C.W.P.No.15852 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No. 15852 of 2008 Date of Decision:- 10.07.2009 1. C.W.P.No.15852 of 2008 Jasdeep Singh .....Petitioner(s) vs. Baba Farid University of Health Sciences ....Respondent(s) 2. C.W.P.No.15857 of 2008 Gourav Sharma .....Petitioner(s) vs. Baba Farid University of Health Sciences ....Respondent(s) 3. C.W.P.No.16047 of 2008 Sumeet Verma and others .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 4. C.W.P.No.16052 of 2008 Ajay Kumar and anr. .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 5. C.W.P.No.16056 of 2008 Harmanpreet Singh and anr. .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) C.W.P.No.15852 of 2008 -2- 6. C.W.P.No.16124 of 2008 Gautam Siddharatha and ors. .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 7. C.W.P.No.16205 of 2008 Amit Minocha .....Petitioner(s) vs. Baba Farid University of Health Sciences & ors. ....Respondent(s) 8. C.W.P.No.16558 of 2008 Sumeet Sood .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 9. C.W.P.No.16559 of 2008 Rahul Thaman .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 10. C.W.P.No.16809 of 2008 Anupam Sharma .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) C.W.P.No.15852 of 2008 -3- 11. C.W.P.No.5762 of 2009 Nitin Bagga .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 12. C.W.P.No.6513 of 2009 Kulwinder Kaur .....Petitioner(s) vs. Baba Farid University of Health Sciences & ors. ....Respondent(s) 13. C.W.P.No.6703 of 2009 Arshdeep Singh and others .....Petitioner(s) vs. Baba Farid University of Health Sciences & anr. ....Respondent(s) 14. C.W.P.No.14156 of 2008 Charanjeet Kaur, B.Sc. (Nursing) .....Petitioner(s) vs. Baba Farid University of Health Sciences ....Respondent(s) 15. C.W.P.No.16159 of 2008, Nisha Kalyan, B.Sc. (Nursing) .....Petitioner(s) vs. Baba Farid University of Health Sciences ....Respondent(s) C.W.P.No.15852 of 2008 -4- *** CORAM:- Hon'ble Mr.Justice T.S.Thakur, Chief Justice Hon'ble Mr.Justice Jasbir Singh Hon'ble Mr.Justice Augustine George Masih *** Present:- Mr.R.S.Bajaj,Mr.Dhiraj Chawla, Mr. Arun Takhi, Ms.Anupama Takhi, Mr.H.S.Rakhra, Mr.Ravi Kant, Mr.R.L.Luthra, Advocates for the petitioners. Mr.Anupam Gupta, Mr.T.S.Dhindsa, Mr.Ashish Rawal, Ms.Meenu Sharma, Advocates, for the respondents. *** Augustine George Masih, J. Through this order, we propose to dispose of Civil Writ Petitions No.14156 of 2008, 15852 of 2008, 15857 of 2008, 16047 of 2008, 16052 of 2008, 16056 of 2008, 16124 of 2008, 16159 of 2008, 16205 of 2008, 16558 of 2008, 16559 of 2008, 16809 of 2008, 5762 of 2009, 6513 of 2009 and 6703 of 2009. All the above-mentioned writ petitions relate to the students pursuing Bachelor of Ayurvedic Medicine and Surgery Courses, wherein they are claiming that they are not being permitted to take the next Higher Professional Examination although they have not as yet availed/exhausted all the available chances to clear the earlier Lower Professional Examination provided to them under the Ordinance except for the petitioner-Nitin Bagga in C.W.P.No.5762 of 2009 wherein he has availed of all the four chances to clear the Second Professional Examination and is studying in the third professional but his form is not being sent for taking the Third Professional Examination as he has failed to clear the Second C.W.P.No.15852 of 2008 -5- Professional Examination. Apart from these cases, C.W.P.No.14156 of 2008 and C.W.P.No.16159 of 2008 are the cases preferred by the students pursuing Bachelor of Science in Nursing (4 years) Degree Programme (Annual System) wherein they have not been allowed to take the next Higher Professional Examination as they had not cleared the earlier Lower Professional Examination. In all these writ petitions, the petitioners are basing their claim on a judgment of this Court in Aseempreet Kundi and another vs. State of Punjab and others, 2007 (1) SCT 683, to contend that although they may not have cleared all the subjects of the earlier Lower Professional Course but since they had completed the academic period of studies to take the next Higher Professional Course Examination, they will be eligible to appear in this Higher Professional Examination as they have a right to clear the earlier Lower Professional Examination within the permissible attempts provided under the Regulations, which have yet not been exhausted by them. The petitioners have further placed reliance on Division Bench judgments of this Court in Parampreet Kaur and others vs. State of Punjab and others, (C.W.P.No.3979 of 2007 decided on 16.4.2007), Himanshu and another vs. Baba Farid University of Health Sciences and others, (C.W.P.No.4487 of 2007 decided on 9.5.2007), and Bikramjit Singh and another vs. Baba Farid University of Health Sciences and others, (C.W.P.No.17180 of 2006 decided on 16.11.2006). Upon notice having been issued, the respondent-University in its written statement has taken a stand that the requirement of the Ordinances governing the Course