Dr. S.R. Rajasthan Ayurved ... vs Dinesh Kumar ...
2023 Latest Caselaw 7103 Raj

[2023:RJ-JD:29508-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Special Appeal (Writ) No. 743/2023

1. Dr. S.R. Rajasthan Ayurved University, Jodhpur, Through Its Registrar At Jodhpur.

2. The Controller Of Examination, Dr. Sr Rajasthan Ayurved University, Karwad, Nagaur Road, Jodhpur.

----Appellants Versus

1. Dinesh Kumar S/o Shri Aja Ram, Aged About 26 Years, R/o A.C.F.C. Colony, Jodhpur.

2. The Principle, M.N. Homeopathic Medical College And Research Institute, Jodhpur Bypass, Near Sahara City, Bikaner.

3. The Secretary, Central Council Of Homeopathy, Jawahar Lal Nehru Bhartiya Chikitsa Avam Homeopathy Anusandhan Bhawan, 61/65, Institutional Area Opposite D- Block, Janakpuri, New Delhi.

                                                                    ----Respondents


For Appellant(s)              :    Mr. Suniel Purohit
For Respondent(s)             :    Mr. Mr. Lalit Parihar,
                                   Mr. Subhankar Johari

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

13/09/2023 (Oral):

1. Challenge in this appeal is to the order dated 25.05.2023

passed by the learned Single Judge, whereby the writ petition

preferred by the respondent Dinesh Kumar claiming benefit of the

circular dated 25.02.2022 (Annexure-8 to the writ petition) issued

by the National Commission for Homeopathy, New Delhi, has been

allowed and the respondent has been granted the benefit holding

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him entitled for three more chances for clearing the BHMS second

year examination.

2. The appellant has assailed the impugned order on the

ground that the said circular dated 25.02.2022 issued by the

National Commission for Homeopathy would be applicable to the

students who could not pass the examinations in one or more

subjects in the years 2020 and 2021, in view of the Covid-19

pandemic situation. He asserts that the benefit of the said

instructions was only limited to those students, who after the

breaking out of the Covid-19 pandemic, were unable to participate

or clear the examinations in the years 2020 and 2021 as Covid-19

pandemic was declared in March 2020 and thus, the said circular

would not be applicable to the examinations which had taken

place prior thereto. It is stated that all written examinations were

held by the end of December 2019 and only one examination that

too practical examination was held on 2nd and 3rd January, 2020.

Even the session and the examination was for 2019. On this

basis, it is asserted that the benefit of the said circular dated

25.02.2022 would not be available to the respondent.

3. Reliance has been placed upon the Division Bench judgment

of this Court at Jaipur Bench in Manish Sharma vs. Central

Council of Homeopathy and Ors. [D.B. Civil Special Appeal

(Writ) No.1258/2022 decided on 16.12.2022] where the

scope, ambit and applicability of the circular dated 25.02.2022

issued by the National Commission for Homeopathy was

considered and the claim for benefit of the said circular was

denied to the similarly placed students. Prayer has, thus, been

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made for allowing the present appeal and setting aside the order

passed by the learned Single Judge.

4. On the other hand, learned counsel for the respondent has

submitted that the language of the circular makes it abundantly

clear that a student, who has not been able to pass the

examination in one or more subjects during the year 2020 and

2021, would be entitled to the benefit of the said circular which

entitles such students for three chances to clear the examination.

He contends that it is an admitted position that the practical

examination of the respondent was held in January 2020. The

combined marks in the written examination and the practical

would constitute the result. On addition of these marks as per the

result declared by the appellant, the respondent has failed to clear

the examination and thus, would be entitled to the benefit of the

circular dated 25.02.2022, which relief has been granted to him by

the learned Single Judge. Prayer has, thus, been made for

upholding the order passed by the learned Single Judge and

dismissing the appeal.

5. We have considered the submissions made by learned

counsel for the parties and with their assistance have gone

through the impugned judgment and the pleadings.

