Ms. Nusra Anjum. S. A. vs Rajiv Gandhi University Of Health ...
2021 Latest Caselaw 1721 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 8TH DAY OF MARCH, 2021

                        BEFORE

          THE HON' BLE MR.JUSTICE R DEVDAS

     WRIT PETITION NO.3582 OF 2021(EDN-EX)

BETWEEN

MS. NUSRA ANJUM. S. A.
D/O. AKRAM PASHA,
AGED ABOUT 20 YEARS,
REG. NO. 18D0517,
R/O. NO. 46, CROWN RESIDENCY,
7TH MAIN, 12TH CROSS,
2ND STAGE, BTM LAYOUT,
BENGALURU-560 076.
                                           ...PETITIONER
(BY SRI ABHISHEK MALIPATIL, ADVOCATE)

AND

1.    RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
      4TH T BLOCK, JAYANAGAR,
      BENGALURU-560 041,
      REP BY ITS VICE-CHANCELLOR.

2.   THE REGISTRAR (EVALUATION)
     RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES,
     4TH T BLOCK, JAYANAGAR,
     BENGALURU-560 070.
                                          ...RESPONDENTS
(BY SRI N K RAMESH, ADVOCATE FOR R1 & R2)
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     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS NO.1 AND 2 TO CONDUCT 3RD EVALUATION OF
THE ANSWER SCRIPTS OF THE SUBJECT DENTAL MATERIALS OF
THE 2ND BDS(RS3) EXAMINATION OF NOVEMBER 2020
UNDERTAKEN BY THE PETITIONER SINCE THE DIFFERENCE OF
MARKS BETWEEN THE EVALUATORS IS MORE THAN 15 PERCENT
IN TERMS OF THE ORDER DATED 21.12.2018 PASSED BY THIS
HONBLE    COURT     IN   W.P.NO.48194-48198/2018    AND
CONNECTED WRIT PETITIONS VIDE ANNEXURE-E AND ETC.


     THIS WRIT PETITION IS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

R. DEVDAS J., (ORAL):

The petitioner is a student of Bachelor of Dental Surgery

(BDS) course and is aggrieved by the manner in which

evaluation of the theory answer paper in the subject 'Dental

Materials' II Year B.D.S. Course has been conducted by the

respondent-University is made. Learned Counsel for the

petitioner submits that to say the least, since there is a

difference of more than 15% of the marks evaluated by two

examiners, the answer script of the petitioner is required to be

sent to third evaluator in terms of the Ordinance of the year

2012. The learned Counsel submits that though an Ordinance

was issued on 29.03.2019 superseding the Ordinance of the year

2012, this Court in the case of Sri.Neelesh Mehta Vs. Rajiv

Gandhi University of Health Sciences and Another in

W.P.No.31335/2019 and connected matters which were disposed

of on 10.08.2020 quashed the Ordinance dated 29.03.2019.

Therefore, it is submitted that once the subsequent Ordinance of

the year 2019 is struck down, the Ordinance of 2012 is revived

and therefore, the provisions of the Ordinance of 2012 are

applicable to the petitioner and to the answer scripts of the

petitioner. It is more so, because the examinations were

conducted in November 2020 i.e., after the 2019 Ordinance was

struck down by order dated 10.08.2020.

2. Learned Counsel Sri N.K.Ramesh, appearing for the

respondent-University submits that in the case of Sri Neelesh

Mehta (supra) the grievance of the medical students were under

consideration. The learned Counsel submits that although

several grounds were raised, the co-ordinate Bench of this Court

proceeded to strike down the Ordinance only on the ground that

the provisions governing the conduct of examination with respect

to the Under Graduate courses and Post Graduate courses of the

medical stream arises out of a provision of the MCI Regulations

and therefore, there could not be two sets of standards, one

governing the Under Graduate courses and another for the Post

Graduate students. However, it is submitted that the entire

context in which the co-ordinate Bench in the case of Sri

Neelesh Mehta considered the Ordinance of 2019 is the

discrepancy in the matter of medical students and nowhere in

the judgment is the case of the Dental students or other

disciplines is considered. It is therefore the contention of the

learned Counsel for the respondent-University that the doctrine

of severability should be applied in this case and this Court

should hold that the decision of the co-ordinate Bench in

quashing the Ordinance of 2019 is applicable only to the medical

students and not to the Dental students, as in the present case.