mandates the clearance of all the subjects of the earlier Professional Course before a candidate becomes eligible to take the next Professional Examination. Reliance has been C.W.P.No.15852 of 2008 -6- placed upon a Division Bench judgment of this Court in Tarun Mohan and others vs. Baba Farid University of Health Sciences and others, (C.W.P.No.17396 of 2007 decided on 29.11.2007), wherein it has been held that a candidate cannot claim a right to appear in the next Higher Professional Examination without passing the earlier Lower Professional Examination as mandated under the Ordinances governing the course in question. These cases came up before a Division Bench for motion hearing on 30.9.2008, when apart from noticing the conflict in the view taken by this Court in the above-mentioned decisions, also found that the judgment of the Hon'ble Supreme Court in the case of Council of Homeopathic System of Medicine, Punjab and others vs. Suchintan and others, AIR 1994 Supreme Court 1761, has not been examined in any of the judgments which may have a bearing on the controversy raised and involved in the present set of writ petitions. Keeping in view the interest of the students and the fact that the interpretation of the Ordinances will have a recurring effect and also to resolve the dispute between the conflicting views taken by the Benches of this Court, the matter was referred to a Larger Bench for an authoritative decision. This is how these cases have come up before this Bench for consideration. Counsel representing the petitioners in these writ petitions submit that the petitioners are entitled to four attempts, including the first attempt in which they were eligible to appear, to clear each professional examination. They having availed of three attempts, in which they failed to clear all the subjects in the Second Professional Examination, still have one more chance left. Counsel submit that the petitioners are not being allowed C.W.P.No.15852 of 2008 -7- to take the Third Professional Examination. Reference has been made to Ordinance 10 ( iv ) wherein it has been stated that the candidates who failed in one or more subjects of the Second Professional Examination shall be allowed to clear all the subjects of the Second Professional BAMS Examination in four consecutive attempts including the first attempt in which they were eligible to appear. On this basis, it has been submitted by the counsel for the petitioners that although the petitioners have been promoted under the Ordinance to keep term in Third Professional Course and they have indeed attended the theory and practical classes and have fulfilled the academic requirements of period of study of that professional but still they are not being allowed to appear in the Third Professional Examination only on the ground that they have not passed all the subjects of the Second Professional Examination. It has been submitted that there is direct conflict between Clause (iii) and Clause (iv) of Ordinance 10. A right which has been conferred by Clause (iv) of the Ordinance on the one hand to clear the subjects of the Second Professional Examination in four consecutive attempts has been taken away by clause (iii) of the same Ordinance on the other hand without the petitioners having availed of all four consecutive attempts. It appears to be a very anomalous situation where four consecutive attempts, including the first attempt in which they were eligible to appear in the examination, have been granted and they have been also promoted to the next Higher Professional but merely on account of their failure to clear all subjects of the Second Professional Examination in three attempts without availing the fourth attempt, they are being debarred from appearing in the Third Professional Examination. This, according to the petitioners, would lead to withdrawing a benefit which has C.W.P.No.15852 of 2008 -8- been conferred upon the candidates by one clause of the Ordinance by another clause which does not allow them to avail the benefit so conferred upon such candidates. It has, thus, been submitted by the counsel for the petitioners that a harmonious construction of the two clauses of the Ordinances needs to be resorted to so that the petitioners are not deprived of a beneficial right and they do not lose valuable time leading to they being forced to sit out because of clause (iii) of Ordinance 10 which mandates clearance of all subjects before taking the Third Professional Examination. Accordingly, it has been submitted that the petitioners be allowed to take the Third Professional Examination along with the fourth attempt to clear all papers of the Second Professional Examination available to them under Ordinance 10 (iv) so that no clause of the Ordinance is offended and the petitioners do not lose valuable time of their courses and do not lag behind and rather complete the courses with other batch-mates. In support of these submissions, reliance has been placed by the counsel