writ of mandamus declaring the action of respondents in awarding less marks in practicals of final year MBBS Part-II examination held during March 2021 and thereby failing the petitioners in final year MBBS Part-II as illegal, arbitrary and contrary to the guidelines for MBBS courses and syllabus prescribed by 2nd respondent University and also violative of Articles 14, 16 & 21 of Constitution of India = In similar circumstances, the Hon’ble Apex Court, vide order dated 18.06.2021 in W.P.(Civil) No.631/2021, while declining the prayer of the petitioners therein, who were final Post Graduate medical students, to waive their examinations and to promote them as Senior Residents and to the Post Doctoral level, held thus: “3. The petitioners have also questioned advisories regarding post graduate courses/examinations issued by the National Medical Commission being Annexures P3 and P4 to the writ petition and in effect sought orders of this Court directing the Respondent authorities to make relaxations in norms and criteria fixed as per policy decision in relation to medical education at the post graduate stage. It is impermissible for Courts exercising powers under Article 32 and/or Article 226 of the Constitution of India to interfere with or regulate policy matters or to sit in appeal therefrom.” So, at the outset this writ petition itself is not maintainable. Accordingly, this Writ Petition is dismissed.

AP HIGH COURT

 HON’BLE SRI JUSTICE U.DURGA PRASAD RAO

Writ Petition No.10878 of 2021

ORDER:

The petitioners pray for writ of mandamus declaring the action of

respondents in awarding less marks in practicals of final year MBBS Part-II

examination held during March 2021 and thereby failing the petitioners in

final year MBBS Part-II as illegal, arbitrary and contrary to the guidelines

for MBBS courses and syllabus prescribed by 2nd respondent University and

also violative of Articles 14, 16 & 21 of Constitution of India and

consequently direct the respondents 2 & 3 to award minimum qualifying

marks in MBBS final Part-II practical examination and pass them.

2. The petitioners’ case succinctly is thus:

 The petitioners are prosecuting MBBS course in 4th respondent

college. They joined 1st year MBBS during the Academic Year 2015-16 and

completed all the semesters including final year MBBS Part-I.

 While so, due to the COVID-19 pandemic, respondent No.3

conducted online classes to the students. However, there was no regular

correspondence with the concerned faculties for better understanding and

guidance. Respondent No.2 university issued notification on 30.01.2020 to

conduct final year exams of MBBS. Final year MBBS Part-II theory exams

were scheduled from 02.03.2021 to 12.03.2021 and practicals were

scheduled to be held on 22.03.2021. As per curriculum, final year MBBS

Part-II consists of four subjects viz.,

(1)General Medicine (Medicine)

(2)Paediatrics

(3)General Surgery including Paediatric Surgery, Orthopaedics and

Traumatology (Surgery) and

(4)Obstetrics and Gynaecology 

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As per guidelines, a student should score 50% in theory and practicals

and 35% as pass marks in internals and should score an aggregate of 50%

for qualifying the semesters. Teaching methodology is concerned, there

should be a minimum of 370 classes, out of which 1/3rd should be for theory

and remaining 2/3rd should be for lectures/demonstrations/integrated

teaching. However, due to COVID-19 pandemic the prescribed classes were

not conducted for theory as well as practicals, but the services of students of

final year were utilized for the treatment of COVID positive patients, due to

which some of the petitioners were affected with COVID.

In the above backdrop, the petitioners appeared for the exams

conducted by 2nd respondent University in the month of March 2021. As per

guidelines, the marks in practical exams were awarded by the professors of

the University or 3rd party colleges. During the practical examination the

petitioners performed to their level best though practical training for the

prescribed period was not conducted. The petitioners also appeared for the

theory exams. In the second week of April 2021 the 2nd respondent declared

the results. To their surprise, the petitioners failed on the ground that they

have not scored prescribed marks in practical exams within a margin of 5 to

10 marks. However, they were all passed in theory, oral and internal

assessments. It is not out of place to mention that for conducting regular

classes and practical training certain conditions were imposed during the

lockdown period, however, the 2nd respondent did not relax the conditions in

awarding marks in practical exams. The students who are having

background of medical hospital facility were passed. Due to awarding less

marks in practicals, the petitioners have to again attend all the papers once 

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again though they secured good marks in theory papers, which is much

tougher than other. As such the petitioners made representations to the

respondents 2 & 3 for reassessment of practical marks which were awarded

contrary to syllabus guidelines. But the respondents disinclined to reassess

the marks on the ground that no guidelines were prescribed for reassessment

of marks. Due to the unjustified acts of the respondents, the petitioners

would lose one academic year without their fault. Though the Government

extended all benefits to all the students in view of the COVID-19 pandemic,

respondent No.2 University did not take into consideration the same and

deprived the petitioners such benefits which amounts to violation of their

fundamental rights.

