Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6972 of 2013 ====================================================== Gaurav Kumar S/O Late Chandeshwari Prasad Yadav Resident Of Village - Pithahi, P.O. Mathahi, District - Madhepura .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Health, Govt. Of Bihar, Patna 2. The Director, Indira Gandhi Institute Of Medical Science, Sheikhpura, Patna 3. The Sub-Dean (Examination) Indira Gandhi Institute Of Medical Sciences, Sheikhpura, Patna .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER (Date - 02.05.2013) Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of appropriate writ(s), order(s), direction(s) to respondents authorities to give “GRACE MARKS’
Legal Reasoning
to the petitioner in First M.B.B.S. (Supplementary) Examination which was held in the month of September 2012. And further for direction to respondents after adding the Grace Marks issue fresh Mark- sheet and allow the petitioner to attend his Second Year M.B.B.S. Class for the Session 2012-13 in Indira Gandhi Institute of Medical Science, Sheikhpura, Patna. And further for directions to respondents to allow the petitioner to continue his Medical Course (M.B.B.S.) from Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna.”
Legal Reasoning
3. Learned counsel for the petitioner in support of the Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 2/9 aforementioned prayer has submitted that the petitioner had taken admission in Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna in MBBS course of 2011-12 and could not appear in the 1st year MBBS Annual Examination 2012 because of shortage of lecture as he was seriously ill in the month of December, 2011 and January, 2012. According to the learned counsel the petitioner thereafter having attended the special classes and having secured the required percentage of attendance had appeared in the 1st year MBBS Supplementary Examination 2012 held in the month of September, 2012. Learned counsel has also explained that the petitioner, however, was declared to have failed in the examination because he could not secure the pass marks in the Theory of the subject of Physiology. 4. According to the learned counsel for the petitioner since the petitioner had failed in the subject of Physiology by shortage of only four marks, the respondents ought to have declared the petitioner to have passed his 1st MBBS Examination by giving him four grace marks by taking into account there was/is a regulation framed by the Medical Council of India wherein the grace marks upto the maximum of five marks could be awarded at the discretion of the University to a student who has failed only in one subject but has passed in all other subject. In this regard he has also cited certain instances of Indira Gandhi Institute of Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 3/9 Medical Sciences as also of Patna Medical College, Darbhanga Medical College where according to him such grace marks were given in similar cases. 5. In the considered opinion of this Court the petitioner has not made out a case for interference by this Court. First of all this Court would find that the petitioner in his first representation dated 6.11.2012, as contained in Annexures 4 series, had not claimed for grant of grace marks and in fact his case in them was that he wanted revaluation of his answer paper since he was not satisfied with the evaluation of the answer book of his Physiology paper. To that extent it would be relevant to quote the contents of the application of the petitioner dated 6.11.2012 which reads as follows: “The Sub-Dean examination IGIMS, Patna-14 Subject: Regarding to re-evaluation and re-totalling of the Physiology Paper-I(II) and Paper-II(II) of 2012- MBBS-I. Through- Proper Channel Sir, I beg to say that I am a student of your Institution and I have appeared in MBBS-I 2012(II). But I am not satisfied from my marks which I have got in my Physiology paper. So, I request you please re-evaluate and re-total my both the paper of Physiology for my future convenience. Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 4/9 Yours Name- Gaurav Kumar Gaurav Kumar Roll No.-100 6/11/12 Reg. No. 612/2012” It is true that subsequently the petitioner on 14.2.2013 had filed another application wherein he had made a request for grant of four grace marks but his emphasis was that since there was provision in other universities to grant grace marks in the supplementary examination as well, he should be given the benefit of grace marks. 6. His second application dated 14.2.2013 being also thus relevant is quoted hereinbelow:
Decision
lsok esa] Jheku~ funs’kd egksn;] bfUnjk xka/kh vk;qfoZKku laLFkku ’ks[kiqjk] iVuk&14 fo"k;& xzsl ekdZ nsus ds lac?k esaA egksn;] lfou; fuosnu ;g gS fd eSa xkSjo dqekj] jkSy ua0&100 izFke o"kZ …2011&12‰ ,e-ch-ch-,l dk Nk= gwWA fcekj iM+ tkus ds dkj.k esjk Attendance Short gks x;k ftlds dkj.k eq>s Annual Exam esa lfEefyr ugha fd;k x;kA blfy, eSsus rhuksa fo"k; dk Supplementary Exam fn;ka ftlesa Physiology paper esa ^^4^^ (Four No.) ekDlZ ls vuqRrhZ.k gks x;kA vU; University esa Supplementary Exam esa Hkh xzsl ekDlZ nsus dk izko/kku gSA vr% Jheku~ ls fuosnu gS fd eq>s xzsl ekdZ nsdj f}rh; o"kZ esa nkf[kyk nsus dh d‘ik iznku djsaA blds fy, eSa vkidk lnk vkHkkjh jgwWxkA vkidk vkKkdkjh Nk= uke&xkSjo dqekj Date 14.2.2013 jkSy ua0&100 l=&2011&2012(MBBS) Nowhere in the writ petition the petitioner has stated as to whether his paper was re-evaluated and re-totaled as per his earlier request dated 6.11.2012 but the very fact that the petitioner had given up his claim for re-evaluation and re-totaling in his second application dated 14.2.2013 this Court will presume that on re-evaluation and re- totaling his marks in Physiology did not change whereafter only he had filed the second application now claiming grace marks. 7. Awarding grace marks cannot be a matter of right, inasmuch as even regulation of the Medical Council of India relied by the petitioner is only in form of discretion. As a matter of fact Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 5/9 the Medical Council of India in exercise of power conferred under section 33 of the Indian Medical Council Act, 1956 and with the previous sanction of the Central Government has framed “Regulations on Graduate Medical Education, 1997”. Regulation 13 of Regulation, 1997 deals with the appointment of examiners. Regulation 13(10) provides for grace mark which reads as follows: “(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.” 