| SooperKanoon Citation | sooperkanoon.com/122562 |
| Subject | ;Constitution |
| Court | Patna High Court |
| Decided On | Mar-30-1993 |
| Case Number | C.W.J.C. No. 5444 of 1992 |
| Judge | S.B. Sinha and G.C. Bharuka, JJ. |
| Appellant | Gaurab Chauhan |
| Respondent | The State of Bihar and ors. |
| Prior history | S.B. Sinha, J. 1. In this application the petitioner has prayed for a direction upon the respondents to allow him to sit in the 1990 Supplementary Examination to be held from 4th July, 1992. 2. The fact of the matter lies in a very narrow compass. 3. The petitioner appeared at the All India Entrance Test conducted by the Central Board of Secondary Education in terms of the direction of the Supreme Court of India for filling 15% seats in M.B.B.S. Course in all the Medical Colleges situated with |
S.B. Sinha, J.
1. In this application the petitioner has prayed for a direction upon the respondents to allow him to sit in the 1990 Supplementary Examination to be held from 4th July, 1992.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner appeared at the All India Entrance Test conducted by the Central Board of Secondary Education in terms of the direction of the Supreme Court of India for filling 15% seats in M.B.B.S. Course in all the Medical Colleges situated within the territory of India.
4. The petitioner was at the first instance admitted in B. D. S. course in Government Dental College, Bombay. The petitioner was thereafter selected for MBBS course as some seats remained vacant and by reason of a memorandum dated 5th June, 1991 as contained in Annexure-1 to the writ application he was directed to take admission at the Medical College in Jawaharlal Nehru Medical College, Bhagalpur. He was admitted in the said institution on 18-7-1991. He allegedly attended the classes regularly. However, at the time of M.B.B.S. examination in the year 1990 course he was informed orally that he has not completed 16 months' course of studies so he would not be allowed to sit in the examination. The petitioner has contended as follows:
That the medical course which divided in three parts known as First MBBS, Second MBBS and third MBBS. The last examination of 1990 of Supplementary Batch is to be held from 4th July, 1992. A student cannot be allowed to attend or be permitted in Second MBBS Course unless and until he clears his first MBBS course. The next examination of first phase will be held in the month of May, 1993. The petitioner as per the requirement given by the principal will complete his course in the month of November, 1992 and thereafter he will sit idle for about 6 months for examination and thereafter he will be promoted in the second MBBS Course.
5. The petitioner has further submitted that no examination for the aforementioned sessions has been held at Patna Medical College and in that view of the matter, if it is found that he is not eligible to appear at the said examination he may be transferred to Medical College.
6. A counter affidavit has been filed on be alf of the respondens No. 6 wherein it has been stated as follows:
A registered student of the University may be admitted to the first MBBS Examination, if ha or she has subsequent to his or her admission, completed a regular course of study theoretical and practical in the subjects of the examination and having shown satisfactory progress in the subject and of having attended at least 75% of the theoritical and 75% of the practical class in each subject. The period of this phase of study shall be of eighteen months inclusive of conduction of examination and publication of the result.
7. According to the said respondent, the petitioner was admitted on 18-7-1991 and had been attending classes from 29-7-1991 in Anatomy and Physiology and from 19-7-1991 in Biochemistry and thus his period of theory papers of study would be completed on 18-1-1993 and thus the petitioner was not qualified for appearance in the MBBS Examination on 30th of November, 1992. It has been submitted that the annual examination of first MBBS Batch of the petitioner (Batch 1990-95) started on 4-3-19 92 and the students were sent up on 27-1-1992 during which period the petitioner has completed six months period of his study which is just one third of the required eighteen months.
8. It has further been contended that the candidates for special examination of Batch 1990-95 were sent upon 16-9-1992 on which date the petitioner has been completed only 10 months and 28 days and the results which may be published by 15th of August, 1992, the petitioner would have completed only 12 months and 18 days against the required period of 18 months.
9. It has further been contended that out of 116 theoritical lecturers the petitioner has attended only 83 lecturers and 73 out of total 140 practical in Anatomy, 77 out of 120 theoritical lecturers and 20 out of 47 practices in physiology and 32 out of 121 theoritical lectures and 09 out of total 36 practicals in Biochemistry.
10. A reply to the counter affidavit has been filed on behalf of the petitioner. In the said counter affidavit, it has inter alia been stated as follows:
It is relevant to state that several students of 1 90 batch have been admitted in the month of December, 1990 on 18th December, 10 students were admitted and they are allowed to be sent up on Annual examinations the names of some students are as follows : (1) Awadh Kishore (2 Rajendra Kumar Soren (3) Jitendra Ram (4) Patric Prabodh Minz and the other 6 students were admitted and all the allowed to sit in Annual examination for which they were sent up on 22-1-1992.
