Madras High Court
Swetha Shri Selvakumar vs Directorate General Of Health ... on 31 March, 2023
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.03.2023
CORAM
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023 and W.P.No.9085 of 2023
Swetha Shri Selvakumar .. Petitioner/Appellant
-vs-
1. Directorate General of Health Services,
Ministry of Health & Family Welfare,
Government of India, Rep. by its
Additional Director General of Medical
Education, NirmanBhawan, Central
Secretariat, New Delhi 110 001.
2. Medical Council of India,
MCI Building, Pocket-14, Sector-8,
Dwarka Phase-1, New Delhi 110 077.
3. Chettinad Hospital and Research Institute,
Rep. by its Registrar, 'Chettinad Health City',
SH 49A, Kelambakkam, Tamil Nadu 603 103.
Page 1 of 14
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C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
4. Controller of Examinations,
Chettinad Hospital and Research Institute,
'Chettinad Health City', SH 49A,
Kelambakkam, Tamil Nadu 603 103. .. Respondents
Prayer: Civil Miscellaneous Petition under Section 151 CPC seeking to
dispense with the production of the order dated 28.03.2023 passed in
W.M.P.No.9223 of 2023 in W.P.No.9085 of 2023 and consequently
permit the petitioner/appellant to file the record of proceedings/order
as available in the ecourts website; and
W.P.No.9085 of 2023 filed for issuance of writ of mandamus
directing the respondents to condone the attendance requirement or
treat the same as complied in light of the extraordinary circumstances
in respect of the petitioner herein, and to allow her to appear for the
final examinations for the MD Dermatology Course in the 3rd
Respondent college and consequently be considered for "M.D.
Dermatology" degree the 3rd respondent.
For the Petitioner : Mr.Rahul Balaji
For the Respondents : Mr.T.Balaji for R-3
: Mr.V.Raghavachari, Sr. Counsel
for Mr.M.Praveen for R-4
*****
Page 2 of 14
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C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
ORDER
(Made by the Hon'ble Acting Chief Justice)
M/s.Swetha Shri Selvakumar, having completed her under-
graduate degree in medicine, had appeared for NEET PG exam held on
05.01.2020 for admission to post-graduate medical course. In the
said exam, results were declared in January 2020 and she obtained All
India Rank No.49636 and appeared for counselling and upon
declaration of results, she was allotted a set in "MD Dermatology"
course in the third respondent college, under NRI quota.
2. Learned counsel appearing for the petitioner would submit
that since the petitioner was allotted a seat under NRI quota, in view
of the fact that the admission process was taking place during Covid-
19 pandemic situation in April 2020, she had some difficulty in
arranging fees to be remitted in time as per the MCI guidelines and
thereupon, her admission was not confirmed and consequently, her
seat was surrendered. Finally, by an interim order of this Court dated
06.05.2020 passed in W.P.No.7586 of 2020, the respondent University
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C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
was directed to reserve a seat for her in the said course.
3. Learned counsel for the petitioner further submitted that
subsequent to the order dated 23.06.2020, her admission to "MD
Dermatology" course was confirmed on payment of the entire fees on
or before 08.07.2020. Accordingly, she has paid the fees and since
then, she has been pursuing the said course. However, in view of the
aforesaid technical reasons, she was allowed to enroll for the course
only on 30.06.2020 as against the original date of commencement,
i.e., 30.04.2020. Therefore, the petitioner had lost almost two months
of her course attendance.
4. It is further stated that the petitioner became pregnant during
this period, particularly between April-June 2020 and during the said
period, Covid-19 pandemic situation was also rampant. Therefore, the
petitioner had availed maternity leave starting from 01.07.2020 which
was also approved by the third respondent University and thereafter,
the petitioner was blessed with a child on 29.08.2020. For the reason
that it was a high risk and precious pregnancy, the petitioner was
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
advised not to get exposed to the virus for at least eight months till
the baby starts growing well. Therefore, the petitioner had extended
her maternity leave till 15.04.2021.