Hence, the writ petition.

3. The 3rd respondent filed counter opposing the writ petition and inter

alia contending thus:

MBBS course is governed by the regulations prescribed by the Apex

body i.e., National Medical Commission (NMC)/5th respondent. Being the

student of a professional course, each one shall acquire sufficient skills both

in theory and practical examinations to undertake responsibilities of a

physician of first contact who is capable of looking after the preventive,

promotive, curative and rehabilitative aspects of medical care.

The final MBBS part-II theory and practical examinations were

conducted as per the guidelines dated 29.11.2020 of NMC and letter dated

25.11.2020. All the Principals are advised that they shall ensure strict

compliance of guidelines issued by the Ministry of Health & Family Welfare

and respective State/U.T. Governments about COVID-19 preventive 

4

measures including social distancing, use of masks and sanitization

measures in hostels, classrooms, laboratories, lecture theatres and common

spaces etc. by following safety precautions.

Following the above guidelines the NMC, the eligible teachers were

appointed under Rule 13-Apppointment of examiners. The guidelines are:

1. No person shall be appointed as an examiner in any of the

subjects of the professional examination including final

professional examinations for awarding MBBS degree,

unless he/she has taken doctorate degree of a recognized

university or an equivalent qualification in the particular

subject as per the recommendation of the Council on

teachers’ eligibility qualifications and has had atleast five

years of total teaching experience in the subject concerned in

a college affiliated to a recognized university at a faculty

position.

2. There shall be atleast four examiners for 100 students, out of

whom not less than 50% must be external examiners. Out of

four examiners, the senior most internal examiner will act as

the Chairman and coordinator of the whole examination

programme, so that uniformity in the matter of assessment

of candidates is maintained. Where candidates appearing

are more than 100, one additional examiner for every

additional 50 or part thereof candidates appearing, be

appointed.

3. Non medical scientists engaged in the teaching of medical

students as whole time teachers, may be appointed as

examiners in their concerned subjects provided they possess

requisite doctorate qualifications and five year teaching

experience after obtaining their postgraduate qualifications.

Provided further that the 50% of the examiners (Internal &

External) are from the medical qualification stream. 

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4. External examiners shall not be from the same university

and preferably be from outside the state. (5) The internal

examiner in a subject shall not accept external examinership

for a college from which external examiner is appointed in

his subject.

5. A university having more than one college shall have

separate sets of examiners for each college, with internal

examiners from the concerned college.

6. External examiners shall rotate at an interval of 2 years.

7. There shall be a Chairman of the Board of paper-setters who

shall be an internal examiner and shall moderate the

questions.

8. Except Head of the department of subject concerned in a

college/institution, all other with the rank of reader or

equivalent and above with requisite qualifications and

experience shall be appointed as internal examiners by

rotation in their subjects; provided that where there are no

posts of readers, then an Assistant Professor of 5 years

standing may be considered for appointment as examiner.

Apart from the above regulations prescribed by NMC, the respondent

university also observed the revised guidelines in appointing the suitable

examiners to conduct exams not only at Narayana Medical College, Nellore,

but also other colleges in the entire State as per the letters dated 25.11.2020

and 28.01.2021 of the Secretary, NMC. After taking into consideration the

above guidelines of the advisory committee, the respondent university has

appointed eligible examiners in the subject of Surgery with three internals

and three externals, wherein one examiner is from the department of

Orthopedics i.e, (2+1), two examiners of Surgery and one examiner in

Orthopedics including Professor & HOD of Narayana Medical College,

Nellore. 

6

 The students failed in the clinical examination need more clinical

coverage as it is the professional examination and they did not acquire

sufficient clinical skills to pass the examination which was assessed by six

eligible examiners/teachers.