on a judgment of a Single Judge of this Court in Aseempreet Kundi's case (supra) which was followed by a Division Bench of this Court in Bikramjit Singh's case (supra) and thereafter in Himanshu's case (supra). Reliance has also been placed on another Division Bench judgment of this Court in Parampreet Kaur's case (supra). In view of these judgments of this Court, counsel for the petitioners submit that similar relief deserves to be granted to the petitioners in the present writ petitions for being similarly situated. On the other hand, counsel for the respondent-University submitted that the provisions as contained in the Ordinance governing the Bachelor of Ayurvedic Medical Science Course are clear and unambiguous. When the language itself is clear, no other meaning except what is stated in C.W.P.No.15852 of 2008 -9- the Ordinance should be taken to be correct. The question of harmonious construction or the application of the principles of reading down would not come into effect as in Aseempreet Kundi's case (supra). He urged that the offending Ordinance which came up for interpretation before this Court in Aseempreet Kundi's case (supra) stands amended and clause (vii) of Ordinance 5 (d) deleted and in any case, the same would have no bearing on the present cases as the Ordinance under question in this set of cases is different from what was in question before the learned Single Judge in Aseempreet Kundi's case (supra). He contended that the claim of the petitioners relates to Ordinance 10 (iii) of Bachelor of Ayurvedic Medicine and Surgery which has been dealt with and authoritatively decided against the students by a Division Bench of this Court in the case of Tarun Mohan vs. Baba Farid University of Health Sciences and others (C.W.P.No.17396 of 2007 decided on 29.11.2007) holding therein that the requirement of the Ordinance 10 Clause (iii) was not in conflict with Regulation 8.1 of Indian Medicines Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986, framed under the provisions of the Indian Medicine Central Council Act, 1970. He further argued that the Court had held that the petitioner in that case could not, thus, claim a right to appear in the 3rd Professional Examination without passing all the subjects of the 2nd Professional Examination. He, on this basis, submitted that judgment in Tarun Mohan's case (supra), which relates to Ordinance 10 (iii) of Bachelor of Ayurvedic Medicine and Surgery Course, is fully applicable to the present set of writ petitions as the same ordinance is in question here, compliance of requirement as mandated therein before being eligible to take the 3rd Professional Examination, C.W.P.No.15852 of 2008 -10- having been upheld by this Court. We have given our careful consideration with submissions made at the Bar and gone through the records of the cases. The precise question which needs to be answered in the present cases is; whether a candidate who has failed in one or more subjects in an earlier Professional Examination and who has been permitted to attend classes in the next Higher Professional Course as per the Ordinance and having completed the period of study of the said Higher Professional Course, can be allowed to take the Examination of the Higher Professional Course without clearing all the subjects of the Lower Professional Examination, when the attempts provided for clearing the Lower Professional Examination under the Ordinance are still available and have not been exhausted by the candidate? Answer to this question would lie in the Ordinances governing the courses. Firstly, dealing with the cases where the students are pursuing Bachelor of Ayurvedic Medicine and Surgery, the Ordinances, relevant for resolving the controversy read as follows:- “4. Duration of Course xxxx xxxx xxxx xxxx For the students admitted in 2001 and onwards (Amended by the Board of Management in its meeting held on 5.12.2001 vide Para 11(U) (c) 1. First Prof BAMS 1 ½ years 2. Second Prof BAMS 1 ½ years 3. Third Prof BAMS 1 ½ years 4. Internship 1 year C.W.P.No.15852 of 2008 -11- 5. Degree to be awarded Ayurvedacharya BAMS ( Bachelor of Ayurvedic Medicine and Surgery) The candidate shall be awarded Ayurvedacharya BAMS ( Bachelor of Ayurvedic Medicine and Surgery) degree after completion of prescribed courses of study extending over the prescribed period and passing the Final Examination and satisfactory completion of one year rotatory compulsory internship in the parent institution after passing in all the subjects in the final examination. 