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2004 DIGILAW 515 (RAJ)

Ghanshyam Singh Gehlot v. University of Rajasthan

2004-04-06

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - Both the aforesaid writ petitions are being decided by this common order as in both of them common questions of law and facts are involved. S.B. Civil Writ Petition No. 442/2004. 2. This writ petition u/Art. 226 of the Constitution of India has been filed by the petitioner against the respondent on 3.2.2004 with the prayer that by appropriate writ, order of direction, the respondent-University of Rajasthan. Jaipur (for short "the University") be directed to permit the petitioner to take pre-PG Medical Examination 2004 to be held from 27.2.2004 by treating him to have completed one year training, after passing the MBBS Examination, on or before 30.4.2004. 3. The case of the petitioner as put forward by him in this writ petition is as follows: The petitioner, who was student of Dr. S.N. Medical College, Jodhpur, took examination for Final Year MBBS on 13.9.2002 and the result of the said examination was declared on 23.12.2002 and a copy of his mark sheet is marked as Annex.1. According to the petitioner, since he had not passed in Surgery including Orthopaedics and had also not secured requisite marks to get grace marks, therefore, he sought revaluation in the subjects zo Surgery including Orthopaedics and Medicine including Paediatrics. However, the petitioner was not informed about the result of revaluation. The further case of the petitioner is that he received a letter Annex.3 dated 23.7.2003 from the respondent-University in which it was stated that revaluation/scrutiny of his answer-book in paper Med. II-A was not possible due to loss/misplacement/damage/destruction/mutilation and he was advised to re-appear in the ensuing main Examination of 2003 under Ordinance 169(3) of the Hand Book of the University of Rajasthan. It was further stated in that letter Annex. 3 that the marks 30 obtained by the petitioner shall be taken as the marks obtained by him as result of revaluation/scrutiny. However, according to the petitioner, the fact remained that ne was not informed about the result of his revaluation of both subjects. According to the petitioner, he had already intimated to the respondent-University that the did not want revaluation in Surgery, but so far as revaluation in Medicine was concerned, no intimation prior to Annex:5 was received by the petitioner. However, according to the petitioner, the fact remained that ne was not informed about the result of his revaluation of both subjects. According to the petitioner, he had already intimated to the respondent-University that the did not want revaluation in Surgery, but so far as revaluation in Medicine was concerned, no intimation prior to Annex:5 was received by the petitioner. The further case of the petitioner is that the question of revaluation would have lost its importance as he had already taken to Final MBBS (old scheme) Examination in the subject paper of Surgery held in February, 2003 and passed out the same and a copy of the mark sheet is marked as Annex.4 in which it has been clearly mentioned that the result was declared on 7.5 2003. The further case of the petitioner is that had he would have been informed about the revaluation earlier. he would have appeared in the Supplementary Examination Whatever may be the reasons, but the fact is that the result of the petitioner for the Final MBBS Examination held in February, 2003 could not be declared prior to 7.5.2003 and the same could have been declared by 30.4.2003 as the entire process of taking examination was over on 27.4.2003. According to the petitioner, declaration of the result was delayed not on account of the fault on the part of the petitioner, but because the practical examination of Sardar Patel Medical College, Bikaner could not be completed before 4.5.2003 and on the examination being completed on 4.5.2003, their result was declared and simultaneously, the result of the petitioner and others, who took examination in February 2003 was also declared on 7.5.2003. The further case of the petitioner is that Pre-PG Examination 2004 was to be held on 27.2.2004 and the application forms were to be submitted by 10.2.2004 and only those candidates, who would complete their one year internship upto 30.4.2004, after passing Final MBBS Examination, were being allowed to appear in the Pre-PG Medical Examination, 2004, According to the petitioner, since his result for the Final MBBS Examination was declared with delay on 7.5.2003, therefore, he could not complete his one year internship by 30.4.2004, but would complete it on 7.5.2004 and as the petitioner would not complete his one year internship upto 30.4.2004, after passing final MBBS, Examination, therefore, he was found ineligible to appear in the Pre-PG Examination, 2004, but according to the petitioner, since delay in declaring the result for the Final MBBS Examination was not on his part, therefore, in these circumstances, he cannot be penalised and he should have been allowed to appear in the Pre-PG Medical Examination, 2004. Since the petitioner was not allowed to appear in the Pre-PG Medical Examination, 2004. Since