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2020 DIGILAW 1115 (MP)

KIRTI AZAD DWIVEDI v. STATE OF M. P.

2020-10-13

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

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ORDER/JUDGMENT – Shri Jitendra Sharma, learned counsel for the petitioner. Shri MPS Raghuvanshi, learned Additional Advocate General for State. Smt. Nidhi Patankar, learned counsel for respondent No. 3/Dean, G. R. Medical College, Gwalior. Learned counsel for the rival parties are heard through video conferencing. The present petition under Article 226 of the Constitution has been filed by a student of Post-graduation Course in Master of Surgery (Ophthalmology) which he completed at G. R. Medical College, Gwalior pursuant to his admission through NET held in 2015. 2. Grievance of petitioner is that despite having completed the said course and having appeared in IIIrd year (final) examination of the said Post-graduation course on the strength of interim order passed by this Court in the present case on 11-5-2020, result of the said examination has not been declared. 2.1 Thus petition has been filed seeking following reliefs : – “i. That, the order impugned annexure P/1 may kindly be quashed to the extent of petitioner. ii. That, accept the form of petitioner for the purpose of Ophthalmology (3rd Year) to be conducted by Medical University Jabalpur. They be further directed to permit the petitioner to undertake the examination of Ophthalmology (III Year). iii. That, the respondent be further directed to declare the result of petitioner. Any other relief which this Hon’ble Court deems fit in the facts and circumstances of the case may also kindly be granted.” 2.2 Brief facts are that petitioner after having completed his MBBS course from King George’s Medical University U. P. (Lucknow) in 2014 vide P/2, completed his internship in 2015 vide P/3. Thereafter petitioner appeared in NEET for seeking admission to PG course in Medicine. After being successful in the said examination petitioner was allotted seat in Ophthalmology at G. R. Medical College, Gwalior. Despite having completed the said PG course petitioner was not permitted to appear in the final year examination. Instead, a show cause notice vide P/6 dated 21-2-2019 was served upon him asking him to show cause as to why petitioner failed to inform the college about his arrest on 25-10-2018. The petitioner responded to the said show-cause vide P/7 dated 26-2-2019 that he was arrested by CBI on 25-10-2018 on false implication. Whereafter he remained in jail for about 6 days as a result of which petitioner lost his mental balance and thus could not inform the college about his arrest. The petitioner responded to the said show-cause vide P/7 dated 26-2-2019 that he was arrested by CBI on 25-10-2018 on false implication. Whereafter he remained in jail for about 6 days as a result of which petitioner lost his mental balance and thus could not inform the college about his arrest. 2.3 Whereafter vide impugned letter 14-4-2019 P/1 respondent No. 3-college informed that since criminal prosecution against petitioner is pending consideration before CBI Court, petitioner can be allowed to appear in the examination only after CBI Court directs in that regard. 2.4 Return filed by respondents, in particular respondent No. 3-College, which is the contesting respondent, reveals that the only ground assigned for not allowing petitioner to appear in the final year examination of the said PG course is the fact of his arrest in connection with criminal case bearing crime No. 728/2009 where he was accused of being a Solver who appeared in NEET in place of the candidate. Along with return, respondent No. 3 has also filed relevant rules called Madhya Pradesh Government Autonomous Medical and Dental Post Graduate Courses (Degree/ Diploma) Admission Rules, 2016 (for brevity 2016 Rules) to contend that if a student is found guilty of misconduct, indiscipline and unauthorized absence beyond particular period of time, disciplinary action would be taken against him including expulsion from the college. Relevant Rule 5 of the 2016 Rules is reproduced below for ready reference and convenience : – 2.5 A bare perusal of aforesaid Rule 5 reveals that expulsion/rustication can be made on 2 grounds. The first is of misconduct and indiscipline, while second is of unauthorized absence for a period of 45 days or more. The rule provides that whoever is found guilty of misconduct, indiscipline and unauthorized absence for a period of 45 days or more can suffer expulsion. Meaning thereby that factum of indiscipline, misconduct and absence being unauthorized has to be established, which can be done only by holding an inquiry which satisfies the bare essentials of the concept of reasonable opportunity. 3. The present is not a case of expulsion as no order of expulsion or rustication has either been challenged by petitioner or brought forth by respondent No. 3. 3. The present is not a case of expulsion as no order of expulsion or rustication has either been challenged by petitioner or brought forth by respondent No. 3. This is a pure and simple case where admission of petitioner to the PG course is intact but he is not being allowed to appear in final year examination of the said course on account of pendency of criminal prosecution which is under adjudication before the Court of competent criminal jurisdiction where guilt of petitioner is yet to be established. More so, Dean of the respondent No. 3-college has not conducted any inquiry contemplated by Rule 5 of the 2016 Rules to come to a finding of indiscipline, misconduct or unauthorized absence for 45 days or more. Thus, the case of petitioner does not fall within the rigors of Rule 5 of 2016 Rules. 3.1 Pertinently, this Court during pendency of this petition by interim order passed on 11-5-2020 permitted petitioner to appear in the IIIrd year (Final) examination commencing from 2-7-2020 and this Court is given to understand that petitioner had already appeared in the said examination but his result has not been declared in view of prohibition imposed by the aforesaid interim order dated 11-5-2020. 4. In view of above and the fact of subsequent development during pendency of this case of petitioner having already appeared in IIIrd year (final) examination of the said course, this Court deems it appropriate to dispose of this petition with following directions : – (i) Result of petitioner of IIIrd year (final) examination is directed to be declared. (ii) The aforesaid declaration of result and all its consequences that follow and the steps that petitioner takes pursuant to the result of the said examination shall remain subject to final outcome of criminal prosecution pending adjudication before the CBI Court at Gwalior. No cost.