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MUNISH KUMAR TALWAR versus THE VICE CHANCELLOR, BABA FARID UNIVERSI

High Court of Punjab and Haryana, Chandigarh

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Munish Kumar Talwar v. The Vice Chancellor, Baba Farid Universi - CWP-6672-2005 [2006] RD-P&H 1120 (23 February 2006)

Civil Writ Petition N o.6672 of 2005.

In the High Court of Punjab and Haryana at Chandigarh.

Date of Decision:-

Munish Kumar Talwar

...Petitioner.

Versus

The Vice Chancellor, Baba Farid University of Health Sciences, Faridkot and others.

...

Coram: Hon'ble Mr. Justice S.N. Aggarwal.

...

Present: Mr.B.L.Gupta Advocate for the petitioner.

Mr.Atul Nehra Advocate for respondent Nos.1 and 2.

...

S. N. Aggarwal, J.

The petitioner passed +2 examination in 1999. He appeared in Punjab Medical Entrance Examination (in short PMET) conducted by Guru Nanak Dev University, Amritsar in June,2000. He appeared in Civil Writ Petition N o.6672 of 2005.

the first counselling held in July,2000 but could not succeed. However, he was selected for admission to BAMS Course in the second counselling held in January,2001 and got admission in Guru Nanak Ayurvedic Medical College & Hospital, Muktsar.

The classes in the main batch of BAMS commenced with effect from August/September,2000 but for the students including petitioner admitted in the second counselling i.e. supplementary batch the classes commenced in January,2001. The petitioner appeared in the first professional examination conducted by Baba Farid University of Health Sciences in May/June,2002 and cleared all the papers. He appeared in the second professional examination held in November/December,2003 but got re-appear in two papers i.e.(i) Rog Vigyan and (ii) Dravya Guna. As per the provisions of the University Ordinance, the petitioner could qualify these re-appear papers in six consecutive chances but at the same time, he could join the classes of third professional year. However, under the Rules, he was debarred to sit in the third professional examination till he cleared all the re-appear papers of previous years.

The petitioner re-appeared in both the re-appear papers of second professional examination in May/June, 2004 but qualified only Civil Writ Petition N o.6672 of 2005.

in one paper i.e.Draya Guna. He could not clear the second paper of re- appear namely Rog Vigyan. He again undertook the re-appear examination of this paper in November/December,2004 but could not succeed. He again appeared to qualify this paper of Rog Vigyan in April/May,2005 and cleared the said paper.

In January. 2001, when the petitioner got admission, the duration of first professional course was 18 months so also for the second professional course but for the third profession course, the duration was 24 months and thereafter six months were allocated for internship. Calculated with this schedule, the final examination of third professional course was to take place in November/December,2005.

However, Ordinance was amended by the Board of Management in its meeting held on 5.12.2001. As a result of this amendment, the duration of third professional course was changed from 24 months to 18 months and the period of internship was increased from six months to one year.

Therefore, the final examination of third professional course came to be held in April/May,2005.

Since the petitioner had not qualified the re-appear paper of second professional examination till April/May,2005, he faced the difficulty in appearing in the third professional examination in Civil Writ Petition N o.6672 of 2005.

April/May,2005 as the University rules mandated that a candidate should have no back log of re-appear papers of previous years before he is permitted to sit in the third professional examination in April/May,2005. Since the petitioner was already having re-appear of second professional examination on his credit, therefore, he was debarred from appearing in the examination of third professional course. Hence, he filed the present writ petition challenging the amendment.

This Court vide interim order dated 10.5.2005 permitted the petitioner provisionally to appear in the third professional BAMS examination held in May, 2005 by passing the following order:- "In view of the above, we consider it just and appropriate to direct the respondents to permit the petitioner to appear in the 3rd

professional BAMS examination commencing in May,2005, provisionally. The result of the petitioner shall not be declared. It shall be retained in a sealed cover. The result of the petitioner shall be declared only after the passing of an express order by this Court. It is also clarified, that no equitable rights will flow to the petitioner merely on account of the fact, that he has been permitted to appear in Civil Writ Petition N o.6672 of 2005.

the 3rd

professional BAMS examination of the course provisionally. The result of the petitioner shall be subject to the final decision of this case."

Since the result of the petitioner was not declared, therefore, he made a prayer to this Court to get declared his result and further that if he failed, then he may be permitted to re-appear in the third professional examination re-appear paper. The following order was passed by this Court on 17.11.2005:-

"The petitioner is a student of third Professional BAMS Course. In the application, it has been averred that the re- appear examination for the afore-mentioned course is commencing on 18.11.2005. Learned counsel for the petitioner submits that the result of the third Professional BAMS examination, which he undertook in May-June 2005 under the orders of this Court, be declared and in case he has got re-appear in any papers, he be permitted to sit in the re- appear examination,if any.

As the petitioner has already appeared in the BAMS examination which was held in May-June 2005, therefore, it is considered just and appropriate to direct Civil Writ Petition N o.6672 of 2005.

respondent No.1 to declare the result of the third Professional BAMS examination of the petitioner provisionally. In case, the petitioner has got re-appear in any of the papers, then he shall be allowed to sit in the re-appear examination. It is made clear that the declaration of the result of the petitioner shall be provisional and will not create any equitable right in favour of the petitioner." It is, therefore, clear that by interim orders, the petitioner has appeared in the third professional examination in April/May,2005 and has also appeared in the re-appear paper of third professional course in December,2005.

