A.N. Varma, J.
1. These five petitions are being disposed of by a common judgment as the major controversies involved therein are the same. The petitioners have been declared failed at the third and final professional examination of M.B.B.S. course held in September/ October, 1981 by the Agra University. The petitioners were all students of Sarojini Nayudu Medical College, Agra which is affiliated to the Agra University, Agra, The relief claimed in the petition is that the results of the petitioners in so far as the subjects in which they have been declared failed be quashed and a writ of mandamus be issued to the respondents commanding them to declare the petitioners as passed at the said examination.
2. The petitioners have assailed the legality and propriety of their results broadly on two grounds :
(1) The Regulations framed by the Medical Council of India under Section 33 of the Indian Medical Council Act laid down the Scheme of Examination for the various professional examination including the third and final professional examination for the degree of M.B.B.S. In this scheme of examination for the third professional examination whereas in regard to other subjects the candidate was required not only to secure 50% in aggregate in each of the subjects but also 50% marks in the clinical examinations in those subjects. There is significantly no such requirement in regard to clinical examination in the subjects of Ophthalmology and E.N.T. The Ordinance of the Agra University, however, made it obligatory for the candidates to secure 50% marks in the clinical examination even in Ophthalmology and E.N.T, applying these Ordinances, some of the petitioners who had failed in the clinical examination of Ophthalmology and E.N.T. have been declared failed. Inasmuch as the Regulations framed by the Medical Council have the force of a Parliamentary Legislation covered by Entry 66 of the Union List, the same must have an overriding effect over the Ordinances of the Agra University to the extent that the latter are in conflict with the former. That being so, the petitioners were entitled to be declared as having passed the examination notwithstanding, that they did not receive the minimum of 50% marks in the clinical examinations in Ophthalmology, and E.N.T.
(2) On a true and proper construction of the applicable rules relating to the award of grace marks, the petitioners were each, in any case, entitled to be declared passed as a result of grace marks to which the petitioners had become entitled on the facts admitted or established.
3. We will take up the first point first. In order to appreciate the submissions, it will be necessary to outline the true role and functions of the Medical Council of India and the legal effect and status of the Regulations framed by it vis-a-vis Medical Education being imparted in India as well as the standards and schemes of professional examinations for the degree of M.B.B.S which is awarded by the various Medical Institutions. In fact this topic has been the subject of exhaustive consideration in various cases decided by the Supreme Court. In State of Kerala v. Km. T. P. Roshana reported in AIR 1979 SC 765, their Lordships observed thus (at p. 771):--
'The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high powered council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses, Again in the State of Madhya Pradesh v. Km. Nivedita Jain reported in (1981) 4 SCC 296 : (also reported in AIR 1981 SC 2045) their Lordships of the Supreme Court had occasion to consider the same problem namely the effect of the Regulations framed by the Medical Council on the various executive orders issued by the State Government. The Supreme Court after analysing the various provisions of the Indian Medical Council Act in depth observed as follows at page 308 (of SCC) : (at p. 2053 of AIR) :
'An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of India, to provide for its constitution, composition and its functions and the main function of the Council is to main-lain the medical register of India and to maintain a proper standard of medical education and medical ethics and professional conduct for medical practitioners. The scheme of the Act appears to be that the Medical Council of India is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register, will prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of post graduate medical education and will further regulate the standards of professional conduct and etiquette and code of ethics for medical practitioners.
4. The decisions cited above clearly point to the conclusion that in regard to the examination conducted by any University or Medical Institutions, the function of the Council, is to ensure a certain minimum degree of proficiency in the medical graduates coming out of these Medical Institutions, and with that end in view, to see that the norms set for examinations by these Medical Institutions do not fall below the council's prescribed minimum standards of medical education required for granting recognition to medical qualifications by Universities or Medical Institutions in India. The emphasis seems to be on the 'minimum standards' of medical education. It does not seem to us that the object or purpose of the Act is to prohibit the Medical Institutions in India from laying down standards which may be higher or more stringent than the minimum standards prescribed by the Medical Council.
