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2019 DIGILAW 797 (GAU)

Uday Buragohain v. State of Assam

2019-06-27

A.K.GOSWAMI, AJIT BORTHAKUR

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JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. K.P. Pathak, learned counsel for the appellant and Mr. D. Saikia, learned Senior counsel, assisted by Mr. B. Gogoi, learned Standing Counsel, Department of Health and Family Welfare, Assam. 2. This intra-Court appeal is preferred against the judgment and order, dated 28.8.2018, passed by the learned Single Judge in W.P.(C) No. 4290/2018 closing the writ petition filed by the appellant. 3. A perusal of the prayers made in the writ petition goes to show that the writ petition was filed praying, inter alia, for a writ of mandamus directing the respondents to postpone the counselling for selection of candidates for admission into 1st year MBBS/BDS courses in the medical and dental colleges of Assam after the declaration of the Higher Secondary Level examination conducted by the Assam State Open School ('ASOS' for short). The appellant further prayed for issuing a writ of certiorari to set aside/quash the impugned notice, dated 22.06.2018, issued by the respondent No. 2, whereby counselling has been announced for selection of candidates for admission into the aforesaid courses as well as the writ of mandamus directing the respondent authorities to consider his case solely on the basis of his rank in the state merit list of the NEET(UG), 2018 without any reliance upon Rule 3(1)(c) of the Medical Colleges and Dental Colleges of Assam (Regulation of Admission into 1st year MBBS/BDS courses) Rules, 2017 ('Rules of 2017' for short). Though the writ petition was filed with the prayers as noticed above, during the consideration of the said writ petition, an issue had arisen as to whether the Assam State Open Schooling Examination undertaken by the petitioner would meet the eligibility requirement of Rule 3(1)(c) of the Rules of 2017 and the learned Single Judge concluded that the petitioner does not fulfill the eligibility requirement of passing of qualifying examination of two year from within the State of Assam. In the background of the above finding, the present writ appeal is filed, amongst others, challenging the aforesaid conclusion of the learned Single Judge. 4. In the background of the above finding, the present writ appeal is filed, amongst others, challenging the aforesaid conclusion of the learned Single Judge. 4. For better appreciation of the whole matter, the aforesaid Rule 3(1)(c) of the Rules of 2017 is extracted here in below; "(c) The candidate must study in all classes from Class-VII to XII in the State of Assam and must pass the Qualifying Examination or its equivalent examination from any Institute situated in the State of Assam. (Certificate at Annexure-II in Application Form at Schedule-I of these rules must be submitted if a candidate is called for counselling)." 5. The above rule stipulates that one of the eligibility criteria for admission into the MBBS/BDS courses in the Medical Colleges/Dental Colleges of Assam is that the candidate must prosecute studies from class-VII to XII in the State of Assam and must have passed the qualifying examination or its equivalent examination from any institute situated in the State of Assam. It is stated at the Bar that the constitutional validity of the aforementioned Rule 3(1)(c) was upheld by a Division Bench of this Court and followed by the Hon'ble Supreme Court. 6. Be it mentioned that the petitioner is a member of the Ahom community which is an "Other Backward Class". The petitioner completed his studies upto Class-X from within Assam and had studied from Class-XI to Class-XII outside the State. The petitioner passed All India Senior School Certificate Examination, 2016 and mark sheet to that effect was issued on 21.05.2016. In the year 2017, he had enrolled himself in classes conducted by the Assam State Open School under the aegis of Assam Higher Secondary Education Council ('AHSEC' for short). He appeared in the Higher Secondary Level Examination, 2018 under the ASOS, which commenced from 04.06.2018 and he passed the said examination for which mark sheet was issued on 15.09.2018. 7. The appellant appeared in the National Eligibility-cum-Entrance Test ('NEET' for short) for admission in the MBBS/BDS courses in Assam for the academic year 2018-19 and secured the State rank of 393. However, in order to overcome the handicap imposed by Rule 3(1)(c) of the Rules of 2017, the appellant enrolled himself in the Higher Secondary course conducted by the ASOS under the aegis of the AHSEC and accordingly, appeared in the Higher Secondary Level Examination, which commenced from 4.6.18. 8. However, in order to overcome the handicap imposed by Rule 3(1)(c) of the Rules of 2017, the appellant enrolled himself in the Higher Secondary course conducted by the ASOS under the aegis of the AHSEC and accordingly, appeared in the Higher Secondary Level Examination, which commenced from 4.6.18. 