Council
of Homeopathic System of Medicine, Punjab & Ors Vs. Suchintan & Ors
[1993] INSC 227 (21
April 1993)
Mohan,
S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj) Thommen, T.K. (J)
CITATION:
1994 AIR 1761 1993 SCR (3) 306 1993 SCC Supl. (3) 99 JT 1993 (3) 727 1993 SCALE
(2)632
ACT:
%
Homeopathy Central Council Act, 1973:
Section
20- Homeopathy (Diploma Course) DHMS Regulations, 1983-Regulations
3,8,11-Construction of-Literary interpretation sufficient-Eligibility for
admission to First, Second and Third DHMS examination-Conditions Pattern of
DHMS examinations-Doctrine of relation back 'not applicable.
Homeopathy
(Diploma Course) DHMS Regulations, 1983- Regulations 810-Whether a candidate to
be permitted to take the third year DHMS examination, if he had not completed
one year course of study between passing the first D.H.M.S. examination and
appearing in the second one-Supreme Court's direction.
Education-Diploma
in Homeopathic Medicine and Surgery- Third year examination of DHMS-Whether a
candidate to be permitted to take the third year DHMS examination, if he had
not completed one year course of study, between passing the first DHMS
examination and appearing in the second one- Supreme Court's direction.
Homeopathy,
(Diploma Course) DHMS Regulations, 1983- Regulations 810-Eligibility for
admission to First, Second and Third DHMS examinations-Conditions
'Supplementary- Meaning of.
Interpretation
of Statutes-Homeopathy (Diploma Course) DHMS Regulations,
1983-Regulation-8-10-Language Plain-Harmonious interpretation does not arise-
"Supplementary "-Meaning of.
Words
and Phrases-"Supplementary"--Meaning of. 307 C.A.No. 2107/93
HEAD NOTE:
The
respondents appeared in the first year D.H.MS (Diploma in Homeopathic Medicine
and Surgery) annual examination in june,1988.They had to re-appear as they did
not get the required percentage of pass marks in two or more subjects.
They
were permitted to join the second year class after June, 1988. Under the
interim orders of the High Court, they appeared in the second year annual
examination.
Simultaneously,
the respondents appeared in the first year D.H.MS. examination and cleared all
the papers. After re- appearing in one or more subjects in the second year
Supplementary examination in June, 1990, they were declared passed in the 2nd
year D.H.M.S. examination.
The
respondents joined the third year D.H.M.S. course and completed the course of
study. When their examination forms were forwarded to the appellant-Council,
they declined to permit the respondents to appear in the 3rd year D.H.M.S.
annual examination, because they did not complete one year course of study
between passing the first D.H.M.S. examination and appearing in the second year
course.
The
respondents preferred a writ petition before the High Court to direct the
appellants to permit them to appear in the third year DHMS examination,
commencing from 3.9.1991.
Following
the view taken in the decision of the Court in C.W.P. No 2307/ 88. Gurinder pal
Singh v.-Punjabi University & Ors., which was followed in Harinder Kaur Chandok
(Minor) v- The Punjab School, Education Board through its Secretary, (1987) 2
PLA 638, the High court allowed the writ petition of the respondents.
Against
that order of the High Court, the appeal (C.A.No. 2107/93) was filed by special
leave.
The
appellants submitted that the High Court was wrong in its construction on
regulation 11 of the Homeopathy (Diploma Course) DHMS Regulations, 1983; that
if a candidate passed on supplementary examination, he would have to wait till
the next academic session; that none of-the Regulations indicated carry forward
scheme of the subjects, but on the contrary,it was a case of detention every
year.
The
respondents urged that the interpretation placed by the High Courts on
Regulations 8 to 10 was correct; that four chances afforded to the 308
candidate could be rendered nugatory, if the interpretation as stated by the
appellants was accepted; that the Regulations did not say that after First
D.H.M.S. examination, a student could not study for Second D.H.M.S. course and
sit for examination provisionally; that the declaration of result for the
Second D.H.M.S. course took place only after a student cleared the First
D.H.M.S. examination; that if the Regulations were literally interpreted, that
would lead to absurdity and it would run counter to the object of providing a
supplementary examination.
As the
other appeals (C.A.Nos. 2108-10/93) contained identical issue, all the appeals
were heard and decided together.
Allowing,
the appeals, this Court,
HELD:
1.1.
The Regulations 8-10 of the Homeopathy (Diploma Course) DHMS Regulations, 1983
are plain enough and are susceptible only to literary interpretation.
