Full Judgment Text
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CASE NO.:
Appeal (civil) 3883 of 2006
PETITIONER:
Maharashtra University of Health Sciences
represented by Deputy Registrar
RESPONDENT:
Paryani Mukesh Jawaharlal & Ors.
DATE OF JUDGMENT: 01/06/2007
BENCH:
R.V. Raveendran & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
R. V. RAVEENDRAN J.
The common judgment and order dated 23.6.2006 of the Bombay
High Court in Writ Petition (L) No. 887 of 2006 and connected cases is
under challenge in this appeal by special leave. The appeal relate to the
interpretation of Regulation 12 (2)& (4) of "Regulations on Graduate
Medical Education 1997" framed by Medical Council of India (for short
’MCI Regulations’). The description of appellant is permitted to be corrected
by showing the Deputy Registrar as representing the Appellant University,
instead of the Deputy Registrar of the Appellant University being shown as
the appellant.
2. The appellant-University (referred as ’the University’) was established
under the Maharashtra University of Health Sciences Act, 1998. The private
respondents (’students’ for short) are prosecuting MBBS course in different
Medical Colleges affiliated to the University. They appeared for the III
MBBS Part II examination conducted by the University in December, 2005.
The subjects were General Medicine, General Surgery, Obstetrics &
Gynaecology and Paediatrics. The results were published on 18.2.2006. The
students were shown as having failed in one or more subjects and as a
consequence, as having failed in the examination. Feeling aggrieved, they
filed writ petitions before the Bombay High Court. They contended that the
standards or criteria for passing adopted by the University were contrary to
the MCI Regulations; that on the marks obtained by them, they ought to
have been declared as having passed in the subjects; and that the University
had shown them as ’failed’ by applying Clauses 56(2) and 57 of the
Amended University Ordinance 1/2002 which wrongly interpreted clauses
(2) and (4) of Regulation 12 of the MCI Regulations. They, therefore, sought
a declaration that clauses 56(2) and 57 of the University Ordinance 1 of
2002 and the consequential University Notification No.5 of 2006 dated
20.2.2006 were illegal and ultra vires the Indian Medical Council Act, 1956,
that is Regulation 12 of MCI Regulations framed under section 33 of the
said Act. They also sought a direction for re-determination of their results in
the failed subjects by applying and adopting the procedure prescribed in
regulation 12 of MCI Regulations and declare them as having passed in the
subject/s and consequently the examination. In the said writ petitions, the
University, the Medical Council of India (’MCI’ for short) and the Medical
Colleges were impleaded as respondents.
3. The High Court allowed the writ petitions by common judgment dated
23.6.2006. It held that clauses 56(2) and 57 of amended University
Ordinance 1 of 2002 is illegal and void being inconsistent with and violative
of MCI Regulation 12. It also held that MCI Regulation No.12(4) will have
to be read and understood in the manner clarified by MCI, in its letter dated
17.9.2002. It directed the University to recalculate the marks based on the
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MCI’s clarification of its Regulation 12(4). The said decision is challenge by
the University in this appeal.
Relevant provisions :
4. In exercise of the powers under section 33 of the Indian Medical
Council Act 1956, the Medical Council of India with the previous sanction
of the Central Government made the "Regulations on Graduate Medical
Education 1997’. Chapter IV of the Regulations relates to examinations. We
extract below relevant portions of Regulation 12 dealing with examinations:
12. Examination Regulations.
Essentialities for qualifying to appear in professional examinations.
The performance in essential components of training are to be
assessed, based on:
(1) Attendance :
75% of attendance in a subject for appearing in the examination is
compulsory inclusive of attendance in non-lecture teaching i.e.
seminars, group discussions, tutorials, demonstrations, practicals,
Hospital (Tertiary, Secondary, Primary) postings and bed side
clinics, etc.
