{"id":148448,"date":"2009-07-10T00:00:00","date_gmt":"2009-07-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-w-p-no-15852-of-2008-vs-baba-farid-university-of-health-on-10-july-2009"},"modified":"2015-08-14T14:56:22","modified_gmt":"2015-08-14T09:26:22","slug":"c-w-p-no-15852-of-2008-vs-baba-farid-university-of-health-on-10-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-w-p-no-15852-of-2008-vs-baba-farid-university-of-health-on-10-july-2009","title":{"rendered":"C.W.P.No.15852 Of 2008 vs Baba Farid University Of Health … on 10 July, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
C.W.P.No.15852 Of 2008 vs Baba Farid University Of Health … on 10 July, 2009<\/div>\n
C.W.P.No.15852 of 2008                             -1-\n\n\n     IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n              CHANDIGARH\n\n                                  C.W.P.No. 15852 of 2008\n                                  Date of Decision:- 10.07.2009\n\n1. C.W.P.No.15852 of 2008\n\nJasdeep Singh                                      .....Petitioner(s)\n\n     vs.\nBaba Farid University of Health Sciences           ....Respondent(s)\n\n\n2. C.W.P.No.15857 of 2008\n\nGourav Sharma                                      .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences           ....Respondent(s)\n\n\n\n3. C.W.P.No.16047 of 2008\n\nSumeet Verma and others                            .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.    ....Respondent(s)\n\n\n\n4. C.W.P.No.16052 of 2008\n\nAjay Kumar and anr.                                .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.    ....Respondent(s)\n\n\n5. C.W.P.No.16056 of 2008\n\nHarmanpreet Singh and anr.                         .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.    ....Respondent(s)\n C.W.P.No.15852 of 2008                            -2-\n\n\n6. C.W.P.No.16124 of 2008\n\nGautam Siddharatha and ors.                       .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.   ....Respondent(s)\n\n\n\n7. C.W.P.No.16205 of 2008\n\nAmit Minocha                                      .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & ors.   ....Respondent(s)\n\n\n\n8. C.W.P.No.16558 of 2008\n\nSumeet Sood                                       .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.   ....Respondent(s)\n\n\n\n9. C.W.P.No.16559 of 2008\n\nRahul Thaman                                      .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.   ....Respondent(s)\n\n\n\n10. C.W.P.No.16809 of 2008\n\nAnupam Sharma                                     .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.   ....Respondent(s)\n C.W.P.No.15852 of 2008                            -3-\n\n\n11. C.W.P.No.5762 of 2009\n\n\nNitin Bagga                                       .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.   ....Respondent(s)\n\n\n\n12. C.W.P.No.6513 of 2009\n\nKulwinder Kaur                                    .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & ors.   ....Respondent(s)\n\n\n\n13. C.W.P.No.6703 of 2009\n\nArshdeep Singh and others                         .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences & anr.   ....Respondent(s)\n\n\n\n14. C.W.P.No.14156 of 2008\n\nCharanjeet Kaur, B.Sc. (Nursing)                  .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences          ....Respondent(s)\n\n\n\n15. C.W.P.No.16159 of 2008,\n\n\nNisha Kalyan, B.Sc. (Nursing)                     .....Petitioner(s)\n\n     vs.\n\nBaba Farid University of Health Sciences          ....Respondent(s)\n C.W.P.No.15852 of 2008                                 -4-\n\n\n                  ***\n\nCORAM:- Hon'ble Mr.Justice T.S.Thakur, Chief Justice\n\n            Hon'ble Mr.Justice Jasbir Singh\n\n            Hon'ble Mr.Justice Augustine George Masih\n\n                  ***\n\nPresent:-   Mr.R.S.Bajaj,Mr.Dhiraj Chawla, Mr. Arun Takhi,\n            Ms.Anupama Takhi, Mr.H.S.Rakhra, Mr.Ravi Kant,\n            Mr.R.L.Luthra, Advocates for the petitioners.\n\n            Mr.Anupam Gupta, Mr.T.S.Dhindsa,\n            Mr.Ashish Rawal, Ms.Meenu Sharma, Advocates,\n            for the respondents.\n\n                  ***\n\nAugustine George Masih, J.\n<\/pre>\n
            Through this order, we propose to dispose of Civil Writ<\/p>\n
Petitions No.14156 of 2008, 15852 of 2008, 15857 of 2008, 16047 of<\/p>\n
2008, 16052 of 2008, 16056 of 2008, 16124 of 2008, 16159 of 2008, 16205<\/p>\n
of 2008, 16558 of 2008, 16559 of 2008, 16809 of 2008, 5762 of 2009, 6513<\/p>\n
of 2009 and 6703 of 2009.\n<\/p>\n
            All the above-mentioned writ petitions relate to the students<\/p>\n
pursuing Bachelor of Ayurvedic Medicine and Surgery Courses, wherein<\/p>\n
they are claiming that they are not being permitted to take the next Higher<\/p>\n
Professional Examination although they have not as yet availed\/exhausted<\/p>\n
all   the available chances to clear the earlier Lower Professional<\/p>\n
Examination provided to them under the Ordinance except for the<\/p>\n
petitioner-Nitin Bagga in C.W.P.No.5762 of 2009 wherein he has availed<\/p>\n
of all the four chances to clear the Second Professional Examination and is<\/p>\n
studying in the third professional but his form is not being sent for taking<\/p>\n
the Third Professional Examination as he has failed to clear the Second
\n C.W.P.No.15852 of 2008                                 -5-<\/span><\/p>\n
Professional Examination.     Apart from these cases, C.W.P.No.14156 of<\/p>\n
2008 and C.W.P.No.16159 of 2008 are the cases preferred by the students<\/p>\n
pursuing Bachelor of Science in Nursing (4 years) Degree Programme<\/p>\n
(Annual System) wherein they have not been allowed to take the next<\/p>\n
Higher Professional Examination as they had not cleared the earlier Lower<\/p>\n
Professional Examination. In all these writ petitions, the petitioners are<\/p>\n
basing their claim on a judgment of this Court in Aseempreet Kundi and<\/p>\n
another vs. State of Punjab and others, 2007 (1) SCT 683, to contend that<\/p>\n
although they may not have cleared all the subjects of the earlier Lower<\/p>\n
Professional Course but since they had completed the academic period of<\/p>\n
studies to take the next Higher Professional Course Examination, they will<\/p>\n
be eligible to appear in this Higher Professional Examination as they have a<\/p>\n
right to clear the earlier Lower Professional Examination within the<\/p>\n
permissible attempts provided under the Regulations, which have yet not<\/p>\n
been exhausted by them. The petitioners have further placed reliance on<\/p>\n
Division Bench judgments of this Court in Parampreet Kaur and others<\/p>\n
vs. State of Punjab and others, (C.W.P.No.3979 of 2007 decided on<\/p>\n
16.4.2007), Himanshu and another vs. Baba Farid University of Health<\/p>\n
Sciences and others, (C.W.P.No.4487 of 2007 decided on 9.5.2007), and<\/p>\n
Bikramjit Singh and another vs. Baba Farid University of Health<\/p>\n
Sciences and others, (C.W.P.No.17180 of 2006 decided on 16.11.2006).<\/p>\n
             Upon notice having been issued, the respondent-University in<\/p>\n
its written statement has taken a stand that the requirement of the<\/p>\n
Ordinances    governing the    Course mandates the clearance of all the<\/p>\n
subjects of the earlier Professional Course before a candidate becomes<\/p>\n
eligible to take the next Professional Examination.     Reliance has been
\n C.W.P.No.15852 of 2008                                   -6-<\/span><\/p>\n
placed upon a Division Bench judgment of this Court in Tarun Mohan and<\/p>\n
others vs. Baba Farid University of Health Sciences and others,<\/p>\n
(C.W.P.No.17396 of 2007 decided on 29.11.2007), wherein it has been held<\/p>\n
that a candidate cannot claim a right to appear in the next            Higher<\/p>\n
Professional Examination without passing the earlier Lower Professional<\/p>\n
Examination as mandated under the Ordinances         governing the course in<\/p>\n
question.\n<\/p>\n
              These cases came up before a Division Bench           for motion<\/p>\n
hearing on 30.9.2008, when apart from noticing the conflict in the view<\/p>\n
taken by this Court in the above-mentioned decisions, also found that the<\/p>\n
judgment of the Hon’ble Supreme Court in the case of Council of<\/p>\n
Homeopathic System of Medicine, Punjab and others vs. Suchintan and<\/p>\n
others<\/a>, AIR 1994 Supreme Court 1761, has not been examined in any of<\/p>\n
the judgments which may have a bearing on the controversy raised and<\/p>\n
involved in the present set of writ petitions. Keeping         in   view the<\/p>\n
interest of   the   students   and     the fact that the interpretation of the<\/p>\n
Ordinances will have a recurring effect and also to resolve the dispute<\/p>\n
between the conflicting views taken by the Benches of this Court, the<\/p>\n
matter was referred to a Larger Bench for an authoritative decision. This is<\/p>\n
how these cases have come up before this Bench for consideration.<\/p>\n
              Counsel   representing the petitioners in these writ petitions<\/p>\n
submit that the petitioners are entitled to four attempts, including the first<\/p>\n
attempt in which they were eligible to appear, to clear each professional<\/p>\n
examination. They having availed of three attempts, in which they failed to<\/p>\n
clear all the subjects in the Second Professional Examination, still have one<\/p>\n
more chance left. Counsel submit that the petitioners are not being allowed
\n C.W.P.No.15852 of 2008                                  -7-<\/span><\/p>\n
to take the Third Professional Examination. Reference has been made to<\/p>\n
Ordinance 10 ( iv ) wherein it has been stated that the candidates who<\/p>\n
