IN THE HIGH COURT OF KERALA AT ERNAKULAM 

The Hon'ble MR. Justice ANTONY DOMINIC

-------------------------------------------------- 

W.P.(C) NO.37955 OF 2010 (I)

-------------------------------------------------- 

Dated this the 17th day of February, 2011 

1. ARUM MOZHI VARMAN.K, AGED 23 YEARS,

... Petitioner

2. BINEESH CHANDRAN,AGED 24 YEARS,

3. SHAMEER.V,AGED 25 YEARS,

4. SUHAIR.P,AGED 24 YEARS,

5. ARUN.K.P,AGED 23 YEARS,

6. BIJOY VISWANATHAN,AGED 23 YEARS,

7. POOJA PRADEEP,AGED 24 YEARS,

8. HARIKUMAR.K.V,AGED 24 YEARS,

9. KIRAN.R, AGED 23 YEARS,S/O.KUNHI,

10. BON SEBASTIAN,AGED 23 YEARS,

11. BINU KRISHNAN,AGED 24 YEARS,

12. V.HARITHA JOTHI,AGED 24 YEARS,

13. AHAMED ROSHAN.S, AGED 25YEARS,

14. DEEPA MARIA.K.V, AGED 24 YEARS,

15. ANITHA ROSE PHILIP,AGED 24 YEARS,

16. MUFSIL.P.P,AGED 25 YEARS,

17. AMARNATH.P.P,AGED 25 YEARS,

18. M.ABIN SURAJ,AGED 27 YEARS,

19. JIBIN.C.P, AGED 27 YEARS,

20. NAVAS.P,AGED 25 YEARS,

21. FAZAL.M.S, AGED 24 YEARS,

22. SUBIN.K,AGED 23 YEARS,

23. NISHA.G,AGED 24 YEARS,

24. VEENA MONEY,AGED 23 YEARS,

Vs

1. THE UNIVERSITY OF CALICUT,REP.BY THE

... Respondent

2. THE VICE CHANCELLOR,UNIVERSITY OF

3. THE CONTROLLER OF EXAMINATIONS,

4. EXAMINATION PASS BOARD-2010,

5. THE DIRECTOR OF MEDICAL EDUCATION,

For Petitioner :SRI.K.RADHAKRISHNAN (SR.) 

For Respondent :SRI.P.C.SASIDHARAN, SC, CALICUT UTY. 

J U D G M E N T

Petitioners were MBBS students during the academic years 2005-2010. Petitioners 1 to 7 underwent the course in the Government Medical College, Kozhikode, 8 to 15 in Jubilee Mission Medical College and Research Institute, Thrissur, 16 to 20 in MES Medical college, Perinthalmanna, 21 to 23 in Amala Institute of Medical Science, Thrissur and petitioner No.24 in the Government Medical College, Thrissur. These Medical Colleges are affiliated to the first respondent University.

2. Petitioners appeared for the IIIrd Professional Part II (Final professional) examination during the 9th semester which was conducted in September, 2010. The four subjects for final professional are Medicine, Surgery, Obstetrics and Gynecology and Pediatrics. Exts.P1 to P24 are copies of the mark lists issued to the petitioners which show that petitioners 1 to 16 failed in one subject in practicals for less than 5 marks. Petitioners 17 and 18 failed in Pediatrics in written and oral examination and in clinical and practical examination for marks ranging from 1 to 5. Details of the marks secured by the petitioners and shortage of marks .are indicated in paragraph 5 and 6 of the writ petition, which are extracted below for easy reference.

