IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.247 of 2010 DR. VIKAS SINGH S/O SRI UMESH PRASAD SINGH R/O RCA-30, NEAR NORTH BOUNDARY WALL OF T.V. TOWER, BAHADURPUR HOUSING COLONY, KANKARBAGH, P.S.- AGAMKUAN, DISTT.- PATNA … Petitioner/Appellant Versus 1. THE STATE OF BIHAR THROUGH IT'S PRINCIPAL SECRETARY, HEALTH, MEDICAL, EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, VIKAS BHAWAN, BAILEY ROAD, PATNA 2. THE PATNA UNIVERSITY THROUGH IT'S REGISTRAR, ASHOK RAJ PATH, PATNA-4 3. THE VICE-CHANCELLOR, PATNA UNIVERSITY, ASHOK RAJ PATH, PATNA-4 4. THE CONTROLLER OF EXAMINATION, PATNA UNIVERSITY, ASHOK RAJ PATH, PATNA-4 5. THE PRINCIPAL, PATNA MEDICAL COLLEGE & HOSPITAL, ASHOK RAJ PATH, PATNA-4 6. PROF. DR. VIJAY PRAKASH, PROFESSOR AND HEAD OF THE DEPARTMENT OF MEDICINE, PATNA MEDICAL COLLEGE & HOSPITAL, PATNA 7. THE REGISTRAR, POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH … Respondents/Respondents ----------- For the Appellant : Dr. A.K. Upadhyay, Advocate. For the Respondents : Sri Ajai Kr. Sinha, Advocate Sri Debanjan Choudhary, A.C. to SC-III 2. 8.2.2010 I.A.No. 1184/2010 Having heard counsel for the parties as also upon considering the facts stated in this petition, the delay of 163 days in filing of this appeal is hereby condoned. I.A.No. 1184/2010 is accordingly allowed. 2 L.P.A. No. 247/2010 Having condoned the delay, we have also heard the counsel for the parties with a view to dispose of the appeal itself on merit at the stage of admission. Dr. A.K.Upadhya, learned counsel appearing on behalf of the appellant writ petitioner, has submitted that the appellant writ petitioner, an examinee of M.D. (General Medicine) of 2005-2008 batch of Patna University, was wronged on more than one score as a result whereof he had moved this Court for a direction to the respondent Patna University not to publish result of M.D. (General Medicine) of 2005-2008 Session and also for the consequential direction to hold fresh examination of Clinical/ viva voce and practical of the said M.D. Course by constituting a team of externals, who were expert in the field of general medicine. Dr. Upadhya, however, frankly conceded that during the pendency of the writ application the result of M.D. (General Medicine) examination of 2005-2008 Session was declared in which the writ petitioner had failed and thereafter he had also appeared in the next examination 3 in which he was declared to have been passed but then the appellant writ petitioner had to loose one year of his career on account of alleged irregularities in the earlier M.D. (General Medicine) examination of 2005-2008 Session and as such, this Court should still cancel the result of the said examination. This Court would find that the writ application as originally filed by the appellant writ petitioner for cancelling the entire result of M.D. (General Medicine) was not maintainable in absence of other candidates who were not made party to the writ application. The non-joinder of other examinees, who could be adversely affected in allowing the prayer of the writ petitioner was itself good enough to dismiss the writ application of the appellant writ petitioner. The submission of the learned counsel for the appellant writ petitioner even otherwise as with regard to the alleged breach of regulations in conducting the examination including appointment of the examiners and holding of the viva voce/clinical examination as per University Regulation has been gone into by the learned 4 Single Judge at great length and this Court in absence of any significant challenge would find no error in such findings recorded by the learned Single Judge in this regard. The learned Single Judge in fact has gone to hold that: “ On consideration of entire materials, I find that the allegation made by the petitioner regarding conduct of M.D. (General Medicine) 2005-2008 examination in violation of Patna University Act, Regulation and the Medical Council of India Regulation, 2000, is not correct. Appointment of external and internal examiners, as per the proposed guideline was challenged before this Court where it has been held that there is no illegality in selection of external and internal examiners, as per the Medical Council of India Guidelines, since, it is the decision of the Patna University. This has also been followed in M.D. (General Medicine) 2005- 2008 examination, I do not find that examination was conducted in violation of Section 39 of the Patna University Act or Regulation as well as Medical Council of India Regulation, 