Monika Maheshwari vs The State of Rajasthan and Others

Alok Sharma, J—The petitioner is aggrieved of her assessment in the Practical/Clinical Examination and Viva-Voce of D.M. (Cardiology) wherein she has been declared to have failed for the third time on 12.8.2014 in a test held with the intervention of this Court in S.B. Civil Review (Writ) Petition No. 31/2012 at the R.N.T. Medical College at Udaipur albeit the petitioner is a student of M.D. Cardiology at the J.L.N. Medical College & Hospital, Ajmer.

It is not in dispute that the petitioner was admitted into the Three year M.D. (Cardiology) Course at the J.L.N. Medical College & Hospital, Ajmer only on the direction, first interim, then final of this Court in the course of S.B. Civil Writ Petition No. 11274/2010. In the first instance while disposing of S.B. Civil Writ Petition No. 11274/2010 vide Judgment dated 20.7.2011 this Court held that the petitioner as an in-service candidate ought to have been entitled to the 13th seat in the Course in issue for the academic year 2010-11 by virtue 30% quota for in-service candidates. It was however, directed that the J.L.N. Medical College & Hospital, Ajmer, write to the Medical Council of India for increase of intake of one seat in D.M. (Cardiology) for the year 2010-11 in view of the fact that during the pendency of the petition, admissions to all the 13 seats had been made including on the one which had been given to an open category candidate when it ought to have gone to an in-service candidate. The petitioner, aggrieved of what she perceived to be incomplete relief putting her fate in the hands of M.C.I, first laid D.B. Special Appeal (Writ) No. 1665/2011 against the Judgment & Order dated 20.7.2011 but then withdrew on 1.3.2012 with liberty to file a review petition. Review Petition No. 31/2012 followed. Therein this Court vide order dated 20.3.2015 held that the petitioner was in-fact entitled to admission to the M.D. (Cardiology) Course on the 13th seat by virtue of her being an in-service candidate entitled to 30% quota and if at all there was an issue of admission of an excess student, it was to the detriment of the last candidate admitted from the open category. M.C.I. has since however refused to enhance the intake in new view of Section 10-A of the Medical Council of India Act. This Court is informed that it is how things thus presently stand.

In the meantime, the petitioner completed the Three Years Course, she was admitted to under orders of this Court and wrote the written examination in M.D. (Cardiology) in August 2013. In terms of the obtaining Rajasthan University of Health Science Ordinances and the Medical Council of India Regulations, 2010, a candidate to pass the D.M. Course has to obtain minimum 50% marks in the written examination and then 50% minimum marks in the practical/clinical examination and viva-voce. Albeit the petitioner passed the written examination with 50% marks, yet in the practical/clinical examination held in August 2013, she was declared to have been "disallowed" i.e. failed. It would be relevant to note that two other students of D.M. (Cardiology) along-with the petitioner admitted in 2010-11; Smt. Archana Gokhru and Dr. Deepak Padmnabhan also failed.

The petitioner in the circumstances along-with the failed candidates re-wrote the remand examination for the D.M. (Cardiology) in January 2014. She again passed the written examination having obtained more than 50% marks. She however, was again "disallowed" in the Practical/Clinical examination and Viva-voce i.e., having failed to secure 50% marks.

The petitioner in her pending S.B. Civil Review (Writ) Petition No. 31/2012 then alleged for the first time, mala fides against the respondent No. 3-Dr. R.K. Gokhroo, Professor & Head of Department, Cardiology, J.L.N. Medical College & Group of Hospitals, Ajmer for her grief of failure twice in the Practical/Clinical examination and viva-voce and accused him of targeting her, intent on destroying her career for having been admitted to the course with the intervention of this Court. This Court without addressing the allegations of mala fides or opining thereon vide interim order dated 6.3.2012 allowed the petitioner to be reevaluated in the Practical/Clinical examination and Viva-voce following the remand examination of January 2014 afresh by the R.N.T. Medical College at Udaipur. Unfortunately for the petitioner. In the subsequent result declared on 22.2.2014 she was again "disallowed" i.e. declared failed.

