Dismissed

Anisha. S. M. v. National Medical Council

Karnataka HC29 Mar 2021WP/5463/2021

Case brief

AI extract

What is this about?

High Court of Karnataka rejected a writ petition seeking declaration of pass for an MBBS student who failed two subjects. The Court held that rounding off applies only to evaluator averages, not 120-to-100% conversions, and grace marks under applicable regulations are denied for failing two subjects as the 2019 amendment has retrospective temporal limits.

What did the court decide?

Writ petition rejected declaring petitioner as passed; prayer for grace marks denied.

Anisha. S. M. Vs National Medical Council — Education and Admissions | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF MARCH, 2021

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BEFORE

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THE HON' BLE MR.JUSTICE R DEVDAS

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WRIT PETITION NO.5463 OF 2021(EDN-EX)

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BETWEEN

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ANISHA S. M. D/O SHIVAKUMAR R AGED ABOUT 23 YEARS R/A RLY QTRS NO.1661 D RAILWAY OFFICERS COLONY BEHIND RAILWAY HOSPITAL GADAG ROAD HUBLI-580023

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...PETITIONER

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(BY SMT SUMANA BALIGA M, ADVOCATE)

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AND

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1 . NATIONAL MEDICAL COUNCIL POCKET NO.14, SECTOR 8 DWARAKA NEW DELHI-110077 REP BY ITS SECRETARY

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2 . RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4TH T BLOCK, JAYANAGAR BENGALURU KARNATAKA-560041 REP BY REGISTRAR EVALUATION

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…RESPONDENTS

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(BY SRI N KHETTY, ADVOCATE FOR R1 SRI N K RAMESH, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE PETITIONER AS PASS IN THE PHASE III – PART II MBBS EXAMINATION, BY AWARDING ONE GRACEMARK TO THE PEDIATRICS PAPER ON ONE MARK TO ORTHOPAEDIC SURGERY PAPER AS PER CLAUSE X (10) OF THE MCI REGULATION AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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R. DEVDAS J., (ORAL):

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The petitioner is pursuing her studies in M.B.B.S. course. She has written the Phase-III - Part-II M.B.B.S. examinations. Out of three subjects she has failed in two subjects. It is the contention of the petitioner that due to erratic evaluation there is huge difference between the marks awarded by the top four evaluators. Nevertheless, as directed by this Court in W.P.Nos.231/2021 and connected matters, which were disposed of on 11.02.2021, to hold fifth evaluation in all such cases where the students had failed and the difference in total marks between the two evaluators was more than 15%, accordingly, two papers of the petitioner were sent for fifth evaluation i.e., in Pediatrics and Surgery (Orthopaedic).

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Unfortunately, the petitioner is short of 1 (one) mark in both the subjects.

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Learned Counsel for the petitioner contends that in terms of the notification dated 29.03.2019, issued by the respondent-University governing the valuation of answer scripts, more particularly Clause V(1)(b), while taking the average of the best four total marks out of five evaluators, marks are required to be rounded off to the nearest value. But, attention of this Court is drawn to the statement of marks announced by the respondent-University, at Annexure-C, which provides that the minimum marks to pass shall be as follows; 35% in Internal Assessment, 50% in Theory + viva, 50% in Practical and 50% in subject aggregate. In the Theory + viva, the petitioner has obtained 59 marks out of 120 marks. It is contended by the learned Counsel that since the marks are to be taken for 100%, when 59 marks are averaged to 100%, the petitioner scores 49.17% and therefore, it is contended that here too marks are required to be rounded off.

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In the considered opinion of this Court, provision is made for rounding off the marks while computing the marks awarded by the valuators. It is found from the documents

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available on record that the petitioner has scored 178.5%, as awarded by the four top evaluators, the same is rounded off to 179 in respect of Pediatrics subject. In respect of Surgery (Orthopaedic), the petitioner has scored 44.75 in total as awarded by the four evaluator. There too, the marks are rounded of to 45. Therefore, in terms of Clause V(1)(b) , the marks are rounded off wherever it is permissible. The contention of the learned Counsel that in the Theory + viva paper, since the marks are awarded for 120 Maximum marks and it has to be averaged to 100% the petitioner obtained 49.17% in Pediatrics and 49.58% in Surgery (Orthopaedic), the same should be rounded off, cannot be accepted. The provision is made as seen in Clause V(1)(b) to round off the marks while averaging the best four total marks for the paper awarded by the five evaluators and it is rounded off to the nearest value. There is no further scope for rounding off the marks while taking the percentage of the Theory + viva paper from 120 marks to 100%.

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The opinion of this Court is supported by a decision of the Hon’ble Supreme Court in the case of Registrar, Rajiv Gandhi University of Health Sciences, Bangalore Vs.

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G.Hemlatha And Others reported in (2012) 8 SCC 568 ,

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wherein it has been held that when emphasis is given in the Rule itself to the minimum marks to be obtained, there can be no relaxation or rounding off. It was observed that no power was provided in the Statute/Rules permitting any such rounding off or giving grace marks. Rules are statutory in nature and no dilution or amendment to such Rules is permissible or possible by adding some words to the said statutory Rules for giving the benefit of rounding off or relaxation.

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The next limb of argument of the learned Counsel for the petitioner is that there is provision under the Regulations for awarding grace marks upto maximum 5 marks, but in terms of the Medical Council of India Regulations on Graduate Medical Education, 1997, maximum of 5 grace marks can be awarded if a student has failed only in one subject. Therefore, endeavor is made by the learned Counsel for the petitioner to convince this Court that if the marks are rounded off in one subject, the petitioner will succeed in that paper and 1 (one) grace mark could be given in terms of the MCI Regulations.

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When the provisions of the Regulations are clear and there being no ambiguity there is no scope for rounding off the marks while averaging the marks from 120 to 100%. Scope is there for rounding off only while averaging the marks awarded by the evaluators. As regards the awarding of grace marks, it is clear that in terms of the Regulations applicable to the petitioner, who was admitted to the course during the academic year 2014-15, grace marks can be awarded only if the students had failed in one subject. Here is the case, where the petitioner has failed in two subjects there is no scope for awarding the grace marks.

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Attention of this Court was drawn to amended notification dated 04.11.2019, issued by the MCI bringing about some changes in the Regulations, which are known as the Graduate Medical Education (Amendment) 2019. In the amended Regulations, as per the Regulation 11.2.9 (j), there is scope for awarding grace marks upto a maximum of 5 marks at the discretion of the University to a ‘learner’ for clearing the examinations as a whole. Thus, it is pointed out that there is scope under the new Regulations for awarding 5 grace marks even if the student has failed in more than one

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subject. But admittedly, the provisions of the amended Regulations, 2019, insofar as Part-II is concerned, is specifically made applicable to the students who were admitted to M.B.B.S. course from the academic year 2019-20 onwards. Therefore, the benefit of the amended Regulations cannot be availed of by the petitioner.

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For the foregoing reasons, the writ petition fails and is

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accordingly rejected.

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SD/JUDGE

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Anisha. S. M. v. National Medical Council

Case brief

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Anisha. S. M. v. National Medical Council

Case brief

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