Rajasthan High Court

Dr. Ravi Kabra Son Of Shri Murli ... vs State Of Rajasthan on 12 August, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 6116/2020

Dr. Ravi Kabra Son Of Shri Murli Manohar Kabra, Aged About 35
Years, Resident Of 19 Saket Nagar Extension, Jhalawar (Raj.)
Presently Residing At B-05 Resident Doctors Hostel Sms Medical
College Hostel, Jln Marg, Sms Hospital, Jaipur.
                                                                   ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through Principal Sms Medical
       College, Jaipur by email [email protected]
       [email protected]
2.     Rajasthan University Of Health Sciences, Through Its
       Controller Examination, 100, Kumbha Marg, Sector 11,
       Pratap Nagar, Jaipur, Rajasthan 302033 by email
       [email protected]
                                                                ----Respondents

For Petitioner(s) : Dr. Abhinav Sharma. For Respondent(s) : Mr. Harshal Tholia for Dr. V.B.

Sharma, AAG.

Mr. Ravi Chirania.

HON'BLE MR. JUSTICE INDERJEET SINGH Order

12/08/2021

This writ petition has been filed by the petitioner with the

following prayer:-

"It therefore, most respectfully prayed that:-

(i) By way of an order writ or direction in the nature thereof call for the record examine the same and direct the respondent No.1 to grant similar benefit to the petitioner as has been extended to the other similarly situated resident doctors by counting the day offs and CLs and declare him eligible for appearing in PG MD/MS Examination (Mains) to be held from June 15, 2020;

(ii) By way of an order writ or direction in the nature thereof declare that the eligibility of the petitioner to appear and present himself for the PG MD/MS Examination (Mains) 2020 remained unaffected as per the provision of ordinance 278-E of RUHS.

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(iii) By way of an order writ or direction in the nature thereof in the event the petitioner is held eligible than direct the respondent RUHS to declare the result of his examination along with other eligible candidates of the Batch of 2017.

(iv) Or any order in favour of the petitioner may also be kindly passed."

This court while issuing notice to the respondents passed the

interim order in favour of the petitioner on 09.06.2020. The order

dated 09.06.2020 reads as under:-

"Issue notice to the respondents, returnable by 12.06.2020.

Defects be removed.

List on 12.06.2020.

In the meanwhile, respondents are directed to allow the petitioner to fill up the online form."

Again the matter was listed on 15.06.2020 and this court

passed the following order:-

"Learned counsel for the petitioners submits that examination of IIIrd year PG Medicine is going to be held at 02:00 PM today, they may be permitted to appear in the examination and their results may be with-held subject to the decision of the writ.

Ordered accordingly.

List the matters after four weeks."

Again the matter was listed on 25.08.2020 and this court

passed the following order:-

"Due to spread of Covid-19 pandemic arguments could not be heard today. Respondents are directed to bring the result of the petitioners in a sealed cover on the next date of hearing. List on 1.9.2020. In the meanwhile, petitioners are permitted to join back the duties in their parent department."

Again the matter was listed on 19.10.2020 and this court

passed the following order:-

(3 of 7) [CW-6116/2020]

"This application has been filed by the estranged wife of the petitioner - Dr. Ravi Kabra stating that in other proceedings, there was some directions issued by this Court directing the concerned petitioner to appear before the Family Court, however, he did not appear before it and therefore, she is necessary party to the present proceedings.

A bare look at the prayer made in the present case shows that the petitioner, by way of this writ petition, is assailing the action of the University as well as the Medical College not allowing him to appear in the examination. The said aspect is independent of the family dispute and the applicant has got no lis nor she can be said to be in any manner necessary or interested party to the present litigation.

In view of law laid down by the Supreme Court in the case Udit Narain Singh Malpaharia Vs. Addl. Member, Board of Revenue reported in AIR 1963 SC 786, the applicant cannot be said to be a necessary or proper party to the present litigation. Thus, applications (1/2020 & 1/2019) are wholly frivolous and the same are dismissed with cost of Rs.5,000/- to be deposited with the Rajasthan High Court Bar Association, Jaipur.

In S.B. Civil Writ Petition No. 6116/2020, S.B. Civil Writ Petition No. 6165/2020, S.B. Civil Writ Petition No. 6266/2020 & S.B.Civil Writ Petition No.8627/2019:-

The result was called as supplementary examination are due in October, 2020.

Learned counsel appearing for the University has informed this court that the petitioners have cleared the examination wherein this Court had allowed them to appear provisionally earlier. Learned counsel also submits that although the result may have been declared, however, the same should be made subject to the decision of the case.

Taking into consideration the nature of the case, this Court deems it appropriate to direct that the result of

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the petitioners which has been declared today of having pass the examination, shall not create any right in their favour. However, now list these cases for final arguments at the order stage on 4th November, 2020.

Counsel for the petitioner submits that the respondents have

regularized the absence/leave period of similarly situated doctors

but failed to regularize the absence/leave period of the petitioner.