The petitioner has in the circumstances by way of the present writ petition again alleged that the respondent No. 3- Dr. R.K. Gokhroo has been instrumental in her failure for reasons of his bias and mala fides and had influenced the Internal & External examinations at all three times she wrote the practical/clinical examination and took the viva-voce, to her detriment. It has been prayed as under:

"(A) An appropriate writ, order or direction to the official-respondents to summon the petitioner''s earlier practical examination record held on 22.2.2014 held at JLN Medical College, Ajmer as well as 12.8.2014 held at RNT Medical College, Udaipur with its entire record including the bed-head tickets and log-book and to get in scrutinized/evaluated by a panel constituted by the Hon''ble Court and further, if the petitioner is declared qualified in the said examination, to declare the result of the petitioner''s DM Cardiology Course relating it to the theory paper result of the petitioner''s second attempt'' in the interest of justice and law.

(B) An appropriate writ, order or direction to the official-respondents, as an alternative prayer, to re-conduct fresh petitioner''s practical examination of DM Cardiology at any centre under Court surveillance and further, if the petitioner is declared qualified in the said examination, to declare the result of the petitioner''s DM Cardiology Course relating it to the theory paper result of the petitioner''s second attempt'' in the interest of justice and law.

(C) An appropriate writ, order or direction to the respondent No. 1 & 2 to initiate appropriate disciplinary proceedings against the respondent No. 3.

(D) An appropriate writ, order or direction to the respondents, quashing any adverse order, if passed, during the pendency of the writ petition frustrating the cause of the writ petition.

(E) Cost of the writ petition."

Before addressing the petitioner''s case based on bias and mala fides vitiating her assessment in Practical/Clinical examinations Viva-voce for the D.M. (Cardiology) particularly in the results of January 2014, 22.2.2014 & 12.8.2014, it would be in place to set out the law as enunciated generally, by the Hon''ble Apex Court, on mala fides and bias and particularly in reference to allegations of bias and unfairness in the assessment by Experts in the course of examinations.

Allegations of bias and mala fide are of no avail until against those the allegations have been made have been impleaded. In National Institute of Technology Vs. U. Dinakar, AIR 2015 SC 476 : (2014) AIRSCW 6953 : (2014) 8 SCALE 243 it was held that where a Committee''s decision was challenged as being vitiated by bias and only one Member was impleaded without impleadment of other Members of the Committee, the ground of attack based on bias was unsustainable and liable to be rejected.

A plea of bias should be raised at the first opportunity as held in State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc., AIR 2012 SC 364 : (2012) CriLJ 1001 : (2012) 1 Crimes 44 : (2011) 14 JT 213 : (2012) 1 RCR(Criminal) 126 : (2011) 3 SCALE 394 : (2012) AIRSCW 207 : (2011) 8 Supreme 577 for a belated plea would be untenable and barred by the doctrine of waiver as held in G. Sarana Vs. University of Lucknow and Others, AIR 1976 SC 2428 : (1976) LabIC 1546 : (1977) 1 LLJ 68 : (1976) 3 SCC 585 : (1977) 1 SCR 64 : (1976) 8 UJ 701 and U.D. Lama and Others Vs. State of Sikkim and Others, (1996) 9 AD 544 : (1996) 10 JT 757 : (1996) 8 SCALE 613 : (1997) 1 SCC 111 : (1997) SCC(L&S) 142 : (1996) 9 SCR 180 Supp .

Allegations of mala fide and bias are easier made then proved. For making a case of bias or mala fides material facts are to be pleaded and established from evidence of probative worth or circumstances which probablise bias or at least reasonable likelihood of bias. The motive should also be established.

In Vijay Syal and Another Vs. State of Punjab and Others, AIR 2003 SC 4023 : (2003) 5 JT 241 : (2003) 5 SCALE 27 : (2003) 9 SCC 401 : (2003) SCC(L&S) 1112 : (2003) 1 SCR 242 Supp : (2003) 1 SLJ 13 : (2003) AIRSCW 2954 : (2003) 4 Supreme 299 the Hon''ble Apex Court held that, a writ Court cannot generally interfere with assessment in an examination- and the only exception would be a clear case of mala fide a bias-actual or of its reasonable likelihood. Yet there can be no presumption of bias rooted only in suspicion and dissatisfaction with an outcome.