5. This conclusion, is fortified further by an express statutory provision, namely Section 19A of the Indian Medical Council Act which reads thus:--
'19-A. (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than postgraduate medical qualifications) by Universities or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof, as the case may be to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council on the efficiency of the regulations and may recommend to the Council such amendments thereof as it may think fit.
We have then Section 33 of the Act which empowers the Council to make regulations generally to carry out the purposes of the Act, and without prejudice to this generality, to provide for various matters enumerated therein, amongst which Clause (j) needs be quoted here:--
'(j) the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained in Universities or medical institutions for grant of recognised medical qualifications.'
6. From a combined reading of the provisions mentioned above it seems clear to us that the regulations under considerations were framed expressly to give effect to Section 19A(1) in particular, read with Section 33(j) for the purpose of prescribing 'the minimum standards' of medical education required for granting recognised degree of M.B.B.S. by Universities or medical institutions in India. These regulations have statutory force as a piece of subordinate legislation, and are mandatory as non-compliance therewith entails the liability of withdrawal of recognition of the degree granted by that University under Section 19 of the Act. The mandate, however, extends only to conforming to the minimum standards.
7. That, in our view, seems to the true status and scope of the regulations in question.
8. Incidentally, the Regulations are entitled Minimum Recommendations of the Medical Council of India on Undergraduate Medical Education. They first deal with the admission to the Medical courses, the selection of students for admission, the duration of course of medical education, medical curriculum and so forth. Then they lay down the 'Scheme of Examination' for various professional examinations. These fall under Chapter XI of the Regulations. We are concerned here with the last professional examination which has bees prescribed as 'End of phase III'. A perusal of the Scheme of Examination recommended by the Medical Council of India for the third professional examination shows that in each of the following subjects.
1. Medicine including Community Medicine and Paediatrics.
3. Eye and E. N. T. and,
4. Obstetrics and Gynaecology. the candidate is required to secure not only 50% in the aggregate but also 50% in the clinical examination. There is, however, no such requirement in the case of clinical examination in Ophthalmology and E. N. T.
9. It appears that the Academic Council of the Agra University passed a resolution agreeing to adopt the aforesaid regulations recommended by the Medical Council of India However, under Clauses (c) & (m) of Section 51 (1) of the U.P. State Universities Act, 1973, the conditions under which student shall be admitted to the examinations, degrees and diplomas of of the University and shall be eligible for the award of such degrees and diplomas as well as the conduct of examinations are all matters which are governed by Ordinances, subject, only to the provisions of the U. P. State Universities Act and the Statutes framed thereunder, In pursuance of this power, the Executive Council at its meeting on 18-11-1973 issued Ordinances conformably with the recommendations of the Medical Council of India. Ordinance No. 9 lays down the subjects which candidates for the Third Professional Examination are required to pass. In regard to Ophthalmology and E. N. T. this Ordinance provides as follows :
'Eye and E. N. T. Written one paper (in 2 parts) : part A for Ophthalmology and part B for E. N. T. Oral Examination (Eye and E. N. T. separately). Clinical examination (Eye and E. N. T. separately).'
10. The next relevant Ordinance made by the Executive Council on 18-11-1978 is Ordinance No. 11, which reads thus (in so far as it is relevant) :
'For a pass, a candidate shall be required to obtain not less than 50 per cent marks in the aggregate in each of the subjects as enumerated in Ordinances 5, 7 and 9 foregoing : provided that he shall also have to secure 50 per cent marks separately in the clinical/oral/ practical examination of the various prescribed subjects at the Final Professional Examination provided that it shall be lawful for the University to award grace marks up to a maximum of 5 to a candidate who has failed only in one subject and has passed in all the other subjects.
11. It is significant that this Ordinance, which undoubtedly has the force of law, was very much in existence before the petitioners appeared at the examination in question in Sept./Oct. 1981.
