Bombay High Court
Dr. Dnyandas S/O. Kisan Chopade vs Nagpur University And Another on 4 April, 1995
Equivalent citations: AIR1995BOM405, 1996(1)BOMCR632, (1995)97BOMLR674, 1995(2)MHLJ260
ORDER H. W. Dhabe, J.
1. The petitioner was registered as a post-graduate student for M.S. Anatomy at Government Medical College, Nagpur in February, 1992. The examination in M.S. Anatomy was to be held in November, 1994, to be precise from 7-11-1994 to 19-11-1994. As per the course of studies prescribed for post-graduation in the faculty of medicine by Nagpur University, the petitioner had to submit a Thesis before he could appear for written, oral and practical examination, Ordinance No. 57 of the Nagpur University prescribes the courses leading to the post-graduate degree examination in the faculty of Medicine.
2. The petitioner had submitted his Thesis and the same was sent for scrutiny and approval to the examiners appointed by the Nagpur University. According to the petitioner, he did not learn anything about approval or rejection of his thesis, although, according to him, he had made oral enquiries with the Dean before the University examination commenced from 7-11-1994. It is his case that after the said examination was over, the Dean, Government Medical College, Nagpur forwarded to him on 24-11-1994 received by him on the same date the letter of the University dated 1-11-1994, which was according to the Dean, was actually received by him on 21-11-1994. According to the said letter of the University dated 1-11-1994, his thesis was not unanimously approved by the examiners and therefore, he was not eligible to appear at the aforesaid written, oral and practical examination. On enquiry, the petitioner learnt that one of the external examiners by name Dr. Asha Singh had rejected his thesis.
3. The petitioner has filed as Annexure-II to the petition the report of the said external examiner addressed to the Deputy Registrar, Nagpur University, which shows the reasons upon which the said Thesis is rejected. Although, the thesis of the petitioner is rejected by the said external examiner, she has expressed the opinion that the thesis can be revised and can be resubmitted after due corrections, if the University rules so permit.
4. Since the corrections according to the petitioner were minor he immediately corrected the same and by his application dated 20-11-1994 sought permission of the University to resubmit the thesis which permission was rejected by the University by its letter dated 13-12-1994. Feeling aggrieved, the petitioner has preferred the instant Writ Petition challenging the letter of the Dean dated 1-11-1994 informing him about the rejection of his thesis and the letter of the University dated 13-12-1994, rejecting his application for permission to resubmit his thesis.
5. The learned Counsel for the petitioner has contended before us that the petitioner should have been informed by the University about the rejection of his thesis by one of the examiners within reasonable time, at any rate before the written examination started on 7-11-1994. Further, he has urged that the thesis is not wholly rejected by the said examiner and, therefore, he should have been allowed by the University to resubmit his thesis. As regards the first submission, although it is true that the petitioner should have been informed about the approval or rejection of his thesis by the University well in time before his written examination started on 7-11-1994, the said examination is now over and, therefore, nothing can be done so far as the said examination is concerned. As regards the second question, whether the petitioner can be allowed to resubmit his thesis on the ground that it is not wholly rejected, the said question has to be considered in the light of the relevant provisions of the University Ordinances in this regard. It is material to see that the letter of the external examiner Dr. Asha Singh incorporated Annexure-II to the Writ Petition itself shows that the petitioner can revise and resubmit the thesis if the rules of the University so permit.
6. To appreciate the above submission made on behalf of the petitioner about re-submission of his thesis, it is necessary to refer to some of the relevant rules contained in Ordinance No. 57 of the University regarding the post-graduate degree examination in the faculty of Medicine. Clause 8 of the said Ordinance No. 57 provides that the Examination shall consist of --
(a) a thesis embodying the results of the research work of the candidate;
(b) written examination comprising of four papers, each of three hours' duration, in subjects specified in the Appendix to this Ordinance, except M.Ch. (Plastic Surgery), where there wilt be three papers;
c) viva voce and practical examination.
7. Clause 10 of the said Ordinance 57 requires that a candidate should submit his thesis through his Supervisor and Head of the College on or before 1st of December and the 1st of July, as the case may be, preceding the written examination. Clause II of the said Ordinance No. 57, which is material for our purpose, provides that a candidate whose thesis is not unanimously approved by the examiners shall not be admitted to the Written, Oral and Practical Examination. However, the said clause/rule is not absolute. An exception carved out by the proviso in the said Clause 11 shows that a candidate can by special permission of the Vice-Chancellor, be permitted to take the examination in remaining parts in case the report on the, thesis submitted by him is not received before the commencement of the written examination. In such a case, according to the said proviso, the result of his examination will not be declared until the report of his thesis is received.
