Prem Shanker Asopa, J.
1. By this writ petition, the petitioner is seeking an appropriate writ, order or direction to consider his candidature as per the merit secured by him in the written RPSC examination and to declare him selected in case he comes within the merit in the Scheduled Tribe quota and then to recommend his name for appointment on the post of Nurse Grade-II.
2. Briefly stated, facts of the case are that an advertisement dt. 27.08.2007 was issued for filling 1152 posts of Nurse Grade-II. According to the advertisement, relaxation was to be given to the candidates who were appearing in the Final Year Examination of R.N.R.C. and the result was not declared till then but they had to produce the proof of possessing the requisite educational qualification before the declaration of the result of the written examination by the RPSC. The result of the supplementary examination was declared on 20.12.2007 and the petitioner was declared passed in the final RNRC examination although the main examination was held in June, 2007 and the result of Third Year R.N.R.C. was declared on 18.08.2007 i.e. earlier to the declaration of result of the written examination held by the RPSC i.e. 20.11.2007.
3. The main submission of counsel for the petitioner is that the result dt. 20.12.2007 of the supplementary examination will relate back to the result of the main examination, dt. 18.08.2007 and therefore, the petitioner is eligible as per terms of the advertisement according to which he was required to possess the qualification prior to 20.11.2007 i.e. the declaration of final result of written examination of RPSC.
4. Submission of counsel for the respondents is that the principle of relate back is not applicable in this case, therefore, the petitioner is not entitled to get any relief in the writ petition and the writ petition deserves to be dismissed.
5. Counsel for both the parties, in support of their respective submissions, have cited Council of Homoeopathic System of Medicine v. Suchintan and Ors. : AIR 1994 SC 1761. The counsel for the petitioner has placed reliance on para 17 of the aforesaid Supreme Court judgment, whereas counsel for the respondents has placed reliance on para 38 of the same.
6. I have gone through record of the writ petition and further considered rival submissions of counsel for the parties.
7. Before proceeding further, it would be relevant to examine the facts and the position of law settled by the Supreme Court in the Council of Homoeopathic System of Medicine v. Suchintan and Ors. (supra).
8. The question before the Supreme Court was as to whether the decision of the High Court in CWP No. 2307/88 Gurinder Pal Singh v. Punjabi University which in turn had followed Single Judge decision reported in Harinder Kaur Chandok (Minor) v. The Punjab School Education Board through Secretary : (1987)-92 Pun LR 638 : AIR 1988 Punj & Har 244 in case the minimum course of study as provided by Regulations 9 and 10 if held to be mandatory, then such a provision would be liable to be struck down is correct or not?
9. The Supreme Court has held that in view of the fixed period of course after the date of the declaration of the result in First D.H.M.S. and Second D.H.M.S. of 12 months and Third D.H.M.S. of 18 months for obtaining the degree of D.H.M.S. is mandatory and in case of the supplementary the candidate has to sit idle at home after passing the supplementary examination and that is his own making and to avoid such a situation, Regulation cannot be literally construed so as to cause violence to the language. The principle of 'relation back' in case of supplementary has not been applied keeping in view the language of Regulation 11(iv) relating to examination and eligibility to appear in the next examination with reference to Regulations No. 9 and 10. However, keeping in view the equity arising in some of the cases of the petitioners who appeared and passed not only supplementary examination but next examination also, the Supreme Court directed them to file representation to the Council of Homoeopathic System of Medicine for consideration. A complete reading of the aforesaid judgment clearly reveal that the theory of 'relation back' i.e. passing of the supplementary examination will relate back to the main examination, is applicable in any other kind of examination where the examination is final examination or a candidate is permitted to appear in the next examination on getting supplementary and pursuing his regular course of study of next class as per the language of the relevant statute without there being any further restriction to pass the next examination after completion of the particular period of study. Para 17 along with relevant portions of paras 32, 33, 35, 39 and 44 and para 38 of the aforesaid judgment in Council of Homoeopathic System of Medicine v. Suchintan and Ors. are as follows:
Para 17
As rightly held by the High Court, the word 'supplementary' denotes supplementing to or in continuation of the annual examination. Where, therefore, provisional admission is given for the Second Year D.H.M.S. course, the failure to complete the First D.H.M.S. examination should not be put against the respondents. If the Regulations are so literally interpreted, that will lead to absurdity. It will run counter to the object of providing a supplementary examination. This interpretation is holding the field for a long time. This was the reason why in Jaininder Mohan v. The Council of Homeopathic System of Medicine, Punjab I.L.R. (1992) P&H; 159, the Court took a view that passing in the supplementary examination will relate back to the date of annual examination. Otherwise, as rightly pointed out by the High Court, anomalous results would follow. Relevant portion of Paras 32, 33, 35, 39 and 44
