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Sinai Netravalkar Mahesh Govind (Dr.) and Balkrishna Ganpat Pawar (Dr.) Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Applications Nos. 93 and 94 of 1983
Judge
Reported in1984(2)BomCR67
ActsIndian Medical Council Act, 1956 - Sections 20 and 33; Admission to Post-Graduate Courses of Goa Medical College Rules, 1977; Admission to Post-Graduate Courses of Goa Medical College (Amendment)Rules, 1982; Constitution of India - Article 14
AppellantSinai Netravalkar Mahesh Govind (Dr.) and Balkrishna Ganpat Pawar (Dr.)
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateM.S. Usgaonkar, Adv.
Respondent AdvocateJ. Dias, G.P.
Excerpt:
constitution - admission - sections 20 and 33 of indian medical council act, 1956, admission to post-graduate courses of goa medical college rules, 1977, admission to post-graduate courses of goa medical college (amendment) rules, 1982 and article 14 of constitution of india - admission to post-graduate courses of medical college - petitioner contended that no marks liable to be deducted on account of his inability to appear for third m.b.b.s. examination at scheduled time due to sickness - impossible for any authority to decide at time of admission whether candidate has taken drop or has failed to appear for any reason - disabilities which may deter one student from appearing may not deter another from appearing for examination - rule does not make any distinction among candidate who.....r.a. jahagirdar, j.1. these two petitions involve common questions of law and are based upon analogous facts. they are, therefore, being disposed of by this common judgment and order. for the sake of convenience, however, we will narrate the facts in special civil application no. 93 of 1983. the petitioner in this case was admitted to the goa medical college for his m.b.b.s. degree course. he passed the first m.b.b.s. examination in november 1978, that is when he was due for the said examination. the second m.b.b.s. examination was to be held and was held in april 1980 and the petitioner appeared for the said examination and passed the same. the third m.b.b.s. examination was scheduled and was held in october/november 1981. the petitioner actually sent his application for being admitted.....
Judgment:

R.A. Jahagirdar, J.

1. These two petitions involve common questions of law and are based upon analogous facts. They are, therefore, being disposed of by this common judgment and order. For the sake of convenience, however, we will narrate the facts in Special Civil Application No. 93 of 1983. The petitioner in this case was admitted to the Goa Medical College for his M.B.B.S. Degree Course. He passed the first M.B.B.S. examination in November 1978, that is when he was due for the said examination. The second M.B.B.S. examination was to be held and was held in April 1980 and the petitioner appeared for the said examination and passed the same. The third M.B.B.S. examination was scheduled and was held in October/November 1981. The petitioner actually sent his application for being admitted to the examination, which application was granted. In fact he was admitted to appear for the said examination. According to the averments made in the petition, due to sickness the petitioner could not appear for the third M.B.B.S. examination which was held in October 1981. The University accepted the explanation of the petitioner and in fact refunded the examination fees paid by him. The next examination was held in April 1982 and the petitioner appeared for the said examination and passed the same according to the Rules which Governed the award of the degree of M.B.B.S., the petitioner was to complete what is called internship for one year which he did from June 1982 to June 1983. In the meantime, on 30th of November, 1982 he had been provisionally registered by the Maharashtra Branch of the Indian Medical Council. After completion of the internship he was awarded, on 29th of June, 1983, the internship completion certificate by the Dean of the Goa Medical College.

2. Admission to the post-graduate courses of the medical college is made according to certain rules, which we will be examining shortly in this judgment. For the purpose of the said rules the marks obtained by the candidates seeking admission to the post-graduate courses are considered. These marks are adjusted by what the medical college has regarded as the level of performance of the candidate in the under-graduate course. On 25th of May, 1983, a list of the candidates who had passed the medical examination and who were seeking admission to the post-graduate courses was displayed on the notice board. The marks which should be deemed to have been obtained by each candidate, after the calculation is made in accordance with the Rules, were also shown. As per this notice, the marks which were shown against the petitioner's name were, according to him, less than what he thought were due to him According to the petitioner, no marks were liable to be deducted on account of his inability to appear for the third M.B.B.S. examination at the scheduled time. He lodged his objections to the same, but the same were rejected.