failed in one or more subjects of the Second Professional Examination shall<\/p>\n
be allowed to clear all the subjects of the Second Professional BAMS<\/p>\n
Examination in four consecutive attempts including the first attempt in<\/p>\n
which they were eligible to appear. On this basis, it has been submitted by<\/p>\n
the counsel for the petitioners that although the petitioners have been<\/p>\n
promoted under the Ordinance to keep term in Third Professional Course<\/p>\n
and they have indeed attended the theory and practical classes and have<\/p>\n
fulfilled the academic requirements of period of study of that professional<\/p>\n
but still they are not being allowed to appear in the Third Professional<\/p>\n
Examination only on the ground that they have not passed all the subjects of<\/p>\n
the Second Professional Examination. It has been submitted that there is<\/p>\n
direct conflict between Clause (iii) and Clause (iv) of Ordinance 10. A right<\/p>\n
which has been conferred by Clause (iv) of the Ordinance on the one hand<\/p>\n
to clear the subjects of the Second Professional Examination in four<\/p>\n
consecutive attempts    has been taken away by clause (iii) of the same<\/p>\n
Ordinance on the other hand without the petitioners having availed of all<\/p>\n
four consecutive attempts. It appears to be a very anomalous situation<\/p>\n
where four consecutive attempts, including the first attempt in which they<\/p>\n
were eligible to appear in the examination, have been granted and they have<\/p>\n
been also promoted to the next Higher Professional but merely on account<\/p>\n
of their failure to clear all subjects of the Second Professional Examination<\/p>\n
in three attempts without availing the fourth attempt, they are being<\/p>\n
debarred from appearing in the Third Professional Examination.          This,<\/p>\n
according to the petitioners, would lead to withdrawing a benefit which has
\n C.W.P.No.15852 of 2008                                     -8-<\/span><\/p>\n
been conferred upon the candidates by one clause of the Ordinance by<\/p>\n
another clause which does not allow them to avail the benefit so conferred<\/p>\n
upon such candidates. It has, thus, been submitted by the counsel for the<\/p>\n
petitioners that a harmonious construction of the two clauses of the<\/p>\n
Ordinances needs to be resorted to so that the petitioners are not deprived of<\/p>\n
a beneficial right and they do not lose valuable time leading to they being<\/p>\n
forced to sit out because of clause (iii) of Ordinance 10 which mandates<\/p>\n
clearance of all subjects before taking the Third Professional Examination.<\/p>\n
Accordingly, it has been submitted that the petitioners be allowed to take<\/p>\n
the Third Professional Examination along with the fourth attempt to clear all<\/p>\n
papers of the Second Professional Examination available to them under<\/p>\n
Ordinance 10 (iv) so that no clause of the Ordinance is offended and the<\/p>\n
petitioners do not lose valuable time of their courses and do not lag behind<\/p>\n
and rather complete the courses with other batch-mates. In support of these<\/p>\n
submissions, reliance has been placed by the counsel on a judgment of a<\/p>\n
Single Judge of this Court in Aseempreet Kundi’s case (supra) which was<\/p>\n
followed by a Division Bench of this Court in         Bikramjit Singh’s case<\/p>\n
(supra) and thereafter in Himanshu’s case (supra). Reliance has also been<\/p>\n
placed on another Division Bench judgment of this Court in Parampreet<\/p>\n
Kaur’s case (supra). In view of these judgments of this Court, counsel for<\/p>\n
the petitioners submit that similar relief deserves to be granted to the<\/p>\n
petitioners in the present writ petitions for being similarly situated.<\/p>\n
             On the other hand, counsel for the respondent-University<\/p>\n
submitted that the provisions as contained in the Ordinance governing the<\/p>\n
Bachelor of Ayurvedic Medical Science Course are clear and unambiguous.<\/p>\n
When the language itself is clear, no other meaning except what is stated in
\n C.W.P.No.15852 of 2008                                   -9-<\/span><\/p>\n
the Ordinance should be taken to be correct. The question of harmonious<\/p>\n
construction or the application of the principles of reading down would not<\/p>\n
come into effect as in Aseempreet Kundi’s case (supra). He urged that the<\/p>\n
offending Ordinance which came up for interpretation before this Court in<\/p>\n
Aseempreet Kundi’s case (supra) stands amended and clause (vii) of<\/p>\n
Ordinance 5 (d) deleted and in any case, the same would have no bearing<\/p>\n
on the present cases as the Ordinance under question in this set of cases is<\/p>\n
different from what was in question before the learned Single Judge in<\/p>\n
Aseempreet Kundi’s case (supra). He contended that the claim of the<\/p>\n
petitioners relates to Ordinance 10 (iii) of Bachelor of Ayurvedic Medicine<\/p>\n
and Surgery which has been dealt with and authoritatively decided against<\/p>\n
the students by a Division Bench of this Court in the case of Tarun Mohan<\/p>\n
vs.   Baba    Farid    University    of   Health    Sciences     and    others<\/p>\n
(C.W.P.No.17396 of 2007 decided on 29.11.2007) holding therein that the<\/p>\n
requirement of the Ordinance 10 Clause (iii) was not in conflict with<\/p>\n
Regulation 8.1 of Indian Medicines Central Council (Minimum Standards<\/p>\n
of Education in Indian Medicine) Regulations, 1986, framed under the<\/p>\n
provisions of the Indian Medicine Central Council Act, 1970. He further<\/p>\n
argued that the Court had held that the petitioner in that case could not,<\/p>\n
thus, claim a right to appear in the 3rd Professional Examination without<\/p>\n
passing all the subjects of the 2nd Professional Examination. He, on this<\/p>\n
basis, submitted that judgment in Tarun Mohan’s case (supra), which<\/p>\n
relates to Ordinance 10 (iii) of Bachelor       of Ayurvedic Medicine and<\/p>\n
Surgery Course, is fully applicable to the present set of writ petitions as the<\/p>\n
same ordinance is in question here, compliance of requirement as mandated<\/p>\n
therein before being eligible    to take the 3rd Professional Examination,
\n C.W.P.No.15852 of 2008                                         -10-<\/span><\/p>\n
having been upheld by this Court.\n<\/p>\n
               We have given our careful consideration with submissions<\/p>\n
made at the Bar and gone through the records of the cases.<\/p>\n
               The precise question which needs to be             answered in the<\/p>\n
present cases is; whether a candidate who has failed in one or more<\/p>\n
subjects in an earlier        Professional     Examination and who has been<\/p>\n
permitted to attend classes in the next Higher             Professional Course as<\/p>\n
per the Ordinance and having completed the period of study of<\/p>\n
the said Higher Professional Course, can                be allowed to take the<\/p>\n
Examination of the Higher Professional Course without clearing all the<\/p>\n
subjects of the Lower Professional Examination, when the attempts<\/p>\n
provided for      clearing the Lower Professional Examination under the<\/p>\n
Ordinance are still available and            have not    been exhausted by the<\/p>\n
candidate?\n<\/p>\n
               Answer to this question would lie in the Ordinances governing<\/p>\n
the courses.\n<\/p>\n
               Firstly, dealing with the cases where the students are pursuing<\/p>\n
Bachelor of Ayurvedic Medicine and Surgery, the Ordinances, relevant for<\/p>\n
resolving the controversy read as follows:-\n<\/p>\n
                       “4. Duration of Course<\/p>\n
                            xxxx        xxxx            xxxx          xxxx<\/p>\n
                       For the students admitted in 2001 and onwards
\n                       (Amended by the Board of Management in its meeting
\n                       held on 5.12.2001 vide Para 11(U) (c)<\/p>\n
                       1.    First Prof BAMS            1 \u00bd years\n<\/p><\/blockquote>\n
                       2.    Second Prof BAMS           1 \u00bd years\n<\/p><\/blockquote>\n
                       3.    Third Prof BAMS            1 \u00bd years\n<\/p><\/blockquote>\n
                       4.    Internship                 1 year
\n C.W.P.No.15852 of 2008                                  -11-<\/span><\/p>\n<\/blockquote>\n
                  5. Degree to be awarded<\/p>\n
                Ayurvedacharya BAMS ( Bachelor of Ayurvedic<\/p>\n
                Medicine and Surgery)<\/p>\n
                The candidate shall be awarded Ayurvedacharya BAMS<\/p>\n
                ( Bachelor of Ayurvedic Medicine and Surgery) degree<\/p>\n
                after completion of prescribed courses of study extending<\/p>\n
                over the prescribed period and passing the Final<\/p>\n
                Examination and satisfactory completion of one year<\/p>\n
                rotatory compulsory internship in the parent institution<\/p>\n
                after passing in all the subjects in the final examination.<\/p>\n<\/blockquote>\n
                  6 to 8 xxxx      xxxx          xxxx           xxxxx<\/p>\n<\/blockquote>\n
                  9. First Professional Examination ( to be held at the<\/p>\n
                  end of 1 year and 6 months).\n<\/p><\/blockquote>\n
                  (i) (a)    The 1st Professional period shall be 18\n\n                  months duration and            the examination        shall\n\n                  ordinarily be    completed     by     the end     of next\n\n                  year November\/December.             The      Supplementary\n\n<\/pre>\n
                  examination of 1st Professional shall be held within six<\/p>\n