5. It is the case of the third respondent-University that on
account of the leave availed by the petitioner, she had secured only
5% attendance, but according to the learned counsel for the petitioner,
it is 15% attendance and not 5%. It is, at this stage, the learned
counsel for the petitioner, referring to the inter-office communication
dated 16.06.2021 issued by the University, submitted that the lack of
attendance occurred due to break of study was also condoned for the
period from 01.07.2020 to 15.04.2021 and the petitioner became
eligible to appear for the final year University examination, after
completion of the study period as per the Medical Council of India
Regulations (Duration of Course) and after fulfillment of 80%
attendance in each academic year and approval of dissertation, etc.
Therefore, the learned counsel for the petitioner submitted that once
the lack of attendance occurred for the period commencing from
01.07.2020 to 15.04.2021 was condoned, the petitioner is eligible to
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
write the examination.
6. However, when the office of the Controller of Examinations
issued a notification fixing the schedule for the examinations with
regard to the last date for submission of attendance and research
particulars, the petitioner was waiting for submission of her application
in order to get the hall ticket. Till 09.03.2023, the last date for
submission of attendance and research particulars, there was no
communication given to the petitioner. It is also further submitted that
if the petitioner is ineligible to write the examination, it is the duty cast
upon the third respondent University to inform in writing that the
petitioner is disqualified for the reasons mentioned therein. But, there
was no such communication given to the petitioner. In that view of the
matter, the petitioner was running from pillar to post and finally, on
being advised, she approached this Court by filing the present writ
petition in W.P.No.9085 of 2023 with prayer to issue writ of mandamus
directing the respondents to condone the attendance requirement or
treat the same as complied in light of the extraordinary circumstances
in respect of the petitioner herein, and to allow her to appear for the
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
final examinations for the MD Dermatology Course in the 3rd
Respondent college and consequently be considered for "M.D.
Dermatology" degree the 3rd respondent.
7. While taking up the writ petition on 23.03.2023, the learned
Single Judge issued notice and thereafter, the matter was getting
adjourned and the next date of hearing was fixed for 12.04.2023.
Since the date for writing the examination was fastly approaching, i.e.,
03.04.2023, and as the writ petition was adjourned to 12.04.2023, the
matter was mentioned before this Court to be taken up today, so that
the petitioner/appellant would be able to find out where she is
standing whether to write the examination or to withdraw the writ
petition as it would become infructuous.
8. This Court, finding justification on the two grounds raised by
the learned counsel for the petitioner, namely, the condonation of lack
of attendance from 01.07.2020 to 15.04.2021 by the third respondent
University and that the third respondent University has not issued any
order/communication informing the petitioner that she is not eligible to
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
appear for the final year examination, allowed the petition filed for
dispensing with the production of the order dated 23.03.2023 in the
writ petition along with the writ appeal papers to be taken up at 4.00
p.m. today, with liberty to the learned counsel for the petitioner to
serve notice on the other side.
9. Accordingly, when the matter was taken up at 4.00 p.m.,
Mr.T.Balaji, learned counsel appearing for the third respondent and
Mr.V.Raghavachari, learned senior counsel, appearing for the fourth
respondent submitted that the lack of attendance for the period
commencing from 01.07.2020 to 15.04.2021 was considered in favour
of the petitioner, but that does not mean that the petitioner is entitled
to write the examination, because as per the order dated 16.06.2021
passed by the third respondent University, she shall be eligible to
appear for the final year university examination after completion of the
study period as per MCI regulations and after fulfillment of 80% of
attendance in each academic year and approval of dissertation, etc.
Therefore, when the petitioner claims that she is eligible to appear for
the final year university examination, she should also comply the
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
remaining period of study to the extent of leave availed as maternity
leave, but that has not been fulfilled. Therefore, the petitioner/
appellant cannot be allowed to write the examination on 03.04.2023.