In M.V. Thimmaiah and Others Vs. Union Public Service Commission and Others, (2007) 13 JT 613 : (2007) 14 SCALE 537 : (2008) 2 SCC 119 : (2008) 1 SCC(L&S) 409 : (2008) 2 SLJ 397 the Hon''ble Apex Court has held that in matters of selection, people are prone to making allegations of bias sometimes bonafide but often mala fide for reason of their vested interest and pique at failure. Hence such allegations are to be meticulously scrutinized but discarded unless substantiated beyond doubt.

In D.V. Bakshi and others etc. etc. Vs. Union of India and others, AIR 1993 SC 2374 : (1994) 46 ECC 1 : (1993) 48 ECR 209 : (1994) 74 ELT 200 : (1993) 4 JT 180 : (1993) 3 SCALE 69 : (1993) 3 SCC 663 : (1993) 1 SCR 200 Supp it has been held by the Hon''ble Apex Court that allegations of nepotism and favoritism in an interview cannot be substantiated by bald allegations. Yet those examining candidates at any interview must maintain proper records to eschew any misgivings of the candidates with regard to the fairness of the interview/oral examination.

Reverting to the facts of the present case it is evident that the petitioner has been put through Practical/Clinical examination and oral test by four Experts two Internals and two Externals on three occasions August 2013, 22.2.2014 and 12.8.2014. In August 2013 the practical/clinical/oral examination viva-voce was with Dr. Vijay Pathak and Dr. C.B. Meena as Internal Examiners and Dr. Rajesh Vijayvargiya (Chandigarh) with Dr. Rajeev Bhardwaj (Shimla) as External Examiners, on 22.2.2014, Dr. C.B. Meena with Dr. Pintoo Nahala - were the Internal Examiners and Dr. R.K. Bansal (Kanpur) with Dr. C.P. Patil (Bangalore) were the External Examiners. On 12.8.2014 when the examination in issue was held at RNT Medical College, Udaipur, Dr. Kapil Bhargava with Dr. Mukesh Sharma were the Internal Examiners and Dr. Rajeev Bhardwaj (Shimla) with Dr. Sudeep Kumar (Lucknow) were the External Examiners. The respondent No. 3- Dr. R.K. Gokhroo was at no point of time a Member of the Expert Committee examining the petitioner for her Clinical/Practical knowledge of the Cardiology or subjecting her to a viva-voce/oral evaluation on the subject. No unholy linkage, other than a purely professional one between respondent No. 3 Dr. R.K. Gokhroo and the Experts, as sought to be inferred by the petitioner is to say the least not only tenuous but absent. Moreover, none of the Experts have been impleaded in the writ petition as a party. It has not been pleaded that any of the Experts especially the External were in subordination to the respondent No. 3- Dr. R.K. Gokhroo or in any matter obliged to him to warrant jettisoning of their morality and ethics despite being Professors and become a part of a "universal conspiracy" headed by Dr. R.K. Gokhroo against the petitioner. Aside of the aforesaid, I am of the considered view that the allegation of mala fide against the respondent No. 3 Dr. R.K. Gokhroo is without substance in as much as it is largely attributed to his relationship with another candidate Dr. Archna Gokhroo, the daughter-in-law of his brother and his annoyance at the petitioner having been admitted to the D.M. (Cardiology) Course 2010-11 at JLN Medical College & Hospital under orders of this Court.

