Ravinder Kumar Mathur vs Union Of India And Ors.
1994 Latest Caselaw 243 Del

JUDGMENT

D.P. Wadhwa, J.

(1) By this petition filed under Article 226 of the Constitution,the petitinoer seeks admission to M.D. (Community Health Administration)Course of Delhi University for 1993 session. This petition was filed on 26/02/1994. The petitioner said he obtained M.B.B.S. Degree of Delhi University in 1982and completed his internship the following year. He then joined the Director of Health Sevices, Delhi Administration, as a Medical Officer on ad-hoc basis. He was regularised in this service in October 1992 after he had knocked the door of the Central Administrative Tribunal and certain directions were issued in the petitionthere. On 27/12/1992 he wrote to the Delhi Administration for permission to join Post Graduate Course and for that purpose he appeared in the entrance examination conducted by the Delhi University in March 1993. The petitioner say she was declared successful and was called for Counselling for 17/06/1993.However, he was in the waiting list and was finally selected for admission to M.D.(CHA) on 23/10/1993. At that time the petitioner was working as MedicalOfficer, Central Jail, Tihar, New Delhi. By this time he had been unable to obtain permission from his employers to join M.D. Course. He sent reminders to there spondents saying that he was entitled under the rules to study leave and at the same time sought extension of time from Delhi University to join the course. The Delhi University extended the time for his joining till 30/11/1993. It was only on Ii February, 1994 that the petitioner was granted extraordinary leave for three years. When he approached the Delhi University for permission to join the course it was refused by letter dated 17/02/1994 staling that admission to Post Graduate Degree/Diploma Courses for the session 1993 had already been closed and he could not, therefore, be allowed to join M.D. (CHA) at that late stage.This led the petitioner to file the present petition. He also seeks to have the communication dated 17/02/1994 of Delhi University quashed and wants amandam us to issue to the Delhi University to allow him admission in M.D. (CHA).

(2) There are four respondents. First respondent is the Union of India in the Ministry of Health and Family Welfare; the second respondent is the Director of Health Services, Delhi Administration; the third respondent is the Government of National Capital Territory of Delhi (the Delhi Administration); and the fourth respondent is the University of Delhi through its Dean, Faculty of Medical Sciences,Delhi.

(3) We issued notice to show cause to the respondents as to why rule nisi be notissued. In its affidavit in reply by Delhi University reference has been drawn to the Bulletin of Information of University of Delhi for admission to Post Graduate Degree Courses for 1993 session. In this bulletin last date for admission was I July1993 and earlier the session commencing on 3/05/1993. Reference has been drawn by Mr.Mahajan, learned Counsel for Delhi University, to a Full Bench decision of this Court in Dr. Sandhya Kabra \/.Union of India, , wherein it has been held that the admission should close and course commence on 2 May each year and further that if there was any mistake which had been committed, then the same should be rectified within two months of the commencement of the course.University states that initially the petitioner was not offered any seat and was placed in the waiting list. It was also explained as to why in the year 1993 there was some delay in filling up the seats in All India quota and a large number of scats were sought to be surrendered to States and the matter was again re-examined by this Court and ultimately the University was directed to hold Counselling of the waitlisted candidates on 23/10/1993 and to allot the unfilled seats. It is then stated that pursuant to this direction the petitioner was directed to appear for Counselling on 23/10/1993 and was asked to join the course by 26/10/1993. The petitioner, however, did not join and instead requested for extension of time for joining the course. Time was granted up to 30/11/1993 to enable him to submit the relieving certificate from his employer. Still the petitioner failed to submit the requisite relieving certificate and did not join the course. He was informed by letter date 23/ 24/11/1993 that in case he failed to submit there lieving certificate from his employer to join the course within the stipulated date,his admission to M.D. (CHA) Course for the session 1993 would stand cancelled.University says it is no fault of its that it has not been possible to allow the petitioner to join the M.D. (CHA) Course at this late stage when admission to post-graduate courses for the session 1994 has already been in process and first year of 1993 course already completed. University states that rules and regulations have been adhered to and maximum extension has been granted to the petitioner up to 30/11/1993. University also points out that apart from the petitioner there are other similar cases of four or five candidates who also could not get admission due to non-submission of relieving certificates from their respective employers and also for the reasons that training programme for the said courses had already beencompleted. University again asserts that first year of the course had been completed and the process for admission to 1994 session already started. In view of the stand taken by the Delhi University it appears difficult to us to direct it to admit the petitioner at this late stage. Petitioner is seeking admission to a professional course for post-graduate studies and he has to be imparted proper knowledge for him to enable to treat the patients who would come under his charge.

