# Gaurav Pratap Singh & Ors v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-27
- **Case number:** Civil Misc. Writ Petition No. 42676 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-pratap-singh-ors-v-state-of-u-p-ors-42930
- **Pages:** 6

## Headnote

C.S.C., Sri Vivek Kumar

Graduate Medical Education Regulations
1997-Regulation-7(1), 7(5), 7(7)-petitioner
passed
supplementary
examinationseeking direction the principle to treat them
in main batch student without loss of yearheld-unless criteria fixed under regulation
fulfilled-can not be allowed to join second
semester
along
with
main
batch-no
mandamus can be issued against statutepetition dismissed.

Held: Para-12 & 13

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
each therein and any order beyond this
will be without jurisdiction. Thereafter it
will be open for the parties to file a suit
for partition for demarcation of their
respective shares by metes and bounds on
the spot before the competent court.

10. Accordingly and subject to the
observations/directions above, the writ
petition is allowed and the impugned
orders dated 2.5.2014, 23.6.2011 and
14.9.2010 are quashed and the matter is
remanded to the Consolidation Officer to
record the names of the parties over chak
no. 293, showing their share therein to be
1/2 each.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 42676 of 2014

Gaurav Pratap Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Vivek Kumar

Graduate Medical Education Regulations
1997-Regulation-7(1), 7(5), 7(7)-petitioner
passed
supplementary
examinationseeking direction the principle to treat them
in main batch student without loss of yearheld-unless criteria fixed under regulation
fulfilled-can not be allowed to join second
semester
along
with
main
batch-no
mandamus can be issued against statutepetition dismissed.

Held: Para-12 & 13
12. We are in respectful agreement with
the judgment of the Division Bench. The
judgment of the Division Bench has also
been followed in a judgment of a learned
Single Judge of this Court by one of us
(Hon'ble Dilip Gupta, J) in Arvind Gautam
& 13 Ors., Vs. State of U.P. & Ors., 2.

13. For these reasons, we are unable to
grant
the
reliefs
sought
in
these
proceedings. If the petitioners have duly
passed the First Professional Examination,
they would necessarily have to abide by the
discipline of the Regulations in so far as the
completion
of
the
requirements
for
appearing at the Second Professional
Examination
are
concerned
and
even
thereafter.

Case Law discussed:
1986 UPLBEC 540; Writ C 20422 of 2009 decided
on 1 September 2009.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The petitioners appeared for the
medical entrance examination and were
admitted for the MBBS Degree Course at
S.N.
Medical
College,
Agra.
The
petitioners duly completed the first and
the second semester course for the First
Professional
Examination.
The
First
Professional examination was held in the
months of October and November 2013.
When the results were declared on 20
February 2014, each of the petitioners
was declared to have failed in at least one
paper. A supplementary examination was
held between 29 May and 28 June 2014.
The results were declared on 23 July 2014
and it is stated that all the petitioners have
duly passed the examination. The reason
why the petitioners have moved this Court
under Article 226 of the Constitution is
that the academic authorities are treating
them as constituting a batch separate from
2 All]. Gaurav Pratap Singh & Ors. Vs. State of U.P. & Ors.
1023
the main batch of the Second Professional
Course
which,
according
to
the
petitioners, would affect their eligibility to
appear
in
the
Second
Professional
Examination scheduled to be held in the
months of May and June 2015.

2.

Accordingly,
in
these
proceedings, the following reliefs are
sought:-

"(a) a writ, order, or direction of a
suitable nature commanding the respondents
to treat the petitioners as students of the main
batch of Second Professional Course in
MBBS at S.N. Medical College, Agra, on the
basis of their success in the supplementary
examination of First Professional Course in
terms of Regulation 7(7) of "Regulations on
Graduate
Medical
Education
1997"
(Annexure No.3);

(b) a writ, order or direction of a
suitable nature commanding the respondents
not to treat the petitioners as belonging to a
batch other than the main batch of Second
Professional Course in MBBS course at S.N.
Medical College, Agra."

