Bombay High Court
Niloba Changadeo Gaikwad vs State Government Health Dept And Ors on 1 April, 2025
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2025:BHC-AS:15080-DB
Digitally signed
by ANANT
ANANT KRISHNA
NAIK
WP.7954.2023 (J) C4.doc
KRISHNA Date:
NAIK 2025.04.02
14:20:57
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7954 OF 2023
Niloba Changadeo Gaikwad ...Petitioner
Versus
State Government, Health Department & Ors. ...Respondents
****
Mr. Jainendra Sheth, Advocate appointed by the Court to assist on behalf of
the Petitioner.
Mr. Niloba Gaikwad, Petitioner present in Court.
Mr. A. I. Patel Additional Government Pleader a/w Mr. S.B. Kalel, Assistant
Government Pleader for the Respondent Nos. 1 & 8.
Mr. Sachindra B. Shetye a/w Mr. Akshay S. Pansare & Mr. Nipun Sawane,
Advocates for respondent nos. 2 to 6.
****
CORAM : A. S. CHANDURKAR &
M. M. SATHAYE, JJ.
RESERVED ON : 04th FEBRUARY 2025
PRONOUNCED ON : 1st APRIL 2025
JUDGMENT (Per M. M. Sathaye, J):
1. Petitioner is a 60 years old person, claiming to be a student of final
year M.B.B.S. Course (3rd M.B.B.S Part II), who is pursuing the said decree
from the Respondent No. 8-College (B. J. Government Medical College &
Sasoon General Hospital, Pune). The Respondent Nos. 1 to 6 are Health
Department of State Government, Maharashtra University of Health Sciences
(MUHS), its Vice-Chancellor, its Controller of Examination, its Registrar and
its Board of Examination. Respondent No. 7 is the Dean of Pune University.
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2. The Petition was initially filed by the Petitioner appearing in-person.
Thereafter since the Court found that the Petitioner was not in a position to
assist the Court, Advocate Mr. Sheth was appointed to assist the Court on
behalf of the Petitioner, who has submitted the list of dates and has made
submissions on instructions of the Petitioner, who is present in the Court.
Mr. Sheth submitted that according to the Petitioner the Respondents
have violated the fundamental rights of the Petitioner and have purposely
failed the Petitioner, resulting in considerable time of his life being wasted. It
is submitted that accordingly to Petitioner, the result of the final MBBS
Winter 2018 exam must be declared clubbing it with Summer 2019 internal
marks and Petitioner be declared as 'Pass'.
3. Factual matrix and contentions as emerging from the case of the
Petitioner and documents on record is as under:
3.1 The Petitioner was enrolled for MBBS degree course at the said
College in 1986.
3.2 During the period from 1986 to 2017, the Petitioner pursued his
MBBS degree course and completed part I of the MBBS degree course
consisting of Phases I, II and III.
3.3 In Winter 2017, the Petitioner appeared for Phase III of Part II of
the course i.e. final year examination.
3.4 In Winter 2017, the examination the Petitioner passed in only one
of the four subject viz. Paediatrics.
3.5 In Summer of 2018, the Petitioner re-appeared for the final
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examination and cleared the subject of General Surgery.
3.6 In Winter 2018, the Petitioner re-appeared for remaining two
subjects - (i) Medicine and Allied Subjects and (ii) Obstetrics and
Gynaecology. According to the Petitioner he scored 30 and 21 marks in the
said two subject, which was informed to him. However, it is his case that his
signature was taken on blank internal assessment mark- sheet by the
College.
3.7 In February 2019, the University issued mark-sheet for Winter
2018 examination in which the Petitioner was given only 26 and 16 marks in
the internal assessment of the said two subjects and as a result, the
Petitioner failed in those two subjects.
