WP/36209/2003 of ARCOT N.VEERASAMY Vs THE GOVT OF TN REP BY ITS HOME on 12 December 2003

1. S.Shyamala2.Vinayaka Mission Medical CollegeKeezhakasakudimeduKottucheri (PO)Karaikal - 609 609Pondicherry State. .. Respondents Appeal against the order dated 11.12.2002 made in W.P No.37595 of 2002.

!For Appellant : Mrs.G.Thilakavathi^For Respt. 1 : Ms.R.VaigaiFor Respt. 2 : Mr.Mohan ParasaranSenior Counsel forMr.Sathish Parasaran

* * * * *:J U D G M E N T(Judgment of the Court was delivered by V.S.SIRPURKAR,J)

This is a classic example where, though theunfortunate petitioner has succeeded in her writ petition, she wouldnot get the real advantage of that judgment.

2. The first respondent herein namely S.Shyamala, though entered a medical college in July 2000, that college got itsapproval from the Medical Council of India only with effect fromDecember 2000. In short, her training in the medical course and moreparticularly M.B.B.S Phase I started effectively in December 2000.She took her first examination therefore for M.B.B.S Phase I inDecember 2001. She failed in that examination in the subject ofPhysiology. She therefore appeared for the next examination which isin the nature of arrears examination in May 2002. In this examinationalso she was declared to have failed. But before the result came,there was an amendment to the Regulations on Graduate MedicalEducation, 1997. This amendment was published in the GovernmentGazette on 2.7.2002 and it came into force with effect from the sameday owing to Regulation 1(2) of the Notification dated 1.7.2002. By that amendment, Regulation 13 of the Regulations on Graduate MedicalEducation, 1997 was amended in the sense that a new sub-regulation 10was added which was as under:

"The grace marks up to a maximum of five marks may be awardedat the discretion of the University to a student who has failed onlyin one subject but has passed in all other subjects."

3. The facts suggest that though the writ petitioner had failed only in one subject by three marks in the examination heldin December 2 001, in the May examination however, she failed bythirteen marks and obviously the advantage of this Amendment was notgiven to her insofar as the examination held in May 2002. It is againliable to be noted that though the arrears examination was held in May2002, perhaps because the results were not declared by then, theadvantage of this Amendment which came on the anvil on 1.7.2002 wasgiven to the students who had appeared even in the examinations heldprior thereto. Be that as it may, since the petitioner student didnot get the advantage of this Amendment, she filed writ petitionno.37595/2002. Her stand was that this Amendment should be held to beretrospective in nature and should be held applicable atleast to theexamination held in December 2001 because, if it was made applicableto the examination held in May 2002, which was only an arrearsexamination, by necessary implication, it should also be madeapplicable to the examination held earlier in December 2001. Theprayer in this writ petition is in the following terms:

"For the afore reasons, this Hon'ble Court may be pleased toissue any appropriate Writ Order or Direction, and in particular issuea Writ of Mandamus, directing the first respondent to produce theanswer papers of the petitioner in Physiology I and II of the 1st yearM.B.B.S Examination with Registration No.2161717574 (taken inDecember, 200 1 and in May, 2002) verify the petitioner's marks andpromote her to second year M.B.B.S 2002-2003, by declaring her aspassed after granting her grace marks as per practice and as approvedin the Medical Council of India's Notification dated 01.07.2002, containing Graduate Medical Education (Amendment) Regulations, 2002and pass such other orders as are necessary and proper to meet theends of justice."

4. This writ petition seems to have been filed in

Conclusion

September 2002. It came to be decided on 11.12.2002 and the learnedSingle Judge dealing with the same passed the following order:

"22. With the result, the writ petition is allowed as prayedfor. No costs. Consequently, connected WPMP No.56423 of 2002 isclosed."

