Bombay High Court
Ayush Sunil Agrawal vs The State Of Maharashtra (Through Govt. ... on 15 April, 2024
Author: N. R. Borkar
Bench: Prakash D. Naik, N. R. Borkar
Digitally 3-OS-WPL9949-24.doc
signed by
DINESH
DINESH SADANAND
SADANAND SHERLA
SHERLA Date:
2024.04.24
10:52:48
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.9949 OF 2024
Ayush S. Agrawal ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
Mr. Pandit Kasar for the Petitioner.
Smt P.H. Kantharia, GP with Mr. Vishal Thadani, AGP with
Mr.Vikrant Parshurami, AGP for the Respondent No.1.
Mr. Chirag Dave a/w. Mr. Rohan Gupta i/b Legasis Partners for
Respondent No.2.
CORAM : PRAKASH D. NAIK &
N. R. BORKAR, JJ.
DATE : 15.04.2024.
PC:-
1. The petitioner, who is a medical graduate, after
participating in the admission process, joined the Post
Graduate Course of Diploma in Anesthesia offered by
respondent No.2- College of Physician and Surgeons of Mumbai (CPS). He joined the said course in December 2017. He thereafter got himself enrolled with respondent No.2 and completed his resident house officer programme in Diploma in Anesthesia for requisite period at S.L. Raheja Hospital. He thereafter appeared for the theory and practical examination conducted by respondent No.2. He could not clear the examination within the period prescribed under Rule 9.2 of Enrollment and Examination Rules (hereinafter referred to as the "the Rules") framed by respondent No.2. According to the petitioner, he, however, in terms of Rule 6.1 was entitled to appear in the examination for two more consecutive attempts.
Dinesh S. Sherla 1/4 ::: Uploaded on - 24/04/2024 ::: Downloaded on - 28/04/2024 15:09:37 :::3-OS-WPL9949-24.doc He, thus requested respondent No.2 to renew/refresh his enrollment in terms of Rule 6.1 and allow him to appear in the examination for two more consecutive attempts. According to the petitioner, respondent No.2 refused to accede to the said request of the petitioner. Hence, this petition.
2. We have heard the learned counsel for the petitioner and the learned counsel for the respondent No.2.
3. Rule 6.1 reads thus:
"6.1. A. The candidate who have exhausted his/her attempts i.e., could not clear his/her examination within the period after completion of resident posts after enrollment as mentioned in rule 9.1(B), 9.2(B), 9.4(B) will have to renew (refresh) the enrollment after permission of Executive Committee or College Council by paying the prescribed fees (as per rule) for refresh enrollment from time to time.
B. The students shall be allowed to refresh (renew enrollment) only once after last attempt. If the candidate does not pass the examination within the prescribed period after refresh enrollment/renewal, he/she will have to appear for NEET or equivalent examination.
C. Such student(s) shall apply for their renewal (refresh enrollment) within one year from the date of exhaustion of permitted attempts at the time of enrollment with respect to 9.1(B), 9.2(B) (hereafter shall be called as prescribed period).
D. The student shall attend one immediate lecture series after enrollment renewal. (The students are not entitled to claim any exemption from lecture series on account of their attended lecture series prior to enrollment renewal) Dinesh S. Sherla 2/4 ::: Uploaded on - 24/04/2024 ::: Downloaded on - 28/04/2024 15:09:37 ::: 3-OS-WPL9949-24.doc E. It is mandatory for the student to have an Electronic Paperless Device-EPD (Study Material) at the time of refresh enrollment.
F. The students are entitled for two consecutive attempts at examination on completion of lecture series.
G. The students who have cleared MD/MS and enrolled for CPS Diploma / Fellowship examination have to clear the examination within one year (two consecutive attempts) from the date of enrollment of CPS Diploma/Fellowship. These students shall not be allowed/permitted for refresh enrollment."
4. Rule 9.2 reads thus:
"9.2 General Rules for all Diploma Examinations :
A. The candidate will be declared successful in Diploma examination only after he/she has passed in both theory and practical examination simultaneously.
B. The candidate has to pass the Diploma examination within 4 years from the date of joining. If the candidate does not pass within this stipulated period, the candidate will have to renew his/her enrollment by paying the fees for refresh enrollment as decided by council from time to time and attend an additional CPS lecture series to appear for examination. Such candidates will get two more consecutive attempts. (Ref. to point no.6) after attending the lecture series".
5. According to learned counsel for the petitioner, Rule 6.1 is unambiguous and it comes into play only after the candidate has exhausted all the attempts under Rule 9.2. It is submitted that even otherwise, the petitioner has appeared for the National Eligibility Cum Entrance Examination (NEET) for Post Dinesh S. Sherla 3/4 ::: Uploaded on - 24/04/2024 ::: Downloaded on - 28/04/2024 15:09:37 ::: 3-OS-WPL9949-24.doc Graduation Courses 2022 in terms of Rule 6.1(B). It is submitted that respondent No.2, therefore, ought to have acceded to the request of the petitioner.
6. On the other hand, according to learned counsel for respondent No.2, Rule 6.1 cannot be read in isolation and it will have to be read in conjunction with Rule 9.2. It is submitted that the petitioner could not clear the Diploma examination within 4 years from the date of his joining. It is submitted that the petitioner was, therefore, allowed to renew/refresh his enrollment in terms of Rule 9.2 read with Rule 6.1 and was allowed to appear for two more consecutive attempts. It is submitted that the petitioner, therefore, cannot again be allowed to renew/refresh his enrollment. As regards the submission of the learned counsel for the petitioner that the petitioner has even cleared NEET in the year 2022 in terms of Rule 6.1(B), the learned counsel for the respondent No.2 submits that the said issue is pending before this Court in Writ Petition No.2703 of 2023.
7. Arguable points are raised. Hence, 'Rule'.
8. Respondent No.2 shall permit the petitioner to appear in the next examination subject to the conditions which he is required to fulfill under the rules.
(N.R. BORKAR, J.) (PRAKASH D. NAIK, J.) Dinesh S. Sherla 4/4 ::: Uploaded on - 24/04/2024 ::: Downloaded on - 28/04/2024 15:09:37 :::