3. The list of the candidates who were selected for the different post-graduate courses was published on 1st of July, 1983. In this list the petitioner's name was absent. The petitioner had given preference for pediatrics as well as T.B. and chest diseases. As far as pediatrics is concerned, the petitioner is not making any grievance in this petition, because the candidate who has been selected has better performance to his credit irrespective of the rules which are being challenged in this petition. According to the petitioner, the candidate who has been selected for the T.B. and chest diseases and who has been joined as the fifth respondent in this petition has a lower level of performance in the under-graduate level and if the deduction had not been made from the total number of marks obtained by the petitioner at the under-graduate level under the Rules, then the petitioner would have been admitted to the said course and the fifth respondent would not have been so admitted. It is on this ground that the petitioner has challenged the selection of the fifth respondent made according to the Rules framed by the Medical College.

4. It has been mentioned in the petition that till 15th of June, 1982 different set of rules, which will be called 1977 Rules, were governing the admission to the post-graduate courses of the Goa Medical College. The rule among the said Rules, which is relevant for our purposes, reads as follows :-

'Rule for P.G. Selection in clinical subject---

While calculating percentage of subject marks 5% per attempt of the marks obtained in that subject will be deducted from percentage of subject marks for candidates with failures in that subject.'

In other words, under the 1977 Rules, 5 per cent of the marks were to be deducted in a particular subject for which a candidate was seeking admission tot eh post-graduate course if he had failed in that subject in the under-graduate course. For every such failure 5 per cent of the marks would have been deducted.

5. These Rules were replaced by the new Rules on 15th of June, 1982. We will refer to the same as 'the new rules' for the sake of convenience. The new rules have been annexed as Exhibit 'D' to the petition. Paragraph III of the said Rules is headed by the words 'Eligibility, Preference and Order of Merit'. A candidate applying for admission to the post-graduate degree course is required, as per the said Rules, to possess the M.B.B.S. degree of the University of Bombay or any other University recognised as equivalent thereto by the University of Bombay and Medical Council of India, and should have been registered with the Indian or State Medical Council after completing the compulsory internship for one year. There is no dispute that the petitioner satisfies this requirement. The second sub-paragraph of paragraph III of the new rules deals with the preferential treatment that is to be given to a candidate who has graduated from the Goa Medical College and also satisfactorily completed full internship at the Goa Medical College. There is no dispute that the petitioner satisfies this preferential test also. The third sub-paragraph of paragraph III of the new Rules is important and is required to be interpreted in the present petition. It will be convenient to reproduce the said provision in its entirety :---

'3) Order of Merit.

The order of merit shall be determined by computing the marks in the following manner :---

(i) The merit shall be arrived at by obtaining the sum of the percentage of aggregate marks and the percentage of marks in the subject related to the Diploma/Degree in which the candidate seeks the registration.

(ii) Aggregate Marks :---The percentage of aggregate marks shall be arrived at by totalling the marks obtained in the 1st, 2nd and 3rd M.B.B.S. Examination. (Viz, Anatomy, Physiology, Pharmacology, Pathology and Bacteriology, Preventive and Social Medicine, Forensic Medicine, Surgery and Obstetrics and Gynaecology) and reducing it to a percentage after the following deductions :---

1) 2 1/2 percent of marks shall be deducted for every failure from the marks of the subject failed, except in the case of the subject related to the Diploma/Degree of registration.

2) 2 1/2 percent marks shall also be deducted as above, if the student takes a drop in any subject (does not appear) at the scheduled time.

iii) Subject marks :---This refers to percentage of marks in the subject related to Diploma/degree in which the candidate seeks registration i.e. Medicine (or) Surgery or Obstetrics & Gyanaecology. The percentage of subject marks shall be arrived at after deducting 5% for each failure or drop.

Note :---While computing the aggregate marks, however, deduction indicated in 3(ii)(1) above shall not be made, in subject, where 5% deduction has already been made for failure under 'subject marks' at 3(iii).'

