Karnataka High Court
Gourishree S/O Gururajrao Kulkarni vs Rajiv Gandhi University Of & Ors on 26 November, 2012
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 26TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
WRIT PETITION NO.86603/2012
C/W W.P.NOS.86604/2012 & 86605/2012 (EDN-AD)
WP NO.86603/2012
Between:
Gourishree,
D/o Gururajrao Kulkarni,
Aged about 22 years,
Occ; Student, r/o Om Shanikar II Phase,
Behind Ram Mandir,
Opp:Goa Hotel, Brhampur,
Gulbarga. .... Petitioner.
(By Sri P.Vilas Kumar, Adv.)
And:
1 Rajiv Gandhi University of Health Sciences,
Karnataka, 4th Block, Jayanagar,
Bangalore - 560 041,
Reptd. by its Registrar.
2
2 Central Council of Homeopathy,
Reptd. by its Secretary,
Jawahar Lal Neharu Bharatiya Avum
Anusandhan Bhavan 61-65,
Opp.D Block, Janak Puri,
Delhi - 110 585.
3 HKE's Homeopathy Medical College,
Gulbarga,
Through its Principal - 585 102. .... Respondents.
(By Sri Veeresh B. Patil, Adv. for R1
Sri Ashok S. Kinagi, Adv. for R3)
WP NO.86604/2012
Between:
Vidyashree Mane,
D/o Venkatesh Mane,
Aged about 22 years,
Occ; Student, r/o HKE Homeopathy College,
Medical College, Gulbarga. .... Petitioner.
(By Sri P.Vilas Kumar, Adv.)
And:
1 Rajiv Gandhi University of Health Sciences,
Karnataka, 4th Block, Jayanagar,
Bangalore - 560 041,
Reptd. by its Registrar.
3
2 Central Council of Homeopathy,
Reptd. by its Secretary,
Jawahar Lal Neharu Bharatiya Avum
Anusandhan Bhavan 61-65,
Opp.D Block, Janak Puri,
Delhi - 110 585.
3 HKE's Homeopathy Medical College,
Gulbarga,
Through its Principal - 585 102. .... Respondents.
(By Sri Veeresh B. Patil, Adv. for R1
Sri Ashok S. Kinagi, Adv. for R3)
WP NO.86605/2012
Between:
M.Anusha Shetty,
D/o Satyanarayana Shetty,
Aged about 20 years,
Occ;Student, R/o H.No.1-3-123/1,
Rajendra Nagar, Mehaboob Nagar,
(Andhra Pradesh). .... Petitioner.
(By Sri P.Vilas Kumar, Adv.)
And:
1 Rajiv Gandhi University of Health Sciences,
Karnataka, 4th Block, Jayanagar,
Bangalore - 560 041,
Reptd. by its Registrar.
4
2 Central Council of Homeopathy,
Reptd. by its Secretary,
Jawahar Lal Neharu Bharatiya Avum
Anusandhan Bhavan 61-65,
Opp.D Block, Janak Puri,
Delhi - 110 585.
3 HKE's Homeopathy Medical College,
Gulbarga,
Through its Principal - 585 102. .... Respondents.
(By Sri Veeresh B. Patil, Adv. for R1
Sri Ashok S. Kinagi, Adv. for R3)
---
These Writ Petitions are filed under Articles 226 & 227 of the
Constitution of India, praying to set aside the Homoeopathy (Degree
Course) B.H.M.S. and Curriculum of respondent No.1 as amended
up-to 2009 in so far as Section IV, which prohibits admission to
BHMS II Year course without passing all the subjects of the 1st year
and specifies maximum attempts of 4 as per Annexures 'B' and
'B1', etc.
