Once a student has opted to take the examination, it is for him to take all the measures: Bombay High Court

 on 05 06 2021 on 05 06 0506pilst64621.odt1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURPUBLIC INTEREST LITIGATION ST. NO.6466 2021PETITIONERS : 1. HERD Foundation a company registered under the Companies Act 1965 as a not for profit organisation through its Managing Director Amol s o Ranjeet Deshmukh having its office at 3rd Floor Near Coffee House Square Dharampeth Nagpur 440010 Maharashtra Mail id amol.deshmukh@herdfound.org.2. Nitesh Dhanraj Tantarpale student of Niharika college of physiotherapy aged 31 yrs. Occ Student R o Plot no.169 Ayyapa nagar New Gorewada Ring road Near Shyam lawn Nagpur 13. Phone no 8999799440 Mail id drniteshtantarpale@gmail.com....Versus…RESPONDENTS :1. Union of India Ministry of Health & Family Welfare through its secretary having office at Room No.348 A Wing Nirman Bhavan New Delhi 110011. & Ministry of Education through its Minister of State Education having its office at Shastri Bhawan New Delhi. 2. The State of Maharashtra Through Government of Maharashtra Ministry of Health & Family Welfare on 05 06 2021 on 05 06 0506pilst64621.odt2 having its office at 3rd Floor Arogya Bhavan St. George s Hospital Compound Premises P.D. Mello Road Mumbai 400001 & Ministry of Higher & Technical Education Maharashtra having its office at 4th Floor Mantralaya Annex Madam Cama Road Nirman Point Mumbai 400032.3. National Medical Commission Through its Chairman having its registered office at Pocket 14 Sector 8 Dwarka Phase 1 New Delhi 110077.4. Maharashtra University of Health SciencesThrough its Acting Vice Chancellor having its registered office at Mhasrul Vani Dindori Road Nashik 422004 Office Notes Office Memoranda of Coram Court s or Judge s ordersappearances Court s orders or directionsand Registrar s orders Mr. Rahul M. Bhangde Advocate for petitioners Mr. Ulhas M. Aurangabadkar ASGI for respondent no.1Mrs. Ketki S. Joshi G.P. for respondent no.2Mrs. Radhika Bajaj Advocate for respondent no.3Mr. Abhijit Deshpande Advocate for respondent no.4 CORAM : AVINASH G. GHAROTE J. Order reserved on : 04 06 2021 Order pronounced on : 05 06 20211.Heard learned Counsel for the respective parties.The respondents have appeared suo motu through theirrespective Counsels as they were served an advance copy of on 05 06 2021 on 05 06 0506pilst64621.odt3 the petition by the Counsel for the petitioners and Mr. AbhijitDeshpande the learned Counsel for the respondent no.4 MUHS has also placed on record his detailed reply opposingthe petition itself as well as the plea seeking interim relief. 2. Mr. Rahul Bhangde learned Counsel for thepetitioners on the issue of locus standi of the petitioner no.1 to file the present petition submits that it is an NGO workingfor socio economic needs of the underprivileged people since2006 and is a non profit organisation registered under theCompanies Act. A writeup of the social activities of thepetitioner no.1 has been given at Annexure A and thelearned Counsel submits that the petitioner no.1 is involvedin various social activities in the field of providing medicalbenefit to the poor. The petitioner no.2 is a studentundergoing the course of physiotherapy and is currently is inthe third year. Learned Counsel Mr. Rahul Bhangde submitsthat both the petitioners have a locus standi to file a presentpetition which he submits be treated as one in publicinterest as the public cause is being espoused. 3.Mr. Rahul Bhangde learned Counsel for thepetitioners submits that the ensuing examinations for theUnder GraduateCourses i.e. I II and III years anduniversity UG PG Certificate Coursesto commence from 10 06 2021 conducted by on 05 06 2021 on 05 06 0506pilst64621.odt4 the respondent no.4 MUHS offline are required to bepostponed till such period that each of the students entitledto hold the examination is fully vaccinated or in thealternative they be held online. He therefore submits that thedecision dated 19 05 2021 directing the examinations to beheld offline i.e. by a physical mode be quashed and set aside.He submits that considering the present situation of theCovid 19 pandemic any assembly of persons for the abovesaid examinations would create a situation where therewould be an explosion of the virus again and since the samecan be avoided by postponing the examination it ought to bedone as it is the fundamental duty of the Union and the Stateto protect the life of each and every citizen. He submits thatevery life has an equal inherent value which is recognized byArticle 21 of the Constitution and the Court is duty bound tosave that life by placing reliance on Aarushi Dhasmana Vs.Union of India and others9 SCC 475. He submits thateven the teachers and support staff who would be deployedfor conducting the examination would be at risk. He submitsthat when earlier in 2020 the Post