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2010 DIGILAW 198 (JK)

Mohd. Muzaffar Najar v. State

2010-04-15

MUZAFFAR HUSSAIN ATTAR

body2010
1. In appreciation of merit secured by the petitioner in Common Entrance Examination held in the year 2005, he was selected to undergo MBBS course in open merit category, and seat thereof was allotted to him in Government Medical College (GMC) Srinagar. 2. The petitioner joined the GMC Srinagar on 26th July 2005. At the end of 1st. MBBS course petitioner was required to take the examination. The annual examination was held in Sept. 2006 for 1st. MBBS course. The petitioner was provisionally promoted to 2nd. MBBS Course. The University of Kashmir declared the result of the 1st. MBBS course in Nov/Dec. 2006 and petitioner had suffered re-appear in the subject of "Anatomy". The petitioner, however, was allowed to pursue the 2nd. MBBS course provisionally, as he was required to qualify the 1st. MBBS course in full in the subsequent examination. The petitioner failed to qualify the full examination of the 1st. MBBS course in the "subsequent examination" held in April 2007 and instead cleared the backlog paper of Anatomy in the final examination, result whereof was declared six months prior to conducting of 2nd. MBBS course examination. The petitioner having failed to qualify the 1st. MBBS course in full, in the subsequent examination, held in the year 2007, his provisional admission to 2nd MBBS course was cancelled and he was reverted to 1st. MBBS course on 7th of July 2007. The petitioner cleared his backlog paper in the subject of Anatomy when he took the examination of the said paper in Oct. 2007, result whereof was declared on 26th Dec. 2007. The promotion of petitioner to the 2nd. MBBS course, as claimed by the respondent, was to commence from 28th Dec. 2007. The 2nd MBBS course is of eighteen months duration. Unless and until the said time frame is completed, no candidate can appear in 2nd. MBBS course examination. These details are reflected in the trial court order. 3. The petitioner was not allowed to take 2nd. MBBS course examination for the above stated reasons. 4. Petitioner being aggrieved of the action of respondents, filed a Civil Original Suit in the Court of Sub Judge/Second Civil Subordinate Judge (PT&E) Srinagar. Along the suit, the petitioner also filed an application for grant of interim relief. The ld trial judge dismissed the interim injunction application vide its order dated 6th May 2008. 4. Petitioner being aggrieved of the action of respondents, filed a Civil Original Suit in the Court of Sub Judge/Second Civil Subordinate Judge (PT&E) Srinagar. Along the suit, the petitioner also filed an application for grant of interim relief. The ld trial judge dismissed the interim injunction application vide its order dated 6th May 2008. The petitioner feeling aggrieved of the said order, challenged the same in Civil Misc. First Appeal, which appeal was heard and decided by ld Principal District Judge, Srinagar, who vide order dated 29th May 2008 dismissed the same. 5. It is in this backdrop, the above said impugned order is called in question in this revision petition. 6. The petitioner in the interim applications had sought relief for directing the respondents to allow him to take the 2nd MBBS examination, with further prayer that the University authorities be directed to accept the examination form so as to enable him to take the 2nd MBBS examination. 7. During course of pendency of this revision petition, interim applications were filed by the petitioner and orders have been passed by this court directing therein that petitioner be permitted to take the examination, but, at his own risk and responsibility. 8. The notification No. F (ST. MBBS) Acad/KU/001 dated April 26th 2001 was issued by Deputy Registrar Academic University of Kashmir. The notification is reproduced as under:- "Notification. Pursuance to the amendment in the Statute 7.1 of the Statutes governing MBBS course by the Jammu University, the Vice-Chancellor in exercise of the Special Powers vested in him under the provisions of the Kashmir & Jammu Universities Act has been pleased to authorize adoption of the said Statute contained in the amended statute, reproduced below to this University MBBS course students as well retrospectively i.e from the year 1999 and onwards:- "A candidate who fails to pass the Ist Prof. Examination in one or more subjects in the regular examination, may be permitted to attend classes provisionally in the 2nd Prof. course till the subsequent examination of the first Prof. course is held. If such a candidate passes the 1st Prof. Exam. In full at the subsequent exam. his provisional admission shall be regularized from the date of joining the 2nd Prof. Course. If he fails to qualify in any of the subjects of 1st Prof. Course in the subsequent exam. his provisional admission to the 2nd Prof. course is held. If such a candidate passes the 1st Prof. Exam. In full at the subsequent exam. his provisional admission shall be regularized from the date of joining the 2nd Prof. Course. If he fails to qualify in any of the subjects of 1st Prof. Course in the subsequent exam. his provisional admission to the 2nd Prof. Course shall stand cancelled." 