Punjab-Haryana High Court
Ankush Nayyar S/O Mr. Ashok Kumar ... vs Baba Farid University Of Health ... on 27 February, 2003
Author: S.S. Grewal
Bench: S.S. Grewal
JUDGMENT G.S. Singhvi, J.
1. Whether the petitioners are entitled to be admitted to the Second Professional MBBS course without passing First Professional examination and whether the Court can direct regularisation of their provisional admissions in the Second Professional MBBS course or appearance in the examination in pursuance of the interim orders passed during the pendency of the writ petition are the common questions which arise for determination in this petition.
The facts:
2. On the basis of their placement in the merit list prepared by Baba Farid University of Health Sciences, Faridkot (for short, 'the University') which was appointed by the Government of Punjab to hold test for admission to Medical and Dental Courses in government and private Medical Colleges/Institute in the State, the petitioners were admitted to 5-1/2 years MBBS professional course at Government Medical College and Hospital, Patiala in July, 2000 against the seats ear-marked for Non-Resident Indians. They appeared in the First Professional examination held in July, 2001 but failed to clear the same and were declared eligible to re-appear in one or two papers. They appeared in the supplementary examination held in November, 2001, the result whereof was declared on 8.1.2002. All of them cleared the papers in which they had re-appeared. In the meanwhile, they are said to have deposited fee and other charges for Second MBBS Professional course. They also deposited examination fee in September, 2002. However, the University authorities did not entertain their candidature on the ground that they had not completed 18 months study as required under para 3.1 of the Ordinances framed by the University and this is the reason why they have sought the Court's intervention for quashing the decision taken by the University not to allow them to take Second Professional examination and also prayed for issuance of a direction to respondents No. 1 and 2 to permit them to appear in the examination to be held in November/December, 2002.
3. The stand taken by the University is that in view of the provisions contained in the prospectus and Medical Council of India Regulations of Post Graduate Medical Education, 1997 (for short, 'the Regulations'), a candidate has to study for a minimum period of 18 months before he can be allowed to take the Second Professional examination and as none of the petitioners has completed the required period of study, they cannot be permitted to appear in the ensuring examination.
4. We have heard learned counsel for the parties and perused the record.
5. For deciding whether the petitioners have the right to appear in the Second Professional examination, we may refer to paragraphs 3.1, 4 and 11 of the Ordinances framed by the University which read as under:
"Paragraph 3.1 Duration of the Course 3.1 The Course of study for the degree of MBBS shall consist of 5 1/2 years (nine semester of
6 months each), including one year of compulsory rotating internship, as outlined under Order 13 infra. The period of 4 1/2 years of study shall be divided into three phases as under:-
(i) Phase I (Pre-Course) of a duration of one year (Two Semesters).
(ii) Phase II (Para-Clinical Subjects of a duration of one-and-a-half year (Three Semesters); and
(iii) Phase III (Clinical Subjects) of a duration of two years (four Semesters).
Paragraph 4 University Examinations.
4. All University examinations shall be held twice a year a. First Professional examination at the end of Phase I during the second semester.
b. Second Professional examination at the end of Phase II during the fifth semester.
c. Third Professional Part I examination at the end of the 7th semester, and d. Third professional part II examination at the end of the ninth semester.
Note: Supplementary examinations for first Prof. MBBS students who could not clear all their subjects or any one of the subjects shall be held in September.
Paragraph 11.
11. A candidate who passes in one or more subjects of a professional examination will be exempted from appearing in that subject (s):
Provided further that a candidate who is not able to clear the first Professional examination in the four consecutive chances, including the one at which he first appeared, shall not be allowed to continue studies for the medical course.
Further provided that in the subsequent professional examinations the candidate has to clear all the subjects within 6 consecutive chances including the first examination, failing which he/she shall have to appear in the whole examination;
If, however, a student is unable to appear in the examination and misses one or more chances due to his own illness, may, on an application preferred by the student and accompanied by a proper medical certificate and recommended by the Principal of the College/Institute be given an additional chance to clear the examination, but this additional chance will be immediately next to the last admissible chance.