3.8 The Petitioner made a grievance to the Governor of the State of
Maharashtra, about incorrect/lesser marks in the internal assessment
making the allegations of bribery referring to his earlier complaints of 2012
and 2015. According to the Petitioner, he has been deliberately failed in the
said two subjects. The complaint was forwarded to the Vice-Chancellor of
the University for necessary action. By letter dated 09/04/2019 the
University informed the Petitioner that inquiry report was called from the
College and on perusal of the said inquiry report, it did not appear that the
lesser or incorrect marks are awarded to the Petitioner. The Petitioner was
however advised to appear in Summer 2019 examination and also for
betterment examination of the internal marks.
3.9 The Petitioner thereafter addressed a letter to the College stating
that the signature on the internal assessment mark-sheet is not his signature,
and it is duplicate. He contended that the inquiry report is submitted in his
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absence and renewed his request for awarding 30 and 21 marks in the said
two subjects.
3.10 On 03/05/2019, the University again informed the Petitioner about
upcoming Summer 2019 examination and asked him to appear for the same.
3.11 The College thereafter again appointed second Committee to
submit its report.
3.12 By letter dated 10/05/2019, the College asked the Petitioner to
appear before the Committee on 13/05/2019. The Petitioner appeared
before the Committee. According to the Petitioner, members of the said
Committee in the presence of Dean of the College asked him to re-appear in
the internal assessment examination for the said two subjects. According to
the Petitioner, he was assured that marks obtained on re-appearance would
be considered for the Winter 2018 examination.
3.13 On 07/06/2019, 08/06/2019 and 09/06/2019, the Petitioner
appeared for the internal assessment examination for the said subjects.
According to the Petitioner he was forced to fill up the examination form for
Summer 2019 examination by the Respondent No. 4-Controller of
Examination.
3.14 In September 2019, the Petitioner again addressed a letter to the
Dean of the College requesting for the mark list in the internal assessment
for which he had re-appeared.
3.15 In October 2019 the Petitioner renewed his request.
3.16 By letter dated 19/10/2019, the College submitted result of the
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internal assessment of the Petitioner, wherein the Petitioner is shown to have
obtained 36 and 24 marks in the said two subjects. The covering letter
mentions that the said marks are for Winter 2018 examination.
3.17 On 23/10/2019, the University declared the Summer 2019 results.
As per the said result though the Petitioner scored 36 and 24 marks in
internal assessment of the said subjects, as per result, the Petitioner failed as
he remained absent for theory, oral and practical examination and failed.
3.18 In November 2019, the Petitioner again wrote to the University
insisting that he passed Winter 2018 examination for which the College has
sent internal assessment marks. He submitted that since he has passed
Winter 2018 examination, he did not appear for the Summer 2019
examination.
3.19 The College thereafter wrote to the University under letter dated
13/11/2019 that the internal assessment marks were for Winter 2018
examination. However, by inadvertence the same have been given in
Summer 2019 and since the Petitioner has passed the said two subjects in
the written examination in Winter 2018, he did not appear for the Summer
2019 examination. This letter encloses a copy of the Petitioner's application
in the Court of Judicial Magistrate at Nashik mentioning his hunger strike
and Dharna with reference to the efforts of suicide.
3.20 By a letter dated 29/01/2020, the University informed the
Petitioner the decision taken by the Board of Examination in its meeting held
on 18/12/2019, that as per the University Rules and Regulations, revised
marks in the internal assessment of the year 2019 cannot be held valid for
the Winter 2018 Examination and therefore the mark-sheet for the Winter
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2018 Examination cannot be issued afresh in absence of such provision. This
letter again advised the Petitioner to appear in the Summer 2020
examination and try for betterment examination for internal assessment.
3.21 The Petitioner thereafter in March 2020 again wrote to the Vice-
Chancellor of the University reiterating his case that because the second
inquiry committee indicated that his marks for fresh internal assessment
would be counted for Winter 2018, he appeared and he was assured during
his hunger strike about issuing final MBBS pass certificate.
