W.P.Nos.13768, 13769 and 13770 of 2012
W.P.No.12986 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the letter No.PU/CE/E5/MBBS/2012, dated 09.04.2012 on the file of the second respondent and quash the same and consequently, to direct the respondents 1,2 and 3 to permit her to write the theory examinations in (i)the Community medicine, (ii)Ophthalmology, (iii)OTO-Rhino-Laryngology, (iv)the General Medicine, (v)General surgery, (vi)Obstetrics and Gynaecology and (vii)Pediatrics subjects and also attend the practical examinations in those subjects to be conducted by it by issuing applications, receiving the filled in applications and issuing hall tickets to her therefor and complete the M.B.B.S. Course.
W.P.No.12987 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the letter No.PU/CE/E5/MBBS/2012, dated 09.04.2012 on the file of the second respondent and quash the same and consequently, to direct the respondents 1,2 and 3 to permit him to write the theory examinations in (i)Obstetrics and Gynaecology and (ii)Pediatrics subjects i.e., 3 papers and also attend the practical examinations in those subjects to be conducted by it by issuing applications, receiving the filled in applications and issuing hall tickets to him therefor and complete the M.B.B.S. Course.
W.P.No.12988 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the letter No.PU/CE/E5/MBBS/2012, dated 09.04.2012 on the file of the second respondent and quash the same and consequently, to direct the respondents 1,2 and 3 to permit him to write the theory examinations in (i) General Medicine and (ii)Pediatrics subjects i.e. 3 papers and also attend the practical examinations in those subjects to be conducted by it by issuing applications, receiving the filled in applications and issuing hall tickets to him therefor and complete the M.B.B.S. Course.
W.P.No.13768 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the Administrative decision- Ratification No.2010.63.03, dt. Nil on the file of the third respondent and quash the same in respect of him and consequently to direct the respondents 1,2 and 3 to permit him to write the theory examinations in (i)Obstetrics and Gynaecology and (ii)Pediatrics subjects i.e., 3 papers and also attend the practical examinations in those subjects to be conducted by it and complete the M.B.B.S. Course.
W.P.No.13769 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the Administrative Decision -Ratification No.2010.63.03, dated Nil on the file of the third respondent and quash the same in respect of her and consequently to direct the respondents 1,2 and 3 to permit her to write the 3rd Academic Session subjects viz., the Community medicine, Ophthalmology and OTO-Rhino-Laryngology and the 4th Academic session subjects viz., the General Medicine, General surgery, Obstetrics and Gynaecology and Pediatrics subjects and also attend the practical examinations in those subjects to be conducted by it and complete the M.B.B.S. Degree Course.
W.P.No.13770 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the Administrative Decision Ratification No.2010.63.03, dated Nil on the file of the third respondent and quash the same in respect of him and consequently, to direct the respondents 1,2 and 3 to permit him to write the theory examinations in (i) General Medicine and (ii)Pediatrics subjects i.e. 3 papers and also attend the practical examinations in those subjects to be conducted by and complete the M.B.B.S. Degree Course.
COMMON ORDER
1. The petitioners in this batch of writ petitions were students of the 4th respondent medical colleges at Puducherry. In the first batch of writ petitions, i.e. W.P.Nos.12986 to 12988 of 2012, the petitioners were seeking to challenge the order passed by the second respondent Controller of Examinations, Pondicherry University, dated 09.04.2012 and after setting aside the same, seek for a direction to the respondents 1 to 3 to allow the petitioners to write certain examinations conducted by the University by issuing applications, receiving the filled up applications and granting hall tickets and to allow them to complete the MBBS course. When these writ petitions came up for admission on 4.5.2012, the Standing Counsel for the University Mrs.A.V.Bharathi took notice.
2. The second set of writ petitions, i.e., W.P.Nos.13768 to 13770 of 2012, were filed by the same petitioners challenging the ratification order passed by the Academic Council of the Pondicherry Univesrity, dated Nil and after setting aside the same, seek for a direction to write the theory examinations and also to attend the practical examinations so as to complete the MBBS course. When these writ petitions came up for hearing on 30.05.2012, notice of motion was ordered and they were directed to be heard along with the first set of writ petitions. Pending the writ petitions, no interim orders were granted though a prayer to that effect was made both for staying the impugned decision of the academic council as well as for a direction to write the examinations.
