Andhra Pradesh High Court - Amravati

Dr.Y. Raghu Nandini vs State Of Andhra Pradesh Health on 16 August, 2022

Bench: B Krishna Mohan

                                   -1-




       HON'BLE SRI JUSTICE B.KRISHNA MOHAN

               WRIT PETITION No.23523 OF 2022

ORDER: -

      Heard.


2.    This writ petition is filed questioning the proceedings of the

respondent No.5 in Roc.No.SVIMS/CE/27/DM&MCHE/2007

dated 13.07.2022 rejecting the application of the petitioner for

appearing in the DM University Examinations-2022 scheduled to

be held from 18.08.2022.

3. The petitioner was given Admission Order by the

respondent No.4 in Roc.No.AS/02/DM MCh

Corres/SVIMS/2017 dated 05.09.2019 in DM Neurology course

for the academic year 2019-20. The DM Neurology course is a

PG Super Speciality course and the duration of the said course is

for a period of three years and the petitioner is required to follow

the admission and training guidelines as mentioned in the

Residents' Manual and prospectus. Accordingly, she joined the

course on 09.09.2019. While so, she availed maternity leave in the

first year in three spells i.e., from 16.03.2020 to 15.10.2020 (214

days) and availed medical leave from 28.10.2020 to 22.11.2020 (26

days) in total for 240 days. The said period of 26 days leave was

sanctioned on loss of pay. Thus her 2nd term (first year) was

extended by 203 days from 10.10.2020 to complete the same by

06.05.2021. Then she was promoted to 2nd year (3rd term) on

07.05.2021 as she has to put up minimum 80% of attendance in

each academic term of six months to become eligible for appearing

in the examinations as per the MCI Norms in Clause 13(2) of the

MCI PG Medical Regulation 2000. While granting the leave on

loss of pay for the petitioner, the above said details were furnished

to the petitioner vide proceedings of the respondent No.4 dated

22.12.2020 which was not assailed by the petitioner at any point of

time. Later the respondent No.5 issued circular in

ROC No.SVMS/CE/27/DM & MChE/2007 dated 14.06.2022

fixing the schedule of DM/MCh University theory examinations

2022, to be held from 18.08.2022 to 24.08.2022 as detailed below

in the table.

        Sl.No.   Name of the paper              Date of Examination

          1.     Basic Medical Sciences         18.08.2022

          2.     Clinical Sciences 1            20.08.2022

          3.     Clinical Sciences II           22.08.2022

          4.     Recent advances                24.08.2022

It is intended for the eligible DM/MCH PG Students

appearing for the examinations to obtain the applications from the

office of the respondent No.5. It is also clarified in the said circular

that the PG Students appearing for the examination should put up

the academic year wise compulsory attendance of 80% i.e., a

minimum of 292 working days in each year. For the student of

2019-20 batch, the study period will complete by 31.10.2022 in the

normal course and they are only eligible to appear for the PG

Degree University examination scheduled to be held from

18.08.2022 onwards as stated above. The Post Graduate Medical

Education Regulations 2021 framed under Section 57 of the

National Medical Commission Act, 2019, at Regn. 17.2 reads as

follows:

"All the candidates joining the Post Graduate training programme shall work as Full Time Residents during the period of training and shall attend not less then 80% (Eighty Percent) of the imparted training during each academic year. Further, pregnant Postgraduate students be allowed maternity leave as per existing Rules and Regulations. They shall also be paid stipend during this period. However, their term shall be refixed by the concerned University to makeup the period lost in the training programme due to maternity leave."

However, in pursuance of the circular of the respondent

No.5, dated 14.06.2022, the petitioner made an application to

appear in the above said examinations as per the schedule and the

same has not been accepted for the following reasons as

mentioned in the said impugned proceedings.

"With reference to the above, Dr.Y.Raghu Nandini, DM- Neurology PG Resident is hereby informed that, as the last date of her course completion is 06.05.2023, she was short of 80%

attendance in the 3rd year and will not complete the 3 years course period by the cut off date i.e., 31.10.2022 mentioned in the Examinations schedule notification. Further there is no possibility/scope of completion of the course within four months from the last date of joining of the Super speciality courses in SVIMS University. Hence, the candidate's application to appear for the DM University Examinations-2022 is not accepted."

Hence, aggrieved by the same, this writ petition is filed.

4. The respondent No.3 contested the matter by submitting the

written instructions stating that the DM/MCH Examinations 2022

notification of SVIMS university was issued on 14.06.2022 and the

students were instructed as follows:

"The PG Student appearing for examination should put in Academic year wise compulsory attendance of 80% i.e., must put in 292 working days in each year. The student of 2019-20 batch whose study period completes by 31.10.2022 are only eligible to appear the PG degree University Examination scheduled to be held in August/September, 2022".

