Bombay High Court
Rajkumar Shantilal Gandhi (Dr.) vs State Of Maharashtra And Ors. on 7 October, 1988
Equivalent citations: 1988(4)BOMCR67
JUDGMENT G.H. Guttal, J.
1. Dr. Gandhi, the petitioner in Writ Petition No. 3130 of 1988 and Dr. Prani, the petitioner in Writ Petition No. 3684 of 1988 seek registration for the course of M.S. (General Surgery) at the Government Medical College, Miraj, affiliated to the Shivaji University. The State of Maharashtra, respondent No. 1 runs the medical college. The Director of Medical Education and Research, the respondent No. 2 supervises and manages the various medical colleges run by the respondent No. 1. The respondent No. 3 is the Dean of Miraj Medical College. Dr. Gandhi, the petitioner in Writ Petition No. 3130 of 1988 contends that the deduction of 20 marks from the marks secured by him in the subject of surgery at the M.B.B.S. examination made under the rules for the selection of candidates for admission to the post-graduate course, is illegal. Consequently, therefore he claims that he is entitled to a seat for registration for the post graduation course in surgery. Dr. Prani, the petitioner in Writ Petition No. 3684 of 1988 who secured marks equal to the marks secured by Dr. Gandhi after deduction but at the first attempt, seeks the removal of the name of Dr. Gandhi from the list of students eligible for admission and claims that he alone is entitled to be admitted to the post-graduate course in surgery. We have heard both the petitions together. In this judgment, the petitioner in Writ Petition No. 3130 of 1988 is referred to as Dr. Gandhi and the petitioner in Writ Petition No. 3684 of 1988 is referred to as Dr. Prani. The respondents 1, 2, and 3 who are the authorities in control of admission to the course are compendiously referred as the respondents.
2. Briefly stated the fats out of which these petitions arises are as under :---
Dr. Gandhi passed the first M.B.B.S. and the second M.B.B.S. examination of Shivaji University in October, 1981 and December, 1983 respectively. In the ordinary course, he was expected to appear for the final M.B.B.S. examination in October, 1984. He made all preparations for appearing at this examination. He filed in the requisite form, paid the fees, was allotted a seat number and indeed, possessed the hall ticket. But he did not appear for the examination as, according to him, he was sick. It is unnecessary to go into the question of sickness. However, he passed the final year M.B.B.S. examination in May, 1985. After completion of internship, he was registered as a medical practitioner in 1986.
3. Dr. Prani passed his first M.B.B.S. and second M.B.B.S. examination in November, 1982 and April, 1984 respectively. He was due to appear for the final year M.B.B.S examination in November, 1986. He passed his final M.B.B.S. examination in November, 1985. He was registered as a medical practitioner in January, 1987.
4. For registration as a student for the post graduate course in surgery, the marks secured in the subject of surgery are taken into account. The Government of Maharashtra by its resolution No. MCG-2572-24516-Q dated 18th June, 1971 has framed "Rules for the selection of candidates for admission to post graduate courses" (hereinafter referred to as the Rules). Under Rule 5, students are selected for admission to post graduate degree courses on the basis of the marks obtained in the subject at university examination "modified with specified deduction for the number of attempts taken to pass that subject" as well as the final M.B.B.S. examination. Thus, if a student wants admission to post graduate course in surgery, his marks in surgery at the M.B.B.S. examination and the attempts he made to pas the M.B.B.S. examination and also the examination in that subject are taken into account. Rule 8 authorises deduction of marks from the marks secured in surgery. In the case of Dr. Gandhi, 5% of the marks were deducted under Rule 8(d) which reads thus.
