Bombay High Court
Rajkumarsingh S/O Dr. K.B. Singh vs The Amravati University, Through Its ... on 23 April, 1996
Equivalent citations: 1996(4)BOMCR628
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. Rule returnable forthwith. Mr. B.P. Jaiswal, Advocate waives service on behalf of the respondent No. 1 and Mr. J.T. Gilda, Advocate waives service on behalf of the respondent No. 2. By consent, heard finally at this stage.
2. Petitioner Rajkumarsingh, after passing out his XIIth standard examination conducted by the U.P. State Secondary Board in Summer 1991, applied for admission to the M.B.B.S. course in Dr. Panjabrao @ Bhausaheb Deshmukh Memorial Medical College, Amravati (respondent No. 2) in the Academic Session 1991-92. The petitioner was admitted in the respondent No. 2 College. The first M.B.B.S. examination of the petitioner was in due in winter 1992. The petitioner did not complete requisite attendance and he was detained and could not appear in the examinations which were held in winter 1992. For the first year examination in Summer 1993, the petitioner had submitted his examination form, but the respondent No. 2 College communicated to the petitioner that the form has been returned by respondent No. 1 Amravati University with a direction that admission of the petitioner for the M.B.B.S. course should be cancelled. The petitioner filed writ petition before this Court challenging the said communication dated 2-4-1993 in Writ Petition No. 105 of 1993. This Court admitted the said writ petition on 23-4-1993 and granted interim order that during the pendency of writ petition, the effect, operation and execution of the communication dated 2-4-1993 shall stand stayed and the petitioner was allowed to appear in the First Year M.B.B.S. examination. The petitioner did appear in the examination of First M.B.B.S. course held in summer 1993, but the result of the petitioner was not declared in view of the pendency of writ petition filed by petitioner challenging the communication dated 2-4-1993 whereby the admission of the petitioner in the M.B.B.S. course was ordered to be cancelled. While the writ petition was pending before this Court, the admission of petitioner was regularised by the Government of Maharashtra vide order dated 28-6-1994 and in this view of the matter the petitioner withdrew the writ petition by filing pursis on 11-7-1994. The petitioner's result of the first M.B.B.S. examination which he had taken in summer 1993, was declared on 25-10-1994 and he failed. The winter 1994 examination of first M.B.B.S. commenced on 26-10-1994, but the case of petitioner is that since his result of first M.B.B.S. examination of summer 93 was declared only on 25-10-1994, he could not have submitted examination form for winter 1994 examination and, therefore, he had not at all attempted for winter 1994, examination. The petitioner submitted examination form for the first M.B.B.S. course in summer 1995 and the petitioner passed out in Physiology, but he failed in Biochemistry and Anatomy. Then the petitioner submitted his examination form for the first M.B.B.S. in winter 1995 commencing from 15-12-1995, which was received back by petitioner from respondent No. 2 stating that the examination form of the petitioner for first M.B.B.S. examination was returned by the Amravati University as it was not in accordance with the provisions of Clause 16 of Ordinance No. 55. Petitioner made representation to the Vice-Chancellor of respondent No. 1 University on 14-12-1995, but could not get any relief. It is further stated by the petitioner in writ petition that the return of examination form by communication dated 13-12-1995 was in contravention of Clause 16 of Ordinance 55 of Amravati University and that the first M.B.B.S. examination in summer 1996 is commencing from 26-4-1996 and the respondent should be directed to accept examination form of the petitioner for the first M.B.B.S. examination of summer 1996 commencing from 26-4-1996. In the background of these facts; the petitioner prays that it be declared that he has not exhausted four consecutive attempts as provided in Clause 16 of Ordinance 55 and that the respondents be directed to accept examination form of the petitioner of first M.B.B.S. examinations of summer 1996 which are to be held from 26-4-1996 and declare his result and other ancillary reliefs.