Graduate Examinationswere conducted in the first phase the aspirants werevaccinated being frontline workers in the medical field andwere therefore protected. The earlier examinations wereconducted before the second wave of Covid 19 pandemicerupted. He submits that any congregation assembly of anumber of persons will aid in the hastening of the third on 05 06 2021 on 05 06 0506pilst64621.odt5 wave. He submits that the petitioners are not frontlineworkers and are therefore incapable of being vaccinated asper the present policy of the Union of India and thus theexaminations be postponed to a period after the petitionersget themselves vaccinated whatsoever time it may take. Hesubmits that neither the respondents nor the Court can callupon the petitioner no.2 nor students similarly situated tohim to put their life at stake merely for the sake ofundertaking an examination which can always be postponedand taken later on. Mr. Rahul Bhangde learned Counsel forthe petitioners further submits that the CBSE HSSC and SSCexaminations have already been postponed. He furtherinvites the Court s attention to the statement of the Hon blePrime Minister to the effect that the health of the students ismore important than conducting examinations. He furthersubmits that as of date there are 20% deaths in the State onaccount of mucormycosis which enhances the risk to thestudents if they are to undertake the examinations. Thestudents will have to go back to the hostels stay 4 in a room which would again increase the risk of the infection. Hetherefore submits that this is a fit case where by way of aninterim order the examinations to commence from10 06 2021 and end on 30 6 2021 either be postponed orbe held online. on 05 06 2021 on 05 06 0506pilst64621.odt6 4.Mr. Abhijit Deshpande learned Counsel for therespondent no.4 MUHS who has filed a detailed replyopposing the petition submits that the petition is clearlymisconceived and is not tenable at the behest of thepetitioner no.1 as it has no locus whatsoever to challengeany decision regarding holding of examinations. He furthersubmits that the petitioner no.2 is a singular person astudent of third year of physiotherapy and cannot be said torepresent the cause of the entire students who are slated totake the examination from 10 06 2021 onwards till30 06 2021. He submits that the petition is hopelesslybelated as everyone was aware as far back as 06 10 2020that the examinations were going to be held offline forwhich he invites my attention to the Circular No.69 2020dated 06 10 2020 issued by the Controller of Examinations MUHS. He further submits that the first phase of theWinter 2020 Health Sciences Courses Examinationwas conducted from 04 01 2021 andthereafter by offline mode in which 8000 students of variousPost Graduate Health Sciences Courses appeared results ofwhich have already been declared between 08 02 2021 to15 03 2021 course wise. He further points out that thesecond phase of Winter 2020 examination in which about9000 final year students of various Under Graduate HealthSciences Courses participated was conducted between08 03 2021 to 01 04 2021 offline which results were also on 05 06 2021 on 05 06 0506pilst64621.odt7 declared between 22 04 2021 to 15 03 2021 course wise.He submits that now the third and last phase of Winter 2020examination is scheduled from 10 06 2021 in which about40 000 students of Ist IInd and IIIrd year of various UnderGraduate Health Sciences Courses and Certificate Coursesare expected to participate. He submits that initially theseexaminations were scheduled from 23 03 2021 however onaccount of second wave of Covid 19 they were initiallyrescheduled on 19 04 2021 to 15 05 2021 thereafter againrescheduled from 02 06 2021 in view of the State widelockdown and now have been rescheduled from 10 06 2021.He therefore submits that the petitioners if at all the causecould be said to be genuine to them could have approachedthe Court earlier and not at the last moment days before theexamination is scheduled to begin. He submits that the entirepreparation for the examinations have already beencompleted even the question papers have been dispatched tothe various centers. The respondent no.4 has been fullyaware of the extent and nature of the pandemic andconsidering its intensity in the earlier period has taken duecare to postpone it from time to time. He submits thatconsidering the present position regarding vaccination in thecountry no special group can be carved out such as thestudents taking the examinations and the examinationscannot be indefinitely postponed. He further submits that itis not as if the students are being forced to take the on 05 06 2021 on 05 06 0506pilst64621.odt8 examinations rather on the contrary a choice has been givento them either to take the examinations now or at a laterstage and if any student felt apprehensive about his health hehad the choice not to