Madhya Pradesh High Court
Nitin Ken vs The State Of Madhya Pradesh on 5 December, 2016
1
WP.8200/2016
Nitin Ken Vs. State of M.P. & Ors.
05.12.2016
Shri Abhishek Parashar, counsel for the petitioner.
Shri Praveen Newaskar, counsel for the respondents /
State.
Mrs. Nidhi Patankar, learned counsel for the respondent No.3 / Dean, G.R. Medical College.
Shri R.S. Sharma, counsel for the respondent no.4 / Jiwaji University.
Shri Vivek Kehdkar, learned Assistant Solicitor General for the respondent No.5 / CBI.
2. Challenge in this petition filed under Article 226 of the Constitution of India is to the order of rustication dated 11.04.2016 by which the Dean of the G.R. Medical College has rusticated the petitioner from the M.B.B.S. course by invoking his power under clause 3.2 of the Madhya Pradesh Medical and Dental Undergraduate Entrance Examination Rules, 2009 ( for short " Rules of 2009") ( filed herewith along with list of documents dated 02.12.2016). For ready reference and convenience the relevant Rules are reproduced below :-
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3. It is not disputed at the bar that the rustication has been 3 WP.8200/2016 made on the basis of registration of an offence punishable under Section 419, 420, 467, 468, 471, 201, 120B / 109 IPC read with Section 3/ 4 of the Pariksha Adhiniyam at Crime No. 94/2015 on 09.04.2016 by the CBI arising out of allegation that the petitioner has made co-accused to sit on his behalf as solver in the 2009 PMT Examination against his Roll No. 873890. It is further not disputed at the bar that prior to issuance of order of rustication no opportunity of being heard was provided to the petitioner / candidate.
4. As regards the competence of the authority to take action against the candidate who was indulged in illegality / irregularity in the process of examination as mentioned above this Court initially in the case of Pratibha Singh Ku. (Minor) Vs. State of M.P. & Ors, reported in 2014 (III) MPJR 178 took the view that the examining body i.e. M.P. Professional Examination Board is not divested of power to take action for illegality committed during examination merely because candidate has been admitted to the course. In the said case, the court after observing thus and finding breach of principle of audi alteram partem quashed the order of rustication passed by the Dean of the respective College granting liberty to the Examination Board to pass appropriate orders in accordance with law. (See : Para 37,38, 39,40 & 41)
5. Thereafter in another decision rendered by Coordinate Bench of this Court in Arun Sharma and Ors. Vs. State of M.P. & Ors, 2015 (3) MPLJ 206 attended with similar circumstances similar order of rustication passed by the Dean was quashed by affording liberty to the Professional Examination Board and the concerned college to take action in 4 WP.8200/2016 accordance with law. The relevant extract of Arun Sharma decision is reproduced below :-
"22. We have considered the submissions made on both sides. In the instance case, in the show- cause notice, reference has been made to the report submitted by the Inquiry Committee. The impugned order has been passed on the basis of the report submitted by the Committee as well as the communication sent by the Police Station. However, neither the report of the Committee nor the communication sent by the police station was supplied to the petitioners. Besides that, the petitioners were only allowed for inspection of the file and the documents were also not supplied to them which is evident from the impugned order dated 25.4.2014. The respondents have also taken into account the admission allegedly made by the petitioners before the Police Officer. The Division Bench of this Court in the case of Nikita Saxena Vs. State of Madhya Pradesh vide order dated 16.10.2014 passed in W.P. No.8372/2014 has held that admission made before the Police during the investigation alone cannot be used against the petitioners and an independent inquiry is required to be held.
