Punjab-Haryana High Court
Prabhoor Singh Hayer And Others vs Baba Farid University Of Health ... on 7 November, 2008
Author: Hemant Gupta
Bench: Hemant Gupta
Civil Writ Petition No. 17820 of 2008 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 17820 of 2008
Date of Order: 7-11-2008
Prabhoor Singh Hayer and others ....Petitioners
Versus
Baba Farid University of Health Sciences and others
.....Respondents
Coram: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE NAWAB SINGH
Present: Shri Rajiv Atma Ram, Senior Advocate, with
Ms. Sunita and Shri G.S. Mann, Advocate, for the
petitioners.
Shri Anupam Gupta, Advocate, for the respondent-
University.
Shri Gurminder Singh, Advocate, for the Medical Council
of India.
Hemant Gupta, J.
The petitioners are the students of MBBS, studying in different Colleges in the State of Punjab, having been admitted in Session 2006-07. The course of study of the examinations is that the first professional consists of two semesters; second professional consists of three semesters and third professional contains two parts, consisting of two semesters each. Each semester is of six months' duration.
The petitioners appeared in the first professional examination in June, 2007, the result of which was declared on 22.8.2007. The petitioners got re-appear in one or more subjects. The Civil Writ Petition No. 17820 of 2008 (2) supplementary examinations were conducted by the respondent- University on 19.11.2007. All the petitioners qualified in the re-appear subjects in the supplementary examination. The result thereof was declared on 20.12.2007. It was thereafter, the petitioners were permitted to join the classes of second professional, by the respective colleges.
The petitioners have invoked the writ jurisdiction of this Court contending that once they have qualified in the supplementary examination and have joined the main batch, therefore, in terms of Ordinance 7.7 of the University Ordinance, they are entitled to appear in the second professional final examination along with the other students of the same batch irrespective of the fact that they have not completed 18 months of academic studies. It is contended that Regulation 7.3 and Note (a) appearing below Regulation 8 of the Medical Council of India Regulations (for short `the Regulations) and Paragraphs 7 and 11 of the Ordinances framed by the Baba Farid University of Health Sciences (for short `the University') are contradictory and cannot be harmonized. Therefore, the said provisions are liable to be struck down. It is contended that in terms of Ordinance 7.7, the petitioners are entitled to appear in the second professional examination along with the other students, who were admitted in the year 2006-07. Reliance is placed upon a Division Bench judgment of this Court in Ajay Prem Salhotra and others v. Baba Farid University of Health Sciences and others (CWP No. 17134 of 2007 decided on 19.11.2007) and an order passed by another Division Bench, of which one of us (Hemant Gupta, J), was a member, in Ankush Malhotra and others v. Baba Farid University of Health Sciences and another (Civil Writ Petition No. 1192 of 2008 decided on 22.9.2008). It is contended that in Ankush Malhotra's case (supra), the students, who were admitted along with the petitioners, but have Civil Writ Petition No. 17820 of 2008 (3) not qualified the re-appear subjects in the supplementary examination, but have qualified still later, the University has been directed to declare their result of second professional examination, therefore, the petitioners, who are better placed, cannot be discriminated against.