6. While narrating the facts above we have already mentioned that the petitioner did not appear for the third M.B.B.S. examination in October 1981 which was the scheduled examination as far as he is concerned. We will proceed at the moment on the basis that he could not appear for the said examination on account of his illness which fact of illness, according to him, was accepted by the University of Bombay. From the aggregate marks obtained by the petitioner in the three M.B.B.S. examinations, 2 1/2 per cent of marks have been deducted under paragraph (2) of the Rule relating to aggregate marks. This has been so done because, according to the authorities, the petitioner has taken a drop in the examination inasmuch as he did not appear for the examination at the scheduled time. This deduction has been made for every subject for which he did not appear at the scheduled time. In other words, 7 1/2 percent marks have been deducted from the aggregate marks obtained by him in the three M.B.B.S. examinations. There is, as can be seen from the rules, another sub-paragraph dealing with subject marks. This sub-paragraph refers to the percentage of marks which are to be deducted in respect of the subject in which the petitioner is seeking admission in the post graduate course. If in the particular subject in which he is seeking admission to the post-graduate he has failed, or taken a drop, then 5 per cent of the marks will be deducted for each attempt or drop. Accordingly, this 5 per cent marks in the petitioners' case has been deducted. But the deduction under sub-paragraph (ii) dealing with subject marks will not be made applicable if 5 percent of marks have been already deducted under sub-paragraph (iii). The net result in the case of the petitioner is that at the rate of 2 1/2 per cent marks 5 per cent marks have been deducted in respect of the two subjects and in the subject in which he 'was seeking admission 5 per cent marks have been deducted under the sub-paragraph dealing with subject marks. Thus an aggregate of 10 percent of marks have been deducted from the total marks obtained by the petitioner in the three M.B.B.S. examinations. As a result of this, he has been found to be slightly lower in the order of merit judged by these rules than the fifth respondent, who has passed all the three M.B.B.S. examinations at the scheduled times. As a result no deduction of marks was made in the case of the fifth respondent.

7. The petitioner has challenged the refusal of the authorities to admit him to the post-graduate examination on several grounds. Mr. Usgonkar, the learned Advocate appearing for the petitioner, has canvassed four propositions for our acceptance. In the first place, according to him, the Rules which came into force on 15th of June, 1982 will not be applicable to the case of the petitioner and the fifth respondent at all because these rules cannot be said to be retrospective. According to Mr. Usgonkar, the 1977 Rules should govern the students who have passed the M.B.B.S. Examination before coming into force of the new Rules. The new Rules can be applied only to those students who have passed the M.B.B.S. Examinations after the said Rules have come into force. Secondly, he contended that the rules which have been framed by the Goa Medical College are inconsistent with the regulations framed by the Indian Medical Council and the regulations framed by the Indian Medical Council being statutory regulations and being mandatory in character, the rules framed by the Goa Medical College must yield to the regulations framed by the Indian Medical Council. The third ground of attack on the Rules is that the Rule under which the deduction from the marks of the petitioner has been made is arbitrary and discriminatory. According to Mr. Usgaonkar, since the sanction of the Goa Medical College, which is a statutory body, is found to be arbitrary and discriminatory, it is liable to be set aside on the ground that it contravenes Article 14 of the Constitution of India. Mr. Usgaonkar says that even if none of these propositions commends itself to us, still on merits it could be said that the petitioner has not taken a drop at all or that it cannot be said that he did not appear for the third M.B.B.S. Examination at the scheduled time. The basis of this submission is that the act of taking a drop or the act of not appearing for an examination to be found in the Rules must be a voluntary act and if for reasons beyond his control the petitioner could not appear for the examination it cannot be said that he did not appear for the examination within the meaning of the impugned rule. We now proceed to examine these propositions in the order in which they have been propounded.

