CWP No.1192 of 2008 [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.1192 of 2008 Date of Decision: 22 – 09 – 2008 Ankush Malhotra and others ....Petitioners v. Baba Farid University of Health Sciences ....Respondents and another CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.R.K.Chopra, Sr. Advocate with Ms.Ruchita Saraswal, Advocate for the petitioners. Mr.T.S.Dhindsa, Advocate for respondent No.1. Mr.S.S.Brar, Advocate for respondent No.2. *** KANWALJIT SINGH AHLUWALIA, J. By this common order, five writ petitions being Civil Writ Petition Nos.1192, 1368, 2428, 2487 and 4662 of 2008 can be decided together. For facility of reference, facts are being taken from Civil Writ Petition No.1192 of 2008. Petitioners after qualifying the Pre-Medical Examination test on the basis of merit were admitted in the College of respondent No.2 i.e. Adesh Institute of Medical Sciences and Research, Bhatinda (hereinafter to CWP No.1192 of 2008 [2] be referred as, `respondent-College') which is affiliated to respondent No.1 Baba Farid University of Health Sciences (hereinafter to be referred as, `the Respondent-University). Reliance has been placed by the petitioners on Regulations framed by Medical Council of India which have been termed as “Regulations on Graduate Medical Education, 1997” (hereinafter to be referred as, `the Regulations'). These Regulations were published in the Gazette of India on 17.5.1997. Same have been annexed with the writ petition as Annexure P-3. As per Clause 3.1 of the Regulations duration of course has been determined as under:- “..... The period of 4 ½ years of study shall be divided into three phases as under:- (i) Phase I (Pre-Course) of a duration of four year (Two Semesters) (ii) Phase II (Para-Clinical Subjects) of a duration of one- and-a-half year (three Semesters); and (iii) Phase III (Clinical Subjects) of a duration of two years (four Semesters). Note: During 2nd phase para clinical subjects shall be taught concurrently.” Grievance of the petitioners in the present cases rests upon interpretation of Clause 11 of the Regulations which reads as under:- “11. A candidate who passes in one or more subjects shall be exempted from appearing in these subjects a a subsequent examination, but the candidate must pass the examination in a maximum of six attempts, failing which he/she shall have to appear in all the subjects of the examination. CWP No.1192 of 2008 [3] Note: A candidate who does not pass in all the subjects of the First Professional examination shall not be allowed admission in the phase II training programme.” Case of the petitioners is that after their admission in MBBS course, the respondent-College undertook their first professional examination conducted by the Respondent-University in May/June, 2007. They were declared fail. Thereafter, they appeared in supplementary examination conducted by the Respondent-University of the first professional examination held in November/December, 2007. Petitioners got re-appear in one or two subjects. Those students who were declared pass were permitted to attend classes of Phase II course and, thus, they came at par with the main batch. However, petitioners who had got re-appear were not permitted to attend the classes of Phase II course. The case of the petitioners is that since they were re-appear candidates and have been permitted to undertake re-appear examination in the concerned subject held in May/June, 2008, there is no justification on the part of the respondents to dis-entitle them to join classes and their precious year cannot be allowed to go waste. In response to the notice issued, reply has been filed by the respondent-University. They have relied upon the Regulations prepared by the University and have stated that the Regulations have been made in conformity with the Regulations notified by the Medical Council of India. Regulation 11 of the University reads as under:- “11. A candidate who passes in one or more subject shall be exempted from appearing in these subject and subsequent examination, but the candidate must pass the examination in a CWP No.1192 of 2008 [4] maximum of six attempts, failing which he/she shall have to appear in all the subject of the examination. Note:- A candidate who does not pass in all the subject of the First Professional Examination shall not be allowed admission in the Phase-II training programme.” We have heard learned counsel for the parties. We have taken note of the respective submissions. Regulation 7 of the University reads as under:- “7. Supplementary examination may be conducted within 6 months so that the students who pass can join the main batch and the failed students will have to appear in the subsequent year. Phase Distribution and Timing of Examinations:- 6 MONTHS 6 MONTHS 6 MONTHS 1 2 1st professional Examination (during Second semester) 3 4 5 IInd Professional examination (during fifth semester) 6 7 IIIrd professional Part I (during 7th semester) 8 9 IIIrd professional Part II (Final professional during 9th semester) Note: a. Passing in Ist Professional is compulsory before proceeding to Phase II training.” We have been called upon to interpret the Regulations notified by Medical Council of India and the Respondent-University. To us, it is apparent that those students who fail in Ist professional examination cannot be promoted to IInd professional examination, even though an opportunity has been afforded to undertake supplementary examination. Note given CWP No.1192 of 2008 [5] with the Regulation “Passing in Ist Professional is compulsory before proceeding to Phase II training” eclipse the advancement of fail students to IInd professional examination. Merely because the Respondent-University has taken supplementary examination, it cannot be said that by passing the same or getting re-appear failure shall stand cured. Those who have failed, they have to lose that year. Only benefit they enjoy is that they won't have to re-attend the classes for the same course. In the present case, notice of motion was issued by a Co- ordinate Bench on 25.1.2008 and an interim order was passed in favour of the petitioners whereby they were permitted to attend classes of Phase II of MBBS course subject to passing of their re-appear papers. It has been stated that except for Omrao Singh Bawa petitioner No.1 in Civil Writ Petition No.1368 of 2008, all other petitioners in the five writ petitions before us have passed their re-appear examination and have also attended classes of IInd professional examination. We are of the view that the petitioners because of the interim orders have proceeded ahead in their studies, in case we put the clock back, it would cause extreme hardship to the students. During the pendency of the writ petitions, much water has flown. Petitioners except Omrao Singh Bawa petitioner in Civil Writ Petition No.1368 of 2008 have not only passed the re-appear examination but have attended the classes and have been imparted education. Therefore, it will not be just to take away the benefit which has flown to them due to grant of of interim orders in their favour. Therefore, without taking the present cases to be precedent binding, we permit the petitioners except Omrao Singh Bawa to proceed ahead in their studies and undertake final examination of the IInd professional examination. They be deemed to have CWP No.1192 of 2008 [6] been promoted to the IInd professional examination along with the main batch. With these observations, the present petitions stand allowed. ( HEMANT GUPTA ) ( KANWALJIT SINGH AHLUWALIA ) JUDGE JUDGE September 22, 2008. RC