(4) Mr. Swatantar Kumar referred to the Bulletin of Information for the 1993session and also to University Calendar and said that the petitioner could nevertheless be admitted. He said it was no fault of the petitioner that his employer did not grant him the relieving certificate within the reasonable time and why should the petitioner be allowed to suffer for that and his career marred. We have, no doubt,full sympathy with the petitioner, but we see no ground to bend the rules and allow the petitioner to join M.D. (CHA) Course of 1993 session when one year is already over and process for admission to 1994 session has already begun. Mr. Swatantar Kumar sought help from the following clauses Xiii, Xiv and Xv of the Bulletin of Information to submit that attendance was not material and it was only for the Supervisor to certify that the candidate had pursued a regular full time course of study and could take the examination (written and oral) :-

"XIII.Lecture/Demonstration Programme -Lecture/Demonstration programmes for postgraduate degree students will be arranged by the University.The Principal of the College/Medical Supdt./Head of the Institution of there cognised Hospital and Supervisor concerned of the student will issue a certificate to the effect that the candidate has undergone the training programme including lectures, demonstration etc. to his/her entire satisfaction before the student is allowed to submit his/her thesis or take the writtenexamination.XIV. Examination:-Every candidate seeking admission to the examination for the degree Course must pursue a regular full time course of study in theres pective department of teaching institution/hospital in Delhi recognised by the University of Delhi under the guidance of a Supervisor appointed by the Board of Research Studies for Medical Sciences.Provided that a student registered may be assigned by the Board to one more than one recognised Institutions to work for a specific period as full-time student under the Supervisors) appointed by the Board.The examination for the Post-graduate degree course shall consist of two parts viz.(i) Thesis; and(ii) Examination (written and oral)(i) Thesis:(a) The subject of thesis shall be approved by the Board of Research Studies for Medical Sciences on the recommendations of the Post-graduate Cell received through the Head of the Institution.(b) The candidates pursuing the degree courses will submit their thesis in part fulfillment of the MD/ Ms Degree by the end of 2nd year of the course as a full time regular student under guidance of the Supervisors) appointed by the Board of Research Studies for Medical Sciences. They will be allowed to submit their thesis to the University only after they have paid the 3rdInstallment of the fees. Provided further that the Board may appoint Joint Supervisors in any particular case on the recommendation of Post-graduate Cell of the College/Hospital concerned. Candidates admitted shall submit three printed or typed copies of their thesis on any working day by the date notified through their supervisors) and Head of the Institution.(ii) Examination (written and oral):-Candidate who has submitted his/her thesis may be allowed to pursue a regular course of study for a period of not less than one calendar year thereafter but shall be allowed to take the examination only after acceptance of thesis.Provided that the candidate who required to resubmit his/her thesis under the provision of the foregoing clause may be allowed to continue to pursue the regular course of study and allowed to take the examination only after acceptance of the resubmitted thesis.XV. Examination fees:-xx xx xxNote: (i) Students admitted to M.D./M.S./M.Sc. course should pass the Degree Examination within 5 years after submission of thesis for the course.(ii) Students admitted to the M.Ch. and DM. Courses should pass the Examination within 5 years from the date of registration of the course.Mr. Kumar said if reference was drawn to the note, the course could be completed within a period of five years after submission of thesis for the course. Relevant clauses from the University Calendar which were referred to are:8.Every candidate seeking admission to the examination for the Degree must pursue a regular course of study from the date of commencement of the course concerned in the respective Departments of a Medical College/recognized Hospital in Delhi as a whole-time student under the guidance ofa Supervisor appointed by the Board of Research Studies for Medical Sciences.Provided that a student registered may be assigned by the Board to one or more than one recognised institutions to work for a specific period as a whole-time student under the Supervisors) appointed by the Board.Confirmation of Admission'.