Marks obtained Minimum marks Shortage Petitioner Subject for clinical & required for pass of marks practical

Ist petitioner Medicine 61 65 4 2nd petitioner Medicine 64 65 1 3rd petitioner Pediatrics 15 20 5 4th petitioner Pediatrics 15.5 20 4.5 5th petitioner Obstetrics & 34 Gynaecology 35 1 6th petitioner Medicine 64 65 1 7th petitioner Obstetrics & Gynaecology 33 35 2 8th petitioner Medicine 59.9 65 5.1 9th petitioner Medicine 62 65 3 10th petitioner Medicine 62 65 3 11th petitioner Medicine 61.9 65 4.1 I2th petitioner Medicine 64 65 1 13th petitioner pediatrics 18.1 20 1.9 I4th petitioner Medicine 63.8 65 1.2 I5th petitioner Medicine 63.4 65 1.6 I6th petitioner Medicine 61 65 4 I9th petitioner Surgery 61 65 4 20th petitioner Obstetrics & ; Gynaecology 33 35 2 21st petitioner Medicine 60 65 5 22nd petitioner Obstetrics & Gynaecology 31 35 4 23rd petitioner Medicine 60 65 5 24th petitioner Pediatrics 18 20 2 .

Petitioner subject marks minimum maximum shortage awarded marks marks of marks.

required for a pass 17th petitioner Paediatrics 18.25 - 40 Written

University marks Oral

University marks 6.25 - 10 Internal assessment 5 - 10 Total 29.5 30 60 0.5 Clinical & Practical

University Marks 13.25 - 30 Internal assessment 5 - 10 Total 18.25 20 40 1.75 18th petitioner Paediatrics 18.25 - 40 Written

University marks

Oral

University marks 4.75 - 10 Internal assessment 5 - 10 Total 28 30 60 2 Clinical & Practical

University Marks 12 - 30 Internal assessment 5 - 10 Total 17 20 40 3 . 

3. Petitioners submit that in exercise of the powers conferred under Section 33 of the Indian Medical Council Act, 1956 and with the previous sanction of the Central Government, the Medical Council of India framed "Regulations on Graduate Medical Education, 1997" (here-in-after referred to as Regulations 1997). Regulation 13 of Regulations 1997 deals with appointment of examiners, an extract of which is Ext.P25. Regulation 13(10) provides for grant of grace marks, which reads as under. "(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."

4. It is also stated that the 5th respondent, the Director of Medical Education framed MBBS Curriculum and Academic Calendar 2004-2010, the relevant extract of which is Ext.P26. Petitioners submit that Ext.P26 also provide for awarding of grace marks at the discretion of the Passing Board of the University, which reads as under.

"Grace marks up to a maximum of five in total may be awarded for an examination(I MBBS, II MBBS, III MBBS Part I or III MBBS Part II) at the discretion of the passing board for a student to pass one subject (theory/practical/oral) provided the students has passed in all other subjects. Grace marks will not be awarded to change internal assessment marks."

5. According to the petitioners, if grace marks are awarded as provided in 1997 Regulations and the Academic Calendar 2004-2010, they would pass the final professional examination and would have been eligible to undergo internship. The grievance in the writ petition is that inspite of the position as above, neither the University nor the Pass Board exercised the discretion vested in them and awarded them grace marks. It is stated that they submitted Ext.P27 representation which also did not evoke any response. It is in these circumstances they have approached this court by filing this writ petition with the following prayer.

"Issue a writ of mandamus or other appropriate writs, directions or orders directing the respondents 1 and 4 to grant/award grace marks between 1 to 5 as required to the petitioners in respect of the one subject in which they have failed to obtain the minimum marks required for a pass in the IIIrd professional Part II(Final Professional) Examination."

6. Along with I.A.No.449/2011, petitioners have produced Ext.P33 an information obtained by one of them from the University pursuant to a request made under the Right to Information Act. Ext.P32 shows the details of the grace marks awarded by the University during the period 2005-2010, the relevant portion of which reads as under. . 

"Moderation

Year

2005 - Moderation up to five(5) marks for a single subject either in theory or practical, provided the candidate has failed only in one subject.

2006 - 5 marks as moderation to get a whole pass in any one subject.

2007 - 5 marks as moderation to get a whole pass in any one subject.

2008 - Moderation to maximum of 5 marks in a single subject either in theory or practical examination to get whole pass.

2009 - Moderation to maximum of 5 marks in a single subject either in theory or practical examination to get whole pass.