8. In the admission notice for NEET (UG), 2018 under eligibility criteria at Sl. No. VIII, it was indicated that candidates who had passed 10+2 from Open Schools or as private candidate shall not be eligible to appear for the test. It was also indicated that study of Biology/Biotechnology as an additional subject at 10+2 level shall also not be entertained. 9. On the basis of the contentions advanced, the learned Single Judge had examined the issue as to whether the qualifying examination undertaken by the petitioner being the Assam State Open Schooling Examination may be taken into consideration as a valid certificate of a two year course of 10+2 for the purpose of admission in MBBS/BDS courses in Assam. The learned Single Judge answered the issue in the negative inasmuch as, the petitioner did not fulfill the eligibility requirements of qualifying examination of two years from within the State of Assam or the requirements of Rule 3(1)(c) of the Rules of 2017. 10. Mr. K.P. Pathak, learned counsel for the appellant, submitted that the NEET (UG), 2018 Admission Notice contained a stipulation that the candidates, who have completed their 10+2 course from an Open School would not be eligible to appear for the NEET examination. A Division Bench of Delhi High Court while disposing a batch of writ petitions challenging the aforesaid bar struck down the bar on the eligibility criteria holding the said Rule to be discriminatory and unconstitutional and directed to declare the NEET results of candidates, who obtained certificate of 10 + 2 from a recognised Open School along with the other candidates, who prosecuted the course as regular candidate vide the judgment and order, dated 11.5.18, passed in W.P.(C) No. 1813/2018 etc. 11. Mr. Pathak further contended that the rules prescribed for appearing in the Higher Secondary Level certificate examination is that a student must have a gap of at least 2 years from the date of matriculation or passing of Class-X before being allowed to appear in the said examination to meet the requirements of a 10+2 certificate. 12. According to Mr. Mr. Pathak further contended that the rules prescribed for appearing in the Higher Secondary Level certificate examination is that a student must have a gap of at least 2 years from the date of matriculation or passing of Class-X before being allowed to appear in the said examination to meet the requirements of a 10+2 certificate. 12. According to Mr. Pathak, the learned counsel for the appellant, the appellant had passed his Class-X examination in the year, 2013 and enrolled his name in the ASOS in 2017, after lapse of more than 4 years and as such, it cannot be said that the appellant has not fulfilled the requirements for obtaining a recognised 10+2 pass certificate for admission in the medical courses in the State of Assam and in view of the said Delhi High Court judgment as well as the representation made in the ASOS that the certificate is equivalent to a regular Higher Secondary Level certificate, the finding of the learned Single Judge is unsustainable in law. 13. Per contra, Mr. D. Saikia, learned Senior counsel appearing for the Department of Health and Family Welfare, Assam, contended that the appellant does not satisfy any of the categories of persons eligible for the alternative schooling system under the mission of the ASOS and also does not satisfy the requirement of gap of 2 years from the year of passing HSLC or Class 10th Examination and to get the qualifying certificate as during the gap period, he prosecuted 10+2 course in Bengaluru, which further does not satisfy the requirements of Rule 3(1)(c) of the Rules of 2017. Mr. Saikia further contended that the Delhi High Court judgment categorically emphasized on regular course of 10+2 with practical tests in Physics, Chemistry and Biology to maintain an uniform standard in the course. 14. We have appreciated the arguments advanced by the learned counsel appearing for both sides and considered the materials on record. 15. A perusal of the judgment of the Delhi High Court on which reliance was placed by Mr. 14. We have appreciated the arguments advanced by the learned counsel appearing for both sides and considered the materials on record. 