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Gauhati High Court · body

1990 DIGILAW 100 (GAU)

Ronica Nagpal Baruah v. State of Assam

1990-06-01

A.RAGHUVIR, M.SHARMA

body1990
A. Raghuvir, C.J.— Dr. (Mrs.) Ronica Nagpal Baruah passed her MBBS Examination with 7 % marks from Assam Medical College, Dibrugarh with Honours in Pathology. She completed twelve months internship, six months of House Surgeonship in the Department of Pathology at the All India Institute of Medical Sciences, New Delhi and seven months as House Physician in the Department of Medicine at the Gauhati Medical College. She is now working as a House Physician in Oncology. She applied for admission to a Post Graduate Course in the discipline of Pathology when applications were invited en January 7, 1990. She was interviewed on February 26, 1990. When she learnt that her eligibility to the admission was rejected by the Selection Board she approached this Court. On March 9, 1990 the Court directed the Selection Board to consider her case over again. On April 6, 1990 her name is not found in the list of selected candidates. She is again before this Court. As an interim measure a seat is kept vacant pending the instant writ petition. The petition was not admitted by the Medical Selection Board as she did not work for the required period either as a Demonstrator or as a Research Worker therefore she was not admitted. The petitioner seeks admission on the basis, of documents, one is called Rules for Admission to the Post Graduate Courses in the Medical Colleges of Assam, 1987 published on November 24, 1987 under No. HLB. 575/87 by the State Government. The second document is called the Medical Council of India Recommendations for Post Graduate Medical Education. For short the first document is called Rules. The second documents as Recommendations. Rules 5 (Hi) is divided in the first document in two parts in the Gazette publication. But in the advertisement between the first para and the second sub-para the word 'OR' is found to make the two sub paras disjunctive. Besides the first para in the Gazette and first para in the advertisement read differently. We extract what appeared in the advertisement which is accepted to hold the field for purposes of this case. But in the advertisement between the first para and the second sub-para the word 'OR' is found to make the two sub paras disjunctive. Besides the first para in the Gazette and first para in the advertisement read differently. We extract what appeared in the advertisement which is accepted to hold the field for purposes of this case. The two sub-paras of Rule 5 (iii) read as under : "(iii) A candidate seeking admission to a Clinical Courses should subsequently have undergone one year Housemanship in the subject in which admission is sought or at least 6 (six) months in the subject and another 6 (six) months in an allied subject. OR A candidate seeking admission to a Preclinical or Paraclinical Course should have worked for one year as a Demonstrator Tutor or Research Worker in the concerned Department of a Recognised Medical College." In the two sub-paras there occur expressions "clinical courses", "paraclinical courses", "paraclinical courses". These expressions are terms in medicine with attributes of special meaning not ordinarily known except to persons in the discipline of medicine therefore we examined on May 31, 1990 a witness as an expert to elucidate these terms. Dr. P. K. Goswami, a Ph. D, from Leeds University, U. K. specialised in Pathology deposed in the Court. To his evidence we will return later. The petitioner's case is that she has served as House Surgeon for six months and House Physician for seven months and if the two periods are tacked on she is entitled to admission under the first sub-para of Rule 5 (iii). Her contention is the two sub-paras which are to be read disjunctively. In elaboration of the plea it is argued that her work as a House Surgeon and in Pathology is to be construed as work in para-clinical subjects. This assertion of the petitioner is disputed. All inferences founded on the sub-paras is contested. Thus the writ petition is resisted. The State Government on behalf of the Selection Board contends that she is not eligible to admission -, she is not qualified ; she is not qualified either under the first sub para of Rule 5 (iii) and for that reason she is not eligible under any rule to admission in Pathology course for Post Graduate Studies. The State Government on behalf of the Selection Board contends that she is not eligible to admission -, she is not qualified ; she is not qualified either under the first sub para of Rule 5 (iii) and for that reason she is not eligible under any rule to admission in Pathology course for Post Graduate Studies. It is further argued that petitioner's service as a House Surgeon for six months and her service for seven months as Physician even when put together do not satisfy the first sub-para of sub-rule (iii) of Rule 5. These are the facets of the issue raised in the writ petition on behalf of the Selection Board. However simple the issue might appear this Court faced considerable difficulty to grasp the scope of the issue. This much is sufficient as prefatory note for the understanding of the issue. The learned counsel for the petitioner argued that in the document Recommendations specialities are found divided in four categories in that pointing out to B category he argued one subject is Social & Preventive Medicine and the other is Forensic medicine. These two are shown against Item 6 and Item 12 in Division 'B'. The two subjects are pointed out to show that the two form part of para-clinical course. From such an inference it is urged the petitioner is eligible to Pathology Course of Studies. We informed the contestant that in the event of a doubt as to the meaning of words used, the doubt will have to be read in favour of the students. This principle is evolved as the object of Rules document and Recommendation document is to facilitate admission of students not to facilitate rejection of students or deny education to the students. The learned Senior Government Advocate in this regard referred to the two documents Rules and