3. Heard the arguments of Mr.T.P.Manoharan, learned counsel appearing for petitioners, Mrs.A.V.Bharathi, learned Standing Counsel for Pondicherry University and Mr.Kandan Doraisamy, learned counsel for the 4th respondent private colleges.
4. The principal question that arises for consideration is whether the decision of the Pondicherry University in prescribing maximum duration by which a candidate will have to complete his MBBS course, failing with he will be denied a further chance of writing the examination is violative of any of the provisions of the Pondicherry University Act or whether it is repugnant or ultra vires to the provisions of the Indian Medical Council Act? One other question was whether the petitioners can avail the benefit of having the additional chances of writing the examinations extended for the benefit of the batch of students from 2002 to 2003?
5. By the impugned order, dated 09.04.2012, the fourth respondent College was informed that as per the Vice Chancellor's order dated 29.03.2012, the two additional sessions for writing the examination will be permitted only for students who have exhausted maximum period of nine years prescribed for completion of the course in December, 2011. It meant that students who belonged to 2002-2003 batch and who completed 9 years in December, 2011 will be eligible to write examination till December, 2012 on payment of penalty of Rs.500/- per paper, but students belonging to the batch prior to 2002-2003 will not be eligible for the concession shown by the University.
6. The impugned Academic Council ratification No.2010.63.03 to ratify the maximum duration for completion of the course reads as follows :
"TO RATIFY THE FIXING OF MAXIMUM DURATION FOR COMPLETION OF MEDICAL COURSES.
The Academic Council vide its Resolution No.2007:55:17 resolved to fix the maximum duration for various courses offered by the affiliated colleges of our University, except the 4-1/2 year and 5 year courses like M.B.B.S., B.V.Sc., B.D.S., which were left out inadvertently.
It was, therefore, decided with the approval of Vice-Chancellor to fix the maximum period for completion of the following medical courses as mentioned below:
The above decision was communicated to all the colleges concerned, with an instruction that May 2010 session will be last one for completion of the courses for the students who have already exhausted the maximum period.
For ratification of the Council please."
7. The agenda for the meeting reads as follows :
'TO CONSIDER THE GRANT OF EXTENSION TO STUDENTS WHO HAVE EXHAUSTED THE MAXIMUM PERIOD PRESCRIBED FOR COMPLETION OF COURSES.
Vide AC resolutions 2009.55.15 & 2009.62.23 dated 12.09.2007 & 01.09.2009, it was resolved to give 2 years time up to 2009 to all the candidates who exhausted the maximum period prescribed for completion of the courses. Accordingly, these candidates were permitted to write the examinations to qualify for degree up to November 2009.
Though ample chances were given for these candidates to qualify for degree, requests have been received from the candidates of various courses to give further extension beyond Nov 2009 to qualify for the degree. The statistics of the candidate having upto 3 arrears in various programme as desired is given in the Appendix.
For the consideration of the council on the request made by the candidates who have been given sufficient chances upto Nov 2009."
8. In the meeting held on 12.01.2011 of the Academic Council, the minutes recorded read as follows :
"2011.66.20 : To consider the grant of extension to students who have exhausted the maximum period prescribed for completion of courses.
Resolved to grant extension of one more year (i.e. two sessions i.e. May / June and November / December 2011) with the condition that such students would pay a penalty of Rs.500/- per paper and no more extension would be granted under any circumstance.
It was also resolved that all the colleges may be instructed to incorporate the condition to complete the course within the prescribed maximum period, in the prospectus of the respective colleges, so that the students are informed of this condition at the time of admission itself."
9. Therefore, a reading of the decision of the Academic Council clearly revealed that the Academic Council had resolved to give double the duration for completing the examination for the professional courses. But in respect of the MBBS in which petitioners claim to write examinations, while the course was only for 4-1/2 yeas, the maximum period for completion of the course was prescribed as nine yeas. Admittedly, the petitioners have not completed the course within the prescribed period. Therefore, they have chosen to challenge the resolution of the Academic Council on the following grounds :
(i)In respect of the power to prescribe regulations is relatable to Entry 66 List-I of Schedule VII. Only the Indian Medical Council has got power to prescribe regulations prescribing maximum duration by which the course will have to be completed by any student. In the absence of any such regulation being made available by the Indian Medical Council, the University has got no power to prescribe any such rules or regulations.