12. So far as the aforesaid Ordinances made by the University are concerned, the only conflict pointed out by the learned counsel for the petitioners between them and the Regulations framed by the Medical Council of India was in regard to the requirements of securing 50% marks also in clinical examination in Eye and E. N. T. which requirement as mentioned above is absent from the Regulations of the Medical Council.
12-A. Having given the matter a care-ful thought, we are clearly of the opinion hat the Ordinances referred to above are by no means repugnant to the Regulations framed by the Medical Council. The insistence by the Agra University that the candidates should secure 50% marks also in the clinical examinations n the Eye and E. N. T. only demands of he students a slightly higher degree of proficiency in those subjects. If anything, t prescribes a little higher standard than that laid down by the Medical Council of India. It does not in the slightest degree run counter either to the letter or the spirit of the minimum standards laid down by the Medical Council of India in its Regulations. As already noticed the primary concern of the Medical Council of India is to ensure that the education imparted by the Universities and the Medical Institutions in India and the examinations conducted by them for the grant of Medical degrees do not fall below the prescribed standards of proficiency expected of a medical graduate, There cannot be, we do venture to think, any serious objection if a medical institution or a University lays down a slightly more stringent standard for the examinations. We, therefore, find no substance in the first submission.
13. As a corollary to the first argument, the learned counsel for the petitioners submitted that the Regulations framed by the Medical Council of India have the force of a Parliamentary Legislation falling in a field occupied by the Union List. They referred us to Entry 66 of List I of the VIIth Schedule of the Constitution of India. The University hence, it was urged, cannot deviate from the standards laid down by the Council either way or at all.
14. We are, however, not impressed by this arguments. Under Entry 25 of the III list, the State Legislature is competent to enact laws pertaining to education including Technical Education, Medical Education in Universities, subject to the provisions of Entries 63, 64 65 & 66 of List I. Unless therefore, the Ordinances made by the University militate against the Regulations framed by the Council or any law enacted in pursuance of Entry 66 of List I, the Ordinances cannot be assailed on the ground of lack of legislative competence. In the present case, there is no such conflict. As observed, there is really no repugnancy between the Ordinances in question and the Regulations framed by the Medical Council. There is, therefore, no question of the Ordinances being bad for want of legislative competence,
15. Before we pass on to the second point, we may notice another submission which was made on behalf of Sri Bhupendra Ahuja in Writ Petition No. 1176 of 1982. It was urged that after the recommendations of the Medical Council were approved by the Central Government, they became Regulations under S, 33 of the Indian Medical Council Act The Regulations, therefore, came to be invested with mandatory character and became binding on the respondent University, The University could not hence deviate from the Regulations framed by the Council, The submission has no merit. We have proceeded on the assumption that these Regulations are mandatory. We have, however, taken the view that there is really no repugnancy between these Regulations and the Ordinances framed by the University. As discussed above the mandate is only with regard to the minimum standards which ought to be followed in regard to these examination. The impugned Ordinance does not, in our opinion, prescribe standards which may be said to be lower than those prescribed by the Regulations. Even if this submission of the learned counsel, therefore, is accepted, it does not take the matter further for the petitioners.
16. Now the second point. Under this head the first submission was that the University was not right in taking the view, for the purpose of deciding whether or not the petitioners are entitled to grace marks, in treating Eye and E. N. T. as separate subjects. It was urged that Eye and E. N. T. have been mentioned as one subject in the Regulations framed by the Medical Council and they ought, therefore, to be treated as one subject. We cannot, agree. In the counter-affidavit which has been filed on behalf of the University facts have been mentioned in considerable detail showing that Eye and E. N. T. are two separate subjects. In the counter-affidavit, it has been asserted that under Section 27 (2) of the U. P. Universities Act, it is provided that each department shall have such subjects of study as may be assigned to it by Ordinances. In the Ordinances issued under these provisions, it has been provided that every department shall have one subject in the name of the department. The counter-affidavit then goes on to state that the Departments for Eye and E. N. T. are separate, having separate Heads of the Departments, This has been so ever since 15-7-1977.