                  months of declaration of result.\n<\/p><\/blockquote>\n
                  (b) A candidate who fails in one or more subjects of<\/p>\n
                  First Professional Examination may be allowed to keep<\/p>\n
                  term in Second Professional course.             Only those<\/p>\n
                  students who pass in all subjects of 1st Prof. BAMS<\/p>\n
                  examination shall be allowed to take Second<\/p>\n
                  Professional Examination.\n<\/p><\/blockquote>\n
 C.W.P.No.15852 of 2008                                  -12-<\/span><\/p>\n
\n
                  The students shall be allowed clear all the subjects of<\/p>\n
                  First   Professional   BAMS      examination         in   four<\/p>\n
                  consecutive    attempts including the first attempt in<\/p>\n
                  which they were eligible to appear, failing which they<\/p>\n
                  shall have to appear in all the subjects of the First<\/p>\n
                  Professional BAMS examinations.              ( Amended by<\/p>\n
                  BOM on 28.5.2004, vide para 77 and on 11.11.2004,<\/p>\n
                  vide para 4 (c )).\n<\/p><\/blockquote>\n
                  (ii) The First Professional BAMS Examination shall<\/p>\n
                  be in the following subjects and candidate shall be<\/p>\n
                  required to pass all the subject:-\n<\/p><\/blockquote>\n
                  xxxx      xxxx          xxxx          xxxx\n\n                  (iii) & (iv) xxxx              xxxx           xxxx\n\n\n                10. Second Professional Examinations\n\n<\/pre>\n
                  i) The Second Professional course shall start in<\/p>\n
                  January\/February following the First Professional<\/p>\n
                  Examination and the Examination shall be held in<\/p>\n
                  May\/June of the year in which a candidate completes<\/p>\n
                  18 months of study.            Candidates passing first<\/p>\n
                  Professional in supplementary examination shall not<\/p>\n
                  be allowed summer vacation           so that they undergo<\/p>\n
                  instruction during this period. (Amended by BOM on<\/p>\n
                  24.5.2004, vide para 77).\n<\/p><\/blockquote>\n
                  ii) The Second Professional Examination shall be<\/p>\n
                  held one and half years after First Professional
\n C.W.P.No.15852 of 2008                                    -13-<\/span><\/p>\n
                      Examination and in the following subjects.          Each<\/p>\n
                      Theory Paper will be three hours duration.<\/p>\n<\/blockquote>\n
                        xxxx          xxxx         xxxx          xxxx<\/p>\n<\/blockquote>\n
                      iii) A candidate who fail in one or more subjects of<\/p>\n
                      Second Professional Examination may be allowed to<\/p>\n
                      keep term in Third Professional Course. Any such<\/p>\n
                      candidate will be allowed to appear in the Third<\/p>\n
                      Professional Examination only after passing all the<\/p>\n
                      subjects of     Second    Professional     Examination.<\/p>\n
                      (Amended by BOM on 28.5.2004, vide para 77).<\/p>\n<\/blockquote>\n
                      iv) The   supplementary     examination      to   Second\n\n                      professional shall be     held      ordinarily         in\n\n<\/pre>\n
                      November\/December and those who remain failed in<\/p>\n
                      any subject shall be eligible to appear in the<\/p>\n
                      subsequent Second Professional Examination.<\/p>\n
                      These candidates shall be allowed to clear all the<\/p>\n
                      subjects of Second Professional     BAMS examination<\/p>\n
                      in four consecutive attempts including the first attempt<\/p>\n
                      in which they were eligible to appear in the<\/p>\n
                      examination, failing which they shall have to appear in<\/p>\n
                      all the   subjects   of   the    Second      Professional<\/p>\n
                      Examination. (Amended by BOM on 28.5.2004, vide<\/p>\n
                      para 77 and on 11.11.2004, vide para 4 (c)).<\/p><\/blockquote>\n
<\/blockquote>\n
                11. Final Professional Examination<\/p>\n<\/blockquote>\n
                (i)      A. xxxx      xxxx         xxxx          xxxx<\/p>\n
                B. For students admitted in 2001 and onwards
\n C.W.P.No.15852 of 2008                                     -14-<\/span><\/p>\n
                The Final Professional Examination shall be held one<\/p>\n
                and half year after the Second Professional Examination<\/p>\n
                and shall comprise the following subjects:-<\/p>\n<\/blockquote>\n
                xxxx           xxxx                 xxxx           xxxx\n\n                (ii)     If a candidate secures re-appear \/failed in one or\n\n<\/pre>\n
                more subjects in Final Professional Examination he\/she<\/p>\n
                shall     be   eligible to appear    in    those    subjects in<\/p>\n
                subsequent Final Professional Examination which may<\/p>\n
                be held every six months.\n<\/p><\/blockquote>\n
                The students shall be allowed to (sic.) clear all the<\/p>\n
                subjects of Final Professional BAMS examination in<\/p>\n
                four consecutive attempts including the first attempt in<\/p>\n
                which they were eligible to appear, failing which they<\/p>\n
                shall have to appear in all the subjects of the Final<\/p>\n
                Professional BAMS examinations. (Amended by BOM<\/p>\n
                on 28.5.2004 , vide para 77 and on 11.11.2004, vide<\/p>\n
                para 4 (c)).\n<\/p><\/blockquote>\n
                (iii) He\/she shall not be allowed to commence Internship<\/p>\n
                training without      passing all the subjects of Final<\/p>\n
                Professional BAMS examination.<\/p><\/blockquote>\n
\n\n                12.Compulsory Internship\n\n                       12.1 xxxx           xxxx            xxxx\n\n<\/pre>\n
                   12.2 The students who had joined the BAMS Course<\/p>\n
                   in 2001 or thereafter shall go in for compulsory<\/p>\n
                   Internship after passing Final Prof. BAMS Course.<\/p>\n
                   Duration of Internship shall be of one year as under:-
\n C.W.P.No.15852 of 2008                                   -15-<\/span><\/p>\n<\/blockquote>\n
                     xxxx             xxxx               xxxx          xxxx<\/p>\n
                     12.3 After completion of internship the concerned<\/p>\n
                     Principal will certify that the student has satisfactorily<\/p>\n
                     completed internship. Thereafter the student will be<\/p>\n
                     awarded the degree of Bachelor of Ayurvedic<\/p>\n
                     Medicine and Surgery(BAMS).”<\/p><\/blockquote>\n
            A perusal of the above Ordinances dealing with the Bachelor<\/p>\n
of Ayurvedic Medicine and Surgery leaves no manner of doubt that it is a<\/p>\n
complete code in itself governing each and every aspect of the<\/p>\n
course\/training which has to be imparted to the students. The requirement,<\/p>\n
therefore, as mandated in these Ordinances has to be given full effect to. It<\/p>\n
has been time and again held by the Hon’ble Supreme Court that in the<\/p>\n
matters of academic standards, the Courts should refrain from interfering<\/p>\n
with and interpreting the Rules and Regulations holding the field as such<\/p>\n
matters need to be left to the care of the Experts in those fields. Here<\/p>\n
reference may be made to the judgments of the Hon’ble Supreme Court in<\/p>\n
the cases of University of Mysore vs. C.D.Govinda Rao, AIR<\/a> 1965 SC<\/p>\n
491, State of Kerala vs. Kumari T.P.Roshana,<\/a> (1979) 1 SCC 572 and<\/p>\n
Shirish Govind Prabhudesai vs. State of Maharashtra,<\/a> (1993) 1 SCC<\/p>\n
211. The rationale underlying the above pronouncements is that Courts do<\/p>\n
not have the expertise and the resources required to go into the questions of<\/p>\n
devising the curriculum for the professional courses like the one in question<\/p>\n
before us. A great deal of technical expertise and knowledge is required for<\/p>\n
meting out the complications and requirements of the Professional Courses.<\/p>\n
It is for this reason that the Hon’ble Supreme Court has cautioned the
\n C.W.P.No.15852 of 2008                                     -16-<\/span><\/p>\n
Courts   not to    interfere or interpret the matters relating to academic<\/p>\n
standards which would include Professional Courses as well.               The<\/p>\n
requirement of each Professional Course is specific which only the experts<\/p>\n
can delve into, choose and decide the best as per the needs, so that the<\/p>\n
Society receives the most talented and professionally trained persons when<\/p>\n
they pass out of their colleges to serve the people at large.<\/p>\n
             On consideration of Ordinances 9, 10 and 11, as reproduced<\/p>\n
above, it emerges that the same deal with not only the duration of the<\/p>\n
Professional Courses but also the Examinations which are required to be<\/p>\n
cleared by the students. In an ideal situation a candidate should clear all<\/p>\n
subjects of the Professional Examination in which he is studying and<\/p>\n