10. We find merits on the submission of the learned counsel for
the respondents. The reason is that when the order dated 16.06.2021
issued by the third respondent university says that the lack of
attendance occurred between the period 01.07.2020 and 15.04.2021
stood condoned subject to the conditions mentioned therein, one of
the conditions clearly says that she shall be eligible to appear for final
year university examination after completion of the study period as per
the MCI regulations, provided the study period is extended to the
extent of leave availed as maternity leave. The relevant portion is
extracted as hereunder:-
" .. In view of the recommendations and evidence produced for
Maternity leave, the University hereby grants leave from 01.07.2020
to 15.04.2020 and condone the lack of attendance due to a break of
study subject to the following conditions:
(i) Clause 13.2 of the Medical Council of Inda Post Graduate
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C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
Medical Education Regulations, 2000 stipulates that all candidates
joining the post Graduate training programme shall work as full
time residents during the period of training and shall attend not less
than 80% (eighty percent) of the training during each academic year.
(ii) since the entire first year study period is found to have short of
attendance, it should be made good by undergoing subsequent
training in the remaining period of study thereby the study period is
extended accordingly to the extent of leave availed as Maternity
Leave.
(iii) She shall be eligible to appear for the final year University
examinations after completion of the study period as per MCI
Regulations (Duration of course) and after fulfillment 80% of
attendance in each academic year and approval of dissertation, etc.
(iv) She is not entitled for further condonation on lack of
attendance/break of study in the remaining course period."
Since clause (ii), in our considered opinion, has not been complied
with, we are unable to show any leniency to grant the relief sought for
by the petitioner to write the final year university examination.
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
11. This apart, it is also relevant to be noted that after joining
the course, i.e.,30.06.2020, on the very next day, she went on leave,
i.e., 01.07.2020 and returned to the college for attending classes only
on 15.04.2021. Therefore, she has attended classes hardly for fifteen
days between 16.04.2021 to 30.04.2021. Therefore, the conduct of
the petitioner/appellant also does not appeal to us to extend any
leniency.
12. The judgment relied upon by the learned counsel appearing
for the petitioner in the case of Arulin Ajitha Rani vs. State and
Others, reported in MANU/TN/2958/2012, does not deal with a
medical course, but deals with a non-medical course and therefore,
that may not be made applicable to the present case.
Since we have dealt with all the issues raised in the writ petition,
Writ Petition No.9085 of 2023 is withdrawn from the file of the learned
Single Judge and is dismissed. In view of the dismissal of the main
writ petition, W.A.SR No.44474 of 2023 and C.M.P.No.7587 of 2023
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
are dismissed as having become infructuous. There will be no order as
to costs.
(T.R., ACJ.) (D.B.C., J.)
31.03.2023
Index : Yes/No
Neutral Citation : Yes/No
sra
Note: Issue order copy by 17.04.2023.
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C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
To
1. The Additional Director General of Medical Education,
Directorate General of Health Services,
Ministry of Health & Family Welfare,
Government of India,
Nirman Bhawan, Central
Secretariat, New Delhi 110 001.
2. Medical Council of India,
MCI Building, Pocket-14, Sector-8,
Dwarka Phase-1, New Delhi 110 077.
3. The Registrar,
Chettinad Hospital and Research Institute,
'Chettinad Health City', SH 49A,
Kelambakkam, Tamil Nadu 603 103.
4. The Controller of Examinations,
Chettinad Hospital and Research Institute,
'Chettinad Health City', SH 49A,
Kelambakkam, Tamil Nadu 603 103.
https://www.mhc.tn.gov.in/judis
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
T.RAJA, ACJ,
and
D.BHARATHA CHAKRAVARTHY, J.
(sra)
C.M.P.No.7587 of 2023,
WA No. SR 44474 of 2023
and W.P.No.9085 of 2023
31.03.2023
https://www.mhc.tn.gov.in/judis
