S. Shyamala Vs The Controller of Examinations, Pondicherry University and Vinayaka Mission Medical College

@JUDGMENTTAG-ORDER

K.P. Sivasubramaniam, J.@mdashThe petitioner, being a student of the first year M.B.B.S Course in the second respondent College at Karaikal, had written her first year examination in December 2001. Though she had passed in Anatomy and Bio-Chemistry, she had obtained only 116 marks in Physiology and was short of three marks for a pass. According to the petitioner, she applied for re-totalling of the marks and she also hoped of being awarded five marks as grace marks. But there was no response from the respondents. Therefore she had written the examination again in May 2002. Although she had done well, she was informed that she had failed in Physiology again.

2. The petitioner further submits that as per the notification issued by the Medical Council of India (MCI) dated 1.7.2002, an amendment was issued to the effect that grace marks upto a maximum of five marks can be awarded to a student, who had failed only in one subject, but had passed in all the other subjects. The petitioner claims to be entitled to the benefits of the said amended regulation and contends that her request for re-totalling of the examination conducted during December 2001 in a proper manner and she having secured only three marks less for a pass, she would have got the benefit of five grace marks. Though she had answered all the questions correctly, the evaluation should have been erroneous either by oversight or due to under valuation. The yearly fees of the petitioner works out to more than Rs.75,000/- and she had already lost one year. She had secured good marks in the other subjects viz., Anatomy and Bio-Chemistry. Therefore the petitioner has prayed for a Mandamus for the production of her answer papers 1 and 2 in Physiology for the examination held for the first year M.B.B.S during December 2001 and May 2002, for verification of the marks and for consequential benefits.

3. In the counter, the Controller of Exams, the first respondent University contends that in each subject against the maximum of 200 marks, a candidate is required to secure 100 marks for a pass. This is also subject to securing a minimum of 70 marks (out of 140) in theory, and 30 marks (out of 60), in the practicals.

4. In the examination held during December 2001, though the petitioner had secured a total of 116 marks, in Physiology she had secured only 67 marks in theory and 49 marks in practicals and thus short of three marks in theory.

In the examination held during May 2002 also, though she had secured a total of 101 marks, she had secured only 57 in theory and 44 in practicals.

5. The respondents proceed further stating that in response to the request of the petitioner for re-totalling of the marks for the December 2001 examination, the University by its letter to the second respondent College dated 30.5.2002 had informed that there was no change of marks after re-totalling. The claim by the petitioner that the amended regulation for the grant of grace marks which came to be issued on 1.7.2002 should be applied for the examination conducted during December 2001, cannot be sustained. A perusal of the answer papers of the petitioner reveals the poor standard of performance by the petitioner and hence she cannot as a matter of right claim to be awarded with the grace marks. Grace marks are intended only to give the benefit of over lapping views as between the examiners, considering that two internal examiners and two external examiners correct the papers and the final marks are arrived at by a consensus at a meeting of the Board of examiners. Therefore the petitioner is not entitled to the relief.

6. Miss. R. Vaigai, appearing for the petitioner, contends that the request of the petitioner for re-totalling of the marks for the examination held during December 2001, was unnecessarily delayed by the first respondent who had intimated the second respondent only on 31.5.2001. The petitioner who was anxiously awaiting the announcement of the result of her request for re-totalling, had to take up the examination held during May 2002 as there was no other alternative left to the petitioner. This situation led to comparatively poor performance by the petitioner in May 2002 examination. She would further submit that the benefit of the amended regulation should be made applicable to the petitioner also. Under normal circumstances, the petitioner would not have chosen to write the examination during May 2002. But as per regulation, a student awaiting for the result of her request for re-totalling of the marks, should attend the following examination in the failed subject. Therefore the fact she had attended the next examination cannot be put against her, while considering her entitlement to the benefit of the grace marks.

7. Learned counsel would further state that the claim of grant of grace marks is a beneficial regulation and should be construed so as to give retrospective effect. The amended regulation is more declaratory in nature and should be interpreted liberally. Reliance is also placed on the following judgments:-

An accused was convicted by the Magistrate, Gurgaon District, on 31.5.1962. The appeal before the Additional Sessions Judge was dismissed on 22.9.1962 and Revision before the High Court was also dismissed on 27.9.1962. In the meantime, the provisions of the Probation of Offenders Act, 1958 was extended to the area concerned. The question arose as to whether the benefit can be applied to the case of the petitioner in Rattan Lal Vs. State of Punjab, . The Supreme Court held that when the appeal was pending before the Appellate Court, the provisions of the Act were made applicable and hence the rule of beneficial construction has to be applied. The accused was held to be entitled to the benefits of the Act.

