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2003 DIGILAW 2083 (MAD)

Hassan Barati v. The Dean & Another

2003-12-18

K.P.SIVASUBRAMANIAM

body2003
Judgment :- The petitioner is an Iranian National who having qualified himself for admission into M.B.B.S. Course in India, sought for admission in the first respondent College. He was admitted for the academic year 1995-96. He had paid Rs.3,00,000/- and as on date he had paid a total sum of Rs.6,00,000/- towards the entire course fees. When he undertook the I year examinations in April, 1997, he was given to understand that the College was not recognised by the Medical Council of India (M.C.I.) and hence he had written a letter to the M.C.I. for clarification. It is alleged by the petitioner that on the College coming to know of the said letter, started to create problems to him which continue till now. He was permitted to enter the College on the examination day only 1-1/2 hours after the examination had commenced and he was unable to pass the examination. It is further stated that the M.C.I. by their letter dated 25.11.1997, had informed him that the College was not recognised. Hence, he had filed Writ Petition No.1671 of 1998 seeking for a transfer to a recognised College. However, the said writ petition was dismissed holding that the College was a recognised institution. The petitioner sought for permission from the Chairman of the first respondent College to attend the classes. But the same was rejected by order dated 17.9.1998. From January, 1998 onwards namely, from the date of filing of the writ petition, he was not permitted to attend classes. He also met with an accident during June, 1998 and was hospitalised and discharged only in December, 1998. When he went back to the College after discharge he was informed that unless he paid the remaining fees for the entire course, he will not be permitted to attend the class and write the examination. With great difficulty, he arranged for the money and paid Rs.3,00,000/-. However, he was not permitted to write the arrears of the I year and second Semester examinations which were conducted in April, 1999 on the ground that he did not have sufficient attendance. He was also not permitted to sit for the examination held in November, 1999 and on enquiry he was informed that attendance was not given to him though he was attending classes from February, 1999. He was again asked to pay a further sum of Rs.3,00,000/-. He was also not permitted to sit for the examination held in November, 1999 and on enquiry he was informed that attendance was not given to him though he was attending classes from February, 1999. He was again asked to pay a further sum of Rs.3,00,000/-. Though the total fee for non-resident Indian and foreign student, the fee was Rs.5,40,000/- for the entire course and for academic year the fee is Rs.1,20,000/-, he had already paid Rs.6,00,000/-. Therefore, he was constrained to file W.P.No.1421 of 2000 to direct the respondent to admit the petitioner in the College. On 31.3.2000, an interim direction was issued permitting the petitioner to appear for the examination commencing on 3.4.2000, but keeping the result in abeyance until further orders. The petitioner undertook the first year examination as well as the second semester examination in April, 2000. 2. The petitioner further states that when the writ petition came up for final disposal on 13.10.2000, the College had taken the stand that the balance of Rs.3,00,000/- had not been paid by the petitioner. But this Court found that the said contention was a false plea. The College was directed to send the proposals within two weeks. Thereafter, the petitioner was admitted to the College and the results were published declaring the petitioner as having passed all the papers. 3. It is further stated that on 5.7.2001, the College issued a letter to the Heads of Department not to allow the petitioner to attend the classes and he was also informed that he will not be permitted to write the 3rd and 4th Semester Examinations in December, 2001. Therefore, he was again constrained to file Writ Petitions for the issue of a writ of mandamus in W.P.Nos.15815 to 15818 of 2001 viz., (i) directing the respondents to permit the petitioner to write 3rd and 4th Semester examinations; (ii) directing the College to forthwith permit the petitioner to rejoin the fourth semester course; (iii) directing the college to furnish to the petitioner the original mark sheets for Parts I and II; and (iv) directing the College to forward the application of the petitioner for "No Objection Certificate" to the Government of India, for the purpose of obtaining extension of visa. 4. By order dated 26.11.2001, in W.P.M.P.No.23437 of 2001, the petitioner was permitted to continue his course during the pendency of the writ petition. 4. By order dated 26.11.2001, in W.P.M.P.No.23437 of 2001, the petitioner was permitted to continue his course during the pendency of the writ petition. In that writ petition, it was contended on behalf of the respondents that for extension of Visa, the petitioner has to submit his original mark statement of XII Grade which he had passed in Iran and also the original of Student Visa, without which No Objection Certificate cannot be granted. The petitioner contends that the Court directed that the petitioner can be directed to hand over the original mark statement along with the original certificate to the Counsel for the first respondent who on receipt of those certificates, considering the earlier controversy between the parties and that on such handing over of the certificates the first respondent was directed to forward the application to the Government of India. 