1. The writ petitioners are all final year M.B.B.S. students of the academic year 2010-2011 and they have all sought a writ of declaration to declare that the impugned guidelines, viz., Guidelines for Clinical/Viva Voce Examinations Final Year MBBS (Non Semester) Part-II examinations concerning the subject General Surgery (for brevity, the impugned guidelines) introduced/followed by the first respondent insofar as the same insists minimum of 50% marks individually in the sub-branches, viz., Practical for General Surgery and Orthopedic, as contrary to Regulation 12(4) of the Medical Council of India Regulations on Graduate Medical Education 1997 (for brevity, the MCI Regulations, 1997) and declare the same as illegal and unconstitutional and consequently declare the petitioners having passed in the university examination in General Surgery in the final year 2010-2011, so as to enable them to proceed with the internship in the year 2011-2012.
2.1. The petitioner in W.P.No.8472 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Stanley Medical College, Chennai and he has passed the First, Second and Final Year Part-I examinations.
2.2. The petitioner in W.P.No.8473 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Stanley Medical College, Chennai and he has passed the First, Second and Final Year Part-I examinations.
2.3. The petitioner in W.P.No.8474 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Medical College, Vellore and she has passed the First, Second and Final Year Part-I examinations.
2.4. The petitioner in W.P.No.8475 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Stanley Medical College, Chennai and he has passed the First, Second and Final Year Part-I examinations.
2.5. The petitioner in W.P.No.9038 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Medical College, Vellore and he has passed the First, Second and Final Year Part-I examinations.
2.6. The petitioner in W.P.No.9039 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Stanley Medical College, Chennai and she has passed the First, Second and Final Year Part-I examinations.
2.7. The petitioner in W.P.No.9040 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Madurai Medical College, Madurai and he has passed the First, Second and Final Year Part-I examinations.
2.8. The petitioner in W.P.No.9041 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Madurai Medical College, Madurai and he has passed the First, Second and Final Year Part-I examinations.
2.9. The petitioner in W.P.No.9220 of 2011 has obtained admission in the Tamil Nadu Dr.M.G.R. Medical University, namely the first respondent, in the first year M.B.B.S. Course in the year 2006-2007 and was allotted Government Theni Medical College, Theni and he has passed the First, Second and Final Year Part-I examinations.
2.10. The final year M.B.B.S. Course consists of two parts, viz., Part I and Part II and, as stated above, in respect of Part I examination all the petitioners have passed. The final year Part II, which is conducted in the fourth year of the course, contains the discipline General Surgery with two papers, viz., Paper-I which includes General Surgery (Section-1) and Orthopedics (Section-2) and Paper-II which includes Anaesthesiology, Dental diseases and Radiology, Oral (viva) and Interpretation of Investigative Data Clinical (Bed Side).
2.11. The MCI Regulations, 1997 stipulates that in respect of the said Part II of the final year a candidate must obtain 50% marks in aggregate with a minimum of 50% in theory, including orals, and minimum of 50% in practical/clinical, which means that in each of the subjects the candidate must obtain 50% in aggregate with minimum 50% in theory and 50% in practical/clinical.
2.12. It is stated that the first respondent has also been following the MCI Regulations, 1997 till the academic year 2008-2009. However, thereafter, the first respondent/University in respect of the final year Part II General Surgery of M.B.B.S. Course has introduced the impugned guidelines by dividing the practical/clinical into two separate branches, one as Clinical Surgery Clinical (Practical) and the other Ortho Clinical (Practical). According to the MCI Regulations, 1997, the total quantum of marks fixed for practical/clinical is 100, however, under the impugned guidelines, the first respondent/University has fixed the total marks for practical as 150 and divided the same into two, viz., Clinical Surgery Clinical (Practical) 100 Marks with minimum requirement of 50 and Ortho Clinical (Practical) 50 marks with minimum requirement of 25 for a pass.
2.13. Therefore, in effect, according to the petitioners, in respect of the practical/clinical marks in General Surgery of Part-II of the Final Year, when the MCI Regulations, 1997 contemplates obtaining of 50% of the total marks, the first respondent University has divided them into two subjects, stating that in each of the subjects 50% of marks have to be obtained individually. In all these cases, it is not in dispute that the petitioners have obtained 50% of the total marks in the Part-II General Surgery as stipulated by the Medical Council of India and therefore, according to them, they are entitled to be declared passed in the final year MBBS Course, so as to be eligible to go for internship. However, as per the impugned guidelines of the first respondent University, the petitioners were unable to secure 50% in each of the papers in General Surgery and on the basis that in individual papers the petitioners have not obtained 50% marks, they were declared to have been failed, thereby depriving them to go for the internship.
2.14. The petitioner in W.P.No.8472 of 2011 in Part-II Final Year M.B.B.S. Examination held in February, 2011 has obtained the following percentage of marks: Marks obtained in Theory including
Oral and Internal Assessment
:
266/400
0.67
Marks obtained in Practical/Clinical
:
80/150
0.53
Total
:
346/550
0.63
The MCI Regulations, 1997 requires 50% as aggregate for a pass in practical/clinical and he has obtained 53.33%. However, the first respondent University has declared the petitioner failed for the reason that in two papers in practical/clinical he has not individually secured more than 50% marks.
2.15. Likewise, the petitioner in W.P.No.8473 of 2011 has secured the following percentage of marks: Marks obtained in Theory including
Oral and Internal Assessment
:
232/400
0.58
Marks obtained in Practical/Clinical
:
76/150
0.51
Total
:
308/550
0.56
and thus has obtained more than 50% in practical/clinical put together.
2.16. The petitioner in W.P.No.8474 of 2011 has secured the following percentage of marks: Marks obtained in Theory including
Oral and Internal Assessment
:
251/400
0.63
Marks obtained in Practical/Clinical
:
77/150
0.51
Total
:
328/550
0.60
and thus has obtained more than 50% in practical/clinical put together.
