Major Mukul Bajpai vs Uoi & Ors.
2010 Latest Caselaw 788 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment Reserved on : 3rd December, 2009
                          Judgment delivered on : 10th February, 2010


+                            W.P.(C) 3398/2008

        MAJOR MUKUL BAJPAI              ..... Petitioner
                Through: Ms.Neena Singh, Advocate

                        versus

        UOI & ORS.                                 ..... Respondents
                  Through:        Ms.Jyoti Singh, Adv. for R-1 to R-3
                                  Mr.Abhishek Aggarwal and
                                  Mr.Sanjeev Sahay, Advs.for R-4.

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                            Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J.

1. Under the Armed Forces, "Armed Forces Medical

Services" is constituted to provide medical and emergency aid

to the members of the Armed Forces.

2. A medical college, "Armed Forces Medical College"

at Pune functions as the source of manpower for the Armed

Forces Medical Services.

3. The college is affiliated with Maharashtra University

of Health Sciences and pertaining to the courses conducted at

the college the degree is awarded by the Maharashtra

University of Health Sciences.

4. The petitioner, Major Mukul Bajpai decided to

enhance his knowledge by acquiring Post Graduate Degree in

Medicine with specialization in Microbiology i.e. MD

(Microbiology).

5. He sat in the entrance exam held on 21.01.2007

conducted by the Director General, Armed Forces Medical

Services and obtained merit at position No.81. He had the

option of opting for various disciplines to acquire a Post

Graduate Degree in Masters in Medicine such as Surgery,

Anesthesia, Biochemistry, Pathology, Microbiology etc. He

opted for the discipline Microbiology. His position in the merit

list being senior enough, his option was accepted and

accordingly in April, 2007 he joined the Armed Forces Medical

College at Pune to undergo the course leading to the Degree of

MD (Microbiology). After joining the course and studying for

some time, he felt that what was being taught to him related

more to Pathology and less to Microbiology. He made queries

and learnt that vis-à-vis the syllabus prescribed for

Microbiology, the course study imparted at the college was

materially different vis-à-vis the subject taught and man hours

spent in teaching. He filed an application under the Right to

Information Act and addressed the same to the Information

Officer, Maharastra University of Health Sciences who

responded, informing him that if the college imparts education

by deviating from the syllabi prescribed by the University,

neither the University nor the Medical Council of India would

recognize the same.

6. Instant petition was filed praying that a Mandamus

be issued to the respondent Nos.1, 2 and 3 i.e. Union of India,

Director General of Armed Forces Medical Services and

Director General Medical Services (Army) to teach students

undergoing the course MD (Microbiology) as per the subjects

prescribed by Maharashtra University of Health Sciences.

Alternatively, it was prayed that the petitioner be permitted to

change his discipline to MS (Surgery) which was available and

as per his merit position he was entitled to.

7. The reason why Mandamus prayer was sought for,

has been crystallized by the petitioner in the preamble

statement of the petition, wherein it has been averred as

under:-

"This is because the Advance Course in Pathology (conducted by AFMC, which is a combination of three different MD subjects) is neither affiliated/recognized by MUHS as well as MCI in current format but individually MD Pathology, MD Microbiology and MD Biochemistry are recognized by MUHS (when conducted separately)."

8. When the writ petition was filed, Maharashtra

University of Health Sciences was not impleaded as a party

and the pleadings were directed against the Union of India

impleaded as respondent No.1, Director General of Armed

Forces Medical Services, impleaded as respondent No.2 and

the Director General Medical Services (Army) impleaded as

respondent No.3.

9. A consolidated counter affidavit was filed on behalf

of the said three respondents giving justification for making

adjustments in the course pertaining to MD (Microbiology).

10. It was, however, specifically pleaded that the

course contained adequate contents pertaining to

microbiology and that the decree awarded to the petitioner

would be MD (Microbiology).

11. We note that the respondents No.1 to 3 have been

callous in not filing a counter affidavit which takes a consistent

stand, for the reason in para 7 of the counter affidavit, we are

surprised to note that respondents No.1 to 3 have denied that

the petitioner was exclusively deputed for post-graduate

course i.e. MD (Microbiology). We fail to understand what is

meant by said pleadings of respondents No.1 to 3.

12. We note that during arguments, learned counsel for

respondents No.1 to 3 apologized and conceded that the said

averments were incorrect and that the petitioner was

exclusively undergoing the course in MD (Microbiology).