Note: (a) A candidate who does not pass in all the subjects of the First Professional examination shall not be allowed admission in the phase II training programme.
(b) A candidate who fails in the Second Prof. examination shall not be allowed to appear in the 3rd Prof. Part-I examination unless he passes all the subjects of Second Prof. Examination although he may attend the training programme of Phase III.
Similarly, a candidates failing in 3rd Prof. Part I examination may enter for 8th & 9th Semester training but he shall not be allowed to appear in the 3rd Prof. Part-II (Final Professional) examination unless he clears all the subjects of Part-I examination."
6. Note 4 appearing below paragraph 4, as amended by the Board of Management of the University up to 5.12.2001, reads as under:
"Supplementary examinations for First Prof. MBBS students shall be conducted within 6 months after the Annual Examination."
7. Note (b) appearing below paragraph 11 was deleted by the Board of Management of the University in December, 2001.
8. Regulations 7(3) and 8 of the Regulations framed by the MCI also read as under:
"7(3) The First 2 semester (approximately 240 teaching days) shall be occupied in the Phase I (Pre-clinical) subjects and introduction to a broader understanding of the perspectives of medical education leading to delivery of health care. No student shall be permitted to join the Phase II (para-clinical/clinical) group of subjects until he has passed in all the Phase I (Pre-clinical) subjects for which he will be permitted not more than four chances (actual examination), provided four chances are completed in three years from the date of appointment.
8(a) Passing in Ist Professional in compulsory before proceeding to Phase II training.
(b) a student who fails in the IInd professional examination, shall not be allowed to appear in IIIrd Professional Part I examination unless he passed all subjects of IInd Professional examination.
(c) Passing in IIIrd Professional (Part I) examination is not compulsory before entering for 8th and 9th semester training, however passing of IIIrd Professional (Part I) is compulsory for being eligible for IIIrd Professional (Part II) examination.
During third to ninth semesters, clinical postings of three hours duration daily as specified in the Table below is suggested for various departments, after introductory Courses in Clinical Methods in Medicine and Surgery of two weeks each for the whole class."
9. A conjoint reading of the provisions reproduced above shows that there is no conflict between the Regulations framed by the Council and the Ordinances framed by the University on the issue of eligibility of a candidate to be admitted to the Second Professional course without passing First Professional examination in all the subjects. Rather, Note (a) of paragraph 11 of the University Ordinance(SIC) is wholly consistent with the second part of Regulation 7(3) and Regulation 8(a) of the Regulations framed by the Council which makes the passing of First Professional compulsory before a student can be permitted to join Phase-II of the course. Likewise, there is inconsistency in the Regulations and the Ordinances on the requirement of 18 months' study which a student of Second Professional MBBS course must undertake before he can be allowed to appear in the Second Professional examination.
10. In view of the above, it must be held that respondent No. 2 did not commit any illegality by refusing admission to the petitioners in C.W.P. Nos. 15899 and 16696 of 2002 in the Second Professional MBBS course on the ground that they had failed to clear the First Professional MBBS course. Similarly, no illegality was committed by the said respondent by refusing to allow the petitioners in C.W.P. No. 16134 of 2002 to take the examination of Second Professional MBBS course because they had not completed 18 months study.
11. The question whether the State or the University can frame regulations in the field of Medical Education has been considered by the Supreme Court in a large number of cases. However, we do not consider it proper to burden this order by making reference to all the decisions because the same have been considered by the Constitution Bench in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors., (1999) 7 SCC 120. In that case, the majority of the Constitution Bench referred to Entry 66 of List-I and Entry -25 of List-III of the Seventh Schedule to the Constitution and the provisions of the Medical Council of India Act, 1956 and held as under:
"In view of Entry 25 of List III of the Seventh Schedule to the Constitution, both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also chlorinating of such standards. A state has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education, because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
It would not be correct to say that the norms for admission have no connection with the standards of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical 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 does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors.
While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. Further, education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the caliber of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is a highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses.