-The admission of the candidate shall be provisional in the first instance.The Supervisor, after 4 months of the commencement of the course, but not later than 6 months of the said commencement, shall submit through the Head of the Institution, a report to the Board of Research Studies for Medical Sciences regarding the performance of the candidate. If the performance is stated to be satisfactory and such other information as is required by the Faculty Office is supplied by the candidate regarding his admission, his provisional admission shall be confirmed. If the performance is not found satisfactory the admission shall be cancelled and the candidate will be informed about this within one month of the receipt of the report of the Supervisor.9. The examination for the Degree of M.D./M.S./M.Sc. shall be held twice a year ordinarily in March and September and shall consist of two parts viz.:(i) Thesis(ii) Examination (Written & Oral).10.Thesis:-(i) The subject of thesis shall be approved, on the recommendation of the Supervisor through the Head of the Institution, by the Board of Research Studies for Medical Sciences.(ii) A candidate shall not be entitled to submit his/her thesis unless he/she has pursued his/her research for a period of not less than one year from the date of commencement of the course concerned under the guidance of the Supervisors) appointed by the Board of Research Studies for Medical Sciences.14. Examination:-A candidate who has submitted his/her thesis may be allowed to pursue a regular course of study for a period of not less than twelvemonths thereafter but shall be allowed to take the examination in the corresponding subjects after acceptance of thesis.Provided that a candidate who is required to resubmit his/her thesis under the provision of the foregoing clause may be allowed to continue to pursue the regular course of study as herein mentioned and allowed to take the examination only after acceptance of the resubmitted thesis.15. The examination shall be conducted by a Board of four examiners all of whom will be specialists in the subject concerned appointed by the University on the recommendations of the Committee of Courses & Studies and the Faculty of Medical Sciences.The number of internal examiners on the Board shall not be less than 50% of the total strength at any time.16. (a) A student shall be permitted to appear at the Post-Graduate Degree Annual Examination of the University only when the Supervisor of the student and Head of the recognised Department/Principal/Head of there cognised Institution, certify to the effect that the student has undergone the training programme including lectures, demonstrations, etc. to their entire satisfaction and is otherwise eligible to appear at the said examination.(b) Maternity Leave: As per University Ordinance Vii Clause 2 Sub-Clause(9)(d)-A student, who has failed to pass/appear at the Annual Examination will be allowed to re-appear at the subsequent examination/s on his/her beingen rolled as an ex-student in accordance with the rules prescribed in this behalf and will not be required to submit a fresh thesis.A student who has failed to take the Annual Examination on the ground that he/she has not undergone the training programme including lectures, demonstrations etc. to the satisfaction of the Supervisor of the student and the Head of the recognised Department/Principal/Head of the recognised Institution may be allowed to take the subsequent examination/s as a regular student provided the Supervisor of the student and the Head of the recognised Department/Principal/Head of the recognised Institution certifies to the effect that the student has undergone the training programme includinglectures, demonstration etc. to their entire satisfaction and is other wiseeligible to appear at the subsequent examination/s.17. Marks shall not, ordinarily, be assigned to any part of the examination, but the examiners will confer after completion of the examination and will report whether the student has Passed with Distinction', 'Passed' or 'Failed'.18. Students admitted to any Post-graduate degree course should pass the examination within five years after submitted of the thesis for the course. "

(5) We are unable to understand as to how these clauses in the Bulletin of Information and University Calendar would at all help the petitioner for him to seek admission at any time even after a period of two years. These apply when a candidate has been admitted as per the prescribed calendar for admissions. Mr.Mahajan also drew our attention to the decision of the Supreme Court referred to in the Full Bench decision in Dr. Sandhya Kabra's case and also to another decision of the Supreme Court in Anand S. Biji v .State of Kerala, .

(6) We would, therefore, reject the petition. This, however, docs not appear to us to conclude the matter for the petitioner. There has been a great deal of delaywhich, we find, is inexcusable in granting the petitioner extraordinary leave for him to join M.D. (CHA) Course for session 1993 and his valuable right frustrated even if we say his career not marred. We, therefore, refer to the replies of the Delhi Administration as well as the Union of India.

