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J&K High Court · body

2010 DIGILAW 577 (JK)

Mohd. Idrees Bashir v. State

2010-11-16

MOHAMMAD YAQOOB MIR

body2010
1. Petitioner after appearing in the competitive examination held by the Board of Professional Examination made the grade and after counseling was granted admission to the postgraduate course in Surgery on 16.4.2005, on completion of requisite formalities started undergoing training programme w.e.f. 10.5.2005. 2. The petitioner did not attend the training programme for the period beginning from 23.7.2005 to 31.12.2005, however, on 31.12.2005 moved an application before the respondent No.2 for resuming the training. When no order was passed on the said application, petitioner filed one more such application on 1.3.2006, again no orders were passed but was informed that the decision would be taken by the Board of Post-Graduate Studies in Medicines. 3. Meeting of the Board was convened on 22.6.2006. The Board referred the matter to the University. In response thereto, on 27.9.2006, University addressed a communication to Medical Council of India vis-a-vis application of the petitioner and at the same time asked the respondent No.2 (Principal Medical College) to allow the petitioner to pursue the course provisionally subject to clarification from the Medical Council of India but still petitioner was not allowed to resume the training programme. Finally on 14.10.2006 a formal order was issued by respondent No.2 allowing the petitioner to join provisionally for the MS course in Surgery on his own risk and responsibility and subject to production of an affidavit to the same effect. 4. The Medical Council of India responded to the communication of the University of Kashmir vide communication dated 1.11.2006 conveying therein that the University should take decision after keeping their rules and regulations in mind. 5. One more meeting was held by the Board of Postgraduate Studies in Medicine on 2.12.2006, wherein it was observed that the since petitioner had remained absent beyond 45 days at a stretch; his admission be treated as cancelled. As a result thereof, order impugned cancelling admission of the petitioner to the postgraduate course, has been passed. Therefore, the instant petition. An interim direction came to be passed on 5.3.2007 pursuant to which the said order of cancellation dated 22.1.2007 was stayed. 6. It is during the pendence of the proceedings, learned counsel for the respondents, was required to provide information as to whether the petitioner has completed the PG course in the discipline of MS. A status report in compliance thereof has been submitted on 17.3.2009 by the respondent No.2. 7. 6. It is during the pendence of the proceedings, learned counsel for the respondents, was required to provide information as to whether the petitioner has completed the PG course in the discipline of MS. A status report in compliance thereof has been submitted on 17.3.2009 by the respondent No.2. 7. Petitioner moved a motion wherein he sought direction so as to command the respondents to accept the examination form of the petitioner, allot him Roll No. and to allow him to appear in the examination scheduled to be held from 24th of April, 2010. While considering the said motion, vide order dated 7.4.2010, a direction came to be issued for accepting examination form of the petitioner in accordance with rules and also to permit him to take the examination as was scheduled to be held w.e.f. 24th of April, 2010. However, it was subject to two conditions: (1) that taking of examination shall be at the sole risk and responsibility of the petitioner, and (2) result shall be subject to outcome of the main petition. 8. Again during the proceedings, one more motion was made by the petitioner seeking declaration of results. In terms of order dated 3.6.2010, respondents (University) were directed to produce the result of the petitioner in a sealed cover. Said direction has been complied with. 9. First contention of the petitioner is that he has been subjected to incalculable loss and inconvenience. By dint of his own merit, he was selected to pursue postgraduate course and while joining and pursuing the training course, he was confronted with an unfortunate situation i.e. his uncle, who had no one to look after, was diagnosed as a patient of kidney cancer. Petitioner had no option but to take care of the uncle who finally expired. This is the basic cause projected by the petitioner for not attending the training course from 23.7.2005 to 31.12.2005. 10. The second contention of the petitioner is that Rule 4.4(d) of the Statute would provide that in case a student remains absent beyond 45 days at a stretch, his registration/admission shall be cancelled by the University except for the candidates who were ill and hospitalized for the period. Rule in itself provides for an exception so is not rigid and the case of the petitioner deserves to be considered in the context of the non-rigidity of the rule. 11. Rule in itself provides for an exception so is not rigid and the case of the petitioner deserves to be considered in the context of the non-rigidity of the rule. 11. The third contention of the petitioner is that his basic selection as made in the year 2005 has not been cancelled, therefore, his seat remained intact and same has not been filled up. 12. Lastly, petitioner contended that in terms of the status report (compliance report) as has been filed, the petitioner has completed the course even if to be reckoned w.e.f. 24.3.2007 and after completing three years course has taken his examination as was conducted w.e.f. 24.4.2010. 