11. It has further been contended:
So far the completion of attendance is concerned the statement is totally false and misleading. The students, who are being sent up for Annual Examination as the petitioner came to know that they have been sent up only after completion of 65% lectures and anotoroy theoritical have already completed about 72% Lectures and in practical the petitioner has completed 89 out of 140, again the statement given by the deponent in counter that the petitioner has competeted only 67 out of 120 is totally false statement he has already completed 107 out of 120 lectures in practical 33 out of 47 this can be verified from the report sent by the Head of the Department of physiology who clearly states that the petitioner has completed the required number of lectures which he has sent to the principal vide letter No. 14 dated 15-7-1992. It is relevant to state that in Biochemistry the class was started in the month of October, 1991 itself and before the petitioner join the course, the course was completed within five months of study. The figure given in this subject is also false and this all has given only to save the skin and to harass the petitioner. So it is clear from the letter of the Head of the Department that on how low level the Respondent No. 6 can go.
12. A supplementary reply has been filed by the petitioner on 9-11-1992 wherein he has contended as follows:
That due to grace of Gurujee the petitioner tried his best to ascertain the actual position and then he came to know that the statement made in paragraph is applicable in case of the petitioner only and the statement made in paragraphs 3 and 7 are totally false. The attendance of some of the students who sat in the examination of 1990-95 batch in Anatomy are as follows:
________________________________________________________________________________
Name Theoritical Percentage Practical Percentage
________________________________________________________________________________
1 Rinchin 04 55.17 93 66.42
2. Alok Ranjan 78 64.24 87 62.04
3. Rajendra Saran 83 71.55 92 65.07
4. Nupur Khalkhalkar 70 60.37 93 66.42
5. Rinal Kr. 67 57.75 80 57.14
6. Awadh Kishore 75 64.65 88 62.84
7. Jitendra Kumar 76 65.51 90 64.28
8. Durgesh Vidyarathi 80 68.96 90 64.28
9. Prakash Singh 73 62.90 84 60.99
________________________________________________________________________________
So it appears that the students who have not completed 75 have been sent up and are allowed to sit in the examination but in case of the petitioner different treatment is given.
That the names of other four persons who are admitted on 18-12-1990 and allowed to send up on 22-1-1992 are as follows:
(1) Sanjay Cboudhary
(2) Reena Kumari
(3) Nupur Khalkholkar
(4) Kumari Durgesh Vidyarthi:
It is relevant to state in paragraph 6 by mistake 89 has been typed although the real attendance is 98.
13. Mr. Banwari Shartna, the learned Counsel appearing on behalf of the petitioner has raised a short question in support of this application.
The learned Counsel submitted that by an interim order of this Court dated 1-7-1992 the petitioner although was permitted to sit in the examination but it was directed that his result would not be published.
According to the learned Counsel he has not been able to attend the 2nd year class as his result have not been published.
14. The learned Counsel submitted that the statute of the Bhagalpur University as has been mentioned in the counter affidavit is directing in nature and not mandatory. .
The learned Counsel drew our attention to the statements made in the supplementary reply as noticed hereinbefore and submitted that in this view of the matter, evidently, the authorities of the said medical college permitted various students to appear at the examination who had also not completed the requisite number of attendance in theoritical and practical subjects.
The learned Counsel in this connection has relied upon a decision of the Supreme Court of India in State of M.P. v. Kumari Nivedita Jain and Ors. : [1982]1SCR759 .
15. The Bhagalpur University has formed the courses of studies for the MBBS Examination 1987 which reads as follows:
A registered student of the University may be admitted to the first MBBS examination if he or she has subsequent to his or her admission, completed a regular course of study theoretical and practical in the subject of the examination and having shown satisfactory progress in the subject and of having attended at least 75% of the theoretical and 75% of the practical classes in each subject. The period of this phase of study shall be of eighteen months inclusive or conduction of examination and publication of result.
16. The respondents have contended that the petitioner has completed only six months study inclusive of conduction of examination and publication of results.
17. It has been contended that the annual examination of the first MBBS batch of the petitioner started on 4-3-1992 and students from the same were sent up on 22-1-1992.
18. The learned Counsel appearing on behalf of the petitioner, however, has drawn our attention to Annexure-8 to the reply from where according to him the following facts will be merged:
No. 14 dated 15-7-1992
From : H.O.D. Physiology
JLN Medical College.
Bhagalpur.
To
The Principal
J. L. N. Medical College.
Bhagalpur.
Dated, Bhagalpur, the 15-7-1992
Sir.
Ref. your letter No. 942, dated 14-7-92.
