Rajasthan High Court - Jaipur
Dr Anil Kumawat And Ors vs Naveen Agarwal And Ors on 30 April, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
(1)D.B. CIVIL SPECIAL APPEAL(WRIT)NO.469/2012
IN
S.B. CIVIL WRIT PETITION NO.2533/2012
DR. ANIL KUMAWAT & ORS.
Vs.
NAVEEN AGARWAL & ORS.
REPORTABLE
(2)D.B.CIVIL SPECIAL APPEAL(WRIT) NO.475/2012
IN
S.B. CIVIL WRIT PETITION NO.4574/2012
DR.(MISS) RANJANA ATAL
Vs.
RAJASTHAN UNIVERSITY OF HEALTH SCIENCE & ORS.
(3)D.B.CIVIL SPECIAL APPEAL(WRIT) NO.477/2012
IN
S.B. CIVIL WRIT PETITION NO.2641/2012
DR. ANIL KUMAWAT & ORS.
Vs.
VIJAY KUMAR SAINI & ORS.
(4)D.B.CIVIL SPECIAL APPEAL(WRIT) NO.478/2012
IN
S.B. CIVIL WRIT PETITION NO.2090/2012
DR. ANIL KUMAWAT & ORS.
Vs.
MISS. ISHITA GUPTA & ORS.
(5)D.B.CIVIL SPECIAL APPEAL(WRIT) NO.479/2012
IN
S.B. CIVIL WRIT PETITION NO.3967/2012
DR. ANIL KUMAWAT & ORS.
Vs.
DR. VIJAYPAL SINGH & ORS.
(6)D.B.CIVIL SPECIAL APPEAL(WRIT) NO.480/2012
IN
S.B. CIVIL WRIT PETITION NO.2518/2012
DR. ANIL KUMAWAT & ORS.
Vs.
DR. ROHIT KUMAR MEENA & ORS.
&
(7)D.B.CIVIL SPECIAL APPEAL(WRIT) NO.503/2012
IN
S.B. CIVIL WRIT PETITION NO.2533/2012
DR. KAUSHAL SINGH BAGHEL & ORS.
Vs.
NAVEEN AGARWAL & ORS.
DATE OF JUDGMENT :: 30/04/2012
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I HON'BLE MR. JUSTICE MAHESH BHAGWATI
Mr. S.P. Sharma, Senior Counsel assisted by
Mr. S.S. Shekhawat ]
Mr. Gaurav Sharma ]
Mr. Ankit Sethi ]
Mr. Rajendra Soni ]
Mr. R.D. Rastogi with]
Mr. N.S. Chauhan, ] for the appellants.
Mr.G.S.Bapna,Advocate General(Senior Counsel) assisted by
Mr. Veyankatesh Garg ]
Mr. Ashok Gaur, Senior Counsel assisted by
Mr. Ajatshatru ]
Mr. R.A. Katta, ]
Mr. Angad Mirdha ]
Mr. Rahul Kamwar ]
Mr. Narendra Shandilya]
Mr. Rudraksh Sharma & ]
Ms. Shruti Dixit ] for the respondents.
*****
BY THE COURT:(PER HON'BLE MR. JAIN,J.)
Heard learned counsel for the parties.
2. The above bunch of special appeals is directed against the common order dated 09.04.2012 passed by the Single Bench, therefore, all these special appeals were heard together and are being decided by this common judgment.
3. The matter relates to Pre P.G. Medical/Dental Entrance Examination, 2012. The respondent-University i.e. Rajasthan University of Health Sciences, Jaipur issued a Notification dated 18.12.2011 for holding Pre P.G. Entrance Examination for admission to P.G. Medical(MD/MS/Diploma) and Dental(MDS Courses) on Sunday, 29th January, 2012 at Jaipur. It was notified that this examination will be held in one shift. Online Application Form, details of eligibility criteria were available on the website of Rajasthan University of Health Sciences i.e. www.ruhsraj.org. All candidates were required to apply online. It was also notified that application can be filled online from 31/12/2011 (from 05:00 P.M.) to 10/01/2012 (mid-night). Timings for examination on 29.01.2012 were fixed from 11.00 A.M. to 02:00 P.M. Other details were also given in the Notification. However, the date of examination i.e. 29.01.2012 was postponed to 11.02.2012. There were total eight Centres in Jaipur for Pre P.G. Entrance Examination, 2012, to be held on 11.02.2012. The examination was conducted on 11.02.2012 at different eight Centres in Jaipur, but unfortunately, at one centre of examination i.e. Global Institute of Technology, Sitapura, Jaipur, due to occurrence of technical error in computer server and nuisance of some un-identified candidates, the examination could not be completed. The Chairman, Core Committee, Pre P.G. Medical/ Dental Examination, 2012 convened an urgent meeting of members the same day i.e. 11.02.2012. The members of Core Committee in this meeting, decided to cancel the examination of the candidates appeared at this centre i.e. Global Institute of Technology, Sitapura, Jaipur and it was decided to re-conduct the examination of only those candidates, who appeared at examination centre, namely Global Institute of Technology, Sitapura, Jaipur, on 14.02.2012 from 12.00 noon to 3:00 P.M. at Arya College of Engineering, S.P.-42, RICCO Industrial Area, Kukas, Jaipur. In the meeting, it was also decided to invite grievances regarding technical fault within 24 hours. Notice to this effect was also uploaded on the website and also published in all newspapers on 12.02.2012. The respondent-University issued a notice dated 11.02.2012 for holding examination of the candidates, who appeared at centre, namely Global Institute of Technology, Sitapura, Jaipur, on 14.02.2012, as per the decision taken in the meeting of the Core Committee of the University.
4. One candidate, namely Miss. Ishita Gupta, filed S.B. Civil Writ Petition No.2090/2012 before the Single Bench with the grievance that Pre P.G. Entrance Examination, 2012 was held on 11.02.2012 at eight different centres, but due to some disturbance having taken place at one centre, the authorities took a decision to hold fresh examination of that particular centre only on 14.02.2012, whereas the guidelines of Medical Council of India postulated only one and the common entrance examination for all the applicants. The Single Bench heard the submissions of the learned counsel for petitioner as well as learned Advocate General for the State and the Counsel for the respondent-University and passed the following interim order on 13.02.2012, permitting the examination on 14.02.2012, to be held and further that the same will be subject to final outcome of the writ petition:-
Instant petition has been filed by the petitioner primarily with the grievance that the Pre-PG Entrance Examination-2012 was held by the respondents on 11/02/2012 at eight different centers, however, at one center i.e. Global Institute of Technology, Sitapura Jaipur some disturbance arose and the authorities took decision to hold fresh examination at that particular center alone which was notified on 11/02/2012 itself and the examination is to be held on 14/02/2012.