8. According to Mr. Usgaonkar, the new Rules must be held to be prospective and they cannot govern the admission to the post-graduate courses of students who had passed their M.B.B.S. examination prior to the coming into force of the new rules. It is his contention that since the petitioner has passed the final M.B.B.S. Examination in April 1982, that is before the coming into force of the new Rules, he must be held to be a candidate on that date. If it is so held, then the Rules which were prevailing at that time, namely the 1977 Rules, should Govern his eligibility for being admitted to the post-graduate course. It is not possible for us to accept this contention. The petitioner, as all other candidates, who passed the third M.B.B.S. Examination in April 1982 could become eligible for being admitted to the post graduate medical course only after completing one year's internship, which is compulsory. The petitioner, as also the fifth respondent, admittedly completed this internship in June 1983. Before the petitioner and the fifth respondent thus became entitled for admission to the post-graduate course, the new Rules had already come into force. It is not as if the rules have been changed in the middle of the game, if one can use such a phrase. There was no right vested in the petitioner or any other candidate who passed the third M.B.B.S. Examination in April 1982 that he should be admitted to the post-graduate course under a particular set of rules which were prevailing for at least five years before the new Rules came into force. It cannot, for example, be stated, nor has it been stated by Mr. Usgaonkar before us, that a student who enters the Medical College in a particular year acquires a right to be governed by a particular set of rules prevailing at that time till he completes all his M.B.B.S. Examinations, if before he becomes eligible to get admission to any particular course a new set of Rules can be framed by the competent authorities. In the instant case, as already mentioned above, the petitioner has passed his third M.B.B.S. Examination in April 1982. He became eligible for admission to the post-graduate medical course in June 1983. By this time the new Rules had already come into force. It cannot, therefore, be said that any act of unfairness is involved on the part of the authorities while they framed the new Rules. Nothing to which the petitioner was entitled on the basis of the result of the examination held in April 1982 has been denied to him.

9. Mr. Usgaonkar, however, has placed reliance upon certain authorities to which we must make a reference. Relying upon Virendra Kapur v. University of Jodhpur, , Mr. Usgaonkar suggested that the facts in the present case are analogous to the facts involved in that case and the new rules could not be made effective as to effect the petitioner who had already passed his M.B.B.S. Examinations. The facts in Virendra Kapur's case showed that the petitioner before the Rajasthan High Court, who was a student of the Engineering College of the University of Jodhpur, had failed in his second year examination in the subject of mathematics. He had passed in all other subjects and had been promoted to the third year subject to the rule that was then prevailing that the result of the third year would be declared only after he has passed the mathematics paper of the second year. For enabling students like the petitioner before the Rajasthan High Court, a supplementary examination was held in August 1963. Unfortunately the petitioner failed in the mathematics subject again in the said examination. This supplementary examination itself had been held under the new Rules which required a student to be sent back to the second year if he did not pass the supplementary examination. This having been done, the petitioner approached the Rajasthan High Court. We have narrated the facts of the case because, in our opinion, the decision of the Rajasthan High Court necessarily turned upon the facts of that particular case. In paragraph 33 of the judgment it has been mentioned 'having regard to the analysis of the effect of the two regulations we have made, it seems to us rather difficult to hold that the two of them can satisfactorily operate on an identical field simultaneously without producing an almost irreconcilable conflict'. Proceeding further, the Rajasthan High Court posed the question as to whether the new regulation could be lawfully and reasonably held to be applicable to the case of the petitioner before it, who was, according to the High Court, entitled to the benefit of the old regulation which had been brought into force as early as September 1962. The Rajasthan High Court held that the petitioner had taken the annual examination while that regulation was in force in April 1963 or with the benefit of that regulation in prospect. Subsequently in paragraph 38, the High Court proceeded to allow the petition by holding that the petitioner before the Court had joined the University or taken an examination on the faith of a certain state of things and the University as a statutory body was and would be under a duty to act upto that faith and if it committed a breach of that faith, then the aggrieved party would have a legitimate cause of grievance calling for redress.

10. We are not satisfied that the Rajasthan High Court has laid down in Virendra Kapur's case any Rule which will enable us to hold that the new Rules in the present case are such as to amount to a breach of faith on the part of the Goa Medical college. The Rajasthan High Court itself did not go to the extent of suggesting that there was any vested right in the student who takes a particular examination to insist that all subsequent examinations or his subsequent academic career shall be regulated in accordance with the rules which were prevailing when he launched upon his academic career.

