examination so as to make the candidate liable to a deduction of five per cent of marks when seeking admission to a Post-Graduate course the rule is indeed arbitrary. 4. In the circumstances, we think that there was no justification for making the deduction of five per cent of marks. The appellant was entitled to have been admitted to the Post-Graduate Course in which he sought admission in July, 1986. Since that has not been done, the respondents are now directed to admit him in the course commencing in July, 1987. The appeal is allowed accordingly with costs. In view of what we have said no orders are necessary in the Writ Petition. Abhijit vs Dean, Government Medical College, ... on 1 May, 1987  2