take the examinations now and to optfor taking them later for which purpose he invites myattention to the Advisory dated 19 04 2021 issued by theUnder Graduate Medical Education Board National MedicalCommission which specifically deals with the option given tothe studentslays down that every life is valuable and needs to beprotected. However in view of what has been stated above itcannot be said that the respondent nos.1 and 2 are notmaking any attempt at saving the lives of citizens. It wouldbe material to note that given the present state of affairs even vaccination has been found to be not affording fullprotection from Covid 19 as the efficacy of various vaccines on 05 06 2021 on 05 06 0506pilst64621.odt12 is not 100 % but varies from vaccine to vaccine and noneclaims to be 100% effective. There have been reported caseswhere even vaccinated persons have been found to beCovid 19 positive. Thus vaccination alone cannot be said tobe a panacea for Covid 19 though largely it may have aneffect. It is equally the responsibility of every citizen tostrictly adhere to the social distancing norms and theStandard Operating Procedureprescribed in thisregard. There is also no guarantee that by sitting home aperson may not contract Covid 19.9. As rightly pointed out by Mr. Abhijit Deshpande learned Counsel for the respondent no.4 there are about40 661 examinees who are slated to take the examinationsin 173 centres throughout the State and except for thepetitioner no.2 none has joined the petitioner no.2 in thepresent petition requesting for a postponement of theexaminations for the reasons canvassed. Though Mr. RahulBhangde learned Counsel for the petitioners submits thatthe petitioner no.1 has the consent of approximately 300 to400 students nothing has been placed on record to indicatethis. That apart even if this is presumed to be true thiswould constitute a minuscule percentage of the total numberof students slated to take the examination on 10 06 2021.As observed in the order dated 14 08 2020 in AkashUdaysing Rajput and othersthere could be on 05 06 2021 on 05 06 0506pilst64621.odt13 examinees other than the petitioners who might be willingand prepared to write the examinations even physically andstay of the examinations behind the back of such examineeswould be detrimental to their interests. In the instant casealso there is nothing on record to indicate that the majorityof the examinees are not willing to take the examination forthe grounds as stated in the petition and therefore anypostponement of the examination at the behest and instanceof the petitioners is clearly not possible.10. This is also specifically so when the Advisorydated 19 04 2021 issued by the Under Graduate MedicalEducation Board National Medical Commission makes theappearance at such examination optional. It would benecessary to quote the relevant clause in the said Advisory which is as under : “5. All students who are unable to appear for theexaminations for whatever reasons may take up theexaminations with the supplementary batches. Thiswill not be counted as an additional attempt forthem.” The Advisory is thus clear and specific and doesnot make it compulsory for any student to appear in the saidexaminations if such student is apprehensive of his her on 05 06 2021 on 05 06 0506pilst64621.odt14 safety. Not only this it also indicates that if the student isunable to appear in the ensuing examination for whatsoeverreason absence of such an attempt will not be counted as anattempt at all and such student will be entitled to take up theexaminations with the supplementary batches. Thus anyapprehension which a student may have about his her safety has been duly addressed by the above Advisory by givingsuch student a choice in the matter. 11.It would further be material to note theobservations of the Hon ble Apex Court in Sayantan Biswasand others Vs. National Testing Agencyand others asquoted in Namrata Ashok Karadewhile consideringa plea seeking postponement of NEET UG 2020 andJEEApril 2020 where it was observed that thoughthere is a pandemic situation but ultimately life has to go onand the career of the students cannot be put on peril for along and full academic year cannot be wasted. ThoughMr. Rahul Bhangde learned Counsel for the petitionerssubmits that this was a situation before the second wave ofthe Covid 19 pandemic struck the nation which was multipletimes severe than the first one however the situation as itnow prevails clearly appears to be normalizing consideringthe figures of infected persons available as of date. The pleaof the threat of mucormycosis as raised by Mr. RahulBhangde learned Counsel for the petitioners does not on 05 06 2021 on 05 06 0506pilst64621.odt15 appeal to me for the reason that mucormycosis is a falloutof the reduced immunity of a person due to administration ofsteroids during the treatment of Covid 19 and is not adisease akin to Covid 19. 