Punjab-Haryana High Court
Dr.Ravi Sher Singh Toor And Another vs The Baba Farid University Of Health ... on 13 May, 2010
Author: Permod Kohli
Bench: Permod Kohli
CWP No.4165 of 2010 (1)
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 13.05.2010
(1) CWP No.4165 of 2010
Dr.Ravi Sher Singh Toor and another ... Petitioners
Versus
The Baba Farid University of Health Sciences,
Faridkot and others ... Respondents
(2) CWP No.3643 of 2010
Dr.Sunil Sampley and others ... Petitioners
Versus
The Baba Farid University of Health Sciences,
Faridkot and others ... Respondents
(3) CWP No.4189 of 2010
Dr.Kranti Garg and another ... Petitioners
Versus
State of Punjab and and others ... Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: Mr. TS Dhindsa and Mr.Ashok Sharma Nabhawala,
Advocates, for the petitioners.
Mr.KS Dadwal, Addl.AG, Punjab, with
Ms.Kavita Arora, A.A.G., Punjab, for the State of Punjab.
Mr.Anupam Gupta, Advocate, for the University.
Mr.Karminder Singh,Advocate, with
Mr.Manpreet Singh,Advocate, for the MCI.
PERMOD KOHLI, J.
CWP No.4165 of 2010 (2) Based upon the common issues, these writ petitions are being disposed of by this common order.
The petitioners in all these writ petitions are Post Graduate Students pursuing their Post Graduate Courses in different disciplines. They applied for admission to Post Graduate Courses in various disciplines in response to the Prospectus issued by the respondent-University i.e. P.G.E.T-2007. After the Entrance Examination, the petitioners were required to appear in the counselling which was to be conducted by the respondent-University. The first counselling was to be held in the month of May, 2007 for which dates were notified. However, a number of writ petitions came to be filed before this Court resulting in postponment of the counselling from time to time. Against certain orders passed in some of the writ petitions, the University filed the Special Leave Petition before the Supreme Court. One of such Special Leave Petition No.10374 of 2007 (BFUHS Vs. Munish Sethi and others) was decided by the Hon'ble Apex Court on 11.06.2007 whereupon a fresh counselling was fixed on 12.07.2007 and 13.07.2007. The second counselling was fixed on 07.08.2007. Before second counselling could be held, again some writ petitions were filed resulting in postponment of the same. On disposal of the Writ Petitions/Special Leave Petitions, third counselling was held between the month of October to December, 2007.
It is the admitted position amongst the parties that all the Writ Petitioners were admitted to their respective courses between October to December, 2007. Under the Ordinances laid down by the respondent- University, the Post Graduate Course comprises of 36 months including the period of examination. Three Annual Examinations are to be held. The CWP No.4165 of 2010 (3) relevant Regulations issued by the Medical Council of India which are known as Postgraduate Medical Education Regulations, 2000, (hereinafter referred to as the "Regulations") are reproduced as under:-
"10. PERIOD OF TRAINING:
The period of training for the award of various postgraduate degrees or diplomas shall be as follows:
(1) Doctor of Medicine (M.D.)/ Master of Surgery (M.S.) The period of training for obtaining these degrees shall be three completed years including the period of examination:
Provided that in the case of students having a recognised two year postgraduate diploma course in the same subject, the period of training, including the period of examination, shall be two years.
13. Training Period.
13.1 XX XX 13.2 All candidates joining the postgraduate training programme shall work as full time Residents during the period of training; attending not less than 80% (Eighty percent) of the training during each calendar year; and given full time responsibility, assignments and participation in all CWP No.4165 of 2010 (4) facets of the educational process.
14. EXAMINATIONS The examinations shall be organised on the basis of grading or marking system to evaluate and certify candidate's level of knowledge, skill and competence at the end of the training and obtaining a minimum of 50% marks in theory as well as practical separately shall be mandatory for passing the whole examination. The examination for M.S., M.D., D.M., M. Ch. shall be held at the end of 3 academic years (six academic terms) and for diploma at the end of 2 academic years (four academic terms). The academic term shall mean six months training period.
14 (3) Number of Examinations The University shall conduct not more than two examinations in a year, for any subject, with an interval of not less than 4 and not more than 6 months between the two examinations."