 The NMC issued proceedings/Advisory dated 28.01.2021 stating that

the provisions have been amended and instructed the universities including

the respondent university that they adopt the above guidelines for

conducting examinations of MBBS batches who were admitted prior to the

Academic Year 2019-20 also. The petitioners are covered by the above

amended clause and thereby they are not entitled to any relief and their

prayer is contrary to the amended proceedings letter dated 28.01.2021.

 The clinical examination in the subject of Surgery at Narayana

Medical college, Nellore was held for a period of ten days i.e., from

23.03.2021 to 01.04.2021 by allowing a maximum of 25 students per day for

the examination. Therefore, erroneous/less awarding of marks by the

teachers is not at all feasible as there were sufficient number of teachers to

examine on each day. There are no merits in the writ petition and hence,

the same may be dismissed.

4. Heard arguments of the senior counsel Sri N.Subba Rao representing

Sri Soma Harinatha Reddy, counsel for petitioners, and learned Government

Pleader for Medical Health & Family Welfare representing the 1st

respondent, Sri G.Vijay Kumar, Standing Counsel for the respondents 2 & 3,

and Sri S.Vivek Chandra Sekhar, Standing Counsel for 5th respondent.

5. The point for consideration is whether there are merits in the writ

petition to allow? 

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6. Point: The fulcrum of the argument of learned senior counsel Sri

N.Subba Rao is that the petitioners are final year MBBS students and final

year MBBS Part-II theory examinations were scheduled from 02.03.2021 to

12.03.2021 and practicals were scheduled to be held on 22.03.2021.

However, since December 2019 world was caught under the grip of COVID19 pandemic and it spread to India in March 2020. Therefore, regular

classes were held only upto March 2020 and thereafter due to lockdown

imposed by the Central Government, theory and practicals could not be

conducted systematically. Though virtual teaching was commenced in the

colleges through online method, they were hardly competitive to impart

medical knowledge to the petitioners. Moreover, practical/clinical classes

were hardly conducted. Therefore, the petitioners were deprived of the

valuable theoretical lectures and practical training through physical mode

and thereby they could not fare well in the exams despite the fact that they

are intelligents by nature. Above all, the service of the petitioners, who are

final year students, were utilized for the treatment of COVID patients, due to

which some of the petitioners were also affected with COVID. Learned

counsel submitted, in this backdrop, the petitioners appeared for the exams

and they failed in practical exams with a narrow margin of 5 to 10 marks.

As such the petitioners made a representation to the respondents 2 & 3 for

reassessment of the practical marks, which were awarded contrary to the

syllabus guidelines, however, respondents declined to reassess the marks on

the ground that there were no guidelines for reassessment as prayed for.

Learned counsel argued that all other educational institutions have given

concession to their students in view of the COVID-19 pandemic keeping in 

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view the valuable academic career of the students. However, despite the

representation the 2nd respondent university did not consider the legitimate

prayer of the petitioners. Hence, their fundamental right is violated. He thus

prayed to allow the writ petition.

7. Severely opposing the writ petition, learned Standing Counsel for 2nd

respondent Sri G.Vijay Kumar argued that the MBBS course is governed by

the regulations prescribed by the Apex body i.e., National Medical

Commission and all the medical universities are bound by those regulations.

While so, during the COVID period, the NMC wrote a letter dated

12.11.2020 to the Ministry of Health & Family Welfare, Government of

India, recommending that medical colleges across the country must be

reopened on or before 01.12.2020 for the MBBS students who are already

pursuing the course and with the opening of medical colleges, in order to

facilitate UG training, all medical college affiliated hospitals would need to

have sufficient number of beds for non-COVID patients. The NMC further

recommended that the colleges shall abide with the COVID-19 reopening

guidelines issued by the Competent authorities in the Central/State/UT

Governments and the proposed schedule of medical training shall commence

on or before 01.12.2020. The NMC requested the Central Government to

issue necessary directions in that regard to all the State Governments for

reopening of the medical colleges. Consequently the Central Government in

its letter dated 25.11.2020 instructed the States/Union Territories to take

necessary steps to open the medical colleges on or before 01.12.2020.

Learned counsel thus argued that in spite of the prevalence of COVID-19

pandemic, the NMC took steps to reopen the medical colleges by 01.12.2020 

9

and to conduct classes. Even before that, online classes were conducted. So

the petitioners cannot harp that they are not provided with sufficient teaching

in theory and practicals. He argued that to his information, except the

present petitioners no other students in the country rushed to the Court with

a prayer as made by the petitioners. He thus prayed to dismiss the writ

petition.

