IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTH DAY OF FEBRUARY, TWO THOUSAND TEN PRESENT: HON’BLE SRI ANIL R.DAVE, THE CHIEF JUSTICE AND HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL Nos.1446, 1454,1455,1468 and 1469 of 2009 (Writ Appeal under Clause 15 of the Letters Patent against common order dated 17-11-2009 in Writ Petition No.6877 of 2009 on the file of this Court). WRIT APPEAL Nos.1446 of 2009: Between: Dr.N.T.R.University of Health Sciences, reptd., by its Registrar, Vijayawada, Krishna District. … Appellant And: Mohammed Jaker Shaik and another. … Respondents Counsel for the appellant: Sri Duba V.N.Babu. Counsel for the respondents: Smt.K.Sesharajyam for R.1. None for R.2. WRIT APPEAL Nos.1454 of 2009: Between: Dr.N.T.R.University of Health Sciences, reptd., by its Registrar, Vijayawada, Krishna District. … Appellant And: P.Amulya and two others. … Respondents Counsel for the appellant: Sri Duba V.N.Babu. Counsel for the respondents: Smt.K.Sesharajyam for R.1 & R.2. None for R.3. WRIT APPEAL Nos.1455 of 2009: Between: Dr.N.T.R.University of Health Sciences, reptd., by its Registrar, Vijayawada, Krishna District. … Appellant And: Kodali Gopi and two others. … Respondents Counsel for the appellant: Sri Duba V.N.Babu. Counsel for the respondents: Smt.K.Sesharajyam for R.1 & R.2. None for R.3. WRIT APPEAL Nos.1468 of 2009: Between: Dr.N.T.R.University of Health Sciences, reptd., by its Registrar, Vijayawada, Krishna District. … Appellant And: Reddy Hemalatha and another. … Respondents Counsel for the appellant: Sri Duba V.N.Babu. Counsel for the respondents: Smt.K.Sesharajyam for R.1. None for R.2. WRIT APPEAL Nos.1469 of 2009: Between: Dr.N.T.R.University of Health Sciences, reptd., by its Registrar, Vijayawada, Krishna District. … Appellant And: D.Kushal and two others. … Respondents Counsel for the appellant: Sri Duba V.N.Babu. Counsel for the respondents: Smt.K.Sesharajyam for R.1 & R.2. None for R.3. This Court made the following: HON’BLE SRI ANIL R.DAVE, THE CHIEF JUSTICE AND HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL Nos.1446, 1454,1455,1468 and 1469 of 2009 COMMON JUDGMENT: (per C.V.NAGARJUNA REDDY, J.,) This batch of Appeals, filed under Clause 15 of the Letters Patent, arises out of common judgment, dated 17- 11-2009, in Writ Petition No.3749 of 2009 and batch. As common issues arise in these cases, they are heard and are being disposed of together. The controversy in these cases relates to the entitlement of the respondent-writ petitioners (hereinafter referred to as “writ petitioners”) to attend the second year MBBS classes, and, consequently, to appear for the second year MBBS examinations held in April/May, 2009. The appellant is Dr.N.T.R. University of Health Sciences, Vijayawada, (for short “the University”), which, inter alia, regulates and controls medical courses in the State of Andhra Pradesh. All the recognized medical colleges in the State are affiliated to the University. The writ petitioners have joined the first year MBBS course in the academic year 2005-06 and so have several other students. They have been pursuing MBBS course by joining in different medical colleges. While some of the writ petitioners are students in Konaseema Institute of Medical Sciences and Research Foundation, Amalapuram, East Godavari District, the others are the students of Mediciti Institute of Medical Sciences, Ghanapur, Medchal Mandal, Medak District. During the first year MBBS examinations held in September/October, 2006, 992, out of about 4000 candidates, who appeared for the first year MBBS examination, were declared to have failed in one or more of the three subjects, viz., Anatomy, Physiology and Bio-Chemistry. Out of them, 436 candidates filed their applications for re-totaling. The writ petitioners were among the said candidates. The Vice-Chancellor of the University ordered for re-verification/re-valuation/re- examination of the answer sheets, by appointing a Committee of Professors. This was evidently done by the Vice-Chancellor on the pressures brought upon him by the students and their parents. On the basis of the revaluation made by the Committee, the University declared revised results on 2-2-2007; according to which, 294 students, out of 436 students who applied for re-totaling, were declared to have passed. The action taken by the Vice-Chancellor was placed before the Executive Council for ratification. The Executive Council ratified the action taken by the Vice-Chancellor. Subsequent to the declaration of the results, following revaluation, His Excellency the Governor of the State as well as the Minister for Medical, Health and Family Welfare and the Vice-Chancellor of the University received communications and complaints on the irregularities committed in the process of revaluation. His Excellency the Governor referred the complaints to the Executive Council for appropriate action. In its meeting convened by the Executive Council it has resolved to ask the Government of Andhra Pradesh to constitute a High Level Committee