Maxwell:
Interpretation of Statutes, 12th Edition, Page 29, referred to.
1.2.For
admission to the First D.H.M.S. examination:
i)a
student must have regularly attended the courses of instruction, theoretical
and practical;
ii) for
a period of not less than 12 months;
iii) to
the satisfaction of the head of the College. (317-B)
1.3.
Eligibility for admission to Second D.H.M.S. examination is based on two
conditions:
i) A
student has passed his First D.H.M.S. examination at the end of one year
previously. This means one year must elapse between the passing of the First
year examination and taking of Second Year Examination.
ii)
Subsequent to the passing the First year- 309
a) he
must have regularly attended the courses both theoretical and practical;
b) for
a period of at least one year;
c) to
the satisfaction of the head of the College. (317-F- G)
Thus,
unless and until, these two conditions are satisfied, a student is ineligible
for admission to the Second D.H.M.S. examination. (317-H, 318-A)
1.4
The conditions for eligibility for admission to Third D.H.M.S examination are:
i)
After passing the Second D.H.M.S examination, one and a half years must have
elapsed before taking the Third D.H.M.S. examination.
ii)
Subsequent to the passing of the Second D.H.M.S. examination:
a) he
must have regularly attended the courses both theoretical an practical;
b) for
a period of 11/2 years;
c) to
the satisfaction of the college. (318-F-G)
1.5.
Mandatory requirements of Regulation 9 are;
i) The
lapse of one year period between the passing of First D.H.M.S. examination and
taking the Second D.H.M.S. examination.
ii)
Subsequent to the passing of the First D.H.M.S. examination to undergo the
course of study for one year.
(321-G)
1.6.
Therefore, if a candidate passes in the supplementary examination, the
requirement of one year cannot be enforced.
Worse
still is a case of a student who passes only at the next annual examination.
Could he he allowed to take the Second D.H.M.S. examination without even
completing the First? Should he by chance pass the Second D.H.M.S. and not
complete the First, since he has still one more chance to take this
examination, what is to happen? 310 The situation is absurd. The same principle
should apply to Regulation 10 where the lapse is one and half years. (321-H,
322-A) 1.7.The pattern of the examination is: 12 months for First D.H.M.S.
examination, 12 months for Second D.H.M.S. examination and 18 months for Third
D.H.M.S examination.
These
put together with six months of compulsory internship, make up the four years
prescribed for the Course-in Regulation 3. (318-G) 1.8.When a candidate
completes the subjects only in the supplementary examination, then alone, he
passes the examination. It is that pass which is declared. If the
"doctrine of relation back" is applied, it would have the effect of
deeming to have passed in the annual examination, held at the end of 12 months,
which on the face of it, is untrue. (321 -A) 1.9.Whatever it is, a candidate
has to complete all the subjects within four chances. Should he fail to do so,
he will have to undergo the course in all subjects for one year unless of
course, he gets the exemption as stated in proviso to Clause (vii). In
Regulation 11 there is no 'system of carry forward'. On the contrary, it is
detention every year. Harmonious construction violates the mandatory
requirements of Regulation 9. (321-E-F) 1.10.If a student were to sit idle at
home after passing the supplementary examination that is his own making. To
avoid such a situation, the Regulation cannot be construed causing violence to
the language. (323-H, 324-A) 1.11.The candidates who, as on the day of Judgment
of these appeals, have attended all the courses and have passed all the
examinations might make an appropriate representation to the Council of
Homeopathic System of Medicines (The appellant) to consider their cases. The
representation shall be filed within a period of four weeks. The Council of Homiopathic
System of Medicines (the appellant) will take appropriate decision. (327-C)
2. The
adjective 'supplementary' means an examination to make up the deficiencies.
Thus, it stands to reason only when deficiencies are made up, the whole becomes
complete.
(322-D)
Oxford Dictionary, Seventh Edition, page 1072, referred to. (322-B) 311
CIVIL
APPELLATE JURISDICTION: CIVIL APPEAL NOS. 2107-1 1993.
From
the Judgment and Order dated 9.3.1992 of the Punjab and Haryana High Court in
Civil Writ Petition Nos. 13587, 13588, 13926 of 1991 and L.P.A. No. II 8 of
1992.
Dipankar
Prasad Gupta, Solicitor General, N.N. Goswami and H.K. Puri for the Appellants.
Ranjit
Kumar, Deepak Sibal, Ms. Binu Tamta and Tarun Aggarwal for the Respondents.
The
Judgment of the Court was delivered by MOHAN, J. Leave granted.
