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Madhya Pradesh High Court · body

2019 DIGILAW 150 (MP)

Iram Khan v. Barkatullah University

2019-02-15

R.S.JHA, SANJAY DWIVEDI

body2019
ORDER : Shri N. S. Ruprah, learned counsel for the petitioner. Shri Himanshu Mishra, learned Government Advocate for the respondents/State. Shri Shailendra Mishra, learned counsel for the respondent No. 1/University. Shri A. P. Shroti, learned counsel for the respondent Nos. 2 and 3/College. Smt. Indira Nair, learned Senior Counsel with Ms. Ritika Chouhan for the respondent/MCI. 2. Heard. 3. This petition has been filed by the petitioner being aggrieved by order dated 28-10-2016 passed by the respondent University, whereby the petitioner has been prohibited from appearing in the 1st Professional Examination of the MBBS course. 4. The facts, as narrated by the petitioner in the petition, are that the petitioner after being successful in the competitive examination obtained admission in the respondent No. 2 College in the MBBS course in August, 2010. It is submitted that immediately after admission, the petitioner got married and, therefore, could not participate in the examination or continue with her studies. 5. It is stated that subsequently the petitioner approached the respondent College in the year 2015, whereupon the petitioner was again admitted and permitted to pursue and continue her studies by the College and a tuition fee of Rs.5,39,550/- and an another amount of Rs.3,84,700/- i.e. a total of Rs.9,24,250/- was also deposited by the petitioner in that regard. 6. It is submitted that subsequently, when the petitioner sought to appear in the 1st Professional Examination, the impugned order dated 28-10-2016 has been passed by the respondent University prohibiting the petitioner from participating in the examination. 7. The learned counsel appearing for the petitioner submits that the petitioner could not participate in the examination on account of her marriage, which took place on 2-7-2011. It is submitted that, thereafter, when the petitioner approached the respondent No. 2 College, she was granted admission and permitted to pursue her course and attend the classes. It is submitted that it is only at the time when the petitioner sought to appear in the examination that the respondent University passed the impugned order, which is contrary to the law, as the petitioner having been duly admitted in the course, is entitled to continue and pursue the same and appear in the examination. 8. It is submitted that it is only at the time when the petitioner sought to appear in the examination that the respondent University passed the impugned order, which is contrary to the law, as the petitioner having been duly admitted in the course, is entitled to continue and pursue the same and appear in the examination. 8. It is submitted that the respondent University has wrongly denied participation in the examination to the petitioner on the ground that the petitioner had abandoned the course and has been permitted to be re-admitted without the necessary permission from the MCI and the Director Medical Education. 9. It is submitted that the petitioner once having been admitted in the course, is entitled to complete the same, more so, as the petitioner being a woman and having got married, was also simultaneously required to appear to her other duties as a wife. 10. The petition is opposed by the learned counsel for the respondent University on the strength of Clause 1(ii) and Clause 9(2) of Ordinance No. 6, which prohibits an ex-student from being admitted to any examination in the faculty of Medicine or Ayurveda. 11. The learned Senior Counsel appearing for the respondent MCI submits that the petitioner cannot be permitted to participate in the examination on account of the huge gap of 5 years during which the petitioner did not pursue her studies in view of the orders passed by this Court in the cases of Neeraj Suman vs. State of M. P. and others, W. P. No. 18114/2016 dated 14-12-2016 and Dharmendra Pulaiya vs. State of M. P. and others, W. P. No. 1109/2017 dated 8-11-2017. 12. The learned Government Advocate appearing for the State has opposed the relief prayed for by the petitioner on the strength of Madhya Pradesh Private Medical and Dental under Graduate Courses Entrance Examination Rules, 2010 and 2015, (hereinafter referred to as ‘the Rules’) specifically Clause 3.3 contained therein. 13. 12. The learned Government Advocate appearing for the State has opposed the relief prayed for by the petitioner on the strength of Madhya Pradesh Private Medical and Dental under Graduate Courses Entrance Examination Rules, 2010 and 2015, (hereinafter referred to as ‘the Rules’) specifically Clause 3.3 contained therein. 13. The learned counsel appearing for the respondent No. 2 College per contra has supported the stand of the petitioner and has submitted that as the petitioner had been granted admission in the year 2010 in accordance with law but she could not appear in the examination or pursue her course on account of her marriage and as there is no prohibition for permitting such a student to continue her studies even after a lapse of 5 years, therefore, the College granted admission to the petitioner and permitted her to pursue the MBBS course. 14. The learned counsel for the respondent College in support of his submissions, has relied upon Regulation 7(3) of the Medical Council of India, Regulations on Graduate Medical Education Regulations, 1997 as amended upto May, 2018 relating to an amendment made in Regulation 7(3), deleting the cap of number of chances to pass the Phase-I examination of the MBBS course. 15. We have heard the learned counsel for the parties at length. 