Andhra HC (Pre-Telangana)
Anitha Mary John And Others vs Govt. Of Andhra Pradesh And Others on 9 August, 1999
Equivalent citations: 1999(5)ALD712, 1999(5)ALT245
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT
1. Rule Nisi.
2. All the writ petitions revolve around the same questions of law and fact. Some writ petitions were filed by the Managements of colleges and some petitions were filed by the students themselves. The writ petitions except WP Nos.16102 of 1999 and 16105 of 1999 were filed by the petitioners stating therein that the students of various Nursing Schools have submitted applications for appearing in the examinations to the respondent Board, but to their utter surprise they were not issued Hall-tickets and they were not being permitted to sit in the examinations. The examinations had to be conducted from 26th July, 1999. This Court directed the Counsel appearing for the respondents to obtain instructions when the petitions came up on 16-7-1999. The Counsel could not obtain instructions and an order was passed that the petitioners should be allowed to sit in the examination provisionally subject to outcome of the writ petitions. Thereafter, counter was filed in which it was stated that, in terms of Regulations all those students who were not eligible to appear in the examinations of 2nd and 3rd year Nursing and Midwifery course were not issued Hall-tickets and their forms were rejected on the strength of the Regulations. Thereafter, two petitions being WP No.16102 of 1999 and WP No.16105 of 1999 came to be filed by the petitioners challenging the Regulations.
Counters have been filed and the parties were heard at length, with their consent the writ petitions are disposed of at this stage.
3. The facts are not at all in dispute, it is only the interpretation of the Regulations which is the bone of contention in the present writ petitions. The Nursing Schools are established in pursuance of the Indian Nursing Council Act, 1947 and the Regulations prescribing the Syllabi, mode of admission and mode of examination etc., have been prepared on the strength of powers given to the competent authority in terms of Indian Nursing Council Act, 1947. This is also not at dispute that the regulations known as "Syllabi and Regulation for the courses in General Nursing Midwifery" are applicable to the candidates. All the students who were not allowed to sit in the examination for 2nd and 3rd year have not passed the previous examination in all subjects in first attempt. All of them have failed in the previous examination in two or more than two papers. It is the case of the respondents that unless a candidate passes examination completely he cannot be promoted to the next higher class and after promotion he has to undergo training for 11 months in the next higher class to be eligible to appear in the examination. The following facts are also not disputed, that the examination for the previous class was held in July/August, 1998, the results were declared in November, 1998, the supplementary examination for candidates who had failed was conducted in January, 1999 and the results of supplementary examination were declared in April, 1999. This has not been the pattern for the year 1998 only but this has been the pattern for all the years. In the year 1997 also the examinations were conducted in July/ August, 1997 and results were declared on 29th November, 1997.
4. Now, keeping these factors in view, one has to go to the Regulations to ascertain whether the petitioners are eligible or not eligible to sit in the examinations. The petitioners admittedly have failed in the annual examination and they passed it only in the supplementary examination results of which were declared in April, 1999. So, if it is taken that they passed the examination in April, 1999, then, 11 months would be completed somewhere in March, 2000 and by July/August, 1999 they would have only completed 3 or 4 months in next higher class. The relevant regulation under the heading "Eligibility for admission to examinations" is reproduced :
"B.. Eligibility for admission to examination : --
A candidate shall be eligible for the admission to the final State Council/Board examination if the Principal of the school certifies that :
(a) She/he has completed not less than 11 months of the course.
(b) She/he has attended 75% of the formal instructions given on each subject and 75% of the clinical/field/ subject experience in each area field/ subject separately during the academic year. However, the total clinical/field experience prescribed must be completed before the final Council/Board examinations and before the issue of Diploma.
(The Diploma shall not be awarded to the student till she/he has completed the clinical/field requirements).
(c) The overall performance of the student and her/his conduct during the entire academic year has been entirely satisfactory.
(d) The student has passed in the internal assessment in each subject i.e., both in the theory and practicals by securing 50% marks separately in each subject and practical.
(e) The record of practical experience is upto date.
(The principal sends to the Council/Board the internal assessment for each subject, i.e., both theory and practicals, before the start of the examination along with the examination forms).
C. Supplementary Examination:
The Council shall conduct supplementary examination within six months of the annual examination.
(a) If a student fails in one theory paper/ practical, she/he be promoted to the next year of the study. She/he will sit for a supplementary examination held subsequently in the failed subject/ practical. If she/he fails to clear supplementary examination she shall be allowed to sit again along with her next year annual examination.
(b) If a student fails in two or more papers she/he will not be promoted to the next year. She/he shall sit for supplementary examination in the failed subjects/practicals only. But shall be eligible for the next year's" examination after one academic year from the date of passing the last examination.
(c) No candidate of category (a) shall be allowed to proceed third year (higher class), unless she/he passed in the subjects of the previous year (backlog) to the second year."
