Rajasthan High Court - Jodhpur

Mohit Sharma vs Shekhawati College ... on 30 May, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

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          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                         AT JODHPUR
                    S.B. Civil Writ Petition No. 9529/2024

 Mohit Sharma S/o Omprakash Sharma, aged about 30 years, R/
 o 1553, VPO Raja Ji Ka Karera, Tehsil Mandal, Bhilwara,
 Rajasthan.
                                                                             ----Petitioner
                                             Versus
 1.        Shekhawati College, Pilani, through its Principal, Situated
           At Bahal - Pilani Rd, Pilani, Rajasthan 333031
 2.        Dr     Sarvepalli,       Radhakrishnana             Rajasthan        Ayurvedic
           University (Dr. S.R.A.U...), University College of Ayurved,
           Karwad, Jodhpur. through its Registrar
 3.        Controller of Examination, Dr. Sarvepalli Radhakrishnana
           Rajasthan Ayurvedic University, University College of
           Ayurved, Karwad, Jodhpur.
                                                                       ----Respondents
                                        Along with
                    S.B. Civil Writ Petition No. 9288/2024
  Rohit Kumar Meena S/o Dhanraj Meena, aged about 30 years,
  Resident Of Ragaspuriya, Sangod, District - Kota (Raj.)
  (Enrollment No. Drsrrau/2016/00339).
                                                                          ----Petitioner
                                             Versus
  1.        The Registrar, Dr. Sarvepalli Radhakrishnana Rajasthan
            Ayurved University (Dr. S.R.A.U.), Nagaur Road, Karwar
            Jodhpur (Rajasthan).
  2.        The      Controller         of     Examination,            Dr.     Sarvepalli
            Radhakrishnana           Rajasthan          Ayurved        University     (Dr.
            S.R.A.U..), Nagaur Road, Karwar Jodhpur (Rajasthan).
  3.        The Principal, Punjab Ayurved Medical College, Sri
            Ganganagar.
                                                                       ----Respondents
                                        along with
                    S.B. Civil Writ Petition No. 9409/2024

   Amit Meena S/o Ramji Lal Meena, aged about 30 years, R/o
   Ward No. 24, Khetri Road, Meeno Ka Mohalla, Neem Ka


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     Thana, Sikar, Rajasthan.
                                                                             ----Petitioner
                                            Versus
     1.      Madan Mohan Malviya Government College, through its
             Principal Situated at Ambamata Scheme - A Rd, Radaji
             Circle, Udaipur, Rajasthan
     2.      Dr Sarvepalli, Radhakrishnana Rajasthan Ayurvedic
             University,      (Dr.       S.R.A.U..),      University          College   of
             Ayurved, Karwad, Jodhpur. through its Registrar.
     3.      Controller             of     Examination,                Dr.      Sarvepalli
             Radhakrishnana               Rajasthan        Ayurvedic           University,
             University College of Ayurved, Karwad, Jodhpur.
                                                                       ----Respondents


For Petitioner(s)                   :    Mr. Nitin Goklani &
                                         Mr. Chatur Bhuj
For Respondent(s)                   :    Mr. Sunil Purohit


                  HON'BLE DR. JUSTICE NUPUR BHATI

Order

30/05/2024

1. Since the controversy involved in these writ petitions is

identical, therefore, the same are being decided by this common

order, however, the facts of S.B. Civil Writ Petition No.9529/2024

are taken illustratively.

2. By way of filing this writ petition, the petitioners essentially

have assailed the conduct and action of the respondents in not

allowing the petitioner to undertake the examination of the

remaining subjects of their 3rd and 4th Professional B.A.M.S.

Examination. The petitioners have also sought direction to the

respondents to allow and permit the petitioners to undertake the

examination commencing from 04/06/2024 for the remaining

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subjects of their B.A.M.S 3rd and 4th year Professional Examination

without any late fees and further declare the results and issue the

mark sheets. The petitioners have sought directions to the

respondents to consider the candidature of the petitioners in

accordance with The Indian Medicine Central Council (Minimum

Standards of Education in Indian Medicine) (Amendment)

Regulations, 2016 with effect from the date on which they were

made applicable upon the petitioners i.e. from the year 2021 and it

may be held that the Regulations of 2022 shall not applicable qua the

petitioners retrospectively.

