Delhi High Court
Guru Gobind Singh Indraprastha vs Alok Bansal & Ors. on 9 November, 2017
Bench: S. Ravindra Bhat, Sanjeev Sachdeva
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.11.2017
+ LPA 706/2017
GURU GOBIND SINGH INDRAPRASTHA ..... Appellant
versus
ALOK BANSAL & ORS ..... Respondents
Advocates who appeared in this case:
For the Appellant : Mr. Mukul Talwar, Sr. Advocate with Ms. Anita Sahani, Advocate.
For the Respondent : Mr. Akhil Sibal, Sr. Advocate with Mr. Shivendra Singh, Mr. Javedur Rahman, Ms. Jahnavi Mitra and Ms. Aditi Phatahk, Advocates for respondent Nos.1 to 6.
Mr. T. Sighdev with Ms. Priak Thansangi and Mr. Tarun Verma, Advocates for respondent No.7 Mr. Vikram Jetly, CGSC for respondent No.8.
CORAM:-
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SANJEEV SACHDEVA S. RAVINDRA BHAT, J. (OPEN COURT) CAVEAT No.953/2017 Since learned counsel for the respondent No.1/caveator enters appearance, the caveat stands discharged. CM No.39908/2017 (exemption) Exemption is allowed subject to all just exceptions.LPA 706/2017 Page 1 of 8
LPA 706/2017 & CM No.39907/2017 (for interim orders)
1. Guru Gobind Singh Indraprastha University (hereinafter referred to as „the University‟) has filed the appeal aggrieved by the judgment of a learned Single Judge partly allowing the respondents/writ petitions (hereinafter referred to as "candidates").
2. The candidates had appeared in the final MD examination in June 2017. The grievance was that the practical examination conducted by the University was violative of the Regulation 14 read with Appendix II of the Post Graduate Medical Education Regulations, 2000. In short, the regulation required that out of 4 examiners, at least 50% i.e. 2 had to be external and these external examiners were to be from recognized universities outside the State.
3. In this instance, instead of 2 external examiners, one of the two external examiners was from outside the University but within the State, contrary to the Regulation. The candidates‟ specific grievance was that the result was incommensurate with that declared by the University for the Theory Papers. Apparently, 50% of the candidates from the concerned institution i.e. Safdarjung Hospital were declared to have been unsuccessful/failed in the practical examination.
According to the scheme of examination, the maximum marks that can be given out of 800 marks are evenly distributed between the theory papers and practical papers; the maximum marks required in both the papers are 50% each. According to the material made available to the learned Single Judge, only 50% of the candidates LPA 706/2017 Page 2 of 8 could qualify in the practical examination, on the other hand, in the theory papers most candidates appeared to have fared better; 18 of 20 of them were declared passed.
4. Mr. Mukul Talwar, learned senior counsel for the University urges that the interpretation adopted by the learned Single Judge, i.e, that the Regulation 14, places a binding obligation to ensure that, at all times, at least 50% of the external examiners, for any given test/exam are to be from outside the State, is contrary to the text of the provisions. He highlighted that the concerned Regulation is not mandatory and emphasised upon the expression "ordinarily".
5. It was argued secondly that the learned Single Judge fell into error, declaring that the examination in part, so far as the practical papers are concerned, had to be done all over again in terms of the Regulations even while directing that for the purpose of a theory paper an answer sheet "already submitted by the aforesaid six petitioner" be re-evaluated by the same set of examiners. It was submitted that this upholding of the part of the examination even while declaring the other part void, is not supported by the Regulation
14.
6. Mr. Akhil Sibal, the learned senior counsel for the respondent/candidates, on the other hand, urges that this Court resist from interfering with the impugned order and submitted that the course adopted by it was based upon an interpretation given by several High Courts in their judgments. Learned senior counsel for LPA 706/2017 Page 3 of 8 the respondents/candidates points out that the judgments were, in fact, relied upon by the learned Single Judge.
7. In the present case, the Regulation - as amended with effect from 20.10.2008, reads as follow:-
"14. EXAMINATIONS The examinations shall be organised on the basis of grading or making system to evaluate and certify candidates 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, 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 terms shall mean six months training period.
The above clause 14 is substituted in terms of Gazette Notification published on 20.10.2008 and the same is as under:-
"The examinations shall be organised on the basis of „Grading‟ or „Marking system‟ to evaluate and to certify candidate's level of knowledge, skill and competence at the end of the training. Obtaining a minimum of 50% marks in 'Theory as well as „Practical‟ separately shall be mandatory for passing examination as a whole. The examination for M.D./ MS, D.M., M.Ch shall be held at the end of 3rd academic year and for Diploma at the end of 2nd academic year. An academic term shall mean six month's training period.