(ii)Even assuming that the University had some power to make rules, the same has not been done in accordance with the Pondicherry University Act and the statutes framed thereunder.
(iii)It is misnomer to call the petitioners belonged to the batch relating to 2001-2002, but on the contrary they belonged to the batch 2002-2003 as per the fees paid by them and as per the grant of approval by the Indian Medical Council. Hence they are entitled to avail the concession shown to write additional examination.
10. On behalf of the University, a counter affidavit was filed in all writ petitions. It was stated by the University that the Pondicherry University is the Central University created under the Act of Parliament known as Pondicherry University Act. The Academic Council of the University was created under the Act. The principal academic body was the University exercising general supervision over the academic policies of the University. The rules and regulations that governed the Academic Council are informed to the institutions which in turn informed the same to students for information and compliance. Every student admitted to the institution will have to complete their course and complete the examinations within the specified time frame. The University as an academic autonomy has right to fix higher norms and standards than those fixed by the Medical Council of India. As per the decision taken, the university fixed nine years for completion of the MBBS course in the affiliated colleges of the University, whereas the duration of the course is only 4-1/2 years. Hence it was decided to give double the time for students to complete the course. This decision was communicated to all medical colleges in turn to students by a letter dated 17.12.2009. This was also approved by the Academic Council vide resolution No.2010.63.03, dated 28.12.2010. Once again to facilitate students who completed the course, by a resolution, dated 12.01.2011 in resolution No.2011.66.20, it had granted two more additional chances for students in May, 2011 and December, 2011. It was also communicated to all colleges.
11. The 4th respondent college in which the petitioner in W.P.No.12986 of 2012 had studied was established in the academic year 2001-2002 after getting permission and approval from the Government of India. In the order it was stated that it was granted for the academic year 2001-2002. The University pursuant to the grant of permission also gave provisional affiliation for starting First year MBBS course for the year 2001-2002 vide university decision taken on 09.08.2002. The admission list submitted by the fourth respondent college contained the name of the petitioner. This was also confirmed by the affidavit filed by the 4th respondent that the college was started only in the year 2001-2002 and students who were admitted subsequently had completed the course and obtained necessary certificates from the University. The petitioner in W.P.No.12986 of 2012 wrote the first year MBBS examinations in November, 2002 after completing the attendance requirement for the course and had completed nine years during December, 2010. In fact, this writ petitioner had indulged in malpractice in the examinations held in May, 2006 and was awarded punishment. All papers written by her during May, 2006 were cancelled by the disciplinary committee of the University. Once again, the same petitioner had repeated malpractice during May, 2007, for which examinations taken by her in May, 2007 were cancelled. Further the disciplinary committee had debarred her from writing the examination in the next session in November, 2007. She took her examinations from may, 2008, but did not write any examination in May 2008 and November, 2008 for reasons best known to her and wasted two sessions. Even after completing nine years, she had not cleared 3rd year subjects.
12. The petitioner in W.P.No.12987 of 2012 wrote First year examination in November, 2002 after completing the attendance requirement for the 1st MBBS course and completed nine years in December, 2010. Therefore, he cannot be said to be belonging the batch for the year 2002-2003. The petitioner in W.P.No.12988 of 2012, who belonged to Arrupadai Veedu Medical College and Hospital, wrote the First year MBBS examinations in November, 2002 after completing the attendance requirement for the first MBBS course and completed nine years in December, 2010. It was further stated that since the petitioners belong to the batch of 2001-2002, the additional concession shown by the university will not apply to them as the resolution itself indicated that it does not apply to the batch before 2002-2003. The university in justifying the prescription of the condition, in paragraph 25 of the counter averred as follows :
"25....The Regulation of time frame to complete the subject when stipulated has to be complied with strictly. The petitioner repeated requests cannot be entertained. It has to be understood that any Rule, Regulation or Practices of the University are made after deliberation and taking into account various factors like, students welfare, career, due opportunity, due role, future prospects of the student, etc., Student's welfare plays a vital role when major decisions are made. But one thing that should not be neglected is that when time limit are fixed and framed with a purpose, that very purpose should not be destructed for the sake of personal reasons as stated by the petitioner. The petitioner had a long span in completing the course. When the University came to understand that students needed more chances in order to complete their course; the respondent University without any hesitation gave more opportunity and extended till December 2011, which was not utilized by the petitioner. For the sake of one individual, if the University allows the request, the same would amount to violation of Article 14 of the Constitution of India."