Admission must be made on the basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words 'eligibility' and 'qualification' have been used interchangeably, and in some cases a distinction has been made between the two words--'eligibility' connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while 'qualifications' connoting the additional norms laid down by the colleges or by the state. In every case, the minimum standards as laid down by the Central statute mor under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner which does not dilute the criteria so laid down. Thus once the minimum standards are laid down by the authority having the power to do so, any further qualifications laid down by the State which will lead to the selection of better students cannot be challenged on the ground that it is contrary to what has been laid down by the authority concerned. But the action of the State is valid because it does not adversely impinge on the standards prescribed by the appropriate authority."
12. By applying the ratio of the above-mentioned decision to the cases in hand, we hold that the University had the jurisdiction to lay down condition for admission to the next higher class/phase of the course for maintaining the standard of Medical Education in the colleges affiliated to it and note (a) of paragraph 11 is in no way inconsistent with the Regulations framed by the MCI.
13. We are further of the view that the petitioners cannot be allowed to take examination of Second Professional MBBS course because they do not fulfil the condition of eligibility, namely, 18 months study in the course. The mere fact that the petitioners have passed the supplementary examination of First Professional MBBS course cannot ipso facto entitle them to appear in the Second Professional examination without fulfilling the statutory condition of 18 months study. In Council of Homeopathic System of Medicine v. Suchintan and Ors., JT 1993(7) SC 727, the Supreme Court considered the question whether a student who has passed supplementary examination can be allowed to take examination of the next class without fulfilling the requirement of minimum period of study and answered the same in the negative in the following words:
"Whatever it is, a candidate has to complete all the subjects within four chances. Should he fail to do so, he will have to undergo the course in all subjects for one year unless of course, he get the exemption as stated in proviso to Clause (vii). Nowhere do, we find in Regulation 11 'a system of carry forward'. On the contrary, it is detention every year. The High Court was moved by the fact that if a candidate were to pass in supplementary examination after passing the examination, he will have to remain at home till the next annual examination. So, he is allowed to undergo a course for next academic year provisionally. On this line of reasoning, Clause (iv) & (vi)) of Regulation 11 are sought to be "harmoniously construed". We are unable to accept this line of reasoning or the so called harmonious construction because it does violence to the language of the Regulation. it clearly violates the mandatory requirements of Regulation 9. It has already been noted as (SIC) what those requirements are. To repeat.
i) The lapse of one year period between the passing of First D.H.M.S. examination and taking the Second D.H.M.S. examination.
ii) Subsequent to the passing of the First D.H.M.S. examination to undergo the course of study for one year. Therefore, if a candidate passes in the supplementary examination, the requirement of one year cannot be enforced.
Worse still is a case of a student who passes only at the next annual examination. Could he be allowed to take the Second D.H.M.S. examination without even completing the First? Should he by chance pass the Second D.H.M.S. and not complete the First, since he is still one more chance to take this examination, what is to happen? The situation is absurd. The same principle should apply to Regulation 10 where the lapse is one and half years."
14. Their Lordships of the Supreme Court also negatived the argument that successful result of the supplementary examination would relate back to the date of main examination and observed as under:
The word 'supplement' is defined in Oxford Dictionary, Seventh Edition, page 1072:
"thing added to remedy deficiencies; part added to book etc. with further information, or to periodical for treatment of particular matter(s); of an angle, (Math) its deficiency from 180 (of. COMPLEMENT); hence A1, ARY, (-me n-) adjs. (Supplementary benefit). [ME, f.1. sup (plementum f.
-plere fill: see- ment]"
Therefore, the adjective 'supplementary' means an examination to make up the deficiencies. Thus, it stands to reason only when deficiencies are made up, the whole becomes complete.
On the score to say that passing the supplementary examination would relate back to the annual examination will be totally incorrect. What counts is when the whole is made up. From that time of making up one year or one and half years must elapse for Second or Third D.H.M.S. examinations as the case may be."