All
these appeals raise the identical issue as to the interpretation of the
Regulations relating to Diploma in Homeopathic Course. Hence, they are dealt
with under one and the same judgment.
We
will refer to the facts of C.W.P. No. 13587/91 which will be enough for
appreciating the issues involved.
The respondents
joints the Homeopathic Medical College, Chandigarh in the year 1987 to secure a
diploma in Homeopathic Medicine and Surgery (hereinafter referred to as
'DHMS'). The said course is of a duration of four years.
It is
divided into 3 1/2 years of academic study and six months of internship. The
course of study, their duration and the scheme of examination are regulated by
the Homeopathy (Diploma Course) DHMS Regulations, 1983 (hereinafter called the
'Regulations'). These Regulations have been framed by the Central Council of
Homeopathy under Section 20 of the Homeopathy Central Council Act, 1973.
Part
VI of the Regulations deals with examination.
Regulations
8 to 10 occurring in part VI are relevant for our purpose., Regulation 8 talks
of first First D.H.M.S. examination. That examination has to be held at the end
of 12 months of the Course. Regulation 9 deals with second D.H.M.S. examination
to be held at the end of second year.
Regulation
10deals with 3rd D.H.M.S examination, 11/2years subsequent to the passing of
the second D.H.M.S. examination.
The
respondents appeared in the first year D.H.M.S. annual examination in 312 June,
1988. Since, they did not get required percentage of pass marks two or more
subjects, they had to re-appear.
They
were permitted to join the 2nd year class after June, 1988. Under the interim
orders of the High Court made in C.W.P.No 437510/1990, they appeared in the
examination. The respondents simultaneously took their third chance for the
first year D.H.M.S. examination and finally,cleared all the papers. They also
got re-appeared in one or more subjects in the 2nd year D.H.M.S. examination
and accordingly, took supplementary examination in June, 1990. They were
declared 'pass' in that examination.
The
respondents joined the third year D.H.M.S. examination and completed the course
of study. In view of that, the Principal of the college in August, 1991
recommended and forwarded their examination forms for the third year
Examination to the appellant namely, the Council of Homeopathic System of
Medicines, Punjab. The appellant declined to permit
the respondents to take the examination since they had not completed one year
course of study between passing the first D.H.M.S. examination and appearing in
the second one; hence, they were not eligible to appear in the third year
examination. In other words, the examination has not been passed in accordance
with the scheme prescribed under Regulations 8 & 9. It was under these
circumstances, the writ petitions came to be preferred before the High Court of
Punjab & Haryana in C.W.P. No. 13587/91 praying for a direction to permit
them to take third year D.H.M.S. examination commencing from 3.9. 1991.
The
writ petition came up before a Division Bench. By judgment dated 9.3.1992
allowing that writ petition on the reasoning that if the minimum course of
study as provided by Regulations 9 and 10 if held to be mandatory, such a
provision would be liable to be struck down in view of the decision of the
Court in C.W.P. No. 2307/88, Gurinder Pal Singh v. Punjabi University &
Ors. Which in turn has followed Single Judge decision reported in Harinder Kaur
Chandok (Minor) v. The Punjab School Education Board through its Secretory
(1987) 2 PLA 638. It is the correctness of this judgment, which has been
questioned in all these appeals.
The
learned Solicitor General took us through Regulations at length. Part II deals
with course of study. Regulation 3 states that a Diploma Course in Homeopathy
shall be spread over a period of four years. Those four years include six
months compulsory internship after the passing of the final year diploma
examination.
When
we look at Regulations 8 to 10, three concepts emerge from them:
313 i)
Subjects;
ii)
Time;
ii)
Marks.
The
duration of the examination is, first year: 12 months, Second Year: 12 months;
and third year: 18 months.
Regulation
8 states that a candidate may be admitted to the first D.H.M.S. examination.
Similarly, Regulation 9 also states that a candidate shall be admitted to the
second D.H.M.S. examination. Identical language is used under Regulation 10 for
Third D.H.M.S. examination. The submission of the learned Solicitor General is,
admission to these examinations is entirely different from 'admission to a
course'. With reference to admission to each of the examination, First, Second
and Third year, the respective Regulations 8,9 & 10 prescribe the
eligibility. Unless and until, that eligibility is possessed, admission to an
examination is impossible.
The
High Court has taken a view that since the duration of the Course is four
years, this Regulation must be so construed as to fit in within those four
years. This is wrong.