Counsel submits that as per the guidelines of the MCI, there should be one and common examination for all the applicants who are the participants but the schedule of examination, which has been now circulated by the respondents for holding fresh examination on 14/02/2012 are only for such of the applicants who appeared in a particular center alone and holding two examinations for the common selection is not in conformity with the guidelines of the MCI.
Mr.GS Bapna, Advocate General and Mr.RA Katta, appearing on behalf of the respondents submit that for certain exigencies, which are beyond control, the authority took decision to hold fresh examination of the candidates of one particular center, referred to supra and on the same date i.e. 11/02/2012 itself it was notified to hold fresh examination of the candidates of a particular center, in the peculiar facts and circumstances, and that is not in contravention of the provisions of Regulations of MCI.
Since the examination is to be held on 14/02/2012, there appears no justification for passing interim order at this stage. However, the examination which is to be conducted on 14/02/2012 of the candidates of a particular center, referred to supra, will be subject to final outcome of the instant petition.
Counsel for respondents may file reply.
List after two weeks as prayed.
5. The Pre P.G. Medical/Dental Entrance Examination, 2012 was conducted on 14.02.2012 of one centre and a combined result of both the examinations, held on 11.02.2012 and 14.02.2012, was declared on 14.02.2012(midnight). Since score marks awarded to the examinees of 14.02.2012 were startling and, in fact, unexpectedly higher than those of examinees, who appeared on 11.02.2012, the same became the basic cause of action for filing the number of fresh writ petitions.
6. The candidates appeared in the Pre-P.G. Examination on 11.02.2012, filed writ petitions before the Single Bench beseeching that an appropriate writ, order or direction may be issued declaring the result of candidates, who appeared on 14.02.2012, as null and void and to conduct entire Rajasthan Pre-P.G. Medical/Dental Entrance Examination, 2012, afresh, for the petitioners. Prayer made in S.B. Civil Writ Petition No.2533/2012- Naveen Agarwal & Ors. Vs. State of Rajasthan & Anr., is reproduced as under:-
I. To quash and declare the results of 400 candidates, who appeared on 14/02/2012 Pre-P.G examination as null and void.
II. To direct Respondents to conduct the entire Rajasthan Pre-P.G examinations 2012 afresh for the Petitioners.
III. To set aside the notice dated 11/02/2012, whereby the Respondents had taken a decision to conduct examination on 14/02/2012 for 400 candidates of GIT-Sitapura.
OR in Alternate IV. To direct the respondents to revive the merit list of candidates, who appeared for the examination on 11/02/2012 and quash and set aside the merit prepared for the candidates, who appeared on 14/02/2012.
V. To any other relief as the court may deem it proper.
7. It is relevant to mention that after declaration of the result, number of aggrieved candidates, who appeared in the examination on 11.02.2012, made grievances before the respondent-University. Thereafter, a meeting of the Core Committee of the University was convened on 17.02.2012, which decided that grievances should be invited from the students up to 18.02.2012 till 6:00 P.M. and high profile expert persons of national and international repute be invited for equalizing the marks obtained by the candidates on 11.02.2012 and 14.02.2012 P.G. Examination. The members of the Core Committee decided that the report of grievance committee and report of expert of international repute be forwarded to Government with recommendations.
8. The University received 393 grievances. About 200 grievances were for re-conduct of examination because of fear of students pointing out the difficulty index of the two papers for the same kind of examination and variation of marks allotted to the students. It is relevant to mention that no complaint was received regarding corruption, unfair means, paper leakage and impersonation. The major grievance left to answer by University was equivalence and uniformity of the result of students appeared in Pre P.G. Medical/Dental Examination, 2012 on two different days on 11.02.2012 and 14.02.2012 by some methodology so there should not be any advantage and disadvantage for any candidate appeared in this examination. Looking towards the entire scenario of other various national and international recruitment and competitive examination, like Manipal University,GRE, TOEFL, USMLE, which are conducted for the same objective on different days with different types of question papers, but the marks finally awarded by them are adjusted by the statistical equivalence in terms of equalization of percentile and finally the result of all the students appeared on different days is displayed in terms of inter-se merit. The methodology of applying this statistical equivalence in the result is accepted nationally and internationally and also proved in the Court of Law.
9. The University, with an intent to resolve the above grievances of Pre-P.G. Medical Examination, 2012, approached Dr.(Prof.) V. Natrajan, who has 40 years of experience in Educational testing system and is Visiting Faculty of ETS Princeton and decided to have joint discussion and deliberation with the members of Academic Council, Core Committee and Grievance Committee on 20.02.2012. Dr. Natrajan attended the meeting and his resume and credentials were reflected on screen for all the members. He made his presentation and after detailed discussions and deliberations, the members of the Academic Council, Core Committee and Grievance Committee, unanimously decided and approved the common merit, as suggested by Dr. V. Natrajan, to impart justice to all the students, who appeared in Pre P.G. Medical/Dental Examination, 2012 and to avoid advantage and disadvantage to any candidate in present scenario. The proceedings/minutes of the meeting of the Academic Council, Rajasthan University of Health Sciences, Jaipur, dated 20.02.2012, were approved in the meeting of Board of Management on 23.02.2012.
10. The respondent-University filed reply to Writ Petition No.2533/2012 before the Single Bench, wherein facts, action and proceedings, incorporated in the Minutes of the meeting of Academic Council dated 20.02.2012, were referred and explained in detail. The respondent-University in its reply averred that all the members present in the meeting, discussed various questions relating to the problem, which were satisfactorily answered by Dr. Natrajan and thereafter, Dr. Natrajan was requested to balance the result of Pre-P.G. Medical/Dental Examination, 2012 dated 11.02.2012 and 14.02.2012 by using the statistical equivalence percentile (for short 'the SEP') procedure and to calculate the inter-se merit of the candidates, appeared on these two days on all eight centres.
11. It was also averred in the reply of University that on the request of Academic Council, Core Committee and Grievance Committee, Dr. Natrajan along with his fellow, prepared the modified result of Pre P.G. Medical/Dental Examination, 2012 dated 11.02.2012 and 14.02.2012 by using the statistical equivalence percentile procedure and displaying the inter-se merit of each candidate. The Academic Council, Core Committee and Grievance Committee, visualized the modified result and common inter-se merit and consequently, the same was unanimously approved with complete satisfaction.
