The central legal point established in the judgment is that the Academic Council did not have the authority to decide not to consider the grant of grace marks as provided by the regulations.

JUDGMENT :

This writ petition has been listed under heading ‘To Be Mentioned’ at instance of petitioners citing urgency. Mr. Partha Sarathi Bhattacharyya, learned senior advocate appears on behalf of petitioners. He submits, petitioner no. 1 seeks consideration of grant of 1 grace mark and petitioner nos. 2 and 3, 3 grace marks each in subject ENT Practical Supplementary Examination of M.B.B.S. 3rd Professional Part-I, 2018. His clients have impugned reasoned orders, presumably issued on same date, 24th November, 2018. In rejecting his clients’ claim for grace marks two purported reasons have been given as appearing from impugned orders, which are identical. Firstly, there is no provision in any existing Rules or Regulations and secondly, Academic Council of the University in its meeting held on 14th June, 2018 had taken a decision not to allow any grace marks henceforth as per existing rules in the courses which have regulatory authority/advisory bodies. He demonstrates from pages 46 and 48, the University had granted to students grace marks in this practical test in examinations, as per clause 11.3.9, sub-clause (i) of Regulations on Graduate Medical Education, 2012.

2. Mr. Roy, learned advocate appears on behalf of the University and submits, policy decision taken is subsequent, which is why the rejection. Grace marks awarded to students were earlier in point of time and awarded on review. As such, there should be no interference. Mr. Roy relies on judgment dated 14th January, 2015 of High Court of Jharkhand in Ranchi University, Ranchi vs. Devashish Robinson Tigga and Anr., to paragraphs 24, 26 and 28. He submits, similar policy decision of that University was upheld by a Division Bench of said Court. Mr. Sougata Bhattacharyya, learned advocate appears for Medical Council of India and adopts submissions made on behalf of the University.

3. Query of Court to respondents was whether there is any regulation in said regulations that empowered Academic Council to render inoperative any of those regulations. This query could not be answered leading Court to be convinced there is no such regulation empowering Academic Council to decide not to consider grant of grace marks though provided by the regulations. Mr. Roy hands up minutes of 21st Academic Council meeting from which it appears policy decision was University shall not allow any grace marks henceforth as per existing rules. That the regulations provide for consideration of grant of grace marks is, thus, an admitted position. Grace marks are to be awarded when an examinee has failed to clear only one subject of subjects in the examination and such student’s failure to achieve pass marks is less than 5 marks. When a student is asking for grace marks such student is not asking for review. Review would be sought when student thinks he/she had done better than what marks awarded reflect. However, a student who correctly assesses his or her performance as examinee to be less than 5 marks short of pass marks in only one subject of the examination, is entitled to apply for grace marks. The regulations provides for such a situation which is not a case for review. There cannot be presumption, in such a situation that the examining authority incorrectly marked or evaluated the test paper.

4. In paragraph 24 of Devashish Robinson Tigga (supra), inter alia, following was said :

“24. We are conscious of the fact that in the Rules of Moderation of Results of MBBS Examinations, formulated by the University on the strength of the then Bihar State Universities Act (now Jharkhand State Universities Act), in Rule 3 there is no reference to grant of Grace Marks to a Student in Clinical-cum-Practical portion of the subject and it only refers to one condition that if the Student is failing in Practical cum-Clinical, he shall be deemed as a failure in the Subject. .. … …”

5. There is clear finding in the said judgment, there is no reference to grant of grace marks to a student in rule 3 of Bihar State