Regulation
11 talks of re-admission to an examination. That Regulation has nothing to do
with the eligibility prescribed under Regulation 8 to 10. In other words,
Regulation 11 cannot control the operation of these Regulations. Regula- tion
11 (iv) talks of supplementary examination. In that supplementary examination,
it is open to a candidate to pass in a subject or subjects in which he has
failed. When he so passes, Clause (v) of that Regulation states that he shall
be declared to have passed at the examination as a whole.
Even
thereafter, if he fails in the subject or subjects at the supplementary
examination and he has to appear in the examination in the failed subject or
subjects at the next annual examination, Clause (vi) prescribes:
i)
Production of a certification;
ii) In
addition, if he had put a necessary attendance, a further course of study in
the subject or subjects in which he had failed, the minimum number of chances
as per this clause are only four.
If he
fails to complete the subjects within these four chances, he will have to
prosecute a further course of study in all the subjects of all parts for one
year, in other words, he has to start the course afresh and appear for
examination in all the 314 subjects. Thus, it will be clear that all these
Regulations talk of re-admission to an examination in Order to enable the
failed Candidate to undergo supplementary-and subsequent examinations. On
completion of subject in any one of those examinations within the four chances,
he is declared to have passed the whole examination. On this count, it is
incorrect to hold that passing in the supplementary examination relates back to
the original examination. A careful reading of Regulation 9 requires the
satisfaction of the following conditions for appearing in the Second Year
D.H.M.S. examination:
i) The
candidate had passed the First D.H.M.S. examination at the end of one year
previously. This means, there must be a gap of one year between the passing of
First year examination and appearing in the Second year examination;
ii)
Subsequent to the passing of the examination, must have attended the courses of
instruction for a period of at least one year.
Therefore,
a candidate who fails in the first year examination in a subject or subjects,
if he passes any supplementary examination cannot take the Second year
examination at the next academic year. This is because, one year duration had
not elapsed between the passing of First year examination in the supplementary
examination and taking the Second year examination. Worse is a case where a
candidate passes the First Year examination at the third or fourth attempt. The
High Court has gone wrong in its construction on Regulation 11 that if a
candidate passes a supplementary examination, the insistence of one year would
require the candidate to wait for one more year. Therefore, he would inevitably
have to study for the next year course from the next academic session. No
doubt, the candidate who passes the supplementary examination will have to sit
idle till the next academic session. That is his own making. On that score, the
attempted harmonious construction by the High Court cannot be supported.
The
learned Solicitor General finally submits that none of the Regulations indicate
'a carry. forward scheme' of the subjects. On the contrary, it is a case of
detention every year. Accordingly, he submits that the Civil Appeals deserve to
be allowed.
Mr. Ranjit
Kumar, learned counsel in opposition to this, would urge that the
interpretation placed by the High court on Regulations 8 to 10 is collect.
Otherwise, no useful purpose would be served by conducting a supplementary
examination. Equally, four chances afforded to the candidate could be rendered
nugatory if the interpretation as stated by the learned solicitor General is
accepted.
315
Regulation 11 has to be read along with Regulations 8 to 10.
It is
not correct to argue that Regulation 11 has nothing to do with admission to an
examination. As a matter of fact, declaration of result of supplementary
examination of First D.H.M.S. examination was made on 31.10.1989. The next
annual examination was held in January, 1990 within 2 1/2 months. The
respondents passed the course of First and Second D.H.M.S. examinations. The
result of Second Year D.H.M.S. supplementary examination was declared in
January, 1991. In view of such an inordinate delay in the conduct of
examinations, the appellant cannot contend that one year period must elapse
between First and Second D.H.M.S. examinations and that the Regulations should
have been strictly obeyed. The Regulations do not say that after First D.H.M.S.
examination, a student cannot study for Second D.H.M.S. course and sit for
examination provisionally. The declaration of result for the Second D.H.M.S.
course takes place only after he had cleared the First D.H.M.S examination.
As
rightly held by the High Court, the word 'supplementary'.
denotes
supplementing to or in continuation of the annual examination. Where-,
therefore, provisional admission is given for the Second Year D.H.M.S, course,
the failure to complete he First D.H.M.S. examination should not be put against
the respondent-.;. If the Regulations are so literally interpreted, that will
lead to absurdity. It will run counter to the object of providing a
supplementary examination. This interpretion is holding the field for a long
time. This was the reason why in Jaininder Mohan and Others v. The council of
Homeopathic System of Medicine.
Punjab (1992) 1 I.L.R. Punjab 159, the court took a view that
passing in the supplementary examination will relate back to the date of annual
examination. Otherwise, as rightly pointed out by the High Court, anamolous
results would follow.