3. The learned Counsel places reliance on a decision of the

Hon'ble Supreme Court in the case of State of Uttar Pradesh

And Others Vs. Jaiprakash Associates Limited (2014) 4

SCC 720 to submit that the doctrine of severability provides that

if an enactment cannot be saved by construing it consistent with

its constitutionality, it may be seen whether it can be partly

saved. By saying so, the learned Counsel would submit that the

submission of the learned Counsel for the petitioner that once

the Ordinance of 2019 is struck down, the Ordinance of 2012 is

automatically revived, should not be accepted.

4. The learned Counsel submits that since the decision of

the co-ordinate Bench in the case of Neelesh Mehta stems from

the grievance of the medical students, and although the

Ordinance 2019 is struck down, it should be held that the striking

down is only with respect to the medical students and not the

other disciplines. In this regard, attention of this Court is drawn

to the Ordinance dated 29.03.2019 whereby at Clause (2) of the

Regulation it is provided that the Ordinance shall apply to all

theory and answer scripts of Under Graduate courses in

Medical/Dental/AYUSH/Physiotherapy/Nursing/Pharmacy/allied

Health Sciences/Yoga and Naturopathy and therefore, the

Ordinance has been struck down only in the case of medical

Under Graduate courses.

5. Having heard the learned Counsels and on perusing the

petition papers, this Court is of the considered opinion that the

submission of the learned Counsel for the respondent-University

that the striking down of the 29.03.2019 Ordinance would only

apply to the Under Graduate medical courses, cannot be

accepted. The decision cited by the learned Counsel for the

respondent-University could be considered, where the decision of

this Court in striking down the Ordinance in its entirety is

questioned. This is not a case or a forum where the decision of

striking down of the Ordinance by a co-ordinate Bench is called

nor could be called in question. If the respondent-University is

of the opinion that the striking down of the 29.03.2019

Ordinance should be restricted only to the Under Graduate

medical courses, then the University is required to call in

question the orders passed in the case of Neelesh Mehta. As of

now, whether the University likes it or not, the fact is that the

29.03.2019 Ordinance has been struck down by this Court by

order dated 10.08.2020. The examinations of the BDS Courses

have been held in the month of November 2020, subsequent to

the striking down of the 29.03.2019 Ordinance. Therefore, once

Ordinance dated 29.03.2019 was struck down, the Regulations

which were holding the field prior to the 29.03.2019 notification

would be revived.

6. Therefore, the submission of the learned Counsel for the

petitioner that in terms of the Regulations of 2012, if there is a

difference of more than 15% in the evaluation between two

evaluators, the same is required to be sent for the third

evaluator, needs to be upheld. This position has been reiterated

by a co-ordinate Bench of this Court in the case of Dr.Menaka

Mohan, in W.P.Nos.48194-48198/2018 and connected matters

disposed of on 21.12.2018.

7. Consequently, the writ petition is allowed. The

respondent-University and the second respondent-Registrar

(Evaluation) are directed to hold a third evaluation of the answer

scripts of subject 'Dental Materials' of the II B.D.S (RS-3

Scheme) examinations of November 2020 undertaken by the

petitioner and to announce the results on or before 20.03.2021.

8. At this juncture, the learned Counsel for the petitioner

apprehends that if the third valuation is not conducted and

results are not announced, the petitioner will not be permitted to

write the third year examination and therefore submits that if the

orders of this Court are not obeyed, the respondent-University

should be directed to permit the petitioner to write the third year

examination. The submission is accepted. If the third evaluation

is not conducted as directed herein within the stipulated time and

results are not announced, the petitioner shall be permitted to

write the third year examination which is scheduled to

commence from 23.03.2021.

It is ordered accordingly.

Sd/-

JUDGE

JT/-