Dhiraj Kumar Pandey vs Palmex Enterprises And Ors.
2003 Latest Caselaw 671 Del

JUDGMENT

Vikramajit Sen, J.

1. The facts of the case are that the Petitioner's first four attempts to clear Phase-I of the MBBS Examination have remained futile. The undisputed case is that he had sought to clear the Phase-I Examination in the fifth opportunity and for this purpose had got the clearance of the University, namely, Utkal University, Bhubaneswar. This is evident from the letter dated 04.01.2002 authored by the Controller of Examination of that University. This attempt has proved to be somewhat favorable. Although he succeeded in passing the examination, the declared result has been recalled by the University, and it is this action that has been assailed in these proceedings.

2. The relevant provision is Regulation 7(3) which stipulates thus-

"7(3) The first 2 semester (approximately 240 teaching days) shall be occupied in the Phase I (pre-clinical) subjects and introduction to a broader understanding of the perspectives of medical education leading to delivery of health care. No student shall be permitted to join the Phase II (para-clinical/clinical) group of subjects until he has passed in all the Phase I (pre- clinical) subjects for which he will be permitted not more than four chances (actual examination), provided four chances are completed in three years from the date of enrollment."

3. It is no longer res integra that the Rules and Regulations of the Medical Council of India have statutory force. This is obvious from a perusal of the decision of the Hon'ble Supreme Court in Medical Council of India Vs. State of Karnataka and in Dr. Preeti Srivastava Vs. State of Madhya Pradesh .

4. By its letter dated 08th May, 2001 to all the Medical colleges, it had been clarified that only four attempts would be permitted to any student to clear Phase-I MBBS. An additional fifth attempt would be permitted provided the University has no objection, the pre-requisite being the obtainment of the clearance of the Medical Council of India. The mischief and piquant situation which has occurred is because the Utkal University has allowed the Petitioner to appear in the fifth attempt without obtaining the prior clearance of the Medical Council of India. The somewhat ackward and tragic circumstance has occurred because the Petitioner has cleared the Phase-I examination in the fifth attempt.

5. Similar questions have arisen and have been decided by the High Court of Andhra Pradesh and the High Court of Karnataka. It has been observed by both the Courts that Regulation 7(3) has statutory force and should, therefore, be strictly enforced. It cannot be gainsaid that the powers contained under Article 226 ought not to be employed in a manner that would have the result of ignoring statutory Rules and Regulations. Reference need not be directed beyond the Apex Courts pronouncements in State of Tamilnadu Vs. St.Joseph Teachers Training Institute and State of Maharashtra Vs. Vikas Sahebrao .

6. Learned counsel for the Petitioner is justified in attempting to draw the distinction between the judgments of the Karnataka and Andhra Pradesh High Courts in pointing out that the Petitioners before those Courts had not cleared the Phase-I examination, albeit in the fifth attempt, as is the case in the petition before me. The fact remains that a Regulation having statutory force prohibits the fifth attempt without a prior clearance of the Medical Council of India. I also find that there is sufficient merit and substances and a compelling rationale in placing a limit on the number of attempts available to a student to clear the sundry examinations, as also the duration of three years within which this should be achieved. In the present case, even if there is a plausible explanation whereby the period of three years should be extended for a short duration because of a delay in the holding of the examinations, the fact remains that the petitioner had sought a fifth attempt to clear Phase-I. It cannot be overlooked that the Petitioner as well as the University had knowledge of the prerequisite condition, i.e., the clearance of the Medical Council of India. The examination was held but a few days after the University's endorsement or recommendation for the fifth attempt by the Petitioner, all of which occurred within one week. No delay can be ascribed to the Medical Council of India, as it was given insufficient time to react. A fate accompli was sought to be brought about by the Petitioner and the University.

7. Learned counsel for the Petitioner has also relied on the decision of the Hon'ble Supreme Court in Medical Council of India Versus Sarang and Ors. (2001) 8 Supreme Court Cases 427. That was a case dealing with migration of a candidate and not with the candidates' failure to clear the examination in four attempts. It is, therefore, of no assistance in or application to the present case.

8. The Court would always have compassion for a candidate who has cleared an examination, even though it was impermissable from the inception. The fault for this lies on the Utkal University who granted clearance post haste. Counsel has drawn attention to the averments contained in the counter-affidavit to the effect that the Petitioner was permitted to sit for the examination subject to clearance from the M.C.I. This condition is not borne out from the letter dated 4.1.2002 where an unqualified permission has been granted to the Petitioner to appear for the examination.

9. Although, the grant of costs may not adequately compensate the Petitioner for the peculiar, painful and piquant situation in which he has found himself, I am of the view that the Utkal University, Bhubaneshwar should be directed to pay the costs to the Petitioners quantified at Rs. 5,000/-.

10. Petition is dismissed in these terms.