In so
far as the respondents have completed the examination, equities must weigh in
their favour as laid down by this Court in A. Sudha v. University, of Mysore and another AIR 1987 SC 2305, Chandigarh
Administration & Ors. v Manpreet Singh & Ors. [1992] 1 SCC 380, Shirish
Govind Prabhudesai v. State of Maharashtra
[1993] 1 SCC 211. The learned counsel also relies on Orissa Homeopathic
Regulations and contends that carry forward is permitted in similar Homeopathic
Regulations.
In
order to appreciate the respective contentions, we have to analyse the relevant
Regulations relating to the Diploma Course in Homeopathy as contained
Homeopathy (Diploma course) DHMS Regulations, 1983. These Regulations are
statutory in character in so far as they have come to be framed in exercise of
powers conferred under Clauses (i) , (j) & (k) of Section 33 and
sub-section (1) of Section 316 20 of Homeopathy Central Council Act. Under
Section 20, the Central Council may prescribe the minimum standards of
education in Homeopathy required for granting recognised medical qualifications
by Universities, Boards and Medical Institutions in India. Section 33 speaks of powers to
make Regulations. The relevant clauses are (i), (j) & (k). They are to the
following effect.
"(i)
The courses and period of study of practical training to be undertaken, the
subjects of examination and the standards of proficiency therein to be
obtained, in any University, Board or Medical institution for grant of recognised
medical qualification;
(j)the
standards of staff, equipment, accommodation, training and other facilities for
education in Homeopathy;
(k)The
conduct of professional examinations, qualifications of examiners and the
conditions of admissions to such examinations;" Therefore, the Central
council constituted under Section 3 of the Act has power to make Regulations
under Section 33 (k) regarding the conditions of admission to the examination.
The very object of this Act is to prescribe minimum standards for admission,
duration of course of training, details of curriculum and syllabus of study and
the title of degree or diploma. Since they very from State to State and even
from Institute to Institute within a same State, it had become necessary to
constitute a Central Council.
The
Advisory Committee prescribed a course of four years.
Accordingly,
in Regulation 3(i), it is provided that a Diploma Course in Homeopathy shall
comprise a course of study, spread over a period of four years. This includes
the compulsory internship of six months duration after passing the final
Diploma examination The Regulations contain eligibility to admission, the
curriculum, the syllabus etc. in the various parts.
Part
VI deals with examination. Regulation 8 talks of First D.H.M.S. examination. It
is stated in clause (i) :
"A
candidate may be admitted to the First D.H.M.S. examination provided that he
has regularly attended the following course of instruction, theoretical and
practical for a period of not less than 12 months at a Homeopathy College to the satisfaction of the head of the college".
317
From the above, it is clear for admission to the First.
D.H.M.S.
examination:
i)a
student must have regularly attended the courses of instruction, theoretical
and practical;
ii) for
a period of not less than 12 months;
iii) to
the satisfaction of the head of the College.
As
regards the Second D.H.M.S. examination, Regulation 9 takes care. That states
in Clause (i) :
"No
candidate shall be admitted to the Second D.H.M.S examination unless:
a) he
has passed First D.H.M.S. examination at the end of one year previously, and b)
he has regularly attended the following courses of instruction both theoretical
and practical in the subjects of examination for a period of at least one year
subsequent to his passing First D.H.M.S. examination from a recognised
Homeopathic College to the satisfaction of the head of the college." Here
again, eligibility for admission to Second D.H.M.S. examination is based on two
conditions:
i) A
student has passed his First D.H.M.S. examination at the end of one year
previously-. This means one year must elapse between the passing of the First
year examination and taking of Second Year Examination.
ii)
Subsequent to the passing the First year a) he must have regularly attended the
courses both theoretical and practical;
(b) for
a period of at least one year;
(c) to
the satisfaction of the head of the College. Thus, unless and until, these two
conditions are satisfied, a student is 318 ineligible for admission to the
Second D.H.M.S. examination.
Clause
(iii) states that the Second D.H.M.S. examination shall be held at the end of
two years of D.H.M.S. course.
The
Third D.H.M.S. course is provided for under Regulation 10. That reads as
follows:
"No
candidate shall be admitted to the Third D.H.M.S. examination unless:- (a) he
has passed the second D.H.M.S. examination at the end of 1 1/2 years
previously, and (b) has regularly attended the following courses of
instructions both theoretical and practical in subjects of examination for a
period of at least 11/2 years subsequent to his passing the Second D.H.M.S
examination in a recognised Homeopathic College to the satisfaction of the head
of the College." Here again, the conditions for eligibility for admission
to Third D.H.m.s examination are:
i)
After passing the Second D.H.M.S. examination, one and a half years must have
elapsed before taking the Third D.H.M.S examination.
ii)
Subsequent to the passing of the Second D.H.M.S. examination:
a) he
must have regularly attended the courses both theoretical and practical"
b) for
a period of 11/2 years;
c) to
the satisfaction of the college.
