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2013 DIGILAW 59 (CAL)

Arka Ujjwal Maiti v. STATE OF WEST BENGAL

2013-02-04

PRASENJIT MANDAL

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JUDGMENT Prasenjit Mandal, J. This application is at the instance of some students of the Course of Diploma in Physiotherapy and is filed praying for continuation of the Condensed Bachelor Degree in Physiotherapy (in short ‘Condensed BPT’) Course all over West Bengal and for declaration that the decision of the Academic Council, West Bengal University of Health Sciences for not continuation of the ‘Condensed BPT’ Course and also the decision of the ‘Board of Studies’, West Bengal University of health Sciences dated November 6, 2009 for not continuation of the ‘Condensed BPT’ Course are bad in law, procedure and against the equity and natural justice and for other consequential relief’s. In order to appreciate the nature of relief’s sought for in the application, the prayers made in the said application are quoted below:- a) A writ in the nature of Mandamus directing the respondents, their men, agents to continue the course of ‘Condensed BPT’ all over West Bengal as it is continuing in the year 2009- 2010 and to keep open the avenue of the students of Diploma in Physiotherapy (DPT) to get higher studies like ‘Master in Physiotherapy (MPT)’ and Ph.D. works and as such to keep open higher rank services. b) A writ in the nature of Mandamus directing the respondent authorities to illustrate why they have not continued such course of ‘Condensed BPT’ and to declare the decision of Academic Council, West Bengal University of Health Sciences for not continuation of BPT (Condensed) course and also the decision of ‘Board of Studies’, the West Bengal University of Health Sciences dated 6th November, 2009 for not continuation of BPT (Condensed) course are bad in Law, procedure & against the equity and natural justice. c) A writ in the nature of Certiorari directing the respondents to produce all the records of this case so that conscionable justice may be rendered to the petitioner. d) A Rule Nisi in terms of prayer (a), (b) & (c) above. e) Service upon respondents be dispensed with. c) A writ in the nature of Certiorari directing the respondents to produce all the records of this case so that conscionable justice may be rendered to the petitioner. d) A Rule Nisi in terms of prayer (a), (b) & (c) above. e) Service upon respondents be dispensed with. f) An interim order of stay of the decision of Academic Council, West Bengal University of Health Sciences for not continuation of BPT (Condensed) course and also the decision of ‘Board of Studies’, the West Bengal University of Health Sciences dated 6th November, 2009 for not continuation of BPT (Condensed) course until last student of the Diploma in Physiotherapy (DPT) have obtained the degree of ‘Condensed BPT’ and/or at least three years from 2010 or until disposal of the Writ Petition. g) An ad interim order directing the respondents to continue the ‘Condensed BPT’ course until last student of the Diploma in Physiotherapy (DPT) have obtained the degree of ‘Condensed BPT’ and/or at least three years from 2010. h) Cost of and incidental cost to this application. i) Such order or further order or orders and/or direction or directions as may be deemed fit & necessary in the interest so of justice. The case in short required for the purpose of disposal of this application is etymologized below:- i) The petitioners passed the H.S. examination in Science stream with Physics, Chemistry and Biology and they got admitted to the Course of Diploma in Physiotherapy for a period of 2-Year Course with six months internship as provided under the provisions of The West Bengal University of Health Sciences Act, 2002. ii) After obtaining the Diploma in Physiotherapy, they are eligible for ‘Condensed BPT’ Course for a period of 2 years and after passing the said ‘Condensed BPT’ Course, they shall be treated as equivalent to Bachelor in Physiotherapy (henceforth shall be called ‘BPT’) and they are eligible to be admitted to the Master in Physiotherapy (henceforth shall be called ‘MPT’) Course. Then after passing successfully in the said Course, the students are eligible to the doctorate degree or high rank services. iii) Subsequently, the respondents opened another course of 4½ years called Bachelor in Physiotherapy (in short ‘BPT Course’) and after passing the said Course of BPT, they are eligible to MPT Course for two years and then two other higher courses, such as, Doctoral Degree or higher rank services. iii) Subsequently, the respondents opened another course of 4½ years called Bachelor in Physiotherapy (in short ‘BPT Course’) and after passing the said Course of BPT, they are eligible to MPT Course for two years and then two other higher courses, such as, Doctoral Degree or higher rank services. iv) The petitioners came to know that the ‘Condensed BPT’ Course would be stopped from the session 2010-11 and then they approached the respondents to continue the Course of ‘Condensed BPT’ running at Burdwan Medical College until entire number of DPT-holder candidates had completed the Course of ‘Condensed BPT’. But, they did not get any reply from the respondents. Even, the writ petitioner submitted the representation to the respondents and other concerned for continuation of the ‘Condensed BPT’ Course, but, no reply had been obtained from their end. v) In view of such decision of not continuing the ‘Condensed BPT’ Course from 201011, the students of the Diploma in Physiotherapy (hereinafter in short DPT Course) have no scope to study the Course of ‘Condensed BPT’ and as such, they are unable to make further studies for the MPT and Doctoral Degree Courses. vi) The petitioners have contended that the decision of the Academic Council, West Bengal University of Health Sciences for not continuing the ‘Condensed BPT’ Course and the decision of the ‘Board of Studies’, West Bengal University of Health Sciences dated November 6, 2009 for not continuation of the ‘Condensed BPT’ Course are bad in law, procedure