13. For the stated contentions, petitioner would submit that now his result may be ordered to be declared. 14. Both learned counsel appearing for the respondents, while resisting the contentions as raised by the petitioner for a while, finally were candid enough to state that the case of the petitioner has special features and as a special case may be considered for appropriate orders. 15. While considering the entire gamut of the case, what emerges is that this case has its own peculiar features. 16. It is an admitted fact that the petitioner by dint of his own merit got selected, started pursuing the course w.e.f 10.5.2005, subsequently remained absent from 23.7.2005 to 31.12.2005, same is pleaded to be due to unavoidable circumstances i.e. the ill health of his uncle as he had no option but to take necessary measures for making endeavour to save the human life. 17. Unavoidable absence and aftermath appears to be circumstantial and the authorities concerned have also remained in a dilemma. Neither they have cancelled the basic selection of the petitioner nor they were in a position to take any final decision till 22.1.2007 when the provisional admission dated 14.10.2006 was conveyed to have been cancelled by the Board of Post Graduate Studies. 18. The fate of the petitioner remained in a state of uncertainty but at the same time one safeguard continued i.e. the seat against which he was selected was neither cancelled nor filled up nor carried forward, so the petitioner continued to hold the seat. Suffering of the petitioner due to stated uncertainty is contributed initially by the petitioner himself while remaining absent. The situation as then arose required a deliberation at the level of concerned authorities (respondents) which took time. 19. Suffering of the petitioner due to stated uncertainty is contributed initially by the petitioner himself while remaining absent. The situation as then arose required a deliberation at the level of concerned authorities (respondents) which took time. 19. Rule 4.4(d) of the Statute governing post-graduation provide that in case a candidate remains absent, at a stretch, beyond 45 days, his candidature has to be cancelled but no such cancellation order was passed until 22.1.2007. Furthermore Rule 4.4 is not rigid in its operation as it itself provides the exception in case of a candidate who has been ill and hospitalized for the period. Therefore, there is a scope for extending such type of exception to the candidates who, for situation beyond their control, remained absent beyond 45 days. In view of the exception contained in the rule itself, broader view of extending scope of exception in genuine cases is permissible. 20. Rule 4.4(d) of the Post Graduate Studies Medical Courses Statute is not now even otherwise applicable to the case of the petitioner, firstly because pursuant to the direction of the University on 14.6.2006 he was provisionally permitted to pursue the training course but subsequently said provisional admission was cancelled on 22.1.2007 but said order was stayed pursuant to order dated 5.3.2007 by this Court, so was permitted by the respondents to pursue the training course. 21. Important situation highlighted as is evident from the status report filed i.e. as per the Statute governing the postgraduate course, the doctor is supposed to work as full time resident during the whole period of training and is required to attend a minimum of 80% of the training period during each calendar year. The Statute also lays emphasis on in-service clinical training and the doctor is required to participate in the teaching and training programmes of under graduate students and in terms of his subject/specialty apart from taking part in seminars, group discussions and clinical meetings. It is then concluded that earlier broken period in no case deserves to be counted towards the total period of three years. Then it is added that the petitioner shall be completing his three years of his PG studies on 23.3.2010 beginning from 24.3.2007 when he was provisionally permitted to rejoin under the directions of the Court. 22. It is then concluded that earlier broken period in no case deserves to be counted towards the total period of three years. Then it is added that the petitioner shall be completing his three years of his PG studies on 23.3.2010 beginning from 24.3.2007 when he was provisionally permitted to rejoin under the directions of the Court. 22. At present petitioner is not now claiming counting of earlier broken periods of training which he had undergone but now claims that even in the backdrop of the status report he has completed three years of course w.e.f. 24.3.2007 to 23.3.2010, his examination has been taken and result has been produced in a sealed cover. Therefore, this is a special situation which requires a special treatment. 