(2) Internal Assessment :
(i) it shall be based on day-to-day assessment (see note),
evaluation of student assignment, preparation for seminar,
clinical case presentation etc;
(ii) regular periodical examinations shall be conducted
throughout the course. The question of number of
examinations is left to the institution;
(iii) day-to-day records should be given importance during
internal assessment;
(iv) weightage for the internal assessment shall be 20% of the
total marks in each subject;
(v) student must secure at least 35% marks of the total marks
fixed for internal assessment in a particular subject in order
to be eligible to appear in final university examination of
that subject.
Note :
Internal assessment shall relate to different ways in which students
participation in learning process during semesters is evaluated.
Some examples are as follows :
x x x x x
(3) University Examinations :
Theory papers will be prepared by the examiners as prescribed.
Nature of questions will be short answer type/objective type and
marks for each part indicated separately.
Practicals/clinicals will be conducted in the laboratories or hospital
wards. Objective will be to assess proficiency in skills, conduct of
experiment, interpretation of data and logical conclusion. Clinical
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cases should preferably include common diseases not esoteric
syndromes or rare disorders. Emphasis should be on candidate’s
capability in eliciting physical signs and their interpretation.
Viva/oral includes evaluation of management approach and
handling of emergencies. Candidate’s skill in interpretation of
common investigative data, x-rays, identification of specimens,
ECG, etc., also is to be evaluated.
The examinations are to be designed with a view to ascertain
whether the candidate has acquired the necessary proficiency for
knowledge, minimum skills along with clear concepts of the
fundamentals which are necessary for him to carry out his
professional day to day work competently. Evaluation will be
carried out on an objective basis.
x x x x x
(4) Distribution of marks to various disciplines :
(A) First professional examination (Pre-clinical subjects) :
(a) Anatomy :
Theory - Two papers of 50 marks each 100 marks
Oral (Viva) 20 marks
Practical 40 marks
Internal Assessment
(Theory-20; Practical-20) 40 marks
-------------
TOTAL 200 marks
=========
(b) xxxxxxx
(c) xxxxxxx
Pass : In each of the subjects, a candidate must obtain 50% in
aggregate with a minimum of 50% in Theory including orals
and minimum of 50% in Practicals.
Clause (4) of MCI Regulation 12 sets out the distribution of marks to
various disciplines and the Heads of Passing in each subject, in respect of
the examinations relating to First Professional, Second Professional, Third
Professional Part-I, and Third Professional Part-II. We have extracted only a
portion of clause (4) relating to the distribution of marks in regard to one
subject -- "Anatomy" (which is a first MBBS subject) by way of illustration.
5. When a doubt was raised about the manner of giving effect to MCI
Regulation 12(4), MCI by its letter dated 17.9.2002, addressed to a Medical
College in Kerala, gave the following clarification:
"It may be observed from the above that out of the total of 200 marks for
the subject of Anatomy, 40 marks i.e. 20% of the total marks have been
provided for internal assessment (theory - 20 marks and practical - 20). As
regards the candidate obtaining 50% in Theory including orals and
minimum of 50% in practical prescribed under "distribution of marks of
various disciplines", it may be pointed out that so far as Anatomy is
concerned, a student has to obtain a minimum of 70 marks in theory out of
a total of 140 marks (100+20+20=140) and a minimum of 30 marks out of
a total of 60 marks in practical (40+20). Further, the student has also to
obtain a minimum of 50% of marks in internal 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
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examination as per the regulations."
6. Ordinance 1 of 2002 (amended) of the University regulates the
conduct of examinations by the University. The relevant clauses of the said
Ordinance are extracted below :
"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)
xxxxxxxx
56.3. The candidate to be eligible to pass in a subject shall pass in all
heads of passing in the respective subject in the same attempt.
"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 passing heads of the respective subject."
7. The university issued the following Notification No. 5 of 2006 dated
20.2.2006 regarding the standard of passing/Heads of passing for MBBS
course :
"Based on Medical Council of India Notification No.164 dated
16th October, 2003 and Hon’ble High Court Ruling dated
12/12/2003, standard of passing as prescribed in Rule 57 of
Ordinance 1/2002 (Amended) for passing in Internal
Assessment Head with thirty five percent marks is mandatory to
appear in University Level Examintion (Theory, Practical &
Oral) in the respective subject.