2.17. The petitioner in W.P.No.8475 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment
:
231/400
0.58
Marks obtained in Practical/Clinical
:
82/150
0.55
Total
:
313/550
0.57
and thus has obtained more than 50% in practical/clinical put together.
2.18. The petitioner in W.P.No.9038 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment
:
256/400
0.64
Marks obtained in Practical/Clinical
:
86/150
0.57
Total
:
342/550
0.62
and thus has obtained more than 50% in practical/clinical put together.
2.19. The petitioner in W.P.No.9039 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment
:
254/400
0.64
Marks obtained in Practical/Clinical
:
93/150
0.62
Total
:
347/550
0.63
and thus has obtained more than 50% in practical/clinical put together.
2.20. The petitioner in W.P.No.9040 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment
:
259/400
0.65
Marks obtained in Practical/Clinical
:
80/150
0.53
Total
:
339/550
0.62
and thus has obtained more than 50% in practical/clinical put together.
2.21. The petitioner in W.P.No.9041 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment
:
266/400
0.67
Marks obtained in Practical/Clinical
:
79/150
0.52
Total
:
345/550
0.63
and thus has obtained more than 50% in practical/clinical put together.
2.22. The petitioner in W.P.No.9220 of 2011 has secured the following percentage of marks: Marks obtained in Theory including Oral and Internal Assessment
:
262/400
0.66
Marks obtained in Practical/Clinical
:
78/150
0.52
Total
:
340/550
0.62
and thus has obtained more than 50% in practical/clinical put together.
2.23. Therefore, according to the petitioners, the impugned guidelines of the first respondent/University are opposed to the MCI Regulations, 1997 and hence, the present writ petitions are filed to strike down the impugned guidelines on the following grounds;
(i)the impugned guidelines of the first respondent University is unconstitutional and opposed to the MCI Regulations, 1997;
(ii)that as per the judgments of this Court, a candidate who has obtained 50% of marks as per the MCI Regulations, 1997 is eligible for a pass;
(iii)that the MCI Regulations, 1997 is binding on the first respondent University as well as the fourth respondent Director of Medical Education;
(iv)that the MCI Regulations, 1997 have been framed by the Medical Council of India to have uniform standard in medical education throughout India;
(v)that when all other universities in the country are following the MCI Regulations, 1997 in this regard, the first respondent alone by virtue of the impugned guidelines has created a gross discrimination by failing the petitioners despite the fact that they have obtained more than 50% of the marks in practical/clinical examination put together as required under the MCI Regulations, 1997 and therefore, the impugned guidelines of the first respondent University are discriminatory and violative of Article 14 of the Constitution of India;
(vi)that Regulation 12(4) of the MCI Regulations, 1997 is binding on the first respondent University and under the guise of adopting a better standard the first respondent University cannot fail the petitioners simply because in the subject practical/clinical they have not obtained minimum 50% of marks in each of the papers, especially by stipulating a separate paper Ortho, which is unlawful and such stipulation by the first respondent University is without jurisdiction; and
(vii)that at the time when the petitioners were admitted in the First Year MBBS Course in 2006-2007, such guidelines were not available and they were introduced only in the year 2009-2010 during the middle of the course by the first respondent University and therefore, there is a violation of the legitimate expectation.
3.1. In the counter affidavit filed by the first respondent University, it is admitted that the petitioners have appeared for Final Year MBBS Part II Examination in February, 2011 and stated that the results of the Final Year MBBS were published on 20.3.2011. It is stated by the first respondent that the petitioner in W.P.No.8472 of 2011 in General Surgery Paper has secured the following marks:
Marks Secured
Minimum
Maximum
Written
134
100
200
Clinical Surgery
64
50
100
Clinical Orthopaedics
16
25
50
Viva voce
68
50
100
Internal Assessment
64
50
100
3.2. Likewise, the petitioner in W.P.No.8473 of 2011 has secured the following marks:
Marks Secured
Minimum
Maximum
Written
104
100
200
Clinical Surgery
56
50
100
Clinical Orthopaedics
20
25
50
Viva voce
57
50
100
Internal Assessment
71
50
100
3.3. The petitioner in W.P.No.8474 of 2011 has secured the following marks:
Marks Secured
Minimum
Maximum
Written
125
100
200
Clinical Surgery
55
50
100
Clinical Orthopaedics
22
25
50
Viva voce
59
50
100
Internal Assessment
67
50
100
3.4. Similarly, the petitioner in W.P.No.8475 of 2011 has secured the following marks:
Marks Secured
Minimum
Maximum
Written
113
100
200
Clinical Surgery
62
50
100
Clinical Orthopaedics
20
25
50
Viva voce
63
50
100
Internal Assessment
55
50
100
3.5. Similar is the case in respect of the other writ petitioners.
3.6. According to the first respondent, the Clinical Surgery and Clinical Orthopaedics papers were made as separate papers with maximum 100 marks in respect of Clinical Surgery and maximum 50 marks in respect of Clinical Orthopaedics and a candidate for a pass should obtain separately 50% in Clinical Surgery and 50% in Clinical Orthopaedics. In all these cases, while invariably the petitioners have obtained more than 50% in Clinical Surgery, they have obtained less than 50% in Clinical Orthopaedics. But, it is admitted that both the marks put together, viz., the marks in Clinical Surgery and Clinical Orthopaedics, for which the maximum is 150 marks and the minimum is 75 marks, all the petitioners have obtained more than 50%. Therefore, the petitioners having not secured individually 50% marks in each of the two subjects, especially Clinical Orthopaedics, it is stated that they have failed in the Final Year Part II Examination.
