Mohammed Nias C.P., J
1. The petitioner is a second-year MBBS student at P.K. Das Institute of Medical Sciences, Vaniyamkulam, in Palakkad District. The classes for the
second year started in April 2023, and the results of the first-year examinations were published on May 10, 2023. The petitioner could not clear the
subject 'Human Anatomy'. A supplementary examination referred to as 'Say' was conducted three weeks after the commencement of the second-
year classes and when the petitioner was attending the same till 3rd July 2023. The petitioner submits that she had joined the course in the year 2020,
but the classes started only in 2021 when they should have normally started in August 2020. The COVID-19 pandemic was the reason for the delay in
starting the course; accordingly, the first-year final examination was conducted only in February 2022. The petitioner could not clear the
supplementary examination as well, and accordingly, she attended the classes with the junior students and wrote the examination again. A true copy of
the examination results along with the score sheet issued by the first respondent University is Ext.P1.
2. The petitioner, aggrieved by the marks given to her, raised a grievance before the first respondent University, which accepted the same following
the recommendations from the college and ordered a fresh revaluation by the evaluators from the University who had not evaluated the paper earlier.
Pursuant to Ext.P2, results were published on 20.10.2023, a copy of which is marked as Ext.P3, where again the petitioner was declared 'failed' in the
Human Anatomy paper. A student gets four chances only to clear the papers. The petitioner submits that as per communication dated 1.9.2023 issued
by the National Medical Commission, considering the Covid pandemic and as classes could not be conducted in full stream, amended the existing
regulations and held that 'subjects that have two papers, the learned must secure a minimum of 40% of marks in aggregate' replacing the earlier 50%
of the marks aggregate'. Considering the queries raised by the students, Ext.P5 was provided by the National Medical Commission. The petitioner
contends that as per Ext.P4, the pass percentage is declared as 40%, and therefore, the amendment applies to the petitioner, and her results declared
on 20.10.2023 must be in tune with the amendment that came into force with effect from 1.8.2023. However, the petitioner was still declared as
'failed', for which the petitioner submitted Exts.P6 and P7 representations. In these circumstances, the petitioner prays for a declaration that she has
passed the first year MBBS examination under the first respondent University going by the amended Ext.P4 regulation and also to allow the petitioner
to continue to attend the classes for the second year MBBS course.
3. The University has filed a statement contending that the fresh valuation was conducted and the original pass criteria of the examination concerned
apply to the fresh valuation also. It is contended that Ext.P4 is applicable only for the examinations notified after 1.8.2023, and the same has been
clarified by the National Medical Commission as well. The norms applicable when the examination was notified are relevant and not while preparing
the result sheet by the University. If the petitioner took the examination based on old rules, the new notification will not apply to the petitioner.
4. A memo has been filed on behalf of the third respondent National Medical Commission producing Ext.R3(a)dated 3.10.2023, which held that there
is no retrospective effect to the notification dated 1.9.2023.
5. Heard Sri. Sri.K.Ramakumar the learned senior counsel for the petitioner, assisted by Sri. T.Ramprasad Unni, Sri.P.Sreekumar, the learned
standing counsel for respondents 1 and 3 and Sri.K.S.Prenjith Kumsr, the learned standing counsel for the third respondent.
6. It is undisputed that the petitioner had appeared for the examination before the issuance of Ext.P4. However, the results were revalued after the
notification came into existence. Learned senior counsel argues that Ext.P4 deals with fixing minimum marks for the pass, which has to be after the
examination and therefore, Ext.P4 applies on all fours to the petition. The contention of the respondents that Ext.P4 notification has no retrospective
cannot be accepted.
7. Learned senior counsel for the petitioner also brings to my notice the judgment of this Court in WP(C)No.34075/2023 dated 1.10.2023, wherein the
candidate appeared for the supplementary examination in July 2023, and the results were published on 30.9.2023. This Court considered the rival
submissions and held that the amendment has to be prospectively applied to all cases where the examinations are held after the amendment and the
Pass Board meets to decide on the result. The application cannot be restricted on the basis of the notification of the examination. In that case, also the
University contended that the amendment will apply only to examinations that are notified after the amendment. The relevant portion of the judgment
is extracted hereunder:
“4 xxxxxxx
The learned Standing Counsel for the University contends that the amended notification will apply only to examinations which are notified after the amendment.
5. The contention raised by the Standing Counsel for the 4th respondent cannot be countenanced. The amendment had to be prospectively applied to all cases where
the examinations are held after the amendment and the Pass Board meets to decide on the result. The application cannot be restricted on the basis of the notification
of the examination.â€
8. In short, the crucial question is whether, for the application of Ext.P4 notification, the date of the examination or the date of valuation of the answer
sheets is relevant. Learned senior counsel argues that Ext.P4 notification concerns fixing of marks, which determines whether a candidate passes or
fails and therefore, the notification only concerns the valuation and does not have a bearing on the date of examination. On going through Ext.P4 and
also the judgment referred, I find considerable force in the argument on behalf of the petitioner. Maybe the petitioner takes advantage of Ext.P4 as it
applies from 1.8.2023, and the result published after that must be in tune with Ext.P4 notification. The stand of the NMC that it is prospective also
does not militate against this position. Accordingly, the writ petition is allowed. It is declared that the petitioner has passed the first year MBBS
examination in tune with Ext.P4, and she shall be permitted to attend the classes for the second year MBBS examinations. The University will issue
consequential orders forthwith.
The writ petition is allowed as above.