11. The Punjab and Haryana High Court, in Miss Gurbinder v. Punjab University A.I.R. 1971 P & H 384, referred to the decision of the Rajasthan High Court in Virendra Kapur's case examined by us above. On the facts of the case before the Punjab and Haryana High Court, the learned Judge who delivered the leading judgment stated as follows in paragraph 15 of the judgment :---

'In a nutshell, my conclusions are that the Rules and Regulations governing the award of grace marks cannot be changed to the detriment of an examinee after he has appeared in an examination.'

One cannot quarrel with the proposition laid down in Miss Gurbinder's case. The petitioner's case has no resemblance at all to Miss Gurbinder's case because in his case there is no question of altering the marks obtained by him in the M.B.B.S. Examinations. If, for example a certificate were to be given today to the petitioner disclosing the number of marks obtained by him, that certificate will necessarily show all the marks which he has obtained in the M.B.B.S. Examinations without any deduction therefrom. But when it comes to a question of obtaining admission to a higher course then the level of performance of the student at the under-graduate level can always be taken into consideration. More on this will be said in the later part of this judgment. It is sufficient at this stage to record that no vested right of the petitioner has been affected as a result of the introduction of the new Rules in the year 1982; no prejudice has been caused to the results obtained by the petitioner in the M.B.B.S. Examinations in which he has appeared as a result of the introduction of the new rules in the year 1982.

12. On the argument relating to the inconsistency between the regulations framed by the Indian Medical Council and the Rules framed by the Goa Medical College, a brief reference will have to be made to the relevant provisions of the Indian Medical Council Act, 1956. Section 20 of the said Act deals with the formation of what has been called Post-graduate Medical Education Committee for assisting the Council in matters relating to the post-graduate medical education. The views and recommendations of the said Committee on all matters shall be placed before the Council and if the Council does not agree with those views or the recommendations made by the Committee, then the Council has to forward them together with its own observations to the Central Government for decision. Section 33 of the Act empowers the Medical Council, with the previous sanction of the Central Government, to make regulations generally to carry out the purpose of the Act and, without prejudice to the generality of the said power, make such regulations providing for, among other things, the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in universities of medical institutions for grant of recognised medical qualifications. Pursuant to the powers vested in it under section 33 of the Act, the Medical Council has made recommendations which, after having received the approval of the Central Government, have acquired the character of regulations. A copy of the said regulations has been made available to us. The regulations relevant to the post-graduate studies may be briefly summarised.

13. It has been provided that there would be two types of post-graduate students, the first type to consist of those holding posts in the same department like Resident, Registrar, Demonstrator etc. The second type would be those receiving stipends which stipend should normally be Rs. 300 per month payable for the duration of the course. The criteria for the selection of candidates have been prescribed. The first criterion is that the students for post-graduate training should be selected strictly on merit, judged on the basis of academic record in the under graduate course. All selections for post-graduate studies should be conducted by the Universities. The second test is that the candidates should have obtained full registration, that is, they must have completed satisfactorily one year of compulsory rotating internship after passing the final M.B.B.S. examination and must have full registration with the State Medical Council. The other regulations need not be noticed by us. Briefly stated, therefore, the selection of the candidates for the post-graduate training would be made from those who have already passed the final M.B.B.S. examination and who have obtained registration with the State Medical Council. This is, in our opinion, the minimum requirement to be satisfied by any person who is seeking admission to the post-graduate course. This can be called the eligibility test. The other criterion which has been prescribed is that the students should be selected 'strictly on merit judged on the basis of academic record in the under-graduate course'. This test can be called the selection test. As is well known, for every medical course and even for post-graduate medical course, many are called than actually selected. Naturally, therefore, some test, and that test had to be objective, has to be prescribed on the basis of which selection of the candidates who are otherwise eligible, has to be made. Therefore, the Indian Medical Council has mentioned that the selection should be made on the basis of the academic record in the under-graduate course.