8. Clause 12 of the said Ordinance No. 57 then provides for declaration of results of the candidates whose thesis is unanimously approved by the examiners and whose performance at the written examination, viva voce and practical examination is declared to be of sufficient proficiency. Clause 13 of the said Ordinance which is heavily relied upon on behalf of the University to show that the petitioner cannot now appear for the M.S. (Anatomy) Examination provides that a candidate whose thesis is unanimously approved but who is not successful in the remaining part of the examination is eligible for readmission to that part at any subsequent examination on payment of full fresh fee.
9. It is true that in the instant case report to the petitioner about the thesis was not communicated till the said examination was over. However, according to the University, the said report was sent to the Dean, Medical College, Nagpur by letter dated 1-11-1994 i.e. before the examination. The Dean has however, received the said letter on 21-1-1994. Be that it may, the said letter dated 1-11-1994 shows that the thesis of the petitioner was not unanimously approved by his examiners, and therefore he was not eligible to appear at the written, oral and practical examination in M.S. (Anatomy) held in Winter 1994 i.e. from 7-11-94 to 19-11-94. It may be seen that when the petitioner did not learn anything about the approval of his thesis from the University in reasonable time before the commencement of his examination from 7-11-1994, he should have been vigilant and should have sought permission of the Vice-Chancellor to appear at the aforesaid, written, oral and practical examination commencing from 7-11-94 as provided in the proviso to Clause 11 of the Ordinance No. 57, but that examination is now over and nothing can be done about the said examination now.
10. The learned Counsel for the petitioner has, however, urged before us that the petitioner should now be allowed to resubmit his thesis since the mistakes pointed out by the external examiner are minor mistakes because of which he has also expressed that he should be allowed to resubmit his thesis and pending consideration of the question of approval of his thesis he should be allowed to appear for the written examination commencing from 10th April, 1995. In this regard he has relied upon the judgment of this Court in Writ Petition No. 1034/1994, Dr. Miss Vasundhara v. Nagpur University, decided on 14-7-1994 and has submitted that the course followed in the said case viz. that the result of his examination should not be declared unless his thesis is unanimously approved as per rules should be followed in the instant case. Reliance is also placed in this regard upon the proviso to Clause 11 of Ordinance No. 57.
11. In our view, the facts in the judgment cited supra are distinguishable. The petitioner had moved this Court before the written examination for which she was due to appear, was held because she had not received the information about approval or rejection of her thesis, in time. By an interim order passed in that case we had allowed the petitioner to appear for the said examination and thereafter the necessary orders about resubmission of thesis etc. were passed in that case. That is not the case here since the regular examination to which the petitioner should have appeared in Winter 1994 is already over. As regards the reliance placed upon the proviso to Clause 11 of Ordinance No. 57, the said proviso, as hereinbefore pointed out, also relates to the regular examination to be taken by the candidate after completion of the course of study. According to it, if the report about approval of thesis of candidate is not received before the commencement of the written examination, the candidate can appear for the said examination as well as for oral and practical examination with the special permission of the Vice-Chancellor but then his result is not declared till the report of his thesis is received. Thus the submission on behalf of the petitioner based upon the judgment cited supra and the proviso to Clause 11 of Ordinance No. 57 cannot be accepted and the petitioner cannot be allowed to appear for the written examination commencing on 10-4-1995 since his thesis is not unanimousiy approved by his examiners. However, that is not the end of the matter.
12. The petitioner, in support of his submission, has also relied upon Dr. Mahore Committee's report incorporated as Annex.-3 to the petition to show that approval/rejection of the thesis has to be communicated to the candidate five weeks before the commencement of the theory examination and if the report of any one of the external examiners is not received before the commencement of the theory examination, the aggregate of the marks allotted by one of the external examiners and one internal examiner can be taken into consideration. The return filed on behalf of the respondent-University shows that the report of Dr. Mahore's Committee although recommended by the Academic Council and the Faculty of Medicine is not as yet accepted by the Executive Council and therefore, it cannot have an overriding effect or substitute or modify the provisions of Ordinance No. 57. There is force in the above submission made on behalf of the respondent-University and therefore the submission made on behalf of the petitioner based upon the report of Dr. Mahore's Committee cannot be accepted.
