ORDER
Doddakale Gowda. J.
1. Petitioners are students of BHMS, a four years course having joined in 1981-82 and 1982-83. Conduct of Course and Examination was then being regulated by Karnataka Board of Homoeopathic System of Medicine, as per resolutions made and/or circulars issued from time to time.
2 After promulgation of Homoeopathy (Degree Course) BHMS Regulations, 1983 (hereinafter referred to as ‘Regulations’), framed by Central Council of Homoeopathy, under Sections 33 and 20 of Homoeopathy Central Council Act, 1973, conduct of examination is regulated by these Regulations.
3. Amongst others main grievance is against applicability of Regulation 11(vii) of the Regulations to petitioners. It is necessary to set out few more facts to know how petitioners are affected by application of this regulation.
All these petitioners except petitioners in Writ Petitions Nos. 8222 to 8224 of 1986 yet to pass subjects like Anatomy and Physiology of I Year BHMS Course. Petitioners in Writ Petitions 8222 to 8224 of 1986, students of II Year BHMS course yet to pass Pathology. As per this provision, a candidate not passing examination of the year within four attempts is required to repeat the course and ATKT (allowed to keep term) procedure is obliterated. By applying Regulation 11(vii) of Regulations, they are required to repeat the course and benefit of ATKT is denied, Petitioners assert that they should be allowed to compute the course availing of ATKT and their grievance is that direction issued to repeat the course is illegal. Petitioners contend inter alia that rule which has come into force after they have joined the course is inapplicable. It is further contended that they have been permitted to put term in next class with benefit of carrying over failed subjects and direction now given to repeat the course causes inconvenience and great hardship.
4. Undisputedly, Karnataka Board of Homoeopathic System of Medicine was conducting the Course as well as examination by issuing circular instructions from time to time, and there was no rule or regulation governing conduct of examination. The Centra] Council of Homoeopathy, which has an overall control over this system, has prescribed procedure for conduct of examination. Among them one is that a candidate must pass particular examination within four attempts, In case a candidate is not in a position to complete the examinations within four attempts, he has to repeat the course If their plea that there were no regulations at the time of joining course and procedure then prevalent must continue till the completion of course, is accepted, then they will have to be allowed to complete their course without reference to these Regulations till completion of degree. After introduction of Regulations, there is no justification to contend that procedure then in vogue alone should continue. After promulgation of this procedure that was hitherto adopted by Board stands superseded. There is no vested right to contend that they must be allowed to complete the course as per procedure then prevalent.
5. It is having regard to this difficulty, an alternative plea of estoppel is urged. Sri K.S. Desai and Sri. G.K. Bhat, Learned Counsel for petitioners, citing various decisions, submitted that as these petitioners have been permitted to take examination and put term in next class, they cannot be asked to repeat the Course and are estopped from denying the benefit of ATKT. They contend, whatever may be the number of attempts, they should be permitted to take the examination irrespective of these Regulations governing the conduct of examination. I have not come across any decision holding that estoppel will operate against law. Regulations framed by Central Council of Homoeopathy, under Homoeopathy Central Council, being a law, I am unable to understand how estoppel operates against it.
Learned Counsel for petitioners relying on decisions in Shri Krishna v. Kurukshetra University, Kurukshetra, ; University of Delhi v. Ashok Kumar Copra and Anr., ; K.K. Jacob (Minor) v. The Madurai University and Anr., and Miss Nirupama Mohanty v. State of Orissa and Ors., A.I.R. 1977 Orissa 123 contended that respondents are estopped from directing petitioners to repeat the course.
Supreme Court in Shri Krishna’s, case held that power of University to withdraw candidature from examination cannot be exercised after a student has been permitted to take the examination and University having acquiesced in admission to examination, ignoring the infirmity, if any, cannot, relying on statute which empowers it to withdraw, annul the admission to examination. There is no question of acquie – scence in the instant case, but they involve the application of Regulations that are come into force afresh.
In Ashok Kumar Copra’s, case and Jacob’s, case, High Courts of Delhi and Madras referring to Rules/Regulations providing for exemption from application of rules in appropriate cases and drawing distinction between an Act which is ultravires and an irregular Act have held that admission of students possessing less than the minimum cannot be annulled on the ground of ineligibility.
The dictum reads thus :-
“The position is that if the terms of a statute are absolute and do not admit of any relaxation or exemption, then anything done contrary to the terms of such a statute will be ultra vires and will be void and no person can be estopped from putting forward the contention that what he did was illegal or void. On the other hand, if a statute having prescribed certain conditions or qualifications for the doing of a certain thing itself provides for exemption therefrom under certain circumstances or authorities somebody to exercise the power of exemption then anything done not in terms of those conditions or qualifications will not be ultra vires and will be said to be merely irregular and to such an act, the proposition that there can be no estoppel against a statute will have no application.”
In Miss Nirupama Mohanty’s case, A.I.R. 1977 Orissa 123, Orissa High Court has held that grace marks awarded in anticipation of approval of Government to the proposed amendment of Regulation cannot be denied as no such sanction was warranted for awarding grace marks. Ratio of these decisions instead of assisting them operates against them. In my considered view, Council, properly applying Regulation 11(vi) of Regulations, has held that petitioners who have not passed all subjects all these years starting from 1982-1983 should repeat the course in case they intend to continue their studies and matter does not call for interference.
6. For reasons stated above, these Writ Petitions are dismissed. Petitioners are at liberty to repeat the course if they so desire and delay caused in disposal of these Writ Petitions shall not be a ground for denial of admission, if otherwise eligible. Rule discharged.