5. According to the petitioner, in spite of the said order he was not permitted to write 3rd and 4th Semester examinations during December, 2001 on the ground of lack of attendance. The petitioner states that the said ground was not tenable. Finally, the petitioner was permitted to write the third Semester examination in April, 2002 and he had passed all the subjects. However, by order dated 10.5.2002, the petitioner was suspended for non-production of the modified student visa. After great difficulty, the petitioner was able to get the visa and the suspension was revoked by order dated 23.8.2002 and he was permitted to attend classes. The University also by its its letter dated 28.11.2002, permitted the petitioner to continue the course. It is further stated that the College informed the University that the petitioner had the necessary and requisite attendance and may be permitted to appear for the examination to be conducted on 5.12.2002 and 9.12.2002. However, the University refused to permit the petitioner to attend the examinations on the ground of lack of attendance by six days. Though the next examination was to be held in April, 2003, the petitioner as he belongs to the old Semester Regulations and being the only student belonging to the old pattern, it became necessary to permit the students belonging to the old pattern, also to attend the examination for the 4th Semester to be held in June, 2003. Though the next examination was to be held in April, 2003, the petitioner as he belongs to the old Semester Regulations and being the only student belonging to the old pattern, it became necessary to permit the students belonging to the old pattern, also to attend the examination for the 4th Semester to be held in June, 2003. Though the students belonging to old pattern, normally undertook in April, however, to his shock and surprise, the examination application was not forwarded to the petitioner for the examination to be conducted during June, 2003. As the petitioner did not receive the application he made a representation on 9.4.2003. Therefore, the petitioner had approached the Court to permit him to write the examination in June, 2003. The petitioner contends that he has been attending the class for 4th Semester from January, 2003 and every semester he has been representing the same and he was not permitted to write the 4th Semester till date. Therefore, there cannot be any complaint regarding lack of attendance. It is further stated that the College was again asking for a further sum of Rs.3,00,000/- for granting permission to write the examination and hence urgent orders are necessary. 6. In the counter filed by the University, it is stated that in the examinations conducted in April, 1997, the petitioner had failed in all the subjects as well as in the examinations conducted in November, 1997. Thereafter, he had not applied for subsequent examinations. However, he had filed W.P.No.1421 of 2000 praying to direct the University to permit him to appear for the I year examination. In accordance with the interim orders, the petitioner was allowed to sit for Part I and Part II of I year examination held on 3.4.2000. But the College had informed that the petitioner had not attended the classes and internal assessment examinations. In W.P.M.P.No.24106 of 2000 in W./P.No.1421 of 2000, the University was directed to pass orders on the proposal for readmission of the petitioner within two weeks. The concurrence of University was granted 21.11.2000 for readmission. The Governing Council also resolved to admit the petitioner as directed by the High Court. The results of the I Year M.B.B.S. Course were forwarded to the institution on 8.1.2001. It is further stated that the petitioner had not joined the course till 13.9.2001. The concurrence of University was granted 21.11.2000 for readmission. The Governing Council also resolved to admit the petitioner as directed by the High Court. The results of the I Year M.B.B.S. Course were forwarded to the institution on 8.1.2001. It is further stated that the petitioner had not joined the course till 13.9.2001. As per Regulation 17(g), the candidate may be readmitted at the commencement of the session and shall undergo a minimum period of study of six months. In terms of the letter of the College it was seen that the petitioner had not rejoined the course even as on 13.9.2001 and as such he was not eligible to appear for the second II year Part-I examination which was held during December, 2001. In the miscellaneous petitions in W.P.Nos.15815 to 15818 of 2001, this Court had directed that in the event of the petitioner satisfying the required attendance, he shall be permitted to attend the III and IV Semester examinations. On the particulars submitted by the College, the petitioner had not secured the minimum percentage of attendance. It was further stated that the visa obtained by the petitioner was valid only till 25.9.1995. The eligibility certificate had been issued subject to the production of original certificate of Mark statement. By letter dated 11.9.2002, the petitioner had submitted a copy of the letter to the Government on 5.9.2002 to the Collector of Salem stating that regarding the proposal for extension of stay in India, papers have been forwarded to the Government of India. The Ministry of Home Affairs have permitted to extend his stay till 30.4.2003. The University also wrote to the Embassy of India, Teheran, requesting to furnish details of the candidate and regarding the genuineness of Visa of the candidate. There was no response for the said letter. In the meanwhile, the petitioner was suspended from 10.5.2002 for non-submission of the modified student visa. By a subsequent letter dated 23.8.2002, the University was informed that the petitioner was permitted to attend Clinical and Practical classes from 23.8.2002 as he had produced the valid student visa issued by the Government of Tamil Nadu. Subsequently, the petitioner also submitted the required documents including Mark sheet and certificate of completion of the Secondary School studies, old passport and visa, New passport and No Objection Certificate from the Consulate General of Republic of Iran. Subsequently, the petitioner also submitted the required documents including Mark sheet and certificate of completion of the Secondary School studies, old passport and visa, New passport and No Objection Certificate from the Consulate General of Republic of Iran. Based on the above details, the University revoked the conditions mentioned in the Eligibility Certificate and permitted him to continue the course and appear for the examinations. As the petitioner had not completed six months period of study after permitting him to attend the class, the petitioner was not eligible to appear for the examination held in December, 2002 as he was eligible to appear only for the examination to be conducted in April, 2003. The petitioner belongs to Semester pattern and as per the revised pattern the examinations were to be conducted only in June, 2003.In the mean time the petitioner obtained interim orders in W.P.M.P.No.16264 of 2003 permitting him to write the 4th Semester examinations subject to the result of the writ petition. 