’Head of Passing’ and ’Standard of Passing’ will be as under :-
Head of Passing Standard of Passing
(A) THEORY + ORAL 50% MARKS.
(B) PRACTICAL/CLINICAL 50% MARKS.
(C) INTERNAL ASSESSMENT 35% MARKS
(THEORY + PRACTICAL) (For Eligibility)
(Refer Notification No.9/2006)
(D) AGGREGATE OF ALL THE 50% MARKS
ABOVE MENTIONED HEADS
OF PASSING"
Stand of the University :
8. The University contends that clause (4) of MCI Regulation No. 12, is
clear and unambiguous. It requires a candidate, to pass in a subject, to obtain
a minimum of (a) 35% in internal assessment (for eligibility), (b) 50% in
Theory including Orals, and (c) 50% in Practicals, and (d) 50% in the
aggregate. According to the University, in respect of a subject where the
maximum marks are 200 (break-up being Theory 100, Oral 20, Practicals
40, Internal Assessment 40 made up of 20 for Theory and 20 for Practicals),
a student to pass in the subject, should after becoming eligible by securing
35% in internal assessment, appear in the University examination and secure
a minimum of 60 marks out of 120 marks in Theory plus Oral, and minimum
of 20 marks out of 40 marks in the Practicals. He should also secure 100
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marks out of 200 marks being the aggregate of University examination
(externals) and internal assessment. It is contended that only the marks
secured in the University examination (Externals) should be considered for
ascertaining whether a candidate has secured the required minimum marks
in Theory (plus Orals) and Practicals; and that the internal assessment marks
for Theory and Practicals cannot be clubbed with the marks secured in the
external examination relating to Theory (plus Orals) and Practicals to find
out whether a student has passed under the head of Theory (plus Orals) and
the head of Practicals. It is submitted that the internal assessment marks are
relevant only for providing eligibility for University examination and for
purpose of passing under the head of aggregate. It is pointed out that Rule
12(4) requires the candidate to secure 50% in "Theory including Orals" and
not 50% in "Theory, including Orals and internal (Theory)". Similarly Rule
12(4) requires a minimum of 50% in "Practicals" and not "Practical plus
internal (practicals)". It is contended that if the MCI Regulations had
intended that the internal assessment marks should be clubbed with the
external examination marks, Regulation 12(4) would have specifically stated
that the candidate has to secure minimum of 50% in ’Theory including Orals
and Internal (Theory)’ and minimum of 50% in ’Practicals including Internal
(Practicals)’. It is pointed out that where the marks were to be clubbed
together, the Regulation Making Authority had specifically made a provision
for such clubbing. For example, in respect of the head of passing of
"Theory", the Regulation Making Authority has specifically indicated that
’Orals’ marks should be clubbed with Theory marks. The submission of the
University is that when MCI has deliberately omitted and excluded internal
assessment marks for passing under the head of Theory (plus orals) and
Practicals, it is impermissible to include them under those heads, as
contended by the students and by MCI. It is submitted that clauses 56(2) and
57 of amended University Ordinance No.1/2002 merely give effect to MCI
Regulation No.12(4) and the said clauses of the University Ordinance are
not inconsistent with MCI Regulation No.12(4).
9. The University also contends that the intention of the Regulation
Making Authority is to give the dominant and pre-eminent position to the
University examination, because the students are assessed by external
examiners in an objective manner. On the other hand, as the internal
assessment is done by the faculty of the Medical College where the
candidates are students, an element of subjectivity is likely to creep in.