6 to 8 xxxx xxxx xxxx xxxxx 9. First Professional Examination ( to be held at the end of 1 year and 6 months). (i) (a) The 1st Professional period shall be 18 months duration and the examination shall ordinarily be completed by the end of next year November/December. The Supplementary examination of 1st Professional shall be held within six months of declaration of result. (b) A candidate who fails in one or more subjects of First Professional Examination may be allowed to keep term in Second Professional course. Only those students who pass in all subjects of 1st Prof. BAMS examination shall be allowed to take Second Professional Examination. C.W.P.No.15852 of 2008 -12- The students shall be allowed clear all the subjects of First Professional BAMS examination in four consecutive attempts including the first attempt in which they were eligible to appear, failing which they shall have to appear in all the subjects of the First Professional BAMS examinations. ( Amended by BOM on 28.5.2004, vide para 77 and on 11.11.2004, vide para 4 (c )). (ii) The First Professional BAMS Examination shall be in the following subjects and candidate shall be required to pass all the subject:- xxxx xxxx xxxx xxxx (iii) & (iv) xxxx xxxx xxxx 10. Second Professional Examinations i) The Second Professional course shall start in January/February following the First Professional Examination and the Examination shall be held in May/June of the year in which a candidate completes 18 months of study. Candidates passing first Professional in supplementary examination shall not be allowed summer vacation so that they undergo instruction during this period. (Amended by BOM on 24.5.2004, vide para 77). ii) The Second Professional Examination shall be held one and half years after First Professional C.W.P.No.15852 of 2008 -13- Examination and in the following subjects. Each Theory Paper will be three hours duration. xxxx xxxx xxxx xxxx iii) A candidate who fail in one or more subjects of Second Professional Examination may be allowed to keep term in Third Professional Course. Any such candidate will be allowed to appear in the Third Professional Examination only after passing all the subjects of Second Professional Examination. (Amended by BOM on 28.5.2004, vide para 77). iv) The supplementary examination to Second professional shall be held ordinarily in November/December and those who remain failed in any subject shall be eligible to appear in the subsequent Second Professional Examination. These candidates shall be allowed to clear all the subjects of Second Professional BAMS examination in four consecutive attempts including the first attempt in which they were eligible to appear in the examination, failing which they shall have to appear in all the subjects of the Second Professional Examination. (Amended by BOM on 28.5.2004, vide para 77 and on 11.11.2004, vide para 4 (c)). 11. Final Professional Examination (i) A. xxxx xxxx xxxx xxxx B. For students admitted in 2001 and onwards C.W.P.No.15852 of 2008 -14- The Final Professional Examination shall be held one and half year after the Second Professional Examination and shall comprise the following subjects:- xxxx xxxx xxxx xxxx (ii) If a candidate secures re-appear /failed in one or more subjects in Final Professional Examination he/she shall be eligible to appear in those subjects in subsequent Final Professional Examination which may be held every six months. The students shall be allowed to (sic.) clear all the subjects of Final Professional BAMS examination in four consecutive attempts including the first attempt in which they were eligible to appear, failing which they shall have to appear in all the subjects of the Final Professional BAMS examinations. (Amended by BOM on 28.5.2004 , vide para 77 and on 11.11.2004, vide para 4 (c)). (iii) He/she shall not be allowed to commence Internship training without passing all the subjects of Final Professional BAMS examination. 12.Compulsory Internship 12.1 xxxx xxxx xxxx 12.2 The students who had joined the BAMS Course in 2001 or thereafter shall go in for compulsory Internship after passing Final Prof. BAMS Course. Duration of Internship shall be of one year as under:- C.W.P.No.15852 of 2008 -15- xxxx xxxx xxxx xxxx 12.3 After completion of internship the concerned Principal will certify that the student has satisfactorily completed internship. Thereafter the student will be awarded the degree of Bachelor of Ayurvedic Medicine and Surgery(BAMS).” A perusal of the above Ordinances dealing with the Bachelor of Ayurvedic Medicine and Surgery leaves no manner of doubt that it is a complete code in itself governing each and every aspect of the course/training which has to be imparted to the students. The requirement, therefore, as mandated in these Ordinances has to be given full effect to. It has been time and again held by the Hon'ble Supreme Court that in the matters of academic standards, the Courts should refrain from interfering with and interpreting the Rules and Regulations holding the field as such matters need to be left to the care of the Experts in those fields. Here reference may be made to the judgments of the Hon'ble Supreme Court in the cases of University of Mysore vs. C.D.Govinda Rao, AIR 1965 SC 491, State of Kerala vs. Kumari T.P.Roshana, (1979) 1 SCC 572 and Shirish Govind Prabhudesai vs. State of Maharashtra, (1993) 1 SCC 211. The rationale underlying the above pronouncements