2. Briefly stated, the facts of the case are that the petitioner

took admission with the respondent-University in the B.A.M.S.

Course in the year 2013 while the Indian Medicine Central Council

(Minimum Standards of Education in Indian Medicine) 1986 and

the Amendment Regulations of 2012 ('Regulations of 2012') were

in force. As per the Regulations of 2012, there was no cap of the

number of attempts and the years within which a student has to

clear his/her professional year examinations. As per the Scheme

of the Regulations of 2012, a student was not restricted to any

number of attempts or the duration for passing the entire B.A.M.S.

Course. The National Commission for Indian System of Medicine

(NCISM) introduced Indian Medicine Central Council (Minimum

Standards of Education in Indian Medicine) Regulations,

('Regulations of 2016'), while prescribing a cap on the number of

attempts and the duration of the course to be completed within a

period of nine years.

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3. After coming into force of the Regulations of 2016, various

writ petitions came to be preferred before this Court by various

candidates/students, who were not permitted to appear in the

examination by the respondents, which was registered as S.B.

Civil Writ Petition No.5679/2020 : Ravindra Kumar v. Dr Sarvepalli,

Radhakrishnana Rajasthan Ayurvedic University & Ors. The

aforesaid writ petition alongwith other connected writ petitions

came to be allowed by this Court vide order dated 30.07.2020.

The relevant portion of the order dated 30.07.2020 reads as

under:

"In view of the above discussion, the action of the respondents in preventing the petitioners from filling-up the examination forms for/not permitting to appear in exams of their respective professional years on account of their having availed four chances, cannot be sustained.

Consequently, the writ petitions filed by the petitioners are allowed. The action of the respondents in holding the petitioners as ineligible for appearing in their respective examinations, is quashed and set aside. The respondents are directed to permit the petitioners to fill-up their examination forms within a period of one week and to appear in the ensuing examinations, if they otherwise fulfill all the eligibility conditions.

In view of the fact that the students were prevented from filling-up the examination forms in time, the respondents would not charge late fees from the petitioners."

4. This Court in the Case of Ravindra Kumar (supra) while

deciding the writ petition directed that the Regulations of 2016

shall only be applicable from the date on which the student have

taken the benefit of the said Regulations of 2016.

5. Thereafter, in compliance of the order dated 30.07.2020

passed by this Court in the case of Ravindra Kumar (supra), the

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respondents issued a Notification dated 05.09.2020 clarifying the

position in light of the order dated 30.07.2020 passed by this

Court. The petitioner was accordingly given the benefit of

Regulations of 2016 for the first time in the year 2021 i.e, when

the petitioner was permitted to undertake his first and second

year examination at the same time. Meaning thereby that the

number of attempts in the cap of nine years was to be counted

from the year 2021 onwards i.e. the date on which the

Regulations of 2016 were made applicable on the petitioner) and

thus the petitioner is entitled to keep the term of his B.A.M.S.

Course till 2030. It is alleged that the petitioner cleared all the

subjects in 1st, 2nd and 3rd year BAMS Professional Examinations

and was admitted in fourth professional year. The petitioner,

however, failed in all the subjects of fourth professional year

examination and attempted again for clearing the subjects of

fourth BAMS professional year examination.

6. In the meanwhile, the National Commission for the Indian

System of Medicine (Under the Ministry of AYUSH), ('NCISM')

issued a Notification dated 16.02.2022 (Annex.4), whereby Indian

System of Medicine (Minimum Standards of Undergraduate

Ayurveda Education) Regulations, 2022 ('Regulations of 2022')

were brought into force from the date of its publication in the

Official Gazette. As per the Regulation 11 of the Regulations of

2022, a student has to clear the three professional year

examination within a period of ten years, however, the said

Regulations did not provide its applicability retrospectively. The

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Regulations of 2022 removed the cap on the number of attempts

that a student can take in order to clear one professional year

examination in terms of the Regulations of 2016.