These Writ Petitions coming on for Preliminary Hearing in
'B' Group this day, the Court passed the following:
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ORDER
The petitioners have filed these writ petitions for quashing the Revised Ordinance governing Homoeopathy Degree BHMS Course Regulations, 2005 made by the Rajiv Gandhi University of Health Sciences, Bangalore (for short 'the University') in so far as it prohibits admission to BHMS (for short 'Bachelor of Homoeopathy Medical Science') 2nd year degree course without passing all the subjects of first year BHMS course and specifies maximum of four chances to pass all the subjects of I BHMS course. Alternatively, they have sought for a writ of mandamus directing respondent Nos.1 and 2 to permit them to appear for Anatomy examination of I Year BHMS Course scheduled in the month of December, 2012 by exercising the powers under Regulation 14 of Homoeopathy (Degree Course) Regulations, 1983 made by the Central Council of Homeopathy (for short 'CCM').
2. The petitioners had joined the third respondent college for the study of I year BHMS Course for the academic year 2009-2010. 6 The third respondent is affiliated to the first respondent-University. Admittedly, they have failed to complete all the three clinical subjects of I BHMS Course in four chances including the original examination. Therefore, they were not permitted to appear again for the examination in the failed subjects. The University has directed them to get themselves re-admitted to I year BHMS Course.
3. Sri P.Vilas Kumar, learned Counsel appearing for the petitioners submits that the proviso to Ordinance No.11 framed by the University is discriminatory in nature. It only allows a student appearing for the IV year BHMS course to appear at the next examination if he has one subject to pass at the end of the prescribed chances even though he has availed four chances. The special chance provided in the proviso is not available to a student of I Year BHMS course.
4. It is his further submission that the University is authorised to relax the conditions for appearance of the students in the examination under Regulation 14 made by the CCM. In fact, the 7 University has granted permission to one of the students, namely, Kum.Vijayalakshmi Sharanappa Mantri to appear in the examination by exercising the power under Regulation 14(3) of the CCM. The petitioners are entitled for similar relaxation of the conditions to appear for the examination.
5. On the other hand, learned Counsel appearing for the respondents have sought to justify the action of the University.
6. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
7. The University has issued notification dated 22.8.2005 notifying the revised Ordinance with amendments which governs the students admitted to BHMS Degree Course from the academic session 2005-2006 and onwards. Ordinance Nos.10 and 11 are relevant for the purpose of this case, which are as under: 8
"10. Facility to keep term:
a. No student shall be permitted to join the Para- clinical/Clinical group of subjects until he/she has passed all the Pre-clinical subjects of I BHMS for which he/she will be permitted not more than four chances including original examination.
b. A candidate must pass Second BHMS examination at least one term (6 months) before he/she is allowed to appear in the Third BHMS examination.
c. A candidate must pass the Third BHMS at least one term (6 months) before he/she is allowed to appear in the Fourth BHMS examination.
11. Number of Attempts:
If a candidate fails to pass in all the subjects within four chances I or II or III BHMS examination, he/she shall be required to prosecute a further course of study of all the subjects and in all parts for one year to the satisfaction of the head of the college and appear for examination in all the subjects.
Provided that if a student appearing for the Fourth BHMS examination, has only one subject to pass at the end of prescribed chances, he shall be 9 allowed to appear at the next examination in that particular subject and shall complete the examination with this special chance."
8. It is evident from the above Ordinances that no student shall be permitted to join the Para-clinical/Clinical group of subjects until he/she has passed all the Pre-clinical subjects of I BHMS for which he/she will be permitted not more than four chances including original examination. Proviso to Ordinance No.11 states that if a student appearing for the Fourth BHMS examination, has only one subject to pass at the end of prescribed chances, he shall be allowed to appear at the next examination in that particular subject and shall complete the examination with this special chance. The contention of the learned Counsel for the petitioners that proviso to Ordinance No.11 is contrary to Ordinance No.10(a) is without any merit. Proviso is an exception to Ordinance No.10, which makes mandatory for a student to pass in I BHMS examination within four chances including the original examination. The proper function of the proviso is to except and to deal with a case which otherwise would fall within the general language of Ordinance No.10(a). The 10 University has thought it fit to give exemption only in so far as IV BHMS examination is concerned. The students of I BHMS course cannot be equated with the students of IV BHMS Course. I am of the view that proviso to Ordinance No.11 is not discriminatory in nature.