"Passing the subject at IInd attempt---5% deduction"
After the deduction, the authorities arrived at a figure which represents the "corrected marks". The respondents prepared "provisional merit list for July 1988 term for admission to the M.S. (General Surgery) course ". In this list Dr. V.K. Jadhav, Dr. N.T. Joseph and Dr. (Miss) Bhosale appear at serial Nos. 1, 2 and 3 respectively. Dr. Gandhi appears at serial No. 4. He secured 260 marks out of 400 marks in surgery at the M.B.B.S. examination. After deduction of the 20 marks, his corrected marks are shown as 246. Dr. Prani secures 246 marks and since he passed at the first attempt, no deductions were made. His corrected marks are shown as 246 Dr. N.T. Joseph who is at serial No. 2 in the provisional merit list and Dr. (Miss) Bhosale who is at serial No. 3 are respondents to the petition filed by Dr. Gandhi. They are absent thought served. Dr. Jadhav who is at serial No. 1 in the provisional merit list has filed Writ Petition No. 2502 of 1988 in this Court seeking admission to the post graduate course in medicine. Writ Petition No. 2502 of 1988 was placed on our board today with a view to ascertain whether Dr. Jadhav is still interested in securing admission to the post-graduate course in surgery. Mr. V.M. Thorat, Counsel for the petitioner in Writ petition No. 2502 of 1988 appeared and stated before us that Dr. Jadhav who is first in the provisional merit list is not interested in securing admission to the post graduate course in surgery.
5. Mr. Pradhan, learned Counsel for Dr. Gandhi urged that Dr. Gandhi did not appear at the M.B.B.S. examination, scheduled to be held in October, 1984 because of ailment of heart for which he received treatment in a hospital. Since he did not appear at the examination, it cannot be said that he made any attempt to pass M.B.B.S. examination. The respondents erroneously concluded that the failure to appear at the examination in October, 1984 was an attempt to pass that examination. Consequently, their conclusion that Dr. Gandhi passed the examination in surgery at the second attempt is erroneous.
6. We will first examine whether the fact, that the petitioner refrained from appearing at the examination when in the normal course he was due to appear, constitutes an "attempt" for the purposes of the Rules. When one speaks of an attempt to do a certain thing, there is implied in it a contrast with the attainment of its object. An attempt thus means a effort, an endeavour which turns out to be futile. In a nutshell, it is an unsuccessful endeavour. In the context of admissions to academic courses where academic performance is relevant, "attempt" has a special meaning. The rules framed by the Government of Maharashtra display one dominant purpose. It is to ensure that the marks obtained in the subject at the university examination determine the admission to the course. 5% of the marks are deducted in case a candidate has passed the examination in that subject at the degree course at the second attempt. The rule of deduction of marks is based on sound reason. Consider case where two students who are expected to complete a course within one year. One of them appears for examination at the time when in the normal course he is "due" to appear and secure X marks. The other student chooses not to appear when "due" and appears one years later securing (X+10) marks. This situation means that the student who secured 10 marks more than the student who appeared one year earlier took two years to secure 10 more marks. Where, as in this case, academical performance is the basis on which admissions are granted, not only marks obtained at the examination at which the student appears but also the time taken by him to appear for that examination, the marks of the previous examination and so on, are relevant. This is relevant for understanding of the meaning of the word "attempt" in the context of admission to educational institutions.
7. It is the argument of Mr. Pradhan on behalf of Dr. Gandhi that unless Dr. Gandhi actually appears for the examination, he cannot be said to have "attempted" that examination. In civil cases an "attempt" means an intent combined with an act failing short of execution of the thing intended. It is an endeavour to do an act, carried beyond mere preparation, but short of execution.
Dr. Gandhi had prepared himself to appear for the examination, submitted the requisite form and was possessed of seat number and the hall ticket. In Dr. Shashikant Langade v. Dean, Medical College, Miraj and others, W.P. No. 3162 of 1985 a Division Bench of this Court, in identical circumstances held that the application for appearing for the examination, payment of fees and inclusion of the name in the list of examinees, are steps taken by the examinee which travel beyond mere preparation and constitute "attempt". We are in agreement with this view. The view propounded by Mr. Pradhan, learned Counsel for Dr. Gandhi is opposed to the principle on which the rule of deduction is founded.