12. Learned Single Judge analyzed the result of students, appeared in the examinations on 11.02.2012 and 14.02.2012, of first 225 toppers of all categories. The result analysis has been mentioned at Page-9 of the order of the Single Bench, which is reproduced as under:-
Result Analysis Students appeared on 11/02/2012 (Group-A): 2611 Students appeared on 14/02/2012 (Group-B): 372 Category Toppers(Ranks) Group-A Group-B Non-service-Others 50 6 44 Non-service-OBC 50 4 46 Non-service-SC 20 1 9 Non-service-SC 10 3 7 In-service-Others 50 21 29 In-service-OBC 25 6 19 In-service-ST 10 3 7 In-service-SC 10 4 6 Total 225 48 177 Selections as per 2.08% 44.25% percent of total strength It is relevant to mention that correct figures of total candidates of Group-A(appeared on 11.02.2012) is 2161 and not 2611. The total number of all candidates appeared on 11.02.2012 and 14.02.2012 is 2533(2161+372).
13. Dr.(Prof.) V. Natrajan, an Expert, who prepared the modified result of Pre-P.G. Medical Examination, 2012(which was not made known to candidates), appeared before the Single Bench in the Court and demonstrated the percentile method adopted to rationalize the result of Pre-P.G. Examination, 2012, in presence of Counsel appearing for the parties. Counsel, who were representing the candidates appeared in the examination on 11.02.2012, were present, however, the learned counsel representing the candidates, who appeared in the examination on 14.02.2012, was not present and did not participate in the deliberations having taken place in the Court with Dr. Natrajan, an Expert. The Single Bench, after percentile formula being demonstrated in detail in Court, directed the Government Counsel to file an affidavit to indicate the percentile method(SEP), which they intend to adopt for rationalizing percentage of Score marks. The required affidavit was filed along with method being adopted. The statement showing raw Score marks of candidates appeared on 14.02.2012; and their percentile ranking along with inter-se merit were taken on record.
14. The Single Bench heard the arguments, in detail, of learned counsel representing the candidates appeared on 11.02.2012 and 14.02.2012, the learned Advocate General for the State and the learned counsel appearing on behalf of the University. The Single Bench also considered the provisions enumerated in prospectus of the PG Institute of Medical Education & Research, Chandigarh issued for Academic Session beginning from July, 2012, wherein percentile formula was introduced. The Single Bench also considered the amendment made by the Medical Council of India in PG Medical Education Regulations, published in Gazette Notification dated 17.02.2012, whereby percentile formula has been introduced in All India common merit list in National Eligibility cum-Entrance Test for Postgraduate Courses, applicable from Academic Year commencing from 2013-14.
15. Learned Single Judge considered the entire matter, in detail, and observed that there were three options available for the respondents; First option was to cancel the examinations of 11.02.2012 and 14.02.2012 and to hold it afresh; Second option was to proceed with process of the result of examination which was declared in respect of candidates appeared on 11.02.2012 and 14.02.2012 as per their score marks and that result indicates that those appeared on 14.02.2012, percentage of candidates having fallen in first 150 rank was extremely higher than those appeared on 11.02.2012; and Third option was to adopt statistical equivalence percentile procedure to rationalize the result of candidates, appeared on 11.02.2012 and 14.02.2012. The University, ultimately, decided to adopt third option i.e. statistical equivalence percentile procedure.
16. Learned Single Judge was of the view that decision of the respondents is based on the principles of proportionality which takes note of aim of the decision maker and if the maker has achieved more or less the correct balance or equilibrium and a decision if taken by the authority is proportionate being balanced and harmonious, it would not be proper for this Court to interfere and such decision of the authority is not open for judicial review within its limited scope under Article 226 of the Constitution of India. Consequently, the learned Single Judge, vide its judgment/order dated 09.04.2012, disposed off the writ petitions with the direction to the respondents to publish the revised merit list of all the candidates appeared in Pre-P.G. Examination, held on 11.02.2012 and 14.02.2012, introducing statistical equivalence percentile(SEP) method and to ensure that admissions are made taking note of time schedule for Pre-PG Courses, as laid down by Apex Court and MCI Regulations without any delay.
17. Being aggrieved with the aforesaid directions of the Single Bench dated 09.04.2012, the present special appeals have been filed by candidates, who appeared in the Pre-P.G. Medical Examination, 2012, took place on 14.02.2012, except one D.B. Civil Special Appeal(Writ) No.475/2012- Dr.(Miss) Ranjana Atal Vs. Rajasthan University of Health Science, Jaipur & Others, who appeared in the examination on 11.02.2012.
18. Mr. S.P. Sharma, learned Senior Counsel appearing with Mr. S.S. Shekhawat, Mr. Gaurav Sharma and Mr. Ankit Sethi, on behalf of the appellants (candidates who appeared in the examination on 14.02.2012), submitted that there was no prayer in the writ petitions filed by the writ petitioners to prepare and publish the inter-se merit list of all successful candidates, who appeared on 11.02.2012 and 14.02.2012 on the basis of statistical equivalence percentile(SEP) formula, adopted by the respondent-University; the statistical equivalence percentile formula is not in conformity with the guidelines of the Medical Council of India, which clearly provides that 50% marks are qualifying marks i.e. score marks secured by the candidate, which cannot be changed by adopting different method in finalizing the merit list. The examination conducted on 11.02.2012 and 14.02.2012, is only one common entrance test, based on common subject and merely that papers on two dates were different or majority of candidates appeared on 14.02.2012 have qualified and fallen in top ranks of merit list, cannot be a ground for adopting statistical equivalence percentile formula. It is wrong to say that paper of 11.02.2012 was tough and paper of 14.02.2012 was easier. He also submitted that score marks declared, cannot be changed.
19. Mr. Sharma further submitted that SEP formula has been declared ultra vires to the Constitution by the Hon'ble Apex Court in the case of AIIMS Students' Union Vs. AIIMS And Others, (2002) 1 SCC 428. It is also submitted that Bombay High Court in Public Interest Litigation No.94 of 2008- Shri Francisco D. Luis Vs. The Director, Board of Secondary and Higher Secondary Education, Maharashtra & Anr., decided on 26.09.2008, did not approve the percentile formula. He also submitted that the scaling formula was not permitted and the same was held to be bad in law by the Hon'ble Apex Court. He also submitted that even moderation formula is not permissible.
20. Mr. S.P. Sharma, learned Senior Counsel, therefore, submitted that entire result of Pre-P.G. Exam, as prayed in the writ petition, may not be cancelled and whatever result of Pre-P.G. Examination, 2012, prepared and declared on the basis of score marks of the candidates in examinations took place on 11.02.2012 and 14.02.2012, should not be changed at all and inter-se merit of all the candidates be prepared on the basis of their original score marks and admissions be given on that basis.