In Boucher Pierre Andre Vs. Superintendent, Central Jail, Tihar, New Delhi and Another, , the Supreme Court had to deal with Section 428 Crl. P.C., giving the benefit of set-off of the period of detention prior to the conviction and whether the said provision could be given retrospective effect. Though the Supreme Court did not specifically rule that retrospective effect could be given, it was held that the provision would certainly apply to the convicts whose sentence yet remain to be served.

In R.L. Marwaha Vs. Union of India (UOI) and Others, , the Supreme Court dealt with Office Memorandum issued in the year 1984 by the Government of India, granting the benefit of counting the period of service in the Government for calculating pensionary benefits in respect of all employees who had later gone on deputation to autonomous bodies. The question which arose for consideration is as to whether the benefit of the Office Memorandum could apply to employees who had retired even before the issue of Office Memorandum. The Supreme Court rejected the contention of the Central Government that the Office Memorandum being only a concession, should be given only prospective effect and held that there was no justification to discriminate among Government Servants on the basis of date of retirement.

In M. Venkateswarlu and Others Vs. Govt. of A.P. and Others, , the scope of Rule 47 of A.P. State and Subordinate Service Rules, giving power to the Governor to relax the conditions for promotion under the general rules arose for consideration. The Supreme Court held that in the nature of power to be exercised, justice can be done only by exercising the power retrospectively and otherwise the object and purpose of the rule would be largely frustrated.

In Dhannalal vs. D.P. Vijayvargiya (1997) I L.W. 190 , the Supreme Court considered the effect of the deletion of Section 166 (3) of the Motor Vehicles Act, 1998. The said provision imposed a period of limitation for the filing of the claim petition and by a subsequent amendment to the Act, Section 166(3) was deleted. The Supreme Court held that the benefit of the deletion of the limitation should be made available to all cases which were pending as on the date, considering the beneficial object behind the amendment.

Section 45-B of the Employees'' State Insurance Company Act, 1968 which was inserted in the Act later, enabled the recovery of contribution payable under the Act as arrears of land revenue. The said provision was brought into force on 28.1.1968, whereas the amount which was sought to be recovered became payable on 27.1.1967. In Employee''s State Insurance Corporation Vs. Dwarka Nath Bhargwa, , the Supreme Court held that it was only a procedural provision and would also apply to cases of contributions which had remained unpaid even prior to the date on which the Section came into force.

8. Mrs. G. Thilagavathi appearing for the first respondent University contended that the petitioner cannot seek the benefit of the amended regulation granting five grace marks with retrospective effect. The regulation came into force much later after the examination had been conducted during December 2001 and the results had also been published. The performance of the petitioner in the subject of Physiology was found to be bad not only in the said examination but also in the following examination held during May 2002.

9. Mr. A. Sasidharan, counsel for M.C.I placed before the Court, a copy of the proceedings which led to the amended regulation which came into force on 1.7.2002 directing that grace marks of five can be given to a candidate who has failed in one paper and was short of marks less than five and had passed all the other papers.

10. I have considered the submissions of both sides.

11. The factual background of this case as shown below are admitted by both sides. Though the petitioner had passed in two subjects, she had failed in physiology as she had secured only 67 marks in theory as against the required minimum of 70 marks, even though she had secured a total of 116 as against the minimum of 100 marks required for a pass. It is also not disputed that the petitioner had applied in time for re-totalling. The first respondent had communicated to the College only on 30.5.2002 that the re-totalling also confirmed the same marks. It is also admitted in the counter that the petitioner had appeared for the next examination held in May 2002 only due to the compulsory requirement that a candidate who had sought for re-totalling and awaiting the results of the same, she should appear for the next examination in the failed subject. The following observation in the counter affidavit is relevant:-

"She sought for re-totalling along with the other students by making representation on 8.3.2002. In this regard it is relevant to submit under the instructions towards the conduct of examination for the Medical Course even while a student seeks for re-totalling for an examination undertaken by him/her without awaiting the results of the re-totalling, a student is required to undergo the failed subject and thereupon appear for arrears in the forthcoming examination. Only under such circumstances the petitioner herein had undertaken her May 2002 examinations".