On the other hand, learned counsel for the respondent- University relies upon a Division Bench judgment of this Court in, Jyotis Cherian John and others v. Baba Farid University of Health Sciences and others 2004(1) SLR 753; in the case of Salil Uppal and others v. Baba Farid University of Health Sciences and others (CWP No. 13580 of 2003 decided on 5.12.2003); Amarbir Singh and others v. Baba Farid University of Health Sciences and others (CWP No. 17899 of 2004 decided on 29.3.2005) and Sahil Sharma v. Baba Farid University of Health Sciences and others (CWP No. 18162 of 2004 decided on 29.3.2005). Reliance is also placed upon the judgment of the Hon'ble Supreme Court in Council of Homeopathic System of Medicine, Punjab and others v. Suchintan and others, 1993 Supp. (3) Supreme Court Cases 99 and Medical Council of India v. Sarang, 2001(8) SCC 427. It is further contended that even in Ankush Malhotra's case (supra), this Court on principle has categorically held that a student cannot be permitted to appear in the second professional examination unless he completes requisite academic studies, but the writ petition was disposed of keeping in view the fact that the students were permitted to attend classes and to appear in the examination by the interim orders passed by this Court. Therefore, the said judgment is, in fact, not helpful to the petitioners. It is contended that unless a student undergoes academic studies for a period of clear 18 months, after qualifying the first professional examination, the student can not be permitted to appear in the Civil Writ Petition No. 17820 of 2008 (4) examination of the second professional. It is contended that the Division Bench judgment of this Court in Ajay Prem Salhotra's case (supra), does not law down the law correctly and proceeds on wrong presumptions of law and facts. It is contended that a Special Leave Petition has been filed by the University against the said judgment in which the Hon'ble Supreme Court has issued notice and that the case is now fixed for 11.12.2008. It is contended that the judgment in Amarbir Singh's case (supra), has been wrongly distinguished by the Division Bench in Ajay Prem Salhotra's case (supra) on the ground that the question therein was for issuance of mandamus for permitting admission to the second professional after passing the supplementary examination for the first professional year. It is contended that in Amarbir Singh's case (supra), it has been held that admission to second professional MBBS Course, could not granted before the students cleared all subjects of the first professional of the MBBS course. It was held therein, relying upon an earlier judgment of a Division Bench of this Court in Jyotis Cherian's case (supra), that a candidate is required to complete 18 months course of studies before the candidate can be permitted to appear to appear in the second professional MBBS examination and that such course would run after a candidate has fully qualified the first professional examination. It is further contended that except, the Division Bench judgment in Ajay Prem Salhotra's case (supra), the consistent view of this Court is that a student can be permitted to appear in second professional examination only after qualifying the first professional examination and that a student has to complete 18 months of academic studies before the student can be permitted to appear in the second professional examination. Therefore, the judgment of the Division Bench in Ajay Prem Salhotra's case (supra), requires reconsideration.
Civil Writ Petition No. 17820 of 2008 (5) We have heard learned counsel for the parties at some length. We have our reservations about the view taken by the Division Bench in Ajay Prem Salhotra's case (supra). We find that the judgments in Suchintan and Sarang's cases (supra), are applicable to the issue raised in the present case. In Suchintan's case (supra), the Hon'ble Supreme Court has held to the following effect:
"35. 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 gets 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, clauses (iv) and (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 to what those requirements are. To repeat:-
i) The lapse of one year period between
the passing of first DHMS examination
and taking the second DHMS
examination.
ii) Subsequent to the passing of the first
DHMS examination to undergo the
course of study for one year.
Civil Writ Petition No. 17820 of 2008 (6)
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 DHMS examination without even completing the first? Should he by chance pass the second DHMS and not complete the first, since he has 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."
The legality of the provisions of the Regulations of the Medical Council of India and the Ordinances of the University, have been upheld earlier. Therefore, we are of the opinion that the matter requires decision by the Larger Bench.
In fact, somewhat identical issue in respect of the admission to the next academic year after qualifying in the supplementary examination in the context of Ordinance of the same University in respect of Bachelor of Science (Nursing Course) came up for hearing before this Court in Charanjit Kaur v. Baba Farid University and another (CWP No. 14156 of 2008) and the matter was referred to the Larger Bench, vide order dated 30.9.2008. The issue raised therein is broadly the same. Therefore, it would be appropriate if the said Larger Bench also examines the issue raised in the present case.
In view of the said fact, we order that the papers of the present case, be placed before Hon'ble the Chief Justice for referring the matter to the Larger Bench at the earliest, for hearing along with CWP No. 14156 of 2008 (Charanjit Kaur v. Baba Farid University and others), if possible.
In respect of the interim relief, Shri Anupam Gupta, learned counsel for the respondent-University has stated that no Civil Writ Petition No. 17820 of 2008 (7) student, including the students of the batch of the petitioners, admitted in the year 2006-07, will be permitted to appear in the second professional examination unless and until they complete 18 months of academic studies after qualifying the first professional examination in all subjects.
In view of the consistent view of this Court since the year 2003 based upon the judgments of the Hon'ble Supreme Court, the interim prayer made by the petitioners to appear in the second professional examination without completing 18 months of academic studies, is declined.
(Hemant Gupta) Judge (Nawab Singh) Judge 07-11-2008 ds