appearing in the very first attempt. And yet, there may be reasons beyond<\/p>\n
the control of a candidate which would not permit him to take the<\/p>\n
examination in one or more subjects. It is only to help those candidates, that<\/p>\n
apart from the first attempt in which a candidate is eligible to appear, three<\/p>\n
consecutive attempts in addition have been provided under the Ordinances.<\/p>\n
Out of these three consecutive attempts, two attempts are available to the<\/p>\n
candidates before the next Higher Professional Examination is to be held<\/p>\n
and the petitioners herein have availed of the same but have failed to clear<\/p>\n
all the subjects. No doubt, a 3rd additional chance is available to them as<\/p>\n
per the Ordinance, which they can undoubtedly avail of, but that would be<\/p>\n
at the cost of missing a chance to appear in the Higher Professional<\/p>\n
Examination.      A candidate who fails in one or more subjects in a<\/p>\n
Professional Examination may be allowed to keep term in the next Higher<\/p>\n
Professional Course but the Ordinance provides that any such candidate will<\/p>\n
be allowed to appear in the Higher Professional Examination only after
\n C.W.P.No.15852 of 2008                                   -17-<\/span><\/p>\n
passing all subjects of the Lower Professional Examination; which the<\/p>\n
petitioners have failed to do.\n<\/p>\n
             The Ordinances would further show that eligibility for<\/p>\n
admission to the Higher Professional Course is entirely different from the<\/p>\n
eligibility to appear in an examination. A candidate may be eligible for<\/p>\n
admission to the Higher Professional Course but merely on admission to<\/p>\n
the Higher Professional Course he will not be\/become eligible to appear in<\/p>\n
the Higher Professional Examination as well, unless he fulfills the<\/p>\n
requirement of eligibility to take the said examination.        Therefore, the<\/p>\n
eligibility for admission to the Higher Professional Course and eligibility to<\/p>\n
take the Higher Professional Examination are two different things, the<\/p>\n
requirement of which is dependent on the relevant Ordinances and Clauses.<\/p>\n
If the requirement under the Ordinances\/Clauses is not fulfilled for one<\/p>\n
reason or the other, the candidate cannot claim that since one of the<\/p>\n
requirements stands fulfilled, the other requirement would automatically<\/p>\n
stand complied with.\n<\/p>\n
             The Ordinances, when analysed carefully make the intention<\/p>\n
behind the same evident. Ordinance 9 deals with the First Professional<\/p>\n
Examination. Clause (i)(a) states that First Professional shall be of 18<\/p>\n
months’ duration. Clause (i)(b) thereof provides that a candidate who fails<\/p>\n
in one or more subjects of the First Professional Examination may be<\/p>\n
allowed to keep term in the Second Professional Examination. However,<\/p>\n
according to this clause, only those students who pass in all the subjects of<\/p>\n
the First Professional Bachelor of Ayurvedic Medicine and Surgery<\/p>\n
Examination shall be allowed to take the Second Professional Examination.<\/p>\n
Clause (ii) of this very Ordinance provides the subjects of which the
\n C.W.P.No.15852 of 2008                                    -18-<\/span><\/p>\n
candidate   is required to take examination in the First Professional in<\/p>\n
Bachelor of Ayurvedic Medicine and Surgery. It further states that the<\/p>\n
candidate shall be required to pass all the subjects. Ordinance 10 deals with<\/p>\n
the Second Professional Examination. Clause (i) provides that Second<\/p>\n
Professional Examination shall be held on completion of 18 months study.<\/p>\n
Clause (ii) thereof gives the details of the subjects in which the candidate is<\/p>\n
required to take examinations. Clause (iii) provides that a candidate who<\/p>\n
fails in one or more subjects of the Second Professional Examination may<\/p>\n
be allowed to keep term in the Third Professional Course. However, it also<\/p>\n
mandates that any such candidate will only be allowed to appear in the<\/p>\n
Third Professional Examination after passing all subjects of the Second<\/p>\n
Professional Examination. Ordinance 11 deals with the Final Professional<\/p>\n
Examination.     Clause (i) (B) provides that the Final Professional<\/p>\n
Examination shall be held one and a half year after the Second Professional<\/p>\n
Examination and shall comprise of the subjects enumerated therein. Clause<\/p>\n
(ii) thereof provides that if a candidate secures reappear\/fail in one or more<\/p>\n
subjects in Final Professional Examination, he\/she shall be eligible to<\/p>\n
appear in those subjects in subsequent Final Professional Examinations<\/p>\n
which may be held after every six months. Clause (iii), however, stipulates<\/p>\n
that such candidate shall not be allowed to commence Internship training<\/p>\n
without passing all the subjects of the Final Professional BAMS<\/p>\n
Examination. Ordinance 12 provides for Compulsory Internship. Clause<\/p>\n
12.2 provides that the candidate shall go in for Compulsory Internship after<\/p>\n
passing Final Professional BAMS Course which shall be of a duration of<\/p>\n
one year. Ordinance 9(i)(b), 10 (iv) and 11(ii) are similarly worded and<\/p>\n
provide for four consecutive attempts including the first attempt in which
\n C.W.P.No.15852 of 2008                                    -19-<\/span><\/p>\n
the candidate is eligible to appear, in order to allow a candidate to clear all<\/p>\n
subjects of the respective Professional Examination, covered by the said<\/p>\n
Ordinances. They further provide that where a candidate fails to clear all<\/p>\n
the subjects in the attempts granted under these clauses of the Ordinances,<\/p>\n
he\/she shall have to appear in all subjects of that Professional BAMS<\/p>\n
Examination, meaning thereby that a candidate is required to clear all<\/p>\n
subjects of the Lower Professional Examination before he\/she can be<\/p>\n
allowed to appear in the Higher Professional Examination. This is the<\/p>\n
Scheme of the Ordinances.\n<\/p>\n
             Each professional is of a duration of 18 months. A candidate<\/p>\n
who fails to clear all subjects in the first attempt in which he\/she is eligible<\/p>\n
to appear in a Professional Examination, gets two other consecutive<\/p>\n
attempts to clear the subjects he\/she has failed in of that very Professional<\/p>\n
Examination before the next Higher Professional Examination in normal<\/p>\n
course is held. The mandate as provided under Ordinance 9 (i) (b) and 10<\/p>\n
(iii) which requires the candidate to pass all subjects of            the First<\/p>\n
Professional Examination and the Second Professional Examination before<\/p>\n
he\/she can be allowed to appear in the Second Professional Examination<\/p>\n
and Third Professional Examination respectively, has a cardinal purpose to<\/p>\n
serve.\n<\/p>\n
             It has been claimed by the petitioners that under the<\/p>\n
Ordinances, they have been provided four consecutive attempts including<\/p>\n
the first attempt in which they were eligible to appear but they have been<\/p>\n
able to exhaust only three attempts, leaving one more attempt available to<\/p>\n
them to clear the said Professional Examination. As per the condition<\/p>\n
imposed    for the candidate to be eligible to appear in the next Higher
\n C.W.P.No.15852 of 2008                                  -20-<\/span><\/p>\n
Professional Examination, this attempt of the candidate stands extinguished<\/p>\n
and the candidate would be losing six months, in the process leading to<\/p>\n
his\/her lagging behind his\/her batch-mates, although he\/she still had one<\/p>\n
more attempt to clear all the subjects of the Lower Professional Examination<\/p>\n
as per the Ordinance itself. As is apparent from above, these are grace<\/p>\n
attempts provided for the candidate to clear the subjects where the candidate<\/p>\n
has failed in the examination. If a candidate is allowed to take his fourth<\/p>\n
consecutive attempt to clear the Lower Professional Examination along with<\/p>\n
the Higher Professional Examination, as has been claimed by the<\/p>\n
petitioners, an anomalous situation may arise where a candidate may clear<\/p>\n
the Higher Professional Examination but may fail to clear the Lower<\/p>\n
Professional Examination. This would create an absurd situation where<\/p>\n
despite each professional being an independent and separate entity in itself,<\/p>\n
leading to a progressive promotion from First Professional to the Second<\/p>\n
Professional and thereafter Second Professional to the Third Professional, a<\/p>\n
candidate without passing the Lower Professional Examination clears the<\/p>\n
Higher Professional Examination, which is neither the intention of the<\/p>\n
Ordinances nor is it as per the Scheme formulated for the Course. Further,<\/p>\n
the Scheme of the Course as spelt out in the Ordinances is clear and<\/p>\n
unambiguous which provides for spreading of the Course into three<\/p>\n
Professionals, each being of equal duration of 1 \u00bd years as is apparent from<\/p>\n
Ordinance 4.   Distribution of the course is such that not only the theory<\/p>\n
and practical marks including the internal assessment has been provided in<\/p>\n
the Ordinances but duration for which each subject, number of lectures to be<\/p>\n
taught and practical demonstrations to be held have also been provided<\/p>\n
under the Ordinances. None of the Professionals are co-related with each
\n C.W.P.No.15852 of 2008                                   -21-<\/span><\/p>\n
other and each one is independent of the other. It is with this intention and<\/p>\n
