Karnataka High Court
Ms. Nusra Anjum. S. A. vs Rajiv Gandhi University Of Health ... on 8 March, 2021
Equivalent citations: AIRONLINE 2021 KAR 389, 2021 (3) AKR 15
Author: R Devdas
Bench: R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MARCH, 2021
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.3582 OF 2021(EDN-EX)
BETWEEN
MS. NUSRA ANJUM. S. A.
D/O. AKRAM PASHA,
AGED ABOUT 20 YEARS,
REG. NO. 18D0517,
R/O. NO. 46, CROWN RESIDENCY,
7TH MAIN, 12TH CROSS,
2ND STAGE, BTM LAYOUT,
BENGALURU-560 076.
...PETITIONER
(BY SRI ABHISHEK MALIPATIL, ADVOCATE)
AND
1. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH T BLOCK, JAYANAGAR,
BENGALURU-560 041,
REP BY ITS VICE-CHANCELLOR.
2. THE REGISTRAR (EVALUATION)
RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES,
4TH T BLOCK, JAYANAGAR,
BENGALURU-560 070.
...RESPONDENTS
(BY SRI N K RAMESH, ADVOCATE FOR R1 & R2)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS NO.1 AND 2 TO CONDUCT 3RD EVALUATION OF
THE ANSWER SCRIPTS OF THE SUBJECT DENTAL MATERIALS OF
THE 2ND BDS(RS3) EXAMINATION OF NOVEMBER 2020
UNDERTAKEN BY THE PETITIONER SINCE THE DIFFERENCE OF
MARKS BETWEEN THE EVALUATORS IS MORE THAN 15 PERCENT
IN TERMS OF THE ORDER DATED 21.12.2018 PASSED BY THIS
HONBLE COURT IN W.P.NO.48194-48198/2018 AND
CONNECTED WRIT PETITIONS VIDE ANNEXURE-E AND ETC.
THIS WRIT PETITION IS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The petitioner is a student of Bachelor of Dental Surgery (BDS) course and is aggrieved by the manner in which evaluation of the theory answer paper in the subject 'Dental Materials' II Year B.D.S. Course has been conducted by the respondent-University is made. Learned Counsel for the petitioner submits that to say the least, since there is a difference of more than 15% of the marks evaluated by two examiners, the answer script of the petitioner is required to be sent to third evaluator in terms of the Ordinance of the year 2012. The learned Counsel submits that though an Ordinance -3- was issued on 29.03.2019 superseding the Ordinance of the year 2012, this Court in the case of Sri.Neelesh Mehta Vs. Rajiv Gandhi University of Health Sciences and Another in W.P.No.31335/2019 and connected matters which were disposed of on 10.08.2020 quashed the Ordinance dated 29.03.2019.
Therefore, it is submitted that once the subsequent Ordinance of the year 2019 is struck down, the Ordinance of 2012 is revived and therefore, the provisions of the Ordinance of 2012 are applicable to the petitioner and to the answer scripts of the petitioner. It is more so, because the examinations were conducted in November 2020 i.e., after the 2019 Ordinance was struck down by order dated 10.08.2020.
2. Learned Counsel Sri N.K.Ramesh, appearing for the respondent-University submits that in the case of Sri Neelesh Mehta (supra) the grievance of the medical students were under consideration. The learned Counsel submits that although several grounds were raised, the co-ordinate Bench of this Court proceeded to strike down the Ordinance only on the ground that the provisions governing the conduct of examination with respect to the Under Graduate courses and Post Graduate courses of the -4- medical stream arises out of a provision of the MCI Regulations and therefore, there could not be two sets of standards, one governing the Under Graduate courses and another for the Post Graduate students. However, it is submitted that the entire context in which the co-ordinate Bench in the case of Sri Neelesh Mehta considered the Ordinance of 2019 is the discrepancy in the matter of medical students and nowhere in the judgment is the case of the Dental students or other disciplines is considered. It is therefore the contention of the learned Counsel for the respondent-University that the doctrine of severability should be applied in this case and this Court should hold that the decision of the co-ordinate Bench in quashing the Ordinance of 2019 is applicable only to the medical students and not to the Dental students, as in the present case.
3. The learned Counsel places reliance on a decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh And Others Vs. Jaiprakash Associates Limited (2014) 4 SCC 720 to submit that the doctrine of severability provides that if an enactment cannot be saved by construing it consistent with its constitutionality, it may be seen whether it can be partly -5- saved. By saying so, the learned Counsel would submit that the submission of the learned Counsel for the petitioner that once the Ordinance of 2019 is struck down, the Ordinance of 2012 is automatically revived, should not be accepted.
4. The learned Counsel submits that since the decision of the co-ordinate Bench in the case of Neelesh Mehta stems from the grievance of the medical students, and although the Ordinance 2019 is struck down, it should be held that the striking down is only with respect to the medical students and not the other disciplines. In this regard, attention of this Court is drawn to the Ordinance dated 29.03.2019 whereby at Clause (2) of the Regulation it is provided that the Ordinance shall apply to all theory and answer scripts of Under Graduate courses in Medical/Dental/AYUSH/Physiotherapy/Nursing/Pharmacy/allied Health Sciences/Yoga and Naturopathy and therefore, the Ordinance has been struck down only in the case of medical Under Graduate courses.
5. Having heard the learned Counsels and on perusing the petition papers, this Court is of the considered opinion that the submission of the learned Counsel for the respondent-University -6- that the striking down of the 29.03.2019 Ordinance would only apply to the Under Graduate medical courses, cannot be accepted. The decision cited by the learned Counsel for the respondent-University could be considered, where the decision of this Court in striking down the Ordinance in its entirety is questioned. This is not a case or a forum where the decision of striking down of the Ordinance by a co-ordinate Bench is called nor could be called in question. If the respondent-University is of the opinion that the striking down of the 29.03.2019 Ordinance should be restricted only to the Under Graduate medical courses, then the University is required to call in question the orders passed in the case of Neelesh Mehta. As of now, whether the University likes it or not, the fact is that the 29.03.2019 Ordinance has been struck down by this Court by order dated 10.08.2020. The examinations of the BDS Courses have been held in the month of November 2020, subsequent to the striking down of the 29.03.2019 Ordinance. Therefore, once Ordinance dated 29.03.2019 was struck down, the Regulations which were holding the field prior to the 29.03.2019 notification would be revived.
-7-
6. Therefore, the submission of the learned Counsel for the petitioner that in terms of the Regulations of 2012, if there is a difference of more than 15% in the evaluation between two evaluators, the same is required to be sent for the third evaluator, needs to be upheld. This position has been reiterated by a co-ordinate Bench of this Court in the case of Dr.Menaka Mohan, in W.P.Nos.48194-48198/2018 and connected matters disposed of on 21.12.2018.
7. Consequently, the writ petition is allowed. The respondent-University and the second respondent-Registrar (Evaluation) are directed to hold a third evaluation of the answer scripts of subject 'Dental Materials' of the II B.D.S (RS-3 Scheme) examinations of November 2020 undertaken by the petitioner and to announce the results on or before 20.03.2021.
8. At this juncture, the learned Counsel for the petitioner apprehends that if the third valuation is not conducted and results are not announced, the petitioner will not be permitted to write the third year examination and therefore submits that if the orders of this Court are not obeyed, the respondent-University should be directed to permit the petitioner to write the third year -8- examination. The submission is accepted. If the third evaluation is not conducted as directed herein within the stipulated time and results are not announced, the petitioner shall be permitted to write the third year examination which is scheduled to commence from 23.03.2021.
It is ordered accordingly.
Sd/-
JUDGE JT/-