We have perused the WPMP No.56423 of 2002, where the prayer is in theidentical terms. It goes therefore without saying that during thependency of this writ petition between September 2002 to December 2002, there was no direction by the Court permitting the student to takeup the classes of the M.B.B.S Phase II or the second M.B.B.S course.That there was no such order is an admitted position. Be that as itmay, when the writ petition was allowed, even before that, the studentwho had failed even in the May 2002 examination in the subject ofPhysiology took a third attempt. The examination was held on 10thDecember 2002 and she was also declared passed. She therefore startedattending the second M.B.B.S course from December 2002.

5. This order of the learned Single Judge was appealed against by the University by way of the present writ appeal.During the pendency of the appeal before us, the second professionalexamination for the batch which started the Phase II of this course inDecember 2001 came to be fixed on May 2003. That was the first time,when any student who had commenced his or her course in 2000-2001 as aM.B.B.S Phase I student could have taken the second professionalexamination. An application came to be made for permitting the writpetitioner to appear for that examination. That permission wasgranted, however it was directed that the result of the examinationwould depend upon the success of the writ appeal and that the appealshould be heard expeditiously before December 2003. That is how thisappeal has come before us. In the meantime, the student has taken theexamination held in May 2003 held for second M.B.B.S course.

6. Mrs.Thilakavathy, learned counsel appearing for the appellant University points out that the Amendment could not besaid to be applicable to the examination held in December 2001. Thecounsel candidly admits that though the arrears examination was heldin May 2002, yet, the Amendment was made applicable to the sameperhaps because, the results were not out by then for thatexamination. She however says that it would be incorrect to make thatAmendment applicable even to the earlier examination because,devastating results may follow if such retrospective operation wasallowed to the Amendment brought in on 1.7.2002. Learned counselfurther points out that the language of the Amendment does not in anymanner indicate its retrospective operation and therefore the learned Single Judge should have gone by the rule of literal interpretationand should have held that since the language did not specificallyprovide the retrospective operation of the Amendment, the Amendmentwas prospective in nature.

7. On the other hand, Ms.Vaigai, the learned counsel

appearing on behalf of the first respondent / petitioner verypainstakingly argued that to make the Amendment applicable to theexamination held in May 2002 and to deny the same to the examinationheld in December 2001, though the examination held in May 2002 was amere continuation of the December 2001 examination, would be atravesty. Learned counsel argues on the basis of the variousprovisions of the Medical Council of India Regulations as well as theUniversity Regulations that the advantage would have to be givenatleast in respect of December 2001 examination, which was the basicexamination and of which the May 2002 examination was only an arrearexamination and hence a continuation of that examination.

8. However, when this debate was going on, the question came as to whether the second professional examination takenby the student in May-June 2003 should be ratified by the Court andthe result thereof should be allowed to be declared. A peculiarposition has been brought to our notice by Mrs.Thilakavathy, learnedcounsel for the University. The learned counsel argues that theMedical Council of India Regulations specifically provide that amedical student cannot be allowed to take up the second professionalmedical classes, clinicals or the practicals unless he or she hascleared the first year M.B.B.S examination. This, she argues on thebasis of Regulation 8, wherein the various phases of the medicalcourse are depicted. The first phase is suggested to be consisting oftwo semesters of six months each, while the second professionalexamination is supposed to take place after the student undergoesthree more semesters, they being semester nos.3, 4 and 5. The thirdprofessional Part I examination has to be taken in the seventhsemester, while the third professional Part II ( Final Professionalexamination) has to be taken during the ninth semester. Note (a) ofRegulation 8 provides specifically as under:

"(a) Passing in 1st Professional is compulsory beforeproceeding to Phase II training."

From this, the learned counsel for the appellant University points outthat the student could not have proceeded for the training and takingup the course of the second M.B.B.S examination unless she had passedthe first M.B.B.S examination and thereafter, she could have taken thesecond M.B.B.S examination only after completing semester nos.3 , 4and 5. The learned counsel points out that the attendance as well asthe practical training in semester nos.3, 4 and 5 was sine qua nonbefore the student could be allowed to take up the second M.B.B.Sexamination. She further points out that in the present case,admittedly after the student failed in December 2001 examination, she