13. The next question to be really considered is, whether the petitioner can appear for the subsequent examination of the University by following the procedure under Ordinance 57 viz. by submission of his thesis and by appearing for the written, oral and practical examination after his thesis is unanimously approved by his examiners. The learned Counsel for the University has urged before us that although there is a provision in the Ordinance No. 57 for the candidate whose thesis is unanimously approved to appear for the written examination, oral and practical examination, if he has failed in the same, there is no provision in the University Ordinance for submission of thesis again for its approval if it is rejected with the result that the petitioner cannot take now the subsequent examination M.S. Anatomy. In our view, the above stand taken by the Nagpur University cannot be accepted because it is contrary to its own rules, apart from the fact that it is too harsh and unjust to the student concerned as its effect is that he is permanently barred from appearing for the post-graduate degree examination and from thus obtaining the said degree if his thesis is not unanimously approved.
14. It may be seen that as regards the question of appearance for or readmission in the subsequent examination of the Nagpur University, it is Ordinance No. 8 of the said University which regulates the said question. Clause 1 of the said Ordinance provides that a candidate who has failed to pass or to present himself for an examination, may be admitted to one or more subsequent examinations, subject to the requirements as given in the proviso to the said clause. We are not concerned with the requirements of the proviso which the University can insist upon. What we are concerned with is that under the said Clause 1 of Ordinance No. 8, a candidate whose thesis is not unanimously accepted has to be treated as a candidate who has failed in his post-graduate examination and is therefore, entitled to appear for the said examination as an ex-student or a repeater. In this regard, it may be seen that passing in thesis by its unanimous approval by the examiners as required by Clause 12 of Ordinance No. 57 is as much a part of the examination for post-
graduate degree course in the faculty of medicine as the theory papers and oral and practical examination therein as is clear from Clause 8 of the said Ordinance No. 57 which shows what the examination for post-graduate degree course in the faculty shall consist of.
15. Since the petitioner has thus failed to pass his M.S. (Anatomy) Examination to which he was admitted after completion of his course of studies, he is covered by Clause 1 of the said Ordinance No. 8 and can therefore be admitted to one or more subsequent examinations. Clause 3 of the said Ordinance No. 8 then shows that except as laid down otherwise the Ordinances relating to first admission to examinations shall apply as far as may be to the applicants under the said Ordinance No. 8. Perusal of the definition of the expression "Ex-student" given in sub-clause (xi) of Clause 1 of Ordinance No. 6 relating to the Examinations in General shows that "Ex-Student" is a person, who having once been admitted to an examination of the University is again required to take the same examination by reason of his failure or absence thereat and includes a student who may have joined a college again in the same class. The petitioner is thus an Ex-Student also within the meaning of the said definition clause. The petitioner can therefore, as Ex-Student i.e. as failure or as a repeater candidate appear for the whole of his Post-Graduate Degree Examination and can thus submit his thesis again for approval to the University as per the rules. Further, if the thesis is unanimously approved by his examiners, as per Clause 12 of the Ordinance No. 57, he can appear for the written examination, viva voce and practical examination.
16. As regards the reliance placed on Clause 13 of Ordinance No. 57 on behalf of the respondent-University to show that when it allows only such candidates whose thesis is approved, but who are not successful in theory, viva voce or practical examination to appear for the subsequent written, viva voce or practical examination, it would not mean that he cannot appear for the subsequent examinations when his thesis has been rejected. It may be seen that the said Clause 13 carves out an exception to the normal rule that when the candidate has to be re-admitted to the subsequent examination, he has to appear for the whole of the examination, in which case, such a candidate will have to submit also his thesis again. Clause 13 of the Ordinance No. 57, therefore, gives a concession that he need not submit his thesis again, if it is approved and can appear only in the written examination or viva voce or practical examination in which he has failed. The case where the thesis is rejected is thus not covered by Clause 13 of the Ordinance No. 57 but is covered by the normal rule of the University regarding failures or ex-student incorporated in its Ordinance No. 8 referred to above. The submission made on behalf of the University that when the thesis of the candidate is rejected, he cannot be admitted to the subsequent examinations cannot thus be accepted.