to go into the circumstances, under which the revaluation of the answer sheets was undertaken and to find out whether any irregularities have taken place therein. The Executive Council also resolved to withhold declaration of the revised results till the enquiry report is submitted by the High Level Committee. While the Government has not constituted a High Level Committee, it has, however, referred the issue for the opinion of the learned Advocate General, who opined that the Vice-Chancellor ought not to have ordered for re- correction of answer scripts, more particularly when there is no provision to do so under the Dr.N.T.R. University of Health Sciences Act, 1986 (for short “the Act”). The learned Advocate General further opined that as the University is an autonomous body, there was no necessity for referring the matter to the Government for the purpose of enquiring into the issue. Upon considering the opinion of the learned Advocate General and having regard to the stand taken by the Vice-Chancellor that he has ordered for re-verification/re-valuation of the answer sheets because of the pressure from the students and their parents, the Executive Council has unanimously resolved to cancel the whole process of revaluation. The Executive Council further decided that an opportunity should be given to the failed students to re-appear in the examination and, accordingly, it has directed the students, who failed in September/October, 2006 examinations to re-appear in the examinations, which are scheduled to take place on 25-4-2007. A majority of 294 students, who were declared to have passed in the revaluation, approached this Court by filing Writ Petition No.8658 of 2007 and batch challenging the decision of the Executive Council, canceling the re- valuation results. A learned single Judge of this Court held that the Vice-Chancellor had power under Section 12(2) of the Act to order for revaluation of the answer scripts. The learned Judge has, accordingly, allowed the Writ Petitions, vide: judgment dated 1-5-1007. In the Writ Appeals filed by the University, vide: Writ Appeal No.402 of 2007 and batch, a Division Bench of this Court, of which one of us (CVNR,J) is a party, opined that the Vice- Chancellor had no jurisdiction under Section 12(2) of the Act to order for revaluation of the answer scripts and, accordingly, upheld the action of the Executive Council in canceling the revaluation results. The Bench directed the students to re-appear in the first year MBBS examinations. The unsuccessful students filed SLPs., against the said judgment. Pending the said SLPs., the Supreme Court granted appropriate interim directions, and in purported compliance of these orders the University continued the 294 students to pursue the second year MBBS course. As for the writ petitioners in these cases, they are not among the 294 candidates, who were declared to have passed in the revaluation. The University has taken the specific stand that it has officially announced the results of revaluation only in respect of 294 students who have passed all the three subjects of the first year; and though the writ petitioners have passed one or two subjects in the revaluation, the results were not communicated to the respective colleges as they have not passed all the three subjects. However, the two colleges, in which the writ petitioners have been studying, permitted them to study the second year MBBS course on the basis of a purported fax communication said to have been received by them from the Registrar’s office in the name and under the signature of Dr.P.Jayakar Babu, Registrar of the University. In their Writ Petitions, the writ petitioners have specifically pleaded that as the respective colleges came to know about the details of the subjects in which they have passed and failed, the colleges have permitted them to appear in the supplementary examinations held in April/May, 2007 in respect of the subjects in which they have failed even after re-valuation. They further pleaded that as all them have cleared all the three subjects, either in the revaluation or in the supplementary examinations, they were promoted to the second year MBBS course by the respective colleges and, accordingly, permitted to attend the classes of the second year MBBS course commencing from June, 2007. Reverting back to the SLPs., filed before the Honourable Supreme Court, after granting leave, the Supreme Court disposed of the civil appeals - vide: Civil Appeal No.6202 of 2008 and batch by judgment, dated 22-10-2008, in Sahiti and others Vs. Chancellor, Dr.N.T.R. University of Health Sciences and others[1] - holding that the Vice-Chancellor is vested with the power to take appropriate action relating to the affairs of University, which includes the conduct of examinations also, and that revaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. The Supreme Court, thus, while reversing the finding of the Division Bench to the extent that the Vice-Chancellor had no power to order for revaluation, however, agreed with