16. From a perusal of the facts mentioned by the petitioner as well as the respondents and the provisions of the Rules and Regulations that have been placed before us, it is an undisputed fact that the petitioner obtained admission in the respondent No. 2 College in the year 2010 and attended the classes for 11 months and thereafter abandoned the same. It is also an admitted fact that the petitioner, thereafter, approached the respondent No. 2 College in December, 2015 and was granted admission by the College on 23-12-2015, on the petitioner depositing a sum of Rs.5,39,550/- towards tuition fee but, the petitioner was not permitted to appear in the examination on account of the impugned order passed by the respondent University on 28-10-2016. 17. 17. In the circumstances, it is apparent that the petitioner, after having admitted in the MBBS course, unauthorizedly abandoned the course after 11 months and in such circumstances, was liable to the adverse consequences mentioned in Rule 3.3 of the Rules, framed by the State Government in exercise of powers under the provisions of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk ka Nirdharan) Adhiniyam, 2007 which prohibits unauthorized absence and prescribes penal action for the same including cancellation of admission. 18. Apparently and admittedly, no application for leave or absence was ever filed by the petitioner nor was any information in this regard sent by the petitioner or the College to the authorities of the State i.e. Director Medical Education or any other authority. It is also apparent from the facts on record that in December, 2015, the petitioner directly approached the College and the College, on its own, granted admission to the petitioner and permitted her to continue the course without seeking any permission or approval from the Director Medical Education or any other authority regarding the unauthorized absence. 19. It is also apparent from a perusal of Ordinance No. 6 that has been placed before this Court that the petitioner falls within the definition of ‘Ex- Student’ as mentioned in Clause-1 (ii) which has been defined to mean ‘a 2019 (3) M.P.L.J.] IRAM KHAN vs. BARKATULLAH UNIVERSITY 481 candidate or a person who has been admitted to a course but was not able to appear in the examination though admission card was correctly issued to him/her seeking re-admission again to the said examination’. Clause 9(2) of the Ordinance No. 6 further provides that no person shall be admitted as an ex-student at any examination in the Faculty of Medicine or Ayurveda. 20. In the circumstances, as it is evident that the petitioner after having obtained admission, abandoned the course after 11 months and remained unauthorizedly absent for a long lapse of nearly 5 years and therefore, could not have been granted re-admission or permitted to continue to pursue the same course by the College at its own level in view of the provisions of Ordinance No. 6 of the University as well as the provisions of the Rules of 2010 and, therefore, no fault can be found with the impugned order dated 28-10-2016 (Annexure P/1) passed by the University. 21. 21. It needs no emphasis to state that a professional course like MBBS, is a course that has to be seriously pursued and continuously undertaken so that the person who passes the examination is able to justify the professional qualification undertaken by the person and perform the onerous duty of a doctor and treat patients. This course cannot be treated as any other general course and in such circumstances, a person who obtains admission in such a course, cannot be permitted to abandon the course as and when they feel that they are entitled to do so and rejoin the same at their leisure. 22. We are also constrained to observe that colleges are controlled by the MCI Regulations, the Rules framed by the State Government as well as the Ordinances framed by the University and a particular student-teacher ratio has been fixed for each batch of students, which is mandatory and has to be strictly followed. No institution can either permit admission or violate the student teacher ratio on its own, as has been done in the instant case. 23. Though the learned counsel for the respondent No. 2 College has emphatically stated that the petitioner was not granted re-admission but was only permitted to rejoin the course after a lapse of 5 years, we have heard the aforesaid submission only to reject it at the very threshold, as the respondent College could not have undertaken any such exercise on its own without seeking approval or permission of the Director Medical Education in terms of the provisions of Rules of 2010 and the Ordinance No. 6 of the University. Such an act on the part of the college is also impermissible as it has resulted in increasing the number of students in the batch beyond the sanctioned seats and violated the student-teacher ration statutorily prescribed by the MCI regulations. 24. The petitioner could not have been granted admission by the respondent No. 2 College on its own by ignoring the student-teacher ratio, the Rules of 2010 or the University Regulations without having first obtained approval and permission from the Director Medical Education or the University concerned and in such circumstances, we do not find any merit in the petition, which is accordingly dismissed. 25. As far as the prayer of the learned counsel for the petitioner for refund of fees, etc. 25. As far as the prayer of the learned counsel for the petitioner for refund of fees, etc. is concerned, we are of the considered opinion that we need not go into the aforesaid aspect in view of the clear provisions of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk ka Nirdharan) Adhiniyam, 2007, where under the petitioner has a remedy for approaching the Fee Regulatory Committee for redressal of such a grievance. Accordingly, the petitioner is granted liberty to do so. 26. With the aforesaid observation/liberty, the petition filed by the petitioner stands dismissed. 27. Certified copy as per rules. Petition dismissed.