Therefore, the weightage for internal assessment has been restricted to only
20% of the total marks under MCI Regulation 12(2)(iv). It is pointed out that
if MCI Regulation 12(4) is interpreted in the manner suggested by the
students, instead of maintaining the ratio of 4:1 (that is 80:20), the ratio
between external examination marks and internal assessment marks would
become 2:1 (that is 40:20) in regard to Practicals, which is not intended. It is
submitted that any process or method which dilutes the external assessment
result by addition of internal assessment marks, is to be avoided. It is further
submitted that Regulation 12(4) contemplates and requires a candidate
should pass under distinct heads firstly by securing 35% in internal
assessment, then by securing minimum of 50% in the external examinations,
that is Theory (plus Orals) and Practicals, and lastly by securing 50% of the
aggregate (of externals and internals). This means that internal assessment
marks are to be clubbed with the examination marks only under the head of
aggregate; and for finding out whether the student has passed in Theory
(plus Orals) and Practicals, only the University examination (external) marks
are to be considered. It is contended that a candidate who fails in the external
examination (either Theory or Practicals) by not securing the minimum of
50%, cannot be permitted to pass the subject by borrowing from the internal
assessment marks when there is a likely chance of internal assessment marks
being liberally granted by the college faculty. The high marks that is
normally associated with internal assessment, if given undue prominence in
assessing the overall performance, may defeat and dilute the very
examination process by enabling failed students to pass the examination. It
is submitted that the students (the writ petitioners) having failed on being
assessed in the manner provided under Regulation 12(4) made explicit under
clauses 56(2) and 57 of amended University Ordinance 1/2002 cannot be
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permitted to contend that they have passed the subject by putting forth a
wrong interpretation of MCI Regulation 12(4).
10. It is submitted that the clarification relating to MCI Regulation 12(4),
in the letter dated 17.9.2002 by some official of MCI, cannot be treated as a
clarification by MCI as the Regulation Making Authority. It is further
submitted that such clarification cannot be used to defeat the purpose and
intent of the Regulation 12(4). Lastly, it is submitted that where the MCI
Regulation is capable of more than one interpretation, the interpretation that
is chosen by the University for formulating its examination Ordinance
should prevail, as University has an equal stake in determining the quality
and content of its examination.
Stand of the students (supported by MCI):
11. Respondents submit that each subject has a Theory segment and a
Practicals segment and each of those segments is subjected to two types of
assessment: an external assessment (by way of University examination) and
an internal assessment (by the college faculty). Regulation 12(4) requires a
candidate to obtain minimum of 50% in Theory, which means ’Theory
(external and internal)’ and not merely ’Theory (external)’. Similarly, when
Regulation 12(4) requires minimum of 50% marks in ’Practicals’, it means
’Practicals (external and internal)’ and not merely ’Practicals (external)’.
While interpreting the words ’Theory’ and ’Practicals’, the internal
assessment part cannot be omitted or ignored. As Theory (internal) forms
part of ’Theory’ and ’Practicals (internal)’ forms part of ’Practicals’, they were
not specifically mentioned in the criteria for passing stated in MCI
Regulation 12(4). Only when something which did not form part of ’Theory’
had to be included, as for example - ’Orals’, it was necessary to mention it as
an item to be included. It is, therefore, contended that for ascertaining
whether a student has passed in a subject by securing the minimum of 50%
in ’Theory including Orals’, the assessment should be with reference to
’Theory - both external and internal as also Orals’, and similarly, for
Practicals, the assessment should be with reference to ’Practicals -- both
external and internal.
12. Learned counsel for MCI supported the interpretation put forth by the
students. He contended that in Medical education, internal assessment is an
important feature. Therefore MCI Regulations made final assessment of
performance of a student, a blend of external assessment and internal
assessment, by providing a weightage for internal assessment at 20% of the
total marks in each subject. Consequently such weightage should be
incorporated under all three heads of passing, namely (i) aggregate, (ii)
Theory including orals, and (iii) Practicals. If internal assessment is to be
excluded and only the performance in the University examination is to be
considered for passing in Theory or in Practicals, it would amount to
denying the weightage for internal assessment provided in MCI Regulation
12(2)(iv). It is submitted that the University’s interpretation of Regulation
12(4) as manifested in Rule 56(2) and 57 of the amended University
Ordinance 1/2002, violates Regulation 12(2)(iv) and 12(4) of the MCI
Regulations.
