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1998 Supreme(Cal) 449
High Court Of Calcutta
AMITAVA LALA
RAJORSHI DE - Appellant
Versus
UNIVERSITY OF CALCUTTA - Respondent
W. P. 2472 Of 1998
Decided On : 09/24/1998
AMAL SEN, BHASKAR SEN, DIPANKAR DUTTA, Jayanta Biswas, KETAKI DEY, P.K.GHOSH, SOVON CHAKRABORTY, T.C.DUTTA
The court cannot pass a failed candidate in an examination. A chance means a chance to appear and/or to pass examination.
Headnote:
MEDICAL EDUCATION - INTERNAL ASSESSMENT - SUPPLEMENTARY EXAMINATION - RIGHT TO SIT - NATURAL JUSTICE - DISCRETION OF UNIVERSITY - COURT'S INTERVENTION: - Whether a candidate should get a real chance in all respects to sit in the examination both for internal and external assessment.
Fact of the Case:
The petitioner, a student of MBBS, failed in the internal assessment in two subjects in the first MBBS examination. He was not given a chance to sit for internal assessment in the supplementary examination. He obtained passing marks in the internal assessment examination held in March 1998, but he could not sit in the external assessment examination due to illness.
Finding of the Court:
The court held that there is no specific rule for not giving a chance to a candidate to sit for internal assessment examination with the supplementary external examination. However, there is inconvenience which cannot be said to be Rules. On the other hand, the court cannot pass a failed candidate in an examination. A chance means a chance to appear and/or to pass examination. The court further held that the Vice-Chancellor of the University has the discretion to apply the rules in a sympathetic manner and declare the petitioner as pass, if there is no scope of applying discretion, the petitioner can sit in the examination as aforesaid with special permission.
Issues: 1. Whether the petitioner should be given a chance to sit for internal assessment in the supplementary examination? 2. Whether the petitioner can be declared as pass on the basis of the average marking in the subsequent examination so that one examinational year can be minimised?
Ratio Decidendi: 1. The court held that there is no specific rule for not giving a chance to a candidate to sit for internal assessment examination with the supplementary external examination. However, there is inconvenience which cannot be said to be Rules. On the other hand, the court cannot pass a failed candidate in an examination. A chance means a chance to appear and/or to pass examination. 2. The court further held that the Vice-Chancellor of the University has the discretion to apply the rules in a sympathetic manner and declare the petitioner as pass, if there is no scope of applying discretion, the petitioner can sit in the examination as aforesaid with special permission.
Final Decision: The court directed the Vice-Chancellor of the University of Calcutta to hear out the representation of the writ petitioner and his guardian immediately and after giving reasonable opportunity of hearing sympathetically, if necessary by giving hearing at his residence in case of puja holidays and finding out the position of the Rules if there is any scope of applying discretion, can apply the same immediately by declaring him as pass on a date much earlier than the next date of examination on 7th October 1998 so that the petitioner can get benefit of not losing another educational year and can sit in the examination as aforesaid with special permission.
( 1 ) THE writ petitioner is a student of MBBS Course in the R. G. Kar Medical College, Calcutta affiliated under the University of Calcutta.
( 2 ) IN July, 1997, he sat in the first MBBS examination. There are three subjects in the first MBBS examination i. e. Anatomy, Physiology, Bio-chemistry. There are three types of tests in holding examination, i. e. theory and oral, practical, internal assessment. Pass marks in respect of each subject is to be considered by adding up all the marks obtained by the candidate separately. Out of the three subjects the writ petitioner passed in physiology but he failed in internal assessment in two subjects i. e. Anatomy, and Bio-chemistry. Each examination is to be followed by a supplementary examination, which gives a chance to failed candidates to cover up their marks to go for the further MBBS courses.
( 3 ) THE contention of the writ petitioner is that although he got chance of sitting in the external examination in July, 1997 in respect of Anatomy and Bio-chemistry as well as in supplementary examination but did not get opportunity to sit for internal assessment in supplementary examination. Self-same marking of the internal assessment of the main examination, where he failed, were added with the result of the supplementary examination. Thus the petitioner/candidate again shown as failed candidate.
( 4 ) IN the premises, the plinth of the argument of the petitioner is that a candidate should get a real chance in all respects to sit in the examination both for internal and external assessment.
( 5 ) THE writ petition contains various grievances as against the University and College authorities and sought for various reliefs, but at present primarily for the following :" (I) to direct the respondents to allow the petitioner to join 3rd year MBBS classes, both practical and theory so that he is not short of requisite percentage for the 2nd MBBS examination subject to the result of the Rule or any other order. (ii) to award mean/average marks in the Internal Assessment (Anatomy/biochemistry) to the petitioner on consideration of the marks awarded to him in theory, oral and practical of the relevant subjects of the 1st MBBS supplementary Examination, 1997.
".
( 6 ) DURING the course of hearing on the basis of an interim order passed by a single Bench of this Court, the writ petitioner obtained an opportunity to sit in the examination for internal assessment both in Bio-chemistry and Anatomy examinations in March, 1998. He obtained 18 marks out of 30 in Anatomy and similarly, 18 marks out of 30 in Bio-Chemistry but unfortunately, he was not able to sit in external assessment examination of Anatomy due to his illness. Therefore, presently he is also passed in Bio-Chemistry.
( 7 ) THE petitioner also sat on subsequent examination in course of hearing of the writ petition but without any order. Simply writ Court adjourned the matter upon hearing the submissions of the parties and upon knowing that the petitioner went to sit in the examination. Now, the next internal assessment examination is forthcoming preferably it will be taken up on 7th October, 1998.
( 8 ) THE petitioner contended that not giving a chance to sit for internal assessment examination in the supplementary examination or not having process of taking internal assessment in the supplementary examination is contrary to principles of natural justice and as such he will be declared as passed in the examination in July, 1997 on the basis of his performance in the internal assessment examinations in March, 1998 so that he may not loose one educational year.
( 9 ) IN support of the contentions of the petitioner time to time Mr. Harashit Chakraborty, Mr. P. K. Das, Mr. Bhaskar Sen and other Learned Advocates made various submissions. In support of their contentions and to clarify the factual and legal aspects Mr. Das, in support of his contentions, cited a judgment reported in AIR 1993 Calcutta 1 in the case of