13. The counsel for the petitioners in support of his submission placed reliance upon a division bench judgment of this court in Tamil Nadu Dr.M.G.R.Medical University, rep by its Registrar, Chennai-32 and another Vs. P.Anand and others reported in 2012 (1) MLJ 865 to contend that in the absence of regulations framed by the Medical Council of India, the respondent University cannot prescribe its own condition. Though he fairly admitted that there is no regulation of the MCI prescribing any outer time limit, but nevertheless he submitted that the issue relating to prescription of duration of the course, i.e., 4-1/2 years vest with the MCI. Therefore, in the absence of any outer time limit to complete the course, the University cannot prescribe its own regulation. But, however, the decision cited by the counsel for the petitioner is not helpful to the case of the petitioners. In that judgment, this court was concerned with the field occupied by the MCI regulations. Therefore, in the teeth of such regulations, it was held that the University has got no power to make any regulation either inconsistent with the MCI regulations or in an area which was occupied by the MCI regulations. In paragraph 41 it was observed as follows :
"41....we have no hesitation to hold that the impugned guidelines issued by the appellant University is inconsistent with Regulation 12(4) of the MCI Regulation and the same cannot be stated to be prescribing higher standards...."
The said decision do not support the case of the petitioners.
14. In this context, it is necessary to refer to two decisions of the Supreme Court, one in National Board of Examinations Vs. G.Anand Ramamurthy and others reported in (2006) 5 SCC 515 and in Visveswaraiah Technological University and another Vs. Krishnendu Halder and others reported in (2011) 4 SCC 606. It must also be noted that similar regulations framed by the Tamil Nadu Dr.M.G.R. Medical University was upheld by this court in W.P.Nos.15956 and 15957 of 2012, dated 25.06.2012. A similar view was also taken by a division bench of this court presided by M.Y.Eqbal, C.J., vide judgment in W.P.Nos.4592 and 4756 of 2012, dated 26.6.2012 in Pushpa Mary Peter and another Vs. Tamil Nadu Dr.M.G.R.Medical University, rep by its Registrar, Guindy, Chennai and others. In paragraphs 9 and 12, it was observed as follows :
"9.We have considered the Resolution and the Scheme framed by the respondent-University, intended for the purpose of giving benefit to students who have not completed their degree courses from the University within a reasonable time. The said Scheme is based on the policy decision of the University to facilitate the candidates avail of the opportunity and appear in the examination, although they crossed double the duration of their respective course periods. We do not find any arbitrariness or unreasonableness either in the Regulations or in the Resolution and the Scheme framed by the respondent-University.
12.After giving our anxious consideration to the matter, we do not find any reason to hold that the Regulation or the Resolution, as also the Scheme, framed by the respondent-University is unconstitutional and against the provisions of any statute...."
Hence the contentions raised by the petitioners have to fail.
15. Thereafter, the counsel made efforts to get additional chances given by the University by contending that the actual courses were attended to by them only during 2002-2003 and they have also paid fees in April, 2002. To counter the same, both the University and the private college submitted a letter of permission given by the Government of India, wherein it was stated that permission was given to start the course from the academic year 2001-2002. The Centralized Admission Committee for the academic year 2001-2002 also had issued a notification on 4.4.2002. The Government of India by a further letter dated 20.1.2003 had conveyed the approval of the Central Government for renewal of permission for admission of 2nd batch of 100 MBBS students for the academic year 2002-2003 in the Mahatma Gandhi Medical College and Research Institute. Therefore, it was submitted that the petitioners were admitted for the batch of 2001-2002 and not 2002-2003 so as to avail two additional chances given by the University as per the impugned resolution.
16. The counsel for the University also referred to the list of candidates forwarded by the Mahatma Gandhi Medical College and Research Institute to the University showing that the petitioners were admitted to the batch of 2001-2002 and not 2002-2003 as contended by them. The name of two petitioners also finds a place in the said list. Therefore, it is too late for the petitioners to contend that their admission was for the batch 2002-2003. In fact the University is not concerned about the year in which they wrote the examination, because the petitioners wrote the First year MBBS examinations during November, 2002 after completing necessary attendance, for which the university cannot be found fault with. Hence the contention that the petitioners are entitled for two additional chances as per the decision taken by the academic counsel cannot be countenanced by this court.