On the basis of the regulations and the Ordinances framed by the University, a Committee constituted by the Vice-Chancellor decided to fix the schedule for Post Graduate Examination in respect to the students admitted in the year 2007. The decision of the Committee is as follows:-
"After going through the record, it was observed that the admission of PG in the year 2007 started in February and extended to December, 2007. The CWP No.4165 of 2010 (5) matter was deliberated in detail. Keeping in view the extended admission schedule and to give benefit to the maximum students, it was decided to conduct the examination of PG students of 2007 batch as under:-
i) May, 2010-Covering students admitted upto 31st July, 2007.
ii) October, 2010-Covering students admitted upto 31st December, 2007."
This decision was communicated by the Baba Farid University to the Principals of all the Medical/Dental Colleges affiliated to the said University vide its communication dated 25.02.2010. The relevant extract of the communication is reproduced hereunder:-
"A) MBBS Final Prof (Part-II) Supplementary Examination-2010.
Not to pre-pone the supplementary examinations and the University should adhere to the schedule already in vogue.
B) PG (MD/MS/Dipl/MDS) Examinations (Batch 2007) To conduct the examinations of PG students of Batch-2007 as under:
a) May 2010-including students admitted up to 31.7.2007.
b) October, 2010-including students admitted up to 31.12.2007.
CWP No.4165 of 2010 (6)
In this regard, you are requested to send the examination forms of the eligible PG students admitted up to 31.7.2007 for May-June 2010 and up to 31.12.2007 for October, 2010 examinations, respectively, as per examination schedule given below:
Without late fee With late fee With late fee of With late fee of of Rs.200/- Rs.500/- Rs.1,500/-
May/June March 1 March 15 March 31 April 15
Nov./Dec. Sept. 15 Sept. 30 Oct. 15 Oct. 31
For October 2010 Examinations:
The Examination schedule shall be intimated later on.
Sd/- Controller of Examinations 25/2/10"
The petitioners are aggrieved of the decision of the University regarding the holding of examinations in phases. As a matter of fact, the petitioners are desirous of appearing in the final Post Graduate Examination scheduled to be held in May/June, 2010. They submitted their forms for the examination, but have neither been allotted the roll numbers nor permitted to appear in the final examination scheduled to commence from 14.05.2010.
It is contended on behalf of the petitioners that they have completed their courses of studies and have more than 90 per cent attendance. They are eligible to appear in the final examination in May/June, 2010. The action of the respondent-University has also been assailed as arbitrary in denying them the right to appear in the final examination in May, 2010. It is vehemently argued on behalf of the CWP No.4165 of 2010 (7) petitioners that in past Post Graduate students were permitted to appear in the Annual Examination conducted in the month of May/June, subject to completion of three years period of study after their appearance in the examination. The petitioners have also relied upon interim order passed by this Court in CWP No.7248 of 2005 (Divya Goel Vs. Baba Farid University of Health Sciences, Faridkot and others) which is reproduced below:-
"J.S. Khehar, J. (Oral) Written statement filed on behalf of respondent No.1, in Court today, is taken on record. Learned counsel for respondents No.2 to 4 states that the petitioner would complete three years of training period on 08.10.2005. The petitioner who is already attending to the MD (Pharmacology) course undertakes to continue to attend the course till she completes prescribed three years of the training course, whereupon the result of the petitioner be declared. Ordered accordingly. The result of the petitioner handed over to us in a sealed cover, is returned back to learned counsel for respondent No.1 in the same manner. Writ petition stands disposed of accordingly.
Sd/- J.S. Khehar, Judge 3.10.2005 Sd/- S.N.Aggarwal, Judge."
As a matter of fact, the petitioners are seeking similar relief as granted in the aforesaid order.
CWP No.4165 of 2010 (8)
The claim of the petitioners has been seriously opposed by the respondent-University. Common reply has been filed. While giving the details of delayed counselling on account of various interim orders passed in various Writ Petitions, it has been contended that the decision to hold examinations for the students admitted to Post Graduate Courses in the year 2007 was taken by the Committee constituted by the Vice-Chancellor and it was decided to hold examinations of these students who were admitted upto 31.07.2007 in May, 2010 and those admitted upto December, 2007 in October, 2010.
