TaxTMI 
TaxTMI 
2007 (6) TMI 509
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....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 ....
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....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 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, identifica....
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....p; ------------- TOTAL 200 marks  ....
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....s 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. ....
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....um 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 e....
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....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)&#....
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....s 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. 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....
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.... 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 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) II.&nb....
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.... 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 ....
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....bsp; 20 marks c) Practical/Clincial (i). External Assessment 40 marks (ii). Internal Assessment 20 marks &....
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....; 20 marks b) Practicals 40 marks c) Internal  ....
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....p; ========= 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 t....
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....the viva- voce performance is clubbed with the performance in the Theory examination. .. 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 th....