17. Though Mr.T.P.Manoharan, learned counsel contended by referring Section 10A wherein it has been made clear that no person can establish a medical college without prior permission of the Central Government and that permission itself came only on 18.03.2002 at the tail end of the academic year 2001-2002 and that any admission could have been made only subsequent to the same. Therefore, the contention that they belonged to the batch of 2001-2002 is contrary to the statutory provisions. If the petitioners have gained admission for a particular batch, i.e., 2001-2002, they cannot contend that they should be adjusted against the subsequent batch of 2002-2003 for any reason whatsoever. It is not the case that their duration being curtailed. On the other hand, they have completed 4-1/2 years course and thereafter, they were entitled to complete the examinations within nine years or even after nine years, they had two more chances. Hence the decision relied on by the petitioners in Medical Council of India Vs. Madhu Singh and others reported in (2002) 7 SCC 258 will have no relevance to the case on hand.
18. The contention that the Academic council has no power to prescribe regulations is concerned, as rightly contended by the counsel for the University, the academic council was constituted under Section 22 of the Pondicherry University Act as the principal academic body of the university and they will have general supervision over the academic policies of the university. Statute No.14 gives wide power to the academic council to prescribe academic criteria for students who are writing examinations conducted by the university. Therefore, when the University fixes an outer duration, it cannot be found fault with and it cannot be said to be any way contrary to any regulation of Medical Council of India. There is no prohibition for the university laying down higher standards than by the MCI and the area also is not the occupied field by any MCI regulations.
19. In this context, it is necessary to refer to a decision of the Supreme Court in Visveswaraiah Technological University and another v. Krishnendu Halder and others reported in (2011) 4 SCC 606 wherein it was observed that determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or adversely affect the standards, if any, fixed by the central body under a Central enactment and in paragraph 17, it was held as follows:
"17.No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are unfilled vacancies in colleges. In fact the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher education in the State or in the colleges affiliated to the University. Determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or adversely affect the standards, if any, fixed by the central body under a Central enactment. The order of the Division Bench is therefore unsustainable."
20. Lastly the counsel for the petitioners submitted that assuming the University has power to make any rules or regulations, it cannot go retrospectively to affect students who have already entered the course. For this purpose, the learned counsel placed reliance upon a decision of the Supreme Court in Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh reported in (2007) 5 SCC 77, wherein it was stated that retrospective operation given by the Executive Council of the University was held to be ultravires of the Act. It was stated that the Act do not give any power on the council to make regulations with retrospective effect.
21. In the present case, the rule made by the Academic Council cannot be said to be retrospective. On the other hand, it can only retroactive and given the type of rule framed, it can always be retroactive only. Otherwise, it will become meaningless creating two set of students, one governed by the regulations and the other not governed by the regulations merely because they had entered the course before regulations are made.
22. As noted already, the petitioners course is only for 4-2/1 years. Hence one should not expect that the University will eternally conduct examinations for the students to complete their course whenever they sit for. Therefore, the rationale behind making the impugned rule is clearly well within the power of the university and it is consistent with the academic standards laid by the Academic council.
23.In this context, it is necessary to refer a decision of the Supreme Court in National Board of Examinations v. G.Anand Ramamurthy and others reported in (2006) 5 SCC 515, wherein, the Supreme Court took up the issue of exercising the power of the High court in the academic matters and in paragraph 7 held as follows:
"In our opinion, the High Court was not justified in directing the petitioner to hold examinations against its policy in complete disregard to the mandate of this Court for not interfering in the academic matters particularly when the interference in the facts of the instant matter lead to perversity and promotion of illegality. The High Court was also not justified in exercising its power under Article 226 of the Constitution of India to merge a past practice with decision of the petitioner impugned before it to give relief to the respondents herein. Likewise, the High Court was not correct in applying the doctrine of legitimate expectation even when the respondents herein cannot be said to be aggrieved by the decision of the petitioner herein. The High Court was also not justified in granting a relief not sought for by the respondents in the writ petition. The prayer of the respondents in the writ petition was to seek a direction to the petitioner herein to hold the examinations as per the schedule mentioned in the Bulletin of 2003."
24. In the light of the above, all writ petitions will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petitions stand closed.