Rajasthan High Court - Jaipur
Gaurav Sharma And Ors vs Raj University Of Health Sci Ors on 28 January, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.831/2013 With Stay Application No.718/2013 Rakesh Gurjar and Others Vs. State of Rajasthan and Others 2. S.B. Civil Writ Petition No.715/2013 With Stay Application No.619/2013 Harsh Bhardwaj and Others Vs. Rajasthan University of Health Sciences and Another 3. S.B. Civil Writ Petition No.749/2013 With Stay Application No.646/2013 Rakesh Kumar Choudhary and Others Vs. Rajasthan University of Health Sciences and Another 4. S.B. Civil Writ Petition No.818/2013 With Stay Application No.706/2013 Ms. Anju Choudhary Vs. Rajasthan University of Health Sciences and Another 5. S.B. Civil Writ Petition No.819/2013 With Stay Application No.707/2013 Narendra Kumar Sharma and Others Vs. Rajasthan University of Health Sciences and Others 6. S.B. Civil Writ Petition No.820/2013 With Stay Application No.708/2013 Gaurav Sharma and Others Vs. Rajasthan University of Health Sciences and Others 7. S.B. Civil Writ Petition No.835/2013 With Stay Application No.722/2013 Robin Yadav and Others Vs. State of Rajasthan and Others 8. S.B. Civil Writ Petition No.939/2013 With Stay Application No.808/2013 Anchal Parashar and Another Vs. Rajasthan University of Health Sciences and Another 9. S.B. Civil Writ Petition No.940/2013 With Stay Application No.809/2013 Shruti Kelwa and Others Vs. Rajasthan University of Health Sciences and Another 10. S.B. Civil Writ Petition No.961/2013 With Stay Application No.824/2013 Jayesh Parmar and Others Vs. Rajasthan University of Health Sciences and Another 11. S.B. Civil Writ Petition No.962/2013 With Stay Application No.827/2013 Ramesh Kumar Meena and Others Vs. Rajasthan University of Health Sciences and Another Date of Order ::: 28.01.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Ashok Gaur, senior counsel}, with Shri Ajatshatru Mina}, and Saransh Saini, and Shri Kapil Gupta, counsel for petitioners Shri M.A. Khan, counsel for respondent(s)-University #### //Reportable// By the Court:-
In all the aforesaid writ petitions as many as 192 students have approached this court with the prayer that respondent Rajasthan University of Health Sciences, Jaipur, be directed to allow them to appear in Second M.B.B.S. Examination, 2013, commencing from 17.01.2013 and to be continued till 7th February, 2013. Petitioners have assailed the order issued by Rajasthan University of Health Sciences, Jaipur (for short, 'the respondent University') dated 16.01.2013, whereby they have been debarred from appearing in the aforesaid examination on the premise that they have not completed minimum required study of 18 months in the Phase-I (pre-clinical) inclusive of the period of examination. In all the writ petitions, except Writ Petition No.818/2013, petitioners appeared in the First M.B.B.S. Examination, held in July, 2011, however, result thereof was declared on 17.10.2011 and they could not pass the said examination. Some of the petitioners applied for revaluation and thereafter their result was declared on 25.01.2012 and they were declared pass. Second category of petitioners are those, who were allowed second attempt in some of the subjects. They appeared in the remanded papers of such subjects by way of second attempt in January, 2012, result of which was declared on 28.04.2012.