Please find enclosed the necessary information regarding Shri Gaurav Chauhan Batch 1990-95 Roll No. 57.
(1) The classes in Physiology for the batch 1990-9J started on
16-11-92.
(2) The classes finished in my subject on 13-3-1992.
(3) The total No. of classes for the above Batch, Theory 120 Practical 47.
(4) The date Shri Gaurav Chauhan Roll 57 joined Physiology is
29-7-91.
(5) The date on which he ceased to attend classes in physiology is
22-5-1992.
(6) Total No. of classes attended by Chauhan Roll 57 Batch 1990-95 Theory-67. Practical-20 Theory.
(7) Total No. of classes held for the batch after Shri Chauhan joined this institution Theory-74, Practical-20.
(8) Sri Chauhan has completed about all the prescribed courses of study is physiology.
(9) Shri Chauhan has attended classes with junior batch regularly after he was asked to do so.
(10) Sri Chauhan attended Theory 40 and 13 Practical 1 with junior batch.
(11) Shri Chauhan has attended classes even after the current examination Theory 40, Practical 13.
(12) Remark. N. C.
Yours faithfully,
Sd/-
Dated 15-7-1992.
19. He also as noticed hereinbefore, drew our attention to the statements made in the supplementary affidavit for the purpose of showing chat the other students who has also not completed 75% of the theoritical and practical classes have also been permitted to appear at the examination.
20. In paragraph 7 of his letter addressed to the principal it has been stated that against the total number of classes held by the batch, the petitioner has attended 74 Theory and 20 Practical classes. Thus it is evident that said bead of the department did not state as to how many theoretical and practical classes have been held during the Sessions.
21. It also appears strange that although the classes in his subject were allegedly finished on 13-3-1992 (as it appears from paragraph 2 of the letter) but the petitioner is said to have ceased to attend classes in physiology on 22-2-1992. It has not been stated therein that the petitioner had been attending special classes. It has also not been stated that such classes have at all been held for the petitioner or for other students.
22. The Bhagalpur University has framed its courses of studies for the first MBBS examination in the light of the recommendations on undergraduate medical education made by the Medical Council of India.
The Medical Council, therefore, recommended that the period of the first phase of study should be 18 months whereas under the regulation framed by the University, the said period would be inclusive of conduction of examination and publication of result.
23. However, minimum number of lectures which are to be attended on the subjects have been specified.
24. It is not in dispute that the petitioner has not attended 75% of the theoretical and 75%of the practical classes in each subjects.
25. He has not also admittedly completed regular courses of studies both theoritical and practical in the subjects of the examination.
26. It is true that the phase of studies must be for a duration of 18 months inolusive of conduction of examination and publication of results.
27. Admittedly, in this case, the petitioner has also not completed the said period.
28. In this situation, it cannot be said that the petitioner has become eligible for appearance at the examination.
The decision of the Supreme Court in State of M.P. v. Navedita Jain relied upon by Mr. Sharma is misplaced. In that case the Supreme Court was considering Regulation II of the Medical Council of India relating to admission.
It was held:
We are of the opinion that the use of the words 'should be' in Regulation II is deliberate and is intended to indicate the intention of the council that it is only in the nature of recommendation. Regulation I which lays down the conditions or qualifications for admission into Medical course comes within the competence of the Council under Section 33 of the Act and is mandatory and the Council has used language to manifest the mandatory character clearly, whereas Regulation II which deals with the process or procedure for selection from amongst eligible candidates for admission is merely in the nature of a recommendation and directory in nature as laying down the process or procedure for selection for admission or candidates out of the candidates eligible or qualified for such admission under Regulation I. Regulation II recommending the process of selection is outside the authority of the council under Section 33 of the Act and the Council had adversely and deliberately used such language in Regulation II as makes the position clear and placed the matter beyond any doubt. There is another aspect of
Tiff problem 1137
in a student admitted to a ton-recognised medical college to claim such migration/transfer, this restriction for migration/transfer imposed by the recognised medical colleges on the basis of the recommendations adopted by the Medical Council of India, there is no foundation for the claim for such migration transfer made by the students of non recognised medical colleges.
30. In this view of the matter, the regulation of the University must be held to be mandatory in nature.
31. Mr. Sharma, however, submitted that this Court should take a lenient view, as the petitioner was earlier admitted in MBBS course at Government Inter College, Bombay and later on took admission in the said Medical College.
32. We, however, are-unable to subscribe to this view as 'sympathy' or sentiment cannot be permitted to come in our way to decide a case in accordance with law.
In Latham v. Johnson and Nephew reported in (1911-13) All ER (Rep. page 117 at page 123, Far well L, J. observed:
We must be careful not to allow our sympathy with the infant plain-tiff to affect our judgment. Sentiment is a dangerous Will (sic) the wisp to take as a guide in the search of legal principles.