13. Be that as it may, after the Maharashtra University

of Health Sciences was impleaded as a respondent, it filed a

counter affidavit as per which it was specifically pleaded by

respondent No.4 as under:-

"3. It is humbly submitted that the petitioner was nominated to the Advance Specialist Course in Microbiology but within two months of joining, the said Advance Course was withdrawn and he was put into Advance Specialist Course in Pathology along with others who are similarly placed. However, the petitioner continues to be a student of MD programme in Microbiology of the answering respondent (the affiliating University) and would be entitled to pursue his studies to obtain a degree under this field. Insofar as the answering respondent is concerned, respondent No.2 and respondent No.3 have to conform to one of its recognized MD courses i.e. MD in Microbiology."

14. While replying to the averments made in para 6 of

the writ petition where petitioner averred that post-graduate

course i.e. MD in Microbiology conducted by the Armed Forces

Medical College, Pune is affiliated to Maharashtra University of

Health Science, Nasik, the stand of the University is as under:-

"6. The averments made in para 6 are not admitted except where the same have been specifically admitted and are deemed to have been denied. It is true that the Armed Forces Medical College, Pune is affiliated to the Maharashtra University of Health Sciences, Nashik. The Academic Council of the

answering respondent has granted continuation of affiliation and extension of affiliation to the PG courses (i.e. MD) of Armed Forces Medical College, Pune in the subject of "Microbiology" alongwith other subjects including PG courses in the subjects "Pathology" and "Biochemistry", vide University letter No.MUHS/PG/E 1/1202/342/08 dated 31.03.2008."

15. A perusal of the averments of the University, in

para 3 and para 6 of its counter affidavit, are as noted above,

brings out that even the university has not taken a very

categorical stand. We see no reason why, if the course

modified by the college conformed to the studies to be

pursued as per the requirement of the University, why could

the University not say so in unequivocal terms. We see no

reason why the University would plead that as long as the

course conducted by the College conformed to one of its

recognized MD course, the University had no problem. We see

no reason why the University did not specifically deal with the

question and give a straight-forward answer after scrutinizing

the subjects being taught and as modified by the College.

16. The result thereof is, both parties i.e. the College

and the University on the one side and the petitioner on the

other side, calling upon the Court to evaluate the courses

specified, the duration thereof, the nature and quality of

education which could be imparted and return a finding.

17. The area where the parties led the Court, requires

expertise for the reason there are large number of overlapping

areas in the field of microbiology and pathology. Being not an

expert, it would be difficult for the Court to determinatively

conclude whether the modified course leans towards the

subject of Pathology or Microbiology.

18. During course of hearing of the writ petition, we

repeatedly expressed our handicap as aforesaid.

19. At the conclusion of the hearing, learned counsel

for respondent No.4 handed over a letter dated 27.11.2009

addressed to her by the Law Officer of the Maharashtra

University of Health Sciences. The said letter reads as under:-

"To Advocate (Mrs.) Geeta Luthra, A-126, NEETI BAGH, New Delhi-110 049.

Subject : In the High Court of Delhi at New Delhi Writ Petition (C) No.3398/2008 and CM No.6518/2008 Mukul Bajpai V/s Govt. of India (MUHS-R-4)

Madam,

A copy of letter No.MR-07635F/MB/PC/2008 dated 09/11/2009 received from Armed Forces Medical College, Pune is forwarded herewith for your further action, please."

20. Since the letter dated 27.11.2009 refers to a letter

dated 9.11.2009 written by the Armed Forces Medical College,

Pune, we required copy thereof to be handed over to us. The

said letter reads as under:-

"Maharashtra University of Health Science, Nashik

HEARING OF WRIT PETITION (C) NO.3398 OF 2008 IN THE HIGH COURT OF NEW DELHI IN RESPECT OF MR- 07635F MAJ MUKUL BAJPAI

1. Refer to your letter No.MUHG/XPG/X1/ 22/4337/2009 dated 06 Nov 2009.

2. Copy of letter No.MB/PG/2007-2010 dated 13 Feb 2009 and O/o the DGAFMS letter No.7635F/MB/DGAFMS/DG-1D dated 12 2009 are enclosed herewith for your info."