14. According to Mr. Usgaonkar, the rules which have been prescribed by the Goa Medical College are inconsistent with the regulations made by the Indian Medical Council because the rules provide for deduction of marks which deduction is inconsistent with the regulation made by the Indian Medical Council. By providing for the deduction of marks from the aggregate marks obtained by a candidate in the M.B.B.S. examination, the Goa Medical College is not giving effect to the Indian Medical Council's regulation which insists that selection should be made on the basis of merit alone. In our opinion, this contention is not well-founded. While paraphrasing the relevant regulations we have pointed out that one of them could be called the eligibility test while the others could be called the selection test. Since all the candidates who are eligible cannot be selected for the course, some test naturally has to be followed. The question is whether the rules framed by the Goa Medical College are inconsistent with the selection test made by the Indian Medical Council. An incidental question also will arise as to whether the said selection test is mandatory or directory.

15. In State of M.P. v. Nivedita Jain, : [1982]1SCR759 , the Supreme Court has examined the nature of the regulations made by the Medical Council of India under the Act of 1956 and it has held that the eligibility test which was before the Supreme Court was mandatory while the selection test was directory in character. The Supreme Court so held after examining not only the provisions of the Medical Council Act but also the regulations made by the Medical Council of India and the relevant provisions of even the Constitution of India. In paragraph 26 of the judgment it has been mentioned as follows :---

'It is eminently desirable that some kind of minimum standard for selection for admission to Medical College apart from eligibility should be there.'

It was so laid down because in the earlier part of the same paragraph it was noticed by the Supreme Court that several persons will be competing for the limited number of seats available in the Medical Colleges. It is not possible to strike down the rules in the present case on the ground that the said rules are inconsistent with any mandatory regulations framed by the Medical Council of India.

16. Apart from this, we are of the opinion that the impugned rules are not in any manner inconsistent with what we have characterised as the selection test contained in the relevant regulation of the Indian Medical Council Act. That regulation only insists that students should be selected strictly on merit judged on the basis of academic record in the under-graduate course. The academic record in the under-graduate course cannot be judged only on the basis of the marks obtained by a student in each of the three M.B.B.S. examinations. If a particular student does not pass an examination at the scheduled time, then his inability or failure to pass an examination at the scheduled time is necessarily a part of his academic record. One cannot say that the time taken by a student for completing his three M.B.B.S. examination is not a relevant part of the academic record of the student. The Rules in the present case provide for a deduction of a particular percentage of marks in the case of a student who has not passed the examination or passed in a particular subject at the scheduled time. These rules, therefore, are fully consistent with the requirement that the selection of the students should be made strictly on the basis of his academic record in the under-graduate course.

17. Mr. Usgaonkar's insistence that the present rules are rules relating to eligibility and not rules relating to selection is unjustified. The rules themselves show that the question has been approached from three points. The first is the question of eligibility. The second is the question of preference. On both these counts the petitioner is fully qualified to enter the post-graduate institution. But on the third count, namely on the order of merit, which is necessary to select the limited number of students from the larger number of students competing for the said post, the petitioner unfortunately does not succeed. The paragraph with the title 'Order of Merit' in the said rules necessarily deals with the question of selection and is in no way connected with the question of eligibility, which has been dealt with by an earlier paragraph entitled 'Eligibility'. We are, therefore, not in agreement with Mr. Usgaonkar when he says that the relevant rule under which certain percentage of marks has been deducted from the aggregate marks obtained by the petitioner deals with eligibility.

18. The relevant provision dealing with the deduction of marks from the aggregate marks shows that 21/2 percent of marks are to be deducted for every failure from the marks of the subject failed and 21/2 percent of marks are to be deducted if the student takes a drop in any subject (does not appear) at the scheduled time. According to Mr. Usgaonkar, equating the students who fail in the examination or in any subject with the students who do not appear for the examination for one reason or another is in contravention of Article 14 of the Constitution. A person who fails in an examination must be, according to Mr. Usgaonkar, held to be little less competent than the student who takes a drop in the examination or in any subject or who does not appear for the examination at the scheduled time. Apparently the argument is attractive. But if one examines the same it can be easily seen that the question of attracting the bar of Article 14 does not arise at all on the facts of this case. The argument that both the categories of students have to be treated on the same footing is practically unacceptable. They are not, in our opinion, people who are situated in similar situations. Students may take a drop in a subject or in an examination for different reasons. They may be unprepared for the examination or for the subject; they may be suffering from some sickness; there may be sickness or death in the family, and they might be harbouring a motive to secure higher marks by appearing at a later stage with better preparation. We do not see why these various persons should be treated as a different category when the persons who have been brave enough to appear for the examination despite any disability they may be suffering and have failed in the examination. In a particular case a student may, despite one or the other disability which we have mentioned above, be brave enough to appear for the examination and, to this dismay, find himself having failed in the same. Would it be justifiable to treat such a student on a different footing than the one on which we are called upon to treat the students who have taken a drop or who have failed to appear for the examination In our opinion, this would be unjustifiable. Moreover, it is impossible to determine, either before or later, as to how the two categories of students have failed to clear the examination at the scheduled time. There is thus, in our opinion, no discrimination against the students who take a drop or who do not appear at the scheduled time.