7. It is further contended by the University that in terms of the letter sent by the Dean of the College, the petitioner has not put in the minimum required attendance of 80 per cent in both Theory and Practical so as to qualify to write the examinations in June, 2003. Hence, as per the details prepared by the College, he was not entitled to appear for the examinations. Therefore, the writ petition was liable to be dismissed. 8. After the writ petition was admitted, in W.P.M.P.No.16264 of 2003, the petitioner has been permitted to write the 4th Semester examination, subject to the result of the writ petition. 9. Mr.Vijay Narayan, appearing for the petitioner contended that from the very beginning, the first respondent College was adopting vindictive attitude against the petitioner because he had written a letter to the Medical Council of India and also filed writ petition before this Court regarding the issue as to whether the College was recognised by the M.C.I. Since then the College had chosen to adopt a vindictive attitude and has not permitted him to appear for the examinations and also went on demanding payment of more and more money. Even though the fee for the entire course was only Rs.5,20,000/- and he had paid Rs.6,00,000/-, the College was insisting on payment of more money. Even though the fee for the entire course was only Rs.5,20,000/- and he had paid Rs.6,00,000/-, the College was insisting on payment of more money. It is further submitted that the non-renewal of Visa which also led to the suspension of the petitioner was also only due to the negligence on the part of the College in not forwarding the requisite certificates even though the original certificates were handed over to the College even earlier. Therefore, he was again required to apply for and obtain a new set of original certificates. As far as the present controversy is concerned, even though he had undergone the necessary period of attendance which is required for the appearance for 4th Semester, the University had chosen to adopt erroneous interpretation by segregating attendance which has already been satisfied by him. Even though the petitioner had joined the course in April, 1995-96, the petitioner is made to stagnate in the second year for which the petitioner cannot be blamed in any manner. 10. Mr.Vellaisamy, appearing for the University contends that the Regulations do not enable the University to club the attendance put in by the candidate during the extended period of study with that of the attendance earned during the earlier period of study and hence the University had rightly declined to permit the petitioner to appear for the 4th Semester examination. 11. Though serious allegations have been made against the first respondent, no counter affidavit has been filed by the first respondent. Learned counsel for the first respondent contends that the petitioner had been repeatedly making false allegations against the institution. However, there was no basis for such allegations. The petitioner was in the habit of making such allegations. The petitioner was irregular in his attendance and had taken long leave on his own and the institution was not responsible for the lack of attendance of the petitioner in any manner. There was also no basis for the contention that the College was responsible for the delay in renewal of the Visa and that the College had misplaced the certificates. 12. I have considered the submissions of all the parties. The facts stated above disclose the harrowing experience of a foreign national who in recognition of the good standards of medical education in this State comes from afar leaving behind his family and spends several lakhs of rupees for attaining the Degree. 12. I have considered the submissions of all the parties. The facts stated above disclose the harrowing experience of a foreign national who in recognition of the good standards of medical education in this State comes from afar leaving behind his family and spends several lakhs of rupees for attaining the Degree. He is continuously harassed and with the result even after the passage of nearly eight years and he had completed only three Semesters that too only with the aid of Court orders. Even though the respective respondents plead that they are not responsible for the resultant situation, the fact also remains that the petitioner cannot be certainly blamed for the present situation. The only sin which he appears to have committed is that in his anxiety about the status of the College he had approached M.C.I. on coming to understand that the College was not recognised. He has also specifically alleged that he was in fact informed by the M.C.I. in their letter dated 25.11.1997 which impelled him to file W.P.No.1671 of 1998. The said allegation in the affidavit is not denied. However, for reasons as available as on the date of the disposal of the writ petition, the College appears to have been declared as recognised. But the problems of the petitioner did not end there and there are materials to show that the College had been insisting on further payment. A learned Judge of this Court had to come heavily on the College when the College had denied having received the balance of Rs.3,00,000/- in W.P.No.1421 of 2000. In the present affidavit also, the petitioner has positively alleged that the first respondent was even now demanding further sum of Rs.3,00,000/- for the purpose of granting permission to the petitioner write the examination in June, 2003 and there is no denial of the said averments by filing a proper counter. Likewise at every stage, for reasons beyond the control of the petitioner and for reasons for which the petitioner cannot certainly be blamed he was not permitted to rejoin the third and fourth Semesters forcing him to approach this Court again for such permission. 