The submission of the learned counsel for the petitioner was that the petitioner has already appeared in the third professional examination. He has also appeared in re-appear of third professional examination and now this Court may be pleased to direct the University to declare the result of the petitioner relating to the third professional examination,as the petitioner has already passed first and second professional course examinations. It was further submitted that the petitioner is willing to undergo internship for one year as per the amended Ordinance.

Civil Writ Petition N o.6672 of 2005.

This submission was, however, controverted by the learned counsel for the petitioner. It was submitted that the petitioner has appeared in the third professional course under the Court orders whereas he was not eligible to do so in the third professional examination held in April/May,2005. Under the University rules, only that candidate could sit in the said examination who had passed all the papers of first and second professional examinations and had no back log of re-appear papers at his credit. Admittedly, the petitioner had the back log of one re-appear paper of second professional examination.

Therefore, admittedly, he was not eligible. Since the petitioner was not eligible to sit in the third professional examination, so his result cannot be declared and the petitioner cannot be permitted to pass the said professional examination in violation of the University rules.

At this stage, learned counsel for the petitioner submitted that amendment was made by the University in the Ordinance after the petitioner got admission in the BAMS. To recapitulate, the petitioner got admission in BAMS Course in January,2001 and at that time the duration of third professional examination was 24 months and accordingly the third professional examination was to take place in November/December,2005. At that time the petitioner was eligible to sit Civil Writ Petition N o.6672 of 2005.

in the third professional examination because he had already passed the last re-appear paper of second professional examination in Apri/May,2005. It was further submitted that since the Ordinance was amended by the Board of Management in December,2001, therefore, he would not be governed by the amended Ordinance,rather he would be governed by the Ordinance which was in existence on the date when he was admitted to BAMS course. The petitioner had got the vested right to be governed by the Ordinance which was prevailing at the time of his admission. In support of his submission, the learned counsel for the petitioner relied upon judgments reported as Gurlal Singh and others Versus The State of Punjab and others, 1998(3) Recent Services Judgments 672, Jagjit Singh Sangwan and others, Versus State of Haryana and others, 1999(2) Recent Services Judgments 187, Vipin Kapoor Versus Union Territory, Chandigarh, 1994(1) Service Cases Today 129, Ashwin Prafulla Pimpalwar Versus State of Maharashtra, 1992(2) Service Cases Today 513 and Kanwar Singh and others Versus State of Haryana and others, 1998(3) Recent Services Judgments 634. It was submitted that these judgments propound the law that the right which has accrued to the petitioner could not be taken away by the subsequent amendment. However, these Civil Writ Petition N o.6672 of 2005.

judgments deal with the general law and are not applicable to the facts of the present case.

On the other hand, the learned counsel for the respondents has made a specific reference to the judgment of the Hon'ble Supreme Court reported as Punjab University v. Subhash Chander and another, AI R 1984 Supreme Court 1415 which directly deals with the issue. The facts of that case were that a candidate got admission in 1965 and as per rules then prevailing, he was entitled to 16 grace marks in the final year paper. The rules were changed in 1970 by which the rule governing the grant of grace marks was amended and as a result, grace marks were reduced to 4. That candidate appeared in the examination in 1974 and if 16 marks were to be given to him,he was to pass and if 4 marks were to be given to him, he was to fail. Similar contentions of that candidate came to be considered by the Hon'ble Supreme Court and it was held that the rule which was amended in 1970 was applicable to the petitioner in 1974 although the petitioner got admission in 1965. The Hon'ble Supreme Court was pleased to observe in para No.10 as under:- "The minimum prescribed for passing in each subject is 50 per cent. Under the old rule as it stood prior to 1970, Subhash Chander could have passed by getting 16 grace Civil Writ Petition N o.6672 of 2005.

marks being 1 per cent of the aggregate of all the four subjects, namely, Medicine, Surgery, Eye and ENT and Mid-wifery even if he had secured only 84 marks out of 200 in the practical (theory?) examination in Mid-wifery which comes to only 42 per cent and he had secured more than 50 per cent in the other subjects/papers. The Senate thought it fit to remedy this glaring defect so far as M.B.B.S and B.D.S examinations are concerned by adding the exception to R.2.1 in 1970 under which the grace marks would be only 1 per cent of the aggregate marks in the particular subject. We do not think that the Senate did not have the necessary power to effect that change or had acted unreasonably in making the change. We think that the Senate had the necessary power under S.31(2)(n) of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance or reduce the quantum of grace marks. It has not been contended before us that there was any mala fides on the part of the Senate in making this change. It could not be contended that Subhash Chander who appeared for the final Civil Writ Petition N o.6672 of 2005.

examination in 1974 did not have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by the change." The Hon'ble Supreme Court was pleased to observe further in para No.11 as under:-

"It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subhash Chander,respondent 1,who appeared for the final examination in 1974, after he had joined the course earlier in

1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course."

Same principle of law applied to the petitioner. No promise was made to him in January 2001 that the duration of third professional course shall not be changed during his studies.

Civil Writ Petition N o.6672 of 2005.

Since there is a specific judgment on the subject applicable to the facts of the present case, the judgments relied upon by the learned counsel for the petitioner,which are on general law are of no avail to him and,therefore, need not be discussed one by one. Learned counsel for the petitioner could not produce any subsequent law to checkmate the law laid down by the Hon'ble Supreme Court in Subhash Chander and another's case (supra), referred to above.

In view of the facts of this case and the law discussed above, it is held that the petitioner did not have the right to sit in the third professional examination in April/May,2005 when he had a back log of re-appear paper at his credit. Therefore, the examination undertaken by the petitioner in third professional course is held to be void and the writ petition is dismissed.

March 1,2006. ( S. N. Aggarwal )

Jaggi Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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