Allowed

Dinesh Kumar v. the Registrar, Dr. S.R. Rajasthan Ayurved University

Rajasthan HC25 May 2023CW/3576/2023

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions seeking directions to the University to allow petitioners to appear in remaining B.H.M.S. II Year subjects. The Court distinguished a coordinate bench judgment (Shipra Sharma) as facts differed, holding that pending practical papers in 2020 brought petitioners within the ambit of the National Commission for Homeopathy circular permitting extra attempts.

What did the court decide?

Director towards respondents to permit the petitioners to appear in B.H.M.S. II Year Examination for remaining subjects and apply the National Commission for Homeopathy circular dated 25.02.2022.

Dinesh Kumar Vs the Registrar, Dr. S.R. Rajasthan… — Education and Admissions | Rajasthan HC (2023)

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[2023/RJJD/017346]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 3655/2023

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Patni Meman Mahammad Ajeem S/o Shri Inayat Husen, Aged About 25 Years, R/o Taybah Masjid, Sanjarnagar, Panpur Patiya, Savgadh Sabarkantha, Himmatnagar, Gujarat 383220

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----Petitioner

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Versus

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The Registrar, Dr. S. R. Rajasthan Ayurved University, Karwar, Nagaur Road, Jodhpur Through Its Registrar At Jodhpur.

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The Controller Of Examination, Dr. S. R. Rajasthan Ayurved University, Karwar, Nagaur Road, Jodhpur.

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The Principal, M. N. Homeopathic Medical College And Research Institute, Jodhpur, By-Pass, Near Sahara City, Bikaner.

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The Secretary, Central Council Of Homeopathy, Jawahar Lal Nehru Bhartiya Chikitsa Avum Homeopathy Anusandhan Bhawan, 61/65, V Vi Institutional Area, Opposite D Block, Janakpuri, New Delhi.

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 3576/2023

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Dinesh Kumar S/o Shri Aja Ram, Aged About 28 Years, R/o A.c.f.c. Colony Jodhpur.

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----Petitioner

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Versus

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The Registrar, Dr. S.r. Rajasthan Ayurved University, Karwar, Nagaur Road, Jodhpur Through Its Registrar At Jodhpur.

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The Controller Of Examination, Dr. S. R. Rajasthan Ayurved University, Karwar, Nagaur Road, Jodhpur.

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The Principal, M. N. Homeopathic Medical College And Research Institute, Jodhpur By Pass, Near Sahara City, Bikaner.

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The Secretary, Central Council Of Homeopathy, Jawahar Lal Nehru Bhartiya Chikitsa Avum Homeopathy Anusandhan Bhawan, 61/65, V Vi Floor Institutional Area,

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Opposite D Block, Janakpuri, New Delhi.

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----Respondents

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For Petitioner(s)	:	Mr. Lalit Parihar a/w
		Ms. Savita Panwar & Mr.Kamal Jeet
		Meena
For Respondent(s)	:	Mr. Suniel Purohit

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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25/05/2023

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These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clause is being taken from the case being S.B. Civil Writ Petition No.3655/2023:-

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"I. the present writ petition filed by the petitioner may kindly be allowed.

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II. the impugned inaction on the part of the Respondentauthorities in not considering the case of the petitioner and thereby denying him opportunity / chance to appear in the remaining two subjects i.e. Organon and Homeopathy Philosophy (Organon of Medicine) (H-2005) of B.H.M.S. II year may kindly be declared illegal and accordingly, be discarded; and

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III. the Respondent authorities may kindly be directed to extend same treatment to the petitioner by granting opportunity / chance to appear in attempt examination for remaining two subjects of B.H.M.S. II year as has been granted in the cases of similarly situated other students and accordingly, accept the online / offline examination form of the petitioner and permit him to appear in remaining two subjects of B.H.M.S. II Year in the forthcoming Second Year Examination - 2023, which

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is scheduled to be commence on 22.03.2023 to 27.03.2023 respectively."

