Ms. Shinde Vijaya Khanderao vs Maharashtra University Of Health ...
2017 Latest Caselaw 7663 Bom

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Ladda(PS).


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION


                             WRIT PETITION NO. 8917 of 2011.
                                      ALONG WITH
                            CIVIL APPLICATION No. 127 of 2017.


      Ms. Shinde Vijaya Khanderao                                   ..Petitioner.
      Age :Minor, Occup.student,
      through : her natural guardian
      and father Mr. Khanderao
      Raghunath Shinde,
      both residing at Warana Nagar
      Taluka Panhala, District Kolhapur.

                        Vs

      (1) Maharashtra University of Health
          Sciences having office at Vani Road,
          Mhasrul, Nashik-422004,
          through the Registrar.

      (2) Central Council of Indian Medicine,
          61-65, Institutional Area,
          Janakpuri, New Delhi-1100 58,
          through its Secretary.

      (3) J.J.Magdum Ayurvedic Medical
          College, having office at City Survey
          No. 295, Shirolwadi Road.             ..Respondents.

      Mr. Uday P. Warunjikar a/with Mr. Siddesh Pilankar Advocate
      for the petitioner.
      Mr. Shirish V. Pitre, Advocate for Respondent No.1.


                                 CORAM : ANOOP V. MOHTA &
                                         SMT. BHARATI H.DANGRE, JJ.

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Closed for order on : 11th September, 2017 Order pronounced on : 28th September,2017.

JUDGMENT:-(Per Smt. Bharati H.Dangre, J)

1) The petitioner student has approached this Court

seeking a direction to the Central Council of Indian Medicine to

complete the procedure of approval of amendment in the Indian

Medicine (Minimum Standards of Education in Indian Medicine)

(Amendment) Regulation, 1989 in view of the decision taken by the

Council in its meeting dated 24/25th November,2010. Further the

petitioner has sought direction to respondent No.1 University to

grant provisional eligibility to the petitioner and to accept her

examination form for the First Year of BAMS and allow her to

appear for the said examination. The said petition was filed in the

year 2011 when the petitioner sought admission to the BAMS

Course and she was issued with a letter that her admission cannot

be confirmed as she is under age and for admission to the first

BAMS course, minimum age is 17 years. According to the

petitioner, she was borne on 5 th October, 1992, however, in the

School Leaving Certificate due to inadvertent mistake her date of

birth was shown as 5th October, 1993.

2) By an order dated 24th October, 2011 a Division Bench

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of this Court permitted the petitioner to appear in the First Year

B.A.M.S. Examination Scheduled in May,2011 subject to further

orders of this Court. On 12 th April,2012 this Court directed the

respondent to declare the result of the petitioner for the first year

BAMS and accordingly her result was declared. Further by an

order dated 22nd April, 2014 since the petitioner had already

appeared in III Year Examination, the respondents were directed to

declare the result subject to the outcome of the petition. The

petitioner has thus reached the final year of the course and has

passed the same.

The Petitioner filed Civil Application No. 127 of 2017 in

the present writ petition stating that though she had passed the

final year of the Examination of BAMS Course and undergone her

internship, her original degree certificate and other documents are

lying with the respondents and she is not able to obtain the final

registration from respondent No.2. She therefore sought directions

to the respondent to return the original documents. The said

application is opposed by Respondent No. 1 and 2 on the ground

that in terms of Section 22 (1) of the Indian Medical Council Act,

the Central Council prescribes the minimum standard of education

in Indian Medicine and accordingly the Indian Medicines Central

Council has framed the Indian Medical Central Council (Minimum

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Standards of Education in Indian Medicine)Regulations, 1989

which provides that the minimum age for admission to Ayurved

Course would be 17 years as on 1 st October in the year of admission.

According to the respondent, since the petitioner did not fulfill the

said condition and she was under age, her admission cannot be

confirmed. Our attention is invited to an order passed by this Court

in Writ Petition No. 8745 of 2010 Aniket Shrikant Patil Vs.

Directorate of Medical Education & Ors dated 22 nd December, 2010,

wherein it was pointed out that the Central Council of Indian

Medicine has amended the Regulations for (Minimum Standards of

Education in Indian Medicine)Regulations, 1986 by passing a

resolution and thereby prescribing that the candidate shall

complete age of 17 years on or before 31 st December of the year of

admission to the MBBS Course. It is, therefore, prayed that the writ

petition deserves to be dismissed.

We have heard the learned counsel for the respective

parties.

3) It is no doubt true that the petitioner was under age at

the time of her admission to the first year BAMS Course and we

have also noted that this Court had permitted the petitioner to

appear for the examination from time to time and issued direction

to declare the result. Further, on 28 th February, 2012 this Court

observed that the petitioner may request to the School Authorities

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to correct her date of birth in the school record and if the same is

corrected, the corrected copy of the same may be produced before

this Court. However, it appears that no steps have been taken by

the petitioner for complying with the said direction. But it is equally

true that under the order of this Court the petitioner was permitted

to complete her BAMS Course and she has undergone her

Internship also. The interim orders passed by this Court from time

to time were made subject to final orders of this Court.

4) We are conscious of the fact that the interim orders

were passed from time to time to protect the petitioner at the

relevant time whenever she approached this Court by filing Civil

Applications as the contingency arose. We are also conscious of the

fact that relaxation of the eligibility criteria is not within province

of this Court and this Court in exercise of its writ jurisdiction would

be slow in interfering with the same. However, here, we are dealing

with the case of the student who has completed her BAMS Course

and Internship and is awaiting decision from this Court about her

eligibility criteria relating back to 2011 when she was found to be

under age at the time of admission to her first year course. This

Court while exercising the powers under Article 226 of the

Constitution of India is also expected to balance the equities and we

are guided by the principle of law 'Actus Curiae neminem gravabit"

(an act of court shall prejudice no man). Since we had passed

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interim orders and permitted her to complete her BAMS Course, it

would not be in the interest of justice to turn the clock back to the

year 2011 and declare her unfit for admission on the ground of

being under age. It is not the case of the respondent further there is

any deception or fraud played by the petitioner when she secured

such admission.

Equity demands that the petitioner be declared as passed

BAMS Course and she be handed over a Degree Certificate in view

of the fact that her fruitful years have been spent in prosecuting

her studies for professional course of BAMS and at this stage

though the learned Counsel for the respondents have vehemently

opposed the petitioner, we are inclined to allow the writ petition.

However, we make it clear that the order passed by us will not be

treated as precedent and we make it clear that we are passing the

said order of confirming BAMS Degree and granting final

registration from Respondent No.2 only as an exceptional case in

an attempt to balance the equities in favour of the petitioner. This

will result into no prejudice to the respondents.

5) In the aforesaid circumstances, we allow the writ

petition and direct the respondents to return the original

documents to the petitioner which are in their custody and declare

that the petitioner has successfully completed her BAMS Course

and she be awarded the original degree certificate and other

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documents pursuant to the passing of the said course within a

period of two weeks from today. No order as to costs.

6) In view of disposal of the main writ petition, the Civil

Application is disposed of.

(SMT. BHARATI H.DANGRE,J) (ANOOP V. MOHTA,J)

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