Regulation 9 requires the satisfaction of the following conditions for appearing in the Second Year D.H.M.S. Examination: (i) The candidate had passed the First D.H.M.S. Examination at the end of one year previously. This means, there must be a gap of one year between the passing of First Year examination and appearing in the Second Year Examination; (ii) Subsequent to the passing of the examination, must have attended the courses of instruction for a period of at least one year. Therefore, a candidate who fails in the First Year examination in a subject or subjects, if he passes any supplementary examination cannot take the Second Year examination at the next academic year. This is because, one year duration had not elapsed between the passing of First Year examination in the supplementary examination and taking the Second Year examination. Moreover, Regulation 11 deals with results and readmission to an examination. In Clause (iv) of Regulation 11 as to what is to happen in the event of a candidate failing to pass in a subject or subjects, is spoken to. He may be admitted to the supplementary examination. Such a supplementary examination is to ordinarily take place after six weeks from the publication of result of First Examination. If he passes in that subject or subjects in the supplementary examination he is declared to have passed at the examination as a whole. This should obviously be so; because once he completes all the subjects, he has to necessarily be declared to have passed. Merely on this language, 'declared to have passed at the examination as a whole', the 'doctrine of relation back' cannot be invoked. The invocation of such a doctrine leads to strange results. When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination. It is that pass which is declared. If the 'doctrine of relation back' is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it is untrue. Nowhere Regulation 11 a system of carry forward can be found. On the contrary, it is detention every year. If a student were to sit idle at home after passing the supplementary examination that is his own making. To avoid such a situation, the Regulation cannot be construed causing violence to the language. However, where the student who had completed the whole course, attended all the courses of study for the three sessions of 12 months, 12 months and 18 months respectively and had passed all the examinations in all the subject, though not in the sequential order required by the regulations, they being required to go through the courses all over again and take the examinations after attending the courses afresh, might lead to hardship. Consequently, it was directed by Supreme Court that they should make an appropriate representation to the Council of Homoeopathic System of Medicines to consider their cases, who would take appropriate decision bearing in mind the equities in favour of students. Para 38
On this score to say that passing the supplementary examination would relate back to the annual examination will be totally incorrect. What counts is when the whole is made up. From that time of making up one year or one and half years must elapse for Second or Third D.H.M.S. examinations as the case may be. The stand of the appellants counsel as seen from letter dt. 12.12.1989 is as follows:
From:
Dr. P.L. Verma, Secretary,
Central Council of Homoeopathy
10, Community Centre,
Basant Lok,
Vasant Vihar,
New Delhi 110037
To:
The Chairman,
The Council, Homeopathic Systems
of Medicine, 3027-28, Sector 22-D,
Chandigarh.
Sub: Enforcement of D.H.M.S. (Diploma Course) Regulations, 1983 w.e.f. 1983-84 Academic Sessions students demand for grant of provisional promotion with re appearance in only one subject to the next higher class even beyond supplementary examination even prior to his passing the lower class examination as a whole.
With reference to your letter No. CHSM-PV-134/89/1253 dt. 29/30.11.1989 on the subject noted above, I am to say that the question of permitting to appear simultaneously for two examinations i.e. lower reappear subjects and complete subjects of the next higher class does not arise as no candidate has to be admitted to the Second D.H.M.S. examination unless he had passed the First D.H.M.S. examination at the end of one year previously and has regularly attended the course for one year. Similarly, no candidate shall be admitted to the Third D.H.M.S. examination unless he has passed the Second D.H.M.S. examination 11/2 years previously and has also attended the course for a period of 11/2 years subsequent to his passing of the Second D.H.M.S. examination.
COUNSEL OF HOMOEOPATHIC
SYSTEM OF MEDICINE 3027-28,
Sector 22-D, CHANDIGARH (UT)
No. CHCH-PV 9134/89/AT-198-200 Dated 05.02.1990
Copy forwarded to the Principal, Lord Mahaveera Homoeopathic Medical College, Ludhiana/Abohar/Chandigarh for information and necessary action. This may please be notified for information of all the students under intimation to the undersigned. The above guidelines/directions of the Central Council may please be strictly followed and observed in respect of matters indicated therein.
Sd/-
(R.K. Sharma)
Registrar,
No.CHSM/PV/134/89/AI-201-210 Dated: 05.02.1990.
This stand in our opinion is corre.
10. In my view, since the petitioner has appeared in supplementary examination of Final Year R.N.R.C., therefore, the principle of 'relation back' will apply in his case and the petitioner is eligible for consideration of his candidature for the post of Nurse Grade-II.
11. Accordingly, the writ petition is allowed and the petitioner is declared eligible for consideration of appointment on the post of Nurse Grade-II and in case his name is found in the merit list, then the same be considered for appointment to the post of Nurse Grade-II. The petitioner will be entitled for notional benefit of pay fixation and seniority. The entire exercise shall be completed within a period of three months.