From the pleadings on record, it is evident that Dr. Archana Gokhroo was at S. No. 1 amongst the in-service candidates selected for admission into D.M. (Cardiology) in the Session 2011-12 at the J.L.N. Medical College & Hospital, Ajmer. She had no manner of conflict with the petitioner who did not even find place on any of the three seats in the quota of in-service candidates but was admitted only subsequently with the intervention of this Court in S.B. Civil Writ Petition No. 11274/2010 and S.B. Civil Review (Petition) No. 31/2012, holding that there ought to have been four seats for in-service candidates in the quota of 30% vis-�-vis 13 seats in D.M (Cardiology) at JLN Hospital & Medical College for the session 2010-11 and further directing that the petitioner would be entitled to the 4th of the 13 seats for in-service candidates. In the circumstances, this Court does not find any conflict of interest between Dr. Archana Gokhroo on the one hand and the petitioner on the other. The allegation of Dr. R.K. Gokhroo being annoyed by the petitioner''s admission under this Court''s order were belatedly made after the second failure at the Practical/Clinical examination and viva-voce in February 2014 and in the circumstance weaken their credibility. No motive for Dr. R.K. Gokhroo''s allege bias and mala fide has been made out. Hence the very foundation of the petitioner''s case against the respondent No. 3- Dr. R.K. Gokhroo is devoid of merit. Further the influence of the respondent No. 3 Dr. R.K. Gokhroo on the three sets of examiners both Internal and External is also over-stated for more than one reason. One, as Head of Department of Cardiology, the respondent No. 3- Dr. R.K. Gokhroo did not have an over arching influence over the Experts specially Externals appointed for the Clinical/Practical examination and viva voce in August 2013 and 22.2.2014 at the J.L.N Medical College & Hospital, Ajmer and on 12.8.2014 at the R.N.T. Medical College, Udaipur when the petitioner was exceptionally allowed a second chance at the Clinical/Practical examination and viva voce without having to write the written examination for M.D. Cardiology afresh as she would otherwise have been required to under the RUHS''s Governing Ordinances and Medical Council of India Regulations, 2000 which mandate that a D.M. Examination would be a composite one comprising a theory written examination on the one hand and Clinical/Practical examination and viva voce on the other. Bifurcation of the two is not visualized. Further in the event of the respondent No. 3- Dr. R.K. Gokhroo being influential as the petitioner alleges, his brother''s daughter-in-law Dr. Archana Gokhroo was not likely to have been herself "disallowed" i.e. failed in the first Clinical/Practical examination and viva voce in the Month of August 2013.

As held by the Hon''ble Apex Court in the judgments detailed here-in-above, the ground of bias and or mala fide cannot be based upon mere suspicion and bald allegations. The petitioner was under an obligation to make out a case of mala fide or bias or reasonable likelihood of bias from the material on record and surrounding circumstances which probablised her case. This has not been done. Further, in the case at hand the petitioner set up the case of bias/mala fide against the respondent No. 3-Dr. R.K. Gokhroo only subsequent to her having failed, the Clinical/Practical examination and viva voce both in August 2013 and the remanded examination of 22.2.2014. It is well settled that a delayed allegation of bias and mala fide, subsequent to failure and far removed from the time when the occasion first arose for the allegation, can be of no avail to the petitioner. This is also so in the present case.

The ground of mala fide or bias or reasonable likelihood of bias having not been substantiated either from material of probative worth or circumstances by the petitioner against the respondent No. 3- Dr. R.K. Gokhroo and the petitioner not having impleaded any of the four different sets of examiners over three different Clinical/Practical examination and viva voce, I am not inclined to entertain the petitioner''s plea of mala fide/bias resulting in her being repeatedly "disallowed" i.e., declared unsuccessful in the D.M. Cardiology Clinical/Practical examination and viva voce on any of the three occasions in August 2013, 22.2.2014 and 12.8.2014.

That leaves the issue of the merit of the petitioner''s assessment in the M.D. Cardiology Clinical/Practical examination and viva voce at the end of her Three year course. It is no doubt true that the petitioner passed the theory paper both in the first written examination of August 2013 and the remanded examination of 22.2.2014, yet as held by the Hon''ble Apex Court, performance of a candidate in the written examination is no guarantee or insurance for her performance in an interview/viva-voce. The purpose of the two evaluation is independent, distinct and were it not so the requirement of separate evaluation at the two examinations would have been redundant. Experts have held as reflected in MCI''s Governing Regulations of 2010 that it is not so. That is as the scheme of the D.M. Examination stands. And has to be so left. The Medical Council of India Regulations, 2010 dealing with D.M examinations provide that a candidate has to obtain at-least 50% marks both in the written examination and so to in the Clinical/Practical examination and viva voce. This the petitioner has admittedly failed to do. She has been marked on three different occasions by the Experts (two internals and two externals), twice at the J.L.N. Medical College & Hospital, Ajmer and thrice at the R.N.T. Medical College at Udaipur. Each of the Experts marked the petitioner individually under various heads and yet she was found to be short on the academic/professional requirements and was hence "disallowed" i.e. declared unsuccessful. It is well settled and needs no reiteration that this Court in the exercise of its powers under Article 226 of the Constitution of India does not sit as if in appeal, nor can on the decision of Experts/Examiners with their domain knowledge. This principle would stand exacerbated in a case of challenge to the opinion of Experts in respect of a Clinical/Practical examination and viva voce in respect of D.M. (Cardiology).

The writ petition, is therefore without force and accordingly dismissed.