2010 - Maximum of 5 (five marks) in a single subject in theory only to get a whole pass. No moderation for the practical examination. "

7. According to the petitioners, discretion has been conferred on the Pass Board and the University to award grace marks to students who have failed in one subject but have passed in all other subjects. It is stated that this provision of the regulations was considered by this court in Ext.P28 judgment in W.A. No.2760/2002 and the judgment in W.A.No.665/2004, where following the principles laid down by the Apex Court in the judgment in Maharashtra State Board of Secondary & Higher Secondary Education v. Amit {(2002)6 SCC 153}, the claim of the students for awarding grace marks has been upheld and the respondent University and its Pass Board were directed to award grace marks in the manner as provided in the Regulations. It is stated that in the instant case also, the University is liable to be directed to award grace marks to the petitioners so that they would pass in the final MBBS examinations.

8. A counter affidavit has been filed on behalf of respondents 1 to 4. According to the respondents, in terms of the Regulations of Graduate Medical Education, to be declared successful, a candidate must obtain 50% in aggregate with minimum 50% in theory including orals and minimum 50% in practical prescribed under distribution of marks for various disciplines. It is submitted that Regulation enables the grant of grace marks up to 5 for a subject and that grant of grace mark is at the discretion of Pass Board of the University. It is stated that the Pass Board considered the entire issue and decided to grant grace marks for theory paper only. According to the respondents, the practical examination is supervised by the internal and external experts and the physical verification of experience/practical is completed at the venue itself. University .submits that in the morning practical examination will be evaluated at two stations by two sets of examiners and that in the afternoon the viva examination will be conducted at four different stations, each examiner sitting separately. It is stated that after completion of both examinations, all the four examiners will sit together and will add the marks together for each student. According to the University, out of the total students, the marks of the failed students will be taken again and their performance will be again discussed by the examiners and that finally, only a very few students whose performance at the examination was not up to the standard alone fail. It is stated that in the said process chances of subjective variation of marks is much less as compared to theory papers where evaluation is done by a single examiner and that it was therefore that after considering various aspects, the Pass Board decided not to award grace marks for practical examination. It is submitted that this recommendation of the Pass Board was made to the Controller of Examinations, who in turn placed the matter before the Syndicate of the University and it was with the approval of the Syndicate that the results were published. Therefore, according to the University in terms of the Regulations, they have exercised the discretion vested in them and therefore, the petitioners cannot claim that they .should be awarded marks for the practical examination as a matter of right.

9. I have considered the submissions made by both sides.

10. Clause 13(10) of the Regulations 1997 framed by the Medical Council of India provides that grace marks up to a maximum of 5 may be awarded at the discretion of the University to the students who have failed in one subject but has passed in all other subjects. In Ext.P26, MBBS Curriculum and Academic Calendar for 2004-2010 also, provision has been made for awarding of grace marks consistent with the Regulations 1997. It is provided that grace marks up to a maximum of 5 in total may be awarded for an examination at the discretion of the Pass Board for a student to pass one subject (theory/practical/oral) provided the student has passed in all other subjects. It is also clarified that no grace marks will be awarded to change internal assessment marks. These Regulations therefore make it clear that discretion has been vested in the Pass Board of the University to award up to 5 grace marks to students who have failed in one subject and have passed in all other subjects. The Regulation provide for awarding grace marks to one 'subject' which includes theory, practical and oral.

11. The claim for awarding of grace marks was considered by two Division Benches of this court in the judgments referred to above and the issue in its totality has been discussed in these two judgments. Therefore the burden of this Court has been considerably reduced and I shall straight away make reference to the principles laid down in the aforesaid two judgments. Ext.P28 is the judgment in W.A.No.2067/2002 where the respondents herein are parties. Facts noticed in that judgment show that the appellants therein were students who had passed in all subjects in the MBBS final year Part II examination but were declared failed in the practical examination in surgery. Their case was that if the University had awarded grace marks to practical examination also, all of them would have passed the MBBS examination. Judgment shows that the matter was considered by the Pass Board in its meeting held on 11.6.2002 and the Pass Board had decided to give up to 5 marks for theory examinations for those who have passed in practical examination. As far as awarding of grace marks to the practical examination is concerned, 3 members of the Pass Board opposed the award of grace marks while two members favoured it. It was on that basis, grace marks were denied to the students.