21. Mr. R.D. Rastogi, Counsel sought permission on behalf of some candidates, who appeared on 14.02.2012, to be impleaded as party. His request was allowed and he was also heard. He reiterated the same arguments, as were of Mr. S.P. Sharma, learned Senior Counsel. He further submitted that SEP procedure is not correct. The introduction of SEP system amounts to framing of new rule, which is not permissible and the same is also contrary to the guidelines of Medical Council of India. He, therefore, submitted that score marks obtained by the candidates, should remain as they are and merit list may be prepared accordingly.
22. Mr. Rajendra Soni, learned counsel appearing on behalf of appellant in D.B. Civil Special Appeal(Writ) No.475/2012- Dr.(Miss) Ranjana Atal Vs. Rajasthan University of Health Science, Jaipur & Others, submitted that as per the Regulations of Medical Council of India, there should be only one common entrance test on one day. Since computer server was down at one particular centre on 11.02.2012, therefore, holding of examination of candidates of that particular centre on 14.02.2012, was not permissible. The entire examination should, therefore, be cancelled and fresh examination of the candidates may be ordered. In support of his submissions, he cited the judgment of Hon'ble Apex Court rendered in the case of Harish Verma and others Vs. Ajay Srivastava and another, AIR 2003 SC 3371.
23. He also submitted that time schedule prescribed for completion of admission process in Pre-P.G. Medical Course can be re-scheduled by the Hon'ble Apex Court, on an application being moved by the State or University, as done in the case of Manish Ujwal And Others Vs. Maharishi Dayanand Saraswati University And Others, (2005) 13 SCC 744. Therefore, time schedule fixed by the Hon'ble Apex Court in the case of Mridul Dhar(Minor) And Another Vs. Union of India And Others, (2005) 2 SCC 65, does not come in the way of holding fresh examination.
24. Mr. G.S. Bapna, learned Advocate General(Senior Counsel) appearing with Mr. Veyankatesh Garg and Mr. R.A. Katta, appearing on behalf of State of Rajasthan and respondent University, respectively, submitted that result of candidates appeared on 14.02.2012 was appalling and since 393 representations were received by the respondent-University against it, the Academic Council, Core Committee and Grievance Committee of the respondent-University considered the matter and after adlongum discussions and deliberations, the University took a decision to adopt SEP system. They submitted that SEP system introduced and adopted in the present examination is of national and international repute and well known for equalizing the marks. This system is the best solution of the present controversy and overall it is in the interest of all the candidates. Dr.(Prof.) V. Natrajan, an Expert, appeared in the Court and demonstrated the system. Dr. Natrajan also appeared before the Academic Council, Core Committee and Grievance Committee and made a power point presentation on the methodology and process of applying the SEP procedure in the meeting. They also submitted that since detailed discussions and deliberations took place amongst all the members of the Academic Council, Core Committee and Grievance Committee and Dr. Natrajan, hence the learned members present in the meeting posed various questions relating to the problem, which were satisfactorily answered by Dr. Natrajan. Thereafter, a decision was taken in the meeting of the Academic Council of the University, dated 20.02.2012 and Dr. Natrajan was requested to balance the result of Pre P.G. Medical/Dental Examination, 2012 dated 11.02.2012 and 14.02.2012 by using the statistical equivalence percentile procedure and to calculate the inter-se merit of students appeared on these two days. They further submitted that decision of the respondents, in the facts and circumstances of the present case, is just, proper, legal, balanced and harmonious and in the interest of all candidates, therefore, the learned Single Judge was absolutely right in not interferring with the decision of the respondents.
25. Mr. Ashok Gaur, learned Senior Counsel appearing with Mr. Ajatshatru, on behalf of the respondents (candidates who appeared in the examination on 11.02.2012) submitted that initially they preferred writ petition with a prayer to quash and declare the result of candidates who appeared on 14.02.2012, as null and void, but during pendency of the writ petition, the respondent University considered the representations of aggrieved persons and took a decision to approve the common merit, as suggested by Dr. Natrajan, to impart justice to grievances of the students, who appeared in Pre-P.G. Medical/Dentral Examination, 2012 and to avoid advantage and disadvantage to any candidate in present scenario. He also submitted that Dr. Natrajan appeared before the Court and demonstrated the system in their presence and they were satisfied with the methodology and process of applying the statistical equivalence percentile procedure, therefore, they agreed before the Single Bench to apply the SEP procedure and not to grant relief, as prayed in the writ petition, for cancellation of result of those candidates who appeared on 14.02.2012 or the entire examination.
26. Mr. Gaur further submitted that even if there was no prayer in the writ petition about applying the statistical equivalence percentile system, it being a subsequent event, could be taken into consideration by the Single Bench and has rightly been taken into consideration to do complete justice between the parties. In this regard he relied upon the judgments of Hon'ble Apex Court in Kedar Nath Agrawal (Dead) And Another Vs. Dhanraji Devi(Dead) By LRs. And Another, (2004) 8 SCC 76, Rajesh D. Darbar And Others Vs. Narasingrao Krishnaji Kulkarni And Others, (2003) 7 SCC 219 and Pasupuleti Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770. He also submitted that due to unforeseen circumstance that computer server was down at one centre on 11.02.2012, a decision was taken by the respondent-University to hold the examination of one centre alone, but looking to the startling and unexpected result of those candidates who appeared in the examination on 14.02.2012, may be due to easier question paper in comparison to the question paper of 11.02.2012 and the Regulations of Medical Council of India in this behalf being silent, the respondents were right in taking a decision to apply statistical equivalence percentile procedure to prepare inter-se merit list of all the candidates, who appeared in the examinations on 11.02.2012 and 14.02.2012. He supported the impugned order passed by the Single Bench. He also submitted that percentile formula is applied in Chandigarh University, Medical Council of India has also amended the PG Medical Education Regulation by introducing the percentile formula from Academic Year 2013-14. He further submitted that SEP formula has not been declared ultra vires by the Hon'ble Supreme Court. In support of his submissions, he placed reliance on the judgment of Delhi High Court in Dr. Chanemouga Soundaram C. and others Vs. All India Institute of Medical Sciences and others, AIR 1996 Delhi 291, which was under challenge before Hon'ble Apex Court in AIIMS Students' Union's case(supra), to show the core question involved for consideration before the Hon'ble Apex Court. He also submitted that the case law, referred by Mr. S.P. Sharma, learned Senior Counsel, Mr. R.D. Rastogi and Mr. Rajendra Soni, are not applicable in the fact and circumstances of the present case and they all are distinguishable. He, therefore, submitted that there is no merit in any of the appeals and the same may be dismissed.