9. The Ordinance was made by the Syndicate of the University in consultation with the Academic Council consisting of Academicians and Experts in the field of Education in health sciences. The University is entitled to determine how the students should be permitted to take up the examination. This Court cannot introduce its own notions in such academic matters. When the University in its wisdom has not provided the chance to a student, who has failed in four attempts to go to the II BHMS Course, this Court cannot direct the University to provide for such a chance contrary to their own Regulations. The students cannot have any inherent right to take the examination in the absence of Ordinance to that effect. The power conferred under Article 226 of the Constitution of India is designed to effectuate the law, to enforce the rule of law, and to ensure that the authorities and the organs of the 11 State act in accordance with law. It cannot be invoked for directing the parties to act contrary to law.
10. At this stage, it is also necessary to examine yet another aspect of the matter. The Homoeopathy Central Council Act, 1973 provides for constitution of a Central Council of Homoeopathy and the maintenance of a Central Registrar of Homoeopathy and for matters connected therewith. Section 20 of the Act provides for minimum standards of education in Homoeopathy. It states that the Central Council may prescribe the minimum standards of education in Homoeopathy, required for granting recognised medical qualifications by Universities, Boards and medical institutions. Regulations have been framed under Section 33(i)(j)and (k) read with Section 20(1) of the Act called Homoeopathy (Degree Course) Regulations, 1983. Regulation 11 provides for results and re- admission to examination, which are as under:
"11. Results and Re-admission to examination:
(i) Examining body may ensure that the results of the examination are published in time so that the student 12 who successfully completes the BHMS examinations can complete the course in 5½ years after admission.
(ii) Candidates who have passed in one or more subjects need not appear in that subject or those subjects again in the subsequent examinations if the candidate passes the whole examination within four chances including the original examination.
(iii) Facility to keep term: Not withstanding with the foregoing regulations, the students shall be allowed the facility to keep term on the following conditions:
(a) The candidate must pass the Second BHMS examination at least one term (6 months) before he is allowed to appear in the Third BHMS examination.
(b) The candidate must pass the Third BHMS examination at least one term (6 months) before he is allowed to appear in the Fourth BHMS examination.
(c) No candidate shall be given more than 4 chances to appear in First BHMS examination in the same subject.13
(iv) A candidate who appears at Second or Third BHMS examination, but fails to pass in the subject or subjects, he may be admitted to the next examination in the subject or subjects. However, candidates shall be allowed to keep term as provided in (iii) above.
(v) Special classes, seminars, demonstrations, practical, tutorials, etc., shall be arranged for the repeaters in the subject in which they have failed before they are allowed to appear at the next examination, in which attendance shall be compulsory.
(vi) If a candidate fails to pass in all the subjects within four chances in examinations, he shall be required to prosecute a further course of studying all the subjects and in all parts for one year to the satisfaction of the head of the college and appearing for examination in all the subjects.
Provided that if a student appearing for the Fourth BHMS examination has only one subject to pass at the end of prescribed chances, he shall be allowed to appear at the next examination in that particular subject and shall complete the examination with this special chance."
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11. Regulation 14(3) authorises the University or medical institution, which grants medical qualification to relax the requirement of the Regulations to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. The said Regulation is as under:
"14. Miscellaneous:
(i) xxxxxx xxxxx xxxxx
(ii) xxxxxx xxxxx xxxxx
(iii) Power to relax: Where any University, or Medical Institution in India which grants medical qualification, is satisfied that the operation of any of these Regulations causes undue hardship in any particular case, that University or Medical Institution as the case may be, may by order, for reasons recorded in writing, dispense or relax the requirement of that Regulation in such an extent and subject to such 15 exceptions and conditions as it may be consider necessary for dealing with the case in a just and equitable manner."