12.That apart it would be material to note that it isnot a case as if the entire lot of examinees are beingexamined at one place thereby creating a crowd of morethan 40 000 persons. As pointed out by Mr. AbhijitDeshpande learned Counsel for the respondent no.4 about40 661 examinees are slated to take the examinations in173 centers throughout the State which would mean thatthere is no single congregation but the examinees are spreadout there being not more than approximately 250 examineesat one center with all the SOP being in place. It is quite adifferent case in CBSE HSSC and SSC examinations whichlacs of students undertake and it in this context that thestatement of the Hon ble Prime Minister has to be construed.The examinees it is material to note are undertaking theexaminations in various medical courses and uponsuccessfully completing the courses would be working in thefield of medicine handling patients with various infections some of which may be communicable and it does not augerwell for such medical professionals to harbour suchinsecurities. on 05 06 2021 on 05 06 0506pilst64621.odt16 13.Even otherwise as already indicated above achoice has been given to the examinees and it is open foreach of the examinees given the situation in which he or sheconsiders himself herself to exercise the choice either bygiving the ensuing examination or undertaking theexamination at a later date as indicated in the Advisory dated19 04 2021 and no prejudice would be caused to suchexaminees as failure to appear at the ensuing examinationshall not be counted as an additional attempt. 14.All the preparations for conducting theexaminations w.e.f. 10 6 2021 are in place which is a date5 days hence. The petitioners and all the students wereaware since 6 10 2020 that the examinations would be heldoffline. The examinations in the earlier two phases wereconducted offline in January February 2021 and March April2021 of which also the examinees were aware and it wouldnot now be justifiable to stay the conduct of theexaminations even on the plea that it should be conductedonline as such conduct may not be advisable in view of therespondent no.4 which is the authority in this regard andalso in view of the preparations involved for such a course. 15. Thus for the reasons stated above I am notinclined to grant any interim relief to the petitioners. Theprayer for interim relief is therefore rejected. The matter be on 05 06 2021 on 05 06 0506pilst64621.odt17 placed before the First Division Bench on 14 06 2021.Needless to mention that the issue regarding themaintainability of the petition on account of absence of locusof the petitioner no.1 and so also its maintainability on behalfof the petitioner no.2 are kept open. (AVINASH G. GHAROTE J.)At this stage Mr. Rahul Bhangde learned Counselfor the petitioners makes a request that at least conduct ofan RT PCR test by every student who undertakes theexamination should be made compulsory and such studentshould have a report of the RT PCR test conducted upon him within a period of 72 hours and should produce the same forthe verification of the authorities at the examination hall andin case any RT PCR report is positive the student should notbe permitted to enter into the examination hall. He submitsthat this would be necessary to prevent any spread ofCovid 19 virus in case any examinee is found to be infected. Mr. Abhijit Deshpande learned Counsel for therespondent no.4 submits that the MUHS is not opposed toany safety measure however he will have to take on 05 06 2021 on 05 06 0506pilst64621.odt18 instructions in this regard from the authorities and wouldrevert back by 1:15 p.m. (AVINASH G. GHAROTE J.)At 1:20 p.m.Mr. Abhijit Deshpande learned Counsel for therespondent no.4 upon having taken instructions from hisclient submits that neither the National Medical Commissionnor the University Grants Commission has issued anydirection to conduct RT PCR test before the examinee entersthe examination hall he further submits that it is difficult tocommunicate to near about 40 000 students any suchrequirement if it is made compulsory now. He submits thatthere are only two modes of communication one is by e mailto the Principals of the respective Colleges who in turn would have to ensure communication to the students and thesecond is by public notice on the website. He submits thatsince the examinations are commencing on 10 06 2021 aperiod of three days commencing from 07 06 2021 is tooless a time to ensure that all the students are made aware ofthe additional conditions if at all imposed. He thereforesubmits that imposing such a condition which has not beenfelt necessary by either the National Medical Commission or on 05 06 2021 on 05 06 0506pilst64621.odt19 the University Grants Commission is not justified orwarranted. He further submits that in case any suchcondition is being put then reasonable time of