As far as petitioner Anju Choudhary in Writ Petition No.818/2013 is concerned, she was admitted to Mahatma Gandhi Medical College, and her admission was challenged by other students alleging the same to be illegal. Ultimately, the matter reached the Supreme Court. It was under the interim order passed by the Supreme Court dated 8th September, 2011, that petitioner Anju Choudhary, along-with several others, was permitted to appear in First M.B.B.S. Examination, which commenced from 10.09.2011, however, it was directed that their result may not be declared and they may not be allowed to pursue further studies unless permitted by the Supreme Court. Subsequently by order dated 08.09.2011 the Supreme Court provisionally permitted them to attend the classes, even though their result of First M.B.B.S. Examination was not declared but at the same time, it was made clear that this would not entitle them to claim any equity and if the order is altered by the final order, the students will not get any relief. By yet another order dated 25.01.2012, the petitioners before the Supreme Court were allowed to take examination scheduled to commence from 30th /31st January, 2012, however the respondent-University was directed to produce the result of previous M.B.B.S. Examination in a sealed cover. Petitioner Anju Choudhary has contended that even though result of First M.B.B.S. Examination was declared on 10.10.2012, though she did not clear the same in earlier attempt but the Supreme Court by order dated 08.09.2011 yet allowed her to attend the classes, therefore, at-least from 10.09.2011 it should be taken that she started attending classes with regular batch of students, who had qualified the First M.B.B.S. Examination.
Shri Ashok Gaur, learned senior counsel, and Shri Saransh Saini as well as Shri Kapil Gupta, learned counsel for petitioners, have contended that the respondent University issued admit cards to the petitioners to appear in the Second M.B.B.S. Examination, which were scheduled to commence from 17.01.2013. However, the respondent-University, by their order dated 16.01.2013, addressed to all the Principals of the Medical Colleges of the State, purported to have been passed on the basis of the judgment of this court in S.B. Civil Writ Petition No.350/2013 titled as Rajendra Kumar Sharma Vs. State of Rajasthan, has illegally directed that such of the students, whose period of study after their qualifying First M.B.B.S. Examination upto the Second M.B.B.S. Examination, fall short of 18 months, as required by Ordinance 268(b) of the University Ordinances, should not be allowed to appear in the Second M.B.B.S. Examination scheduled to commence from 17.01.2013.
Shri Ashok Gaur, learned senior counsel for petitioners, argued judgment of a coordinate bench of this court in Rajendra Kumar Sharma, supra, was a judgment in persona and not a judgment in rem. Petitioner, in that case, approached this court in a situation when admit card was not issued to him because he passed the First M.B.B.S. Examination by clearing the remanded papers on 28.04.2012. It was in that context that reference to Ordinance 268(b) of the University Ordinances was made. It was argued that the respondents are misconstruing and misreading the provisions of Ordinance 268(b) by computing the period of examination taken by the petitioners at both the ends i.e. the days consumed in the First M.B.B.S. Examination as also the days of the Second M.B.B.S. Examination, whereas they could count the period of examination only at one end. In this connection, learned counsel has made reference to Ordinance 272 of the University Ordinances.
Shri Ashok Gaur, learned senior counsel submitted that despite aforesaid judgment of the coordinate bench, another single bench of this court at its principal seat, vide order dated 21.01.2013, permitted the students to provisionally appear in the Second M.B.B.S. Examination. The court while passing aforesaid order was fully conscious of the judgment of this court in Rajendra Kumar Sharma, and granted such permission observing that the petitioners have asserted that they have attended extra classes during summer vacations and have completed the studies of 2nd Year M.B.B.S., and these facts were not available to the coordinate bench in the case of Rajendra Kumar Sharma. Besides, the single bench at the principal seat at Jodhpur also observed that delay occasioned on account of the late holding of Examination and declaration of the result belatedly in April, 2012. In those facts, petitioners were allowed to provisionally appear in the remaining Second M.B.B.S. Examination from 24.01.2013 to 07.02.2013. Learned senior counsel submitted that this court, on the ground of parity, ought to permit the petitioners in the present case also to provisionally appear in the Second M.B.B.S. Examination.
Shri Ashok Gaur, learned senior counsel appearing for petitioners, further argued that the respondents have in the past also always permitted students qualifying the First M.B.B.S. Examination, to appear in Second M.B.B.S. Examination, much before completion of period of 18 months and this has been a regular practice with the respondent-University. Learned Single Judge at principal seat of this court at Jodhpur in aforesaid case has also taken note of this fact. Action of the respondent-University in not permitting the petitioners to appear in the Second M.B.B.S. Examination, would be highly discriminatory and arbitrary.