the petitioner was not allowed to appear in the Pre-PG Medical Examination, 2004, which was going to be held from 27.2.2004, therefore, he has filed this writ petition with the prayer as stated above. It may be stated here that after filing of the writ petition, this Court through interim order dated 20.2.2004 directed the respondent-University to provisionally allow the petitioner to take Pre-PG Medical Examination 2004 to be held from 27.2.2004. It was further directed that the result of the petitioner be kept in a sealed cover and the same be declared only after obtaining permission of this Court. In pursuance of the said interim order of this Court dated 20.2.2004, the petitioner appeared in the Pre-PG Examination, 2004. However, as per directions of this Court, his result has been kept in a sealed cover and the same has not been declared so far. Thus, now, a prayer has also been made by the petitioner that the respondent - University be directed to declare his result. However, as per directions of this Court, his result has been kept in a sealed cover and the same has not been declared so far. Thus, now, a prayer has also been made by the petitioner that the respondent - University be directed to declare his result. A reply to the writ petition was filed by the respondent-University and the case of the respondent-University was that the petitioner did not fulfil the requisite conditions so as to appear in the Pre-PG Medical Examination, 2004 as he passed his Final MBBS Examination on 7.5.2003 and in that case, he would not complete his one year internship by 2.5.2004, the date fixed by the Medical Council of India for commencement of the PG Medical Courses and therefore, he was no entitled to appear in the Pre-PG Medical Examination, 2004. Furthermore, the petitioner cannot take the benefit of the fact that the result of the petitioner for the Final MBBS Examination could not be declared before 30.4.2003. Hence, no case for interference is made out and this writ petition deserves to be dismissed. 4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents and gone through the materials available on record. 5. There is no dispute on the point that the petitioner appeared in the final MBBS (Old Scheme) Examination held in September 2003 and the result of the said examination was declared on 23.12.2002. 6. There is also no dispute on the point that in that Final MBBS (Old Scheme) Examination held in September, 2002, the petitioner was not declared passed and therefore, he first sought revaluation in the subjects of Surgery including Orthopaedics and Medicine including Paediatrics and thereafter, again appeared in the Final MBBS (Old Scheme) Examination held in February. 2003 and the result of that examination was declared on 7.5.2003, which is evident from the mark sheet Annex.4 and he was declared pass. 7. There is also no dispute on the point that Pre-PG Medical Examination, 2004 was to be held in February, 2004 and the application forms were to be submitted by 10.2.2004 and there was a condition that only those students, who would complete their internship by 30.4.2004 after passing final MBBS Examination, were allowed to appear in the Pre-PG 2 Medical Examination, 2004 to be held in February, 2004. 8. 8. There is also no dispute on the point that since the result of the petitioner for the Final MBBS Examination held on February, 2003 was declared with delay on 7.5.2003, therefore, he could not complete his one year internship by 30.4.2004, but he would complete his one year internship 3 on 7.5.2004. 9. Now, in the facts and circumstances just mentioned above, the question for consideration is whether in view of the fact that the petitioner could not complete his one year internship by 30.4.2004 because his result for the Final MBBS Examination February 2003 was declared with delay on7.5.2003 and that there was no fault on his part, in such circumstances, the petitioner should be treated as in eligible to appear in the Pre-PG Medical Examination, 2004 or not. 10. This Court is aware of the law that ul Article 226 of the Constitution of India, the Court should not uphold the admission wrongly granted or admission which are made against the Rules embodied by the Educational Institution concerned. The Court is also aware that wrong admission should not be allowed to continue and Court should not become a party to maintain wrongful admission. 11. The facts of the present case are peculiar in nature on the point that the delay of 7 days in completing one year internship would occur because of the fact that the result of the petitioner for the Final MBBS Examination held in February 2003 was declared on 7.5.2003 and the process of Pre-PG Medical Examination, 2004 was to commence from February, 2004 and for that, there was a direction that one year internship should have been completed by the students by 30.4.2004. Therefore, it is a case of delay of 7 days in completing the one year internship by the petitioner, but not a case of inherent ineligibility in the academic career of the petitioner 12. Thus, if the case of the petitioner is examined from technical point of view, he was not eligible to appear in the Pre-PG Medical Examination, 5 2004 to be held from 27.2.2004, but if the matter is examined in broad perspective and on equitable ground. the petitioner is entitled to the relief sought for, especially when through interim order of this Court dated 20.2.2004 he has been provisionally allowed to appear in the Pre-PG Medical Examination. 