33. In Arjun Khtamal Makhijani v. Jamnadas C. Tullani and Ors. : (1989)4SCC612 the Supreme Court also took the same view.
In this view of the matter, no relief can be granted to the petitioner.
34. Before parting with this case, however, we must take note of the unfortunate state of affairs prevailing in the University. The petitioner in his reply to the counter affidavit categorically stated that the University had been allowing other students to appear at the examination, although they had also not completed 75% of the attendance.
35. We fail to understand as to how to the University had been committing the said illegality.
In a specialised study for obtaining a degree of MBBS it is the bounden duty of the University to see that it does not produce sub-standard doctors who may upon having obtained a degree play with the lives of the patients.
36. The Medical College as also the University, thus not only have a legal, but also a moral responsibility to sec that degrees are conferred only to those students who have complied with the requirements of law by completing the courses of studies laid down by the Statute.
37. The Medical College and the University are not supposed to produce half baked and/or sub-standard doctors.
38. In this view of the matter, we are of the opinion that the allegations made by the petitioner to the effect that some other students have been allowed to sit at the examination, although they had not attended requisite number of practical and theoritical classes should be enquired into by the Medical Council of India and an appropriate action in this regard be taken.
39. The registry shall send a copy of this judgment to the Medical Council of India.
Let a copy of this judgment be also handed over to Mr. P. K. Sahi, who will also send the same to the Medical Council of India.
40. However, any illegality committed by the University cannot confer upon the petitioner a right to appear at the examination.
41. Article 14 of the Constitution of India ensures equality before law and equal protection of law, but a person cannot invoke the same in relation to illegality committed by the State to have a similar benefit, as the same would amou it to perpetuation of illegalities, which cannot be permitted by the Court.
42. For the reasons aforementioned, this application is dismissed, but without any order as to costs.
G.C. Bharuka, J.
43. I entirely agree with the view taken my learned Brother S. B. Sinha, J. But still, even at the cost of repetition, I would like to add few words to emphasis the trend of degeneration which seems to have entered in the field of higher professional education having a direct impact on the bare basic needs of the society.
44. It is a case of a student, who intends to be a doctor by acquiring MBBS degree, grant whereof ensures a meticulous training in medical courses and hundreds of persona would be inspiring confidence on such professionals entrusting the lives of their kith and kins in the hands of such professionals. The admitted facts show that the petitioner was allowed to take his admission in the MBBS course by noneelse than the Director General of Health Services, Central Government, in the midstream of MBBS courses, to which the College and the University authorities also acceded to. The result was that, whereas under the guide lines laid down by the Medical Council of India and the regulations framed by the University, first phase of the course was required to be completed in 18 mouths, the petitioner could attend the same only for six months and, therefore, could not even complete the minimum required percentage of attendance in the respective classes. But he still claims that he should be allowed to appear at the examination on the grounds based on sympathy, estoppel and equality. The claim of equality is based on certain instances noticed by my learned Brothers in paragraph No. 34 of the judgment which shows that the University has allowed certain students, who had not completed the minimum required percentage of attendance.
45. So far as the petitioner is concerned, his prayer cannot be allowed for the simple reason that no equitable consideration and for that take even any sympathy towards the student can prevail upon the Court of law to direct the authorities to act contrary to the law. Reference may be made to the decision in the case of A.P Christians Medical Educational Society v. Government of A.P. : [1986]2SCR749 wherein it has been categorically observed by the' Supreme Court that. 'We cannot by our faith direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself.' Moreover, any such indulgence may benefit a particular student or class of students in getting degree ensuring apparent professional expertise but such an indulgence has to ultimately play as havoc on the society where such ill-trained and ill-educated degree holders will be playing with the life of human beings. It was for this reason that the Supreme Court has depricated the practice of admission of students in the midstreim of the course in the case of State of U. P. v. Dr. Anupam Gupta : [1992]1SCR643 wherein it has been held in para 14, as follows;
to maintain excellence the courses have to be commenced on schedule and to be completed within the schedule, so that the students would have full opportunity to study full course to meet their excellence and corae at par excellence. Admission in the midstream would distrub the courses and also works an handicap to the candidates themselves to achieve excellence.
46. I hope and trust that the concerned authorities will seriously consider the observations made by us and act promptly with adherence to their regulatory provisions meant for maintaining the particular standard in the professional institutions. It is also expected that the Medical Council of India exists nee wearer of under the statutory provisions owes to it a duty to up-keep the standard of medical education in the country will keep itself alive to the telling facts as emerging in this case, and act in promptness, to undo the evils.