Learned senior counsel submitted that the petitioners in all these matters have taken extra classes even during holidays and summer vacations and have completed their requisite studies for 2nd year M.B.B.S. Course of second phase. There is no deficiency in so far as the completion of the course is concerned.
Shri Saransh Saini, learned counsel for petitioners, apart from adopting the argument of Shri Ashok Gaur, learned senior counsel for petitioners, has argued that in so far as the case of Anju Choudhary is concerned, the same is entirely different as she was permitted to attend classes of Second M.B.B.S. from 10.09.2011, therefore, even if result of her First M.B.B.S. Examination was declared in 10.10.2012, she none the less completed requisite study period of 18 months.
Shri M.A. Khan, learned counsel for respondent-University, opposed the writ petition and submitted that pre-requisite condition for students qualifying the First M.B.B.S. Examination to appear in Second M.B.B.S. Examination, is to complete studies of first phase (pre-clinical) for at-least 18 months, which period will also include the period of examination. Learned counsel referred to ordinance 268(b) and submitted that aforesaid Ordinance clearly provides that no student shall be permitted to join Phase II (Para-clinical/clinical) group of subjects until he has passed in all the phase I (pre-clinical) subjects. Ordinance 268(b) itself provides the consequence of those who are admitted late in the phase II for study of Second Year M.B.B.S. (Para-clinical/clinical) by providing that such students, who are admitted late in the medical colleges will not be allowed to appear in the next examination and they will be required to conform to the period of study prescribed and fulfill the requirement of attendance. It further provides that for Second M.B.B.S. Examination, he shall attend a regular course of study in the para-clinical subjects for 18 months, which will include the period of examination.
Learned counsel submitted that it was this Ordinance which has been interpreted by a coordinate bench of this court in Rajendra Kumar, supra. It was held therein that Ordinance 268(b) requires a complete study for 18 months including the period of examination and since the petitioner therein had not completed study period of 18 months, he was not held eligible to appear in the examination of Second M.B.B.S. Case of all the petitioners in this batch of petitions is exactly similar.
Shri M.A. Khan, learned counsel for respondent-University, submitted that the argument of discrimination was also raised before the coordinate bench of this court in Rajendra Kumar Sharma but it was rejected holding that even if a student has wrongly been admitted in contravention of the Ordinance 268(b), this court would not be a party to said decision being taken by the University. It is submitted that a wrong cannot be allowed to be perpetuated. Even if in the past, the students were permitted to appear in the examination before completion of 18 months, that irregularity is required to be cured rather than being repeated. There cannot be any argument of any discrimination based on a wrong.
In so far as prayer for passing of interim order is concerned, learned counsel for respondent-University cited judgments of the Supreme Court in Director (Studies) and Others Vs. Vaibhav Singh Chauhan, (2009) 1 SCC 59, Regional Officer, CBSE Vs. Ku. Sheena Peethambaran and Others (2003) 7 SCC 719, C.B.S.E. and Anr. v. P. Sunil Kumar and Ors. - (1998) 5 SCC 377, Guru Nanak Dev University Vs. Parminder Kumar Bansal (1993) 4 SCC 401 and A.P. Christians Medical Educational Society Vs. Government of A.P. - (1986) 2 SCC 667, and argued that the Supreme Court has time and again deprecated the practice of allowing the students to provisionally appear in examinations under interim orders of the courts and has held such practice to be subversive of the academic discipline.
Shri M.A. Khan, learned counsel for respondent-University, submitted that Ordinance 268(b) has been framed in conformity with the instructions issued by the Medical Council of India, which requires the period of study of one semester inclusive the days consumed in examination before a minimum of six months and one phase of M.B.B.S. consists of three semesters. No mandamus can be issued requiring the respondent-University to disobey the mandatory provision of University Ordinance. Learned counsel for the respondent-University argued that the University has decided to take steps to challenge the interim order passed by the Single Bench at principal seat at Jodhpur, before the Division Bench of this Court.