Recommendations. He classified the documents and argued the latter should yield to the Rules if the interpretation of the former run counter to the tenor of Rules. This approach of classification including the argument founded on interpretation principles known to law. We cannot hold Rules in the instant case are statutory rules nor we can place recommendations to a subordinate position, or attribute the second document as directory because it is recommendatory therefore cannot gain tie status of a mandatory provision. First para and second para are mere divisions of convenience. We cannot hold Rules in the instant case are statutory rules nor we can place recommendations to a subordinate position, or attribute the second document as directory because it is recommendatory therefore cannot gain tie status of a mandatory provision. First para and second para are mere divisions of convenience. Rule i> a classification for purposes of discern ability. The Rules are not rules as understood in legal parlance like Act, Rules, bye-laws, notifications and orders in the discending order of narration. In the same strain Recommendation document cannot be treated as the word suggests, The authority which promulgated the Rule is the Director of Medical , Education of State of Assam. The recommendations are published with the authority of Medical Council, which is an All India Institution. The two authorities are of equal in status. Both have plenary powers in the respective spheres. One is not subordinate to the other. None of the two is dominant of the other. One is invested the power in the State and the other exercises authority over the country. The two are co-ordinate authorities. Therefore either of the documents cannot be interpreted to ride over the other. The witness examined in this case was unable to cite any Dictionary for obtaining the meaning of medical terms as shown in the following answer. Q. For the meaning and content of this expression 'para-clinical' apart from your opinion can you suggest any other Dictionary ? Ans. I am not in a position to suggest any Dictionary. In the absence of books or dictionaries the course left open for the Court is to decide on the basis of material on record and the evidence adduced in the case. We have the first aspect in the advertisement wherein six months in Housemanship and six months in allied subject are made co-equals to the work of Demonstrator Tutor or Research Worker for the specified period. The witness was suggested the following : Q. We are slightly misled in the use of the word 'OR' between the two paras-meaning that they are co-equal, do you have any explanation ? Ans. Ordinarily the use of the word 'OR' should mean co-equal but in the context of the sub-clause it is not. Thus the apparent meaning of the two sub-paras is disputed. The witness repudiates the apparent meaning is not the correct meaning. Ans. Ordinarily the use of the word 'OR' should mean co-equal but in the context of the sub-clause it is not. Thus the apparent meaning of the two sub-paras is disputed. The witness repudiates the apparent meaning is not the correct meaning. We have shown earlier that there is variation in the publication in the Gazette as respects the first para and the following para in the advertisement. This only indicates the authorities applied their mind, polished the language and put the word 'OR' to make the meaning clear. The second projection is made from the recommendation in which Post Graduate Courses are divided in four groups. We aie concerned here in Group B, which is the Second Group. The Social and Preventive Medicine and Forensic Medicine are shown Items 6 and 12. The witness was asked s Q. In the 'Recommendation of the Medical Council of India on the Post Graduate Medical Education' which has been accepted as a Regulation under section 33 of the Indian Medical Council Act, Social and Preventive Medicine and Forensic Medicine are grouped in the Group B which are clinical subjects ? Ans. Yes. But till now the above mentioned five subjects are included in para-clinical course in Assam. The question put on behalf of the petitioner shows that the two subjects - Social and Preventive Medicine and Forensic Medicine form part of clinical subjects. The witness repudiates the suggestion and asserted they are para-clinical. Now the answer would indicate that there is the difference in content of the word clinical and para-clinical. Another question and answer speak of that aspect : Q. Similarly Experimental Medicine and Health Administration including Hospital Administration are also included in clinical subjects ? Ans. I do not know (the witness having seen the Regulation he says I cannot say, that it is written is obvious). Again the witness departs as to the meaning of the clauses in the document. Thus after examination of the witness the issue had cut more an acute angle and eluded solution. It is argued on behalf of the petitioner that under the Rules, training as "Demonstrator Tutor" or "Research Worker" are equal to Housemanship and work in the allied subject. But the witness again repudiated. We have earlier referred to the plea of the learned Senior Government Advocate that one document is subordinate to another, which cannot be countenanced. It is argued on behalf of the petitioner that under the Rules, training as "Demonstrator Tutor" or "Research Worker" are equal to Housemanship and work in the allied subject. But the witness again repudiated. We have earlier referred to the plea of the learned Senior Government Advocate that one document is subordinate to another, which cannot be countenanced. The meaning of clinical and what is para-clinical there is no consensus between the parties. Thus after the examination of the witness doubts have further accentuated in the case. We have propounded earlier the principle that in the event of doubt on reading of Rules and Recommendations the Court is to read the doubt in favour of the student seeking admission. Applying the above principle we hold that the ends of justice will be met if we direct the authorities to receive the petitioner as a student in Pathology for Post Graduate Course. The writ petition is therefore allowed. No costs.