9. The University of Kashmir before issuing the aforementioned notification had issued notification vide endorsement No.F (ST. MBBS) ACAD/KU/99 dated 04.06.99, which notification was issued by Assistant Registrar Academic University of Kashmir, which is reproduced as under:- "It is hereby notified for the information of all concerned that the University Council at its meeting held on 10-02-1999 has authorized adoption of Revised Guidelines governing the M.B.B.S. Course notified by the Medical Council of India. Till such time the Statutes are framed in light of these guidelines, the statutes already framed by the Jammu University in this behalf (copy enclosed) are prescribed for the batch of students admitted in 1999." The Statute 3 of the Statutes governing the Degree of Bachelor of Medicine and Bachelor of Surgery, covers the subject "examinations". The Statute 3.2 is reproduced as under:- "3.2 Each examination will be held twice a year i.e. one regular and one subsequent on such dates as may be fixed by the Controller of Examination in consultation with Dean Faculty of Medicine. Note: However, the subsequent examination will be held between 3 to 4 months after declaration of the result of the regular examination." University of Kashmir Srinagar issued notification vide endorsement No. F(R. Statutes-MBBS)Acad/KU/07 dated 1st August 2007, which is reproduced as under:- "Pursuant to the assent of the Chancellor to the adoption of revised set of statutes for MBBS course in accordance with the provisions of the Kashmir and Jammu Universities Act, 1969, it is notified for the information of all concerned that the status, given in annexure page 1-32 are prescribed for MBBS Course effective from the batch of students admitted thereto during academic session 2006 and onwards." Under the caption Statute governing the Bachelor of Medicine and Bachelor of Surgery (MBBS), Statutes were issued, under caption, University of Kashmir "Bachelor of Medicine" and "Bachelor of Surgery 2006". Under the caption Examinations, the Statute 5(i) provides that no candidate shall be entitled for award of Bachelor of Medicine and Bachelor of Surgery degree without qualifying the 1st. examination conducted by the University in this behalf. Statute 5(ii) provides that University shall conduct the examinations in different phases of MBBS course in accordance with the provisions contained in II regulation of the Statutes as efficiently as possible. These statutes are reproduced as under:- "St. 5 i) Subject to the provisions of the Act read with M.C.I. direction for the time being in force, or that may be issued from time to time, no candidate shall be entitled for the award of the degree of Bachelor of medicine and Bachelor of Surgery without first qualifying the prescribed set of examinations conducted by the University in this behalf. (ii) The University shall conduct the examinations for different phases of M.B.B.S. course spread over 4 years in accordance with the provisions contained in II regulation of these statutes, as efficiently as possible." Regulations II comprises of Statute 6. Statute 6(i) which is relevant for disposal of this case, is reproduced as under:- "St.6 (I) Each examination will be held twice a year i.e. one regular and one subsequent. On such dates as may be fixed by the Controller of Examination in consultation with Dean. Faculty of Medicine. Provided that the subsequent examination may be held between 3 to 4 months after declaration of the result of the regular examination." Chapter-VI, deals with the promotion of the students. Statute 14 which is relevant for purpose of this case is reproduced as under:- "St. 14 (i) Subject to the provisions of the Act, any candidate who appears in the first professional examination may be allowed provisionally to attend the second professional phase II course. (ii) Any candidate who passes the examination in full shall be deemed to have been promoted to phase II from the date of joining the 2nd professional. (iii) Any candidate who fails to pass the 1st Prof. Examination in one or more subjects in the Regular examination may be permitted to attend classes provisionally in the 2nd prof. course till the subsequent examination of the first prof. course is held. If such a candidate passes the 1st prof. examination in full at the subsequent examination his provisional admission shall be regularized from the date of joining the 2nd professional course. course till the subsequent examination of the first prof. course is held. If such a candidate passes the 1st prof. examination in full at the subsequent examination his provisional admission shall be regularized from the date of joining the 2nd professional course. If he / she fails to qualify in any of the subjects of the 1st professional course in the subsequent examination his provisional admission to the 2nd prof. course shall stand cancelled." Heard ld counsel for parties. Considered the matter. 