7. The respondents issued an Office order dated 09.05.2024

(Annex.5) for conducting of B.A.M.S. Examinations scheduled to

be conducted from 04.06.2024. The petitioners in pursuance of

the said order dated 29.05.2024 filled his examination form for

the remaining subjects of BAMS fourth professional year

examination, which was accordingly, accepted. The respondents

are now restricting the petitioner to appear in the said

examination and also restricted the form of the petitioner from

their web portal. It is alleged that the Regulations of 2022

prescribes a cap of ten years, which is being made applicable by

the respondents upon the petitioner retrospectively, though the

Regulations of 2022 do not provide for a retrospective application.

It is alleged that the entire scheme of Regulations of 2022 is

entirely different from the Regulations of 2012 and Regulations of

2016, whereby the petitioner is governed. The petitioner has

submitted that since he is pursuing 4 years B.A.M.S. Course as

per Regulations of 2012 and 2016, the Regulations of 2022 could

not be applied qua him/them retrospectively.

8. The petitioners approached the authorities of respondent and

submitted representations ventilating their grievance as the

examinations are scheduled from 04.06.2024 and the schedule of

examination has also been placed on record.

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9. Thus being aggrieved of the same, the petitioners have

preferred the writ petitions.

10. Learned counsel for the petitioners submits that the

Regulations of 2022 cannot be applied upon the petitioner(s) as

the said Regulations prescribe entire different course structure and

the duration of completing the BAMS Course and has been capped

to ten years, whereas under the Regulations of 2012 and 2016,

there was no such cap. Learned counsel for the petitioners also

submits that the respondents have issued a Notification dated

05.09.2020 while clarifying that in light of the directions passed by

the this Court in the case of Ravindra Kumar (supra), the

Regulations of 2016 shall remain applicable on the students who

have taken admission prior to 2017 and thus, the Regulations of

2022 cannot be made applicable upon the petitioners in a

retrospective manner.

11. Learned counsel for the petitioner also submits that since the

petitioners have taken admission with the respondents in the year

2013 and were governed by the Regulations of 2012 and it is an

admitted position that the Regulations of 2016 were made

applicable upon the students like the petitioner(s) only after

30.07.2020, then in such case, the petitioners are entitled to clear

the BAMS Course on or before 2030. Learned counsel for the

petitioners further submits that the petitioners have been

permitted to fill the form for the remaining subjects of the BAMS

fourth year professional examination and the form was also

accepted by the respondents and now the respondents are

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arbitrarily and illegally restricting the petitioners to appear in the

said examination. Learned counsel for the petitioners thus prayed

that the writ petition may be allowed and the petitioners may be

permitted to complete their B.A.M.S. Examination. Learned

counsel for the petitioners placed reliance upon order passed in

the case of Ravindra Kumar (supra) : SBCWP No.5679/2020

decided on 30.07.2020.

12. Per contra, learned counsel for the respondents submits that

upon perusal of the Gazette Notification dated 16.02.2022 it is

writ large that the Regulations of 2022 have come into force from

the date of its publication in the Official Gazette and, therefore,

the petitioners' contention that the Regulations of 2022 are not

applicable upon them, is misplaced. He also submits that as per

the Regulations 11 (E), in order to become eligible to join the

compulsory internship examination, the three professional

examinations are required to be passed and without elective

within a period of maximum ten years from the date of admission.

He further submits that the petitioners have taken admission in

the year 2012/13 and thus, the duration of completing the course

in maximum ten years from the date of admission is already over

and, therefore, the petitioners cannot be permitted to take more

attempts for the purpose of clarify the remaining papers.

13. Learned counsel for the respondents places reliance upon the

judgment dated 26.09.2023 passed by a Coordinate Bench of this

Court in the case of Prashant Deep Vs. Dr. Sarvepalli

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Radhakrishnana Rajasthan Ayurvedic University & Ors. : S.B. Civil

Writ Petition No.9123/2023 decided on 26.09.2023.

14. I have heard learned counsel for the parties and have

perused the material available on record.

15. Indisputably, the petitioners have taken admission in the

year 2012 & 2013 in the respondents-college and failed in all the

subjects of fourth/third year professional examination of the BAMS

Course. In S.B. Civil Writ Petition No.9529/2024, the petitioner

failed to clear all the subjects of his fourth year professional

course and in S.B. Civil Writ Petition No.9288/2024, the petitioner

failed failed in two subjects of his fourth Professional course and in

S.B. Civil Writ Petition No. No.9409/2024, the petitioner failed in

all the subjects of third professional year.