17. Furthermore, even according to the recommendations of the Medical Council the paper for Eye and E. N. T, is to consists of 2 parts A and B. Part A is for Eye and Part B for E. N. T. Besides, in the above mentioned Booklet issued by the Medical Council of India, there are some Notes printed at pages 23 and 24 below the Scheme of Examination for the III Professional Examination. The IV and V notes appearing at page 24 are significant in this respect. These are as follows.
'IV. The E. N. T. and Ophthalmology examinations shall be conducted by the teachers in the speciality concerned.
V. Separate answer books should be provided for each part of any one paper.'
It would thus seem clear that even the Medical Council of India does desire that the two subjects namely E. N. T. and Ophthalmology should not be mixed up. There is nothing in the Regulations framed by the Medical Council of India which may point to the conclusion that these two subjects, Eye and E. N. T. shall constitute a single subject. The Ordinances issued by the Agra University therefore, prescribing that the candidate must pass the oral and clinical examination in Eye and E. N. T. separately cannot be held to be unauthorised or contrary to the Regulations of the Medical Council. The petitioners have totally failed to establish by any cogent argument or tangible material that the two subjects are one and the same and ought to have been treated as such. Under these circumstances, on a matter like this we would rather accept the assertion of the respondents that the subjects of Eye and E. N. T. are two distinct subjects, and, cannot, therefore, be treated as one for the purpose of awarding grace marks. All the petitioners, therefore, who have failed in both Eye and E. N. T. cannot legitimately claim the right to be awarded grace marks which are awarded only if the candidate fails in one subject and has passed in all other subjects (vide Ordinance No. 11).
18. The submission of the learned counsel for the petitioners that the marks obtained by the petitioners in the oral and clinical examination in the two subjects Eye and E.N.T. ought to have been clubbed together must also be rejected on the same ground. As the two subjects namely Eye and E.N.T. are distinct and separate, the marks obtained by candidates in the oral and clinical examinations in the two subjects cannot be clubbed together.
19. The next submission under the second point urged was that the University has wrongly treated the oral examinations as the practical examination for the purpose of awarding grace marks. It was submitted that the oral examinations also implied some practical demonstrations required to be performed by the candidate and consequently the oral tests should properly fall in the category of practical examination for the application of the rule relating to the grace marks. The rule relating to grace marks in so far as it is relevant, as adopted by the University at the meeting of the Executive Council held in June 1980 reads as follows:--
'For the purpose of this rule, the Theoretical and practical tests in a subject at every one examination will count as two subjects.'
The question is whether the oral test can be equated with practical test within the meaning of this rule.
20. In support of their contention, the petitioners have relied on a letter written by the Principal of the aforesaid Medical College, a true copy thereof has been annexed, to the writ petition as annexure 3. This letter is addressed to the Vice-Chancellor of the University. In it the Principal has submitted that the oral examination ought to be treated as a practical examination for the purpose of application of the rules relating to the award of grace marks.
21. In reply to the aforesaid submission, the learned counsel for the respondents invited our attention to the various averments made in the counter-affidavit filed on behalf of the University. Detailed reasons have been given in the counter-affidavit why the Academic Bodies have always treated oral tests as falling within the category of the practical examination. It is asserted that oral tests are nothing but a viva voce examination testing the theoretical knowledge of the candidate in the subject concerned. It has been further asserted that oral examination has been a part of the M.B.B.S.examination for a considerable length oftime even under the old Schemes ofExamination. According to all thoseold Schemes of Examinationmarks assigned in written papersand oral examinations were always grouped together for the purposeof determining whether or not the candidate has secured minimum marks intheory. It is further asserted that oraltests have been traditionally treated asthe practical in nature always.