.12. Considering the above question, Division Bench referred to the regulations and held that normally a Court of law should not interfere with the discretion exercised by the Pass Board, but the Court can examine whether the discretion exercised by the Pass Board is in conformity of the Rules governing the award of grace marks and also to achieve the object sought to be achieved by awarding grace marks. Thereafter reference was made to the Apex Court judgment in Maharashtra State Board of Secondary & Higher Secondary Education v. Amit {(2002)6 SCC 153} and it was held that the discretion should be exercised by the authorities, taking note of the over all performance of the students and the consequences that the students will have to face but for exercising discretion in their favour. Finally Division Bench directed the University to award the students minimum grace marks for pass in the practicals and to declare results on that basis.

13. W.A.No.565/2004 was filed by the respondent University and others against the judgment in WP(c). No.3682/2004. The writ petition was filed by the 7 students who had appeared for first year MBBS examination held by the University of Calicut in September and November, 2003. Their results were declared on 21.1.2004 and each of the petitioners . passed in two of the three subjects and failed in one subject. Even after the examination Pass Board gave one mark each as grace mark to all of them, the petitioners failed in one subject. With this grievance they filed the writ petition seeking directions to the University to award the required grace marks in theory as well as practical and to declare them passed in the first year MBBS examination.

14. The writ petition was disposed of holding that the discretion vested inn the Pass Board for awarding grace marks was not properly exercised and that the grant of uniform grace marks at the rate of only one to each student was not an exercise of discretion at all. It was held that if a student has done fairly well in all other subjects and is short of up to 5 marks in one subject for a pass, he may be given maximum grace marks or otherwise the very object of providing grace marks up to 5 is defeated. On this basis, the University was directed to re-examine the issue and award grace marks and the Principal of the Medical College was directed to permit the petitioners to attend the second year classes on a provisional basis.

15. It was aggrieved by the aforesaid judgment of the learned Single Judge, University of Calicut, Controller of Examination and the Examination Pass Board filed the writ .appeal. The Division Bench referred to academic calendar 2002- 2008 which also contained a provision for awarding of grace marks which is similar to Ext.P26 referred to in the earlier part of this Judgment. The Division Bench also referred to Medical Council of India Regulations which also conferred discretion on the Pass Board to award grace marks. Thereafter in paragraph 7 it was held thus.

"7. Thus, the MBBS curriculum and Academic Calendar 2002-2008 and the Rules for MBBS Examinations issued by the Director of Medical Education based on the Regulations on Graduate Medical Education, 1997 of the Indian Medical Council, make is clear that the object of granting grace marks under the above mentioned provisions is to enable a student to pass the examination in case he has shortage of only 5 or less marks to pass in one of the subjects and has passed in all other subjects. But such a student cannot claim the grace marks as a matter of right, because as per Exts.P1 and P2, the grant of grace marks is at the discretion of the Pass Board. In other words, even if a student has shortage of only 5 or less marks in one of the subjects and has passed in all other subject, the Pas Board is not bound to grant the required grace marks to enable him to pass in the said one subject also. It is open to the Pass Board to insist that, to become entitled for grace marks in one subject, it is not sufficient to obtain minimum pass marks in the other subjects but should obtain a higher percentage of marks fixed by the Pass Board in each year in the subjects concerned. It means that good performance in other subjects rather than minimum pass marks can be made a condition for claiming grace marks in one subject. Therefore, the Pass Board can refuse to award grace marks to a student on the ground that the student has not obtained the said higher percentage of marks fixed by the Pass Board in the other subjects. Thus the discretion given to the Pass Board under the above mentioned rules is to decide whether a higher percentage of marks in the other subjects should be obtained by the students to entitle them for grace marks in the failed subject or whether it is . sufficient that they just pass in the other subjects. If the Pass Board decides that it is not sufficient to just pass in the other subjects, the Pass Board has also the discretion to fix the required higher percentage of marks in the subjects concerned, taking into account all relevant aspects. There is no further discretion given to the Pass Board. In other words, all the students who have shortage of only 5 or less marks in one of the subject and have passed in all the other subjects are entitled to be given the required grace marks in the said one subject, provided that they have obtained the higher percentage of marks, if any, fixed by the Pass Board in the other subjects. The Pass Board has no discretion to deny grace marks to any of such students. The award of grace marks is in the nature of a concession. Being a concession, it cannot be claimed as a matter of right."