and against the equity and natural justice. vii) So, this writ petition has been preferred by them. The respondent no.s 2 to 6 are contesting the said writ petition denying the material allegations raised in the writ petition contending, inter alia, that application is not maintainable in its present form. The petitioners have no cause of action to file the writ petition. The DPT Course and the ‘Condensed BPT’ Course were started purely on a temporary basis and now, a full-fledged degree Course in BPT having a duration of 4½ years has been started in 11 colleges in the State of West Bengal and as such, there are more than the desirable number of graduates in Physiotherapy within the State of West Bengal and for that reason, the bridging course, i.e., ‘Condensed BPT’ Course is not viable at all. The Academic Council of the said University, in exercise of its statutory powers has taken a decision to discontinue the ‘Condensed BPT’ Course from the session 2010-11 and this is a policy decision of the said University and so, such policy decision taken by the University cannot be scrutinized by this Hon’ble Court. As such, the said writ petition is liable to be dismissed. Now, the question is (i) whether the discontinuation of the ‘Condensed BPT’ Course by the said University from the academic session 2010-11 can be scrutinized by this Hon’ble Court, and (ii) whether the petitioners are entitled to get relief’s as prayed for. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the facts as recorded above are not in dispute. Under the provisions of the West Bengal University of Health Sciences Act, 2002, the DPT Course was started and the students of the DPT Course having successfully passed the said Course, could have been eligible to the ‘Condensed BPT’ Course and after passing such ‘Condensed BPT’ Course, they would have been treated as equivalent to BPT Course and they could have been eligible to MPT Course and then to make higher studies for Ph.D. and other high rank services as indicated in Annexure P- 7 at page no.61. Subsequently, a 4½-Year Course of BPT had been started and after passing such BPT Course, the students are eligible to MPT Course and then to make higher studies as indicated in Annexure P- 7 at page no.61. Then, the ‘Condensed BPT’ Course had been discontinued from the session 2010-11. The channels mentioned therein (at page no.61) are not in dispute. Thus, I find that the reasons for starting the BPT Course have already been explained in the affidavit-in-opposition filed by the answering respondents. So, for better management or skill in the BPT Course, appropriate measures could well be taken by the respondents, keeping in mind the demand of the modern days in specialization. Mr. R. Halder, learned Advocate appearing for the petitioners, has contended that the Academic Council cannot seal the fate of about 300 students studying in the DPT Course. So, for better management or skill in the BPT Course, appropriate measures could well be taken by the respondents, keeping in mind the demand of the modern days in specialization. Mr. R. Halder, learned Advocate appearing for the petitioners, has contended that the Academic Council cannot seal the fate of about 300 students studying in the DPT Course. He has also drawn my attention to the fact that as per Agenda No.5 of the resolution dated August 1, 2008 of the Academic Council, the same was accepted by the Executive Council and there was no indication that the said course was discontinued. So, the subsequent resolution passed in the year 2011 is nothing but a manipulation of the matter to obviate the proceedings under Section 340 of the Cr.P.C. On the other hand, Mr. Indranil Roy, learned Advocate appearing on behalf of the respondent no.s 2 to 6, has contended that the writ petitioners have no legal right to pray for such relief’s. The question of providing fund is involved in the matter of continuation of the said ‘Condensed BPT’ Course. Moreover, as recorded above, at present, many students are reading in the BPT Course and as such, skilled students are available for better management of the education as well as medical treatment of the matter. So, the bridge course is not required at all. Since the matter involved in the writ application is on the policy decision of the University, the entire domain over the matter remains with the University. The discontinuance of the ‘Condensed BPT’ Course cannot be described at all as arbitrary and in fact, no such case has been made out. Under the circumstances, the writ petition is not maintainable at all. In support of his contention, Mr. Roy has referred to the decision of All India Council for Technical Education v. Surinder Kumar Dhawan & ors. reported in (2009) 11 SCC 726 particularly the paragraph no.s 15 to 17, 31 & 32 and thus, he has submitted that the experts in the field of medical stream have the domain to take a policy decision and the students are not entitled to take such a decision. The experts of the medical stream have taken the resolution dated November 13, 2009 appearing at page no.58 of the writ petition. The experts of the medical stream have taken the resolution dated November 13, 2009 appearing at page no.58 of the writ petition. Under such circumstances, as per decision of All India Council for Technical Education (supra), the interference by High Court in academic/educational matters is not proper except where interpretation of a statutory provision or of law is involved. The Courts cannot, by their orders, create courses or continue courses or prescribe lower qualifications for admission. Thus, Mr. Roy has submitted that this application should be dismissed. In reply, Mr. Halder has contended that such policy decision was adopted subsequently, but, the petitioners filed appropriate application under the Right to Information Act, 2005 and from the information tendered by the respondents, there was no indication that such a policy decision had been adopted and it was missed in the policy decision dated August 1, 2008. It had been incorporated when the application under Section 