Making a student to re-appear for all papers, for failing in one subject, to pass the course is arbitrary and unconstitutional: HC

“ …… what is the purpose in requiring the candidate to write all the four theory papers again if he has failed in one practical or undergo Clinical/Practical tests again for all the subjects if he has failed in one theory paper? Repetitive undertaking of examinations after having secured the minimum prescribed does not scale up the standard and can only be termed as oppressive from the point of view of the student.”

…. Kerala High Court

The Kerala High Court in a landmark Judgement while setting aside a Kerala University of Health Sciences Regulations has held that making a student to re-appear in all the papers to pass a course, just because he has failed in a single paper in first attempt or thereafter in arbitrary, unconstitutional and violative of Article 14 of Constitution of India.

kerala high court

The case involved Post-graduate medical students who have failed, either because they did not secure the minimum in one of the four theory papers or in one of the clinical/practical tests and were made to re-appear in all the papers to pass the course. The petitioners have not been declared successful in the Post-graduate Medical Course for the reason that they have failed to secure the minimum for the theory and the practical in all the subjects simultaneously.

The petitioners contended that they should be permitted to appear for the theory or the clinical/practical (in which they have failed) without insisting on the appearance for all the papers and practical again. They also argued that such insistence is violative of Constitution of India and does not serve any purpose. It was also their argument that such practice has no nexus with maintaining the standards of education.

Kerala University of Health Sciences in response contended that the candidates cannot pass the examinations piece-meal. The right of the University to prescribe stricter conditions for a Post- graduate medical student to be declared passed is emphasised stating that it is only a step for raising the level of standard. The University adds that its autonomy to fix higher standards in order to declare a candidate as having passed the Post-graduate medical examination cannot be interfered with in exercise of the writ jurisdiction.

KUHS

The rule under challenge was Clause 3.16. of KUHS Regulations of Post- graduate Medical Courses which prescribes that a candidate who has secured minimum of 50 percent marks for theory (40 percent separate minimum for each paper), 50 percent for Clinical/Practical including oral shall be declared to have passed in that subject. A candidate who fails in one subject either theory/practical shall have to appear for all the papers including theory and practical.

It was however, noted by the Court that in the corresponding clause in the MCI Regulations there is no insistence that the candidate who has failed in one subject either theory or practical should again appear for all the papers including theory and practical in the MCI Regulations as in the KUHS Regulations. Even in the Affidavit filed by Medical Council of India there was conspicuous silence as to whether the MCI Regulations insist on a simultaneous pass in the theory and practical.

The Judge however noted the contradiction in the two rules and felt that one cannot lose sight of the fact that a candidate could be declared as ‘passed’ if the MCI Regulations are adopted and at the same time declared as ‘failed’ if the KUHS Regulations are adopted.

After examining all the Rules and hearing the arguments of the parties, the Hon’ble Court while deprecating the practice of re-appearing in all the papers to pass, because he failed in one subject in first attempt, held that:

One can understand if the candidate is required to appear again in the theory and related practical of the particular paper if he has failed to secure the minimum prescribed in that subject as per the norms. But what is the purpose in requiring the candidate to write all the four theory papers again if he has failed in one practical or undergo Clinical/Practical tests again for all the subjects if he has failed in one theory paper? Repetitive undertaking of examinations after having secured the minimum prescribed does not scale up the standard and can only be termed as oppressive from the point of view of the student. The repetitive appearance in examinations under the KUHS Regulations has no rationale nexus with the object sought to be achieved and is obviously violative of Article 14 of the Constitution of India.

The mental anguish which a student has to face in the event of his losing a theory or practical by marginal marks necessitating re-appearance for all the papers in theory and practical in order to secure a pass is unimaginable. It is possible that a candidate who has passed in the first attempt may fail in the same examination in the second attempt and the vicious circle of pass and fail will only result in unfairness to the extreme.

The High Court eventually held that Clause 3.16 of the KUHS Regulations to the extent it insists that ‘a candidate who fails in one subject either theory/practical shall have to appear for all the papers including theory and practical’ is unreasonable and arbitrary.

mci

It however, also asked Medical Council of India to clarify as to whether each candidate should simultaneously pass the theory and practical securing 50 percent marks in each which can be incorporated in the KUHS Regulations appropriately.

EduLegaL View:

“Arbitrariness” is generally tested on touchstone of the parameters of Article 14 of Constitution of India. It also includes in itself a principle that a law / rule should have reasonable nexus [connection] to the object of the law / rule.

In our view, making a student re-appear for the entire paper to achieve the academic award, merely because he has failed in one of the papers does not achieve any object of high standard of education. Such practice is not only unconstitutional but also regressive and oppressive. It is legalized exploitation. In this throat cutting edge of competition, liberalization should be the guiding factor for the regulators.

If a student is asked to re-appear in all the papers, will it increase the standards, the answer is big NO. Then why have such rule.

Just imagine the agony of a student, he has to undergo all the papers again, read the same material all over again, which may enhance his application skills but only create a culture of “repetitiveness” or “ratta” [as they call in Hindi]. This will create bookworms than sharp professionals.

Ravi Bhardwaj | mail@edulegal.in

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