3.7. It is stated that the Standing Academic Board of the first respondent, which is the highest academic body, is empowered under Section 29(3) of the Tamil Nadu Dr.MGR Medical University, Chennai Act, 1987 to make Regulations, advise the Governing Council on the promotion of research, and suggest measures for revisions and innovations in academic and research programmes, and Section 44(1) of the Tamil Nadu Dr.MGR Medical University, Chennai Act, 1987 enables the Standing Academic Board to make Regulations.
3.8. It is stated that as per the statutes, the Board of Studies of each department makes recommendations in respect of the courses of study and examinations in the subjects and in the meeting of the Board of Studies in Final MBBS Course held on 3.5.2010, various academic issues were discussed, and the revised clinical/practical examination has been implemented in the subjects of Ophthalmology, Oto-Rhino-Laryngology, Community Medicine in Final MBBS Part I and Medicine, General Surgery, Obstetrics and Gynaecology and Family Welfare, Paediatrics including Neonatology subjects in Final MBBS Part II course. It was also decided in the meeting to implement the revised clinical/practical examination with effect from February, 2011 examinations onwards. The said recommendations of the Board of Studies was approved in the 39th Meeting of the Standing Academic Board held on 21.6.2010.
3.9. It is stated that thereafter the qualifying marks for a pass in the Final Year Part II examination were declared as follows:
MARKS QUALIFYING FOR A PASS
A candidate shall be declared to have passed the examination in General Surgery if he/she secures.
Maximum
Minimum
1
Theory
200
100
2
Clinical Surgery/Clinical
100
50
3
Ortho Clinical
50
25
4
Viva Voce
100
50
5
Internal Assessment Theory = Practicals (50 + 50)
100
50
and in the instruction to the candidates, it has been intimated to the candidates clearly explaining the scheme of examination, viz., that the candidate should secure minimum 50% marks in each of the subjects, failing which they will be deemed to have failed and it is stated that the communication was made to all the Deans/Principals of Medical Colleges affiliated to the first respondent University in September, 2010 for wide publicity among the students community and therefore, even before attending the Final Year Part II MBBS examination in February, 2011, much in advance, viz., in September, 2010 itself the candidates were informed about the scheme of examination.
3.10. It is stated that the petitioners have not challenged the entire revised guidelines as prescribed by the Standing Academic Board before writing the examination. Having written the examination and failed as per the scheme, they have approached this Court which cannot be entertained.
3.11. It is stated that the MCI Regulations, 1997 only prescribe the minimum standard of education and it is always open to the first respondent University to frame its own regulation and syllabus not below the standard prescribed by the Medical Council of India and that has been confirmed by the Supreme Court also and therefore, the revision of regulations stipulating higher qualification cannot be held to be against the provisions of the MCI Regulations, 1997.
3.12. As per the impugned guidelines of the first respondent University, unless a candidate passes the Final Year Part-II MBBS Examination he is ineligible to undergo the internship course.
4.1. In the counter affidavit filed by the Medical Council of India, which is arrayed as the third respondent in all these cases, it is stated that the Medical Council of India is an expert body created to maintain highest standard of medical education under the Indian Medical Council Act, 1956 having the power of supervision regarding the qualification and eligibility standards for admission into medical institutions and having overall invigilation by relying upon the decision in State of Kerala v. T.P.Roshana, [1979] 1 SCC 572.
4.2. The Medical Council of India also would rely upon the judgment in Medical Council of India v. State of Karnataka, [1998] 6 SCC 131 signifying the importance of medical education, which deals with human beings, and the facilities that must be available for such studies.
4.3. It is stated that keeping in mind its statutory obligations in maintaining the highest standard in medical education in the country, by virtue of the powers conferred under Section 33 of the Indian Medical Council Act, 1956 and with the prior approval of the Central Government, the Medical Council of India framed rules laying down the minimum standard of infrastructure, teaching and other requirements for conduct of medicine course. The Medical Council of India also lays down various details regarding the course content, duration, distribution of teaching and training days on various subjects and also for conduct of examination, etc. and the stipulations of the Medical Council of India are binding and mandatory and all the State enactments, rules and regulations framed by the Universities, in relation to the conduct of medicine courses to the extent they are inconsistent with the Act and the Regulations made by the Medical Council of India are repugnant by virtue of Article 254 of the Constitution of India, as held by the Supreme Court in Dr.Preeti Srivastava v. State of M.P. and others, [1999] 7 SCC 120.
4.4. It is stated that as per Chapter IV of the MCI Regulations, 1997, which deals with the examination regulation, every MBBS student is required to obtain minimum 50% marks in aggregate with a minimum of 50% in theory, including orals, and minimum of 50% in Practical/Clinicals.
4.5. The Medical Council of India also relies upon a clarification issued by it in implementing the order of the Supreme Court in Civil Appeal No.3883 of 2006, dated 1.6.2007, which is to this effect: 1. The candidate has to secure 35% in internal examination to make him eligible to appear in the University examination of the concerned subject.
2. He has to secure 50% in Theory as well as in oral, for example Medicine i.e. Theory + Oral total 140 marks and 50% of thereof is 70 marks.
3. 50% of the University examination in clinical or practical for example in the subject of medicine total 100 marks 50% of thereof is 50 marks.
4. 50% of the aggregate of theory and oral (Internal & External), Clinical/Practical (Internal & External) for example in subject of medicine total 300 marks and 50% whereof is 150 marks. For a student to pass in the subject of medicine, a student has to secure 70 marks in Theory & Oral; 50 marks in clinical/practical and 150 marks in aggregate are required.
4.6. By relying upon the judgment in Dr.Preeti Srivastava case, especially paragraphs (39), it is stated by the Medical Council of India that while the Medical Council of India prescribes the minimum standard laid down by the Central statute, in respect of admission, the State may lay down other additional norms for admission and regulate admission in exercise of its powers under Entry 25 of List III of the Seventh Schedule to the Constitution of India, however in a manner not inconsistent with or diluting the criteria laid down by the Medical Council of India.