Proceeding further it was held as follows. 

"Thus, if a student will pass in the failed subject if he is given grace marks not exceeding five and if the Pass Board is of the opinion that he deserves grace marks on the basis of his good performance in the other subjects, he shall be given the required grace marks to enable him to pass in the failed subject also. Though the award of grace marks is at the discretion of the Pass Board, the said discretion is circumscribed by the provisions contained in Exts.P1 and P2. Thus grace marks can be awarded only to students who have failed in one subject and have passed in all the other subjects. Grace marks can be awarded only subject to a maximum of 5 marks. In other words, if a student will not pass in the failed subject even after awarding 5 marks, he cannot be given any grace mark. Even if a student has failed only in one subject due to shortage of up to 5 marks and has passed in all the other subjects, it does not necessarily follow that grace marks shall be awarded to him. Grace marks need be awarded to him only if the Pass Board is satisfied and is of the opinion that in the light of his good performance in the other subjects he deserves to be given grace marks. Thus the discretion of the Pass Board is only to fix the criterion/norm for determining whether the performance of the student is sufficiently good to make him entitled to grace marks and to decide whether the student is entitled to any grace marks applying the said criterion/ norm. The said criterion/norm .may be mere pass marks or a higher percentage of marks in the other subjects. Once such a criterion/norm is fixed and if a student satisfies the criterion/norm, he cannot be denied grace marks. The Pass Board has no discretion to decide that no grace mark will be awarded to any student in a particular year. Such a decision will defeat the very object of the provision for grace marks. The object underlying the grant of grace marks is to remove real hardship of a candidate who has otherwise shown good performance in the academic field but is losing one year of his scholastics career for the deficiency of 1 to 5 marks in one subject, while on the basis of his performance in the other subjects, he deserves to be declared successful. Since the Regulations and the rules provide for award of grace marks in certain cases, the Pass Board has no discretion to decide not to grant any grace mark in such cases. "

Finally the Division Bench issued following directions. 

"(i) The Examination Pass Board has no discretion to take a decision not to grant any grace mark at all in a particular year.

(ii) A mere pass in the other two subjects by itself need not entitle a student to get the grace marks to enable him to pass in the failed subject. A pass in the other two subjects is only the minimum eligibility for the award of grace marks. The Pass Board has the discretion to fix a higher percentage of marks in the other subjects to entitle a student for grace marks in the failed subject and to decide that unless the student has obtained the said cut off percentage of marks in the other two subjects, no grace marks will be awarded to him.

iii. If a student has secured such cut off percentage of marks in the other subjects and if he will pass in the failed subject if he is awarded five or less marks as grace marks, he is entitled to be awarded the required grace marks to pass in that subject. In other words, if a student fails in one of the subjects due to shortage of only 5 or less marks and if he has passed in all the other subjects and has also obtained the higher percentage of marks, if any, fixed by the Pass Board, he should be awarded the grace marks required for a pass in the failed subject. The Pass Board has no discretion to deny grace marks to such a student." .

16. Both these judgments have become final and therefore the respondent University is bound by these judgments. The principles laid down in the aforesaid judgments can be encapsulated as follows;

1. That it is the discretion of the Pass Board of the University to award grace marks up to 5 to a student who has failed in one subject, but has passed in all other subjects.

2. That the object underlying grant of grace marks is to remove real hardship of a student who has otherwise shown good performance and deserves to be declared successful.

3. That the discretion cannot be exercised in an arbitrary or mechanical manner, but should be exercised considering the consequence a student will have to face but for exercising it in his favour.