3.22 It appears that in May 2020, Medical Council of India sent a letter
to the University about a complaint of the Petitioner. In reply thereto the
University by its letter dated 11/08/2020 informed the Medical Council of
India that the Petitioner's insistence that the internal assessment marks
submitted by the College for Summer 2019 must be accepted to for the
Winter 2018 and then declaring him pass in the Winter 2018, is against the
applicable rules of the University as well Council.
3.23 The Petitioner then wrote to the Education Minister of the State of
Maharashtra in May 2021. However, by a letter dated 22/10/2021 written
by the Additional Secretary to the State, the Petitioner was informed that his
objection and contentions are entirely within the domain and jurisdiction of
the University and therefore asked to follow up with the University.
3.24 The Petitioner thereafter continued his correspondence with the
University between April 2022 and September 2022.
3.25 Finally, by a letter dated 07/11/2022, the Respondent No. 4
Controller of Examination of the University informed the Petitioner that his
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latest letter/representation dated 13/09/2022 was placed before the Board
of Examination in a meeting held on 06/10/2022 and it is decided that the
Petitioner's issue should not be placed before the Board again since the
Board has already taken decision in the Petitioner's grievance in the past.
4. In the aforesaid background, the Petitioner has approached this Court
by invoking our jurisdiction under Article 226 of the Constitution of India
seeking indulgence with prayers which read as under:
"(1) That the direction in the form of a writ of mandamus
and quo-warranto or any proper writ be issued quashing the
impugned fail result and prolongation and delayed M.B.B.S.
course up to 36 years of scheduled caste Hindu Mahar student of
said college.
(2) That the pass result of final M.B.B.S. winter 2018 of
Petitioner will be declared with all the consequential benefits
including payment as like medical officer with pension. And
compensation cost for 36 years.
(3) That the petitioner be awarded with suitable cost of
litigation agony, mental agony, educational agony of scheduled
caste, Hindu-Mahar student as may be deemed fit by the Hon'ble
court."
5. Mr. Shetye, learned Counsel, appearing for the Respondent Nos. 2 to 6
(MUHS) opposed the Petition. Referring to the affidavit-in-reply filed by the
Assistant Registrar of the MUHS dated 09/05/2024, he submitted as under.
5.1 That taking note of the Petitioner's grievance, the Respondent-College
was directed to conduct College level inquiry and first inquiry report was
sent to the University, in which it was reported that incorrect marks were not
forwarded for internal assessment and the Dean has agreed with the said
inquiry report. Thereafter on Petitioner's grievance that signature on mark-
sheet is duplicate and inquiry report is sent without hearing him, second
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inquiry was conducted and Petitioner was called for hearing and he was
heard. That in the meantime, the Petitioner submitted/filed his final MBBS
examination-form as 'a repeater' for Summer-2019 examination. Despite
that, Petitioner appeared only for internal assessment again but did not
appear for the final MBBS examination as repeater in the said two subjects
and therefore declared failed.
5.2. That the internal assessment marks (betterment) for Summer 2019
Examination in the said two subjects cannot be clubbed with the theory and
practical marks of the Winter 2018 Examination. That the grievance of the
Petitioner has been placed before the Board of Examination in its meeting
held on 18/12/2019, who has taken decision that as per the University
Rules, revised marks of Summer 2019 cannot be clubbed with other marks
of Winter 2018 examination result and therefore the Petitioner's request has
not been accepted, which was duly informed to the Petitioner.
5.3. Inviting the Court's attention to the Petitioner's Application dated
08/01/2020 to the Magistrate and complaints dated 12/05/2015,
05/02/2019, 04/03/2020 & 22/04/2022, it is submitted that various factual
disputes are raised by the Petitioner such as disputing signature on the
internal assessment mark-sheet, Petitioner being forced to fill up the
admission form as repeater, demand of bribe for passing etc., which can not
be adjudicated in writ jurisdiction.
5.4. It is finally submitted that the Petitioner has resorted to various
pressurizing methods such as sitting for hunger strike and using threats of
suicide for getting pass result and therefore no indulgence be shown.