4.7. While citing various judgments of the Supreme Court in respect of the maintenance of quality of medical education throughout India, the Medical Council of India referred to Chapter IV of the MCI Regulations, 1997 and stated that nobody can request the Court to direct the statutory authorities to act against its statutory regulations. In this regard, reliance was placed on the decisions in Krishna Priya Ganguly v. University of Lucknow, [1984] 1 SCC 307 and A.P.Christian Medical College v. Government of A.P. and another, [1986] 2 SCC 667.
5.1. According to Mr.S.Thanka Sivan and Mr.C.A.Diwakar, learned counsel for the petitioners, the impugned guidelines in the guise of attempting to impose better qualification than prescribed by the Medical Council of India has, in effect, resulted in gross arbitrariness and discrimination and it is unreasonable.
5.2. It is their contention that renowned institutions like All India Institute of Medical Sciences, Jawaharlal Institute of Post-Graduate Medical Education and Research, Maharashtra University of Health Sciences, Nashik, apart from the Annamalai University and all the Deemed Universities in Tamil Nadu, are all following the MCI Regulations, 1997 only for maintaining uniformity in medical education in India and while so, the first respondent University alone by making the impugned guidelines has discriminated the students, who are less than 6% when taken on all India basis, and the same is arbitrary.
5.3. It is their submission that by the impugned guidelines it is not as if an attempt is made to have the quality improved. It is stated that the students who have obtained 50% of marks in clinical and practical put together as per the MCI Regulations, 1997, who have passed from other Universities, are permitted by the first respondent University to undergo internship in its affiliated colleges for the academic year 2010-2011 itself, viz., in Kilpauk Medical College, CMC, Vellore, etc., while so the students like that of the petitioners who belong to the first respondent University and colleges affiliated to it alone have been grossly discriminated by introducing a new scheme of securing pass mark in each of the subjects in the Final Year Part II MBBS Examination.
5.4. It is also stated that the first respondent University is bound to admit students who have passed under the MCI Regulations, 1997 from other Universities throughout India for Post Graduate Courses and when the first respondent admitted such students who have passed the Part II of the Final Year MBBS Course as per the MCI Regulations, 1997 for Post Graduate Courses, the denial of such right to the petitioners for the simple reason that they became students of the first respondent University or colleges affiliated to it, is obnoxious and there is no nexus between the object sought to be achieved in increasing the standard of medical education.
5.5. It is also their submission that the impugned guidelines seek to put the petitioners in a highly disadvantageous position when compared to similarly situated persons and therefore, it is prejudicial to their interest and violative of Article 14 of the Constitution of India.
5.6. It is also their contention that the first respondent has intimated about the scheme of examination only in the middle of the year 2010 while they were admitted in the First Year in 2006-2007 itself and by introducing the new scheme of examination in the middle of the year 2010, the petitioners were made to undergo the examination in the Final Year Part II MBBS Course in February, 2011 and it defeats the legitimate expectation of the petitioners, who have been only thinking that the MCI Regulations, 1997 will alone be followed. In this regard, they would rely upon the judgment in Sethi Auto Service Station and another v. Delhi Development Authority and others, [2009] 1 SCC 180.
5.7. It is their submission that the impugned guidelines are void, without authority of law and inconsistent with the MCI Regulations, 1997. According to them, the impugned guidelines seek to create a different pattern of distribution of marks contrary to Regulation 12(4) of the MCI Regulations, 1997. He would also rely upon the decisions in Dr.Preeti Srivastava v. State of M.P. and others, [1999] 7 SCC 120 : AIR 1999 SC 2894 and Salini Nair and another v. Pondichery University and others, 2004 WLR 496 to contend that the medical universities are bound by the MCI Regulations, 1997.
5.8. According to them, the Medical Council of India being an expert body which controls the minimum standard of medical education and the scheme of the Medical Council of India having been approved by the Central Government, it has got a statutory force and therefore, by relying upon the decision in Maharashtra University of Health Sciences, rep. by Deputy Registrar v. Paryani Mukesh Jawaharlal and others, [2007] 10 SCC 201, it is their contention that any regulation which is inconsistent with the MCI Regulations, 1997 is void.
5.9. They would rely upon the judgment of a Division Bench of this Court in Bharat Guthikonda and 2 others v. The Pondicherry University and others, 2006 WLR 185, where, under similar circumstances, this Court has discussed about the 50% of aggregate marks in theory and practical as per the MCI Regulations, 1997 and declared the candidates passed.
5.10. It is their submission that it is not open to the first respondent University to encroach upon the field occupied by the Medical Council of India by relying upon the decision in State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, [2006] 9 SCC 1.
5.11. The learned counsel also would rely upon the principle of estoppel by referring to the decision of the Supreme Court in Raj Kumar v. Shakti Raj, [1997] 9 SCC 527. According to them, even the MCI Regulations, 1997 provides for a grace mark of 5 marks and even that has not been considered by the first respondent University and therefore, the impugned guidelines are liable to be set aside.
6.1. Per contra, it is vehemently contended by Mr.A.Saravanan, learned counsel appearing for the University, viz., respondents 1 and 2, that while the facts are not disputed, it has been the categoric pronouncement by the Supreme Court that what is prescribed by the Medical Council of India regarding the qualification is only a minimum requirement and it is certainly open to the State, including the University, to impose more requirement by way of qualification and that cannot be held to be contrary to the provisions of the MCI Regulations, 1997.
6.2. He would submit that inasmuch as the petitioners were informed well in advance about the scheme of examination, having written the examination, they cannot question the impugned guidelines. It is his submission that only the petitioners, who are few persons, have chosen to question the impugned guidelines while all other persons have written the examination and accepted the scheme of examination and the intention of the scheme is to ensure that the candidate who completes the MBBS course should not only have the overall knowledge, but also should have the minimum required marks in the individual subjects in the Final Year.