2000. The allegation made by the petitioner that entire examination was one man show of respondent no.6 has no 5 substance. Accordingly, the malice in law, alleged by the petitioner, has also not been proved.” In our considered opinion the aforementioned findings infact do not suffer from any error specially when learned counsel for the appellant could not point out any specific breach of examination regulations. As with regard to the submission of the learned counsel for the appellant writ petitioner that respondent no.6, his guide and head of the Department of Medicine, was personally biased against him, the learned Single Judge has again gone into the allegations of malafide, both relating to malice on fact and malice in law and in the light of the specific denial made by the University as also respondent no.6, has come to a finding that the allegations of malafide were not only vague but were also not substantiated by any authentic material. Nothing more could be brought to our notice by the learned counsel for the appellant writ petitioner so as to enable as to hold that the allegation of malafide of the writ petitioner against respondent no.6 was actually substantiated. 6 It is well settled that it is for the person seeking to invalidate an order to establish the charge of bad faith. It has to be remembered that such charges are easily made but seldom proved and that is why it is necessary for the Court to examine them with care and attention. The reason is also simple and obvious. The charge of malafide against the public body and the authorities is more easily made than made out. Reference in this connection may be made to the judgment of the Apex Court in the case of Pratap Singh vs. State of Punjab, reported in AIR 1964 S.C. 72. As a matter of fact if the allegations of mala fide are denied by filing of a counter affidavit by the person concerned, the onus is quite heavy on the person bringing such charge of mala fide as was held in the case of E.P. Royappa vs. State of Tamil Nadu & anor., reported in (1974) 4 SCC 3, wherein the Apex Court has observed as follows: “We must not also over look that the burden of establishing mala fide is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such 7 allegations demands proof of a high order of credibility. … … … ” Judged on the aforementioned parameters and in the back drop of the findings recorded by the learned Single Judge, we do not find any substance in the vague allegation of mala fide of the appellant writ petitioner that respondent no.6 was interested in getting his relative married to the appellant writ petitioner and since that marriage negotiation has failed, respondent no.6 by way of being vindictive was instrumental in getting the appellant writ petitioner failed in M.D. examination. This Court in this regard has found from the pleadings in the writ petition that respondent no.6 though was the Head of the Department of Medicine but was not in any way single handedly responsible in conducting the examination, appointing the examiner or conducting the clinical and viva voce test of the appellant writ petitioner. In that view of the matter, this Court would also concur with the findings on the issue of mala fide of the learned Single Judge while dismissing the writ application. It is true that every examinee has his own self 8 evaluation of his preparation and performance in an examination but then they are always not necessarily correct. The performance of a Post-graduate student in the Medical Sciences does not depend only on his marks obtained in the theoretical papers but also on his performance in the clinical and viva voce test. Such clinical and viva voce test of the appellant writ petitioner was conducted by a team of examiners and if they had not found the appellant writ petitioner to be of a certain grade and had awarded him with poor marks, this Court cannot make a judicial review of such evaluation by the expert examiners. Considering all these aspects of the matter, we do not find any merit in the submission of the learned counsel for the appellant writ petitioner. The writ application on account of the appellant writ petitioner having appeared in next examination as also declared to have been passed in the same leading to award of M.D. Medicine in fact had become infructuous and therefore, no useful purpose would be served by now whipping a dead horse. 9 That being so, we do not find any merit in this appeal and the same is accordingly dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/