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Kirit Chhaganlal Gadhwi and anr. Vs. the Gujarat University, Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1573 of 1976
Judge
Reported inAIR1977Guj154; (1977)GLR876
ActsBachelor of Medicine Bachelor of Surgeon, Ordinance - Ordinance 9
AppellantKirit Chhaganlal Gadhwi and anr.
RespondentThe Gujarat University, Ahmedabad and anr.
Appellant Advocate S.D. Shah and; S.J. Joshi, Advs.
Respondent Advocate S.N. Shelat, Adv. and; C.K. Takwani, Asst. Govt. Pleader
Excerpt:
.....to pass first m.b.b.s examination for five occasions - actual attempt means real attempt to pass examination and because of his want of ability he fails to pass examination - both petitioner withdrawn their form before examination - merely preparation on their part not attempt - neither real attempt nor hypothetical attempt can be attributed under fiction created by deeming clause - order of registrar set aside. - - failure to pass the examination will not debar candidates from appearing at any subsequent examination on the submission of a new application, the payment of a fresh fee and the production of certificates showing that they have, during the interval between the declaration of their failure and subsequent reappearance at the examination, pursued a further course of..........in the list of candidates appearing for the examination, and if the candidates have failed to pass examination because they have not attained the standard of passing.'the question is: whether a student, who having filed a form for appearing at an examination, withdraws his form before the date of the examination and does not appear at the examination on account of unavoidable circumstances can be said to have 'failed to pass the examination' within the meaning of the aforesaid ordinance pursuant to the aforesaid deeming clause?2. the university contends that once a form is submitted and his name is included in the list, the student must be deemed to have failed at the examination even if he withdraws the form in advance and does not appear at the examination for special reasons......
Judgment:
ORDER

1. A question of life or death significance for First M. B. B. S. students, the answer to which would save or scuttle their careers has arisen in the context of the interpretation of an Ordinance framed by the Gujarat University for its Faculty of Medicine, viz. 0. MI B. B. S. 9, which is in the following terms:

'Failure to pass the examination will not debar candidates from appearing at any subsequent examination on the submission of a new application, the payment of a fresh fee and the production of certificates showing that they have, during the interval between the declaration of their failure and subsequent reappearance at the examination, pursued a further course of study in the subjects of the examination to the satisfaction of the head of a Medical College recognised by the University; provided, however, that candidates who fail to pass this examination on five occasions will not be eligible to reappear thereat.

Candidates shall be deemed to have failed to pass an examination under the above clause if their names have been submitted by the principal of their college for inclusion in the list of candidates appearing for the examination, and if the candidates have failed to pass examination because they have not attained the standard of passing.'

The question is: whether a student, who having filed a form for appearing at an examination, withdraws his form before the date of the examination and does not appear at the examination on account of unavoidable circumstances can be said to have 'failed to pass the examination' within the meaning of the aforesaid Ordinance pursuant to the aforesaid deeming clause?

2. The University contends that once a form is submitted and his name is included in the list, the student must be deemed to have failed at the examination even if he withdraws the form in advance and does not appear at the examination for special reasons. Under the circumstances, filing of a form is equated with appearing at the examination and a student who does not sit in the examination even on account of unavoidable circumstances is deemed to have appeared and failed as per the interpretation canvassed on behalf of the University. The petitioners who after investing a number of precious years of their lives stand at the brink of a precipice and are faced with the risk of sacrificing their medical careers question this interpretation by way of this petition under Art. 2215 of the Constitution of India.

3. The petitioners contend that they had appeared at the First M. B. R. S. Examination on a number of occasions in the past 'not exceeding five' and that they had filed for appearing at the examination scheduled to take place on particular dates, but on account of personal circumstances, such as, having had, to undergo an operation so fax as the first petitioner is concerned, and sudden sickness so far as the second petitioner is concerned, they sought permission to withdraw their forms before the scheduled dates. of examination and were permitted to withdraw their forms and the examination-, fees paid by them were refund ed. Occasions on which they withdrew their forms and were permitted to withdraw their forms and on which occasions they did not actually appear at the examination are even so sought to be relied upon by the University authorities as occasions whereat they have failed to pass the examination under the deeming clause of the statute. The petitioners contend that inasmuch as they had withdrawn their forms in advance in view of unavoidable circumstances, they cannot be treated as having failed at the examination if the controversial deeming clause of the statute is construed in a rational and commonsense manner. According to the petitioners, on a true interpretation of the aforesaid provision, only a real attempt-at an examination can be taken into account for computing the occasions for which a student has failed and not an imaginary attempt. What, at the highest, can be said to be a preparation for appearing at the examination cannot he treated as an actual attempt. On the other hand, it has been argued by the respondent University that if the statute concerned is properly construed, once a student files a form and his name is submitted by the principal of the College for inclusion in the list of candidates, whether or not he actually appears, is immaterial, and he will be deemed to have failed to pass at the examination for the purpose of the statute.