340 of the Cr.P.C. had been filed in order to obviate the penalties that may be awarded to the concerned respondents. Mr. Roy has specifically contended that the discontinuation of the ‘Condensed BPT’ Course was in the Agenda of the Meeting dated August 1, 2008 of the Academic Council and the said matter was discussed to the effect that the ‘Condensed BPT’ Course would not be continued by the said University. But, unfortunately, it was not recorded in the Meeting held on August 1, 2008 due to inadvertence and this would appear from the subsequent letter dated March 15, 2011 issued by the Register, West Bengal University of Health Sciences to Professor P.K. Deb, Ex-Dean & Hon’ble Vice Chancellor, West Bengal University of Health Sciences. But, unfortunately, it was not recorded in the Meeting held on August 1, 2008 due to inadvertence and this would appear from the subsequent letter dated March 15, 2011 issued by the Register, West Bengal University of Health Sciences to Professor P.K. Deb, Ex-Dean & Hon’ble Vice Chancellor, West Bengal University of Health Sciences. In persuasion of such letter, the Ex-Dean, Hon’ble Vice Chancellor, West Bengal University of Health Sciences had confirmed that the Agenda was discussed and resolved for discontinuation of the Course in the Academic Council, this would appear from Annexure R-3 and R-4 at page no.s 21 & 22 of the affidavit-in-opposition of the respondent no.s 2 to 6 to the application under Section 340 of the Cr.P.C. When the fact of missing on discontinuation of the Course in question was detected, I find that by a letter dated March 28, 2011, the Deputy Registrar & SPIO, West Bengal University of Health Sciences informed the petitioners of the fact and this will reveal from the Annexure R-1 at page no.15 of the affidavit-in opposition to the supplementary affidavit filed by the writ petitioners and this letter clearly indicates the amendment of the syllabus of BPT and MPT rules, regulations and courses, etc. Such fact has been further corroborated by the proceeding of the Meeting dated July 8, 2011 of the Executive Council of the West Bengal University of Health Sciences vide Annexure R-6 at page no.23 (relevant page no.26). Mr. Halder has also contended that this is nothing but to exonerate the proceedings under Section 340 of the Cr.P.C. Though such objection was raised vehemently by Mr. Halder, I find that it is the case of the petitioners that the discontinuation of the ‘Condensed BPT’ Course had been done from the session 2010-11. So, it is also the case of the petitioners and that is why the writ application has been filed for the relief’s already stated. So, the contents of the affidavit-in-opposition filed by the respondents to the application under Section 340 of the Cr.P.C. are corroborated by the Statement of the writ petitioners in their writ petition. So, I do not find any justified ground to discard the statements of the high official of the respondents as indicated above. So, the contents of the affidavit-in-opposition filed by the respondents to the application under Section 340 of the Cr.P.C. are corroborated by the Statement of the writ petitioners in their writ petition. So, I do not find any justified ground to discard the statements of the high official of the respondents as indicated above. Thus, I am of the view that the contention of the respondents is supported by the materials produced by them as Annexure to the affidavit-in-opposition and that the contention of the petitioners that those documents have been fabricated cannot be accepted. Keeping the prayers sought for in the writ petition and the above facts and circumstances, I am of the view that the steps taken by the respondents are nothing but the culmination of a policy decision adopted by the respondents. Although, the said ‘Condensed BPT’ Course had been discontinued from the session 2010-11, I find that the writ petitioners were at liberty to adopt the alternate Course of the BPT of 4½ years to proceed further for MPT and other higher studies. Accordingly, in my view, the actions of the respondents in respect of the matter in issue cannot be said to be arbitrary and there is no violation of any fundamental right guaranteed by the Constitution of India on the part of the respondents. Actions complained of by the petitioners against the respondents, in my view, cannot be described as violative of Article 14 of the Constitution of India. Anyway, this Court is to consider the present situation of the matter in issue before this Bench and I am of the view that the prayers as made in the writ petition are nothing but against the policy decision of the respondents. Under the circumstances, the decision of All India Council for Technical Education (supra) will be fully applicable in the instant case and for that reason, I am of the view that the petitioners are not entitled to get any of the prayers as sought for in the writ application. The securitizations of the discontinuation of the ‘Condensed BPT’ Course is beyond the periphery of the Article 226 of the Constitution of India. It is also held that the writ petition is not maintainable at all. In the result, the writ application is dismissed. There will be no order as to costs. The securitizations of the discontinuation of the ‘Condensed BPT’ Course is beyond the periphery of the Article 226 of the Constitution of India. It is also held that the writ petition is not maintainable at all. In the result, the writ application is dismissed. There will be no order as to costs. C.A.N. No.2363 of 2011:- This C.A.N. application is under Section 340 of the Cr.P.C. praying for prosecution for committing perjury to this Hon’ble Court by the respondents. On the selfsame reasoning as in the W.P. No.11292 (W) of 2010, I am of the view that no case has been made out for granting prayer of the petitioners to prosecute the respondents. So, this C.A.N. application is also liable to be dismissed and accordingly, the same is dismissed. Considering the circumstances, there will be no order as to costs. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.