6.3. It is his submission that when the highest academic body, namely the Standing Academic Board of the University, has taken a decision to that effect within the powers conferred under the statutes governing the first respondent University, the Court cannot direct the University to act against its statute. It is his submission that the Standing Academic Board has taken note of the fact that the students have passed through the Final Year examination with overall knowledge without special knowledge in each of the subjects and therefore, they wanted to have the minimum marks required in each of the subjects and it is insufficient for a person to complete the MBBS Course only with knowledge in General Surgery, ignoring Orthopaedics as such.
7. I have heard the learned counsel for the petitioners and respondents and given my anxious thought to the issue involved in these cases.
8. In exercise of the powers conferred under Section 33 of the Indian Medical Council Act, 1956 and with the previous sanction of the Government of India, the Medical Council of India has framed the MCI Regulations, 1997, which has been notified by the Medical Council of India on 4.3.1997. The said Regulations, apart from prescribing many other requirements like attendance, internal assessment, etc., in Regulation 12(4) explains about the distribution of marks to various disciplines. We are concerned about the Third Professional Part II and it contains papers on (a) medicine, (b) surgery, (c) obstetrics and gynaecology, and (d) Pediatrics, including Neonstology. Part II as per the MCI Regulations, 1997 is as follows: PART-II
Each paper shall have two sections. Questions requiring essay type answers may be avoided.
(a) Medicine :
Theory- Two papers of 60 marks each 120 marks
Paper 1- General Medicine
Paper II- General Medicine (including Psychiatry, Dermatology and S.T.D.)
(Shall contain one question on basic sciences and allied subjects)
Oral (Viva) Interpretation of X-ray ECG, etc. 20 marks
Clinical (Bed side) 100 marks
Internal assessment 60 marks
(Theory-30; Practical-30)
Total 300 marks
(b) Surgery:
Theory-Two papers of 60 marks each 120 marks
Paper-1-General Surgery (Section 1)
Orthopaedics (Section 2)
PAPER II-General Surgery including
Anaesthesiology, Dental diseases and Radiology.
(shall contain one question on basic sciences and allied subjects)
Oral (Viva) Interpretation of Investigative data 20 marks
Clinical (Bed Side) 100 marks
Internal assessment 60 marks
(Theory-30; Practical-30) 60 marks
Total 300 marks
Paper 1 of Surgery shall have one section in Orthopaedics. The questions on Orthopaedic Surgery be set and assessed by examiners who are teachers in the Orthopaedic surgery.
(c) Obstetrics and Gynaecology
Theory Two papers of 40 marks each 80 marks
Paper I- Obstetrics including social obstetrics.
Paper II Gynaecology, Family Welfare and Demography
(Shall contain one question on basic sciences and allied subjects)
Oral (Viva) including record of delivery
cases(20+10) 30 marks
Clinical 60 marks
Internal assessment
(Theory-30; Practical-30)
Total 200 marks
(d) Pediatrics : (Including Neonstology)
Theory : One paper 40 marks
(Shall contain one question on basic sciences and allied subjects)
Oral (Viva) 10 marks
Clinical 30 marks
Internal assessment 20 marks
(Theory-10; Practical-10)
Total 100 marks
Pass : In each of the subjects a candidate must obtain 50% in aggregate with a minimum of 50% in Theory including orals and minimum of 50% in Practicals/ clinicals.
9. In these cases we are concerned about Part II (b) Surgery with Paper 1 General Surgery (Section 1) and Orthopaedics (Section 2) and as per the MCI Regulations, 1997, the theory papers in respect of surgery, which includes General Surgery and Orthopaedics, carry maximum 120 marks. It is also specifically stated that Paper-1 of Surgery shall necessarily have one Section in Orthopaedics, but in the end of this Part-II, the Medical Council of India has stated that in each of the subjects the candidate must obtain 50% in aggregate with a minimum of 50% in theory, including oral, and minimum of 50% in practicals/clinicals, thereby indicating that the practicals/clinicals should be taken together for the purpose of obtaining minimum 50% of marks. Therefore, a reading of the MCI Regulations, 1997 makes it clear that in Part II, the Medical Council of India, being the expert body created by the statute for maintaining uniform standard of medical education, has distributed various subjects, but a leniency has been shown in obtaining 50% in aggregate.
10. On the other hand, under the impugned guidelines, the first respondent University, based on the recommendations of the Standing Academic Board dated 21.6.2010, has issued guidelines in respect of final MBBS Clinical/Oral Examination Non-semester for the subject General Surgery. Under these guidelines, Clinical-I has been divided into two parts, (i) General Surgery with maximum 100 marks with a long case and two short cases; out of which a candidate must obtain minimum 50 marks for a pass; and (ii) Orthopaedics with two short cases with maximum 50 marks, out of which a candidate must obtain 25 marks. Therefore, out of 150 marks, not only the candidate must obtain 75 marks, but in general surgery out of 100 marks, 50 marks should be obtained and individually in Orthopaedics out of 50 marks, 25 marks should be obtained. In effect, the last clause that for a pass the aggregate of minimum 50% as stipulated in the MCI Regulations, 1997 has been taken away, while the requirement of 50% is made mandatory by dividing Clinical-I into two parts stipulating that in each of the parts, viz., General Surgery and Orthopaedics, the candidate should obtain 50% marks. The impugned portion of the scheme framed by the University is as follows: SUBJECT: GENERAL SURGERY
1) There shall be Six Examiners, Four General Surgery (Two Internal + Two External Examiners) + Two Ortho (One Prof. Of Ortho from the same college and other from Affiliated Medical Colleges of this University).
2) There shall be four examiners working as two pairs with 1 internal and 1 external as one pair for surgery and two internals as a pair for Orthopaedics to conduct the examination for two batches of students.