12. The Regulations of the Central Council prescribes minimum standards of education in Homoeopathy. There is no bar for the University to fix higher standard for passing the examination. A Constitution Bench of the Apex Court in DR.PREETHI SRIVASTAVA AND ANOTHER VS. STATE OF MADHYA PRADESH AND OTHERS - AIR 1999 SC 2894 has held as under:
"State may, for admission to the Post-graduate Courses lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education."16
13. Again in STATE OF TAMILNADU AND ANOTHER VS. S.V.BRATHEEP (MINOR) AND OTHERS - AIR 2004 SC 1861, the Apex Court has held as under:
"If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, it cannot be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it."
14. Ordinance No.10(a) made by the University and Regulation 11(c) are more or less similar. This Ordinance/Regulation states that no candidate shall be given more than four chances to appear in I BHMS examination in the same subject. However, Regulation 14(b) of the CCM authorises the University or the Medical Institution to relax the requirement of a Regulation to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. There cannot be any bar for the University to lay a higher standard. The Ordinance of the University does not provide for relaxing of the conditions prescribed therein for 17 promoting a student to II BHMS Degree Course contrary to Ordinance No.10(a). The said conditions have been relaxed only in respect of IV BHMS students. This is certainly a higher standard laid down by the University in so far as I BHMS Course is concerned, which is permissible in law.
15. This question can also be examined from another angle. Regulation 14(3) no doubt authorises the University to relax the requirement of a particular Regulation subject to such exceptions and conditions as it may consider necessary for dealing with such in a just and equitable manner. Power to relax is available to a University when the Regulations of the CCM are being implemented because the Regulation uses the expressions "is satisfied that the operation of any of these Regulations cause undue hardship". In the instant case, the University is applying the Revised Ordinance of 2009, wherein provision to relax the condition of passing I BHMS Course has not been made. Therefore, it cannot relax the requirement of the said Ordinance.
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16. The University in its wisdom has framed the revised Ordinance governing BHMS Degree Course fixing certain higher criteria for passing in the I BHMS course. The Ordinance does not authorise the University to relax the conditions for passing the I BHMS course. Therefore, it cannot exercise the power to relax the conditions provided under the Central Regulations and lower the standard of passing, which is contrary to the Revised Ordinance.
17. It is also necessary to consider yet another argument of Sri Vilas Kumar, learned Counsel appearing for the petitioners that University has relaxed the conditions for appearance in the examination in respect of some of the students of I BHMS course. It is well settled that this Court cannot direct the University to permit the petitioners to appear for the examination contrary to the relevant Ordinance even if the University had allowed the students to appear for the examination in question contrary to the said Ordinance. This Court cannot permit the petitioners to appear for the examination on the ground of discrimination. Two wrongs do not make a right. It is settled that a party cannot claim that since something wrong has 19 been done in another case, direction should be given for doing another wrong. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is the existence of similar legal foothold. No one has a right to claim performance of an unlawful or illegal act. The jurisdiction under Article 226 is not intended to perpetuate illegalities, but to strike at them. On the ground that grant of benefit of an illegality to only a few would amount to discrimination, the Court cannot direct an authority to repeat the illegality or extend the benefit of the illegality to others. If a person who has a legal right is denied the benefit of it while others having a similar right are given the benefit of such right, then there is discrimination to ensure that he also gets a similar benefit. But if a person who does not have a right is given a benefit contrary to law, then the illegal act itself will be struck down and there can never be a mandamus to repeat the illegal act to favour others. (See UNION OF INDIA & ANOTHER VS.
INTERNATIONAL TRADING CO. & ANOTHER - (2003) 5 SCC
437).
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18. There is no merit in these writ petitions. They are accordingly dismissed. No costs.
Sd/-
JUDGE.
BMM/-