I have given my anxious consideration to rival submissions and perused the material on record.
It is not disputed and is not disputable that the Ordinance 268(b) is applicable to petitioners. It is this Ordinance which requires minimum 18 months study of first phase of M.B.B.S. (pre-clinical) before a candidate qualifying First M.B.B.S. Examination can be permitted to appear in the Second M.B.B.S. Examination. For ready reference, Ordinance 268(b) is reproduced herein below:-
(b) A candidate who has been admitted as per above provision shall undergo a period of certified study extending over 4 academic years from the date of commencement of his study for the subjects comprising the medical curriculum to the date of completion of the examination. The first 18 months shall be occupied in the study of the phase I (pre-clinical) subjects which will include the period of examination and no student shall be permitted to join phase II (Para-clinical/clinical) group of subjects until he has passed in all the phase I (pre-clinical) subjects. The students who have been admitted late in the medical college will not be allowed to appear in the next regular examination and they will be required to conform to the period of study prescribed and fulfill the requirement of attendance. For the Second M.B.B.S. Examinations, he shall attend a regular course of study in the para-clinical subjects for 18 months which, will include the period of examination.
Aforesaid Ordinance was interpreted by the coordinate bench of this court while upholding similar argument advanced by the respondent-University in support of its action in Rajendra Kumar Sharma, supra, in the following manner:-
This Court also finds substance that as per Ordinance-268(b) the requirement is to complete the regular course of studies at least for 18 months including the period of examination and indisputably the petitioner has not completed the required training which may make him eligible to appear in the examination of second MBBS.
Perusal of Ordinance 268(b) clearly shows that it is couched in mandatory language. It requires that first 18 months shall be occupied in the phase I (pre-clinical) subjects, which will include the period of examination and no student shall be permitted to join phase II (para-clinical/clinical) group of subjects until he has passed in all the phase I (pre-clinical) subjects. The Ordinance has rather given consequences of late admissions by providing that the students, who have been admitted late in the Medical Colleges, will not be allowed to appear in the next regular examination and they will be required to conform to the period of study prescribed and fulfill the requirement of attendance. The aforesaid ordinance then further reiterates the intention of its framers that for the Second M.B.B.S. Examination, a student shall attend a regular course of study in the para-clinical subjects for 18 months, which will include the period of examinations. It is difficult to comprehend how possibly the petitioners could have completed studies of 18 months when admittedly result of regular batch of First M.B.B.S. Examination was declared on 07.10.2011 and at that time they did not qualify the said examination. Some of the petitioners are those, who passed the First M.B.B.S. Examination as a result of revaluation on 25.01.2012. It is only thereafter that they could become eligible to take classes and commence studies in 2nd Year M.B.B.S. Second category of petitioners are those, whose result of remanded papers was declared on 28.04.2012. If the period of study is counted from the date of result of revaluation, petitioners did not even complete one year as on 17.01.2013 when the examinations commenced and if it is counted from the date of declaration of result of remanded papers, the period would even fall short of 8 months. In any case, the period of 18 months is not completed even if it is counted from the date of declaration of result of 1st Year M.B.B.S. on 07.10.2011 till conduct of examinations on 17.10.2011. Counting from 17.10.2011, the total period comes only 15 months as on 17.01.2013, the date on which the Second M.B.B.S. Examination commenced. It is quite surprising how could an argument be accepted that the petitioner would be able to complete study of 18 months in just 8 months or 12 months or even 15 months, when actually they have not completed 18 months of study.