Thus,
it will be clear that the pattern of the examination is as rightly urged by the
learned Solicitor General : 12 months for First D.H.M.S. examination, 12 months
for Second D.H.M.S. examination and 18 months for Third D.H.M.S examination.
These put together with six months of compulsory internship, make up the four
years prescribed for the Course in Regulation 3.
One
thing that carefully requires to be noticed is that all the three Regulations
319 8 to 10 speak of admission to an examination, First, Second and Third year
respectively. This is entirely different from admission to a course we find
great force in this submission of the learned Solicitor General. The course of
study may consist of four years, but that has nothing to do with the scheme of
examination. Now, we come to Regulation 11. That requires to be reproduced in
full:
"(i)
Every candidate for admission to an examination shall send to the authority
concerned his application in the prescribed form with the examination fee at
least 21 days before the date fixed for the commencement of the examination.
(ii)As
soon as possible after the examination the examining body shall publish a list
of successful candidates arranged in the following manner:- (a)the names and
roll numbers of the first ten candidates in order of merit, and (b) the roll
number of others arranged serially.
(iii)Every
candidate shall on passing the examination receive a certificate in the form
prescribed by the examining body concerned.
(iv) A
candidate who appears at the examination but fails to pass in a subject or
subjects may be admitted to supplementary examination in the subject or
subjects of that part of the examination in which he has failed to be held
ordinarily after six weeks from the publication of result of the first
examination on payment of the prescribed fee along with an application in the
prescribed form.
(v) If
a candidate obtains pass marks in the subject or subjects at the supplementary
examination or the subsequent examination, he. shall be declared to have passed
at the examination as a whole, (vi) If such a candidate fails to pass in the
subject or subjects at the supplementary examination in the subject or subjects
concerned, he may appear in that subject or subjects at the next annual
examination on production of a certification in addition to the certificate
required under the regulations, to the effect that he had attended to the
satisfaction of the Principle,a further course of study for a period 320 of
next academic year in the subject or subjects in which he had failed, provided
that all the parts of the examination shall be completed within four chances
including the supplementary one, to be counted from the date when the complete
examination becomes due for the first time.
(vii)If
a candidate fails to pass in all the subjects within the prescribed four
chances, he shall be required to prosecute a further course of study in all the
subjects of all parts for one year to the satisfaction of the head of the
college and appear for examination in all the subjects.
Provided
that if a student appearing for the Third D.H.M.S. Hom. examination has only
one subject to pass at the end or prescribed chances, he shall be allowed to
appear at the next examination in that particular subject and shall complete
the examination with this special chance.
(viii)All
examinations shall be held on such dates, time and places as the examining body
may determine.
(ix)
The examining body may under exceptional circumstances partially or wholly
cancel any examination conducted by it under intimation to the Central Council
of Homeopathy and arrange for conducting reexamination in those subjects within
a period of thirty days from the date of such cancellation." This Regulation
deals with results and readmission to an examination. A close reading of the
above brings out the following:
In
clause (iv) as to what is to happen in the event of a candidate failing to pass
in a subject or subjects is spoken to. He may be admitted to the supplementary
examination.
Such a
supplementary examination is to ordinarily take place after six weeks from the
publication of result of First Examination.
Supposing
he passes in that subject or 'subjects in the supplementary examination he is
declared to have passed at the examination as a whole. This should obviously be
so;
because
once he completes all the subjects, he has to necessarily be declared to have
passed. Merely on this language, "declared to have passed at the
examination as a whole", we are unable to understand as to how the 321
"doctrine of relation back" could ever be invoked. The invocation of
such a doctrine leads to strange results.
When a
candidate completes the subjects only in the supplementary examination, then
alone, he passes the examination. It is that pass which is declared. If the
"doctrine of relation back" is applied, it would have the effect of
deeming to have passed in the annual examination, held at the end of 12 months,
which on the face of it is untrue.
With
this, we pass on to clause (vi) which deals with the stage where the candidate
had failed in the First Annual Examination in a subject or subjects and he had
not passed in that subject or subjects in the supplementary examination also.