6. The issue revolves around the circular dated 25.02.2022

which has been issued by the National Commission for

Homeopathy, New Delhi. A perusal of the said circular would make

the things clear that the special meeting of the National

Commission for Homeopathy was held on 25.02.2022 where the

National Commission for Homeopathy has taken a decision with

regard to allowing three extra chances over and above including

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mercy chance to clear the BHMS examination. This was being

done taking into consideration the unprecedented situation of

Covid-19 pandemic. The intent and purpose of the circular dated

25.02.2022 is apparent from the subject of the said circular, which

reads as follows:

"Directions for additional attempt for BHMS examination due to Covid-19 pandemic-reg."

7. The decision of the special meeting of the National

Commission for homeopathy as held on 25.02.2022 reads as

follows:

"Commission considered this unprecedented situation of Covid-19 pandemic and decided that students of any year of BHMS who could not pass examination in one or more subjects during year 2020 & 2021 as per specified number of maximum attempts and duration, shall be allowed 03 extra chances over & above including mercy chance."

It is clearly mentioned therein thereafter that this was a one

time measure considered due to unforeseen Covid-19 pandemic

situation. A perusal of the above would leave no manner of doubt

that this concession was given to the students because of

considering the Covid-19 pandemic regulations and the

unforeseen situation which has arisen. The intent was that the

students, because of disturbed academic schedule because of

Covid-19 pandemic, may not lose an opportunity to appear/clear

the examination during the years 2020 and 2021 when the Covid-

19 pandemic was prevailing. A Division Bench of this Court in

Manish Sharma's case (supra), while dealing with this circular, has

observed as follows:

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"We have perused order dated 25.02.2022 of the National Commission for Homeopathy. On an apparent reading, the decision was taken to provide additional opportunity to those who appeared in the examination, but failed during Covid-19 Pandemic. This does not open the flood gate for those, who had already availed five chances and failed prior to on set of Covid-19 Pandemic. It is apparent that the appellant had availed maximum five chances as provided under Regulation 11 of the Homoeopathy (Degree Course) B.H.M.S. Regulations, 1983 (hereinafter referred to as 'the Regulations of 1983'), in June-July 2019, i.e. much prior to on set of Covid-19 Pandemic. The decision of the National Commission for Homeopathy, as referred to hereinabove, was to cope up with the unprecedented situation of Covid-19 Pandemic and to provide relief to those students of any year of B.H.M.S. who could not pass examination in one or more subjects during the year 2020 & 2021 as per specified number of maximum attempts and duration.

Therefore, learned Single Judge has rightly held that order dated 25.02.2022 is not applicable to the case of the appellant."

We are in agreement with the same.

8. Present is a case where the respondent could not clear his

second year BHMS examination which was held in the year 2019

despite having exhausted all his five attempts. He along with two

others approached this Court by filing S.B. Civil Writ Petition

No.7149/2020 claiming benefit of sixth chance to clear the BHMS

secondary examination as he had failed in his five attempts which

were permissible under the University ordinance. The said writ

petition was dismissed by this Court vide order dated 25.02.2021

(Annexure-6 to the writ petition). Against the said dismissal, the

respondent preferred D.B. Special Appeal (Writ) No.327/2021,

which was dismissed for non-prosecution.

9. The respondent thereafter did not pursue the matter any

further except for filing the second writ petition seeking benefit of

circular dated 25.02.2022. As has been noted above, respondent

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having availed of his writ benefit would not, otherwise, be entitled

to the benefit as has been claimed except for circular dated

25.02.2022, which in the considered view of this Court would not

be applicable to the case of the respondent as his claim would not

fall within the scope and ambit of the said circular. The facts

make it clear that the written examinations were held and

concluded in the month of December 2019 and even the practicals

were held on 2nd and 3rd January, 2020 which is prior to the

outbreak and declaration of Covid-19 Pandemic on 20 th March,

2020. The situation was normal till the holding of written and

practical examinations for the 2nd year. Therefore, it cannot be

said that the respondent was in any manner affected by the

pandemic either in preparation for the examinations or for

participating therein. No benefit, thus, of the circular dated

25.02.2022 can be granted to the respondent.

10. The judgment passed by the learned Single Judge making

applicable the circular dated 25.02.2022 to the case of the

respondent thus, is unsustainable and is hereby set aside.

11. The appeal is allowed and the writ petition is dismissed

accordingly.

(VINIT KUMAR MATHUR),J (AUGUSTINE GEORGE MASIH),CJ

54-MohitTak/-

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