3. Before we summarize the
submissions which have been urged by
the learned Senior Counsel appearing for
the petitioners and the learned Standing
Counsel, it would be necessary for the
Court to refer to the relevant provisions of
the Regulations which have been framed
on Graduate Medical Education by the
Medical Council of India under Section
33 of the Indian Medical Council Act,
1956. These Regulations, which are called
the Regulations on Graduate Medical
Education, 1997 inter alia contain certain
provisions which are relevant to the
controversy. Regulation 7(1) provides as
follows:

"7.
Training
Period
and
Time
Distribution

(1) Every student shall undergo a
period of certified study extending over
41⁄2 academic years divided into 9
semesters (i.e. of 6 months each) from the
date of commencement of his study for
the subjects comprising the medical
curriculum to the date of completion of
the examination and followed by one year
compulsory rotating internship. Each
semester will consist of approximately
120 teaching days of 8 hours each college
working time, including one hour at
lunch."

4. The period of 41⁄2 years for the
MBBS Degree Course is divided into
Phase-I which consists of two semesters
and Phase-II which consists of three
semesters. Regulation 7(7), prior to its
amendment on 19 April 2010, provided as
follows:

"(7).
Supplementary
examination
may be conducted within 6 months so that
the students who pass can join the main
batch and the failed students will have to
appear in the subsequent year."

5. On 19 April 2010, Regulation 7(7)
was amended by the Regulations on
Graduate Medical Education (Amendment),
2010. The amended Regulation 7(7) provides
as follows:-

"7(7).
The
supplementary
examination for 1st Professional MBBS
examination may be conducted within 6
months so that the students who pass can
join the main batch and the failed students
will have to appear in the subsequent year
provided that the students who pass the
supplementary examination shall be allowed
to appear in the second professional MBBS
examination only after he/she completes the
full course of study of three semesters (i.e. 18
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
months) for the second professional MBBS
examination irrespective of the examination
of the main batch."

6. Now it is in this background that
the
submissions
of
learned
Senior
Counsel for the petitioners would have to
be noticed. On behalf of the petitioners, it
has been submitted that: (i) under
Regulation 7(7) it is contemplated that the
supplementary examination for the First
Professional MBBS Examination should
be conducted within six months so that
students who pass the examination can
join the main batch; (ii) Regulation 7 (1)
provides that each semester will consist of
approximately 120 teaching days of 8
hours each and Regulation 7(5) stipulates
that didactic lectures should not exceed
one third of the time schedule; (iii) if
these Regulations are read together, the
intent appears to be that the result of a
supplementary examination should be
declared upon the examination being
conducted within six months so that
students who had failed earlier but had
passed the supplementary examination
can join the main batch without the loss of
a year; (iv) the petitioners should, in the
circumstances, be allowed to pursue their
studies for the Second Professional
Examination together with the other
students who had passed the First
Professional Examination in the first
attempt and be permitted to appear at the
said examination with their batch so as to
obviate a loss of time.

7. As we construe the Regulations, it
must at the outset be understood that the
purpose and object of Regulation 7 is to
ensure that a student undergoes a specified
period of certified study which would truly
equip the student in becoming a qualified
medical professional. It is in that perspective
that the Regulations prescribe the total
duration of study; its division into semesters;
the duration of each semester and the
contents of the course of studies during a
semester. Regulation 7(1) prescribes that
every student must undergo a period of
certified study which extends over 41⁄2
academic years which are divided into 9
semesters, each of 6 months. Consequently,
the clear requirement is that each semester
should be over a period of six months.
Regulation
7(1)
then
provides
an
approximation of 120 days of teaching, each
of eight hours, within a semester. The use of
the expression "approximately" is suggestive
of the fact that the requirement of 120
teaching days is subject to a minor variation
but, so that the main purpose of the provision
is not ignored. Regulation 7(7), as amended,
provides
an
additional
facility
of
a
supplementary examination for students who
have appeared at the First Professional
MBBS examination. But for such a facility, a
student having once failed would not be
entitled to appear or claim the benefit of a
supplementary examination and would have
to appear in the normal course in the
examination held in the subsequent year for
the First Professional MBBS students.
However, the said Regulation grants a
facility of allowing students of the First
Professional MBBS Examination a chance to
appear in the supplementary examination,
and
it
has
been
stipulated
that
a
supplementary
examination
should
be
conducted within six months in order to give
a chance to the students to pass the
examination and to join the main batch.
However, the proviso to Regulation 7(7)
clearly indicates that this is subject to the
overriding requirement that a student who
passes the supplementary examination would
be allowed to appear in the Second
Professional MBBS Examination only after
completing the full course of study of three
2 All]. Gaurav Pratap Singh & Ors. Vs. State of U.P. & Ors.
1025
semesters of 18 months, irrespective of the
examination of the main batch. Regulation
7(7), therefore, leaves no manner of doubt
that a facility is granted to students for
appearing in the supplementary examination
and an effort should be made to ensure the
holding of the supplementary examination
within six months' so as to allow the students
to join the main batch upon passing the
examination. The use of the word 'may' is
indicative of the position that the holding of a
supplementary
examination
within
six
months' is a desired goal so that students who
pass it can join the main batch. But, this is
subject to the overriding condition that such
students must complete a full course of study
of three semesters spread over eighteen
months' irrespective of the examination of
the main batch. The student must complete
the academic requirements before entering
upon the second professional examination.