seven days begranted.None appears for the respondent no.2 State ofMaharashtra. Generally speaking it would be for theexaminees as responsible citizens to have themselves testedfor the Covid 19 virus by conducting an RT PCR test uponthemselves before they leave their residence either for thehostel or for the examination hall. It goes without saying that any examinee who tests positive then has to quarantinehimself herself and there is no question of such examineereporting to the examination centre. The contention of Mr. Rahul Bhangde learnedCounsel for the petitioners that the conduct of the RT PCRtest upon the examinees cannot be left to themselves but hasto be made compulsory would amount to imposing anadditional condition upon the examinees which was notthere in the SOP and in such a case it may so happen thatan examinee may be deprived of appearing in theexaminations for want of RT PCR test report and thereforecannot be made compulsory. on 05 06 2021 on 05 06 0506pilst64621.odt20 However as a safety measure it would beadvisable for each examinee to have conducted the RT PCRtest upon himself and only in case where such examineefinds that the test is negative that he may attend theexamination. The respondent no.4 MUHS therefore isdirected to issue an Advisory to the Principals of the variousColleges and also to publish it on its website indicating thatit would be desirable that each examinee should havehimself tested for Covid 19 and produce the negative reportto the hall examiner along with his hall ticket on10 06 2021. In case an examinee is not having such a RT PCR certificate he can have report of a Rapid Antigen testand be permitted to appear in the examination on its basis but may also be asked to get an RT PCR test conducted uponhimself herself and produce a report in that regard on thenext date of the examination and preferably by 15 06 2021.Needless to say that in case the RT PCR report is foundpositive such an examinee would not be in a position toundertake the examination in order to avoid spread of theinfection. This is all however subject to the directions andinstructions as may be contained in the SOP issued by therespondent no.2 as prevailing on 07 06 2021 or thereafter. (AVINASH G. GHAROTE J.)Wadkar 

Summary: The Court mandated that all students who are planning on taking up their respective examinations, must be go through an RT-PCR test withing a period of 72 hours prior to the examination. A single-judge bench of Justice Avinash G Ghargote, while adjudicating the matter in HERD Foundation v. UOI; [PUBLIC INTEREST LITIGATION ST. NO.6466/2021]; dealt with the issue conducting offline examinations. The petitioners submits that the ensuing examinations for the Under Graduate (UG) Courses i.e. I, II and III years and university UG/PG/Certificate Courses (Winter-2020 Medical Examination) to commence from 10/06/2021, conducted by the respondent no.4 – MUHS, offline, are required to be postponed till such period that each of the students entitled to hold the examination is fully vaccinated or in the alternative they be held online. They submit that the decision dated 19/05/2021, directing the examinations to be held offline i.e. by a physical mode, be quashed and set aside. They submit, that considering the present situation of the Covid-19 pandemic, any assembly of persons for the above said examinations would create a situation where there would be an explosion of the virus again and since the same can be avoided by postponing the examination, it ought to be done as it is the fundamental duty of the Union and the State to protect the life of each and every citizen. The learned counsel for petitioner, submits that every life has an equal inherent value, which is recognized by Article 21 of the Constitution and the Court is duty bound to save that life. He submits that even the teachers and support staff who would be deployed for conducting the examination would be at risk. He submits that when earlier in 2020, the Post Graduate Examinations were conducted in the first phase, the aspirants were vaccinated, being frontline workers in the medical field and were therefore protected. The earlier examinations were conducted before the second wave of Covid-19 pandemic erupted. He submits that any congregation/assembly of a number of persons will aid in the hastening of the third wave. He submits that the petitioners are not frontline workers, and are therefore, incapable of being vaccinated as per the present policy of the Union of India and thus the examinations be postponed to a period after the petitioners get themselves vaccinated, whatsoever time it may take. He submits that neither the respondents, nor the Court can call upon the petitioner no.2 nor students similarly situated to him to put their life at stake merely for the sake of undertaking an examination, which can always be postponed and taken later on.