No. of Cases
Time
Maximum
Minimum
CLINICAL-I
for examination & case sheet writing
General Surgery
Long Case
1
45 min
50
Short Case
2
Each 10 min
50
Total
100
50
Orthopaedics
Short case
2
Each 10 min
50
25
Total
150
75
Viva Voce
Viva I
X-rays, Instruments, Specimen, Operative Surgery and Ortho (4 + 1)
50
Viva II
Recent Advances (OSCE) Minimum 5 short case 5x10
(vii) Orthopaedics 3 x 10 = 30
(viii) Surgery 2 x 10 = 20
50
Total
100
50
MARKS QUALIFYING FOR A PASS
A candidate shall be declared to have passed the examination in General Surgery if he/she secures.
Maximum
Minimum
1
Theory
200
100
2
Clinical Surgery/Clinical
100
50
3
Ortho Clinical
50
25
4
Viva Voce
100
50
5
Internal Assessment Theory = Practicals (50 + 50)
100
50
(1+1+3)
1)Clinical Examination shall be conducted from 8.30 a.m. to 1.30 pm.
2)The candidates shall be present in the Examination Hall half an hour before the commencement of the Clinical Examinations. 3)Number of Candidates to be examined per day not to exceed 24.
4)The Candidates should secure the minimum required marks in each section.
5)If the candidate fails to secure the minimum in any of the sections, he/she is deemed to have failed in the whole examination.
11. The question to be considered is whether such a sub-division within the subject Clinical-I by insisting the acquiring of 50% of marks in each of the subjects is contrary to the MCI Regulations, 1997.
12. It is seen that, in effect, the clinical paper which is in Part-II for which the maximum mark prescribed by the Medical Council of India is 100 has been subdivided into Clinical General Surgery for 100 marks and Clinical Orthopaedics for 50 marks, put together 150 marks, thereby raising the maximum mark to 150 from 100. This conduct of the first respondent University in raising the maximum marks from 100 to 150 may not be in effect repugnant to the provisions of the MCI Regulations, 1997, but while increasing the maximum mark, the Clinical Paper itself has been divided into two, viz., General Surgery and Orthopaedics, requiring the candidate to obtain minimum 50% in each of the papers in the clinical and the crux of the issue to be decided is as to whether such division is repugnant to the provisions of the MCI Regulations, 1997.
13. In Bharat Guthikonda and 2 others v. The Pondicherry University and others, 2006 WLR 185, a Division Bench of this Court headed by P.Sathasivam,J., as His Lordship then was, had an occasion to deal with one of the provisions of the MCI Regulations, 1997 viz., Regulation 13(10), which stipulates that if a candidate passed in other subjects in an examination and failed in only one subject, up to five marks can be awarded as grace marks. That provision was construed by the Division Bench along with Regulation 12(4) of the MCI Regulations, 1997 regarding the distribution of marks to various disciplines which contemplate the aggregate of 50% of marks. However, in that particular case there was a shortage up to five marks and by relying upon the Division Bench judgment of the Kerala High Court in W.A.No.1777 of 2002(C), dated 26.9.2002 (K.Fahad Mohamed and others v. Calicut University) wherein it was held that under the MCI Regulations, 1997 the candidate should be declared to have passed if he has got 50% of the aggregate marks in University theory orals + internal assessment theory and 50% of the aggregate marks in University practicals + internal assessment practicals/clinicals, the candidates were declared to have passed and the legal position that the University can prescribe higher qualification than fixed by the AICTE as it was held in State of Tamil Nadu v. S.B.Pradheep, 2004 (2) CTC 227 was admitted. The Division Bench, taking note of the fact that by an interim order the petitioners therein were permitted to undergo internship, held that the petitioners therein are entitled to similar direction for grant of grace marks in one subject up to five marks and if they pass, they were directed to be admitted for internship. Even though relief was given to the candidates concerned in the above said case by the Division Bench, the issue that has been raised in this case has not been the subject matter of discussion.
14.1. Similarly, in a recent judgment of the Supreme Court in Maharashtra University of Health Sciences, rep. by Deputy Registrar v. Paryani Mukesh Jawaharlal and others, [2007] 10 SCC 201, the Supreme Court had an occasion to consider Regulation 12(4) of the MCI Regulations, 1997 framed under Section 33 of the Indian Medical Council Act, 1956. While extracting the Regulation 12(4) which sets out the distribution of marks to various disciplines and the heads of passing in each subject in respect of examinations in MBBS, the Supreme Court has considered a notification issued by the University concerned in Notification No.5 of 2006, dated 20.2.2006 regarding the standard of passing/heads of passing for MBBS Course, which is as follows: Based on Medical Council of India Notification No. 164 dated 16th October, 2003 and the Honble High Court ruling dated 12-12-2003, standard of passing as prescribed in Rule 57 of Ordinance 1 of 2002 (Amended) for passing in internal assessment head with thirty-five per cent marks is mandatory to appear in University level examination (theory, practical and oral) in the respective subject.
Head of Passing and Standard of Passing will be as under:
Head of Passing Standard of Passing
(A) Theory + Oral 50% marks
(B) Practical/Clinical 50% marks
(C) Internal Assessment 35% marks
(Theory + Practical) (For eligibility)
(Refer Notification No. 9 of 2006)
(D) Aggregate of all the above
mentioned heads of passing 50% marks
14.2. The notification in its turn was issued by the University based on Ordinance No.1 of 2002 (amended) of the University which regulates the conduct of the examinations by the University. The relevant clauses of the said Ordinance, viz., 56.2, 56.3 and 57, are as follows: 56.2. Heads of passing of various courses in their respective faculties will be as under: 56.2.1. Medical
(i) Theory + Oral
(ii) Practical
(iii) Internal Assessment (Theory + Practical)
56.3. The candidate to be eligible to pass in a subject shall pass in all heads of passing in the respective subject in the same attempt. ***
57. The Standard of passing: A candidate to be eligible to pass the examination must have obtained not less than 50% of marks in each of the passing heads of the respective subject.