27. Mr. Angad Mirdha, learned counsel appearing on behalf of respondent Medical Council of India, submitted that the Hon'ble Supreme Court has fixed the time schedule in the case of Mridul Dhar(Minor) And Another Vs. Union of India And Others (supra), for completion of admission in PG Medical Courses, which should not be violated. However, he admitted that there is no specific provision in MCI Regulations to meet with such exigency, where examination could not take place or completed because of unforeseen circumstances, which occurred in the present case. He also submitted that there was technical fault in computer at one centre of Jaipur on 11.02.2012, therefore, a decision was taken by the respondent-University to hold examination of one centre only on 14.02.2012, but due to unexpected results of 372 students, out of total 2533 students, as mentioned in the result analysis quoted above, the University took a decision to follow the SEP method.
28. We have considered the submissions of the learned counsel for the parties and examined the impugned order and other documents, available on record.
29. The respondent-University issued a Notification dated 18.12.2011 for holding Pre P.G. Medical/Dental Entrance Examination, 2012 for admission to P.G. Medical(MD/MS/ Diploma) and Dental (MDS Courses) on Sunday, 29th January, 2012 at Jaipur. It was online examination. However, the date of examination was postponed to 11.02.2012. As per details available in the pleadings and in the order of the Single Bench, there were total 676 seats for various MD/MS/Diploma Courses; 50% out of total 676 seats, were to be filled in as per allocations made by the Director General of Health Services, Government of India, on the basis of the result of All India Competitive Entrance Examination for admission to PG Courses on open merit, as per direction of the Apex Court. Remaining 50% of total 676 seats i.e. 338 seats were notified by the respondent-University for admission in various MD/MS/Diploma Courses for being filled in on the basis of merit in Pre-PG Medical Online Entrance Examination, 2012. Out of these seats, allotment to In-service and Non-service candidates would be as per Ordinance 278-E & G of Rajasthan University, as modified and adopted by respondent Rajasthan University of Health Sciences, Jaipur and distribution of seats shall be as per the Rules and Regulations of Medical Council of India and directives of the State Government. 50% of the total 338 seats i.e. State quota 169 seats are reserved for In-service candidates and remaining 50% seats i.e. 169 seats are meant for Non-service candidates, to be filled on the basis of merit cum preference. In all, 2533 candidates took up the online Pre-PG Examination, held on 11.02.2012 and 14.02.2012. There was technical fault in computer server at one centre, namely Global Institute of Technology, Sitapura, Jaipur, therefore, a decision was taken to hold fresh examination of that particular centre on 14.02.2012. Out of total 2533 candidates, 2161 candidates appeared in the examination on 11.02.2012 at seven centres, while 372 candidates appeared on 14.02.2012 at one centre. The result of Pre-P.G. Examination of 11.02.2012 and 14.02.2012, was declared on 14.02.2012. Number of candidates feeling aggrieved by the result, approached the respondent-University and the Core Committee also, in its meeting held on 17.02.2012, decided to invite grievances from the candidates up to 18.02.2012. For ready reference, result analysis of top 225 candidates of different categories, appeared on 11.02.2012 and 14.02.2012, which is available at Page 9 of the order of the Single Bench, the factual aspect of which has not been disputed before us by any of the parties, has also been reproduced above in para 12.
30. In Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), the Larger Bench of Hon'ble Apex Court laid down the time schedule for completion of admission process in PG Medical and Dental Courses in para 31 of the judgment, as under:-
TIME SCHEDULE FOR POSTGRADUATE AND SUPERSPECIALITY COURSE ADMISSIONS Schedule for admission Postgraduate courses Superspeciality ___________________________ courses All-India quota State quota Conduct of entrance Second Sunday of Mid-Jan to May-June examination January Mid-Feb Declaration of result Third week of By 28th February By 30th June of qualifying exam February First round of 5th March to To be over by To be over counselling/admissions 22nd March 25th April by 25th July Last date for joining 7th April 1st May 31st July the allotted college and course Second round of No second No second No second counselling or allotment counselling counselling counselling of seats from waiting list Last date for joining After 7th April Not Not for candidates allotted vacant seats will applicable applicable seats in second round of stand surrendered counselling or from the back to the States/ waiting list colleges Commencement of 2nd May 1st August academic session Last date up to which 31st May 30th students can be admitted September against vacancies arising due to any reason
31. It appears that one of the reason for taking decision by the respondent-University for applying the SEP system or procedure is the time schedule for completion of admission in PG Medical Courses, laid down by the Hon'ble Apex Court and the Medical Council of India. Direction Nos.12, 15 and 16 by the Hon'ble Apex Court in the case of Mridul Dhar(Minor) And Another(supra) in para 35, read as under:-
35. Having regard to the aforesaid, we issue the following directions:
1 to 11...........
12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.
13 & 14.........
15. Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.
16. Copy of the judgment shall be sent to the Chief Secretaries of all the States/Union Territories for compliance.
32. The comparative chart or Result Analysis referred in para 12 above, of students appeared in the examinations on 11.02.2012 and 14.02.2012, indicates that out of 50 toppers of Non-service-Others candidates, only 6 candidates came in the merit out of total 2161 candidates who appeared on 11.02.2012, whereas 44 candidates out of 372 candidates only, who appeared on 14.02.2012, came at top of the merit list. If we see the total chart of all the categories, it reveals that out of top 225 candidates, only 48 candidates have come in the merit, out of 2161 candidates, who appeared on 11.02.2012 at seven centres, whereas 177 candidates have come in the merit list, out of 372 candidates, who appeared in the examination on 14.02.2012 at one centre. The above comparative chart makes, no doubt, clear that result of 372 candidates who appeared on 14.02.2012, was unexpected or alarming or startling. One of the reasons may be that paper of 11.02.2012 was very tough and paper of 14.02.2012 was very easier. According to the Regulations of Medical Council of India, there should be one common entrance test. Since, there was technical difficulty/error in computer server at one centre on 11.02.2012, therefore, a decision was taken for those candidates, who appeared at that one particular centre and their examination was conducted on 14.02.2012 and a separate paper was given to them. Therefore, there was inequality of question paper for the same examination, which would have been a ground for cancelling the entire Pre-PG Examination, 2012, but the members of Academic Council, Core Committee and Grievance Committee of the respondent-University, in the meeting of the Academic Council dated 20.02.2012, considered the entire scenario and looking to the time schedule fixed by the Hon'ble Apex Court and M.C.I. Regulations for completing the entire process of admission to PG Medical Courses and after satisfying themselves, on the methodology and process of applying statistical equivalence percentile procedure, took a unanimous decision and approved the common merit, as suggested by Dr.(Prof.) V. Natrajan, to impart justice to grievances of the students, who appeared in Pre-P.G. Medical/Dental Examination, 2012 and to avoid advantage and disadvantage to any candidate in the present scenario.
