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Judgment
By way of this intra-court appeal, the petitioner-appellant has put to question the order dated 16.04.2010 as passed in SBCWP No. 5322/2010 whereby, the learned Single Judge of this Court has found her claim, to take final Examination in MS (Obstetrics & Gynecology) in the month of October 2009, untenable with reference to the stipulations contained in University Ordinance 278-E(V). The relevant background aspects of the matter are that the petitioner-appellant, after having passed her graduation (MBBS), appeared in the examination conducted for Post Graduation Course and was selected for the same in the year 1994 for 3 years'' degree course in MS (Obstetrics & Gynecology). She completed 3 years'' course from SMS Medical College and Hospital, Jaipur and ultimately appeared in the final examination in the month of October 1997 but could not succeed. Thereafter, for a long length of time, she did not appear in the said examination of the said course of MS (Obstetrics & Gynecology) but then, submitted an application in the year 2009 seeking permission to appear in the examination. The application so moved by the petitioner to the University was forwarded to the Dean Faculty of Medicine and Principal, Dr. S.N. Medical College, Jodhpur who opined under his communication dated 29.01.2010 (Annex. 9) that the petitioner could be allowed to appear in the examination as prayed for. However, when the respondent-University did not accord the permission as prayed for, the petitioner-appellant filed the writ petition leading to this appeal after making a representation on 15.03.2010.
The respondent-University, in its reply to the petition, essentially with reference to the provisions contained in the said Part (V) of Ordinance 278-E, contended that the petitioner was not entitled for the permission as sought for.
The learned Single Judge of this Court considered the matter in the impugned order dated 16.04.2010 and found the submissions of the petitioner-appellant untenable with reference to the contents of said clause in Ordinance 278-E and proceeded to dismiss the writ petition, inter alia, with the following observations:
The submission made is without substance for the reason that the Ordinance 278(E)(V) which deals for admission to post-graduation provides completely mechanism while seeking admission and for completion of the course. Ordinance 278(E)(V) which has been quoted in para 3 of the writ petition clearly postulates that any candidate after registration for any degree or diploma cannot have a break of more than three months at a stretch during the period of training and must appear in the final examination within five years of the date of registration and it clearly envisage that the period during which one has to complete course after appearing in final examination within five years of registration. The contention advanced that since the petitioner once appeared in MS (Obst. & Gynae) is nothing but distorting the provisions which has been referred to supra.
Consequently, this Court finds no substance in the instant petition and the same is hereby dismissed.
This intra-court appeal was considered by this Court on 29.04.2010 and, while issuing notices to the respondents, the prayer for interim relief was declined. However, on 17.05.2011, on a renewed prayer for interim relief, this Court directed that the appellant be permitted to provisionally take the examination without conferring any additional right upon her. It was also directed that the result of the appellant would not be declared until further orders of this Court. It is an admitted position that the petitioner-appellant did take the examination as permitted but the result has not been declared.
We have heard the learned counsel for the parties finally and have examined the material placed on record.
The learned counsel for the petitioner-appellant argued that the observations and findings of the learned Single Judge are not in accord with the meaning and purport of the provisions contained in referred Ordinance. According to the learned counsel, the requirement of the said Ordinance is only to the extent that after registration for any degree/diploma course, a candidate cannot have a break of more than 3 months at a stretch during the period of training and must appear in the final examination within 5 years of the date of his registration but then, there is no such requirement that the candidate ought to pass the final examination within such 5 years; and there is no prohibition against repeat appearance in the final examination. According to learned counsel, neither there is any chance-limit nor any age-limit for appearance in MD/MS examination and hence, the prayer of the petitioner-appellant for repeat appearance in the examination, even if made after 12 years, could not have been declined.
The learned counsel also referred to an additional affidavit filed in this appeal to the effect that several similarly circumstanced candidates have been permitted by the respondent-University to take repeat examination and that too after a long gap. It is submitted that the contents of said affidavit remain un-controverted and there is no justification in the respondent-University handing down a differential treatment to the appellant.