4. Now, the essential purpose of the statute appears to be to debar students who make actual attempts to pass the First M.B. B. S. examination for five occasions and the, attempts prove abortive. The first part of the statute is clear and it is the actual attempt tempt which has to be taken into account It is the real failure at actual examination where the student makes an attempt to pass the examination and because of his want of ability, he fails to pass the examination. The difficulty arises in the context of the deeming provision. And the deeming provision will have to be carefully analysed because of its far-reaching impact on the lives and careers of the medical students. The deeming provision will have to be construed in a commonsense fashion in keeping with the basic idea which informs the first part of the statute. And the principal object of the statute seems to be that a medical student who wants to appear at the First M. B. B. S. Examination shall be tried and tested five times in order to ascertain his suitability for prosecuting further studies. If he fails at five trials, he is given up as a hopeless case. The central idea is, five actual trials means five occasions on which the student really sits at the examination, exposes himself to scrutiny by the examiners and is found wanting. It is common ground that there is nothing which obliges a student to appear at successive examinations, or to appear at the examinations within a particular number of years. One can postpone his derision to appear at the examination and so long as he does not actually appear and fail, it is not marked against him as a failure attempt at the examination. The question then is, has a radical departure been made from this basic concept in formulating the deeming clause? If the deeming clause is to be construed in the manner suggested by the respondent, one will have to proceed on the premise that a radical departure was sought to be made and the basic concept which prevails so far, viz. the conception of actual attempt, actual test for suitability, and failure to pass the test, has been jettisoned in favour of a hypothetical attempt, attributed to the student, though the student may not have made an attempt at all, It is difficult to comprehend the point or purpose in making everything turn on the critical event of filing, a form for appearing at the examination. If he, does not file the form at all, the student does not take any risk. If he only files a form, if the construction canvassed by the respondents were to prevail, he is deemed to have made the attempt, regardless of whether or not, he actually sits in the examination and exposes himself to a real test. In other words, the filing of the form constitutes an irreversible decision and can be equated with the actual event where the student meets his Waterloo.

Now, one can conceive of a situation where, though the form may have been submitted and the name of the candidate may have been included in the list of candidates' the examination itself might be cancelled. if the interpretation canvassed by the respondents is to obtain, even if the examinations are cancelled, the student concerned will be deemed to have appeared at the examination and to have failed by virtue of the deeming clause though be could not have appeared at the examination at all on account of the cancellation of the examination. An examination may have to be cancelled on account of some emergency or on account of circumstances beyond the control of the authorities themselves. Some years back, the examinations had to be cancelled on account of student agitation, popularly known as 'NavNirman' agitation. Examinations may have to be cancelled on account of natural calamities like earthquakes or on account of civil commotion or riots, It is not possible to uphold a construction which would entail such incongruous results and would lead to disastrous consequences for the students for no fault of theirs. Therefore, the interpretation canvassed on behalf of the petitioners is that the deeming clause has been enacted with a view to ensure that if a student files a form and actually appears even in one paper or sits for the examination and does not even submit a paper, it can be counted as an attempt. It appears to have been designed to meet a situation of this nature as is evident from the provision made in the deeming clause to the effect that a candidate shall be deemed to have failed to pass an examination provided two conditions are satisfied, viz. (i) the name of the candidate is included in the list of the candidates, and (ii) if the candidate has- failed to pass the examination because he has not attained the standard of passing. The second condition enjoined by the deeming clause postulates the actual appearance at the examination, whether be answers only one paper or whether he files a blank paper.

In this connection, reference can be made with advantage to the provision made in respect of the Second M. B B S Examination, which is embodied in 0. M. B. B. S 13. The provision concerned reads as under:-

' xx xx xx xx Candidates shall be deemed to, have failed to pass an examination under above Ordinance, if their names have been submitted by the Principal of their College for inclusion in the list of candidates., for the examination and if the candidates have failed to pass the examination either because they have not attained the standard or because they have been absent from the whole examination or from any part of it,'

It has, in terms, been provided that the deeming clause will apply where they have been absent from the whole of the examination or any part of it. What was, therefore, implicit in O. M. B., B. S. 9 appears, to have been made explicit in O. M. B. B. S. 13. It is not possible to believe that different treatment was sought to be meted out to First M. B. B. S. students from the treatment meted out to the Second M. B. B. S. students in computing the occasions for failure in the context of that examination. The deeming clause has the same perspective and the same object and if this is borne in mind, the interpretation which appeals to me is buttressed from the circumstance that so far as the Second M. B., B. S. Examination is concerned, it is the actual wilful absence from the whole of the examination or any part of it which has been made the decisive test. The same idea permeates the corresponding provision in relation to Third M. B., B. S. Examination wherein the deeming clause is worded as under in the context of O. M. B. B. S. 16. The provision concerned reads as under:

'xx xx xx xx Candidates shall be deemed to have failed above Ordinance if their names have been submitted by the Principal of. their college for inclusion in the list of-candidates for the examination and if they have failed to pass the examination either because they have not attained the standard of passing or because they have been absent from the whole examination or from any part of it xx xx xx xx'.