10. Mr. Z.A. Shah, ld Sr. Adv. while referring to the Statute 14 as it appears under Chapter-VI of the University Statutes submitted that the expression "subsequent examination of the 1st. MBBS course" as, referred to in Statute 14 (iii) would mean, "1st. MBBS examination, which is held subsequent to earlier annual MBBS examination". The ld counsel thus, submitted that the language in which the Statute (supra) is couched, the expression "subsequent examination" cannot be said to be a supplementary examination held between two regular examinations conducted by the University. The ld counsel, accordingly, submitted that the petitioner having qualified 1st. examination MBBS in full in third attempt would entitle him automatic promotion in the 2nd. MBBS course. In view of the language used in the University Statutes, ld counsel submitted that the petitioner would be entitled to take the 2nd MBBS course examination along-with other batch-mates. Ld counsel further submitted that any other interpretation placed on the words "subsequent examination of the 1st. MBBS course is held" would not be in-consonance with doctrine of purposive interpretation. The ld counsel further submitted that in this back-drop the order passed by the ld first Appellate Court is illegal and the impugned order has caused failure of justice. The ld counsel submitted that the revision petition deserves to be allowed. 11. Mr. T. Khawaja ld counsel, appearing for the University of Kashmir vehemently argued that the expression "subsequent examination" used in the University Statutes would not mean the second regular final examination but a supplementary examination, which is conducted between two final examinations. The ld counsel submitted that petitioner having failed to qualify 1st. MBBS course in full in the "subsequent examination" his provisional admission to 2nd MBBS course got cancelled. The ld counsel submitted that the impugned order is legally valid and does not call for any interference. 12. The ld counsel submitted that petitioner having failed to qualify 1st. MBBS course in full in the "subsequent examination" his provisional admission to 2nd MBBS course got cancelled. The ld counsel submitted that the impugned order is legally valid and does not call for any interference. 12. The ld counsel for the respondents also raised objection to the maintainability of revision petition and while referring to Section 115 of CPC the ld counsel submitted that the impugned order does not fall in any of the categories " a to d" of Section 115 (1). The ld counsel, submitted that even if subordinate court has passed an illegal order, but if same is within its jurisdiction, then it cannot be interfered with in revision petition. The ld. counsel in this behalf referred to and relied upon the judgment of the Honble Supreme Court in case Southern Sales and Services and ors v. Sauermilch Design and Handles G.M.B.H reported in AIR 2009 SC 320. 13. After a student is admitted to MBBS course, the studies and the examinations are regulated by University Statutes. The University is duty bound in law to give full effect to its Statutes. The University can-not either of its own or by any injunction order be directed to observe its own Statute in breach. The purpose of formulating the University Statutes is to ensure and to maintain the proper and higher standards of the courses/academics and further to meet out uniform treatment to all similarly situated candidates. In absence of statute(s)/rule(s) the authorities will be left with absolute discretion to deal with the situation in accordance with ones own understanding. It is a universally accepted fact that understanding of individuals vary and differ from each other. In order to avoid creation of chaotic situation more particularly in academic courses the University Statues have been formulated to regulate the course as also the conducting of examination. The notification dated 26th April 2001, authorized adoption of Statute 7.1 of Statutes governing MBBS course of Jammu University, by the University of Kashmir retrospectively w.e.f the year 1999 and onwards and remained in-force till notification dated 1st August 2007 was issued by University of Kashmir. The notification dated 26th April 2001, authorized adoption of Statute 7.1 of Statutes governing MBBS course of Jammu University, by the University of Kashmir retrospectively w.e.f the year 1999 and onwards and remained in-force till notification dated 1st August 2007 was issued by University of Kashmir. The Statute 7.1 which was adopted by University of Kashmir and reproduced in this judgment in unequivocal terms provided that a candidate who fails to pass first professional examination in one or more subjects in the regular examination may be permitted to attend classes provisionally in the 2nd professional course till the subsequent examination of the 1st. MBBS course is held. It is also provided that if such a candidate in first professional examination course passes in full in the subsequent examination, his provisional admission shall be regularized from the date of joining the 2nd Professional course. It is further provided that if he fails to qualify in any of the subjects of the first professional course in the subsequent examination, his provisional admission to the second professional course shall stand cancelled. 