23. In view of the preceding analysis, it is evident that the impugned order has been passed in the flagrant violation of principles of natural justice and, therefore, the same cannot be sustained in the eye of law. Accordingly, it is quashed and set aside. However, liberty is granted to the Professional Examination Board and the concerned Colleges as well as to the petitioners in paragraph 9 of the order passed today in W.P. No.3983/2013 and other companion cases shall apply to the present cases mutatis mutandis"
6. Thereafter another Coordinate Bench of this Court at Principal Seat in WP No. 1530/2015 (Bhimsen Yadav vs The State of Madhya Pradesh) vide order dated 17.8.2015 relying upon the decision in Pratibha Singh (supra) quashed the 5 WP.8200/2016 order of rustication passed by the Dean of the concerned Medical College granting liberty to the Professional Examination Board to take action only if the case is covered within the parameters of clause 3.2 and 3.3 of the PMT Entrance Rules 2009.
7. Thereafter another Coordinate Bench sitting at Gwalior by order dated 03.10.2016 passed in WP No. 7010/2016 in the case of Santosh Badole Vs. The State of M.P. after considering all the above said decisions rendered by different Division Benches of this Court allowed the said petition by quashing the order of rustication impugned therein by granting liberty to the Dean of concerned College to pass appropriate orders after affording reasonable opportunity to the petitioner.
8. In view of the above, it is evident that as regards the issue of violation of principle of natural justice, different Benches of this Court have been unanimous in their view that no opportunity was extended to the candidate concerned before rusticating him from the course of MBBS. However, in regard to the question as to which authority is competent to take action of rustication there was some difference of opinion earlier which got sorted out by the decision of Santosh Badole (supra).
9. The case of Santosh Badole refers to clause 3.1., 3.2 and 3.3 of the Rules of 2009 which have already been reproduced herein above, which empower the Dean of College concerned to take appropriate action against the candidate who has suppressed any material information or has furnished any wrong information at the time of filling of application form for appearing in the examination or at the time of scrutiny of documents or at the time of allotment of seat ( counselling) or 6 WP.8200/2016 at the time of admission to the College.
10. Learned counsel for the respondent No.3 is not aware as to what illegalities or irregularities were committed by the petitioner which gave rise to the offences registered against the petitioner. She is also unaware of the fact as to whether it was case of suppression of material information or furnishing of false information.
11. This Court may not go into those facts as the petition can be decided in view of specific provisions contained in Rules of 2009.
12. The Examination Rules of 2009, particularly clause 3.0 (One) provides that said Rules of admission and examination issued by the Department of Medical Examination of 2009 shall remain subject to any Rule or amendment therein carried out in respect of examination, allotment and admission by the governing body of the College.
13. More so, 3.0 (two) however makes the said Admission and Examination Rules of 2009 applicable to all the candidates in regard to the entrance examination, allotment of seat and admission M.B.B.S. / B.D.S. to the course.
14. A conjoint reading of clause 3.0 (one), 3.0 (two) and 3.2 makes it crystal clear that competent authority for all purposes of taking action in respect of any incident of misconduct, illegality or irregularity committed by candidate during various processes starting from the filling up of application form for examination till his admission to M.B.B.S. course is the Dean / Principal of the College concerned.
15 In view of the above and the fact that the respondents do not deny that impugned order of rustication was preceded by 7 WP.8200/2016 affording of opportunity to the petitioner this petition stand allowed to the extent indicated below :-
(1) The impugned order dated 11.04.2016 passed by Dean, G.R. Medical College stands quashed. (2) The Dean / Principal of the respondent College shall be empowered to pass appropriate order under the said Examination and Admission Rules which should be done expeditiously without awaiting the result in the criminal case pending against the petitioner.
(3). The petitioner shall be allowed to pursue his course by appearing in classes and shall also be entitled to appear in the examination conducted during the course of MBBS provided he fulfills all requisite eligibility criteria prescribed by the law.
(4) The result of the any such examination shall not be declared without the the leave of this Court. (5) The petitioner shall be afforded opportunity of hearing before passing of order by the Dean. (6) The aforesaid exercise contained in (2) and (5) supra should be completed within two months from the date of communication of this order.
15. No costs.
(Sheel Nagu) (S.K. Awasthi)
Judge Judge
sarathe/-