15. In Maharishi Dayanand University v. Dr. Anto Joseph and Ors., 1998(5) SLR 708, the Supreme Court reversed the order passed by this Court in C.W.P. No. 12670 of 1996 and held that the requirements laid down by the MCI to ensure that full period of training necessary for acquiring the qualification is completed cannot be deviated from and the University is not obliged to give exemption for 30 days to the respondent.
16. In Director, Medical Education, Lucknow and Ors. v. Dr. Swapnil Chauhan, 2000(2) SLR 644, their Lordships of the Supreme Court held that the High Court cannot direct admission of a student to the MS course who had not completed three years minimum training.
17. In Dr. Shelly Jetly v. State of Punjab and Ors., 2000(5) SLR 724, a Division Bench of this Court declined relief to the petitioner who had not completed minimum of 80% attendance as required by the Regulations framed by the MCI.
18. In C.W.P. No. 7594 of 2000- Dr. Rohit Aggarwal and Ors. v. State of Punjab and Ors., decided on 16.1.1997, the High Court refused to issue mandamus to the respondents to allow the petitioners to appear in MD/MS examination on the ground that they had not completed the required period of training.
19. In Medical Council of India v. Madhu Singh and Ors., JT 2002(7) SC 1, their Lordships of the Supreme Court considered the desirability of making admissions after the expiry of the schedule fixed by the MCI and held as under:
"It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual positions go to show the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for respondent No. 1 that with the object of preventing loss of national exchequer such admissions should be permitted, we are of the view that the same cannot be a ground to permit mid-stream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking into consideration the capacity of the student to study and the appropriate spacing of classes. The student also need rest and the continuous taking of classes wit the object of fulfilling requisite number of days would be harmful to the student's physical and mental capacity to study.
There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the schedule date, which essentially should be the date for commencement of the course.
In conclusion:
(i) there is no scope for admitting students mid-stream as that would be against very spirit of statutes governing the medical education.
(ii) even if seats are unfilled that cannot be a ground for making mid session admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year:
(iv) the MCI shall ensue that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission:
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time;
(vi) no variation of the scheduled so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI."
20. Reference in this connection may also be usefully made to order dated 4.9.2002 passed by Indore Bench of Madhya Pradesh High Court in Writ Petition No. 574 of 2002 - Kamlesh Kumar Bhilware and Anr. v. State of M.P. and Ors. in that case, the High Court dealt with an issue similar to the one raised in C.W.P. No. 16134 of 2002 before us and held as under:
"As taken note of supra, it is not the case of petitioners that despite they completing their full 18 months regular studies in IInd M.B.B.S. as per Regulation, they were not allowed to appear in the IInd M.B.B.S. examination. Indeed, it was an admitted case of each petitioner that though they cleared supplementary examination of 1st year but could not complete 18 months from the date of their joining IInd M.B.B.S. till the date of main examination. They or each of them were short by five months, i.e., they could complete only 13 months in place of 18 months. It thus, follows that none of them were eligible to appear in the main examination of IInd M.B.B.S. on the date when it was held. Indeed, if the contention of petitioners is accepted, then it will amount to giving them preference as against those meritorious students who cleared the examination in first attempt and joined the IInd year in time. The petitioners being less meritorious got supplementary and hence came late in the class. How can such students be equated with those regular students who had earlier joined the class as more meritorious and completed 18 months to become eligible to appear in IInd M.B.B.S. when admittedly, the petitioners having joined the classes subsequently had not completed or could not complete their 18 months. A student who has not completed 18 months cannot be equated with a student who has completed 18 months for appearing in the examination. It will amount to showing undue favour to a less meritorious student."
21. We shall now deal with the submission of Shri (SIC) Malhotra that even if the petitioners are not treated eligible to take the Second Professional examination due to non-fulfilment of the condition of 18 months study, the Court may direct the respondents to treat their professional appearance in the examination in pursuance of interim order dated 12.11.2002 as regular because no useful purpose will be served by asking them to study the Second MBBS professional course. In our opinion, this plea is wholly meritless and deserves to be rejected in view of the decisions of the Supreme Court in Council of Homeopathic System of Medicine v. Suchintan and Ors. (supra): Maharshi Dayanand University v. Dr. Anto Joseph and Ors. (supra) and Director, Medical Education, Lucknow and Ors. v. Dr. Swapnil Chauhan (supra) and the decisions of this Court to which reference has been made hereinabove.