8. Learned Standing Counsel for 5th respondent also argued in similar

lines and emphasized that the regulations framed by the NMC and

consequent guidelines issued by the 2nd respondent university do not permit

to consider the request of the petitioners to award marks liberally in

practicals in spite of the poor performance of the students like petitioners.

9. I gave my anxious consideration to the above respective arguments.

The petitioners attribute their failure in final year MBBS practicals

examinations to the awarding of less marks by the respondent authorities

despite the fact that no proper teaching in theory and practicals was

conducted owing to COVID-19 pandemic. However, the contention of the

respondents is that in spite of the prevalence of COVID-19 pandemic, online

theory and practical classes were conducted and further, steps were taken to

reopen the medical colleges from 01.12.2020 to impart regular teaching and

clinical training and therefore, the petitioners cannot harp that no training

was provided to them. It is also their contention that the Regulations do not

provide any leeway to award marks in practicals despite poor performance

by the students. 

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10. I find force in the contention of the respondents. It is true that due to

COVID-19 pandemic there was some disruption in conducting theory

classes and practicals due to total lockdown. However, the recommendations

made by the NMC to the Ministry of Healthy & Family Welfare,

Government of India, vide its letter dated 12.11.2020, a copy of which is

filed along with counter affidavit, would show that the NMC has strongly

recommended that medical colleges across the country should be reopened

on or before 01.12.2020 for MBBS students who are already pursuing their

course. It is further recommended that with the opening of the medical

colleges, in order to facilitate UG training, all hospitals affiliated to medical

colleges would need to have sufficient number of beds for non-COVID

patients. Those recommendations were communicated by the Central

Government to the State/UT Governments vide its letter dated 25.11.2020.

Thus, as rightly argued by the learned counsel for respondents, the NMC and

the Central and State Governments have taken steps for reopening of the

medical colleges by 01.12.2020 to impart teaching and training. Besides,

online teaching was already going on by that time. Therefore, the petitioners

cannot harp that they were deprived of valuable teaching and training and

that was the sole reason for their failure in the practicals. It is pertinent to

point out that no students throughout the country including the petitioners

challenged the holding of exams on the ground that through virtual teaching

methodology, they could not understand the subjects and thereby they were

not in a position to write the exams. On the other hand, all the students,

including the petitioners, appeared in the annual examinations, in which

some students got through and some others including the petitioners failed.

So, at the outset, the petitioners cannot now clamour that online teaching 

11

system had had adverse impact on their grasping power and thereby they

failed in the examination. When holding of examinations is not challenged,

the petitioners cannot attribute virtual teaching method as the cause for their

failure and on that ground they cannot seek for awarding marks liberally to

get through the practical exams.

 Added to the above, the regulations i.e., “Regulation on Graduate

Medical Education (Amendment) 2019” framed by the NMC do not contain

any provision to award marks liberally in some contingencies. On the other

hand, the regulations would project that the aim of the medical profession is

“help for all” and in that view, the sub-standard students cannot somehow be

elevated to higher classes which would degenerate the medical profession.

 Above all, this Court while exercising the plenary jurisdiction under

Article 226, cannot direct the statutory authorities like 2nd respondent

university and 5th respondent-NMC to award marks to the petitioners when

seemingly there was no violation of any fundamental right or other statutory

rights. In similar circumstances, the Hon’ble Apex Court, vide order dated

18.06.2021 in W.P.(Civil) No.631/2021, while declining the prayer of the

petitioners therein, who were final Post Graduate medical students, to waive

their examinations and to promote them as Senior Residents and to the Post

Doctoral level, held thus:

“3. The petitioners have also questioned advisories regarding post

graduate courses/examinations issued by the National Medical

Commission being Annexures P3 and P4 to the writ petition and in effect

sought orders of this Court directing the Respondent authorities to make

relaxations in norms and criteria fixed as per policy decision in relation to

medical education at the post graduate stage. It is impermissible for Courts

exercising powers under Article 32 and/or Article 226 of the Constitution

of India to interfere with or regulate policy matters or to sit in appeal

therefrom.” 

12

11. So, at the outset this writ petition itself is not maintainable.

Accordingly, this Writ Petition is dismissed. No costs.

As a sequel, interlocutory applications, if any pending, shall stand

closed.

 _________________________

 U. DURGA PRASAD RAO, J

05.08.2021

MVA