8. From a plain reading of the aforementioned Regulation two things become absolutely clear. Firstly, there is a discretion vested in the University to award grace marks and secondly, such students must have failed in only one subject but have passed in all other subjects. The Regulation does not say that such grace marks has to be given in the 1st MBBS Examination itself. If the submission of the learned counsel for the petitioner has to be accepted that the petitioner was entitled to be given grace marks in the subject of Physiology because there were only three subjects in the 1st MBBS examination, that may be contrary to the spirit of Regulation (10) quoted above. 9. In the considered opinion of this Court the rider of failing in one subject has to be understood in the context of whole MBBS examination and not only the 1st MBBS examination. The Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 6/9 entire course of MBBS examination has a number of subjects and in fact the examination is also bifurcated into four parts, namely, Ist MBBS, IInd MBBS, IIIrd MBBS Part Ist or IIIrd MBBS Part IInd. It is here that the role of the University becomes crucial which has to consider for grant of grace marks because grace marks upto maximum of 5 in total only may be awarded at the discretion of the University to a student who has failed in only one subject provided that the student has passed in all other subjects. 10. The matter can be viewed from even another angle because when the petitioner himself has emphasized in his second representation as with regard to there being no provision for grant of grace marks in the supplementary examination of 1st MBBS examination which also gets support from the example cited by him in the case of Abhishek Kumar, who too had secured 66 marks in Anatomy in the Annual Examination of 1st MBBS 2012, it would become absolutely clear that the Indira Gandhi Institute of Medical Sciences which has been recognized by the UGC as statutory University in terms of Act 10 of 1984 and its amendment in 2007 has turned its own provisions in keeping with Regulation (10) of the Medical Council of India restricting grant of grace marks only to the students appearing in the Annual Examination. In fact the petitioner has not brought on record the provision which has been made by Indira Gandhi Institute of Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 7/9 Medical Sciences as with regard to grant of grace marks and therefore, this Court would find it difficult to make Regulation 10 of MCI applicable straightway when the same itself leaves it to the discretion of the University to decide the issue of grant of grace marks. 11. By-now it is well settled that in the academic matter there should be very minimal interference by the Court. Reference in this connection may be usefully made to the Constitution Bench judgment of the Apex Court in the case of the University of Mysore v. C.D.Govinda Rao & anor., reported in AIR 1965 SC 491. As a matter of fact the issue of grant of grace marks and the power of judicial review under Article 226 of the Constitution of India in such matter had fallen for consideration before the Apex Court in the case of Maharashtra State Board of Secondary & Higher Secondary Education v. Amit & anor., reported in (2002)6 SCC 153, wherein it was held as follows: “Academic standards are laid down by the appropriate authorities which postulate the minimum marks that a candidate has to secure before the candidate can be declared to have passed the examination. The award of grace marks is in the nature of a concession, and there can be no doubt that it results in diluting academic standards. The object underlying the grant of grace marks is to remove real hardship of a candidate who has otherwise shown good performance in the academic field but is losing Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 8/9 one year of his scholastic career for the deficiency of a mark or so in one or two subjects, while on the basis of his oeverall performance in other subjects, he deserves to be declared successful. The appropriate authorities may also provide for grant of grace marks to a candidate who has taken part in sports events etc. considering the fact that such candidates who have obtained a level of proficiency in any particular game or event may have devoted considerable time in pursuit of excellence in such game or event. However, a rule for the award of grace marks must be construed strictly so as to ensure that the minimum standards are not allowed to be diluted beyond the limit specifically laid down by the appropriate authority. It is only in a case where the language of the statute is absolutely clear that the claim for the award of grace marks can be sustained. Normally the court shall be slow to extend the concession of grace marks and grant a benefit where none is intended to be given by the appropriate authority.” 12. In view of the above discussions this Court is of the opinion that the award of grace marks under the MCI Regulation is completely left to the discretion of the University with a restriction that the maximum grace mark could be only 5 and could be awarded to a student in only one subject to get pass provided such student had passed on his own in all other subjects. In this case the University is Indira Gandhi Institute of Medical Patna High Court CWJC No.6972 of 2013 (2) dt.02-05-2013 9/9 Sciences itself and therefore, it has to take a decision. 13. Thus, having regard to the settled principle that no mandamus can be issued in the matter of exercise of discretion by an authority would leave the matter to be decided by Indira Gandhi Institute of Medical Sciences strictly in accordance with law. It will be open for the petitioner to either file his fresh representation for award of grace marks alongwith a copy of this order and if the authorities of Indira Gandhi Institute of Medical Sciences find that the petitioner would qualify for grant of such grace mark not only in terms of the Regulation framed by the MCI but its own decision as also precedent case of Abhishek Kumar, it would do the needful or else would reject the representation of the petitioner by a reasoned order. 14. With the aforementioned observations, this application is disposed of. (Mihir Kumar Jha, J) Patna High Court Dated the 2nd May 2013 N.A.F.R./Rishi/- Surendra/-