(1) EXAMINERS LPA 706/2017 Page 4 of 8
(a) All the Post Graduate Examiners shall be recognised Post Graduate Teachers holding recognised Post Graduate qualifications in the subject concerned.
(b) For all Post Graduate Examinations, the minimum number of Examiners shall be four, out of which at least two (50%) shall be External Examiners, who shall be invited from other recognized universities from outside the State. Two sets of internal examiners may be appointed one for M.D./M.S. and one for diploma.
(c) Under exceptional circumstances, examinations may be held with (three) examiners provided two of them are external and Medical Council of India is intimated the Jurisdiction of such action prior to publication of result for approval. Under no circumstances, result shall be published in such cases without the approval of Medical Council of India.
(d) In the event of there being more than one centre in one city, the external examiners at all the centres in that city shall be the same. Where there is more than one centre of examination, the University shall appoint a Supervisor to coordinate the examination on its behalf.
The above clause 14.1(d) is deleted in terms of Gazette Notification published on 20.10.2008.
(e) The examining authorities may follow the guidelines regarding appointment of examiners given in Appendix-I."
8. The relevant part of the Regulation, which stood substituted with amendment to Appendix II, with effect from 20.10.2008, i.e. the LPA 706/2017 Page 5 of 8 amended Clause 3 of the Post Graduate Examination Guidelines on appointment of Post Graduate Examiners (Appendix II of the Regulation) reads as follows:-
"There shall be at least four examiners in each subject at an examination out of which at least 50% (Fifty percent) shall be external examiners. The external examiner who fulfils the condition laid down in clause -1 above shall ordinarily be invited from another recognised university, from outside the State, provided that in exceptional circumstances examination may be held with 3 (three) examiners if two of them are external and Medical Council of India is initiated which the justification of such examination and the result shall be published in such a case with the approval of Medical council of India."
9. Facially, there appears to be some merit in the submission of the University that the conscious inclusion of the term "ordinarily" relieves the rigger of an invariable condition that at least two examiners are to be from outside the State. What was urged by the University was that, having regard to the terms of the Regulations, once the Court concludes that the examination is not in conformity with the Regulation - which it did, at the present instance, by holding that, in the absence of 50% of the examiners from outside the State vitiate a part of the process i.e. the practical test, it could not have segregated the results merely at the asking of the candidates.
10. During the course of hearing, what emerged was that the paper setting for the theory part of the examination, might well have involved other examiners. There was no clarity as to the identity of LPA 706/2017 Page 6 of 8 the paper setter - On the one hand, it could be the internal examiners, equally, there could also have been external examiners.
11. In these circumstances, the learned Single Judge, even while concluding that the breach of the Rules, to the extent that they mandate an unalterable condition with respect to the evaluation by two external examiners outside the State, yet maintained that part of it need not have been disturbed having regard to overall result.
12. The Court is of the opinion that the question as to whether consent was given on behalf of the University or the MCI need not further be gone into.
13. In the peculiar circumstances of the case, specially, having regard to the nature of the practical result (as many as 50% of the candidates, having declared unsuccessful in that part of the examination), this Court is not inclined to interfere. Whilst, logically, it is unsatisfactory to declare a part of the examination as unlawful upholding the other part of the examination, yet, the Court cannot be oblivious to the entire circumstances of the case.
14. The Single Judge had directed as follows:-
"31. Accordingly, this Court in its discretion directs respondent no. 1 along with respondent no.3 to conduct a fresh examination in the practical/clinical and oral course for the aforenoted six petitioners. For the theory paper already answered by the petitioners, re-evaluation (by the same set of examiners who will conduct the practical/clinical and oral examination) will be carried LPA 706/2017 Page 7 of 8 out. This will answer the objection of the respondent that the examination has to be conducted as a whole i.e. theory and the practical together (in conformity with the clarification in terms of the minutes of the meeting dated 30.12.2016 of the MCI). The said examination of the petitioners be conducted within an outer limit of three months from today. Necessary examiners (both external and internal) shall be appointed as per the statutory regulations and this exercise shall be completed by the respondent university in consultation and in conformity with respondent no.3. The result will also be announced within that period."
15. In the peculiar circumstances of the case, even while holding that the expression "ordinarily" - in the given set of circumstances, absolved the University, for the examination conducted, from the necessity of involving external examiners for any part of the examination process, nevertheless, in the facts of the present case, this Court is of the opinion, that the directions given do not call for interference.
16. The appeal is therefore dismissed in the above terms.
17. In these circumstances, this question of law is kept open.
S. RAVINDRA BHAT (JUDGE) SANJEEV SACHDEVA (JUDGE) November 09, 2017/st LPA 706/2017 Page 8 of 8