Therefore the fact that the petitioner had appeared for the subsequent examination held during May 2002 cannot be put against her for considering as to whether she is entitled to the grace marks for the examination held during December 2001.

12. On 1.7.2002, the M.C.I Regulations on Graduate Medical Education 1997 were amended in exercise of the powers conferred u/s 33 of the Indian Medical Council Act 1956. The said amendment is as follows:-

1. (1) These regulations may be called the "Graduate Medical Education (Amendment) Regulations, 2002".

(2) It shall come into force on the date of their publication in the Official Gazette.

2. In the Regulations on Graduate Medical Education, 1997, in regulation 13, after sub-regulation (9), the following sub-regulation shall be inserted, namely:-

"(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"

13. The question which arises for consideration is as to whether the benefit of the above notification can be given effect to the case of the petitioner who had appeared for the examination during December 2001 and the petitioner''s application for re-totalling had been rejected on 30.5.2001. It is true that the various decisions cited above on behalf of the petitioner emphasises the need to adopt the rule of beneficial construction while interpreting the provisions which intend to confer certain rights and benevolence to the citizen. But at the same time, a particular feature is to be noted in all those cases (except one judgment referred to below) viz., when the new Act or Regulations came into force, some proceeding or other was pending before the Appellate Authorities or before the Courts. In the case of Employee''s State Insurance Corporation Vs. Dwarka Nath Bhargwa, , the E.S.I Contribution remained unpaid after the new provision u/s 45-B of the E.S.I Act had come into force. It is only in the said background, the Court held that in such cases, the benefit should be extended to pending cases and pending claims.

14. It is only in one of the above stated cases, the need for pendancy of any proceeding was not found to be imperative viz., in the judgment reported in R.L. Marwaha Vs. Union of India (UOI) and Others, , which dealt with grant of benefits in quantifying retiral benefits and it was held that the modified rule will be applicable also to persons who had already retired from service.

15. The background in which the present amendment to the regulation for the grant of five grace marks was made, bear certain peculiar features which would justify the extension of the benefit to the petitioner also. A perusal of the file produced by the second respondent reveals that even long before the present amendment was carried out, as early as during March 1981, the M.C.I had recommended the provision for five grace marks where the candidate had failed only in one subject but has passed in other subjects. The M.C.I had also adopted the recommendation. But as a result of not communicating the same and implementing the same, a confusion prevailed among all the Universities being faced with not only the representations from the student community but also cases before Courts. The following letter from Rajiv Gandhi University of Health Sciences, Karnataka dated 3.6.1999 reveals the said facts:-

"With reference to the above, I am directed to bring to your kind notice that Medical Council of India recommendations on graduate Medical Education adopted in March 1981 specifically provided provisions for award of grace marks. I reproduce the provisions for your ready reference:

IX. 9. "Grace marks upto a maximum of 5 may be awarded at the discretion of the University for a student who has failed only in one subject but has passed in all the subjects".

But the MCI regulations on graduate Medical Education 1997 has no mention of the same. The University has implemented the regulations of 1997 for admissions made from 1997-98 onwards. You may please recall that the duration of the pre-clinical phase which was 18 months earlier has been reduced to 12 months now. The University is receiving representations repeatedly for the award of grace marks which was in existence in earlier scheme. Against this back ground, I am directed to request you whether MCI is not in favour of award of grace marks to the batches of students under regulation of 1997 or whether the discretion of award of grace marks is fell to the University concerned. Kindly let us know the views of the MCI on this very important matter so that the University can take appropriate decision at the earliest".

16. This was followed by consideration of the issue as item No. 19 in the Executive Committee meeting on 2.2.2000 and the proposal was placed before the Committee as follows:-

"The Executive Committee at its meeting held on 16.6.1999 considered the letter dated 3.6.1999 received from the Registrar, Rajiv Gandhi University of Health Sciences who had requested for a clarification whether grace marks upto maximum of five may be awarded at the discretion of the University, for a student who has failed only in one subject but has passed in all the subjects. Since there is no such provision in the 1997 regulations of the Council on Graduate Medical Education notified in the Gazettee of India on 17.5.1997, the Committee decided to obtain observations from the other Universities having the medical colleges affiliated to them.