is that Courts do not have the expertise and the resources required to go into the questions of devising the curriculum for the professional courses like the one in question before us. A great deal of technical expertise and knowledge is required for meting out the complications and requirements of the Professional Courses. It is for this reason that the Hon'ble Supreme Court has cautioned the C.W.P.No.15852 of 2008 -16- Courts not to interfere or interpret the matters relating to academic standards which would include Professional Courses as well. The requirement of each Professional Course is specific which only the experts can delve into, choose and decide the best as per the needs, so that the Society receives the most talented and professionally trained persons when they pass out of their colleges to serve the people at large. On consideration of Ordinances 9, 10 and 11, as reproduced above, it emerges that the same deal with not only the duration of the Professional Courses but also the Examinations which are required to be cleared by the students. In an ideal situation a candidate should clear all subjects of the Professional Examination in which he is studying and appearing in the very first attempt. And yet, there may be reasons beyond the control of a candidate which would not permit him to take the examination in one or more subjects. It is only to help those candidates, that apart from the first attempt in which a candidate is eligible to appear, three consecutive attempts in addition have been provided under the Ordinances. Out of these three consecutive attempts, two attempts are available to the candidates before the next Higher Professional Examination is to be held and the petitioners herein have availed of the same but have failed to clear all the subjects. No doubt, a 3rd additional chance is available to them as per the Ordinance, which they can undoubtedly avail of, but that would be at the cost of missing a chance to appear in the Higher Professional Examination. A candidate who fails in one or more subjects in a Professional Examination may be allowed to keep term in the next Higher Professional Course but the Ordinance provides that any such candidate will be allowed to appear in the Higher Professional Examination only after C.W.P.No.15852 of 2008 -17- passing all subjects of the Lower Professional Examination; which the petitioners have failed to do. The Ordinances would further show that eligibility for admission to the Higher Professional Course is entirely different from the eligibility to appear in an examination. A candidate may be eligible for admission to the Higher Professional Course but merely on admission to the Higher Professional Course he will not be/become eligible to appear in the Higher Professional Examination as well, unless he fulfills the requirement of eligibility to take the said examination. Therefore, the eligibility for admission to the Higher Professional Course and eligibility to take the Higher Professional Examination are two different things, the requirement of which is dependent on the relevant Ordinances and Clauses. If the requirement under the Ordinances/Clauses is not fulfilled for one reason or the other, the candidate cannot claim that since one of the requirements stands fulfilled, the other requirement would automatically stand complied with. The Ordinances, when analysed carefully make the intention behind the same evident. Ordinance 9 deals with the First Professional Examination. Clause (i)(a) states that First Professional shall be of 18 months' duration. Clause (i)(b) thereof provides that a candidate who fails in one or more subjects of the First Professional Examination may be allowed to keep term in the Second Professional Examination. However, according to this clause, only those students who pass in all the subjects of the First Professional Bachelor of Ayurvedic Medicine and Surgery Examination shall be allowed to take the Second Professional Examination. Clause (ii) of this very Ordinance provides the subjects of which the C.W.P.No.15852 of 2008 -18- candidate is required to take examination in the First Professional in Bachelor of Ayurvedic Medicine and Surgery. It further states that the candidate shall be required to pass all the subjects. Ordinance 10 deals with the Second Professional Examination. Clause (i) provides that Second Professional Examination shall be held on completion of 18 months study. Clause (ii) thereof gives the details of the subjects in which the candidate is required to take examinations. Clause (iii) provides that a candidate who fails in one or more subjects of the Second Professional Examination may be allowed to keep term in the Third Professional Course. However, it also mandates that any such candidate will only be allowed to appear in the Third Professional Examination after passing all subjects of the Second Professional Examination. Ordinance 11 deals with the Final Professional Examination. Clause (i) (B)