High Court’s view
13. The High Court has accepted the interpretation put forth by the
students, as the clarification given in MCI’s letter dated 17.9.2002 (extracted
in para 5 above) supports the said interpretation. The High Court felt that
when the Authority which made the sub-ordinate legislation clarified the
meaning of a Rule or Regulation made by it, it should be accepted by the
courts unless the resulting interpretation is absurd on contrary to the
language of the regulation. The High Court therefore neither examined the
purpose of the regulation or the wording of the regulation.
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14. The High Court had on an earlier occasion considered the very issue
relating to the validity of clauses 56(2) and 57 of amended University
Ordinance 1 of 2002 in Sheetal A. Abhyankar vs. Maharashtra University of
Health Sciences [WP No. 5725 of 2003 and connected cases decided on
12.12.2003]. There also the MCI had supported the contention of the
students. The High Court had negatived the said contention and held that
clauses 56 and 57 were in consonance with MCI Regulation 12. The High
Court held :
"Apart from the fact that there is no inconsistency with Regulation 12, it
will be seen that wherever the Medical Council of India or University
desired to club certain assessment, have specifically provided for the
same. Regulation 12 specifically provides while dealing with the final
examination that in order to pass in each subject the candidate must obtain
50% in aggregate with minimum of 50% in theory including orals and
minimum of 50% in practical/clinical. The council wherever intended to
include something it specifically provided for it \005\005."
It proceeded to hold that a student must obtain 50% in theory including orals
and 50% in practicals/clinicals and inclusion of internal assessment marks
was impermissible. Unfortunately, the earlier decision in Sheetal
A.Abhyankar was not followed by a co-ordinate Bench in the judgment
under appeal. Two reasons are given for not following the earlier decision.
The first is that the minimum internal assessment marks required for
becoming eligible to take the final examination had been reduced from 50%
to 35% by amendment to MCI Regualtion 12(2)(v) vide Notification dated
15.10.2003. The second is that MCI had given a clarification regarding the
manner of giving effect to Regulation 12(4) on 17.9.2002 which permitted
clubbing of internal assessment marks with the external examination marks,
for the passing head of ’Theory with Orals’ and ’Practicals’, and the said
clarification by MCI had been accepted by the Kerala High Court in K.
Fahad Mohamed vs. Calicut University [WA No. 1777 of 2002 decided on
25.9.2002] and other cases. We find that neither of the two reasons given by
the High Court in the judgment under appeal for not following its earlier
decision in Sheetal A.Abhyankar is valid. The amendment to Regulation
12(2)(v), reducing the eligibility marks in internal assessment from 50% to
35%, was specifically noticed in para 16 of the earlier judgment. Similarly
the clarification by MCI supporting the interpretation put forth by the
students was also noticed, though the letter dated 17.9.2002 as such was not
referred. Both the two contentions were considered and rejected. Merely
because the Kerala High Court had accepted the clarification of the MCI, the
Bombay High Court could not have ignored a binding precedent of a co-
ordinate Bench. If it wanted to take a different view, judicial propriety
required that the matter be referred to a larger Bench. Be that as it may. We
find it difficult to sustain the reasoning of the High Court in the judgment
under appeal.
What is the intent of MCI Regulation 12(4)?
15. MCI has been set up as an expert body to control the minimum
standards of medical education and to regulate their observance. The
regulations framed by the MCI with the previous sanction of the Central
Government, in regard to any of the matters referred to in section 33 of the
Indian Medical Council Act, 1956, will have statutory force and are
mandatory. Universities must necessarily be guided by the MCI Regulations.
Any regulations made by the Universities which are inconsistent with the
MCI Regulations, or which dilute the criteria laid down by MCI will not be
valid to the extent of inconsistency or dilution. [Vide: State of Tamil Nadu
vs. Adhiyaman Educational and Research Institute - 1995 (4) SCC 104,
Medical Council of India vs. State of Karnataka - 1998 (6) SCC 131, and
Dr. Preeti Srivastava vs. State of Madhya Pradesh - 1997 (7) SCC 120]. It,
therefore, follows that if clauses 56(2) and 57 of amended University
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Ordinance 1 of 2002 are inconsistent with MCI Regulation 12(4), they will
be void to the extent of inconsistency. On the other hand, if the said clauses
merely implement, or make explicit what is implicit in MCI Regulation
12(4), then they will be valid and binding.
