Pramod Namdeorao Nawarkhede vs Nagpur University and others

H.W. Dhabe, J.—The short question which arises for consideration in this writ petition is about the interpretation of Rule 18 of Ordinance No. 55 issued by the Nagpur University i.e. the respondent No. 1 regarding the examinations to the M. B. B. S. Degree Course.

The facts are that the petitioner was admitted to the First year of the M.B.B.S. Course in the Medical College at Nagpur i.e. the respondent No. 2 in the academic session 1986-87. He did not appear for the Winter 1987 Examination which was due after he was admitted to the said Course because, according to him he was sick at that time. The next examination was in 1988 in which he appeared but passed in the subject of Anatomy only. In Winter 1988 Examination, he tailed. Similarly, he also failed in Summer 1989 and Winter 1989 Examinations. As regards the examination to be held in Summer 1990, the petitioner was not allowed to appear for the said examination by the respondent No. I on the ground that he had already availed of 5 chances for appearing at the First M.B.B.S. Examination and he was not therefore entitled to take the 6th chance to appear for the said examination except when he was ill and was taking treatment in the College Hospital regarding which he had not produced a certificate from the Dean/Principal of the College to the effect that he was under the treatment of a physician or Surgeon in the College Hospital and as such was not in a position to present himself for the examination. It is the case of the petitioner that during the time between 2nd November 1987 to 10th December 1987 he was suffering from recurrent and acute exacerbation of duodenal ulcer with hepatitis and had undergone treatment in Vitthal Sushrusha Kendra. Buldana because of which he could not appear for the Winter 1987 Examination. He has submitted the certificate in that regard dated 11th December 1987 from the doctor concerned of the said hospital which is certified by the Civil Surgeon, Buldana. The Nagpur University, however, did not accept the said certificate and disallowed him to appear for the Summer 1990 examination. Feeling aggrieved, the petitioner has preferred the instant writ petition in this Court.

Two questions arise for our consideration in this writ petition. According to the learned counsel for the petitioner, if the petitioner was seriously ill, it would not constitute an attempt within the meaning of Rule 18 of Ordinance No. 55 of the Nagpur University. His second submission is that even assuming that it would constitute an attempt within the meaning of Rule 1 8 of Ordinance No. 55 of the Nagpur University, the operation of the said rule would be harsh rendering it arbitrary and violative of Article 14 of the Constitution if the said rule was literally construed to mean that the certificate produced must be of the Dean of the Medical College concerned where the candidate is taking education and that the candidate must take treatment in the College Hospital concerned. In support of the first contention, the learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Abhijit Vs. Dean, Government Medical College, Aurangabad and Another, . Another decision which is relied upon is of the Andhra Pradesh High Court in the case of Kum. M. Anuradha, Adv. Vs. Sri. Venkateswara University, Triupati, . It is, however, not necessary for us to consider the question whether when the candidate is seriously ill, it would amount to an attempt within the meaning of Rule 18 of Ordinance No. 55 of the Nagpur University, particularly when the language of the said rule is not similar to the rule which the Supreme Court has construed in the above cases. We however, find that on a proper construction of the exception carved out in rule 18 about the candidate being seriously ill the instant writ petition deserves to succeed.

As regards the construction of rule 18 of Ordinance No. 55 of the Nagpur University, there is much substance in the submission made on behalf of the petitioner that if the said rule is read literally, it would become harsh and onerous as a result of which it may be liable to be struck down under Article 14 of the Constitution. It may be seen that the candidates taking education to the Medical Colleges may not be from the same place where the college is situated in which event, if they fall seriously ill at the places of their residence or at place other than where the Medical College is situated, it would not be possible for them to take medical treatment in the same College Hospital. In that event, it would also not be possible for them to produce the certificate from the Dean/Principal of the Medical College as required by the said rule 18 of Ordinance No. 55 of the Nagpur University. In some cases, the illness may be such which has to be treated by Specialist not available in the College Hospital in which case also, the strict construction of rule 18 would become onerous.

It is thus clear that the said rule cannot be read as comprehensive to cover all the contingencies. If read as comprehensive, it may become arbitrary, discriminatory and onerous infringing the fundamental right guaranteed under Article 14 of the Constitution of India. It is well settled that for being read as constitutionally valid, a statute or a rule can be read down.

The said rule has therefore to be read down to mean that it is not comprehensive and if a candidate takes treatment from the College Hospital, then he has to produce a certificate to that effect from the Dean of the College, but if he does not take treatment in the College Hospital, it would not be necessary for him to produce the certificate from the Dean of the College. It would not however mean that he can produce the certificate of and doctor which in many cases may not be treated as an authentic certificate. The intention behind rule 18 is that the certificate produced by the candidate concerned must be an authentic certificate and must be from a competent authority. In the instant case, although the petitioner has taken treatment from the private hospital, the said certificate is countersigned by the Civil Surgeon, Buldana which would mean that he has either examined the petitioner or his case papers before countersigning the said certificate. As regards the illness of the petitioner, no affidavit in reply is filed by any of the respondents and in particular by the respondent No. 2 Dean, to show that the said certificate is false. In this view of the matter, the petitioner was entitled to have an additional chance as provided in the proviso to rule 18 of Ordinance No. 55 of the Nagpur University.

In the result, the instant writ petition is allowed. The respondents are directed to allow the petitioner to appear for the First Year M. B. B. S. Examination which may hereafter be held, since during the pendency of the writ petition, the Summer 1990 examination is already over. Rule made absolute in the above terms. No costs.