1. The petitioner, a candidate at the First M.B.B.S. Examination held in April, 1981, by the Utkal University, as a regular student of Shriram Chandra Bhanja Medical College. Cut-tack, challenges the decision that he had failed at the examination although he had secured marks entitling him to pass under the Regulations of University read with the Rules of 'Hard Cases' for the M.B.B.S. Examinations (hereinafter referred to as the 'Rules'). Regn. 9 (2) of Chapter XI dealing with M.B.B.S. Examination of the Utkal University:
'In order to pass the examination a candidate must obtain 50% (fifty per cent) of the maximum marks in the written and oral together, subject to a minimum of 40 per cent in each of these (written and oral) and 50 per cent in practical.'
The petitioner had secured in Biochemistry 60 per cent in practical, 60 per cent in the oral, but fell short of 2 marks in the written and oral examinations taken together having secured two marks less than the minimum of 40 marks in the written paper. The Rules provide that candidates failing in one subject or group only either in written paper or in the aggregate of written-cum-oral paper for 3 per cent of maximum marks or less shall be made to pass. According to the petitioner, he failed only in Biochemistry and that, too, for 2 per cent in the written paper or in the written-cum-oral papers taken together for 1 per cent and it was, therefore, a fit case for reference to the Board of Conducting Examiners to apply the Hard Case Rules and declare the petitioner to be successful, but the University authorities did not refer the case of the petitioner to the Board and made him to fail. The petitioner represented his case to the Vice-Chancellor twice, but without any effect. The petitioner had been awarded the marks at the examination as per Annexures 1 and 3. Annexure 4 is the copy of a representation made by the petitioner to the Vice-Chancellor. Annexure 2 is a copy of the Scheme of Examination prescribed by the Medical Council of India.
2. The opposite party No. 1 has, in a counter affidavit, disputed the assertion made by the petitioner that his case would be governed by the Rules and that it should have been referred to the Board for declaring the petitioner successful at the examination. According to the opposite party No. 1, the petitioner's case would not come within the purview of the Rules in that he had failed both in the written paper as well as in the group of written and oral papers taken together. The recommendation of the Indian Medical Council, as per Annexure 2, as averred in the counter-affidavit, is not applicable to the University.
3. Dr. Dash appearing for the petitioner has submitted before us that as the petitioner had failed only in Biochemistry and that, too for obtaining 38 marks as against the minimum pass marks of 40 and the marks were short by 1 per cent in respect of both written and oral papers for Biochemistry, it was a fit case for reference to the Board of Conducting Examiners to apply the Rules.
4. The Rules in so far as are relevant for the present case provide:
'1. The Board of Conducting Examiners shall consider the following cases:
(a) Candidates failing in one subject or group only either in written papers or in the aggregate or written-cum-oral papers for 3 per cent of maximum marks or less.
N. B.: Only written papers are to be examined. XX XX X'
As rightly submitted by Mr. Mohapatra on behalf of the opposite party No. 1, the petitioner had failed in Biochemistry having secured 38 marks in the written paper and 60 marks in oral and had thus secured 98 marks although he was required to secure 50 per cent of the maximum marks in the written and oral together and, as such, he could not have been declared to be successful and his case would not come under the Rules as he failed both in the written paper as well as in the group of written-cum-oral papers taken together. It was, therefore, not a case where the petitioner had failed in one subject or group only either in written paper or in the aggregate or written-cum-oral papers for 3 per cent of maximum marks or less. The petitioner had failed both in the written paper as well as in the group and therefore, we would accept the submission made on be-half of the opposite party No. 1 that the petitioner's case would not be governed by the Rules and therefore, no reference to the Board of Conducting Examiners in the case of the petitioner was to be made.
5. We would, accordingly, dismiss the petition, but in the circumstances of the case, make no order as to costs.
Consequent upon this case being disposed of, the previous order passed by us not to publish the result of the supplementary examination in respect of the petitioner stands vacated.
R.N. Misra, C.J.
6. I agree.