The petitioner, PG (DM Neurology) student will complete

the course period on 06.05.2023. In the first year she had 96.44%

of attendance, in the second year she had 99.45% of attendance

and in the third year upto 31.07.2022 she had only 25.75% of

attendance. As per the minutes of the Standing Academic Senate

of SVIMS held on 21.03.2022, it was resolved to follow Dr.NTR

University of Health Sciences Guidelines for Super Speciality

Courses with regard to the attendance of PG Students for giving

eligibility to appear for the examinations. Further it was also

mentioned that the student who completes the course by four

months from the last date of the joining of the course in SVIMS

University. Since she is having shortage of attendance in the third

year in her extended programme, she cannot be permitted to

appear in the above said examination scheduled to be held from

18.08.2022.

5. In the light of the above said controversy, it is to be seen that

the Admission Order of the petitioner dated 05.09.2019 itself

specified that the duration of the course is for a period of three

years and the admission of the petitioner is governed by the

training guidelines as mentioned in the Residents' Manual and the

Prospectus apart from the other terms and conditions. When she

availed the maternity leave and medical leave, then only it was

specified that the duration of course is extended and it is re-fixed to

complete the 2nd term (one year) by 06.05.2021 and on completion

of the same she was permitted to 2nd year (third term) on

07.05.2021. Thus her third year programme will be completed by

06.05.2023 only as mentioned in the impugned proceedings of the

respondent No.5 dated 13.07.2022. The proceedings of the

respondent No.4 dated 22.12.2020 also clarified that 80% of

attendance is required in each academic term of six months to

become eligible to appear for the examination as per Clause 13(2)

of the MCI PG Medical Regulation 2000. The said proceedings

has become final in respect of the petitioner as it was not

challenged and the same was accepted by availing the above said

leaves and having accepted the extension of duration of the course

by refixation of the same by the University the petitioner cannot

plead contra to it now. The Circular issued by the respondent No.5

dated 14.06.2022 while fixing the above said schedule of

examinations specifies the students who are eligible to appear for

the said examinations in a categorical manner in which the

petitioner would not fit in in view of the specific statutory

regulations of the Post Graduate Medical Education Regulations,

2021. As per Regulation 17.2 the candidates shall attend the Post

Graduate Training Programme with not less than 80% of the

imparted training during each academic year. The pregnant PG

Students will be allowed maternity leave as per the existing rules

and regulations and their term shall be refixed by the concerned

University to make up the period lost in the training programme

due to the maternity Leave. Accordingly following the Regulation

17.2 of the above said statutory regulations, the University has

refixed her academic training programme under the proceedings of

the respondent No.4 dated 22.12.2020 itself. Thus following the

same, the impugned proceedings have been issued by the

respondent No.5 treating her completion of the course would be

on 06.05.2023 subject to fulfilling the minimum attendance of 80%

for each academic year. It is not out of place to note that the

petitioner did not challenge the above said Regulation 17.2 in this

writ petition.

6. The judgment relied upon by the petitioner in

W.P.No.25729 of 2018 and batch of the Hon'ble Madras High

Court dated 05.10.2018 reported in SUCHITRA AND ORS. VS.

TAMILNADU MEDICAL COUNCIL AND ORS., at

paragraphs 24 and 25, it was held as follows:

"24. As stated earlier, the petitioners have attendance for more than 90% in one year. Taking into consideration the overall attendance in the year in which the petitioners have successfully completed their training programme, the attendance of the petitioners for the other year, though falls short of 50%, if the number of days in excess of the required attendance is added that will make the petitioners eligible to continue the course without break. Even assuming that the petitioners do not have 50% of the attendance in the second year, having regard to the fact that the petitioners were compelled to avail maternity leave which is and it is natural and a biological process maternity leave cannot be allowed to be a hindrance to the education of any woman. Even though the University has not framed any regulations to same women from such situation, it requires to be formulated in the light of the Article 4.2 of CEDAW (Convention on the elimination of all forms and discrimination against women).

25. The fact remains that the shortage of attendance for the petitioners in one of the years in the two year course was made good by undergoing subsequent training by the petitioners. As on today, the petitioners have attendance for more than 80% if the attendance in which there was a break is taken along with the attendance of the

petitioners this year. In such a situation, this court is of the view that the petitioners are entitled to succeed for the reasons stated in the above paragraphs."

That is a case of two years course of PG Diploma course

and where aggregate of attendance is permissible and the

petitioner therein fallen short of 50% of attendance. That judgment

has no application to the facts and circumstances of this case as the

petitioner so far has put up 25.75% of attendance in the third year

and the above said statutory regulation contemplates minimum of

80% of attendance for each year. The DO Letter of University

Grants Commission dated 14.12.2021 referred by the petitioner is

only a request made to the Universities to provide regulations/

exemptions relating to the attendance for women students who

availed maternity leave and it is only recommendatory in nature

but not binding on the universities as there are the above said