the view of the Division Bench that the revaluation ordered by the Vice-Chancellor on the facts of the case was not legal and proper as the Vice-Chancellor acted under the pressure and coercion brought upon him by the students and their parents. The Supreme Court also pointed out that while 436 students only demanded re-totaling of marks, if the Vice-Chancellor was of the opinion that revaluation of answer scripts was necessary, he should have directed revaluation of answer scripts of all the 992 students, who failed in the examination, instead of confining revaluation only to 436 students, who had never applied for revaluation of their answer scripts, but applied for re-totaling of their marks as recorded in the answer scripts. The Supreme Court has also taken note of the fact that the members of the Committee appointed by the Vice- Chancellor for revaluation of answer scripts had undertaken the re-verification of 1082 answer scripts and completed the same in two days, which, in the opinion of the Court, showed that the revaluation was not properly done and no credence could be given to the same. The Supreme Court disposed of the appeals with certain directions, which we find it apt to reproduce hereunder: “ Para.43. Mr.Gopal Subrahmanium, learned Additional Solicitor General appearing for the respondents, has stated at the Bar that the University is inclined to hold supplementary examination of the students, who have yet to clear the first year MBBS examination. Therefore, Dr.N.T.R. University of Health Sciences is hereby directed to hold supplementary examination of all students who have yet not cleared the examination of first year MBBS held in September/October, 2006. 44. Pursuant to the interim orders, 294 students were permitted to prosecute studies in second year MBBS. If any student/students fails/fail in supplementary examination of first year MBBS examination, the declaration of the results of such candidate/candidates who appear for second year MBBS be withheld or their further course of study be decided based on the Rules and Regulations of the University applicable to such students. It is clarified that the abovementioned direction would apply only to those students who had appeared and failed in the first year MBBS examination held between 5-9-2006 and 10-10- 2006”. In pursuance of the above mentioned direction of the Supreme Court, special supplementary examinations were held in December, 2008 to all the students, who failed in the first year MBBS examinations held in September/October, 2006 irrespective of whether they have passed any subject/subjects in the revaluation. It would be of relevance to note at this juncture that some correspondence was exchanged between the two medical colleges, in which the writ petitioners are studying, and the University on permitting the writ petitioners to appear for the second year MBBS classes. One such communication is dated 7-12-2007 – a downloaded copy of which has been filed by the learned counsel for the respondents. In the said communication the Joint Registrar (Examinations) called upon the various medical colleges to furnish the details of the students who have passed in one or more subjects in the revaluation and cleared the remaining subjects in the supplementary examinations held in April, 2007 and required them to explain how such persons were allowed to attend the second year MBBS classes. A direction was also given to revert such students to first year MBBS classes and report compliance. In the month of September, 2008 one of the two medical colleges, which are parties to this batch of cases, viz., Mediciti Institute of Medical Sciences, submitted 32 applications for the second year MBBS examinations scheduled to commence from 21-10-2008. However, the University declined to send hall-tickets to two petitioners viz., P.Amulya and Md.Faizan Jehangir, respondents 1 and 2 in Writ Appeal No.1454 of 2009. As hall tickets were denied to the other writ petitioners also, they filed Writ Petition No.22879 of 2008, though no such Writ Petition was filed by P.Amulya and Md.Faizan Jehangir. The said Writ Petition was, however, withdrawn by the students on 6-3-2009. It is not in dispute that all the writ petitioners were allowed to appear for the special supplementary examinations held, in pursuance of the direction of the Supreme Court, in December, 2008. While some of the writ petitioners cleared all the subjects in the said examinations, the remaining writ petitioners, who failed in the special supplementary examinations, appeared in the regular supplementary examinations conducted in March, 2009 and passed in the said examinations. When the University notified fresh examinations for the second year MBBS course scheduled to be held from 6-4-2009 and as the writ petitioners were not permitted to appear in the said examinations, they have filed fresh set of Writ Petitions, viz., W.P. No.3749 of 2009 and batch, out of which the present writ appeals arose. In the said Writ Petitions, the learned single Judge granted interim