22. In our view, the stand of the University appears to be fully justified. The oral examination is, in our opinion, nothing but a test of the theoretical knowledge of the candidate judged through discussion. That is the basic nature of an oral examination. If, as alleged by the petitioners, the candidate is also called upon to demonstrate his point by some practical application that would not detract from the essential character of the oral test In any case, on a matter like this we would rather go by the opinion expressed by the Academic Bodies than the opinion of the petitioners, even if the same is supported by the individual opinion of the Principal.
23. The result of the aforesaid discussion, therefore, is that there is no substance in any of the points urged in support of these petitions. The petitioners were rightly declared failed at the examination in question. In regard to Pradeep Kumar Upadhyaya we may mention that not only had he failed in the oral and clinical examinations in Ophthalmology but he had also failed to secure an aggregate of 50% marks in the Eye and E.N.T. in addition he had further failed in the orals in surgery. Under the circumstances, he would fail even if all or any of the circumstances mentioned above were answered in favour of the petitioners.
24. The petitioner Ku, Darsha Ahuja has failed in both the oral and a clinical test of E.N.T. having secured 11/25 marks in each of the two tests. As she failed to secure the minimum of 50% marks separately in the clinical/oral examination of E.N.T. she was rightly declared failed in accordance with Ordinance No. 11. Further as the oral and clinical examinations were to be treated as two subjects for the purpose of the application of the rule relating to grace marks, the University rightly declined to award grace marks to her.
25. The petitioner Naresh Chandra has failed in the orals of Obstetrics and Gynaecology having secured only 18/40 marks as well as in the clinical examination of those subjects having secured 23/50 marks. In regard to Obstetrics and Gynaecology the candidate was required to secure the minimum of 50% marks also in the clinical examination both according to the Regulations of the Medical Council as well as Orinance No. 11 of the Agra University. The petitioner was hence rightly declared failed. Further as the oral and clinical tests were to be treated as separate subjects for awarding grace marks, the University rightly declined to give any grace marks to the petitioner.
26. The petitioner Bhupendra Ahuja has failed both in oral and Clinical examination of E. N. T, having secured 5/25 marks and 3/25 marks respectively. Furthermore, the aggregate in Eye & E.N.T, is also short of the requisite minimum being 98/200. He was. therefore, rightly declared failed and for the reasons already stated, the University was also within its rights in refusing to award grace marks to him.
27. The last case is that of Pradeep Kumar Garg. He has failed both in the orals of Surgery as well as in the Clinical examination of Obstetrics and Gynaecology having secured respectively 13/40 and 23/50 marks. As 50% marks were mandatory in the Clinical examination of Obstetrics and Gynaecology both according to the Regulations of the Medical council as well as Ordinance No. 11 of the Agra University, he was liable to be declared failed, in any case. Furthermore, for the reasons already stated he was also not entitled to the grace marks as he had admittedly failed in more than one subject.
28. Before concluding we may briefly notice another submission which was faintly made on behalf of Bhupendra Ahuja. The argument was that the candidates were supplied an application form which they were required to fill in for being admitted to the examination. The application form was accompanied by a duplicate copy of a blank marksheet. At the bottom of this blank marksheet whereas in regard to other subjects, it was mentioned that the candidate must in addition to securing 50% marks in the aggregate in the subject also secure 50% marks in the clinical examination, there was no such stipulation in regard to the subject of Eye and E. N. T. That being so. the University was estopped from insisting that the candidates must also secure 50% marks in the Clinical examination of Eye and E. N. T. as well. The submission is wholly untenable. The respondent University has explained in the counter-affidavit that by an oversight the pro forma of the blank marksheet issued to the candidates at the time of their making applications for admission to the examination was not printed in conformity with Ordinance. No. 11 which was already in existence. However, on detecting the mistake the error was corrected and in the marksheet actually communicated to the candidates after the announcement of the results proper particulars in conformity with Ordinance No. 11 have been mentioned. In these circumstances, there was no question of the University being estopped. Furthermore, the examination had to be conducted and results declared according to the existing law namely Ordinance No. 11. There could not be any estoppel against law.
29. In the result, all the petitions fail and are dismissed, but we make no orders as to costs.