33. Item No.1 and the decision taken thereon by the Academic Council, have been recorded in the Minutes of the meeting of the Academic Council dated 20.02.2012, which is reproduced as under:-
RAJASTHAN UNIVERSITY OF HEALTH SCIENCES Sector-18, Kumbha Marg, Pratap Nagar, Tonk Road, Jaipur-302033(Raj.)
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MEETING OF ACADEMIC COUNCIL 20th February, 2012 at 3:00 PM MINUTES An urgent meeting of Academic Council was held at 3:00 P.M. on 20th February, 2012 in the meeting Hall of the University under the chairmanship of Dr. Rajababu Panwar, Hon'ble-Vice Chancellor of the University. The notice of the meeting is at APPENDIX-A and the list of participants is at APPENDIX-B. Before proceeding with the Agenda, Dr. Rajababu Panwar, Hon'ble Vice-Chancellor welcomed all the members of the Council. Thereafter with the permission of the Chair, the Registrar & Member Secretary, Mrs. Anuprerna Kuntal made an overview presentation on the agenda points.
After detailed deliberations following agenda wise decisions were taken:-
Item No.-1 Issues related to Pre P.G. Medical/Dental Examination-2012:-
Academic Council may discuss the proceedings of Pre P.G. Medical/Dental Examination-2012 held on 11.02.2012 & 14.02.2012 and the related grievances received from various candidates and find out the solution thereof.
Decision: Before discussing the grievances of the candidates, Hon'ble Vice-Chancellor briefed the proceedings of the Pre P.G. Medical/Dental Examination-2012. It was brought into the notice of the learned members of the Council that the Pre P.G. Medical/Dental Examination-2012 was conducted on 11.02.2012 at different eight centers in Jaipur as per directions of Hon'ble Supreme Court and Notification of M.C.I. But, unfortunately, at one center of examination Global Institute of Technology, Sitapura, Jaipur due to occurrence of technical error and nuisance of some un-identified candidates, the examination could not be completed.
The Chairman Core Committee, Pre P.G. Medical/Dental Examination-2012 convened an urgent meeting of members the same day i.e. 11.02.2012. Members of Core Committee in this meeting decided to cancel the examination of the candidates appeared at this centre and it was decided to re-conduct the exam on 14.02.2012 from 12.00 noon to 03:00 P.M. at Arya College of Engineering, S.P.-42, RICCO Industrial Area, Kukas, Jaipur. In meeting it was also decided to invite grievances regarding technical fault within 24 hours. Notice to this effect was uploaded on the website and also published in all news paper on 12.02.2012.
Grievances relates to technical problems were received from the candidates by the University on 11.02.2012 and all such grievances were settled according to the opinion of Technical Expert and Core Committee, Pre P.G. Medical/Dental Examination-2012 and exam was re-conducted on 14.02.2012 as per the decision of the committee.
Further, University adopted all safe guards for fair and transparent examination viz frisking, Biometrics, still photography, guidelines to candidates, observers, flying squad, video camera etc. in entire examination process. Besides entire exam was at confidential place but under surveillance of top police officials, nominees of University police and I.T. department.
Aggrieved by the re-scheduled exam of one centre for 14.02.2012 07 candidates filed writ petitions in Hon'ble High Court Jaipur for re-test for all the centers. The instant petition was scheduled for hearing on 13.02.2012. The court in interim order allowed to re-conduct the examination scheduled for 14.02.2012 of particular centre mentioning that it will be subject to the final outcome of the instant petition. University conducted the exam and declared result after taking legal opinion of University Standing Counsel, Advocate General and as per decision of core committee.
The result of Pre P.G. Medical/Dental Examination-2012 was as such declared on 14.02.2012 midnight as per the decision of the core committee meeting dated 11.02.2012 after combining the result of both examinations held on 11.02.2012 & 14.02.2012. This decision of Core Committee was taken as per the notification of M.C.I. There after many candidates who were aggrieved by the result approached the University. Media also reflected grievances of students. Core committee meeting was convened on 17.02.2012 which decided that grievances should be invited from the students up to 18.02.2012 till 06:00 P.M. and high profile expert persons of national and international repute be invited for equalizing the marks obtained by the candidates on 11.02.2012 & 14.02.2012 P.G. Examination. Members decided that the report of grievance committee and report of expert of international repute be forwarded to Government with recommendations.
University received 393 grievances. About 200 grievances were for re-conduct of examination because of fear of students pointing out the difficulty index of the two papers for the same kind of examination and variation of marks allotted to the students. Students had also approached Court on this ground but the Court did not consider their plea of re-conduct of exam. No complaint was received regarding corruption, unfair means, paper leakage and impersonation.
Thus, major grievance which was submitted to the University for re-conduct of exam was related to fear of students pointing out the difficulty index of the two papers for the same kind of examination and variation of marks allotted to the students.
Now, the major grievance which is left to answer is equivalence and uniformity of the result of students appeared in Pre P.G. Medical/Dental Examination-2012 on two different days on 11.02.2012 and 14.02.2012 by some methodology so there should not be any advantage and disadvantage for any candidate appeared in this examination.
Looking towards the entire scenario of other various national and international recruitment and competitive examination like Manipal University, GRE, TOEFL, USMLE which are conducted for the same objective on different days with different types of question papers but the marks finally awarded by them are adjusted by the statistical equivalence in terms of equalization of percentile and finally the result of all the student appeared on different days is displayed in terms of inter-se merit. The methodology of applying this statistical equivalence in the result is accepted nationally and internationally and also proved in Court of Law.
For solving the above grievances of Pre P.G. Medical/Dental Examination-2012, the University approached Dr.(Prof.) V. Natrajan, who has 40 years of experience in Educational testing system and is Vising Faculty of ETS Princeton and decided to have joint discussion and deliberation with the members of Academic Council, Core Committee and Grievance Committee on the day of meeting i.e. 20.02.2012. Dr. Natrajan was introduced by the Hon'ble vice Chancellor and his resume and credentials were reflected on screen for all the members.
Dr. Natrajan made a power point presentation on the methodology and process of applying the statistical equivalence percentile procedure in the meeting. Detailed discussions and deliberations took place between the members of the Academic Council, Core Committee & Grievance Committee and Dr. Natrajan. All learned members present in the meeting discussed various questions related to the problem which were satisfactorily answered by Dr. Natrajan. Thereafter, Dr. Natrajan was requested to balance the result of Pre P.G. Medical/Dental Examination-2012 dated 11.02.2012 and 14.02.2012 by using the statistical equivalence percentile procedure and to calculate the inter-se merit of the students appeared on these two days.