This corresponds to the deeming clause embodied in O. M B. B. S. 13 devised in the context of the Second M. B. B. S. Examination and the same idea has been given form and shape, viz. the idea that the deli absence from the whole or part of any examination is to be deemed to be an occasion on which the student concerned has failed to pass an examination. Obviously, this provision has been made because otherwise it might have been argued that when a student does not appear at all, you cannot say that he has failed to pass an examination. But, that absence must be a wilful absence. In the present case, it is not a case of wilful absence, but it is a case of advance withdrawal on account of inability to make the attempt. When there is no question of inability to attend, when the student does not withdraw his form and then remains absent, the only inference that could be raised would be that he has made an attempt and failed to appear at the examination. But, when he makes up his mind not to make the attempt and reverses his earlier decision in time and gives an intimation to the competent authority, there is no question of drawing any inference or attributing to a student an irreversible decision to appear at the examination. The deeming clause has been devised in order to meet a situation where, though the student has taken an irreversible decision and is not prevented from appearing at the examination, he wilfully remains absent from the, whole of the examination or any part of it and the deeming clauses designed in the context of the three examinations must be so construed that they harmonize with each other If this harmonious interpretation is placed, there is no escape from the conclusion that it is either a real attempt or a deliberate absence without withdrawing from the examination upon due intimation to the competent authority which would result in the fiction being raised that he has appeared at the examination and failed. This conclusion is reinforced if the proviso to the deeming clause enacted in the context of the final M. B. B. S. Examination embodied in O. M B. B. S. 16 is. taken into account, The proviso is in the following terms:

'Provided that candidates who at their first attempt after the names have been submitted by the Principal of the college for inclusion in the list of candidates appearing for the examinations apply for the withdrawal of their application for admission to the examination within 48 hours of the commencement thereof, shall not be deemed to have failed to pass the examination, provided the candidate has not appeared.'

The proviso enables a student to withdraw the application for admission within 48 hours of the commencement of the examination. It is no doubt true that so far as statute O. M. B. B. S. 9 is concerned, a similar provision is not made and a similar time-limit is not provided. But the central idea remains the same, viz. that, if a candidate takes an irreversible decision and does not withdraw his form, but merely abandons his attempt or scuttles the attempt by deliberately remaining absent, the deeming clause may be invoked and the fiction created by a deeming clause can be equated with are attempt at which he has failed. In other words, it is only when he does not withdraw the form before the commencement of the examination that an attempt to appear at the examination can be. ascribed to him. In the present case, it is an admitted position that both the petitioners had withdrawn their forms before the commencement of the examination and they were permitted to do so, and, in fact, even their fees were refunded on account of personal reasons. It was, therefore, merely a preparation on their part and not an attempt, Neither a real attempt nor a hypothetical attempt can be attributed to him under the fiction created by the deeming clause. The respondents were, therefore, not justified in refusing to grant permission to the petitioners to appear at the First M. B., B. S. Examination even though they had not failed on five occasions within the meaning of the relevant statute, in the light of the interpretation which has found favour with the Court.

5. Learned counsel for the respondents stated that, in the past, the statute concerned has been construed in the manner suggested by the University authorities and that the High Court should, therefore, refrain from issuing a writ. Reliance is placed on the vague averment made in paragraph 3 of the petition to the effect that permission had been refused to several students. The respondents have not given the details. We do not know on how many occasions permission was refused and when. Even assuming that on some occasions permission was refused on account of the mistaken interpretation placed by the respondent University, inasmuch as the question is of vital importance from the point of view of the students prosecuting their studies and aspiring for the medical career and their very lives and careers are 'it stake, there is no reason why the University should be permitted to persist in the incorrect interpretation to the detriment of the students. As observed earlier, the interpretation canvassed by the respondents is against the very spirit of the provision and places a premium on the insignificant circumstance of filing of the form rather than of making an actual attempt. It must also be realized that the petitioners belong to a scheduled caste and they have been prosecuting their studies under considerable handicap and adverse circumstances. In fact, but for the concession granted to the scheduled castes, they would not have secured admissions to these courses at all. It would appear that there is a good case for according them a privileged treatment or granting them special concession even in the matter of granting total number of attempts permissible under the statute. But then, that is a matter with which the Court is not directly concerned and all that the Court can do is to express its hope that the authorities concerned would take into account the special circumstances pertaining to the students of the scheduled castes and take appropriate measures in order to enable them to effectually prosecute their studies for medical courses. Be that as it may, so far as the present petition is concerned, for the aforesaid reasons, the petitioners must succeed.

6. The order passed by the Registrar, Gujarat University, on July 14, 1976 refusing permission to petitioner No. 2 is quashed and set aside. The respondents are directed to grant the requisite permission as and when the petitioners seek it provided the computation of the five occasions is made in the light of the aforesaid interpretation in conformity with the view taken by this Court, viz. by excluding the occasions. on which the forms have been withdrawn by the petitioners, before the commencement of the examination, for the purpose of computing the occasions on which they have failed to pass the examination.

7. The petition is allowed. Rule is made absolute to the aforesaid extent. There will be no order regarding costs.

8. Petition allowed.


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