Karnataka High Court
Rajiv Gandhi University Of Health ... vs Mr Yash Jalindar Vibhute on 28 March, 2024
Bench: Chief Justice, Krishna S Dixit
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NC: 2024:KHC:12954-DB
WA No. 1018 of 2023
C/W WA No. 1059 of 2023
WA No. 1061 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 1018 OF 2023 (EDN-RES)
C/W
WRIT APPEAL NO. 1059 OF 2023 (EDN-RES)
WRIT APPEAL NO. 1061 OF 2023 (EDN-RES)
IN W.A.NO.1018/2023:
BETWEEN:
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES,
4TH T BLOCK, JAYANAGAR,
BENGLAURU - 560 041.
NOW REP. BY ITS REGISTRAR (EVALUATION)
2. THE REGISTRAR (EVALUATION)
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE
HAVING ITS OFFICE AT 4TH T BLOCK,
JAYANAGAR, BENGALURU - 560 041.
REP BY ITS REGISTRAR (EVALUATION)
Digitally signed
by SHARADA ...APPELLANTS
VANI B
Location: HIGH
(BY SRI. SACHIN B S.,ADVOCATE)
COURT OF
KARNATAKA AND:
MR. MURALI P S
S/O. SATISH P M,
AGED ABOUT 22 YEARS,
REG NO. 19A5296,
R/O PANCHANAHALLI POST, KADUR TALUK,
CHIKKAMAGALUR - 577 182.
...RESPONDENT
(BY SRI. AHBHISHEK MALIPATIL.,ADVOCATE)
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NC: 2024:KHC:12954-DB
WA No. 1018 of 2023
C/W WA No. 1059 of 2023
WA No. 1061 of 2023
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO A) SET ASIDE THE
IMPUGNED ORDER DATED 21/06/2023 IN WP NO.16994/2022 AND
B) PASS ANY ORDER OF CONSEQUENTIAL RELIEF OR ANY OTHER
APPROPRIATE ORDER OR DIRECTION.
IN W.A.NO.1059/2023:
BETWEEN:
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH T BLOCK, JAYANAGAR,
BENGALURU - 560 041.
NOW REP BY ITS REGISTRAR (EVALUATION)
2. THE REGISTRAR (EVALUATION)
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH T BLOCK, JAYANAGAR,
BENGALURU - 560 041.
NOW REP BY ITS REGISTRAR (EVALUATION)
...APPELLANTS
(BY SRI.SACHIN B S., ADVOCATE)
AND:
MR. SHAUN ELRIC LOBO,
S/O ERIC CHRISTPHER LOBO,
AGED ABOUT 20 YEARS,
REG NO. 20E0684,
R/O JOS VILLA D NO. 15-13-785,
KADRI COCONUT GARDEN ROAD,
MANGALORE - 575 002.
...RESPONDENT
(BY SRI.ABHISHEK MALIPATIL., ADVOCATE)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO A) SET ASIDE THE
IMPUGNED ORDER DATED 21/06/2023 IN WP NO.11412/2022 AND
B) PASS ANY ORDER OF CONSEQUENTIAL RELIEF OR ANY OTHER
APPROPRIATE ORDER OR DIRECTION.
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NC: 2024:KHC:12954-DB
WA No. 1018 of 2023
C/W WA No. 1059 of 2023
WA No. 1061 of 2023
IN W.A.NO.1061/2023:
BETWEEN:
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH T BLOCK, JAYANAGAR,
BENGALURU - 560 041.
NOW REP BY ITS REGISTRAR (EVALUATION)
2. THE REGISTRAR (EVALUATION)
RAJIV GANDHI UNIVERSITY OF
HEALTH SCIENCES
4TH T BLOCK, JAYANAGAR,
BENGALURU - 560 041.
NOW REP BY ITS REGISTRAR (EVALUATION)
...APPELLANTS
(BY SRI.SACHIN B S., ADVOCATE)
AND:
MR YASH JALINDAR VIBHUTE
S/O JALINDER ANANDA VIBHUTE,
AGED ABOUT 22 YEARS,
REG NO. 19A0910,
R/O A/P VADUJ TAL-KHATAV,
MAHARASHHTRA - 412803
...RESPONDENT
(BY SRI.ABHISHEK MALIPATIL., ADVOCATE)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO A) SET ASIDE THE
IMPUGNED ORDER DATED 21/06/2023 IN WP NO.17238/2022 AND
B) PASS ANY ORDER OF CONSEQUENTIAL RELIEF OR ANY OTHER
APPROPRIATE ORDER OR DIRECTION.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING,
THIS DAY, KRISHNA S DIXIT.J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC:12954-DB
WA No. 1018 of 2023
C/W WA No. 1059 of 2023
WA No. 1061 of 2023
JUDGMENT
These intra-court Appeals by the Respondent - State Health University, seek to call in question a learned Single Judge's common order dated 21.06.2023 whereby medical students' W.P.No.16122/2022 and other connected matters having been favorued, the following order is made:
"In the above circumstances, these writ petitions succeed in part, a Writ of Mandamus issues to the respondent-University to send such of the Answer Papers of the petitioners only, wherein the percentage difference amongst the valuations (two in the case of U.G. course and four in the case of P.G. course, as the case may be) in terms of 15.06.2012 Ordinance as worked out in paragraphs 25 and 26 (supra) for third or fifth valuation as the case may be, forthwith."