14.3. The question that was considered in that case was as to whether 35% of internal assessment mark, which is an eligibility criteria for writing the other examinations like theory + oral, practical/clinical, etc., should be included for securing minimum 50% marks.
14.4. While it was the stand of the University that the MCI Regulations, 1997 deliberately omitted and excluded the internal assessment marks for passing under the head of theory + orals and practicals, it was the contention of the students and the Medical Council of India that it was impermissible to include them under those heads and therefore, according to the University, the Ordinance as well as the notification issued under the Ordinance are not inconsistent with the MCI Regulations, 1997, especially Regulation 12(4).
14.5. In that regard, while construing the intent of the Regulation 12(4) of the MCI Regulations, 1997, the Supreme Court has held as follows: 15. MCI has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. The regulations framed by the MCI with the previous sanction of the Central Government, in regard to any of the matters referred to in Section 33 of the Indian Medical Council Act, 1956, will have statutory force and are mandatory. Universities must necessarily be guided by the MCI Regulations. Any regulations made by the Universities which are inconsistent with the MCI Regulations, or which dilute the criteria laid down by MCI will not be valid to the extent of inconsistency or dilution. (Vide State of T.N. v. Adhiyaman Educational & Research Institute, [1995] 4 SCC 104, Medical Council of India v. State of Karnataka, [1998] 6 SCC 131 and Preeti Srivastava (Dr.) v. State of M.P., [1999] 7 SCC 120). It, therefore, follows that if Clauses 56(2) and 57 of amended University Ordinance 1 of 2002 are inconsistent with MCI Regulation 12(4), they will be void to the extent of inconsistency. On the other hand, if the said Clauses merely implement, or make explicit what is implicit in MCI Regulation 12(4), then they will be valid and binding.
14.6. Again, while considering the aggregate marks of the students under the interpretation of the University, based on which the students are to fail, and under the interpretation of the Medical Council of India and students, based on which the candidate passes since he obtains the minimum aggregate marks, the Supreme Court has raised the point and answered as follows: 16. The point in controversy in regard to interpretation of MCI Regulation 12(4) can be understood with reference to the following illustration: Subject Total Marks Candidates
Marks
I. Theory (two papers of
50 marks each) 100 47
II. Orals (viva) 20 12
III. Practicals 40 17
IV. Internal Assessment:
(a) Theory 20 16
(b) Practical 20 15
Total 200 107
17. Regulation 12(4) provides that to pass in a subject, a candidate should obtain 50% in the aggregate with a minimum of 50% in theory including orals and minimum of 50% in practical. The marks secured by the candidate (in the illustration), when assessed as per the interpretation of the University, results in the candidate failing in the subject. The very same marks when assessed as per the interpretation of the students (and MCI), result in the candidates passing in the subject. The calculations are given below: University interpretation (candidate fails in the subject):
1.Aggregate (I+II+III+IV) : 107 marks out
of 200 marks
2.Theory plus oral (I + II) : 59 marks (out of 120)
(47 and 12 out of 100 and
20 marks)
3.Practicals (III) : 17 (out of 40)
As the candidate secured less than 50% in theory including orals (that is 59 out of 120) and less than 50% in practicals (that is 17 out of 40), he failed under the heads of theory (plus orals) and practicals. As a consequence, though he secured more than 50% in the aggregate, he failed in the subject.
Interpretation of MCI/students (candidate passes in the subject):
1.Aggregate (I+II+III+IV) : 107 marks out
of 200 marks
2.Theory plus oral [I+II+IV(a)] : 75 marks out
of 140
(47, 12 and 16
out of 100, 20 and 20)
3.Practicals [III+IV(b)] : 32 marks out
of 60(17 and
15 out of 40 and 20)
As the candidate secured more than the minimum of 50% under all the heads of passing, that is, in the aggregate, in theory (plus orals), and practicals, he passed in the subject.
14.7. While observing that the scheme of distribution of marks as contemplated under Regulation 12(4) of the MCI Regulations, 1997 makes it clear that the University examination (external examination) is kept separate and distinct from internal assessment, the Supreme Court has ultimately accepted the contention of the University in respect of the MCI Regulations, 1997 as correct and held that the Ordinance 1 of 2002 Clauses 56.2 and 57, as elicited above, are in consonance with Regulation 12(4) of the MCI Regulations, 1997. It was also specifically held that the internal assessment marks cannot be clubbed with University External examination marks to ascertain whether a candidate has passed in theory with oral and practicals. In fact, the Supreme Court was taken to surprise about a different stand of interpretation taken by the Medical Council of India with the following observation:
24. We will now refer to the stand of the MCI. We are surprised to find that MCI has put forward different interpretations at different points of time. We have already referred to one interpretation by MCI put forth in its letter dated 17-9-2002 (extracted in para 5 above). But in the reply-affidavit filed by MCI before the Bombay High Court in this case, the stand of MCI was different (vide para 9): It is submitted that even though internal assessment are separately marked on a 50-50 basis for theory and practical respectively, it is clubbed with the performance in the practical/clinical examination, whereas the viva voce performance is clubbed with the performance in the theory examination. It is submitted that the internal assessment marks are to be clubbed with the practical/clinical performance. They do not form a separate or independent passing head and ultimately held as follows:
27. We, therefore, accept the interpretation put forth by the University in respect of MCI Regulation 12 as correct and hold that Clauses 56(2) and 57 of amended University Ordinance 1 of 2002 are in consonance with Clauses (2) and (4) of MCI Regulation 12. We also hold that internal assessment marks cannot be clubbed with University examination (external) marks to ascertain whether a candidate has passed in theory with orals, and practicals. We further hold that the clarification given by MCI in its letter dated 17-9-2002 and the clarification in its reply-affidavit are contrary to MCI Regulation 12(4). Consequently, a student has to secure marks as follows to pass in a subject:
(i) 35% in internal assessment (for eligibility to appear for University examination).
