2006 Supreme(Bom) 949

IN THE HIGH COURT OF BOMBAY
(F.I. Rebello and Smt. V. K. Tahilramani, JJ.)
LAYA BINAY KUMAR PANDEY - Petitioner
V.

MEDICAL COUNCIL OF INDIA and others - Respondents

Advocates appeared
For petitioner: V. M. Thorat
For respondent No.1: Ms. Simran Puri instructed by De Juri
For respondent No.6: R. V. Govilkar

Headnote:INDIAN MEDICAL COUNCIL ACT, 1956 - Section 33 - Medical Council of India Regulations, Regulation 12 - ordinance 1 of 2002 - Maharashtra University of Health Sciences (As amended in 2006), Rules 56 and 57 - Marking in examination - Marks in internal examination - To be added in marks obtained in find examination - Theory as well as practical to be added - Cannot be taken as separate entity - Rule 57 amended in clear violation of MCI Rules.

       MEDICAL COUNCIL OF INDIA REGULATIONS - Regulation 12 - Maharashtra University of Health Sciences Act (10 of 1999), Section 2(2) and Ordinance No. 1 of 2002 framed by Health University, Rules 56 and 57 (as amended) and Medical Council Act (102 of 1956), Section 33 - Rule 57 of Ordinance No. 1 of 2002 as framed by Health University is ultra vires Regulation 12 of Medical Council of Indian Regulations being inconsistent with Regulations - Rule 57(D) which seeks to hold that the Internal Assessment is a independent head of passing is clearly violative of Regulation 12 and will have to be declared as null and void. - The petitioners prosecuting their M.B.B.S. Course in colleges affiliated to the Maharashtra University of Health Sciences passed their first, second and third M.B.B.S. (Part-I) examinations. They appeared for third M.B.B.S. (Part-II) examination conducted by the University in December, 2005, the results of which were declared on 18.2.2006. In the result declared, some petitioners were declared to have failed in the subject "General Surgery" and some in "General Medicine". On perusal of the mark sheets, it would reveal that the petitioners had either failed in the practical paper of the subject "General Surgery" and or "General Medicine" and as such had been declared to have failed in the said examination. As explained by the Medical Council, the distribution of marks is under the heads theory and practical. The marks for internal assessment are both for theory and practical to the extent of 20%. Insofar as the internal assessment is concerned, the first requirement is that the student must secure at least 35% marks in internal assessment in order to be eligible to appear for the final University examination. The second aspect, according to the Council, is that the marks obtained in the internal assessment are not to be treated under a distinct head or subject. This can be supported by the language of Regulation 12(2)(iv), which states that weightage for the internal assessment shall be 20% of the total marks in each subject. Insofar as the marks obtained for theory in the internal examination, those marks will be added to the marks obtained in theory for the final examination and similarly the marks assigned to practicals of internal assessment, would be added to the marks obtained in practicals at the final examinations. In other words, there is no requirement that the student must secure 50% aggregate in internal assessment as a distinct head. Once a student secures 35%, then the marks obtained in internal assessment are to be added to theory and practical papers respectively in terms of Regulation 12(4). Under the regulation the marks obtained in the theory and practical examination for internal assessment are to be added to the marks of theory and practicals at the final examinations and are not to be counted as a separate head. As a separate head, it is limited to obtaining 35% marks for being eligible to appear for the examinations. The explanation given by the Medical Council of India to Regulation 12 should be accepted. Rule 57 as now amended is clearly ultra vires Regulation 12 of Medical Council of India Regulations the rule being inconsistent with the Regulations. Rule 57 has been made by the delegate under the State Act. Regulation 12 has been enacted by a delegate, under the Central Act after following the due procedure. Considering that the Central Act holds the field, which has conferred power on the Council to make Regulations, any provision of law inconsistent with that, will have to be held to be ultra vires. To that extent Rule 57(D) which seeks to hold that the Internal Assessment is an independent head of passing is clearly violative of Regulation 12 and will have to be declared as null and void. The marks obtained in the Internal Assessment, both theory and practical, will have to be added to the theory + oral and practical/clinical marks in terms of the Medical Council of India Regulations as clarified. The candidate would have to obtain 50% marks in theory and practical, in the subject and also obtain aggregate of 50% marks.

       Precedent - Once the Division Bench of High Court has taken a view in writ petition, it is not open to High Court to take a view different from the view taken by the earlier Bench - If the Court is inclined not to accept that view the proper step would be to refer the matter to a larger Bench.

       Precedent - Co-ordinate jurisdiction - View taken by Kerala High Court, a Court of co-ordinate jurisdiction - Though the view is not binding, it had a persuasive value - Courts of co-ordinate jurisdiction as far as possible, if a view taken by a Court of co-ordinate jurisdiction is a view capable of being taken, should normally adopt the same, unless it is found that the view cannot be sustained in view o f the language of the enactment.

       CONSTITUTION OF INDIA, 1950 - Article 141 Precedent Decision of Division Bench Court in normal circumstances avoids taking different view Court with Division Bench not willing to accept given view, can refer issue to be decided by a larger bench. To answer the issue, Court may first consider the contentions advanced on behalf of the university that once the Division Bench of this Court has taken a view in writ petition and other petitions decided is not open to this Court to take a view different from the view taken by the earlier Bench. If the Court s inclined not to accept that view, the proper step would be to refer the matter to a larger bench. Court has no difficulty in accepting that proposition. The question is whether in this case, if Court comes to the conclusion that the Rules as framed by the University are inconsistent with the Regulation of Medical Council of India, it should refer the matter to a larger Bench.

       CONSTITUTION OF INDIA, 1950 - Article 141 Precedent View s expressed by co-ordinate jurisdiction of capable of being acceptance, should normally be adopted If difficult to be followed matter be referred to a larger bench. A view of a Court of coordinate jurisdiction considering that the Medical Council of India is constituted under a Central Act and had framed the Regulations under that Act ought to have been considered or distinguished as normally there ought not to be different interpretations of the same provision in different states. Courts of coordinate jurisdiction as far as possible, if a view taken by a Court of coordinate jurisdiction is a view capable of being taken, should normally adopt the same, unless it found that the view cannot be sustained in view of the language of the enactment. The judgment was not adverted to at all.