purpose that each professional has been compartmentalized separately. They<\/p>\n
have separate subjects which are to be taught, that include theory and<\/p>\n
practicals leading to a gradual promotion of a candidate from one<\/p>\n
professional to the next professional for which passing of all the subjects of<\/p>\n
the Lower Professional is mandated to be eligible for appearance in the<\/p>\n
next Higher Professional Examination. Compulsory Internship, which has<\/p>\n
been provided under Ordinance 12 is also independent in itself as Ordinance<\/p>\n
11 (iii) clearly depicts, as it provides, that a candidate shall not be allowed<\/p>\n
to commence Internship training without passing of the subjects of the<\/p>\n
Final Professional BAMS Examination and similarly, Ordinance 12.2<\/p>\n
stipulates that a candidate shall go in for Compulsory Internship after<\/p>\n
passing Final BAMS Professional Examination which shall be of one year<\/p>\n
duration. The Scheme of the Course, therefore, requires a candidate to pass<\/p>\n
the Lower Professional Examination first, for being eligible to appear in the<\/p>\n
next Higher Professional Examination. The fourth consecutive attempt,<\/p>\n
thus, is a concession which has been granted under the Ordinance as a<\/p>\n
grace attempt to a candidate so that he may have to appear only in those<\/p>\n
subjects which he had fail to pass in that Professional Examination, failing<\/p>\n
which the candidate shall have to appear in all the subjects of the Lower<\/p>\n
Professional Examination.     In this process, it may so happen that the<\/p>\n
candidate may lose six months as he will have to sit back to clear the<\/p>\n
subjects which he had failed to pass in the Lower Professional Examination.<\/p>\n
For this, the candidate alone has to be blamed and none else as that is the<\/p>\n
result of his\/her own making which can be attributed to the candidates<\/p>\n
negligence, non-seriousness, lack of responsibility and dedication or such
\n C.W.P.No.15852 of 2008                                 -22-<\/span><\/p>\n
like reasons. The Ordinances have not been formulated to help, support and<\/p>\n
encourage such candidates.    The mandate of the Ordinances cannot be<\/p>\n
violated to avoid such a situation as the Ordinances cannot be so construed<\/p>\n
that the pure and simple language of the Ordinances as well as the purpose<\/p>\n
for which they have been enacted, stand destroyed with impunity.<\/p>\n
            In the light of the above, a candidate who although may be<\/p>\n
eligible for admission to a Higher Professional Course but would not be<\/p>\n
eligible to appear in the examination of that Higher Professional Course<\/p>\n
unless he passes all subjects of the Lower Professional Examination as<\/p>\n
mandated under the Ordinance. The four consecutive attempts which have<\/p>\n
been provided under the Ordinances to the students are grace chances to<\/p>\n
cover up the contingencies which may occur and are beyond the control of<\/p>\n
the candidate, giving him\/her ample opportunity and chance to catch up<\/p>\n
with the other batch-mates but that would      in itself not make him\/her<\/p>\n
eligible for taking the Higher Professional Examination without passing all<\/p>\n
the subjects of the Lower Professional Examination.\n<\/p>\n
            Reference, at this stage, may be made to the judgment of the<\/p>\n
Hon’ble Supreme Court in the case of Council of Homeopathic System of<\/p>\n
Medicine, Punjab and others vs. Suchintan and others<\/a>, AIR 1994<\/p>\n
Supreme Court, 1761, in support of the view we have taken wherein the<\/p>\n
Hon’ble Supreme Court in paras 25, 26, 33, 35 and 39 has held as follows:-<\/p>\n
            “25. Here again, eligibility for admission to Second D.H.M.S.<\/p>\n
            Examination is based on two conditions:<\/p>\n<\/blockquote>\n
            (i) A student has passed his First D.H.M.S. examination at the<\/p>\n
            end of one year previously. This means one year must elapse<\/p>\n
            between the passing of the first Year examination and taking of
\n C.W.P.No.15852 of 2008                                    -23-<\/span><\/p>\n
          Second Year examination.\n<\/p><\/blockquote>\n
          (ii) Subsequent to the passing the first Year,<\/p>\n<\/blockquote>\n
          (a) he must have regularly attended the courses both theoretical<\/p>\n
          and practical;\n<\/p><\/blockquote>\n
          (b) for a period of at least one year;\n<\/p><\/blockquote>\n
          (c ) to the satisfaction of the head of the college.<\/p>\n<\/blockquote>\n
          26. Thus, unless and until, these two conditions are satisfied, a<\/p>\n
          student is ineligible for admission to the Second D.H.M.S.<\/p>\n
          Examination.\n<\/p><\/blockquote>\n
          27. to 32    xxxx          xxxx          xxxx          xxxx<\/p>\n<\/blockquote>\n
          33. Supposing he passes in that subject or subjects in the<\/p>\n
          supplementary examination he is declared to have passed at the<\/p>\n
          examination as a whole. This should obviously be so; because<\/p>\n
          once he completes all the subjects, he has to necessarily be<\/p>\n
          declared to have passed. Merely on this language, “declared to<\/p>\n
          have passed at the examination as a whole”, we are unable to<\/p>\n
          understand as to how the “doctrine of relation back” could ever<\/p>\n
          be invoked. The invocation of such a doctrine leads to strange<\/p>\n
          results. When a candidate completes the subjects only in the<\/p>\n
          supplementary examination, then alone, he passes the<\/p>\n
          examination. It is that pass which is declared . If the “doctrine<\/p>\n
          of relation back” is applied, it would have the effect of deeming<\/p>\n
          to have passed in the annual examination, held at the end of 12<\/p>\n
          months, which on the face of it is untrue.<\/p>\n<\/blockquote>\n
          34.   xxxx          xxxx          xxxx          xxxx<\/p>\n<\/blockquote>\n
          35. Whatever it is, a candidate has to complete all the subjects
\n C.W.P.No.15852 of 2008                                 -24-<\/span><\/p>\n
          within four chances. Should he fail to do so, he will have to<\/p>\n
          undergo the course in all subjects for one year unless of course,<\/p>\n
          he gets the exemption as stated in proviso to Clause (viii).<\/p>\n
          Nowhere do we find in Regulation 11 ‘a system of carry<\/p>\n
          forward’. On the contrary, it is detention every year. The High<\/p>\n
          Court was moved by the fact that if a candidate were to pass in<\/p>\n
          supplementary examination after passing the examination, he<\/p>\n
          will have to remain at home till the next annual examination.<\/p>\n
          So, he is allowed to undergo a course for next academic year<\/p>\n
          provisionally. On this line of reasoning, clauses (iv) and (vi) of<\/p>\n
          Regulation 11 are sought to be “harmoniously construed”. We<\/p>\n
          are unable to accept this line of reasoning or the so-called<\/p>\n
          harmonious construction because it does violence to the<\/p>\n
          language of the Regulation. It clearly violates the mandatory<\/p>\n
          requirements of Regulation 9. It has already been noted as to<\/p>\n
          what those requirements are. To repeat:<\/p>\n<\/blockquote>\n
            (i) The lapse of one year period between the passing of First<\/p>\n
          D.H.M.S. examination.\n<\/p><\/blockquote>\n
          (ii)   Subsequent to the passing of the First D.H.M.S.<\/p>\n
          examination to undergo the course of study for one year.<\/p>\n
          Therefore, if a candidate passes in the supplementary<\/p>\n
          examination, the requirement of one year cannot be enforced.<\/p>\n
          Worse still is a case of a student who passes only at the next<\/p>\n
          annual examination. Can he be allowed to take the Second<\/p>\n
          D.H.M.S. examination without even completing the First?<\/p>\n
          Should he by chance pass the Second D.H.M.S. and not
\n C.W.P.No.15852 of 2008                                    -25-<\/span><\/p>\n
            complete the First, since he is still one more chance to take this<\/p>\n
            examination, what is to happen? The situation is absurd. The<\/p>\n
            same principle should apply to Regulation 10 where the lapse<\/p>\n
            is one and half years.\n<\/p><\/blockquote>\n
            36 to 38 xxxx             xxxx         xxxx          xxxx<\/p>\n<\/blockquote>\n
            39.     If a student were to sit idle at home after passing the<\/p>\n
            supplementary examination that is his own making. To avoid<\/p>\n
            such a situation, the Regulations cannot be construed causing<\/p>\n
            violence to the language.”<\/p><\/blockquote>\n
            The Hon’ble Supreme Court has further held that the<\/p>\n
Regulations which are plain and susceptible only to literal interpretation<\/p>\n
should be construed as it is without introducing an element of ambiguity<\/p>\n
and absurdity.\n<\/p>\n
            In the light of what has been observed by the Hon’ble Supreme<\/p>\n
Court, and as has been reproduced above, the contention of the counsel for<\/p>\n
the petitioners cannot be accepted. The Ordinances have to be given a plain<\/p>\n
and literal interpretation as the same are unambiguous and clear and admit<\/p>\n
one meaning only. If the contention of the counsel for the petitioners is<\/p>\n
accepted, that would amount to re-writing the Ordinances and their clauses,<\/p>\n
which is neither called for in the present case nor is it permissible, as they<\/p>\n