21. Since letter dated 9.11.2009 refers to another letter

dated 13.2.2009, we had required the same to be filed. The

said letter reads as under:-

"DEPARTMENT OF MICROBIOLOGY, AFMC PUNE

FILING OF WP BY MAJ MUKUL BAJPAI COMMENTS OF PROFESSOR AND HEAD, DEPARTMENT OF MICROBIOLOGY, AFMC PUNE

1. Ref to Min. of Defence, Office of DGAFMS, M Block, New Delhi-110 001, letter No.7635/MB/DGAFMS/DG-1D dt. 12 Feb 2009.

2. Parawise comments of Professor and Head, Department of Microbiology, AFMC Pune are as follows:

Para 3 sub-para (a) referring to Para 3 of counter affidavit by MUHS: Comment of Prof and Head Microbiology, AFMC, Pune:

It is confirmed that MR 7635F Major Mukul Bajpai is pursuing MD programme in Microbiology under MUHS as per the registration made with MUHS by AFMC, Pune.

Para 3 subpara (b) referring to Para 9 of counter affidavit by MUHS: Comment of Prof and Head Microbiology, AFMC, Pune:

It is confirmed that the contents of the syllabus of Microbiology being followed for Advance course is in consonance with the syllabus prescribed by MUHS based on guidelines of the Medical Council of India. There is no difference between the syllabi."

22. In our opinion, letter dated 13.2.2009 concludes the

issue that after he successfully completes the course in

question at Armed Forces Medical College Pune, the petitioner

would be entitled to a degree in MD (Microbiology).

23. We take on record the stand of learned counsel for

respondent No.4 that on successful completion of the course

as conducted by AFMC Pune, the petitioner would be entitled

to the degree in MD in Microbiology.

24. As noted above, learned counsel for the petitioner

had argued that a perusal of the modified course shows that

the subjects taught are predominantly relating to the field of

Pathology and not Microbiology. Two submissions were urged

in relation thereto. Firstly, that the course would not be

accepted by the University for imparting degree in MD

Microbiology, a submission which we have dealt with herein

above. The second submission was that even if the petitioner

was given a degree in MD (Microbiology), he would be certified

as an expert on a subject without having knowledge thereof.

25. It was urged by learned counsel for the petitioner

that without having knowledge in the subject of Microbiology,

the petitioner would be certified as an expert in Microbiology

and if he were to leave the army and join elsewhere his skill in

the field of Microbiology would be poor and in this view of the

matter the future career of the petitioner would be affected to

his prejudice.

26. The aforesaid submission, again requires the Court

to act as an expert and determine whether the teaching

imparted by the college is so deviated from the field of

Microbiology that it can be said with certainty that the person

being certified as a Microbiologist is in fact not fit to be

certified as a Microbiologist.

27. In other words, within the domain of law what would

be required to be considered would be, whether the petitioner

is being cheated?

28. Another problem has arisen. The course in MD

(Microbiology) is admittedly a two years' course and would be

ending in April 2010. Good or bad, the petitioner has

undertaken the study for 1 year and 9 months i.e. has already

covered 90% of the journey.

29. Assuming if the petitioner is correct, exercising

jurisdiction under Article 226 of the Constitution of India, we

may not be able to grant any relief to the petitioner. The

reason being the writ would be rendered ineffective as only 3

months of the course are remaining, which period is

insufficient for the respondent to impart to the petitioner all

the knowledge and skill that would have been imparted to him

had he undertaken the full actual course in Microbiology.

30. We note that in the decision reported as AIR 1954

SC 592 K.N.Guruswamy V. The State of Mysore and Ors. the

appellant prayed for the issuance of a writ of mandamus to

confirm his right to a liquor license for a term commencing in

June 1953 and ending in June 1954. Holding that

notwithstanding the petitioner having successfully established

a right in law, mandamus would not be issued for the reason in

May 1954, i.e. the time by which the matter was decided, it

was useless to issue directions which would enure only for a

month.

31. In various other decisions reported as 1991 (5) SLR

209 Dayal Singh & Ors. V. State of Haryana & Ors., AIR 1952

Orissa 344 Manjula Manjari Dei V. M.C.Pradhan and AIR 1960

Mad 231 B.Radhakrishnan V. State of Madras, the court

recognized the entitlement of the petitioner to the issuance of

a writ, but denied the same on the grounds that if the writ is

issued, larger public interest would suffer or it would amount

to placing intolerable burden of inconvenience on numerous

citizens of India and of the adjoining territories.

32. Thus, merely establishing a right may not entitle a

party to be granted relief under writ jurisdiction.

33. Noting that the petitioner would be awarded a

degree in MD (Microbiology) on his successfully completing the

course and holding that the issue of course content called

upon by the petitioner to be decided by us would compel the

Court to act as an expert in a field of pure academics, we

decline to do so leaving it open for the petitioner to seek

appropriate remedy as per law if he feels that there is a

deficiency in the teaching or the course.

34. The writ petition is dismissed.

35. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 10, 2010 'nks' / dkb