Mr.Anupam Gupta, learned counsel appearing for the respondent-University has referred to the Regulations framed by the MCI/DCI as also the Ordinances of the University. These Regulations have been reproduced hereinabove. These regulations have been framed in exercise of statutory powers by the MCI/DCI and other bodies to regulate the admissions, study of course, examinations etc. Regulation 10 requires period of training as three completed years including the period of examination in case of Post Graduate Degree and in case of Post Graduate Diploma two years. Regulation 13.2 prescribes minimum 80- per cent attendance in a calendar year and other assignments and participation of the programmes. Regulation 14 which deals with the examinations provide for evaluating the knowledge, skill and competence of the candidates at the end of the training. Such candidates must secure minimum of 50% marks including the Theory and Practical separately and it is mandatory to qualify the whole examination. It is further prescribed that the examination for Post Graduate Degree/Diploma shall be held at the end of three academic years (six academic terms) and for Diploma two academic years (four CWP No.4165 of 2010 (9) academic terms). Academic term has further been described as six months training period. Clause (3) of Regulation 14 restricts the number of examinations to two in a year and for any subject with an interval of not less than four and not more than six months between the two examinations.
It is contended on behalf of the University that sanctity has to be attached to the statutory Regulations/Ordinances framed by the Expert Bodies like the MCI/DCI and the Ordinances framed by the University particularly when the course of study are specialised and relate to acquiring higher qualifications in the field of Medicines directly involved with the health care of human beings. It is also the argument of the respondents that these statutory Regulations cannot be diluted particularly in view of the directions issued by the Hon'ble Supreme Court in the case of Mridul Dhar (Minor) and another Vs. Union of India and others, (2005) 2 Supreme Court Cases, 65.
I may notice some of the judgments relied upon by the respondents.
In the case of Medical Council of India Vs. Madhu Singh and others, (2002) 7, Supreme Court Cases, 258, Hon'ble the Supreme Court has deprecated the practice of mid-session admissions, even by the High Courts. It was in that context that the Hon'ble Supreme Court issued the following directions:-
"23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the CWP No.4165 of 2010 (10) course.
In conclusion
(i) There is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education;
(ii) even if seats are unfilled that cannot be a ground for making mid-session admissions;
(iii) There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the institution concerned, action is prescribed shall be taken by MCI."
In Mridul Dhar case (supra), Hon'ble the Supreme Court while upholding the sanctity of the Regulations and the time schedule fixing therein, issued further directions. The relevant extract of the same is CWP No.4165 of 2010 (11) reproduced hereunder:-
"35. Having regard to the aforesaid, we issue the following directions:
1. XX XX
2. XX XX
3. XX XX
4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.
5. XX XX
6. By 31st October, the States, through the Chief Secretaries/Health Secretaries shall file a report in regard to admissions, with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face the consequences for violation.
7. to 14. XX XX
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.CWP No.4165 of 2010 (12)
16. Copy of the judgment shall be sent to the Chief Secretaries of all the States/Union Territories for compliance."
In view of the ratio of the aforesaid judgment, it is sought to be contended on behalf of the respondents that completion of three years training course is compulsory and mandatory so is the position of the examinations. According to Mr.Anupam Gupta, the University took a conscious decision to hold the examinations of the students admitted upto 31st July, 2007 in May/June, 2010 and those admitted thereafter upto 31st December, 2007 in October, 2010 to comply the mandate of the rules. It is further the case of the respondents that if the petitiones who were admitted after 31st July, but between October to November, 2007, are permitted to appear in the examination in May/June, 2010, they will be completing only two and half years course (five academic terms) , whereas the requirement of the statute (Regulations/ Ordinances) is 36 months (six academic terms).
Mr.T.S. Dhindsa and Mr.Ashok Sharma Nabhawala, Advocates, learned counsel appearing for the petitioners have, however, disputed the contention of Mr.Anupam Gupta. It is submitted that the delay in admissions cannot be attributed to the petitioners. Thus, the mandate of the directions issued in Madhu Singh's case (supra) cannot be attracted. It is further argued that out of 300 students admitted to various Post Graduate Courses in the year 2007, 180 students are being permitted to appear in the examinations commencing in May, 2010, whereas 120 students who are admitted after July, 2007, are being asked to appear in the examination in October, 2010. It is stated that even in respect to CWP No.4165 of 2010 (13) students who were admitted in July, they will not be completing 36 months of course of study on 14.05.2010 and they will be falling short of two months and if relaxation is to be given to such students, the petitioners are also entitled to relaxation on the same analogy. The petitioners have also impressed upon this Court that the interim directions dated 03.10.2005 given in the case of Divya Goel, be extended to the case of the petitioners.