4. That no student can claim grace marks as a matter of right.

5. That a court of law would not interfere with the discretion exercised by the Pass Board but will examine whether the discretion has been exercised in conformity with the rules governing the grant of grace marks and whether decision would achieve the object that is sought to be achieved. 

6. That it is open to the University to insist on good performance in other subjects as a condition for awarding of grace marks and if a student has not achieved the standard specified by the University in other subjects, it is open to the University to decline to award grace marks.

7. That once such a standard, if any, has been specified by the University and the student has achieved that standard, Pass Board has no further discretion to decline grace marks to such student.

8. That the Pass Board has no discretion to decide that no grace marks will be awarded to any student and that any such decision will defeat the object underlying the grant of grace marks.

17. Having understood the principles laid down by the Division Bench in the aforesaid judgments, I shall proceed to examine whether the respondent University could have legitimately decided not to award grace marks to practicals.

18. Respondents have no case that they had fixed any bench marks for awarding grace marks and that these students had not achieved such bench marks and that therefore they were ineligible to be granted grace marks. As already seen, the case of the University is that their decision was to award grace marks .only to theory papers and not to practicals. Therefore, this is not a case where University has fixed any higher standard as a condition for awarding grace marks and declined to grant grace marks for the reason that the students did not satisfy the higher standard specified by the University or its Pass Board. Thus, this is not a case where the petitioners herein were ineligible for the award of grace marks.

19. Once it is concluded that the petitioners were eligible to be awarded grace marks, the further question is whether the University could have decided not to award grace marks for practicals. To answer to this question, I do not think this court need labour much in view of the positive findings in the judgment in W.A.No.565/04 where it has been held that University cannot decide in a particular year not to award grace marks, for the reason that such a decision is against the very object of providing for the award of grace marks. Therefore, the University could not have taken such a decision or confined the award of grace marks only to theory alone. If that be so, the only conclusion that is possible is that the decision of the University, not to award grace marks to practicals cannot be approved.

20. I should also make reference to Ext.P32, the information obtained by the petitioners under the Right to .Information Act. This document shows that during 2005-2010, grace marks were awarded by the University without making any distinction between practicals or theory. The justifications now offered by the University in the counter affidavit to deny grace marks to practicals were very much in existence in those years as well. University has no case that there has been any change in circumstances. Therefore, the University having awarded grace marks in all these previous years and in the absence of any subsequent developments warranting any change in its approach, I feel the University had no valid reason to deny grace marks for practicals this year.

21. Learned Counsel for the University raised a technical argument. According to him, in their pleadings in the writ petition, the petitioners have proceeded on the assumption that the Pass Board has not exercised its discretion to award grace marks and therefore the Pass Board should be called upon to award grace marks. In the counter affidavit filed by respondents 1 to 4, it is stated that the Pass Board did exercise its discretion and that considering all relevant aspects it was decided that in the absence of a prayer to set aside that decision of the Pass Board confining grace marks only to theory papers, petitioners cannot seek a direction to the University to award grace marks for .practical also.

22. It is true that there is no prayer to quash the decision of the Pass Board which has been disclosed in the counter affidavit. However, it should be noticed that in both the Division Bench judgments referred to above also similar decisions of the Pass Board were one relied on by the University and without quashing such decisions directions were issued to grant grace marks. Judgments also show that on both occasions, the University did not raise such a contention and at any rate, the University accepted the judgment. In any event, the University cannot be allowed to take refuge under such technical pleas and require this court to uphold its actions which are patently contrary to two judgments of this court to which it is a party. Therefore I am not persuaded to accept the technical arguments raised by the University and deprive the students of the grace marks which are legitimately due to them.

23. For the aforesaid reasons, I direct that the University shall award grace marks as provided in the Regulations 1997 and the Academic Calendar 2005-2010 to the petitioners for practicals also and on that basis, their results shall be published afresh. This the University shall do as expeditiously as possible and at any rate within 4 weeks. It is made clear that, on such .publication of their results, those petitioners who are declared to have passed the final MBBS examination will be entitled to undergo internship.

Writ petition is disposed of with the aforesaid directions. 

vi/