2004. 13. In Cf. the petitioner is entitled to the relief sought for, especially when through interim order of this Court dated 20.2.2004 he has been provisionally allowed to appear in the Pre-PG Medical Examination. 2004. 13. In Cf. Hadibandhu Rautarao v. State of Orissa, (1985) 4 SCC 47 , the Hon'ble Supreme Court held that the Court u/Art. 226 of the Constitution of India should weigh the equitable realities of the situation. 14. In my considered opinion, the High Court u/Art. 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice, keeping in mind the principles of equity which aim to promote honesty and fair play. 15. It may be stated here that equity comes not to destroy the law, but to fulfil it. 16. Apart from this, equitable right has an even wider orbit than the legal right. The differences between the two equitable right and legal right are due to the fact that equitable rights have always been in personam and not in rem. 17. Furthermore, even in matters of educational institution, the Court can condone the defect of delay if the person in whose favour order is going to be passed is not at fault. Once the conscience of the Court is satisfied on the point that in case relief ought for is not granted, injustice would be done, in such matter, no restriction or rule can stand in the way of rendering justice. 18. Apart from this, in cases dealing with the career of the students 30 affecting their valuable and precious years of study, technicalities should not enter into consideration and humanistic approach should be adopted, while dealing with the educational matters of the young living beings. 19. 18. Apart from this, in cases dealing with the career of the students 30 affecting their valuable and precious years of study, technicalities should not enter into consideration and humanistic approach should be adopted, while dealing with the educational matters of the young living beings. 19. Thus, looking to the principles of equity just stated above and looking to the peculiar facts and circumstances of the case and the fact that the delay of 7 days in declaring the result of the petitioner for the final MBBS Examination held in February 2003 was not on the part of the petitioner and that he was not allowed to appear in the Pre-PG Medical Examination, 2004 to be held from 27,2.2004 merely on technical ground, in my considered opinion, the petitioner is entitled to the relief sought for on equitable consideration and further, this Court is satisfied that if the relief sought for by the petitioner is not granted, it would amount to doing injustice with him and for no fault on his part, his valuable and precious year would be wasted. 20. Thus, for the reasons stated above, a legal right though based on equitable consideration has accrued in favour of the petitioner to get relief sought for u/Art. 226 of the Constitution of India and this writ petition deserves to be allowed. 21. So far as the ruling relied upon by the learned counsel for the respondent in Medical Council of India v. Madhu Singh & Ors., (2002) 7 SCC 257 is concerned, as already stated above, since looking to the peculiar facts and circumstances of the case, relief was granted to the petitioner on equitable considerations, therefore, that ruling would not be helpful to the respondent.Accordingly, this writ petition filed by the petitioner Ghanshyam Singh Gehlot is allowed and since the petitioner has already appeared in the Pre-PG Medical Examination, 2004 held from 27.2.2004 in pursuance of the interim order of this Court dated 20.2.2004 and his result has been kept in a sealed cover and the same not been declared so far, therefore, the s respondent-University is directed to declare the result of the petitioner immediately and if he succeeds, he may be given admission in the PG-Medical Course, 2004, if otherwise he is found suitable and eligible. S.B. Civil Writ Petition No. 425/2004 22. S.B. Civil Writ Petition No. 425/2004 22. This writ petition also raises the same controversy which has been decided above in S.B. Civil Writ Petition No. 442/2004 and thus, for the reasons given above while deciding S.B. Civil Writ Petition No. 442/2004, this writ petition also deserves to be allowed.Accordingly, this writ petition filed by the petitioners Dr. Kamlesh Meena, Dr. Pradeep Vishnoi and Dr. Vishnu Garg is allowed and since the 15 petitioners have already appeared in the Pre-PG Medical Examination, 2004 held from 27.2.2004 in pursuance of the interim order of this Court dated 23.2.2004 and their result has been kept in a sealed cover and the same not been declared so far, therefore, the respondent-University is directed to declare the result of the petitioners immediately and if they succeed, they 20 may be given admission in petitioners immediately and if they succeed, they may be given admission in the PG-Medical Course, 2004, if otherwise they are found suitable and eligible.Both the writ petitions stand allowed accordingly in the manner as indicated above. *******