On request of members of the Academic Council, Core Committee and Grievance Committee, Dr. Natrajan along with his fellow prepared the modified result of Pre P.G. Medical/Dental Examination-2012 dated 11.02.2012 and 14.02.2012 by using the statistical equivalence percentile procedure and showed the inter-se merit of each student. All the members of Academic Council, Core Committee and Grievance Committee visualized the modified result & common merit and unanimously approved the same with complete satisfaction.
Thus, Members of Academic Council, Core Committee and Grievance Committee considered seriously all the grievances received from individual candidates related to their fear regarding inequality of question paper for the same examination and allocation of marks thereof. Thus, as per directions in the decision of Hon'ble Supreme Court, time prescribed in M.C.I. Notification, interim order of Hon'ble High Court of Rajasthan, summary of the 393 grievances received by the University, credentials of Dr. V. Natrajan, the methodology and process of statistical equivalence, procedure presented by him were all put before the members. All members had discussions, deliberations and interactions on these issues and unanimously decided and approved the common merit as suggested by Dr. V. Natrajan to impart justice to grievances of the students who appeared in Pre P.G. Medical/Dental Examination-2012 and to avoid advantage and disadvantage to any candidate in present scenario.
34. It is also relevant to mention that Dr.(Prof.) V. Natrajan, an Expert, appeared before the learned Single Judge and demonstrated the procedure of SEP, in presence of all the Counsel, except the Counsel representing the candidates appeared in the examination on 14.02.2012. All present before Single Bench were satisfied with SEP system. Thereafter, Single Bench directed the State and University's Counsel to file affidavit to indicate the percentile method(SEP). The required affidavit was filed. The Expert also appeared before the members of Academic Council, Core Committee and Grievance Committee of respondent- University. Discussions and deliberations were made between them and all the members of the Committees were satisfied and took a unanimous decision in respect of applying SEP system. There is no provision in the Regulations of Medical Council of India as to what to do in unforeseen circumstances, like the present one where due to technical fault in computer server, the examination could not take place or completed of the candidates of one particular centre. There is no bar, as such for applying the percentile formula or any other approved method by the competent authority, hence in the facts and circumstances of the case, it cannot be said that decision taken by the respondent-University about applying SEP system, is contrary to the Regulations of Medical Council of India.
35. Mr. S.P. Sharma, learned Senior Counsel, heavily relied upon the judgment of Hon'ble Apex Court in the case of AIIMS Students' Union Vs. AIIMS And Others (supra) and submitted that percentile system was held to be ultra vires to the provisions of the Constitution of India and was struck down.
36. In the case of AIIMS Students' Union(supra), the main issue for consideration was as to 'whether institutional reservation for AIIMS candidates is valid or not'. The Hon'ble Apex Court held that institutional reservation for AIIMS candidates is not valid and declared it ultra vires of the Constitution. Hon'ble Apex Court, in para 18 of the judgment, referred seven points, which were under consideration before the Delhi High Court. Point No.6 was, whether the 65 percentile method is valid? Hon'ble Apex Court considered Point No.6 relating to percentile system in paras 27 and 28 of its judgment and in the facts and circumstances of that case, particularly while considering institutional reservation for AIIMS candidates, in para 28 held that under the 65% percentile method, even if we take the 35% candidates who are at the top of the merit list, the AIIMS students are able to get in even though their marks are less than or comparable to marks of SC/ST students. Further, there being no minimum qualifying marks, in the top 35% even if the lowest is quite a low mark, yet he would get in. That is not what is expected of an institute like AIIMS. For the above reasons, the High Court was of the view that the percentile system does not also assure an equitable, fair or reasonable result. The above finding of Hon'ble Apex Court on Point No.6 relating to percentile method, makes it clear that percentile system was never declared ultra vires to the provisions of the Constitution and was never struck down, but for the reasons mentioned in paras 27 and 28 of the judgment and while considering institutional reservation for AIIMS candidates, the Hon'ble Apex Court observed that the High Court was of the view that percentile system did not also assure an equitable, fair or reasonable result. Looking to the facts and circumstances of the present case, as referred and discussed above, it is clear that the judgment of Hon'ble Apex Court in the case of AIIMS Students' Union(supra), is not applicable, in the facts and circumstances of the present case.
37. It is relevant to mention that AIIMS Students' Union(supra) case was directed against the judgment of Division Bench of Delhi High Court in the case of Chanemouga Soundaram C. and others Vs. All India Institute of Medical Sciences and others(supra). In para 1 of the judgment, the Division Bench of Delhi High Court stated that main points arising in this writ petition were whether the 33% quota for the MBBS graduates of the All India Institute of Medical Sciences, New Delhi in Post Graduate courses in the same Institute was valid in law or on fact and whether there could also be discipline/departmentwise quota in Post Graduate courses for the said MBBS students of AIIMS? Therefore, the main question for consideration before the Division Bench of Delhi High Court was in respect of institutional reservation and the same was answered by the Hon'ble Apex Court in the case of AIIMS Students' Union(supra).
38. Mr. S.P. Sharma, learned Senior Counsel also relied upon the judgment of Bombay High Court in the case of Shri Francisco D. Luis Vs. The Director, Board of Secondary and Higher Secondary Education, Maharashtra & Anr.(supra), where there were two divergent opinion by two members of the Division Bench, therefore, the matter was referred to the Third Judge/member, wherein method of normalization by introducing percentile system only to favour the students of SSC Board, was held to be illegal and unconstitutional. The Bombay High Court, in para 86 of the judgment, observed that most of the decisions on reservation and classification of students relates to professional courses like medical and engineering and may not apply as valid precedents to students in schools. This observation makes it clear that the Bombay High Court itself was of the view that percentile system could be made applicable on medical and engineering professional courses. The Bombay High Court was dealing with the case of students appearing in 10th Standard examination from SSC Board. So far as the facts of present case are concerned, they are all together different, therefore, ratio laid down by the Bombay High Court in the above case, cannot be made applicable, in the facts and circumstances of the present case.
Similarly the case law relating to scaling formula and moderation formula, referred by learned counsel, are also not applicable in the facts and circumstances of the instant case.