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Learned counsel for the petitioners (in SBCWP No.3655/2023) submits that, the petitioner is seeking a direction from the respondent University to grant opportunity to appear in the remaining two subjects of Homeopathy Materia Medica (H2004) & Organon and Homeopathy Philosophy (Organon of Medicine) (H-2005) (B.H.M.S.) Second Year Examination -2023, which were scheduled to be commenced from 22.03.2023.

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2.1. Learned counsel for the petitioners (in SBCWP No.3576/2023) submits that, the petitioner is seeking a direction from the respondent University to grant opportunity to appear in the remaining one subject of Homeopathy Materia Medica (H2004) (B.H.M.S.) Second Year Examination -2023, which was scheduled to be commenced from 22.03.2023.

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Vide order dated 20.03.2023, this Court had passed the following interim order in S.B. Civil Writ Petition No.3655/2023:-

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"Learned counsel appearing on behalf of the petitioner has shown the order dated 14.03.2023 passed by a coordinate Bench of this Hon’ble Court in Dinesh Kumar Vs. The Registrar, Dr. S.R. Rajasthan Ayurved University & Ors. : S.B. Civil Writ Petition No.3576/2023 and prays that the same order may kindly be passed in favour of the present petitioner. Hence, identical order is being passed herein.

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“Heard.

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It is submitted by the petitioner with reference to communication (Annex.P/9) that he had failed in fifth attempt in BHMS 2nd Year, result whereof was declared on 03.06.2020.

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For seeking further attempt, the petitioner approached this Court by filing SBCWP No.7149/2020,

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which petition came to be dismissed on 25.02.2021 on account of sub-Clause (iv) of Regulation 11 of BHMS Degree Regulation, 2015.

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However, subsequent thereto on 25.02.2022, the National Commission for Homeopathy vide Annex.P/8 has taken a decision that the student of any year of BHMS, who couldn’t pass the examination in one or more more subjects during the years 2020 and 2021, as per specified number of the maximum attempts and duration, shall be allowed three extra chances over and above, including mercy chance and therefore, the petitioner is entitled to chance(s) in terms of said Circular dated 25.02.2022.

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Copy of petition has been served on Legal Assistant appearing on behalf of University, who prays for and is granted time to file reply.

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List the petition on 05.04.2023.

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In the meanwhile and until further orders, the respondent University is directed to permit the petitioner to appear in B.H.M.S. 2nd Year Examination for his remaining subjects scheduled to commence from 22.03.2023. However, the result of the petitioner shall not be declared, which shall remain subject to the final outcome of the present writ petition.

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It would be open for the respondents to seek vacation of the interim order after filing reply to the writ petition.”

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List along with S.B. Civil Writ Petition No.3576/2023.

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In the meanwhile and until further orders, the respondent University is directed to permit the petitioner to appear in B.H.M.S. 2nd Year Examination for his remaining subjects scheduled to commence from 22.03.2023 and 27.03.2023. However, the result of the petitioner shall not be declared, which shall remain subject to the final outcome of the present writ petition. It would be open for the respondents to seek vacation of the interim order after filing reply to the writ petition. "

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Learned counsel for the petitioner further submits that though as per the sub-clause (iv) of Regulation 11 of BHMS Degree Regulation, 2015, the petitioners were not entitled for any more attempt, but there is a circular dated 25.02.2022, which

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issued by National Commission for Homoeopathy, which give following material direction :-

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"Commission considered this unprecedented situation of Covid-19 pandemic and decided that students of any year of BHMS, who could not pass examination in one or more subjects during year 2020 & 2021, as per specified number of maximum attempts and duration, shall be allowed 03 extra chances over & above including mercy chance."

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Learned counsel for the petitioner thus, submits that the aforementioned circular dated 25.02.2022 issued by the National Commission for Homeopathy shall apply upon the present petitioners, as the some papers of the petitioners were remaining to be completed in year 2020; the same fact is also evident from the Annex.P/4 of the petition.