Ordinance 272 of University Ordinances under the caption Training period and Time Distribution/Duration of the Course, inter-alia provides that every student who has been admitted to M.B.B.S. Course as per the said provision shall undergo a period of certified study extending over 4 academic years from the date of commencement of his/her study. The Ordinance 272(ii) provides that the period of 4 years is divided into three Phases, namely, Phase-I, Phase-II and Phase-III. It further provides that every student shall undergo a period of certified study extending over 4 academic years divided into 9 semesters of six months each, from the date of commencement of his/her study for the subjects comprising the medical curriculum to the date of completion of examination and followed by one year compulsory rotating internship. It also provides that each semester will consist of approximately 120 teaching days of 8 hours each college working time including one hour of lunch. Those provisions have been inserted in the University ordinances as per instructions of the Medical Council of India.
This court is inclined to uphold the argument that no mandamus can be issued which has the effect of requiring the University to disobey the statue to which it owes its existence and act contrary to University Ordinances. The Supreme Court in somewhat similar circumstances in A.P. Christians Medical Educational Society Vs. Government of A.P., supra, held as under:-
We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws.
In C.B.S.E. and Anr. v. P. Sunil Kumar and Ors., supra, the institutions, whose students were permitted to undertake the examination of the Central Board of Secondary Education were not affiliated to the Board, hence the students were not entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders passed by the court. When the matter reached the Supreme Court, the court observed as under:-
"....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...."
In Guru Nanak Dev University v. Parminder Kr. Bansal, supra, the Supreme Court held as under:-
"We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often 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 justice 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."
In Regional Officer, CBSE v. Ku. Sheena Peethambaran, supra, the Supreme Court deprecated the practice of permitting the students to pursue studies and appear in the examinations under the interim orders of the court. The Supreme Court observed as under:-
6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result has been declared, the matter deserves to be considered sympathetically. It results into very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions. ...
In Director (Studies) and Others Vs. Vaibhav Singh Chauhan, supra, the Supreme Court in somewhat similar circumstances has disapproved the practice of passing interim orders in educational matters permitting disqualified candidates to appear in examinations. The Supreme Court observed that such interim orders amount to misplaced sympathy which is wholly uncalled for and often result in creating confusion, and is destructive of academic discipline and academic standards.
Coming now to the argument of discrimination, in the first place, it must be observed that while a final judgment can be cited and relied as a precedent but an interim order cannot be. Besides, such interim orders do not confer any right nor do they create any equity in favour of those petitioners, a fact mentioned in that order itself, which has been relied. As regards the students permitted in past to appear for such examinations without completing requisite study period of 18 months, no specific instance has been cited and no foundation laid for alleged ground of discrimination but even assuming that respondents in the past have infringed Ordinance 268(b) and for that matter, instructions of the Medical Council of India in permitting the students to appear in the Second Year M.B.B.S. Examination even before completion of requisite 18 months of study, this cannot be accepted a valid plea to sustain the argument of discrimination. A wrong cannot be allowed to be perpetuated and two wrongs cannot make one right. Equality is a positive concept, therefore, it cannot be enforced in negativity. For an illegal favour, voluntarily or involuntarily, conferred on a student, another student cannot be allowed to contend that similar favour in breach of mandatory provision should also be granted to him. In the context of argument of discrimination vis-a-vis undue favour conferred on others, the following observations of the Supreme Court in Chandigarh Administration and Another Vs. Jagjit Singh and Another (1995) 1 SCC 745 are very apt:-
8.We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. ...
Even in the case of Anju Choudhary, she does not complete requisite study period of 18 months from the dare of declaration of result of First M.B.B.S. Examination, on 10.10.2012. Moreover, contention that since she was allowed to attend studies from 10.09.2011, would have no meaning because on that day, she did not even pass the First M.B.B.S. Examination and she actually passed the First M.B.B.S. Examination more than a year thereafter. She also cannot be therefore taken to have completed the study course of 18 months because that study course essentially has to be of the period after clearance of First M.B.B.S. Examination. In computing the period of 18 months, the respondent-University has to compute the days of examination as well and such days should be counted only at one end and not at both the ends.
In view of above discussion, I do not find any merit in these writ petitions and the same are therefore dismissed. Consequent upon dismissal of writ petitions, stay applications, filed therewith, do not survive and same are also dismissed.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW