Archana Bharti Raina & Anr. v. Pandit Bhagwat Dayal Sharma & Anr.

Ms. Savita Bhandari, Advocate, for respondent No.2. **** RANJIT SINGH, J. This order will dispose of writ petition Nos.13833, 13931, 14009, 14014, 14016, 14035, 14042, 14135 and 14044 of

2010. The facts have been noted from C.W.P. No.13833 of 2010. The petitioners in all these cases were admitted to to the course of Bachelor of Dental Surgery (BDS) with various colleges in the year 2008. The petitioners passed two subjects out of four of the first year of the BDS course. Similarly the petitioners in remaining petitions have also passed some subjects, but have not qualified all the subjects of the first year course. They all approached this Court by way of these different writ petitions seeking direction CIVIL WRIT PETITION NO.13833 of 2010 -2- that they be allowed to appear in the Second Year BDS examination. Reliance has been placed on Clause 6.7 of the Ordinance No.13 of Pandit Bhagwat Dayal Sharma, University of Health Science, Rohtak. This provision is as under:- “6.7... A person who has passed the 1st BDS examination of this University shall be eligible to join 2nd year of BDS. However, a candidate who fails in 1st BDS examination may be allowed to attend the 2nd year of BDS class, but will not be allowed to appear in 2nd BDS examination till he passes in all the subjects of 1st BDS examination...” The petitioners were allowed to attend the 2nd year classes, both theory and practical and also passed in the remaining two subjects of the 1st year, for which examinations were held in December, 2009. The result of the first year has been placed on record. Reference is then made to Clause 6.4 of the Regulation referred to above, which talks of eligibility for appearing in the main examination. The petitioners would aver that they had satisfied the eligibility criteria and as such sought permission to appear in the 2nd Year BDS Examination. They state to be at advanced stage of study, but were informed that they would not be issued admit card along with some other candidates as being not eligible. On inquiry the petitioners learnt that Regulations for the Degree of Bachelor of Dental Surgery, 2007, now bar them for appearing in the 2nd year BDS examination. The petitioners have, accordingly, filed these writ CIVIL WRIT PETITION NO.13833 of 2010 -3- petitions to seek direction for permitting them to appear in the 2nd year BDS examination on the ground that the amended Regulation was not brought to their notice and they have learnt about the amendment on 3.8.2010 for the first time. The petitioners, accordingly, would plead that they be permitted to appear in the 2nd year BDS examination as is regulated in Clause 6.7 reproduced above. No doubt, Clause 6.7 of ordinance referred to above apparently entitles the petitioners to appear in the 2nd year BDS examination. This Clause clearly provides that the person, who has passed 1st year BDS examination may be allowed to join 2nd year BDS course. The candidate, who fails in the 1st year BDS examination may not be allowed to attend the 2nd year BDS examination till he passes in all the subjects. The case set up in all the petitions is that all the petitioners have passed 1st year BDS Classes and thus are eligible to appear in second year examination. By way of interim order, the petitioners were permitted to appear in the examination and all the petitioners have appeared in the examination of second year. Reply on behalf of the University is filed. It is pointed out that the Dental Council of India's Regulations, 2007 under heading 'Scheme of Examination' provide that any candidate who fails in one subject in an examination is permitted to go to the next higher class and appear for the subject and complete it successfully before he is permitted to appear for the next higher examination. It is then pointed out that there was a contradiction CIVIL WRIT PETITION NO.13833 of 2010 -4- between the DCI Regulations and Ordinance published by the respondent-University in regard to the provisions of eligibility of the candidate to appear in the various BDS examinations. The Dental Council of India, accordingly, through their communication dated

31.8.2008, addressed to the Registrar, pointed out that some Universities are not following the provision of the BDS Examination as prescribed in the BDS Course Regulation, 2007, especially relating to Scheme of Examination and it was further pointed out that such Dental Institutions may have to be recommended for de- recognition of the Government of India, in case, they fail to follow the procedure as prescribed in the Regulations of Dental Council of India. As per the reply, the University has also now incorporated the amendment w.e.f. 9.4.2009 making the provision that if any candidate fails in one subject in an examination then he is permitted to go to the next higher class and appear for the subject and complete it successfully before he is permitted to appear for the next higher examination. Learned counsel for the petitioners, however, would contest this position and would submit that this Regulation has been amended and made applicable retrospectively to the case of the petitioners. They pleaded that their cases are required to be governed by the unamended Regulations, which duly authorized them to appear in examination for the second year as well. Counsel appearing for the University have pointed out that it was only the fault of the University that it had not amended the ordinance to bring it to in tune with the DCI Regulations and the CIVIL WRIT PETITION NO.13833 of 2010 -5- amendment as made is not with retrospective effect and it is only the existing ordinance of the University has been brought in tune with existing regulation of the DCI w.e.f. 9.4.2009. Be that as it may, it can be said that the candidates to an extent have been taken by surprise due to the action on the part of the University, which did not take timely action to amend its ordinance to bring the correct position to the notice of the students. The permission to appear in the 2nd year BDS examination,as interim measure was granted on the basis of ordinance of the University. Amended Regulation was brought into effect w.e.f. 9.4.2009 which is much prior to the date of interim order passed by this Court. Had the amended Regulation been brought to the notice of this Court, perhaps the interim order allowing the petitioners to appear in the examination may not have been passed. This Court, mainly relied upon the unamended Regulation 6.7 while considering the claim that was projected before this Court in the writ petition and interim order was passed. To an extent the petitioners can be blamed for not bringing the correct position, though they are not found to be misleading as the amendment had not been incorporated in the ordinance of the University. The petitioners have appeared in the examination under the direction of the Court, the University has placed the result of all the candidates before me. Majority of the candidates have again got reappear in various papers. Normally, this would have been enough to reject the claim of the petitioners. However, considering the fact that the petitioners in all these cases have CIVIL WRIT PETITION NO.13833 of 2010 -6- appeared in the examination though not eligible as they could be permitted to appear in the next higher class examination only after successful completion of the 1st year examination. It is now required to be seen if the result of the examination in which the petitioners were permitted to appear can be given effect to or not. To an extent, the interim orders were passed because of the fault of the University in not bringing the amended Ordinance to the notice of the students. This may be a reason to make an exception as one time measure in this case to give effect to the result of the examination which has been declared now. This exceptional measure is being adopted only in view of the peculiar facts and circumstances for which the part of the blame would come on to the University. This order would not become precedent in any manner. It may be observed that the petitioners generally did not have any right to appear in the examination in view of the amended ordinance. The petitioners could have been allowed to seek damages from the University if the University was at fault in any manner but instead of doing that the present mode is adopted to balance the equities keeping in view the career of the students and the fact that they have appeared and cleared some papers. To be fair to the counsel appearing for the University they have not raised any serious objection to this course being adopted. The writ petition is, accordingly, disposed of. November 22, 2010 monika ( RANJIT SINGH ) JUDGE