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Learned counsel for the respondent vehemently submits that the controversy is squarely covered by the judgment rendered by a coordinate Bench at Jaipur Bench in the case of Shipra Sharma

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& Anr. Vs. Central Council of Homoeopathy & Ors. (S.B.

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Civil Writ Petition No.8437/2020), decided on 27.08.2022; relevant portion reads as under :-

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"Heard. Considered.

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Indisputably, the petitioners have already exhausted all their chances including the mercy chance to clear the BHMS Fourth Year Examination as permissible under the Homeopathy (Degree Course) Regulations, 1983. The petitioners cannot be extended benefit of extra chance under the directions of the National Commission for Homeopathy dated 25.02.2022 inasmuch as the same has been extended to those students only who could not pass the examination in one or more subjects during the year 2020 & 2021 in view of the Covid-19

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situation. Undeniably, the petitioners have failed to pass the BHMS Fourth Year Examination in their last attempt in the year 2019 and they did not appear in any examination/subject during the year 2020 & 2021. In these circumstances, the petitioners are not entitled for any extra chance over and above including mercy chance in terms of direction dated 25.02.2022. Accordingly, the writ petition is dismissed being devoid of merit. The pending application No.2/2022 also stands disposed of accordingly "

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Learned counsel for the respondent further submits that the petitioner's main examination had happened in year 2019, and in accordance with law and the judgment rendered by Jaipur Bench of this Court, the petitioners are not entitled for any further chances to clear the BHMS Second Year Examination.

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After hearing learned counsel for the parties and perusing the record of the case as well as the judgment cited by learned counsel for the respondent, this Court is of the firm opinion that judgment cited by learned counsel for the respondent is not applicable in the present case, because the Commission, being statutory body in its own wisdom, has made a circular dated 25.02.2022, which says that even if one examination is pending during year 2020 and 2021, then three extra chances should be given to the candidates.

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8.1 It is an admitted position that in the case of Shipra Sharma (supra) , the petitioner had taken up all his examinations in year 2019 itself; in the present case, learned counsel for the petitioner has demonstrated from the schedule annexed, which is Annex.P/4 that the practical examination papers were conducted from 02.01.2020 to 05.01.2020; on a mere perusal of Annex.P/4 of the

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petition, the schedule of the practical examinations, which is not denied by learned counsel for the respondent, this Court comes to the conclusion that the petitioners' part examinations took place in year 2020, thus bringing the petitioners within the ambit of the further consideration in accordance with the circular issued by the National Commission for Homeopathy, New Delhi.

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In light of the aforesaid observations, the present writ petitions are allowed and the respondents are directed to give the benefit of the circular dated 25.02.2022 (Annex.P/8) issued by the National Commission for Homeopathy, New Delhi to the petitioners in regard to the subject of Homeopathy Materia Medica (H-2004) & Organon and Homeopathy Philosophy (Organon of Medicine) (H2005) (in SBCWP No.3655/2023) and the subject of Homeopathy Materia Medica (H-2004) (in SBCWP No.3576/2023), taking into account Annex.P/4 (in both writ petitions), which is the pertaining to the examination held in the year 2020, while distinguishing the case of present petitioners from the case of Shipra Sharma (supra) and bringing the petitioners herein within the ambit of further consideration in light of the circular dated 25.02.2022. Thus, the circular dated 25.02.2022 shall be strictly made applicable upon the present petitioners also and accordingly, the petitioners shall be entitled for three more chances for clear the BHMS Second Year Examination.

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All pending applications also stand disposed of.

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(DR.PUSHPENDRA SINGH BHATI), J.

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65-66-Sudheer/-

Dinesh Kumar v. the Registrar, Dr. S.R. Rajasthan Ayurved University

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Dinesh Kumar v. the Registrar, Dr. S.R. Rajasthan Ayurved University

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