direction permitting the writ petitioners to appear in the second year MBBS examinations. Questioning the said interim direction, the University filed writ appeals, wherein directions were given in favour of the writ petitioners to declare the results of the second year MBBS examinations. The University filed SLPs., against the said orders, in which the Supreme Court granted interim direction for maintenance of status quo till 17-7-2009. On 17-7-2009 the civil appeals were disposed of by the Supreme Court with a request to this Court to dispose of the Writ Petitions within a period of three months. Thus, the Supreme Court declined to interfere with the directions given by the learned single Judge permitting the writ petitioners to appear for the second year MBBS examinations and with the further direction given by the Division Bench to the University to declare the results. It is not in dispute that in pursuance of the direction granted by the Division Bench, the results of the writ petitioners, in respect of the second year MBBS examinations, have been declared and they were permitted to pursue third year MBBS course. The Writ Petitions came to be finally disposed of by a learned single Judge by order dated 17- 11-2009. The leaned single Judge allowed the Writ Petitions by holding that the writ petitioners are entitled for the benefit of their performance in the special supplementary examinations held in December, 2008; that, in case they have put in the required amount of attendance in the second year classes, their appearance in the second year examinations, held in pursuance of the order of this Court, shall be treated as valid; and that their entitlement to pursue further courses would be guided by the relevant rules and regulations with regard to attendance and promotion. Assailing this judgment of the learned single Judge, the present batch of Writ Appeals has been filed by the University. At the hearing, Sri Duba V.N.Babu, learned Standing Counsel for the University, advanced the following contentions: i) The action of the two colleges permitting the writ petitioners to attend the second year MBBS classes by treating them as promoted is impermissible in law; and that, consequently, the purported attendance of the respondent-writ petitioners in the second year MBBS course is not valid in the eye of law. ii) As the writ petitioners have passed the subjects in the first year MBBS course either in the special supplementary examinations held in December, 2008 or in the further supplementary examinations held in February, 2009, they were not eligible to be promoted to the second year MBBS course during the period anterior thereto. iii) The writ petitioners were never among the students, who approached this Court questioning the cancellation of revaluation results and, as such, they were not entitled to the benefit of the interim orders granted by this Court or by the Supreme Court for continuing the second year MBBS course. iv) As the University has not published the results of the students relating to individual subjects following the revaluation, the assumption of the two colleges that the writ petitioners have cleared all the subjects either in the revaluation or in the subsequent supplementary examinations held in April/May, 2008 was without any basis and, accordingly, the writ petitioners ought not to have been permitted to write the second year examinations and are, consequently, not entitled to pursue the third year MBBS course without again attending the second year MBBS classes. v) The writ petitioners, barring P.Amulya and Md.Faizan Jehangir, filed Writ Petition No.22879 of 2008; and having withdrawn the said writ petition, they are barred from filing a fresh writ petition. Opposing the above contentions, Smt.K.Sesharajyam, learned counsel for the writ petitioners, contended that the entire confusion was created by the University itself by undertaking the revaluation in the first place and later by showing the discriminatory treatment by permitting 294 students alone to attend the second year MBBS classes. She further contended that the University has undertaken before the Supreme Court that they will hold special supplementary examinations to all the students, who have failed in the first year MBBS examinations initially held, irrespective of the revaluation results; and that the writ petitioners being similarly situated to the 294 students, there is no justification whatsoever to deny them the benefit of studying the second year MBBS course commencing from June, 2007. She also contended that the University has permitted all the 294 students to attend the second year MBBS course even though some of them have not approached this Court and the Supreme Court and have not obtained interim orders in their favour for attending the classes; and that this being the admitted position, the University cannot create an artificial distinction between the two sets of students, who did not obtain any orders from the Court. While refuting the submission of the learned Standing