Considering the submissions made by the counsel for the

petitioner, this court on 03.08.2021 passed the following order:-

"Learned counsel appearing on behalf of the petitioner submitted that although the respondents have sanctioned the absence/leave period of three candidates namely Dr. Vijay Chouhdary, Dr. Mahesh and Dr. Amit as mentioned in para 5 of the writ petition but in an arbitrary and malafide manner, absence/leave period of 78 days of the petitioner has not been sanctioned by the respondents. The respondents have taken objection that the application of the petitioner has not been forwarded by the Head of Department. The petitioner has filed rejoinder affidavit and along with the affidavit, the application dated 10.06.2020 has been filed for sanctioning the absence period which has duly been forwarded by Head of Department.

In that view of the matter, counsel appearing for State of Rajasthan is directed to take appropriate instructions as to why the leave/absence period of the petitioner has not been sanctioned by the respondents as yet as has been done in the case of similarly situated three persons as mentioned in the writ petition. List this matter again on 06.08.2021."

Today, the additional affidavit filed on behalf of the

respondent-Principal, SMS Medical College & & Controller,

Attached Hospital, Jaipur has been placed for perusal, alongwith

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which copy of the order dated 07.08.2020 has been enclosed. The

order dated 07.08.2020 reads as under:-

"निम्नलिखित सेवारत चिकित्सको को पीजी एम डी/एम एस कोर्स की अध्यनन अवधि पूर्ण होने पर उनके नाम के सामने अंकित दिनांक को मध्याह् पश्चात पीजी कोर्स से कार्यमुक्त किया जाता है :-

क्र चिकित्सक का नाम कार्यमुक्त दिनांक विशिष्ठता

1. डॉक्टर रवि काबरा 15 .08 .2020 मेडिसन

2. डॉक्टर नेहा चौधरी 27 .08.2020 पीएसएस

उक्त चिकित्सको को निर्देशित किया जाता है की वे अपनी उपस्थिति अग्रिम पदस्थापन हेतु निदेशक चिकित्सा एवं स्वास्थ्यय सेवाएं राजस्थान , जयपुर को प्रस्तुत करेंगे"

Counsel for the petitioner submits that the petitioner has

already declared passed in the respective courses by the

respondent-University and now the respondent-University be

directed to issue degree of MD/MS course.

In support of the contentions counsel for petitioner relied

upon the judgment passed by this court in the matter of Dr. Anil

Chaudhary & Ors. Vs. State of Rajasthan reported in AIR

2000 Rajasthan 114.

"13. In my considered view, the very object and import of Ordinance 278-E of the University of Rajasthan relating to the period of training and examination for MD/ MS students is that the requisite period of training for determining the eligibility of candidate for appearing in the MD/MS examination should be three years to be reckoned from their date of registration with the University and is not a condition precedent for determination of their eligibility for appearing in the examination otherwisse the Ordinance would have clearly postulated that three years period of training would in any case be a condition precedent for the MD/MS

(6 of 7) [CW-6116/2020]

examination pursuant to the registration of the PG candidate to the university. That apart, as per the recommendations of the Medical council of India (quoted in Civil Writ Petition No.2780/1999) the prescribed minimum period of training for the award of MD/MS degree/diploma, from the year 1993 onwards shall be three calendar years and as per training programme prescribed by the Medical Council of India the PG candidates would be required to attend minimum of 80% of the training period. In similar circumstances, vide order dated 6.04.99 annexed to the writ petitions, the State Government has allowed all PG students to take MD/MS examination who have completed ore than 80% of total period of training subject to the condition that irrespective of taking of examination they would complete three years training period and then only they would be entitled to PG degree or diploma.

19. Therefore, in my considered view, the purpose of Ordinance 278-E (V) of the University of Rajasthan is achieved, if a student of MD/MS examination has completed three years's period of training before the declaration of result of the examination and even that apart, vide Annexure-4 in the instant case, the State Government has allowed all students to take MD/MS examination who have completed more than 80 % of total period of training subject to the condition that irrespective of taking of examination they would complete three years' training period, and in this view of the matter, since admittedly the petitioners have already completed three years period of training as on 16th/17th July, 1999, would not be proper to deprive such candidates like the petitioners of their taking MD/MS examination wherein they appeared, which was scheduled to commence on 11-5-99 but postponed to 29-5-1999. Hence I find no impediment to hold all the petitioners in this bunch of writ petitions as eligible to take their respective MS/MD examinations wherein they have appeared in the month of May, 1999 and thereby they are entitled to get declared result of their respective examinations."

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Counsel appearing on behalf of the respondents submitted

that although the absence/leave period has been regularized by

the respondents, however, the petitioner is not entitled for grant

of degree in view of MCI Regulations, in particular clause 13.2

thereof.

Heard counsel for the parties and perused the record.

The writ petition filed by the petitioner deserves to be

allowed for the reasons; firstly, admittedly, the period of study

leave of the petitioner has already been extended vide order dated

17.12.2019 and on completion of the course of MD/MS the

petitioner has been directed to report before the Director, Medical