39. So far as the submission of Mr. S.P. Sharma, learned Senior Counsel that relief granted by the Single Bench was not prayed for in the writ petition and could not have been granted, is concerned, it is relevant to mention that one writ petition was filed on 13.02.2012 prior to the examination of one centre, held on 14.02.2012 and the remaining writ petitions were filed soon after declaration of the combined result of 11.02.2012 and 14.02.2012 examination, challenging the result of examination of 14.02.2012 or whole of the result. During pendency of the writ petition, grievances were invited by the Grievance Committee of the respondent- University in respect of startling result of examination of one centre dated 14.02.2012 and thereafter, the University took a decision on 20.02.2012 to apply statistical equivalence percentile system. All these facts were placed on record by the University in its reply, which are part of the pleadings. Thereafter, rejoinder was also filed and Dr.(Prof.) V. Natrajan, an Expert also appeared before the Court to demonstrate the system of SEP. Therefore, consideration of decision of the University in respect of SEP system, became necessary for the Single Bench and thus, the Single Bench committed no illegality in moulding and granting the relief by directing the respondent-University to declare the result, introducing statistical equivalence percentile(SEP) method, in the facts and circumstances of the present case.
40. Hon'ble the Apex Court in Kedar Nath Agrawal (Dead) And Another Vs. Dhanraji Devi(Dead) By LRs. And Another(supra), held that events happening after institution of a suit/proceeding, should be considered. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events. Para 16 of the judgment is reproduced as under:-
In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basis rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/ action. This, however, does not mean that events happening after institution of a suit/ proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:
(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or
(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) it is necessary to do so in order to do complete justice between the parties.
(emphasis supplied)
41. Hon'ble the Apex Court in Rajesh D. Darbar And Others Vs. Narasingrao Krishnaji Kulkarni And Others(supra), held that where the nature of relief, as originally sought, had become obsolete or unserviceable or a new form of relief would be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it was but fair that the relief was moulded, varied or reshaped in the light of updated facts. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Paras 4 and 6 of the judgment are reproduced as under:-
4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson Vs. State of Alabama [294 US 600(US at p.607], illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (1940 FCR 84 : AIR 1941 FC 5) falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the court, even in appeal, can take note of such supervening facts with fundamental impact. This Court's judgment in Pasupuleti Venkateswarlu v. Motor & General Traders [(1975) 1 SCC 770 : AIR 1975 SC 1409] read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the court may, in order to avoid multiplicity of the litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See V.P.R.V. Chockalingam Chetty v. Seethai Ache, AIR 1927 PC 252).
6. These aspects were highlighted by this Court in Rameshwar v. Jot Ram(AIR 1976 SC 49). The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well-established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well-settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the court. There is a well-recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey [(1987) 4 SCC 398), Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459] and Mohd. Gazi vs. State of M.P.[(2000) 4 SCC 342].
(emphasis supplied)
42. Hon'ble the Apex Court in Pasupuleti Venkateswarlu Vs. The Motor & General Traders(supra), held that it was settled that the procedure was the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of molding it, is brought diligently to the notice of the Court, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Para 4 of the judgment is reproduced as under:-
4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict in view of the inhibition written into Section 10(3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.
(emphasis supplied)
43. In view of above authoritative pronouncements, we find no force in the submissions of the learned counsel for the appellants that relief granted by the Single Bench was not prayed for in the writ petition or it is contrary to the relief prayed for in the writ petition. The Single Bench was absolutely legal and justified in considering the subsequent events regarding decision of the respondent-University to apply SEP procedure for the purpose of preparing inter-se merit of 11.02.2012 and 14.02.2012 examinees and in directing the respondents to publish the revised merit list of all the candidates introducing SEP method and to give admissions on that basis.
44. In Harish Verma and others Vs. Ajay Srivastava and another(supra), the Hon'ble Apex Court considered Regulation 9 relating to selection of Post Graduate students and in para 18 thereof, while considering several conclusions, one of the conclusions that there can be only one common entrance test for determining eligibility for post-graduation for in-service candidates and those not in service, was taken into consideration. In the present case, there was common entrance test on 11.02.2012, however, due to technical fault in computer server at one centre, a decision was taken to hold the examination of that particular centre on 14.02.2012 and looking to unexpected result of that one particular centre, where examination took place on 14.02.2012, the Academic Council, Core Committee and Grievance Committee took a decision to invite grievances from the concerned candidates and thereafter, a decision was taken by University to apply the SEP system. Therefore, looking to the facts and circumstances of the present case, the judgment of Hon'ble Apex Court in Harish Verma's case(supra), is not applicable and is distinguishable.
45. The Single Bench considered that the percentile system is already included in the prospectus of the PG Institute of Medical Education & Research, Chandigarh issued for Academic Session, beginning from July, 2012, which has been quoted in the impugned order also. The Single Bench also took note of the amendment made by the Medical Council of India in PG Medical Education Regulations (with regard to percentile system) and the same has also been quoted by the Single Bench in its impugned order. Looking to the startling/unexpected/ alarming result of one centre relating to 372 candidates appeared on 14.02.2012, grievances made in this regard by various aggrieved candidates were considered and unanimous decision was taken, in the meeting, by the members of Academic Council, Core Committee and Grievance Committee, to apply the percentile formula, to equalize the score marks of the students appeared on 11.02.2012 and 14.02.2012, instead of cancelling the examinations which took place on these dates.
46. In our view, the learned Single Judge was absolutely right in not interferring with the decision of respondent- University in this regard.
47. Mr. S.P. Sharma, learned Senior Counsel, Mr. R.D. Rastogi, appearing on behalf of the appellants (candidates who appeared in Pre-P.G. Examination, 2012 on 14.02.2012) and Mr. Ashok Gaur, learned Senior Counsel, appearing on behalf of writ petitioners/respondents herein(candidates who appeared in Pre-P.G. Examination, 2012 on 11.02.2012) argued vehemently that entire result of Pre-P.G. Examination, 2012 should not be cancelled and fresh examination should not be ordered. Submission of Mr. S.P. Sharma, learned Senior Counsel was that merit prepared on the basis of score marks, should be maintained, whereas submission of Mr. Ashok Gaur, learned Senior Counsel, is that merit list prepared in pursuance of the decision of the Academic Council of the University, after applying statistical equivalence percentile system, should be maintained, but both the learned counsel submitted that fresh examination should not be ordered. They referred number of cases on the point that the order of fresh examination should not be passed. Since, we have already taken a view that decision of the respondent-University to adopt SEP method and to rationalize the result of candidates appeared on 11.02.2012 and 14.02.2012, was just and the Single Bench has also not interferred rightly with the same, hence, the cases cited by Mr. S.P. Sharma as well as Mr. Ashok Gaur, learned Senior Counsel, for not cancelling the examination, are not required to be referred and discussed here.
48. The upshot of the above discussion is that we find no merit in any of the submissions of learned counsel for appellants and thus, all the special appeals deserve to be dismissed and are hereby dismissed accordingly with no order as to costs. Stay applications also stand dismissed.
49. A copy of the judgment be placed on record in each connected file.
(MAHESH BHAGWATI),J. (NARENDRA KUMAR JAIN-I),J.
/KKC/ Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A