19. The petitioner has mentioned, and it has been underlined by Mr. Usgaonkar appearing for him, that he was not able to appear for the examination at the scheduled time, namely in April 1982, for reasons which commended themselves to the University authorities. There was thus a justifiable cause for the petitioner not to appear for the examination. It has been mentioned in the petition, and we will proceed on the basis that it is true, that the petitioner was prevented from appearing for the examination on account of his sickness. Mr. Usgaonkar suggests that if a student is prevented from appearing for the examination, it cannot be said that he took a drop or that he failed to appear for the examination. Taking a drop or failing to appear for the examination or in any subject at the scheduled time mentioned in the relevant rule envisages necessarily a voluntary nature on the part of the student concerned. It is argued that in other words if a person voluntarily takes a drop or voluntarily does not appear for the examination at the scheduled time, the alone he would be covered by the relevant Rule. If he is unable to appear for the examination or is prevented by sufficient cause from appearing for the examination, then it cannot be said that he has taken a drop or that he has not appeared for the examination. The language of the Rule itself does not permit this interpretation and, in our opinion, it should not so permit. As we have already mentioned above students may take a drop or may not appear for the examination at the scheduled time for different reasons. It is impossible for any authority to decide at the time of admitting a student to a particular course as to whether he has taken a drop or has failed to appear for the examination for one reason or another. In our opinion, that reason is irrelevant. If a distinction is to be made of the types suggested by Mr. Usgaonkar, an almost unbearable burden will impound upon the relevant authorities; they will have to hold an enquiry in the case of each student to find out as to whether he had taken a drop or had failed to appear for the examination for some reason or other, justifiable or otherwise. He may have taken a drop or may have failed to appear for the examination for one or the other of the innumerable causes. The question would be whether any one of those causes was such as to prevent the student concerned from appearing for the examination or to compel him to take a drop. We have already mentioned above that the disabilities which may deter one student from appearing for the examination may not deter another from appearing for the examination. The relevant rule, therefore, rightly did not make any distinction between those students who take a drop or who were compelled to take a drop in the examination at the scheduled time. The rule, therefore cannot be interpreted in the manner in which it is sought to be by Mr. Usgaonkar. We are of the opinion that the rule does not make any distinction among the candidate who take a drop or who failed to appear for the examination on the basis of any reason or reasons.

20. It is true, as Mr. Usgaonkar says, that the petitioner in the instant case has had better results by way of the level of the marks obtained by him in the three M.B.B.S. examinations than the level secured by the fifth respondent. But that is no ground for interpreting the Rules differently or for giving any relief to the petitioner. Ultimately we have to judge whether the petitioner is entitled to admission to the post-graduate course in the light of the tests, which tests we have found to be free from any blemish, laid down by the relevant authorities. The petitioner in the instant case is not, as found by the authorities, entitled to admission to the post-graduate course. He, therefore, must fail.

21. In the case of the petitioner in Special Civil Application No. 94 of 1983, the facts are identical. Mr. Usgaonkar concedes that if the petitioner in Special Civil Application No. 93 of 1983 fails, the petitioner in the latter petition also must necessarily fail.

22. In the result, Rule in each of these petitions is discharged. On the facts and circumstances of the case, however, there will be no order as to costs.


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