16. The point in controversy in regard to interpretation of MCI Regulation
12(4) can be understood with reference to the following illustration:
Subject
Total Marks
Candidates’
Marks
I. Theory (two papers of 50 mark each)
100
47
II. Orals (Viva)
20
12
III. Practicals
40
17
IV. Internal Assessment :
(a) Theory
(b) Practical
20
20
16
15
TOTAL
200
107
Regulation 12(4) provides that to pass in a subject, a candidate should obtain
50% in the aggregate with a minimum of 50% in Theory including orals and
minimum of 50% in practical. The marks secured by the candidate (in the
illustration), when assessed as per the interpretation of the University, results
in the candidate failing in the subject. The very same marks when assessed
as per the interpretation of the students (and MCI), results in the candidates
passing in the subject. The calculations are given below :
University interpretation (candidate fails in the subject) :
1. Aggregate (I+II+III+IV) : 107 marks out of 200 marks
2. Theory plus oral (I + II) : 59 marks (out of 120)
(47 and 12 out of 100 and 20 marks)
3. Practicals (III) : 17 (out of 40)
As the candidate secured less than 50% in Theory including Orals (that is 59 out
of 120) and less than 50% in practicals (that is 17 out of 40), he failed under the
heads of Theory (plus Orals) and Practicals. As a consequence, though he secured
more than 50% in the aggregate, he failed in the subject.
Interpretation of MCI/students (candidate passes in the subject) :
1. Aggregate [I+II+III+IV] : 107 marks out of 200 marks
2. Theory plus Oral [I+II+IV(a)] : 75 marks out of 140
(47, 12 and16 out of 100, 20 and 20)
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3. Practicals [III+IV(b)] : 32 Marks out of 60
(17 and15 out of 40 and 20)
As the candidate secured more than the minimum of 50% under all the Heads of
Passing, that is, in the aggregate, in Theory (plus orals), and Practicals, he passed
in the subject.
17. MCI Regulation 12 is divided into four parts namely (i) attendance,
(ii) internal assessment, (iii) university examination, and (iv) distribution of
marks to various disciplines. Clause (1) makes it clear that unless a student
has the minimum attendance (75%) he cannot appear in the University
examination (external evaluation). Similarly, clause (2) makes it clear that
unless a student secures 35% of the total marks fixed for internal assessment
in a particular subject, he will not be eligible to appear in the University
examination of that subject. Thus, the requirement relating to attendance and
requirement relating to internal assessment act as eligibility requirements to
participate in the university examination.
18. The scheme of MCI Regulation 12 also makes it clear that there will
be internal assessment as well as the external assessment (university
examination) in regard to theory as well as practicals. Clause (2) of MCI
Regulation 12 makes it clear that in addition to providing the eligibility to
appear in the university examination, the internal assessment also provides a
weightage to an extent of 20% of the total marks in each subject. Clause (4)
of MCI Regulation 12 makes it clear for passing in each subject, a candidate
must obtain 50% of marks in the aggregate. There is no controversy in
regard to what is meant by aggregate. It is the aggregate external
examination marks and internal assessment marks. Where the maximum of
100 marks are for theory papers, 20 marks are for oral, 40 marks are for
practicals, in all 160 for externals and 40 marks are for internal assessment,
the aggregate is 200. A candidate should secure in all a minimum of 100
marks out of 200. The requirement relating to passing in aggregate complies
with sub-clause (iv) of clause (2) of Regulation 12, as internal assessment
marks (secured out of 40 Marks, which is 20% of total marks) are also
counted.
19. The controversy is in regard to the method of calculating the passing
marks for the other two heads of passing, namely ’theory including orals’ and
’Practicals". The scheme of MCI Regulations require the student to pass the
university examination (externals) with 50% in Theory (including oral) and
50% in Practicals, and also secure 50% of marks in the aggregate of the total
marks for external examination and total marks for internal assessment.