16. This Court finds that the petitioners were earlier governed by

the Regulations of 2012, however, the respondent-University by

way of communication dated 05.09.2020 (Annex-2) took a

conscious decision of not implementing the Regulations of 2016

upon the students who had taken admission prior to 2017 and the

Regulations of 2016 were made applicable after 30.07.2020. The

National Commission for Indian System of Medicine has issued a

Gazette Notification dated 16.02.2022 while exercising the powers

conferred by sub-Section 55 of the National Commission for Indian

System of Medicine Act, 2020 and has brought into force the

Regulations of 2022. The said Regulations of 2022 have come into

force with effect from the date of publication in the Official

Gazette. As per the Regulations of 2022, the professional

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examinations are required to be passed and qualified in nine

electives within a period of maximum ten years from the date of

admission. The petitioners had been denied further attempts by

the respondents solely on the ground that the maximum duration

of completing the course in maximum ten years from the date of

admission is over. The Regulation 11(E) of the Regulations of 2022

is reproduced hereunder:-

"To become eligible for joining the Compulsory Rotatory Internship programme, all three professional examinations shall be passed and qualified in nine electives within a period of maximum ten years from the date of admission."

17. This Court further observes that in the case of Prashant

Deep Chitoshiya (supra), a Coordinate Bench of this Court while

dealing with identical and similar controversy, has dismissed the

writ petition. The relevant portion of the order passed in the said

case reads as under: -

"7. This Court further observes that as per the judgments rendered in the cases of Govind Soni (supra) and Sahil Bangra & Ors. (supra), the amended regulations would be applicable on the students who though were admitted prior to such amendments however have not passed out as of yet. The relevant portions of the said judgments are reproduced as hereunder:

Govind Soni (supra):

"6. Indisputably, the Regulations governing education in Indian Medicine framed by the Central Council of Indian Medicine with the previous sanction of the Central Government, stands amended vide Amendment Regulations, 2016 and the Regulation putting restriction on appearance of the students pursuing B.A.M.S. Course in Final Professional Examination unless they have passed First, Second and Third Year Professional Examinations does not survive, and thus, the scheme of the Examination as provided for under Regulation 6 of Amendment Regulations, 2016, shall operate even for the

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students who though admitted prior to Amendment Regulations, 2016 coming into force but have not passed out the course as yet. Merely because, the petitioner was admitted to the course prior to coming into force of the Amendment Regulations, 2016, the benefit of the provision incorporated therein, which permits him to appear in Final Professional Examination even before passing the Third Professional Examination, cannot be denied to him."

Sahil Bangra (supra):

"9.2. The 2022 amended Regulations cannot be made applicable on the students, who are not currently undergoing the Course, or whose admission has already been terminated, or whose Degree has already been denied, or whose case no more survives; but since the petitioners are the students of the currently ongoing Course and pursuing their Degree Course as regular students, therefore, the prospective application of the Regulations will help the present petitioners, and therefore, on count of number of attempts, they will not be denied the chance to appear in the examination. However, the candidates will be ineligible for internship as per the aforementioned clause of maximum ten years, which has been inserted in the Regulations of 2022."

8. This Court also observes that the petitioner had failed in the aforesaid Subject during the Third/Final Year Professional Examination, 2022, on count of the fact that he was caught using unfair means during the examination; however subsequently, while cancelling the attempt of 2022, he was allowed to undertake the attempt of the said Subject in the examination period of JulyAugust 2023, the same being subject to the prevalent Regulations and since the Regulations of 2022 were in place at that time, thus accordingly, the petitioner could no longer be allowed to give further attempts, as by that time, the maximum prescribed time period of 10 years was already over, as per the Regulations of 2022.

9. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.

10. Consequently, the present petition is dismissed. All pending applications stand disposed of."

18. In the present case, there is no order passed by the

respondent-University giving relaxation that the Regulations of

2022 shall not apply upon the students, who have taken

admission prior to the Regulations of 2016. Thus, in light of the

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fact that the Regulations of 2022 are in place, the respondents

have rightly denied the petitioners from taking further attempts in

order to pass the remaining subjects third and fourth year BAMS

professional course as the maximum prescribed time limit for

completing the BAMS Course of ten years is already over in

accordance with the Regulations of 2022.