On receipt of the observations from certain Universities the matter was placed before the Executive Committee at its meeting held on 4.11.1999 wherein it was decided that the remaining Universities from which no observations/comments have been received may be reminded. Accordingly, letters were issued to the remaining Universities on 7.12.1999. In the letter it was also pointed out that in case no reply is received on or before 25.12.1999, it will be presumed that they have no comments to offer. The responses received from the Universities so far are given in the annexure.

It is brought to the notice of the Executive Committee that a number of students filed writ petitions in different High Courts relating to the award of grace marks by the University concerned. The Council Advocate at Bangalore intimated that the Hon''ble High Court of Karnataka desired that the MCI may step into the aid of issue so that there should be a uniform pattern evolved for the award of grace marks by the Universities in the Country.

The matter is placed before the Executive Committee for its consideration".

17. After discussion, the following resolution was passed:-

"19. Graduate Medical Education Regulations, 1997 - Award of Grace Marks to MBBS students:-

Read : The matter with regard to award of Grace Marks to MBBS students by the Universities.

The Executive Committee considered the matter with regard to award of grace marks to MBBS students along with the observations received from the various Universities and decided to recommend to the Council that the following provision may be made in the Regulations of the Council on Graduate Medical Education, 1997:

"Grace marks upto a maximum of 5 may be awarded to the candidate provided he has failed only in one subject of the concerned professional examination".

18. This resolution was also endorsed by the general body on 31.3.2000 as item No. 20 of the Agenda as follows:-

"20. Graduate Medical Education Regulations, 1997 - Award of Grace Marks to MBBS students:

Read:- the matter with regard to award of Grace Marks to MBBS students by the Universities.

The Council considered the recommendations of the Executive Committee and after discussions and suggestions put forward by various members, approved the following:-

"The Graduate Medical Education Regulations, 1997, may be amended to include the following provision in Chapter 12 relating to "Examination Regulations" and sent to the Central Government for approval:-

"Grace marks upto a maximum of five (5) marks may be awarded at the discretion of the University for a student who has failed only in one subject but has passed in all the other subjects".

19. However, for whatever reason which does not appear from the records, it was notified only on 1.7.2002 and the gazette notification of the amendment was published on 2.7.2002. The amendment has already been extracted in para 12 above.

20. The above facts establish that there was already a recommendation to the same effect which was adopted by the M.C.I as early as in March 1981 itself but had not been uniformly applied. This was when the M.C.I Regulations had not been framed. M.C.I Regulations were framed in the year 1997 and the discrepancy was noted in the year 1999 itself. This was followed by a resolution by the Executive Committee on 2.2.2000 and ratified by the general body on 1.3.2000. For reasons best known to the authorities, it was notified only on 1.7.2002. It is pertinent to point out that M.C.I is an autonomous body and the process of notification and publication of the resolution is only a ministerial Act. It cannot be compared with Acts of legislature where the legislature itself mandates that the Act or Rule shall take effect only from the notified date. Neither the resolution of the Executive Committee on 2.2.2000 nor of the general body dated 1.3.2000 envisage effect being given only on and from a future date or notified date. The plight of the students cannot be left at the mercy of the indifference, lethargy and delay on the part of the executive wing of the M.C.I to notify the mandate of M.C.I. The regulation being a beneficial one, the issue requires a sympathetic and liberal approach of interpretation. Even ignoring the policy of the M.C.I adopted as early as during March 1981, which was implementable even in the absence of formulated regulations, the M.C.I should have at least incorporated the same even when the regulations were formulated in 1997. A series of delayed action on the part of the M.C.I and its executive wing had led to uncertainties and the intended benefit not reaching the student community. This situation should have been avoided.

21. Therefore, I am inclined to hold that the benefit of the amendment should be extended at least with effect from 1.3.2000 when the general body had adopted the resolution. But at the same time, it is necessary to ensure that this interpretation cannot be resorted to be taken advantage of and cited as a precedent by individuals who have not chosen to assert their rights promptly and have also appeared for the subsequent examinations. Here is a case where the petitioner had appeared for the subsequent examination only as she was compulsorily required to do so as admitted by the respondents themselves. Therefore having regard to the peculiar facts and circumstances of this case, the petitioner''s claim requires to be considered sympathetically.

22. With the result, the writ petition is allowed as prayed for. No costs. Consequently, connected WPMP No. 56423 of 2002 is closed.