3. The respondent No. 1 has filed written submission and the stand taken is that, since the petitioner has exhausted four attempts of the first M.B.B.S. examination, he cannot be permitted further attempts. It is stated in the written submissions by respondent No. 1 that in winter 1992, petitioner did not present himself at the examination on the ground of illness, in summer 1993, petitioner appeared as per the Court's direction but failed, in summer 1993, winter 1993 and summer 1994, petitioner did not appear at all for examination and in summer 1995 petitioner appeared and failed. Thus, the respondent No. 1 contends that there is no contravention of Clause 16 of Ordinance 55 by the Amravati University and the examination form of the petitioner for winter 1995 has been rightly returned vide communication dated 13-12-1995.
4. Ordinance 55 of the Amravati University deals with the examinations leading to the Degree of Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) and Clause 16 of the said Ordinance reads as under:---
"An examinee who does not pass or fails to present himself at the (Prathama Aayu: Shalya Vigyan Snatak) (First M.B.B.S.) examination in the four consecutive examinations inclusive of first, shall not be allowed to prosecute his studies for the (Aayu Shalya Vigyan Snatak) (First M.B.B.S. course) provided that a person may be permitted to take examination after the said examinations if he produces a certificate from the Dean/Principal of Medical College to the effect that he was under the treatment of Physician or Surgeon in the College Hospital and as such was not in a position to present himself for an examination"
5. The question before us is, whether the petitioner in the facts aforesaid, can be said to be an examinee who has not passed or failed to present himself at the first M.B.B.S. examination in four consecutive examinations inclusive of first, and if the answer is in affirmative, then the petitioner could be not allowed to prosecute his studies being precluded under Clause 16 of Ordinance 55. The expression "Examinee" is defined in Ordinance No. 6 which deals with the examinations in general and Clause (vi) of Ordinance 6 defines "examinee" to mean a person who presents himself for an examination to which he has been admitted. "Admission to an examination" has also been defined in Clause (ii) of Ordinance 6 which means, the issuance of an admission card to a candidate in token of his having complied with all the conditions laid down in the relevant Ordinance, by a competent officer of the University, provided that a candidate who does not fulfil all the conditions may, at the discretion of a competent officer of the University, be admitted provisionally and, in case all conditions are not fulfilled by him, his admission shall be liable to be cancelled. The term "Examinee" occurring in Clause 16 of Ordinance No. 55, in our view, has to be read in the light of the definition of examinee in Clause (vi) of Ordinance 6 and the definition of "admission to an examination" occurring in Clause (ii) of Ordinance 6. By giving that meaning to the word "examinee" occurring in Clause 16 of Ordinance 55, it is clear that only that applicant who submits application to the University in the form prescribed for admission to examination, becomes the examinee when an admission card has been issued to him in token of his having complied with all the conditions laid down in the relevant Ordinance. "Applicant" is also defined in Clause (iii) of Ordinance 6 which means, a person who has submitted an application to the University in the form prescribed for admission to an examination. Clause 16 of Ordinance 55 debars prosecution of studies for the first M.B.B.S. course to an examinee who does not pass or fails to present himself at the first examination in the four consecutive examinations inclusive of first. The word "examinee" occurring in Clause 16 has to be read in contradiction to the words "applicant" and "candidate" since all the three expressions viz. "examinee", "applicant" and "candidate" have been given different meaning and defined differently under Ordinance 6. The expression "examinee" under Clause 16 of Ordinance 55, therefore, has to be read as a person who presents himself for an examination to which he has been admitted and admission to examination means the issuance of admission card to a candidate in token of his having complied with all the conditions laid down in the relevant Ordinance. Can it be said, in view of the specific definition of "examinee" in Clause (vi) of Ordinance 6 that a person who is not issued an admission card for admission to an examination to be an examinee under Clause 16 of Ordinance 55. Our answer shall be simply in negative. Clause 16 of Ordinance 55 is only applicable to an examinee who has not passed or failed to present himself at the first M.B.B.S. examination in four consecutive examinations and not to other applicants or candidates who, for any reason, could not pass or failed to present themselves at the first examination in the four consecutive examinations inclusive of first.