8. In our opinion, Dr. Gandhi did not appear for the examination when he was in normal course due to appear. His endeavour to pass the M.B.B.S. examination did not stop at the stage of preparation. He submitted the requisite from, paid the fees and was listed as an examinee. This conduct which was much more than preparation was an "attempt" at the M.B.B.S. examination. Therefore, the deduction of 5% of marks for determining the corrected marks was valid.
9. Mr. Pradhan, learned Counsel for Dr. Gandhi drew our attention to the record of Nair Hospital, Bombay, and urged that Dr, Gandhi was admitted into the hospital on 1-8-1983 and was treated for heart disease. The fact that Dr. Gandhi did suffer from sickness is not disputed. It may also be assumed that the sickness prevented him from appearing for M.B.B.S. examination in October, 1984. But the failure to appear on account of this ailment or any other reason does not take the case out of the meaning of the word "attempt". The meaning of the word "attempt" does not admit of exceptions dependent upon the individual circumstances. A person who makes an application for appearing for the examination, fills in the requisite from and is enrolled as an examinee, must be taken to have taken steps which travel beyond mere preparation for the examination. These steps take the case of the candidate beyond the stage of preparations and constitutes an attempt to pass the examination. The causes or reasons for refraining from appearing for the examination or the failure to appear at the examination are irrelevant. The essence of the matter is that the candidate should have not only prepared for the examination but taken steps like filling in the forms, payment of fees and having his name listed in the list of examinees. It is these facts that transformed the endeavour of Dr. Gandhi into an attempt.
10. Mr. Pradhan drew our attention to the extract of certain Ordinance of the Shivaji University relating to the eligibility to reappear at the examination upon failure to pass the examinations. For instance, there is a rule which lays down that the failure to pass the examination will not debar the candidate from appearing at subsequent examination on submission of new application and the payment of fresh fees. In the context of this rule, Shivaji University has notified that the failure under the above clause means the "actual appearance for the whole or any part of the examination--- and not merely inclusion of the names in the list of the candidate submitted by the principal as due to appear for the examination. "The argument is that the University has defined what "failure" is and has clarified that the inclusion of the names in the list of candidate by itself does not constitute "failure". The Ordinance lays down the rule of eligibility to appear for the examination at which the candidate has failed. It has no application to cases of initial admission to a course. The fact that the University felt compelled to specify that mere inclusion of the name in the list of the candidate does not constitute "failure" suggested that it was aware that in its normal meaning "attempt" includes cases where candidate does not appear for the examination. The argument of Mr. Pradhan is untenable.
Lastly, the judgment of the Supreme Court Abhijit v. Dean, Medical College, Aurangabad and another, was relied upon by Mr. Pradhan. The judgment has no application to the facts of this case for two reasons. In that case the University authorities had erroneously applied the rules of appointment to residencies, to regulate admission to Post Graduate course. Secondly the candidate was held not "due" to appear at the examination as he had not even applied for appearing for the examination.
11. In the view which we have taken of the meaning for the word "attempt", we see no merit in the case of Dr. Gandhi. Dr. Prani has not pressed the petition and was content with a recommendation from us that Dr. Gandhi and Dr. Prani both be admitted to the Post-Graduate course. Dr. Gandhi secured 266 marks out of 400 but lost 20 marks because he passed at the second attempt. Dr. Prani passed at the first attempt to secure only 246 marks out of 400 marks. The result of the deduction of 20 marks from the obtained by Dr. Gandhi is that his corrected marks are equal to those secured by Dr. Prani. Since we have upheld the validity of the decision of the respondents to deduct 20 marks from the marks obtained by Dr. Gandhi, he should rank at the same place in the list alongwith Dr. Prani. Having regard to the heart ailment from which Dr. Gandhi suffers and that fact that Dr. Prani has the same number of corrected marks as those of Dr. Gandhi, we recommend to the respondents that they should admit both the candidates to the post graduate course in surgery and condone the deficit in the first terms. We have no doubt that respondents will consider our recommendation in the right sprit and adopt a sympathetic attitude in the matter.
12. Subject to what we have stated above, both the petitions are dismissed. Rules are discharged. However, there will be no order as to costs.