8. In view of the clear stipulation
contained in Regulation 7(7), it would not
be open to the Court to issue a mandamus,
the effect of which would be to dilute the
prescription contained in Regulation 7(7)
that before a student can be allowed to
appear
in
the
Second
Professional
Examination, a full course of study spread
over three semesters of eighteen months'
duration
must
be
completed.
This
requirement cannot be diluted by taking
recourse to the provisions of Regulation
7(1) in so far as they provide that each
semester will consist approximately of
120 teaching days of 8 hours each,
thereby reducing the number of months
for the completion of the semester from
six months to four months. That would be
impermissible.

9. Moreover, the reference in
Regulation 7(1) is to 120 teaching days.
Obviously, neither the academic authorities
nor the teaching faculty can be compelled to
teach students without availing of the normal
holidays and days of break. Be that as it may,
we are of the view that under Article 226 of
the Constitution, the High Court should not
adopt any interpretation which would dilute
the observance of standards for professional
education. Moreover, in the present case, the
plain and literal meaning of the Regulation is
clear and is not ambiguous so as to call for
any interpretational exercise.

10. A judgment of a Division Bench
of this Court can be referred to at this
stage, though we are conscious that in
1986 when this decision was rendered, the
Regulations of 1997 were not in force.
However, we consider it appropriate to
refer to the decision to indicate the
approach of the Court in a similar case
and since the principles which have been
laid down therein can be adopted in the
situation which has arisen in the present
case. In Vinod Kumar & Ors., Vs.
Principal G.S.V.M. Medical College,
Kanpur 1 a group of students failed in the
First Professional MBBS Examination
and appeared in the supplementary
examination held six months later in
which they were successful. The students
approached the High Court with a case
that they may also be permitted to appear
in the examination along with their batchmates
who
had
passed
the
First
Professional Examination in the first
attempt. A writ of mandamus was sought
to the Principal of the Medical College to
accede to the request. The petition was
contested on the ground that under the
recommendations of the Medical Council
of India the duration of the MBBS Course
is of 41⁄2 years, which is divided into three
professional
examinations
to
be
conducted at an interval of 11⁄2 years and
after
passing
the
first
professional
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
examination a student has to undergo
three years' training in paraclinical and
clinical subjects.

11. The Division Bench, while
declining to accede to the prayer before
the Court by the students, held as
follows:-

"5. We find it difficult to accept the
argument advanced on behalf of the
petitioners. The statutory provisions have to
be interpreted according to the normal and
well known rules of interpretation of statutes.
To accept the argument of the petitioners'
learned counsel is to altogether over look and
eliminate from consideration, the provisions
relating to the duration of studies intervening
the first professional examination and the
second professional examination. This is
obviously neither possible nor proper for this
Court to do. The subject matter of
controversy relates to the field of Medical
Education and the two conditions, though
inter related in a way, are surely distinct and
separate. Both the conditions have been laid
down as statutory conditions in the form of
statutes of the University on the basis of the
recommendations of the Medical Council of
India which as the statutory body entrusted
with the task of regulation and maintenance
of requisite standards of Medical Education.
Courses of studies in a Medical College are
conducted in a regulated systematic manner
laying down the number of the classes to be
taken daily weekly subjectwise involving
various teachers, teaching hours, holidays
including periodical vacations etc. This has
relevance to the relationship with the
requirements and regulation of work load
connected also with the maintenance of the
efficiency and convenience of the teachers
and other connected staff. To compel the
Medical College Authorities to arrange the
special classes would entail obvious practical
difficulties
besides
involving
noncompliance of the statutory provision.