deal with and hold their own separate fields, there being no conflict or<\/p>\n
contradiction between them.\n<\/p>\n
            Full Bench of this Court in the case of Prabhoor Singh Hayer<\/p>\n
and others vs. Baba Farid University of Health Sciences and others<\/a>,<\/p>\n
2009 (1) RSJ 243, while dealing with the Regulations relating to M.B.B.S.<\/p>\n
Course, held that the general scheme of the Regulations which are intended
\n C.W.P.No.15852 of 2008                                   -26-<\/span><\/p>\n
to maintain academic standards and promote completion of Course by<\/p>\n
ensuing through satisfactory and proper attention to details as stipulated in<\/p>\n
the said Regulations     cannot be watered down.        While dealing with<\/p>\n
regulation 7.7, it was held that the said Regulation       does not regulate<\/p>\n
eligibility to appear in the Second Professional Examination. Even when a<\/p>\n
candidate has passed the supplementary examination and joins the main<\/p>\n
batch of students, he may still remain ineligible to appear in the examination<\/p>\n
if he does not satisfy other conditions for appearance in the examination as<\/p>\n
mandated by the Regulations. Where the scheme of             the Regulations<\/p>\n
requires studies to be undertaken by the students in a systematic and<\/p>\n
methodical manner, giving proper attention to each subject taught in each<\/p>\n
semester including all aspects of training programme other than lecture<\/p>\n
studies cannot be overlooked. It was further held that the eligibility to be<\/p>\n
promoted to a higher professional semester, would not make the candidate<\/p>\n
eligible to appear in the examination if the conditions mandated for such<\/p>\n
qualification are not satisfied by the candidates.\n<\/p>\n
            We have now reached a stage, in our endeavour to find a<\/p>\n
proper considered response to the question we had posed in our quest to<\/p>\n
interpret the Ordinances involved and to resolve the dispute between the<\/p>\n
conflicting views taken by the Benches of this Court which had led to the<\/p>\n
present reference to a Larger Bench, where we can conclude by an<\/p>\n
answer.\n<\/p>\n
            The basic judgment which requires consideration and which<\/p>\n
has been relied upon by the petitioners is in the case of Aseempreet<\/p>\n
Kundi’s case (supra) wherein the learned Single Judge was dealing with<\/p>\n
Ordinance 5 relating to the Bachelor of Physiotherapy Course, which reads
\n C.W.P.No.15852 of 2008                                 -27-<\/span><\/p>\n
as under:-\n<\/p>\n
                “5. First Professional B.P.T. Examination:<\/p>\n<\/blockquote>\n
                (a) xxx      xxx    xxx   xxx\n\n                (b) xxx      xxx    xxx   xxx\n\n                (c )xxx      xxx    xxx   xxx\n\n<\/pre>\n
                (d) The First Professional B.P.T. examination shall be in<\/p>\n
                the following subjects and candidate shall be required to<\/p>\n
                pass all the subjects:-\n<\/p><\/blockquote>\n
                xxx   xxx    xxx    xxx<\/p>\n<\/blockquote>\n
                (v) A candidate who fails in one or more subjects in<\/p>\n
                his\/her Ist attempt, shall be permitted to attend classes in<\/p>\n
                2nd Prof. B.P.T. course. However, if a candidate who<\/p>\n
                fails to pass all the subjects in the subsequent<\/p>\n
                examination shall be reverted to Ist Prof. B.P.T. course<\/p>\n
                forfeiting all the benefits of earlier promotion.<\/p>\n<\/blockquote>\n
                (vi) A candidate who passes in one or more subjects shall<\/p>\n
                be exempted from appearing in these subject at a<\/p>\n
                subsequent examination, but the candidate must pass the<\/p>\n
                examination in a maximum of six attempts, failing which<\/p>\n
                he\/she shall have to appear in all the subjects of the<\/p>\n
                examination.\n<\/p><\/blockquote>\n
                (vii) However, those candidate who clear all the subjects<\/p>\n
                of Ist Professional B.P.T. course in 6th attempt shall be<\/p>\n
                promoted to 2nd Prof. B.P.T. course after the declaration<\/p>\n
                of the result, and thereafter they shall have to complete<\/p>\n
                the period of one academic year of study in order to
\n C.W.P.No.15852 of 2008                                            -28-<\/span><\/p>\n
                   become        eligible    to     appear   in    2nd   Prof.   B.P.T.<\/p>\n
                   examination.\n<\/p><\/blockquote>\n
                   6. Second Professional B.P.T. Examination:<\/p>\n
                   The Second Professional B.P.T. Examination shall be<\/p>\n
                   open to a person who-\n<\/p><\/blockquote>\n
                   xxx     xxx     xxx      xxx<\/p>\n<\/blockquote>\n
                   (b) has previously passed the First Prof. B.P.T.<\/p>\n
                   examination of this University or an examination of any<\/p>\n
                   other    recognized            University\/Institution    in    India<\/p>\n
                   considered equivalent for the purpose by the University.<\/p>\n<\/blockquote>\n
                   xxxx            xxxx             xxxx”<\/p>\n
             While adopting the principle of reading down and applying the<\/p>\n
doctrine of harmonious construction, while interpreting clauses (v), (vi),<\/p>\n
(vii) of Ordinance 5 (d) and 6 (b) it was held as follows:-<\/p>\n
                   “A candidate who fails in one or more subjects in his\/her<\/p>\n
                   first attempt, shall be permitted to attend classes in 2nd<\/p>\n
                   Prof. BPT course.\n<\/p><\/blockquote>\n
                   A candidate who passes in one or more subjects shall be<\/p>\n
                   exempted from appearing in these subjects at a<\/p>\n
                   subsequent examination but the candidate must pass the<\/p>\n
                   examination in a maximum of six attempts, failing which<\/p>\n
                   he\/she shall have to appear in all the subjects of the<\/p>\n
                   examination.\n<\/p><\/blockquote>\n
                   Those candidates who had not cleared all the subjects of<\/p>\n
                   Ist Prof. BPT course and who had completed the<\/p>\n
                   academic year of studies of 2nd Prof. BPT course shall be
\n C.W.P.No.15852 of 2008                                   -29-<\/span><\/p>\n
                   eligible to appear in 2nd BPT examination and, if such<\/p>\n
                   candidates clear all the subjects of Ist Prof. BPT course<\/p>\n
                   in six attempts shall be deemed to have been regularly<\/p>\n
                   promoted to 2nd Prof.     BPT    course.     However, if a<\/p>\n
                   candidate fails to pass all the subjects of Ist Prof. in<\/p>\n
                   six attempts, then he\/she shall be reverted to Ist Prof.<\/p>\n
                   BPT course, forfeiting all the benefits of earlier<\/p>\n
                   promotion.”<\/p><\/blockquote>\n
            In Bikramjit Singh’s case (supra), the Division Bench of this<\/p>\n
Court following the judgment in the case of Aseempreet Kundi’s case<\/p>\n
(supra) has allowed the writ petition in the same terms. Similar was the<\/p>\n
position in the case of Himanshu’s case (supra) wherein the counsel for the<\/p>\n
University had proceeded to concede before the Court that the claim of the<\/p>\n
petitioners was covered by the judgments in Aseempreet Kundi’s and<\/p>\n
Bikramjit Singh’s cases (supra).     This leads us to the next judgment of<\/p>\n
this Court in the case of Parampreet Kaur and others (supra), wherein a<\/p>\n
Division Bench of this Court had granted the relief to the petitioners who<\/p>\n
were pursuing 3rd year Professional B.Sc. (Nursing) Course. As per the<\/p>\n
interim order passed by this Court, the University was directed to accept the<\/p>\n
application forms of the petitioners therein for the 3rd Year B.Sc. (Nursing)<\/p>\n
Examination. During the pendency of that writ petition, the Court was<\/p>\n
informed that the application forms of the petitioners to appear in the annual<\/p>\n
examination for the 3rd Year had been accepted by the University and in<\/p>\n
view of the admitted position, that all the petitioners continued    to attend<\/p>\n
the classes for the 3rd Year throughout and had also cleared their 2nd Year<\/p>\n
Annual Examination by appearing in the supplementary examination and
\n C.W.P.No.15852 of 2008                                   -30-<\/span><\/p>\n
they fulfilled all the conditions as laid down in the Regulation of the<\/p>\n
Ordinance, the University was, directed to regularize the admission forms<\/p>\n
submitted by the petitioners to appear in the annual examination of the 3rd<\/p>\n
Year Bachelor of Science (Nursing) Course.\n<\/p>\n
             The above position leads us to a situation where none of the<\/p>\n
judgments rendered by the above-mentioned Division Benches of this Court<\/p>\n
was on consideration of the merits on the case or of the Ordinances<\/p>\n
applicable to the examinations for which the petitioners were craving<\/p>\n
indulgence to appear in. In all the Division Bench decisions referred to<\/p>\n
above, the orders were passed on the basis of the concession given by the<\/p>\n
counsel appearing for the respondents.          The only judgment which<\/p>\n
considered and interpreted the Ordinances was a judgment of this Court in<\/p>\n
the case of Aseempreet Kundi’s case (supra). The said judgment was<\/p>\n
rendered by the learned Single Judge interpreting the Ordinances as they<\/p>\n