Arguments

could not have attended the classes or the practicals or clinicalsmeant for second M.B.B.S examination. She also points out that evenin the May 2002 examination, the petitioner had failed and therefore,she could not have been able to take up the classes for the secondyear M.B.B.S course beginning with the third semester. She furtherpoints out that in reality, after the student cleared the firstprofessional examination in December 2002, she rightfully startedattending the classes for the second year M.B.B.S examination and forthat she had to complete the training in semester nos.3, 4 and 5 whichwould be 18 months in all, each semester being of six months. Shefurther points out that, that way, the second M.B.B.S examination forthis student under any circumstances cannot be earlier than May orJune 2004. The learned counsel points out that in reality, though thewrit petition was filed in September 2002, no orders were obtainedfrom the Court allowing the student to keep her terms in the secondyear M.B.B.S course and therefore, the student for the first timebecame entitled to attend the second year M.B.B.S classes-clinicalsand practicals only after December 2002, firstly because of a judgmentin her favour and secondly also because of the fact that she hadcleared the first year examination in December 2002 only. Therefore,the learned counsel argues that it would not be necessary for us todecide the correctness of the order of the learned Single Judgebecause, the writ petition had become infructuous in the sense that norelief thereunder could be passed because of the peculiarity of thefacts in this case. The learned counsel undoubtedly argues that thiswas not brought to the notice of the learned Single Judge by any ofthe parties.

9. On this backdrop, as against this Ms.Vaigai, learned counsel appearing on behalf of the first respondent/petitioner very forcefully argues that it has been the regularpractice of the college to allow the students to attend the nextyear's classes without waiting for the results being declared for thefirst M.B.B.S examination. The learned counsel further says that inreality, though the petitioner was not entitled to attend the classes- clinicals and practicals for the second year M.B.B.S as was done inthe case of the other students, she in fact, attended the classes -practicals and clinicals meant for the third semester, i.e, thebeginning semester of the second M.B.B.S course. The learned counselfurther argues that the student also attended the next two semestersand since the student was declared to have passed her December 2001examination by the order in the writ petition and in addition she hadtaken up and completed all the three semesters of the second yearM.B.B.S examination, she was rightly allowed to take up the secondyear examination held in May 2003. It is thus suggested that thoughshe had failed in December 2001 examination, she continued to attendthird, fourth and fifth semester for Phase II M.B.B.S.

10. When it was pointed out to the learned counsel for the first respondent that it was impossible, because the concernedstudent could not have been allowed to attend the classes and keep her

terms unless she cleared the first M.B.B.S examination in terms ofRegulation 8 of the Medical Council of India, the learned counselinsisted that the college authorities should make a statement to thateffect. We therefore invited the learned Senior Counsel Mr.MohanParasaran appearing for the second respondent college to file anaffidavit of the Dean of the college whether there was such a practiceavailable and whether a student though had not cleared the firstM.B.B.S examination could still be allowed to keep terms and take up the classes-clinicals and the practicals of the second year M.B.B.Sexamination course in third semester, fourth semester and fifthsemester.

11. The learned Senior Counsel Mr.Mohan Parasaran very candidly expresses the inability on the part of the Dean of thesecond respondent college to swear any such affidavit. The learnedSenior Counsel does not therefore admit that a student who fails inthe first year examination could still be allowed to keep terms forthird, fourth and fifth semester as the case may be of the secondprofessional course. Now, if this is the situation, then, even if thelearned Single Judge was right in holding that the Amendment wasretrospective and could be made applicable to the examination held inDecember 2001, the benefit of that could not be granted to thepetitioner who had clearly not attended the third, fourth and fifthsemester classes - clinicals and practicals after successfullycompleting the course of first M.B.B.S, crossing that crucial gatecreated under Regulation 8 of the Medical Council of IndiaRegulations. There is no dispute and cannot be any that theRegulations of the Medical Council of India would ultimately be theonly authority to judge and to fix the norms for taking up the courseand passing the same. Indeed, the counsel on both sides did notdispute this position.

12. However, the learned counsel for the petitioner earnestly urged before us that here was a student who was actuallydeclared to have passed her first year M.B.B.S examination in December2001 but was being refused an opportunity to appear in the second yearexamination in which she could rightfully appear and that wasarbitrary and contrary to her rights.