The next annual examination arrives. The appearance in that examination is
conditioned upon production of two certificates:
i)A
certificate required under the Regulations to the effect that he had attended
to the satisfaction of the Principle;
ii)A
certificate to the effect that he had undergone a further course of study for a
period of next academic year in subject of subjects in which he had failed.
Whatever
it is, a candidate has to complete all the subjects within four chances. Should
he fail to do so, he will have to undergo the course in all subjects for one
yea, unless of course, he gets the exemption as stated in proviso to Clause
(vii). Nowhere do, we find in Regulation 11 system of carry forward'. On the
contrary, it is detention every year. The High Court was moved by the fact that
if a candidate were to pass in supplementary examination after passing the
examination, he will have to remain at home till the next annual examination.
So, he is allowed to undergo a course for next academic year provisionally. On
this line of reasoning, clause (iv) & (vi) of Regulation II are sought to
be "harmoniously construed'. We are unable to accept this line of
reasoning or the so called harmonious construction because it does violence to
the language of the Regulation. It clearly violates the mandatory requirements
of Regulation 9. It has already been noted as to what those requirements are.
To repeat:
i) The
lapse of one year period between the passing of First D.H.M.S. examination and
taking the Second D.H.M.S. examination.
ii)
Subsequent to the passing of the First D.H.M.S. examination to undergo the
course of study for one year.
Therefore,
if a candidate passes in the supplementary examination, the requirement of one
year cannot be enforced.
Worse
still is 322 a case of a student who passes only at the next annual
examination. Could he be allowed to take the Second D.H.M.S. examination
without even completing the First? Should he by chance pass the Second D.H.M.S.
and not complete the First, since he is still one more chance to take this
examination, what is to happen? The situation is absurd. The same principle
should apply to Regulation 10 where the lapse is one and half years.
The
word 'supplement' is defined in Oxford Dictionary, Seventh Edition, page 1072:
"think
added to remedy deficiencies; part added to book etc, with further information,
or to periodical for treatment of particular matter(s) of an angle,(Math.)its
deficiency from 180(of.COMPLEMENT); hence Al, ARY, (mem) adjs. (supplementay
benefit). [ME,f.L. sup (plementum f -plere fill; see-ment]" Therefore,the
adjective 'supplementary' means and examination to makeup the deficiencies. Thus.
it stands to reason only when deficiencies are made up, the whole becomes
complete.
On
this score to say that passing the supplementary examination would relate back
to the annual examination will be totally incorrect. What counts is when the
whole is made up. From that time of making up one year or one and half years
must elapse for second or Third D.H.M.S. examinations as the case Amy be. The
stand of the appellants counsel as seen from letter dated 12.12.1989 is as
follows:
"From:
Dr.
P.L. Verma, Secretary, Central Council of Homeopathy, 10, Community Centre, Basant
Lok, Vasant Vihar, New Delhi - 110037.
TO The
Chairman, The Council, Homoeopathic Systems of Medicine, 3027-28, Sector 22-D, Chandigarh.
323 Sub:Enforcement
of D.H.M.S (Diploma Course) Regulation 1983 w.e.f. 1983-84 Academic Sessions
students demand for grant of provisional promotion with reappearance in only
one subject to the next higher class even beyond supplementary examination even
prior to his passing the lower class examination as a whole.
With
reference to your letter No. CHSM-PV- 134 /89/1253 dated 29/ 30 November, 1989
on the subject noted above. I am to say that the question of permitting to
appear simultaneously for two examinations i.e. lower reappear subjects and
complete subjects of the next higher class does not arise as no candidate has
to be admitted to the Second D.H.M.S. examination unless he had passed the
first D.H.M.S. examination at the end of one year previously and has regularly,
attended the course for one year.
Similarly,
no candidate shall be admitted to the Third D.H.M. S. examination unless he has
passed the second D.H.M.S. examination 1 1/2 years previously and has also
attended the course for a period of 1 - 1/2 years subsequent to his passing of
the Second D.H.M.S. Examination.
COUNCIL
OF HOMOEOPATHIC SYSTEM OF MEDICINE 3027-28, Sector 22-D CHANDIGARH (UT) No. CHCH-PV 9134/89/AT-198-200
Dated 5.2.90 Copy forwarded to the Principal, Lord Mahaveera Homeopathic Medical College, Ludhiana/Abohar/Chandigarh for information and necessary
action. This may please be notified for information of all the students under
intimation to the undersigned. The above guidelines/directions of the Central
Council may please be strictly followed and observed in respect of matters
indicated therein.
sd/-
(R.K. Sharma) Registrar, No.CHMS/PV/134/89/AI-201-210 Dated 5.2.90." This
stand in our opinion is correct.