6. Learned counsel for the petitioners
has failed to satisfy us as to the existence
of any legal rights involved in favour of
the petitioners; in fact this is not a case
where invasion of any legal rights of the
petitioners or breach of any statutory
requirements is involved: what is sought
in the other hand is that Principal of
Medical College may be directed to act
against the statutory requirements which
he
as
important
academic
and
administrative functionary is expected and
required to enforce and carry out. No
mandamus can be issued to direct the
Principal to act against the law which he
is bound to obey and carry out. If the
petitioners cannot appear at the second
professional examination alongwith their
original batchmates it is because of
something accountable to them because
they failed in some of the subjects at the
first professional examination and as a
result could not attend the classes
alongwith their batchmates from the very
beginning of the course of studies for the
second professional examination."

12. We are in respectful agreement
with the judgment of the Division Bench.
The judgment of the Division Bench has
also been followed in a judgment of a
learned Single Judge of this Court by one
of us (Hon'ble Dilip Gupta, J) in Arvind
Gautam & 13 Ors., Vs. State of U.P. &
Ors., 2.

13. For these reasons, we are unable
to grant the reliefs sought in these
proceedings. If the petitioners have duly
passed the First Professional Examination,
they would necessarily have to abide by
the discipline of the Regulations in so far
2 All]. Smt. Ina Varshney & Ors. Vs. State of U.P. & Ors.
1027
as the completion of the requirements for
appearing at the Second Professional
Examination are concerned and even
thereafter.

14. The petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2014

BEFORE
THE HON'BLE AMRESWAR PRATAP SAHI, J.
THR HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 43918 of 2014

Smt. Ina Varshney & Ors. .Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar Singh, Sri Ajay Kumar
Singh

Counsel for the Respondents:
C.S.C.; Sri B. Dayal

Constitution of India, Art.-226- Writ
Jurisdiction-Alternative
Remedy-no
absolute bar-where principle of Natural
Justice violated-remedy to appeal-not
come in way-petition allowed.

Held: Para-7 & 8
7. We are satisfied that the aforesaid
order dated 21.11.2014 has been passed
without affording any opportunity of
hearing to the petitioners and without
any opportunity to rebut the report
dated
20.5.2014.
The
report
was
obtained a day earlier and the order was
passed
the
following
day
without
information to the petitioner.

8. In view of the aforesaid, we are not
inclined to relegate the petitioners to the
alternative remedy and in the facts and
circumstances of the case, the aforesaid
order dated 21.5.2014 is hereby set aside
leaving it open to the Vice-Chairman,
Meerut Development Authority, Meerut to
pass
a
fresh
order
after
affording
opportunity of hearing to the petitioners
preferably within a period of three months,
from the date of production of a certified
copy of this order.

Case Law discussed:
1998(9) SCC 1; 2010 (3) SCC 732; 2009 (1)
AWC 566.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioners, learned Standing Counsel for
the State and Sri B. Dayal, learned counsel
appears for the Meerut Development
Authority.

2. The present petition has been filed
challenging the order dated 21.5.2014,
passed by the Vice-Chairman, Meerut
Development Authority, Meerut rejecting
the
representation
of
the
petitioner
regarding sanction of map.

3. At the very outset, Sri B. Dayal,
learned counsel for the Development
Authority, takes a preliminary objection
that the petitioners have a statutory
remedy of filing an appeal and as such the
petition is liable to be dismissed on the
ground of alternative remedy.

4. In reply to the aforesaid
prelimianry objection, learned counsel for
the petitioners has placed reliance on
various decisions of the Hon'ble Apex
Court to assert that alternative remedy is
not an absolute bar and in case of
violation of principles of natural justice,
the petitioner shall not be relegated to the
alternative remedy. He has placed reliance
on the decision of the Apex Court in the