6. We have considered the rival submissions and perused the record.
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7. From the bare look at the chronology narrated above and the nature
of allegations made by the Petitioner, it is clear that there are disputed
question of facts involved in the Petition, which cannot be adjudicated in the
writ jurisdiction. Under letter dated 12.05.2015, a vague allegation of
demand of 'charges' (bribe) is made. Mere allegation of the Petitioner under
letter dated 05.11.2019 that he was forced to fill up examination form for
Summer 2019 can not be accepted, especially when copy of his duly signed
Repeater-form dated 08.03.2019 is produced on record with affidavit in reply
at Annexure "G" (page 184). From the communication dated 03.05.2019
(Annexure F), it is seen that the Petitioner was advised by the Controller of
Examination to appear for Written/Theory Examination and also for
betterment examination and internal assessment, which is the procedure
provided under the Rules. However, the Petitioner only appeared for fresh
internal assessment in Summer 2019 but did not appear for other
examinations as a repeater. It is further seen from letter dated 24.01.2022
written by the Controller of Examination that the Petitioner was requested to
fill in the form and appear for next scheduled Exam on 02/03/2022 and as a
special case, the Chancellor had waived his fees also. Despite this, the
Petitioner did not avail of the necessary procedure.
8. What the Petitioner wants and insists is consideration of the marks of
two different examination-sessions together, thereby declaring him 'pass'.
Neither the Petitioner nor learned Counsel for the Petitioner have been able
to show that it is permissible under the applicable rules to club the internal
assessment marks of Summer-2019 with remaining assessment/marks of
Winter-2018. Insistence of the Petitioner that his internal assessment marks
of Summer-2019 must be clubbed with Winter 2018 marks and declaring
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him pass, cannot be accepted in view of clear objection of the University that
it is against the Rules. In writ jurisdiction, we can not ask the University to
make such exception against the Rules.
9. From the letter of the Petitioner dated 05.02.2019 to the Governor, it
can be seen that the Petitioner has resorted to methods such as sitting for
hunger strike or threatening suicide and using it as a lever to compel the
authorities to act in a particular manner. It is seen from the Petitioner's own
application dated 08.01.2020 that he was required to be arrested because he
had undertaken hunger strike with a threat to commit suicide and was
required to be produced before the local Magistrate. Thereafter in a letter
dated 04.03.2020 written by the Petitioner to the Vice-Chancellor of MUHS,
following words are used -
"Therefore for all above grave reasons, Again I will do hunger strike in
front of the MUHS Nashik gate, if lawful & fruitful disission is not taken.
And that will be my grave & sudden provocation regarding this matter.
Therfore kindly give the final MBBS pass Winter 2018, result & declared it
because lawfull I had already passed final MBBS winter 2018 exam.
Therefore I will not appear to the same exam again."
10. Overall, the case of the Petitioner is of such a nature that its basis itself
cannot be gone into and considered in the writ jurisdiction. From the record,
we find that the Authorities have been patient with the Petitioner. He was
given opportunity to appear before the inquiry committee; he was advised
more than once, to appear for betterment examination and participate as
repeater; he was reminded on next date of exam and even fees were waived
as a special case. However the Petitioner has been insistent on his stand
about clubbing of marks of two different examinations. The allegations about
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targeting the Petitioner and failing him on purpose is not supported by any
tangible evidence capable of cognizance under Writ Jurisdiction.
11. In the aforesaid facts and circumstances and for the reasons narrated
above, we do not find it appropriate to interfere in writ jurisdiction. The writ
petition is accordingly dismissed with no order as to the costs.
12. Before parting, we must place on record our appreciation for the
assistance rendered by Mr. Sheth in hearing the case and direct the Secretary,
High Court Legal Services Committee, Mumbai to pay him Rs.10,000/-.
All concerned to act on duly authenticated or digitally signed copy of
this order.
(M. M. SATHAYE, J.) (A. S. CHANDURKAR, J)