13. We do not agree because, it was an admitted position that atleast till 11.12.2002 when the judgment was passed bythe learned Single Judge, the status of the petitioner was that of afailure in the first year M.B.B.S examination. Till that dateatleast, her attending the classes - clinicals or practicals of secondprofessional course was of no consequence even if in reality she haddone so. Unfortunately, in this case, it could not be held that shehad actually lawfully and legally attended the third, fourth and fifthsemesters because, it was not under the orders of the Court that thestudent attended the same if at all it is presumed that she did soattend. The learned Senior Counsel Mr.Mohan Parasaran very candidlyadmitted that such students are not officially shown as the students, they may be given the advantage of attending the classes and perhapsbettering themselves but they are not shown in the roll as officialstudents of the second year. If that is so, then it would not bepossible for us to accept the proposition that her de-facto attendanceshould be recognised by us and we should direct the publication of herMay 2003 examination of Phase II M.B.B.S or even allow her to appearfor any examination in second year to be held now in December 2003.The only examination in which she could be allowed to attend would bethe examination which would be held in May-June 2004. That is anunfortunate result but under the circumstances, it is a must.

14. In support of her contention that a student like

the petitioner could still be allowed to take up the examination evenif the attendance was not in terms of the completion of the semester,the learned counsel for the first respondent relied on the judgment ofthe Supreme Court reported in 2003 (1) Supreme 430 (ASHEESH PRATAPSINGH & ORS. -vs- M.SACHDEVA & ORS.). There, the students who wereadmitted to a medical college in Azamgarh were practically thrown tothe street because that college itself lost its recognition. Itappears that thereafter, finding that the students had bonafidelyattended the classes and also passed the first year examination, thestudents were ordered to be allotted to some different colleges.However that allotment resulted in the said students becoming excessstudents than the authorised sanctioned strength of the college forthat particular course. The learned counsel pointed out that theSupreme Court gave the directions in consideration of the fact thatthose students had suffered for no fault of their's and the studentswere directed to be accommodated for the second professionalexamination. The learned counsel tried to urge that it was clear fromthe facts of that case that the students had not attended the secondyear classes and yet were given the facility of appearing in thesecond year professional examination.

15. We are unable to see any similarity in the said judgment with the present set of facts before us. The question whichhas fallen before us is as to whether a student, who in law could nothave attended the classes - practicals and clinicals meant for secondyear M.B.B.S course in three semesters having not cleared the firstM.B.B.S examination, could still be given that benefit. Such is notthe question which has fallen for consideration before the SupremeCourt. If we give this benefit to the first respondent studentaccepting the contention that it has been the practice of the collegeto allow the students to complete the terms even if the student failsto clear a particular subject and is not able to pass the examination,we would be practically wiping out Regulation 8 Note (a) of theRegulations of Medical Council of India because, in that case even ifa student fails, that student would still continue to attend theclasses and complete the terms and would be liable to be given thecredits of his attendance in third or fourth or fifth semester as thecase may be. Such cannot be the approach. A judgment becomes abinding law precisely for what it has actually held. It cannot be interpreted and the fall out of the judgment cannot be held to be adeclared law under Article 141 of the Constitution of India. Wetherefore are unable to accept the contention of the learned counselfor the first respondent .

16. We therefore do not deem it necessary to examinethe correctness or otherwise of the judgment of the learned SingleJudge because, only one day prior to the delivery of the judgment thestudent had actually taken the first professional examination (in herthird attempt) and ultimately she had cleared it also. There wastherefore no question of proceeding with the judgment particularlywhen the final relief in that judgment could not have been given. Therelief of a mere declaration as we have shown earlier would be of noconsequence in terms of the final relief and the actual relief,howsofar sympathetic we may feel towards the student. The case isunfortunate however, the law must take its own course. It is clearthat the writ petition itself was infructuous and the writ appeal isalso disposed of as such in the light of the observations which wehave made above. No costs. WAMP 5095 of 2003 is closed.