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TMI Blog2006 (6) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... edicine . The mark-sheets were displayed on the website of the University and the copies of the same were also provided to the students. It is the case of the petitioners that on perusal of the mark sheets, it would reveal that the petitioners had either failed in the practical paper of the subject General. Surgery and or General Medicine and as such had been declared to have failed in the said examination. 2. The respondent No. 1 Medical Council of India is a statutory body established under the provisions of Indian Medical Council Act, 1956. The act is a central legislation enacted by Parliament. Under Section 33 of the Act, the Council is empowered to frame regulations in a manner provided, so as to achieve the object provided under the Act. The regulations framed by the Medical Council of India under Section 33 are thus made binding on all the Universities and medical institutions imparting medical training and/or conferring degrees. The institutions which conduct medical courses must do so in conformity with the regulations framed by the Medical Council of India. No medical institution or University, it is submitted, can ignore the mandatory regulations framed by the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. The regulation also provides for grace marks to be awarded. The 35% requirement enables the student to appear for the University final examination. The University had earlier framed regulations, we are concerned with Regulations 56.2 and 57, which reads as under: 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) 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 heads of the respective subject. 3. The University in 2003 followed regulations 56 and 57 in declaring the results of the final examination. Several students aggrieved, filed Petitions before this Court i.e. Writ Petition No. 5725 of 2003 and other Writ Petitions. A learned Division Bench of this Court, was pleased to dispose of the Writ Petitions by order dated 12th December, 2003. The learned Division Bench was pleased to observe as under: The requirement of obtaining 50% of the total marks fixed for Internal Assessment is clearly spelt out by Regulation 12. What ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court which decided the earlier batch of petitions. Counsel for the respondent University states that it was brought to the notice, but we find no reference to the judgment, in the judgment of the Division Bench of this Court. 5. Subsequent to the judgment of this Court, the University has amended Rule 57 of the ordinance as can be seen from Notification dated 20-2-2006 and the Rule 57 of the ordinance now reads as under: 'HEAD OF PASSING' AND 'STANDARD OF PASSING' WILL BE AS UNDER: (Theory + Practical) (Refer Notification No. 09/2006) (D) Aggregate of all the 50% marks. Above mentioned heads of passing. Rules 56 and 57 of Ordinance 01/2002 (Amended) will be suitably amended. All students should be informed accordingly. It is this Rule as amended, which is the subject-matter of the present Petitions. 6. On behalf of the Medical Council of India, Shri Ashok Kumar Harit, Deputy Secretary, has filed an affidavit. It is set out that regulations were framed by the Medical Council of India under Section 33 with the prior approval of the Central Government. All such regulations are statutory in character and are binding and mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment prescribed for each subject. For example, in Anatomy, he has to obtain a minimum of 20 marks out of total 40 marks earmarked for internal assessment. Thus there is no contradiction in the percentage of marks prescribed for passing of an examination as per the regulations. 7. On behalf of the University Shri Govind Prabhakar Jadhav, Deputy Registrar, has filed an affidavit. It is pointed out that Rules 56 and 57 of Ordinance 01 of 2002 as framed by the University, have been held not to be inconsistent with Regulation 12 as framed by the Medical Council of India. In terms of the judgment, a student has to pass in all the three heads with 50% marks, namely in, 1.Theory, 2.Practical/clinical, and 3.Internal Assessment. Reference is made to the examination form and the specific declaration given by all the students, declaring that the students have gone through the syllabus prescribed, the Ordinance and the Rules. It is submitted that the petitioner is not entitled to challenge the Rules which have been in existence since 2003 and which have been applied for examinations conducted thereafter wherein the petitioner herein had appeared. Insofar as securing 50% in internal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the new Rules as framed by the University and considering the new Rule, whether we should follow the ratio of the judgment delivered in Writ Petition No. 5725 of 2003 in the case of Ms. Sheetal A. Abhyankar and Ors. v. Maharashtra University of Health Sciences and Ors. decided on 12th December, 2003 [since reported in 2004(2)MhLj689 The second aspect of the matter is that it appears that the clarification issued by the Medical Council of India on 17-9-2002 was not brought to the attention of the learned Division Bench. Though the learned Bench referred to this affidavit filed on behalf of the Medical Council of India, no reference is made to that clarification. A third aspect of the matter is the view taken by the Kerala High Court a Court of co-ordinate jurisdiction. Though the view is not binding, it had a persuasive value. A view of a Court of co-ordinate jurisdiction considering that the Medical Council of India is constituted under a Central Act and had framed the Regulations under that Act ought to have been considered or distinguished as normally there ought not to be different interpretations of the same provision in different States. Courts of co-ordinate jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final examinations. In other words, there is no requirement that the student must secure 50% aggregate in internal assessment as a distinct head. Internal assessment only requires that the student obtain 35% marks in order to enable the student to appear for the examination. Once a student secures 35%, then the marks obtained in internal assessment are to be added to Theory and Practical papers respectively in terms of Regulation 12(4). In our opinion, therefore, a reading of Regulation 12 with the clarification dated 17-9-2002, leaves no manner of doubt that the marks obtained in internal examination will have to be added with the marks obtained at the final examinations for Theory and Practicals respectively and cannot be adjudged under independent head. This view was accepted by the learned Division Bench of the Kerala High Court in the case of K. Fahad Mohamed and Ors. v. Calicut University and Ors. decided on 25th September, 2002 in WA. No. 1777 of 2002 (c). The other aspect is that when a body making the sub-ordinate legislation, clarifies the meaning of the Rule it has made, in the absence of absurdity or that clarification being clearly contrary to the language of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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