14. Among others Statute 14 under Chapter-VI of the Statutes is issued vide notification dated 1st August 2007 by University of Kashmir. Statute 14(iii) is in paramateria with the Statute 7.1 of Jammu University which was earlier adopted by the University of Kashmir. The language and the tenor of both the statues word by word is same and similar. What flows from the said statute is that candidate who fails to pass first MBBS course in full may be permitted to attend classes provisionally in 2nd Professional course till the subsequent examination of the first professional course is held and if he fails to qualify in any of the subjects of first professional course in the subsequent examination his provisional admission to 2nd professional course shall stand cancelled. 15. Going by facts in this case, petitioner admittedly has not qualified the first professional examination course in full in the subsequent examination. 16. On the plain language of the Statute the provisional admission of the petitioner to 2nd MBBS course stands cancelled. It is the Statute (supra) which enabled the petitioner to pursue 2nd professional course despite having failed in one of the subjects in first MBBS professional examination. In absence of above referred statutes the petitioner could not even be provisionally promoted and permitted to attend the classes in 2nd professional course. It is the Statute (supra) which enabled the petitioner to pursue 2nd professional course despite having failed in one of the subjects in first MBBS professional examination. In absence of above referred statutes the petitioner could not even be provisionally promoted and permitted to attend the classes in 2nd professional course. The provision of statute which conferred such benefit on the petitioner who had failed to qualify the first professional examination in full authorized provisional admission in 2nd professional course on the condition that the petitioner qualifies the subjects of first professional course in which he had failed in the subsequent examination. The moment, the petitioner failed to qualify the subject of Anatomy of first professional course in the subsequent examination he lost his right to pursue the 2nd MBBS course. The provisional admission of the petitioner in the 2nd MBBS course was not in pursuance to any administrative action or such right was not obtained by petitioner on his own. The statute authorized such a course to be adopted. The petitioner as also University authorities in these circumstances are bound by statute and neither the petitioner can secure any advantage in breach of the statute nor the University authorities can confer any benefit on the petitioner by observing the Statute in breach. The statute has to be enforced with full vigor. 17. The argument of the ld counsel for the petitioner that the "subsequent examination" means the next final examination does not stand to reason. The Statute making authority in such circumstances would have not used expression "subsequent examination" but would have used the expression "next final examination". The subsequent examination would, thus, certainly mean an examination between two final examinations. The purpose of holding subsequent examination is laudable in as much as it affords an opportunity to students who despite having failed in one or more subjects are permitted to attend the classes in 2nd professional course and, are simultaneously afforded an opportunity to clear the backlog in subsequent examination. The expression "subsequent examinations" on the interpretation of the ld counsel for petitioner becomes meaningless and inconsequential. In absence of provisions for taking subsequent examination a candidate who does not qualify the first professional course in full, could not be permitted to join 2nd. Professional course. 18. The expression "subsequent examinations" on the interpretation of the ld counsel for petitioner becomes meaningless and inconsequential. In absence of provisions for taking subsequent examination a candidate who does not qualify the first professional course in full, could not be permitted to join 2nd. Professional course. 18. The statute 3(2) enclosed with the notification dated April 26th 2001 as also statute 6(1) enclosed with notification dated 1st August 2007 define that each examination will be held twice in year one regular and one subsequent. Duration between two examinations will be two to four months after declaration of the results of regular examinations. The Statute itself has, thus, clarified as to what the "subsequent examination" would mean. The submission of the ld counsel for the petitioner in this legal position cannot thus be accepted. 19. The petitioner in these circumstances has neither primafacie case nor balance of convenience lies in his favour and he will not suffer any irreparable injury. The orders passed by the first Appellate Court as also by the trial court are held to be legal and within jurisdiction. 20. For the above stated reasons, this petition is, accordingly, dismissed.