stood at that time. It has been brought to the notice of this Court during the<\/p>\n
course of hearing of the case by the learned counsel for the respondent-<\/p>\n
University that the said Ordinances and clauses stand amended. So much<\/p>\n
so, clause (vii) of Ordinance 5(d) which was the real offending clause<\/p>\n
which led to the passing of that judgment at that stage stands deleted. The<\/p>\n
present prevailing Ordinances relating to Bachelor of Physiotherapy (BPT)<\/p>\n
has been supplied to us. In view of the amendment and deletion of the<\/p>\n
offending clauses of the Ordinances, the ratio as laid down in this case<\/p>\n
cannot be made applicable now when considered in the light of the<\/p>\n
Ordinances prevailing at present. In any case,     the Ordinances       under<\/p>\n
consideration before     the learned Single Judge in Aseempreet Kundi’s<\/p>\n
case (supra) are not pari materia with the Ordinances which are being
\n C.W.P.No.15852 of 2008                                 -31-<\/span><\/p>\n
considered in the present cases and further, those Ordinances which were<\/p>\n
under consideration in the said case related to Bachelor of Physiotherapy<\/p>\n
(BPT) whereas the present cases relate to the Ordinances which are dealing<\/p>\n
with the Bachelor of Ayurvedic Medicine and Surgery and Bachelor of<\/p>\n
Science   in Nursing ( 4 Years’ ) Degree Programme, which have no<\/p>\n
semblance or connection with each other. No similarity has, thus, been<\/p>\n
found between the two, which would have any bearing on the present cases.<\/p>\n
Yet another aspect which renders the veracity of these judgments as regards<\/p>\n
they being good in law is that in none of these cases the judgment of the<\/p>\n
Hon’ble Supreme Court in Suchintan’s case (supra) been considered, this<\/p>\n
for the reason that the said judgment was not brought to the notice of the<\/p>\n
Court. Had it been otherwise, the decisions would have been different.<\/p>\n
            For the reasons stated above, the judgment rendered in<\/p>\n
Aseempreet Kundi’s case, (supra) does not hold the field. The Division<\/p>\n
Bench judgments as rendered in Bikramjit Singh’s, Himanshu’s and<\/p>\n
Parampreet Kaur’s cases (supra), since were based on concessions of the<\/p>\n
counsel for the respondents without going into the merits of the case or the<\/p>\n
Ordinances dealing with the Course in question, do not lay down any law<\/p>\n
which has any binding effect.\n<\/p>\n
            Now coming to the Division Bench judgment of this Court in<\/p>\n
Tarun Mohan’s case, (supra) where this Court while dealing with<\/p>\n
Ordinance 10 (iii) relating to Bachelor of Ayurvedic Medicine and Surgery<\/p>\n
had held that a candidate could not claim a right to appear in the 3rd<\/p>\n
professional examination without passing all subjects of            the 2nd<\/p>\n
professional examination as required under Ordinance 10 (iii). The view<\/p>\n
taken by this Division Bench is the same to the conclusion which we have
\n C.W.P.No.15852 of 2008                                   -32-<\/span><\/p>\n
reached above. We, therefore, approve the same by holding that it lays<\/p>\n
down the correct law.\n<\/p>\n
            Conflicting views taken by the Benches having been resolved<\/p>\n
as above, the answer to the question has to be in the negative, as we have,<\/p>\n
on analysis of the Ordinances, come to a conclusion that the eligibility to<\/p>\n
join the next Higher Professional is separate and distinct from being eligible<\/p>\n
to appear in that Higher Professional Examination as they are two different<\/p>\n
conditions and stages of the Course, independent of each other with no co-<\/p>\n
relation amongst them, each providing for its own separate eligibility<\/p>\n
conditions, which a candidate is required to fulfill to avail access to such<\/p>\n
condition\/stage. Thus, a candidate who has failed in one or more subjects in<\/p>\n
the Earlier Professional Examination and who has been permitted to attend<\/p>\n
classes in the Higher Professional Course as per the Ordinance, although<\/p>\n
having completed the period of study for the said Higher Professional<\/p>\n
Course, cannot be allowed to take the examination of the Higher<\/p>\n
Professional Course without passing in all subjects of            the Lower<\/p>\n
Professional Examination irrespective of the fact that the attempts provided<\/p>\n
for clearing the Lower Professional Examination are still available and have<\/p>\n
not been exhausted by the candidate.\n<\/p>\n
            In view of the above, we do not find any merit in Civil Writ<\/p>\n
Petitions No.15852 of 2008, 15857 of 2008, 16047 of 2008, 16052 of 2008,<\/p>\n
16056 of 2008, 16124 of 2008, 16205 of 2008, 16558 of 2008, 16559 of<\/p>\n
2008, 16809 of 2008, 5762 of 2009, 6513 of 2009 and 6703 of 2009<\/p>\n
preferred by the students of Bachelor of Ayurvedic Medicine and Surgery<\/p>\n
and dismiss the same.\n<\/p>\n
            In the light of the above position in law, we proceed to examine
\n C.W.P.No.15852 of 2008                                     -33-<\/span><\/p>\n
the Ordinances dealing with Bachelor of Science in Nursing (4 years’)<\/p>\n
Degree Programme (Annual System) as applicable in C.W.P.Nos.14156 of<\/p>\n
2008 Charanjeet Kaur vs. Baba Farid University of Health Sciences<\/p>\n
and<\/a> 16159 of 2008 Nisha Kalyan vs. Baba Farid University of Health<\/p>\n
Sciences<\/p>\n
           The relevant Ordinances read as follows:-\n<\/p>\n
                 ” 1. Duration:\n<\/p><\/blockquote>\n
                   The duration of the course for the degree of Bachelor<\/p>\n
                   of Science in Nursing shall be of four years including<\/p>\n
                   compulsory internship.         This course starts in July<\/p>\n
                   every year.\n<\/p><\/blockquote>\n
                   2 and 3       xxxx        xxxx          xxxx\n\n                   4. Examination:-\n\n                   4.1 The annual examination for each year shall\n\n                   ordinarily be held in the         month of May\/June on\n\n<\/pre>\n
                   such dates as may be fixed by the University. For<\/p>\n
                   failed    \/    reappear   candidates,      a     supplementary<\/p>\n
                   examination      shall    be   held   in       the   month   of<\/p>\n
                   November\/December or on such other dates as may be<\/p>\n
                   fixed by the university.          To appear in the annual<\/p>\n
                   examination candidate must have the following:<\/p>\n<\/blockquote>\n
                             i) has been on the college roll for one<\/p>\n
                             academic year preceding the examination.<\/p>\n<\/blockquote>\n
                             ii) of good character<\/p>\n<\/blockquote>\n
                             iii) of having attended not less than 75 per cent<\/p>\n
                             of lectures and practicals held in each of the
\n C.W.P.No.15852 of 2008                                   -34-<\/span><\/p>\n
                          subjects and 90 percent of clinical practicals in<\/p>\n
                          Nursing subjects in which she wishes to be<\/p>\n
                          examined; and<\/p>\n<\/blockquote>\n
                          iv) Should be medically fit.\n<\/p><\/blockquote>\n
                          v) of having secured at least 35% marks of the<\/p>\n
                          total marks fixed for internal assessment in<\/p>\n
                          each subject, separately, in order to be eligible<\/p>\n
                          to appear in all University examinations. The<\/p>\n
                          re-appear\/fail students will not be reassessed<\/p>\n
                          every time for the purpose of Internal<\/p>\n
                          Assessment and their previous score of<\/p>\n
                          assessment will be carried forward. (Amended<\/p>\n
                          by Board of Management on 11.11.2004, vide<\/p>\n
                          para 18 and on 31.11.2006, vide para 35).<\/p>\n
                          Internal Assessment should be submitted to the<\/p>\n
                          University at least two weeks before the<\/p>\n
                          commencement of theory examinations.<\/p>\n<\/blockquote>\n
                          vi) has his\/her name submitted to the<\/p>\n
                          University by the Principal of the College.<\/p>\n<\/blockquote>\n
                         4.2 to 7 xxxx         xxxx             xxxx<\/p>\n<\/blockquote>\n
                  8. Minimum Pass Marks and Promotion:-<\/p><\/blockquote>\n<\/blockquote>\n
\n
                  8.1 The minimum number of marks required to pass<\/p>\n
                  the examination shall be:-\n<\/p><\/blockquote>\n
                    a) 35 per cent in the subjects of English and<\/p>\n
                    computer which will include internal assessment.<\/p>\n<\/blockquote>\n
                    b) 50 per cent in theory in each subject other than
\n C.W.P.No.15852 of 2008                                  -35-<\/span><\/p>\n
                    English and Computer, which will include internal<\/p>\n
                    assessment.\n<\/p><\/blockquote>\n
                    c) The candidate is required to pass each theory and<\/p>\n
                    practical exams separately to be declared successful<\/p>\n
                    in that subjects.\n<\/p><\/blockquote>\n
                    8.2 A candidate who passes in one or more subjects<\/p>\n
                    shall be exempted from appearing in these subjects<\/p>\n