15. A perusal of the judgment of the Delhi High Court on which reliance was placed by Mr. Pathak goes to show that the Delhi High Court had noted on the basis of curricula in different subjects that it is mandatory that each student should have been enrolled for a period of two years and each student must undergo the entire course spread over this period of two years, which includes a minimum of 30 face to face programmes (personal contact programmes) per session per subject for theory and five additional sessions for subjects having practical. It was noted that National Institute of Open Schooling conducts examination for Class-XI and XII courses and that a student/candidate cannot appear in 10+2 examination unless he has been enrolled for two years with the National Institute of Open Schooling/Open Boards. On perusal of the materials on record, the Delhi High Court, amongst others, struck down the provision disqualifying recognized Open School Boards candidates as being unconstitutional and it was further provided that students/candidates, who had done Class-XII from National Institute of Open Schooling or recognized Open School State Boards, would not be treated as per se disqualified for selection and appearance in NEET examination. 16. The mission of Assam State Open School is to provide education to all with special concern for girls and women, unemployed/unskilled/under-qualified youths, working men and women, specially abled learners, SC and ST and other disadvantage persons, who, because of one or other reason could not continue their education with the formal system. A fresh HSLC or Class-X passed out learner can also take admission in the course. It is, however, provided that there must be a two year gap from the year of passing of HSLC or Class-X examination to appear in all the papers in the Open Schooling course and to get the qualifying certificate. A learner can avail flexible system of examination which is to be conducted twice in a year. If a candidate does not have the requisite gap of two years, he/she can appear in a maximum 4 subjects only in the examination and that he or she will be eligible to appear in the remaining subjects only on completion of two years gap. If a candidate does not have the requisite gap of two years, he/she can appear in a maximum 4 subjects only in the examination and that he or she will be eligible to appear in the remaining subjects only on completion of two years gap. It is on the basis of the above, submission is advanced by Mr. Pathak that there being more than two years gap from passing of the HSLC examination, it is permissible to appear in all the papers in the Higher Secondary Level Examination, even though, period from date of enrolment in the course is less than two years. 17. It may be that the essential gap to appear in all subjects in the Higher Secondary Level examination is two years from the date of passing year of HSLC. What is undisputed is that the petitioner had completed +2 Higher Secondary examination outside the State of Assam. Having regard to the prescription in Rule 3(1)(c) of the Rules of 2017, the petitioner was clearly ineligible as he had not passed qualifying examination or its equivalent examination from any institute situated in the State of Assam as also having not studied in all classes from Class-VIII to Class-XII in the State of Assam. 18. It is ostensibly to meet the requirement of Rule 3(1)(c), the petitioner had enrolled himself in the ASOS to appear in Higher Secondary Level Examination conducted by AHSEC. He had enrolled in the year 2017 and obtained certificate of Higher Secondary Level Examination in the year 2018. Thus, within a period of one year he had passed the Higher Secondary Level Examination. 19. It may be permissible for the petitioner to pass Higher Secondary Level Examination under the ASOS within one year. But the question is whether such passing of Higher Secondary Level Examination would fulfill the requirement of Rule 3(1)(c), which provision the petitioner has to fulfill. A close examination of Rule 3(1)(c) makes it abundantly clear that a candidate must study in all classes from Class-VII to XII in the State of Assam. Evidently Class-XI and XII comprise a period of two years. The petitioner had admittedly studied from Class-VII to X within the State of Assam. A close examination of Rule 3(1)(c) makes it abundantly clear that a candidate must study in all classes from Class-VII to XII in the State of Assam. Evidently Class-XI and XII comprise a period of two years. The petitioner had admittedly studied from Class-VII to X within the State of Assam. When the petitioner had passed out Higher Secondary Level Examination from ASOS within a span of one year from the date of enrolment, it cannot be countenanced that the petitioner had studied Class-XI and XII in the State of Assam. Even assuming that he had passed the qualifying examination of Higher Secondary Level Examination from the State of Assam from ASOS, the other requirement of studying from Class-XI and XII in the State of Assam had remained unfulfilled. 20. As alluded above, the appellant having not fulfilled the requirements of Rule 3(1)(c) of the existing Rules of 2017 for admission into MBBS/BDS courses in Assam, under Assam State quota, we are of the opinion that no interference is called for with the conclusion arrived at by the learned Single Judge. 21. Accordingly, the appeal stands dismissed.