(ii) 50% of the total marks for theory with orals (only externals).
(iii) 50% of the marks for practicals/clinicals (only externals).
(iv) 50% of the aggregate (total of externals and internals)
and accordingly, held that the internal assessment mark of 35% cannot be clubbed together for the purpose of arriving at the aggregate mark of 50% for declaration of pass, in effect, giving relief to the students.
15. Even though in the above said judgment also the Supreme Court had no occasion to decide about the issue similar to the one being discussed herein, impliedly the Supreme Court has held that the aggregate mark in practicals and clinicals, as stated in the MCI Regulations, 1997, has to be taken together as 50% and if that is taken into consideration, there is no scope to enable the University to divide the Clinical subject itself into two, requiring the minimum pass mark in each of the subjects, thereby clearly contradicting the MCI Regulations, 1997, which in no uncertain terms makes it clear that a student should be declared passed if by taking the aggregate of practicals/clinicals mark in General Surgery and Orthopaedics he obtains 50% marks. It is no doubt true that the University certainly has got a right to introduce a better standard, especially in the medical education, but it does not mean that a totally contrary stand can be taken by the University when the issue is covered under Entry 25 in List III to Seventh Schedule to the Constitution of India, which is as follows: 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour and therefore, it is certainly not open to the first respondent University to contradict the clause which is available and framed by the Medical Council of India as per Section 33 of the Indian Medical Council Act, 1956 in the form of a statutory regulation after the consent from the Central Government.
16. The problem has to be approached in another sense also. It is admitted that except in the first respondent University, all other Universities imparting medical education, including the Deemed Universities like Annamalai University and the universities in other States, are following the MCI Regulations, 1997 in strict sense, viz., if a candidate obtains 50% of marks in aggregate in the subject General Surgery and Orthopaedics in practicals/clinicals, he is declared to have been passed. Such a candidate who passes from an university of some other State or from the Deemed Universities in the State of Tamil Nadu are admitted by the fourth respondent for internship in various medical institutions. While so, simply because the petitioners have joined medical course in the first respondent University, in the guise of imposing a better standard of education which is totally arbitrary, in my considered view, their prospect in competing with similarly situated candidates from other universities either outside the State or Deemed Universities within the State for undergoing the internship course cannot be curtailed and the same is unconstitutional, discriminatory and violative of Article 14 of the Constitution of India.
17. The petitioners are certainly on a par with any other final year Part II MBBS student who has passed from other medical college in India or autonomous medical university in the State of Tamil Nadu based on the MCI Regulations, 1997. While so, a different yardstick is being applied to the petitioners which is impermissible in law.
18. There is certainly repugnancy between the impugned guidelines issued by the first respondent University and the Regulations framed by the Medical Council of India as per the powers under Section 33 of the Indian Medical Council Act, 1956 and this being the subject under Entry 25 of List III of the Seventh Schedule to the Constitution of India, it is to be necessarily held that there is repugnancy between the Regulations made by the Central Authority and impugned guidelines of the first respondent University and the impugned guidelines framed by the first respondent University are to be held unconstitutional and unenforceable.
19. I am of the considered view that even though the present issue has not come across in any of the legal forums to the knowledge of this Court, the division of Clinical Subject into two as that of General Surgery and Orthopaedics and insisting under the impugned guidelines the minimum of 50% marks in each of the papers is not only discriminatory to the interest of the students of the first respondent University, but is opposed to law and repugnant to the MCI Regulations, 1997, apart from creating a totally arbitrary position resulting in violation of Article 14 of the Constitution of India.
20. It is also relevant to note at this stage that such requirement has never been intimated to the petitioners at the time when they were admitted in the First Year of MBBS Course in 2006-2007. Admittedly, the impugned guidelines were introduced sometime in September, 2010 for the petitioners and similarly situated persons who are to write the final examinations in Part II if February, 2011. Certainly such an event would not have been anticipated by any of the petitioners and therefore, the principle of legitimate expectation is also involved on the facts of the present case.
21. It is true that in respect of the academic matters the courts should be slow in interference for various reasons, most importantly that the Court is not an expert in the subject and it is the University which has to decide and it cannot be compelled to act against its Statute, but on the facts of the present case, it is the Medical Council of India, which consists of experts in the field, which has formulated the MCI Regulations, 1997 and there is nothing wrong in holding that such Regulations are to be scrupulously followed. Imposing of a better qualification does not mean discriminating similarly situated persons. In such view of the matter, I do not accept the vehement contention of Mr.A.Saravanan, learned counsel appearing for respondents 1 and 2 that the Standing Academic Board has deliberated and taken a decision. Even if such decisions are taken, such decisions are subject to judicial scrutiny if they are against the decisions of another centrally created expert body, especially when such decisions are going to create imbalance and arbitrariness.
In such view of the matter, the writ petitions stand allowed. It is made clear that in respect of each of the petitioners if based on the MCI Regulations, 1997 by taking the aggregate marks the petitioners obtain 50%, they should be declared passed and permitted to proceed to the internship by allotting various medical colleges. Such orders shall be passed by respondents 1 and 4 within a period of ten days from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2011 in W.P.No.8472 of 2011, M.P.No.1 of 2011 in W.P.No.8473 of 2011, M.P.No.1 of 2011 in W.P.No.8474 of 2011, M.P.No.1 of 2011 in W.P.No.8475 of 2011, M.P.No.1 of 2011 in W.P.No.9038 of 2011, M.P.No.1 of 2011 in W.P.No.9039 of 2011, M.P.No.1 of 2011 in W.P.No.9040 of 2011, M.P.No.1 of 2011 in W.P.No.9041 of 2011 and M.P.Nos.1 and 2 in W.P.No.9220 of 2011 are closed.