Per contra, the learned counsel for the respondent has duly supported the order impugned but could not deny the facts stated in the un-controverted additional affidavit of the petitioner-appellant.
After having given a thoughtful consideration to the entire matter, we are clearly of the view that the petitioner-appellant is entitled to the claimed relief and, with respect, it is difficult to approve the order passed by the learned Single Judge in this matter.
The issue involved herein essentially revolves around the meaning, purport and implication of the provisions contained in University Ordinance 278-E(V). It is noticed that Ordinance 278-E deals with MD and MS examination and is divided in different parts. The referred provision in Ordinance 278-E(V) relates to "Period of Training". Omitting the other clauses being not relevant, the material part of this clause could be read as under:-
(v) Period of Training:
The period of training of M.D. and M.S. courses shall be three years after registration of the candidate with the University as a Post Graduate student at an Institution affiliated to the University for training in that particular subject/Specialist.
A candidate shall be allowed to appear in the degree/diploma (PG) Examination only after he/she has completed full term of course of 3 years/2 years respectively on or before the date of commencement of theory examination.
Any candidate, after registration for any of the Degree/Diploma courses, can not have a break of more than three months at a stretch during the period of training and must appear in final examination within 5 years of the date of his registration failing which his registration shall be treated cancelled automatically. No candidate will be permitted to change the place of study/college beyond six months period, in any circumstances.....
With reference to the above Ordinance, the learned Single Judge formed the opinion that a candidate is required to complete the course after appearing in the final examination within 5 years of registration. With respect, we are unable to deduce any such requirement, i.e., of the candidate not only appearing but also passing the final examination within 5 years of registration. The inference as drawn by the learned Single Judge would lead to a non-existing stipulation in the provision aforesaid that the candidate is required to "pass" the final examination within 5 years of registration. True, of course, it is that the candidate is required to appear within 5 years in the final examination but then, in the said provision or any other provision in the Ordinance, we are unable to find the stipulation that the candidate has to secure a pass within 5 years of the date of registration and further that if not securing a pass within 5 years, the candidate cannot be given any other chance to appear.
That the University itself understood and operated the provision aforesaid in the manner that it does not limit the number of chances of appearance in the examination has been amply demonstrated by the petitioner-appellant in the additional affidavit with reference to several such cases where one of the candidate was allowed to avail of 6 chances and he could pass only in the 6th chance, taken nearly 6 years after registration. In one of the case, according to the appellant, the candidate was permitted to appear for the first time in the examination after 12 years of registration. We do not propose to dilate much on the facts stated by the appellant in the additional affidavit but this much is apparent that the Ordinance in question has not been interpreted or applied by the respondent-University in the manner that the candidate not having passed within 5 years is not to be provided any other chance later. Such an approach of the University qua other candidates appears to be correct and justified. There does not appear any reason that the petitioner-appellant was sought to be treated differently.
The petitioner-appellant has otherwise admittedly fulfilled the requirements of training; i.e., of not having break of more than 3 years at a stretch; and having appeared in the final examination within 5 years of the date of registration. There being no other prohibition in the referred Ordinance, in our view, she is entitled to the relief as claimed. As noticed, the petitioner-appellant has already been allowed by this Court to appear in the examination provisionally. Thus, the respondent deserve to be directed to declare the result and to proceed further in accordance therewith.
Accordingly, and in view of the above, this appeal is allowed. The impugned order dated 16.04.2010 is set aside and the writ petition filed by the petitioner-appellant is allowed in the manner that she is held eligible and entitled to appear in MS (Obst. & Gynae.) examination. It is further considered appropriate and hence, directed that the respondents shall declare the result of examination taken by the petitioner-appellant pursuant to the interim order dated 17.05.2011 and shall proceed further in accordance with the result so obtained. No costs.