17. The effect of acceptance of such submission is disastrous because the student concerned is then permanently barred from appearing at the Post-Graduate Degree Examination in the subject in which he is registered and thus barred from obtaining the Degree in the said subject. There is no specific provision brought to our notice that once the thesis is rejected the candidate loses his registration in the said subject and is unable to take up the said course unless he gets registration or admission again in the said subject. In the absence of such a provision the above submission on behalf of the University cannot be accepted. It is pertinent to see that if. the candidate does not lose his registration, if his thesis is rejected and thus his registration continues, he cannot get registration in the same subject again in view of Clause 16 of Ordinance No. 57 with the result that he can never appear for the Post-Graduate Degree Examination in the subject and obtain a degree therein. Such a result cannot be said to be envisaged by the relevant provision of Ordinance No. 57, which cannot be interpreted in the manner which would create complications as shown above and would have the effect of permanently barring the student from taking Post-Graduate Degree in the subject in which he is registered. We cannot, therefore, accept the construction sought to be placed on behalf of the University upon the relevant provisions of Ordinance No. 57.
18. Thus, in view of Clause 1 of Ordinance No. 8 of the University, the petitioner can appear at the next examination after submission of his thesis and thereafter, if the said thesis is approved, appear at the written and oral examinations of the University. Since the regular examination of Winter 1994 to which the petitioner should have appeared after completion of his course of study and to which he did not appear is over, the question whether he can resubmit the thesis after rejection has lost its significance because for appearing at the next or subsequent examination as provided in Clause 1 of Ordinance No. 8, he has to appear for the whole of the examination for M.S. (Anatomy) which, as provided in Clause 8 of Ordinance No. 57 includes submission of his thesis. It is thus open to him to submit the thesis again, which thesis can then be sent to the examiners as per rules of the University for their approval. After it is unanimously approved he can then appear for the subsequent written and oral examinations as provided in the Ordinance No. 57.
19. Before parting with this petition, we may observe that although the report of Dr. Mahore's Committee is not as yet accepted by the Executive Council of the respondent-University, certain recommendations in regard to the procedure to be adopted regarding the approval/ rejection of the thesis submitted by the candidate needs some consideration. Although Ordinance No. 57 does not lay down any time-schedule for sending the thesis submitted by the candidate to the Examiners appointed by the University and for receipt of their report, the University can still lay down the said time schedule which can remove any injustice to the students who have to appear for written, viva voce and practical examination thereafter. The University on its own must indicate to the Dean the period within which the thesis submitted by the candidate must be forwarded to the University. It should thereafter lay down the period in which the said thesis should be sent to the examiners. The forwarding letter to the examiners must indicate the period within which he must send his report to the University. All this process should be completed within 5 weeks before the written examination commences as indicated in Dr. Mahore's Committee. The candidate concerned must be immediately informed within one week thereafter whether the thesis is rejected by any of the examiners. The said letter of rejection of the thesis must include the report of the examiners concerned. If the Dean or the University decides not to forward the thesis of any candidate to the examiner for any reason, he must communicate to the candidate within the period within which he has to send his thesis to the examiner as stated above that his thesis is not being forwarded to the examiner giving the reason why it is not being done.
20. Since we have already held that as a failure or an ex-student or a repeater, the petitioner can submit his thesis, in the next examination, it is not necessary for us to consider the question in the instant writ petition whether a candidate in whose case the examiner while rejecting his thesis points out that he can resumbit his thesis after making due corrections as pointed out by him can resubmit his thesis before his written examination starts so as to appear at the said examination, if his thesis after its resubmission is approved by the examiner concerned or by obtaining special permission of the Vice-Chancellor to appear for the written, oral or viva voce examination, if the report of his examiner is not received before the commencement of the said examination as provided in the proviso to Clause 11 of the Ordinance No. 57.
21. In the result, the instant Writ Petition is partly allowed. The letter of the University dated 13-12-1994 is quashed and set aside and it is directed that as per Clause 1 of Ordinance No. 8 of the Nagpur University, the petitioner should be allowed to submit his thesis which should be sent for examination to the examiners as per the rules of the University and if the said thesis is approved, he shall be allowed to appear for the next written, viva vocc and practical examination of the respondent-University. His result then should be declared according to law.
The respondent-University is directed to evolve and follow the appropriate procedure regarding the processing of the thesis for its approval by the Examiner as indicated in para 20 of this judgment.
Rule in the above terms. No costs.
22. Petition partly allowed.