HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 374/2022 Rajasthan University Of Health Sciences, Through Its Controller Of Examination, Sector 18, Kumbha Nagar, Pratap Nagar, Jaipur.
----Appellant Versus
1. Pooja Punaram Patel D/o Punaram Patel, R/o Ashok Nagar, 24-B 701, Om Sai Bhiwandi, District Thane (Mh).
2. Kanishka Sharma D/o Ramesh Chander Sharma, R/o House No. 15, Ward No. 5, Batote, Tehsil Batote, District Batote, Jammu And Kashmir (J And K).
3. Harshita Sadhwani D/o Raju Sadhwani, R/o 112, Sindhi Colony, Shastri Nagar, Jodhpur.
4. The Vyas Dental College And Hospital, Pali Road, Jodhpur, Rajasthan Through Its Principal.
----Respondents
For Appellant(s) : Mr. Muktesh Maheshwari
For Respondent(s) : --
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
04/01/2023
The instant intra court appeal is preferred against interim order dated 12.08.2021 passed by the learned Single Bench of this Court in S.B. Civil Writ Petition No.1988/2021. The order reads as under:-
"In S.B. Civil Writ Petition No. 1988/2021:
In this case, this Hon'ble Court had passed the following order on 11.02.2021:
"It is submitted by learned counsel for the petitioner that in similar nature writ petition being SBCWP (Downloaded on 05/01/2023 at 08:53:19 PM) (2 of 6) [SAW-374/2022] No.16155/2018, notices have been issued and interim order has been granted by the Court.
In view of the submissions made, issue notice. Issue notice of stay petition as well, returnable within four weeks.
In the meantime, the respondent No.1 shall provisionally enroll the petitioners and shall provisionally allow them to sit in the BDS First year Course Examination for February, 2021."
Today, the urgency in the matter is that the petitioners were provisionally permitted to appear in the BDS First Year Course Examination held in February 2021, and now the result has to be declared, to enable the petitioners to continue with their studies.
Looking to the paucity of time, the matter cannot be heard finally today, at this stage.
However, since the aforequoted interim order has been passed by this Hon'ble Court to allow the petitioners to provisionally appear in the examination in question, it is reasonable for the petitioners to demand declaration of their result. Thus, the respondents are directed to declare the petitioners' result of BDS First Year Course Examination held in February 2021. It is needless to say that it shall enable the petitioners to continue with their studies.
Learned counsel for the petitioners, at this stage, submits that the last date for submitting the form for supplementary examination was yesterday i.e. 11.08.2021.
Yesterday, though the matter was listed, but the same could not reach.
Thus, the respondents are further directed to accept the form of the petitioners in relation to the supplementary examination of the Course in question and allow the petitioners to appear in the ensuing examination.
It is however, made clear that the interim orders of this Court shall not create any right or equity in favour of the petitioners.
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(3 of 6) [SAW-374/2022] It is further observed that the respondents shall be free to impose appropriate penalty upon the College, which prima facie seems to have defaulted in the matter, at this stage.
List the matter on 04.10.2021, and on that date, the learned counsel for the parties shall be free to make their submissions on merits."
It would be pertinent to note here that the before passing of the impugned interim order dated 12.08.2021, when the writ petition came up for admission before learned Single Bench on 11.02.2021, following interim order was passed:-
"It is submitted by learned counsel for the petitioner that in similar nature writ petition being SBCWP No.16155/2018, notices have been issued and interim order has been granted by the Court.
In view of the submissions made, issue notice. Issue notice of stay petition as well, returnable within four weeks.
In the meantime, the respondent No.1 shall provisionally enroll the petitioners and shall provisionally allow them to sit in the BDS First year Course Examination for February, 2021."
The appellant does not dispute the fact that in compliance of the interim order dated 11.02.2021, the respondent Nos.1 to 3 were allowed to provisionally appear in the BDS First Year Course Examination, 2021. However, their results were withheld.
An application under Article 226 of the Constitution of India was thus moved for declaration of the result of BDS First Year Course Examination, 2021 held in the month of February 2021 qua respondent Nos.1 to 3.
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(4 of 6) [SAW-374/2022] Appellant also does not dispute the fact that no application for vacating/varying the order dated 11.02.2021 was moved before learned Single Bench.
It was submitted on behalf of the appellant that the respondent Nos.1 to 3 filed writ petition before learned Single Bench portraying themselves to be students of BDS First Year Course studying in respondent No.4 college namely, Vyas Dental College, Jodhpur though their names were not uploaded on the website of Dental Council of India on or before 15.09.2019 being the last date of admission as per the schedule for admission in BDS Course for the academic session 2019-20. Counsel for the appellant submitted that Dental Council of India, vide its communication dated 07.12.2019 had directed respondent No.4 Vyas Dental College, Jodhpur to discharge respondent Nos.1 to 3 from the BDS Course. Learned counsel further submitted that in view of letter dated 07.12.2019, impugned interim order dated 12.08.2021 ought not to have been passed by the learned Single Bench. He thus prayed that present intra-court appeal filed against interim order dated 12.08.2021 may be allowed.
Heard learned counsel for the appellant and perused the material available on record.
The present intra-court appeal has been filed on 06.05.2022 i.e. almost after nine months from the passing of impugned interim order dated 12.08.2021.
Indisputably, an application seeking amendment in the writ petition preferred on behalf of respondent Nos.1 to 3 assailing the communication dated 07.12.2019 of Dental Council of India directing respondent No.4 to discharge respondent Nos.1 to 3 (Downloaded on 05/01/2023 at 08:53:19 PM) (5 of 6) [SAW-374/2022] from BDS Course is pending consideration before learned Single Bench.
It is apposite to note here that even in the present special appeal, no challenge to the interim order dated 11.02.2021 has been made pursuant to which respondent Nos.1 to 3 were provisionally permitted to sit in the BDS First Year Course Examination.
In our considered opinion, an intra-court appeal against the orders of interim relief(s) is ordinarily not required to be entertained because granting an interim relief keeping in view the facts and circumstances of the case remains within the discretion of Single Bench dealing with the writ petition. An intra-court appeal directed against interim order(s) can only be entertained when a definite case of gross failure of justice or prejudice has occasioned.
As noted above, the impugned interim order dated 12.08.2021 was passed keeping in view the fact that a valuable academic year of the students would be adversely affected in case the results of examination undergone by them is not declared. The learned Single Bench in the impugned interim order clearly mentioned that interim orders of this Court shall not create any right or equity in favour of the petitioners.
Having regard to the totality of facts and circumstances, without commenting on the merits of the case, we permit appellant to make appropriate application before learned Single Bench for vacating the impugned interim order. It will also be open for the appellant to make prayer before learned Single Bench for early hearing of the matter.
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(6 of 6) [SAW-374/2022] In view of aforesaid, the impugned interim order dated 12.08.2021 does not warrant interference in this intra-court appeal.
Accordingly, the special appeal is dismissed. No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J 24-Ravi Kh./-
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