(7) Mr. Madan Lokur, Central Govt. Standing Counsel, submitted that, nodoubt, the petitioner applied for study leave on 27/12/1992 but it was only on 19/11/1993, almost a year after, that Delhi Administration wrote to the Cadre Controlling Authority, i.e., the Central Government, wherein it was stated that the petitioner was to join M.D. (CHA) Course by 26/10/1993. This letter of Delhi Administration was received by the Cadre Controlling Authority on 22/11/1993. On 30/11/1993 the Cadre Controlling Authority informed the Delhi Administration that as per the rules the petitioner was not eligible for study leave and his application was, therefore, returned to the Delhi Administration. The petitioner, it appears, wrote a letter dated 6/12/1993 to The Delhi Administration asking for extraordinary leave. He endorsed a copy of this letter to the Cadre Controlling Authority. On the basis of this copy the Cadre Controlling Authority referred the matter to the Department of Personnel and Training (DOPT) for opinion. The Dopt by letter dated 10/01/1994 informed the Cadre Controlling Authority that the Ministry might consider the tease again asit involved relaxation of rules and submit the same to Dopt after approval of the Financial Adviser (FA). The case was then sent to the F.A. for recommendation to relax rules. On 24/01/1994, F.A. recommended the case to Dopt forrelaxation. The concurrence was given by Dopt on 8/02/1994 as a special case and accordingly letter dated Ii February, 1994 was written by the Cadre Controlling Authority to the Delhi Administration. In this letter it was mentioned that proposal for grant of extraordinary leave for a period of three years to the petitioner for prosecuting Post Graduate Course in M.D. (CHA) under University of Delhi had been considered in the Ministry of Health in consultation with the DOPT and the request of the petitioner was agreed to in relaxation of the rules asa special case. Mr. Lokur submitted that the Delhi Administration sat over the letter dated 27/12/1992 of the petitioner and forwarded the same only on 19/11/1993. When the Central Government by letter dated 30/11/1993asked the Delhi Administration to explain the delay and submit the matter, but till date nothing was stated. He also said that Delhi Administration did not forward the letter dated 6/12/1993 addressed by the petitioner to the Delhi Administration and it was only on the copy which had been endorsed to the Cadre Controlling Authority that the Cadre Controlling Authority acted upon that and granted the necessary permission relaxing the rules. Mr. Lokur also said that till date the letter dated 6/12/1993 of the petitioner addressed to the Delhi Administration had not so far been received by the Cadre Controlling Authority. Mr.Lokur criticised the affidavit of the Delhi Administration saying that the same was not correct. The affidavit of the Delhi Administration has been filed by Mr. R.S.Sethi, Secretary (Medical). He said that the leave application dated 26/10/1993 Iof the petitioner was received in the office of Director (Health Services), Delhi Administration, on 28/10/1993 and with certain clarifications on 3/11/1993. This application was forwarded by the Joint Director (Health Services), Delhi Administration, on 10/11/1993 to the office of the Secretary (Medical),Delhi Administration, for onward transmission to the Cadre Controlling Authority,i.e., the Central Government in the Ministry of Health and Family Welfare.However, before the application could be so forwarded it was necessary to get vigilance clearance of the petitioner as per rules and this information was received on 17/11/1993. It is stated thereafter that the application of the petitioner was forwarded to the Central Government on 19/11/1993. It will at once appear that this affidavit does not explain as to why the application/letter dated 27/12/1992could be acted only on 19/11/1993. Even Mr. Sethi says that the request of the petitioner was rejected and rejection was received in his office on 2/12/1993. The affidavit is again silent as to when again the petitioer approached the Delhi Administration. No reference has been made to the application dated 6/12/1993 of the petitioner which had been mentioned by Mr.Lokur during course of arguments. It will, therefore, appear to us that the officers of the Delhi Administration slept over the application of the petitioner all this period without any reason causing irreparable loss and damage to the petitioner.In these circumstances, we propose to recompensed the petitioner by imposing heavy cost by way of damages on Delhi Administration and its officers. This cost we tentatively quantify at Rs. one lakh though it docs appear to us that this will bea poor consolation to the petitioner, but we cannot help otherwise. In ordering this we draw strength from the decision of the Supreme Court in Lucknow Development Authority v. M.K. Gupta, . Before we impose cost on the officers of the Delhi Administration who dealt with the file, we require the Secretary (Medical), Delhi Administration, to produce in this Court relevant file and also file an affidavit giving names of all the officers who dealt with the file at various stages till permission was finally granted to the petitioner.