20. What is to be noticed is that Clause (4) of Regulation 12 requires that
a minimum of 50% in theory including orals, should be obtained by a
student. It does not say 50% in theory including orals and internal
assessment (theory). It should be remembered that the marks are distributed
as 100 for theory (external), 20 for oral (external), 40 for practical (external)
plus 20 for theory (internal) and 20 for Practicals (internal). If the intention
was to club the marks for internal assessment with the marks secured in
external examination, the marks would have been distributed in the
following manner : -
a) Theory :
(i). Two papers of 50 marks each 100 marks
(ii). Internal Assessment 20 marks
b) Oral (Viva) 20 marks
c) Practical/Clincial
(i). External Assessment 40 marks
(ii). Internal Assessment 20 marks
-------------
TOTAL 200 marks
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=========
But the distribution of marks under Regulation 12(4) is as under :
a) External :
(i). Theory - 2 papers 100 marks
(ii). Oral (viva) 20 marks
b) Practicals 40 marks
c) Internal
(i). Theory 20
(ii). Practical 20 40 marks
-------------
TOTAL 200 marks
=========
The scheme of distribution of marks makes it clear that University
examination (external assessment) is kept separate and distinct from the
internal assessment. Regulation 12(4) when read in its normal and natural
sense, does not contemplate for clubbing of internal assessment with
external examination. When the provisions of Regulation 12 are clear and
unambiguous, it is impermissible to add words into it. When the Regulation
requires that a candidate must obtain a minimum of 50% of marks in "theory
including orals", it is not possible to read it as 50% marks in "theory
including orals and internal (theory)". Similarly, when the Regulation
provides that a candidate must obtain a minimum of 50% of marks "in
practicals", it is not possible to read them as "in practicals and internal
(practicals)". Therefore, when the Regulation provides that a minimum of
50% of marks in theory including orals, it excludes internal assessment and
it means that the candidate should secure a minimum of 50% marks out of
120 marks (that is 100 marks for theory and 20 marks for orals). Similarly,
when the regulation provides that a candidate must obtain a minimum of
50% of marks in practicals, it means he should secure 20 out of 40 marks in
practicals.
21. We may examine the issue from another angle. MCI Regulation
12(2)(iv) provides that a weightage for the internal assessment shall be 20%
of the total marks in each subject. Thus, the weightage for internal
assessment would arise when the total marks (or aggregate) in each subject
are considered and not otherwise. That is, where the total marks are 200,
internal assessment marks would be 40 marks. Therefore, Regulation 12(4)
rightly provides that the total of 200 marks consist of 160 marks for
externals (university examination) and 40 marks for internals (college
assessment) maintaining the ratio of 80:20, thereby implementing the
requirement of MCI Regulation 12(2)(iv). But if internal assessment marks
are also to be clubbed with theory (external) marks or Practical (external)
marks, it leads to absurd and incongruous results. For example, for
practicals, if internal assessment marks are clubbed with examination marks,
then the minimum of 50% would be 30 out of 60 (that is 40 plus 20). This
results in the weightage for internal assessment becoming 33.33% (20 out of
60) thereby violating the Regulation 12(2)(iv). Similarly, if a minimum of
50% of marks in theory including orals, is read as 50% of marks in theory
including orals and internal (theory), then a candidate should secure 70 out
of 140 marks. This means the weightage for internal assessment becoming
14.28% (20 out of 140). This demonstrates that internal assessment marks
were never intended to be clubbed with marks of university examination
(externals) to ascertain whether a student has passed in Theory including
Orals, and Practicals.
22. We will now refer to the stand of the MCI. We are surprised to find
that MCI has put forward different interpretations at different points of time.