Counsel for the University that the writ petitioners are barred from filing a fresh writ petition, the learned counsel for the writ petitioners submitted that the latter batch of writ petitions came to be filed under changed circumstances, following the judgment of the Supreme Court. Before discussing on the merits of the case and taking the last of the contentions advanced by the learned Standing Counsel for the University first, we find no merit in the submission of the learned Standing Counsel that having withdrawn Writ Petition No.22879 of 2008, the writ petitioners are not entitled to file a second Writ Petition. Writ Petition No.22879 of 2008 was filed when the SLPs., before the Supreme Court were pending. In the said Writ Petition filed by the writ petitioners, except P.Amulya and Md.Faizan Jehangir, they have sought the relief of permitting them to appear for the second year MBBS examinations scheduled to commence from 21-10-2008. The writ petitioners were not permitted to appear for the said examinations and, during the pendency of the said Writ Petition, the Supreme Court rendered the judgment in the SLPs. Therefore, the writ petition has virtually become infructuous. However, before fresh examinations for the second year MBBS course was notified, the said Writ Petition was withdrawn; and following the announcement of schedule for fresh examinations, the writ petitioners filed Writ Petition No.3749 of 2009 and batch. In our view, the latter batch of Writ Petitions was founded on a fresh cause of action and in the changed circumstances. Therefore, the Writ Petitioners were not barred from filing a fresh batch of writ petitions. The facts narrated above would disclose that, among the first year MBBS students who joined the course in the academic year 2006-07 and whose first year MBBS answer scripts were revalued, there are broadly five categories. Category-I pertains to the 294 students, who were declared to have passed all the three subjects following the revaluation. Category-II relates to students, among the 294 students, who assailed cancellation of revaluation by filing Writ Petitions in this Court and SLPs., in the Supreme Court and were permitted by the University to pursue the second year MBBS course on the strength of the interim orders granted, pending the Writ Petitions and the SLPs. Category-III relates to the students who are among the 294 students, who were declared to have passed the first year MBBS course in the revaluation and have not questioned the cancellation of revaluation, but were permitted by the University to attend the second year MBBS classes along with the students in whose favour interim orders were granted. Category-IV pertains to the writ petitioners, who did not pass all the three subjects initially or in the revaluation and did not question the cancellation of revaluation, but were promoted and permitted to attend the second year MBBS classes; and Category-V are the students, whose answer scripts were revalued but did not approach the Courts and were not promoted to the second year MBBS course till they have passed all the subjects either in the special supplementary examinations held in December, 2008 or in the subsequent supplementary examinations. While the University has made serious allegations against the two colleges, in which the writ petitioners are studying, accusing them of illegally protecting the interests of the writ petitioners by ignoring the directions given by it to revert them to the first year MBBS course, the equally serious charge is traded by the writ petitioners against the University of discriminating them against the set of students among the 294 candidates, who did not approach the Courts but were still permitted to attend the second year classes and appear for the second year examinations. Regrettably, the entire controversy was created on account of the Vice-Chancellor of the University ordering revaluation under pressure from the students and their parents. As a result of this avoidable act on the part of the Vice-Chancellor, an unseemly situation had arisen, which has lead to a near fiasco. Ironically, by the time the second year MBBS courses have commenced in June, 2007, none of the students falling under the above mentioned five categories passed all the three subjects originally, and were not eligible to attend the second year MBBS classes. But, the University declared 294 students as having passed in the infamous revaluation, which results were, however, later cancelled by it. Banking on the interim orders of this Court the University permitted 294 students to attend the second year MBBS classes. With regard to the writ petitioners, there is a serious dispute as to the factum of communication of results as they have not passed all but one or two subjects only. In this regard, the learned counsel for the writ petitioners has placed reliance on the fax communication, which emanated from the Registrar’s office with the signature of the Registrar. Though the learned Standing Counsel has not denied the