I have heard the learned counsel for the parties at length and have carefully gone through the pleadings, Regulations/Ordinances noticed here-in-above.
The Regulations have been framed by the MCI/DCI and are statutory in nature. So is the position with the Ordinances framed by the University. Non observance of the same on account of the circumstances beyond the control of the authorities is one thing and asking the authorities to commit breach to grant relief to an individual or some of them is another thing. In Divya Goel's case, the petitioner was on maternity leave and thus, could not attend and complete the course. It was a circumstance which weighed with the Court and the directions were issued to permit her to appear in the examination. It was a case of circumstances not within the control of the candidate. In any case, this Court has not laid down any law or precedent in the order dated 03.10.2005 and, thus, cannot be cited as a precedent by the petitioners or this Court.
It is equally correct that the students who were admitted upto July, 2007 will not be completing 36 months of training in May, 2010. Definitely there will be deficiency of one or two months but then the period prescribed in the regulations is not to be construed mathematically. It has to be applied in the broader sense and substantially. The University CWP No.4165 of 2010 (14) in its wisdom and keeping in view various related factors decided to hold examinations of those admitted upto July, 2007 in May, 2010. The examinations will continue upto 21.05.2010 and the Practicals and Clinical will be thereafter. Regulation 10 prescribes 36 months training including the examinations. By the time all examinations, theory and Practicals are over, it would be almost 35 months and has a substantial compliance of the regulation. In case the petitioners who were admitted in the months of October and November, 2007, are allowed to appear in May/June, 2010, examination, they will be falling short of almost six months and in that sense they will be completing the course of study in 30 months against prescribed 36 months which is impermissible in statute.
The contention of the learned counsel for the petitioners that the petitioners may be treated in the same manner as in Divya Goel's case, is further to be rejected for the simple reason that equality can only be amongst equals. Otherwise also, the concept of equality enshrined in Article 14 of the Constitution of India is a positive concept and cannot be applied in a negative manner so as to either perpetuate the illegality or commit the violence with the statute. The object, scope and purport of Article 14 of the Constitution of India has been considered by the Hon'ble Supreme Court in various judgments. The latest being in the case of State of Bihar Vs. Upendra Narayan Singh and others, (2009) 5, Supreme Court Cases, 65, wherein it has been held as under:-
"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an CWP No.4165 of 2010 (15) illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. ........................"
In the case of Annamalai University represented by Registrar Vs. Secretary to Government, Information and Tourism Department and others, (2009) 4 Supreme Court Cases, 590, Hon'ble the Supreme Court has further observed that relaxation granted to the basic things necessary for conferment of degree is impermissible.
Hon'ble the Supreme Court also declared the nature of regulations framed by the Medical Council of India as mandatory in the case of Medical Council of India Vs. State of Karnataka, JT 1998 (5) Supreme Court, 40. A similar view was also expressed by a Constitution Bench of the Hon'ble Supreme Court in Dr. Preeti Srivastava Vs. State of M.P. And others, (1997) 7 SCC, 120.
Relying upon the aforesaid decisions, a Full Bench of this Court in the case of Prabhaoor Singh Hayer and others Vs. Baba Farid University of Health Sciences and others, (CWP No.17820 of 2008 and other connected writ petitions), decided on January 30, 2009, held that the regulations laying down the standard of statute be substantially complied with.
In view of the above circumstances, I am of the considered opinion that the relief prayed for by the petitioners cannot be granted in CWP No.4165 of 2010 (16) relaxation of the regulations/Ordinances. Accordingly, all the petitions are dismissed with no order as to costs.
A copy of this order be placed on the record of other connected files.
13.05.2010 (PERMOD KOHLI) BLS JUDGE
Note: Whether to be referred to the Reporter? Yes