2. Learned Sr. Panel Counsel appearing for the Appellant
- University vehemently argues that the learned Single Judge fell in error in construing another Single Judge's order (Justice Dixit's) dated 10.08.2020 entered in W.P.No.31335/2019 (EDN-RES) & other companion matters between NEELESH MEHTA Vs. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES & OTHERS inasmuch as, he treated the said judgment as having struck down Revaluation Ordinance of 29.03.2019 in a wholesale way, when it was struck down only qua MBBS students, and not as against others. In his support of submission, he invokes the doctrine of -5- NC: 2024:KHC:12954-DB WA No. 1018 of 2023 C/W WA No. 1059 of 2023 WA No. 1061 of 2023 severability and tells that as against students other than of MBBS course, the Ordinance survives, notwithstanding the term "quashing the impugned ordinance in its entirety" employed in the said judgement. He hastens to add that the petitions wherein the said Ordinance has been quashed, belonged to non-MBBS students.
3. Learned counsel appearing for the Respondent - Students opposes the Appeals making submission in justification of the impugned order of the learned Single Judge and the reasons on which it has been constructed. He points out that the judgement wherein the impugned Ordinance came to be quashed, was not confined to only MBBS students but, they included the students of AYUSH students. He further submits that a bare reading of the said judgement and the terminology employed in its operative portion leaves no manner of doubt that the subject Ordinance has been struck down, in lock, stock & barrel. He also disputes invokabilty of the doctrine of severability in matters like this. With this stand, he seeks dismissal of all these Appeals.
4. Having heard the learned counsel for the parties and having perused the Appeal papers, we decline indulgence in these -6- NC: 2024:KHC:12954-DB WA No. 1018 of 2023 C/W WA No. 1059 of 2023 WA No. 1061 of 2023 matters, having common question of law & facts, in the light of following discussion:
a) The first submission put forth on behalf of the appellant-University that the 2019 Ordinance has been struck down only qua the MBBS/MD students that are otherwise governed by extant MCI Regulations, cannot be sustained inasmuch as the operative portion of the order of a Single Judge (i.e., of Krishna S. Dixit J) specifically reads: "...a Writ of Certiorari issues quashing the impugned Ordinance in its entirety..." It did not stop there; a further direction is issued to the appellant-University to cause valuation of all theory answer scripts of all the petitioners by a set of four evaluators in terms of Regulation 13(2) of Graduate Medical Education Regulations, 1997. There is absolutely nothing in the reasoning part of the said judgment that supports contention of the kind. It defies logic to say that even when the subject Ordinance has been quashed in its entirety, the same should be deemed to be kept alive qua others. If the intent of the judgment were to accord with the submission of the appellant, the text of the operative portion thereof would have been much different. Added, at paragraph 4 of the said judgment, it is specifically observed as under:-7-
NC: 2024:KHC:12954-DB WA No. 1018 of 2023 C/W WA No. 1059 of 2023 WA No. 1061 of 2023 "...the Ordinance is apparently repugnant to the provisions of Graduate Medical Education Regulations, 1997 promulgated by the Medical Council of India u/s 33 of the Indian Medical Council Act, 1956, the same is liable to be struck down on that sole ground..."
b) What we have been construing is a judgment of the Constitutional Court that has struck down an instrument of law i.e., Ordinance in question in its entirety, on the ground of the same being contrary to the Regulations that have been promulgated under the provisions of Medical Council of India Act, 1956. The petitions in which the said Ordinance has been struck down are not confined to the students of MBBS course alone. Apparently, there were students inter alia from other co-ordinate streams namely homeopathy. Therefore, the argument that the wiping out of the said Ordinance from the statute book in its entirety was not intended by the judgment in question, is too farfetched and therefore, does not merit our acceptance. If the intent was as to selective applicability of the Ordinance to the non-MBBS streams, the reasoning would have been much different. The petitions in which the said common judgment came to be rendered were not structured on the substratum of selective applicability of the said Ordinance.
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c) The last contention that the subject Ordinance should be presumed to have been saved qua non-MBBS stream despite the judgment in question quashing it in its entirety is put forth by invoking the doctrine of severability, which is often taken up under Article 13 of the Constitution of India. The doctrine of severability means that when some particular provision of a statute offends against a constitutional limitation, but that provision (i.e., the section or clause) is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute. The test of severability is "Whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, whether on a fair review of the whole matter it can be assumed that the Legislature would have enacted at all that which survives without enacting the part that is ultra vires". However, all this was not the subject matter of the petitions in which the Ordinance in question has been struck down in its entirety and not in its parts. That being the position, we fail to understand as to how the said doctrine comes to the aid of appellant.
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NC: 2024:KHC:12954-DB WA No. 1018 of 2023 C/W WA No. 1059 of 2023 WA No. 1061 of 2023 In the above circumstances, these appeals being devoid of merits, are liable to be and accordingly, dismissed, costs having been made easy.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Snb/ List No.: 1 Sl No.: 40