We have already referred to one interpretation by MCI put forth in its letter
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dated 17.9.2002 (extracted in para 5 above). But in the reply affidavit filed
by MCI before the Bombay High Court in this case, the stand of MCI was
different (vide Para 9):
"It is submitted that even though internal assessment are separately
marked on a 50-50 basis for theory and practical respectively, it is clubbed
with the performance in the Practical/clinical examination, whereas the
viva- voce performance is clubbed with the performance in the Theory
examination. \005.. It is submitted that the internal assessment marks are to
be clubbed with the Practical/clinical performance. They do not form a
separate or independent passing head."
The above stand is reiterated by MCI in the reply affidavit filed before this
Court (in para 14 of its reply in the connected W.P. 122/2007). The
difference between the two contentions of MCI is as follows :
Passing Head
Effect of interpretation in
the letter dated 17.9.2002
Effect of interpretation in the
reply affidavit filed in this case
i) Aggregate
50% of 200
(100+20+40+40)
50% of 200
(100+20+40+40)
ii)Theory including Orals
50% of 140 (100+20+20)
50% of 120 (100+20)
iii) Practicals
50% of 60 (40+20)
50% of 80 (40+40)
However during arguments, the learned counsel for MCI gave a go by to the
stand taken in the reply affidavit of MCI in this case and reverted back to the
stand taken in the letter dated 17.9.2002. While in the interpretation given in
the letter dated 17.9.2002, the internal assessment marks for theory and
practicals have to be added to the respective theory and practical marks of
externals, as per the interpretation given in the reply affidavit, the entire
internal assessment marks are to be added to the practical marks of externals.
The share or proportion of internal assessment in practicals becomes 33.33%
as per the stand in the letter dated 17.9.2002 and 50% as per the stand in the
reply affidavit, as against 20% provided in Regulation 12(2)(iv). Neither
interpretation, as pointed out above, is in consonance with the specific and
clear wording of Regulation 12(4). The very fact that MCI has been
interpreting Regulation 12(4) differently at different points of time, is a
ground to reject such interpretations which are contrary to the plain meaning
of Regulation 12(4).
Conclusion :
23. We, therefore, accept the interpretation put forth by the University in
respect of MCI Regulation 12 as correct and hold that clauses 56(2) and 57
of amended University Ordinance 1/2002 are in consonance with clauses (2)
and (4) of MCI Regulation 12. We also hold that internal assessment marks
cannot be clubbed with University examination (external) marks to ascertain
whether a candidate has passed in Theory with orals, and Practicals. We
further hold that the clarification given by MCI in its letter dated 17.9.2002
and the clarification in its reply affidavit are contrary to MCI Regulation
12(4). Consequently, a student has to secure marks as follows to pass in a
subject :
(i) 35% in internal assessment (for eligibility to appear for
university examination)
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(ii) 50% of the total marks for Theory with Orals (only externals)
(ii) 50% of the marks for Practicals/Clinicals (only externals)
(iv) 50% of the aggregate (total of externals and internals)
24. By an interim order dated 25.8.2006, this Court had directed that the
evaluation of III MBBS Part II examination held in December, 2005 shall be
on the basis of the norms fixed in the impugned judgment, and that in regard
to other examinations, namely, I MBBS, II MBBS and III MBBS (Part I),
the norms earlier followed by the University shall be followed. This Court
further directed that as regards the other examinations which may take place
before the final decision in this appeal, the University shall follow the
existing practice. This led to students of III MBBS Part II who appeared in
the November-December, 2006 examination approaching this Court in WP
No. 122/2007 and WP No.125/2007 claiming reliefs similar to those claimed
by the student-respondents in this appeal. We are of the view that the benefit
of the interim order should be extended to all those students who appeared
for the III MBBS, Part II examination held in November-December 2006
also, as the clarification dated 17.9.2002 issued by the MCI has held the
field till now. Therefore in regard to the III MBBS (Part II) Examinations,
this decision will be prospective in operation and effect.
25. We allow this appeal accordingly and set aside the judgment and
order dated 23.6.2006 of the Bombay High Court. In view of what is stated
in the earlier para, all applications for intervention/impleading are rejected,
as redundant. Parties to bear their respective costs.