22. We are further of the view that the interlocutory orders passed by the Court granting provisional permission to the petitioners to take the examination did not create any right in their favour and such interim directions cannot be made basis for conferring eligibility upon them in violation of the statutory provisions contained in the Regulations framed by the MCI and the Ordinances framed by the University, more-so because such an approach would be totally destructive of the scheme of Medical Education laid down by the MCI and would be highly detrimental to public interest.
23. In A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr., AIR 1986 SC 1490, the Supreme Court adversely commented upon the grant of provisional admissions and refused to regularise the same by making the following observations:-
"The Court cannot issue direction to the University to protect the interests of the students who had been admitted to the medical college as that would be in clear transgression of the provisions of the University Act and the regulations of the University. The Court cannot by its fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. That would be destructive of the rule of law. It is not possible to treat what the University did in the case of the Daru-Salam Medical College as a precedent in the present case to issue the direction sought for."
24. In Guru Nanak Dev University v. Parminder Kumar Bansal, 1993(4) S.C.C. 401, a three-Judges Bench of the Supreme Court interfere with the interim orders passed by the High Court to allow the students to undergo internship course without passing M.B.B.S. Examination and observed as under:-
"We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite of ten wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose; ill-conceived sympathy masquerades as interlocutory injustice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The courts should not embarrass academic authorities by themselves taking over their functions."
25. In Central Board of Secondary Education v. P. Sunil Kumar, (1998) 5 SCC 377 their Lordships of the Supreme Court reiterated the view taken in Guru Nanak Dev University v. Parminder Kumar Bansal (supra) and observed as under:
"We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students."
26. In view of the afore-mentioned pronouncements, we decline the prayer of the learned counsel to allow the petitioners to take the Second Professional examination along with the students of main batch.
27. Before concluding, we consider it proper to deal with the petitioners plea that the result of supplementary examination would relate back to the date of the main examination and, therefore, they should be deemed to have fulfilled the requirement of completing 18 months study necessary for appearing in the Second Professional examination. In our opinion, this plea of the petitioners is without substance and deserves to be rejected because the same is founded on a misconceived assumption that a candidate passing supplementary examination of the First Professional will be deemed to have studied Second Professional MBBS course in the meanwhile. Such presumption will have to be treated as prepostures in the field of medical education. The judgment of this Court in Punjab School Education Board v. Harinder Kaur, 1990 (2) RSJ 217, on which reliance has been placed by the petitioners, has no bearing on the issue raised in these petitions because the Court was not called upon to consider the provision similar to those contained in the Ordinances framed by the University and the Regulations framed by the Council. In any case, that decision cannot be relied upon for granting relief to the petitioners in view of the law laid down by the Supreme Court in Council of Homeopathic System of Medicine v. Suchintan and Ors. (supra).
28. Reference may also be made to order dated 18.10.2001 passed by this Court in C.W.P. No. 6147 of 2001-Heman Prasad and Ors. v. Baba Farid University of Health Sciences, Faridkot and Anr. and order dated 26.11.2001 passed in C.W.P. No. 18038 of 2001, on which reliance has been placed by the learned counsel for the petitioners. In our opinion, these orders cannot be made basis for issuance of a mandamus to the respondents to treat the provisional admission of the petitioners or their appearance in the examination as regular because those cases were disposed of on the basis of the concession made by the counsel for the respondents.
29. No other point has been argued.
30. For the reason mentioned above, the writ petitions are dismissed. However, we give liberty to the petitioners to make representation to the respondents for relaxing the Regulations/Ordinances for regularisation of their provisional admission to Second Professional MBBS course or appearance in the examination but, at the same time, make it clear that this order shall not be construed as a mandate of any kind for granting relief to them.