The learned Counsel appearing for respondents submits that two conditions are very important for determining the eligibility of the candidates. One is that the Prinicpal of the School has to certify that the candidate has completed not less than 11 months of the course and in the present case what the Principal has certified obviously is not correct as the petitioners completed their earlier course only in April, 1999 and there was no question of their completing 11 months of course in the month of July/August, 1999. He further draws the attention of the Court to condition (b) of Supplementary examination which has been reproduced herein above and submits that, if a candidate fails in two or more papers, he/she cannot be promoted to the next year. He submits that since all the petitioners had failed in two or more papers in the results declared in November, 1998 they could have not been promoted to the next higher class. They could only be promoted to the next year after April, 1999 and after such promotion they had to pursue the course for 11 months to become eligible for appearing in the next examination. However, the learned Counsel for the petitioners submits that, after the examination of the previous year in July/ August, 1998 there was a gap of 6 months between the examination and declaration of the results and it has been the pattern throughout and therefore the colleges started the classes of next higher class immediately after the examination of previous class is over and therefore the petitioners were pursuing the course of next higher class after they had taken the examination. These candidates were not in knowledge of the fact that they would be failing in two or more papers. Similarly those candidates who passed all the papers were also not in knowledge of the fact that they would be passing all the papers. If the management is forced to wait for the results, then for 6 months the colleges would come to a stand still and 6 months time would be wasted. Therefore they should not be penalised for the delay which is caused in preparation and declaration of results. Since the candidates were promoted to the next higher class when the result was not declared and they pursued the course alongwith those candidates who eventually passed in first attempt and completed the course for 11 months, they should not be deprived of sitting in the next year's examination.
5. Similar matters came up before the Punjab and Haryana High Court in H Kaur Chandok v. P.S. Education (P&H), 1950-91 (3) AIEC 658, in which the Court found that the students cannot be penalised or forced to sit idle for a long time. But, this judgment came for scrutiny by the Supreme Court in Council of Homeopathic System of Medecine v. Suchintan, 1993 Supp. (3) SCC 99. All the arguments made by the learned Counsel for the petitioners were taken care of by the judgment of Supreme Court and were rejected. Similar regulations were being interpreted by the Supreme Court and the Supreme Court held that, unless an examination is completely passed the student cannot be declared to have passed the examination and after passing the examination completely if there is a requirement for pursuing the next year's classes for a particular period of time, the period will have to be calculated from the date the candidates passed the earlier examination in full. Therefore, if one goes by the judgment of the Supreme Court, the petitioners are clearly ineligible for appearing in the next higher examination which was conducted in July/August, because they passed the earlier examination in full only in April, and there is a requirement under regulations that they have to study the next year's course for a period of 11 months and in between April and July/August it is definitely not a period of 11 months. But, the difficulty in this case will be that, if the regulations are interpreted in this way then no candidate is eligible to appear for the final examination in July/August. Even those candidates who passed the previous examination conducted in July/August, 1998 in the first attempt are also not eligible to appear in the next higher examination in July/August, 1999 because the appearance in examination is not relevant date for calculating the period of 11 months study in the next higher class. The passing of examination is dependent on the declaration of the results and the results of all the candidates were declared on 30th November, 1998, for promoting a candidate to higher class a condition precedent is passing of previous examination and passing of examination is dependant on the declaration of the results and not appearance in the examination. From the regulations it appears that the framers of the Regulations were not laying down a system of carry on, but the facts reveal that the respondents and the institutions in which these students are pursuing their studies have converted it into a system of carry on. All the students who passed their examination in first attempt were, in accordance with regulations, eligible to be promoted to the next higher class only after 30th November, 1998 and if that is so, then, even those candidates would become eligible for appearing in next higher class only after 30th November, 1999. Since the respondents and the institutions in which the candidates are pursuing their studies have rightly or wrongly adhered to a system of carry on, therefore, I have no doubt in my mind that the petitioners have also pursued the course of the class for which they sought permission to appear in the examination, for a period of 11 months, because if any contrary conclusion is arrived at, that would deprive even the students who have been permitted by the Board to appear in the examination and who have passed the earlier examination in first attempt from appearing in the next higher class in July/August. Even those candidates would have to wait upto 1st of December, 1999 to appear in the next higher class. That would create unnecessary hardship even for those candidates who passed in the first attempt and whose results were not declared for a period of 6 months after conclusion of the examination. In any case, this Court feels that a mess has been created by the respondents themselves by not clearly spelling out the policy and by not declaring the results within the reasonable period of time. No candidate and no institution can be expected to wait and waste six months time every year in waiting for the results.
6. For these reasons, I allow these Writ petitions except WP Nos. 16102 of 1999 and 16105 of 1999. The students who have already appeared in the examinations by virtue of interim orders of this Court should be treated to be eligible candidates for appearing the examination and their results should be declared along with others.
7. Before parting with the case, I would like the respondents to consider the observations made in this petition and take steps to frame a definite policy and if necessary modify the Regulations keeping in view that any student should not be forced to waste six months of each year while pursuing their course. If the interpretations are made in the way they are sought to be interpreted by the respondents and the practice of declaring the results after six months of examinations continues, then a three years course will have to be completed only in six years.
8. The Writ Petition Nos.16102 of 1999 and 16105 of 1999 challenging the Regulations itself were not seriously pressed. Even otherwise, in view of the judgment of Supreme Court Council of Homeopathic System of Medicine v. Suchintan (supra), I do not find that the Regulations are in any way arbitrary. In view of the relief granted to the petitioners in other writ petitions, no orders are necessary to be passed in these two petitions which are as such closed.