13. Likewise at every stage, for reasons beyond the control of the petitioner and for reasons for which the petitioner cannot certainly be blamed he was not permitted to rejoin the third and fourth Semesters forcing him to approach this Court again for such permission. 13. I do not want to further dilate on the issue as to how the College had been treating the petitioner ignoring that the College had already received more than the amount prescribed for the entire Course and how the petitioner was prevented from taking the examinations as and when necessary, due to the situation of lack of attendance, delay in renewal of Visa etc. The main issue which arises for consideration in this Writ Petition is the objection by the second respondent for not permitting him to appear for the 4th Semester examination, namely, that the requisite attendance is not satisfied. The University had taken the stand in spite of letter by the College dated 29.11.2002 to the effect that the petitioner had the requisite attendance. The contention of the University is that the period of suspension has to be excluded and the Regulation did not permit to add the attendance put in by the student during the extended period of study with that of the attendance earned during the earlier period of study. In other words, there is no denial of fact that if both the periods are combined, the attendance would be satisfied. 14. The University has failed to take into account the extraordinary features of this case which disclose that the petitioner cannot at all be blamed for the various facts and circumstances which had resulted in delaying the prosecution of the Course by the petitioner except for a short period in 1998 when he appears to have taken a long leave which is alleged to have been availed as a result of an accident. The attitude of the University has to be termed as hyper-technical to put it most mildly, having regard to the facts and circumstances of the case. Learned counsel for the petitioner contended that the non-renewal of the Visa which led to the suspension of the petitioner was purely due to the mistake on the part of the College (either deliberate or bona fide) in having lost the original certificates of the petitioner. Learned counsel for the petitioner contended that the non-renewal of the Visa which led to the suspension of the petitioner was purely due to the mistake on the part of the College (either deliberate or bona fide) in having lost the original certificates of the petitioner. If not the college, the certificates should have been lost, at some other official source either the University or the authorities involved in the process of the grant of Visa. The petitioner certainly cannot be blamed for the simple reason that the Visa would not have been granted originally at the first instance itself without the originals. The University as well as the College could not have admitted him without the production of the originals. With the result, the Visa was not renewed and consequently, the petitioner was also suspended from the College. Due to the negligence on the part of one of the said authorities, the petitioner had to suffer and he had to obtain another set of originals from Iran. 15. The fact remains that the requisite attendance is satisfied if the extended period of study is added to the earlier period of study. Therefore, the University cannot adopt an attitude which totally ignores the peculiar facts and circumstances of the case. The power to relax has to be exercised where it is most warranted. I have to repeatedly emphasise that the petitioner cannot be blamed for any of the obstacles which had been placed on his prosecution of the Course from the beginning. The obstacles have been forced on him by some one or other authorities on one issue or the other. The authorities had failed to adopt a humane and graceful approach which should have been adopted in the background of the facts of the case towards a helpless youngster who had travelled thousands of miles to acquire a Professional Degree. It is pertinent to note that the Academic Officer of the University by letter 28.11.2002 had informed that the conditions in the eligibility certificate were revoked and that the petitioner was permitted to continue the Course to appear for the examination. Therefore, the present stand taken by the University alleging lack of attendance, cannot at all be appreciated. There is no justification for ignoring the attendance already earned by the petitioner which amply and admittedly satisfies the minimum required attendance. Therefore, the present stand taken by the University alleging lack of attendance, cannot at all be appreciated. There is no justification for ignoring the attendance already earned by the petitioner which amply and admittedly satisfies the minimum required attendance. Therefore, I am inclined to allow the writ petition and this Court can only wishfully hope and expect that both the respondents who are engaged in the noble task of imparting education to the younger generation would bear in mind humanistic approach and not be mechanical or hyper-technical. They are dealing with human beings, young and uncertain about their future life which is hard and competitive. Let not the authorities add to their problems by adopting impracticable or vengeful attitude. Such attitudes should not operate in the mind of the persons who claim to be engaged in the noble task of imparting education and also after extracting huge amounts of money. I would have awarded heavy costs, but refrain from doing so, as it might aggravate and add to the problems to the petitioner. The College would do well to bear in mind that the petitioner had some strong material to apprehend that the College was not recognised by the M.C.I. and in his anxiety which is natural, had moved the M.C.I. for clarification and this Court for transfer. The College should be magnanimous enough to ignore the episode . 16. In the result, the writ petition is allowed as prayed for. The results of the 4th Semester examinations may be released to the petitioner and he be permitted to proceed further with the Course of study. No costs.