23. Balance of equities tilt in favour of the petitioner because the petitioner by dint of his own merit got selected and started pursuing the course but due to ill luck had to remain absent for the period referred above. Then again has joined pursuant to the directions of the University and ultimately in view of the order dated 5.3.2007 of this court. 24. The hallmark of grant of equitable relief is that the petitioner must have come to the Court with clean hands, must not have exhibited any kind of negligence or indolence and must be established to be fair. When all such conditions are satisfied, then a person cannot be allowed to be subjected to un-necessary hardships. 25. The case of the petitioner is such where no deliberate indolence or inaction is attributable to him. His fair approach and the fair position stated by him has remained to be controverted. It will be absolutely travesty of justice if he is deprived of reaping the fruits of the training period undergone in pursuing the PG course, when the respondents in their status report have clearly indicated that the PG course pursued by the petitioner for a period of required three years commencing from 24.3.2007 till 23.3.2010, stand completed. So in essence what emerges is that the petitioner has undergone the requisite training. The candidate within the period of three years of course is required to attend a minimum 80% of the training period during each calendar year and then other requirements such as in-service clinical training, participation in teaching and training programmes, group discussions and participation in seminars. So in essence what emerges is that the petitioner has undergone the requisite training. The candidate within the period of three years of course is required to attend a minimum 80% of the training period during each calendar year and then other requirements such as in-service clinical training, participation in teaching and training programmes, group discussions and participation in seminars. The said conditions are satisfied as is deducible from the status report. 26. While summing up, what emerges is that: (i) By now the petitioner has completed the requisite training within permissible period of three years beginning from 24.3.2007 to 23.3.2010 (ii) The petitioner has taken the examination and the results have also been prepared as produced in the sealed cover. (iii) The petitioner normally would have completed his PG course on 10.5.2008 commencing from 10.5.2005 but due to ill luck and unavoidable circumstances, his absence for a period commencing from 23.7.2005 till 31.12.2005 costed him so much trouble, inconvenience and prolonged period for completion of the course. 27. The object of grant or decline of equitable relief has always to be subservient to the canons of justice. For the stated facts and reasons, equities favour the petitioner. While balancing the equities, its tilting towards the petitioner is unavoidable so as to advance the cause of justice. It shall be quite relevant to refer to the judgments referred and relied, reported in 1997 SLJ 357 captioned Manmohan Singh v. State, 1996 SLJ 30 captioned Dr. Y. P. Sharma & anr v. State & ors. and AIR 1996 Supreme Court 3150 captioned Vitthalbhai Bakorbhai (dead) through LRs & ors v. Executive Engineer Capital Project. In the said judgments on the basis of equities for advancing the cause of justice, relief has been granted in favour of the persons who had a "just cause" and "just case". 28. The present case, I think, is a case like that of a tortured and wounded person clamouring for being provided a healing touch so as to avoid deteriorating effects. 29. The order of cancellation bearing No.Acad/PG/250-57/MC dated 22.1.2007 has become irrelevant because said order of cancellation was simply the cancellation of provisional admission dated 14.10.2006 which the University had granted while referring the case of the petitioner to the Medical Council of India. 30. 29. The order of cancellation bearing No.Acad/PG/250-57/MC dated 22.1.2007 has become irrelevant because said order of cancellation was simply the cancellation of provisional admission dated 14.10.2006 which the University had granted while referring the case of the petitioner to the Medical Council of India. 30. The basic admission dated 16.4.2005 till date has not been cancelled, therefore, same is intact, as a necessary corollary, in pursuance thereof, the period of three years of training has been completed by the petitioner even if same is now counted in terms of status report with effect from 23.3.2007. The impugned order of cancellation dated 22.1.2007 thus being irrelevant so non-est shall be ignored. 31. Now the petitioner has completed the course, has taken the examination, his result is produced in sealed cover which stand perused and again re-sealed, shall now be declared and necessary degree as shall be permissible in accordance with results shall be awarded in favour of the petitioner and whatever necessary/requisite formalities for so doing shall be completed by the respondents at their respective level simultaneously within two weeks so that petitioner may not suffer any more. 32. Petition succeeds so disposed of on aforesaid terms along with connected CMP(s).