6. In view of the aforesaid construction of Clause 16 of Ordinance 55, when we turn to the facts of the case, there is no dispute that the petitioner could not appear in the examination which were held in winter 1992, because he was detained for want of requisite attendance. Naturally, when the petitioner was detained for want of requisite attendance, he could not apply for admission in examination and no admission card was issued and, therefore, the examinations in winter 1992 could not be considered as an examination having been taken or the examination in which the petitioner did not pass or failed to present himself. The examination of winter 1992, therefore, cannot be considered while considering whether the petitioner has failed to present himself or did not pass in the four consecutive examinations inclusive of first. The said examination of winter 1992 cannot be considered against the petitioner to hold him as an examinee who has not passed or failed to present himself at the first M.B.B.S. examination in the four consecutive examinations, because during that time, the petitioner's admission in the first M.B.B.S. course stood cancelled vide communication dated 2-4-1993 and the writ petition filed by the petitioner was pending before this Court and this Court had stayed the effect, operation and execution of communication dated 2-4-1993 and as a result thereof, the petitioner did appear in the examination of summer 1993, but his result was not declared thereafter but was only declared on 25-10-1994 and the examination of winter 1994 was to begin from 26-10-1994. When the result was declared for the first time by the respondent No. 1 relating to examination taken by the petitioner in summer 1993 on 25-10-1994, not only two examinations which intervened between winter 1993 and summer 1994 could not be considered, but also examination of winter 1994 which was to commence only on the next date i.e. 26-10-1994 cannot be considered to hold that he did not pass or failed to present himself in those examinations, viz. winter 1993, Summer 1994 and winter 1994.
7. It is well settled principle of law that the law does not compel a man to do that which he cannot possibly do and the said principle is well expressed in legal maxim, "lex non cogit ad impossibillia". This legal maxim "lex non cogit ad impossibillia" is squarely attracted to the facts and circumstances in the present case. The unforeseen circumstances beyond the control of a student, if resulted in non-appearance in the examination, such circumstances cannot be construed to mean that he failed to present himself at the examination. In this view of the matter, the examination of winter 1993, summer 1994 and winter 1994 in which according to the respondent No. 1, the petitioner did not present himself at the examination, cannot be considered against the petitioner and it cannot be held that he did not pass or failed to present himself at the examination in the four consecutive examinations inclusive of the first.
8. Much emphasis was placed by the learned Counsel for respondent No. 1 on the expression, "four consecutive examinations inclusive of first" appearing in Clause 16 of Ordinance 55 and he submitted that if for any reason except the proviso of Clause 16 if the petitioner has not presented himself in examination, it has to be considered that he has failed to present himself at the examination so that only then the effective meaning could be given to the expression "four consecutive examinations", otherwise, the word "consecutive" is rendered redundent. We are not at all impressed by this argument. The expression "four consecutive examinations", if read in the light of the context, it would be clear that once an examinee i.e. a student applies for admission to examination and he is issued admission card and then either he fails or does not present himself at the first M.B.B.S. examination, consecutively four times, then he is precluded from prosecuting his studies for the first M.B.B.S. course. In a given case, for unforeseen circumstances, if a student is unable to apply for admission to the examination due to accident or due to any other such circumstances beyond his control and accordingly prevented from taking examination, Clause 16 of Ordinance 55 cannot be construed to mean that he is examinee and that he has failed to present himself at the examination. Clause 16 of Ordinance 55 cannot be construed in an oppressive and unreasonable manner and preventing student from appearing for the examination while considering whether he has not passed or failed to present himself at the four consecutive examinations or not.
9. In the result, the writ petition is partly allowed and it is declared that the petitioner has not exhausted four attempts provided by Clause 16 of Ordinance No. 55 of Amravati University. The respondents are directed to accept the examination form of the petitioner of 1st year M.B.B.S. examination commencing from 26th April, 1996. Rule is made absolute in the aforesaid terms. No costs.