                    at the subsequent examinations, but he\/she must<\/p>\n
                    pass the concerned examination in a maximum of<\/p>\n
                    four attempts commencing with the first exam of<\/p>\n
                    his\/her own class failing which he\/she shall have to<\/p>\n
                    appear in all subjects of the examination.<\/p>\n
                    8.3 A candidate who fails in one or more subjects in<\/p>\n
                    his\/her first attempt in B.Sc. (Nursing) 1st\/2nd year<\/p>\n
                    examination shall be permitted to attend classes of<\/p>\n
                    next higher class. However , he\/she must pass the<\/p>\n
                    lower examination at least one term (6 months)<\/p>\n
                    before he\/she is allowed to appear in the next higher<\/p>\n
                    examination.\n<\/p><\/blockquote>\n
                    Provided that a candidate shall be allowed to join<\/p>\n
                    Internship\/4th year class only after passing all the<\/p>\n
                    subjects   of 3rd Year          B.Sc. (Nursing)      class.<\/p>\n
                    (Amended by BOM on 31.1.2006,vide para 39).<\/p>\n<\/blockquote>\n
                    9. xxxx                xxxx         xxxx\n\n                    10.     Internship\n\n                    10.1    Every       candidate     shall    undergo     the\n C.W.P.No.15852 of 2008                                   -36-<\/span>\n\n\n                        compulsory rotatory Internship in the parent\n\n<\/pre>\n
                        institution\/hospital as laid down by the Faculty of<\/p>\n
                        Nursing Science for a period of 40 weeks, after<\/p>\n
                        passing the third year examination and before being<\/p>\n
                        granted the degree. The 4th year class and internship<\/p>\n
                        shall run concurrently.\n<\/p><\/blockquote>\n
                        10.2   On successful completion of Internship as<\/p>\n
                        certified by Principal under whom the training was<\/p>\n
                        done, a candidate shall be eligible for award of<\/p>\n
                        B.Sc. (Nursing) degree.\n<\/p><\/blockquote>\n
                        10.3   xxxx         xxxx         xxxx”<\/p>\n
            A perusal of the above would show that as per Ordinance 8.3, a<\/p>\n
candidate who fails in one or more subjects in his\/her first attempt in B.Sc.<\/p>\n
(Nursing) first\/second year examination shall be permitted to attend the<\/p>\n
classes of the next higher class but would be eligible to appear in the next<\/p>\n
higher examination only when he\/she passes the Lower Examination at least<\/p>\n
one term (six months) before he\/she has to appear in the next higher<\/p>\n
examination. A proviso to this Ordinance further clarifies that a candidate<\/p>\n
shall only be allowed to join the internship\/4th year class after passing all<\/p>\n
subjects of 3rd year B.Sc. (Nursing) class. The requirement, therefore, is<\/p>\n
clear that the candidate has to pass the Lower Examination at least six<\/p>\n
months before he\/she is permitted to appear in the Higher Professional<\/p>\n
Examination and to join Internship\/4th year classes passing of all subjects of<\/p>\n
3rd year B.Sc. (Nursing) class is a must. As has been held above, the<\/p>\n
eligibility for admission to the higher class is different from eligibility to<\/p>\n
take the examination of the higher class. To be eligible to be permitted to
\n C.W.P.No.15852 of 2008                                   -37-<\/span><\/p>\n
attend the next higher class, does not necessarily entitle a candidate to be<\/p>\n
eligible to appear in the next higher examination. The requirement is<\/p>\n
different and, therefore, a candidate must be eligible to take the next higher<\/p>\n
examination by fulfilling all the conditions mandated under the Ordinance,<\/p>\n
failing which, he\/she cannot claim it as a matter of right merely because all<\/p>\n
the chances and attempts which were available to the candidate had yet not<\/p>\n
been exhausted.    It may not be out of way to mention here that the<\/p>\n
additional attempts which have been granted to the candidates are merely<\/p>\n
grace chances as the same cover the         exceptional situations where a<\/p>\n
candidate is unable to take the examinations or is unable to clear the same.<\/p>\n
            In C.W.P.No.14156 of 2008 Charanjeet Kaur vs. Baba Farid<\/p>\n
University of Health Sciences,<\/a> it is the contention of the counsel for the<\/p>\n
petitioner that the petitioner has been denied admission to 3rd year of the<\/p>\n
Course on the ground that she has not cleared 1st year examination and had<\/p>\n
also not taken the examination of the 2nd year as mandated under Ordinance<\/p>\n
8.8 of the Ordinances. The requirement having not been fulfilled by her<\/p>\n
for being eligible to take the 2nd year examination as she has not cleared the<\/p>\n
1st year examination, she had no right nor was she eligible to take the 2nd<\/p>\n
year examination and, therefore, the question of her being allowed to join 3rd<\/p>\n
year B.Sc. (Nursing) class would not arise at all. After failing to clear one<\/p>\n
or more subjects in his\/her first attempt in B.Sc. (Nursing) 1st year<\/p>\n
examination, a candidate may be granted permission to attend classes of the<\/p>\n
2nd year class, however, to take the 2nd year examination, the candidate must<\/p>\n
pass the Lower Examination at least one term (six months) before he\/she<\/p>\n
can be allowed to appear in the next Higher examination. Having failed to<\/p>\n
do so, the claim of the petitioner in the present writ petition is not
\n C.W.P.No.15852 of 2008                                      -38-<\/span><\/p>\n
sustainable and therefore, the writ petition deserves to be dismissed.<\/p>\n
Ordered accordingly.\n<\/p>\n
            As regards C.W.P.No.16159 of 2008 Nisha Kalyan vs. Baba<\/p>\n
Farid University of Health Sciences and others, it is the contention of the<\/p>\n
petitioner that she was not being allowed to take the 4th year B.Sc.(Nursing)<\/p>\n
examination to be held in the year November\/December 2008 on the ground<\/p>\n
that she had cleared her 3rd year examination held in May\/June 2008 and<\/p>\n
had not completed one academic year on the college rolls preceding the<\/p>\n
date of examination.\n<\/p>\n
            Ordinance 4.1 lays down as to when the Annual and<\/p>\n
Supplementary Examinations shall be held, it also provides for the<\/p>\n
eligibility for a candidate to appear in the Annual Examination. Clause (i)<\/p>\n
thereof provides that the candidate must have been on the college roll for<\/p>\n
one academic year preceding the Examination. A perusal of the proviso to<\/p>\n
Ordinance 8.3 would clearly show that a candidate shall be allowed to join<\/p>\n
internship\/4th year class only after passing of 3rd year B.Sc. (Nursing) class<\/p>\n
meaning thereby that the general rule for permitting a candidate to attend<\/p>\n
classes of next higher class even if a candidate fails in one or more subjects<\/p>\n
in his\/her first attempt would not apply. Further, this permission is only<\/p>\n
applicable to 1st and 2nd year examinations only.      Ordinance 10 clearly<\/p>\n
spells out Internship and 10.1 thereof states that every candidate shall<\/p>\n
undergo Compulsory Rotation Internship in the parent institution\/hospital as<\/p>\n
laid down by the Faculty of Nursing Science for a period of 40 weeks, after<\/p>\n
passing the Third Year Examination and before being granted the degree.<\/p>\n
The 4th year class and Internship shall run concurrently.<\/p>\n
            From a conjoint reading of Ordinance 4.1 (i), 8.3 and 10.1 it is
\n C.W.P.No.15852 of 2008                                   -39-<\/span><\/p>\n
clearly spelt out that a candidate will only be allowed to join Internship\/4th<\/p>\n
year class after passing all subjects of 3rd year B.Sc. (Nursing) class. The<\/p>\n
petitioner has not fulfilled this condition. Ordinance 4.1 (i) comes into play<\/p>\n
only after the petitioner had passed all subjects of 3rd year B.Sc. (Nursing)<\/p>\n
class. She having not completed one academic year on the college rolls and,<\/p>\n
thus, having not fulfilled the eligibility condition as provided under the<\/p>\n
Ordinance for being eligible to to take the examination, no fault can be<\/p>\n
found with the action of the University in not allowing the petitioners to<\/p>\n
take the 4th year examination.\n<\/p>\n
            Finding no merit in the present writ petition, the same also<\/p>\n
deserves to be dismissed. Ordered accordingly.<\/p>\n
\n\n\n\n\n(T.S.Thakur)             (Jasbir Singh)          (Augustine George Masih)\nChief Justice                Judge                       Judge\n\nJuly 10, 2009\npoonam\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court C.W.P.No.15852 Of 2008 vs Baba Farid University Of Health … on 10 July, 2009 C.W.P.No.15852 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No. 15852 of 2008 Date of Decision:- 10.07.2009 1. C.W.P.No.15852 of 2008 Jasdeep Singh …..Petitioner(s) vs. Baba Farid University of Health Sciences ….Respondent(s) 2. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-148448","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nC.W.P.No.15852 Of 2008 vs Baba Farid University Of Health ... on 10 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-w-p-no-15852-of-2008-vs-baba-farid-university-of-health-on-10-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.W.P.No.15852 Of 2008 vs Baba Farid University Of Health ... on 10 July, 2009 - 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