If a
student were to sit idle at home after passing the supplementary 324
examination that is his own making. To avoid such a situation, the Regulation
cannot be construed causing violence to the language.
These
Regulations are plain enough and are susceptible only to literary
interpretation. In 'Maxwell on the Interpretation of Statutes' 12th Edition, it
is stated at page 29 as under:
"Where
the language is plain and admits of but one meaning, the task of interpretation
can hardly be said to arise. "The decision in this case," said Lord
Morris of Borth-y-Gest in a revenue case, "calls for a full and fair
application of particular statutory language to particular facts as found. The
desirability or the undesirability of one conclusion as compared with another
cannot furnish a guide in reaching a decision." (Shop and Store
Developments Ltd. v. I.R.C. (1967) 1 A.C. 472). Where, by the use of clear and
unequivocal language capable of only one meaning, anything is enacted by the
legislature, it must be enforced however harsh or absurd or contrary to common
sense the result may be. (Cartledge v. E. Jopling & Sons, Ltd. [1963] A.C.
758) The interpretation of a statue is not to be collected from any notions
which may be entertained by the court as to what is just and expedient: (Gwynne
v. Burnell [1840] 7 Cl. & F. 572). Words are not to be construed, contrary
to their meaning, as embracing or excluding cases merely because no good reason
appears why they should not be embraced or excluded. (Whitehead v. James Stott
Ltd. [1949] 1 K.B. 358). The duty of the court is to expound the law as it
stands, and to "leave the remedy (if one be resolved upon) to
others." (Sutters v. Briggs [1922] 1 A.C. 1).
We
construe the Regulations as they stand without introducing any element of
ambiguity or absurdity.
The
manner in which the respondents have passed the examination is set out in the
following tabulated statement:
"C.W.P.
No. 13926 of 1991 Miss Kamaljit & eight others of L.M. Homoeopathic Medical College, Ludhiana.
1st prof.
Annual/88
Supp/88 Annual/89 -----------------------------------------------------------
Respondent No. Re-appear Re-appear Pass 325 1, Miss Kamaljit in 3 in 2
Contd.
d/o Sawam
subjects subjects Singh (Admitted in 1987) Resp.2, Re-appear pass Sh. Narinder
in 2 Contd Kumar s/o subjects Satya Pal Goyal (Admitted in 1987) Resp. No. 3 Shri
Re-appear pass Contd.
Mohd Ramzan
in 3 Thind s/o SH. subjects Moh. Yousaf (Admitted in 1987) Resp No.4 Shri Re
appears Re-appears pass " Naresh Kumar in 3 subjects in 2 subjects Resp.
No.5 Shri Re-appear Re-appear pass " Jaininder Mohan in 2 in 1 s/o Shri
Sham Lal subjects subject (Admitted in 1987) Resp. No. 6 Shri Re-appear Re-appear
pass " Kulbir Singh s/o in 3 in 2 Sh. Tattan Singh subjects subjects
(Admitted in 1987) Res. No. 7 Re-appear pass - " Narinder Singh in1 s/o Sh.
Sant subject Singh (Admitted in 1987) Res. No. 8 Inderjit Mehta d/o Anant Ram
Mehta (Admitted in 1987) Resp. No. 9 Fail Re-appear pass " Tejvinder
Singh, in1 s/o Jaswant Singh (Admitted in 1987) 326 Continued Part
-------------------------------------------------------- IInd Prof. (CWP No.
481of 1991) 3rd Prof. (CWP No: 13926/91) Suppl./89 Annual/90 Suppl/91
-------------------------------------------------------- Re-appear Re-appear Re-appear
Allowed to appear in 3 in 3 in1 as per court subjects subjects subject order
dt.6.9.91 by the Principal of L. Homoeopathic Medical College, Re-appear Re-appear
pass As per court in 3 in1 order dt. 6.9.91 subjects subject (without court
order) Re-appear Re-appear pass Not appeared in 4 in 1 subjects subject
Re-appear Re-appear pass As per court in 3 in1 orderdt 6.9.91 Fail Re-appear
pass As per court in 2 order subjects dt. 6.9.91 Re-appear Re-appear pass As
per court in 1 pass Order subject dt. 6.9.91 Re-appear Re-appear pass Allowed
to in 2 in 2 appear as subjects subjects per Court order dt.6.9.91"
--------------------------------------------------------- Mr. Ranjit Kumar
pleads before us that equities must weigh in favour of students, With reference
to that plea, we hold that he students who had completed the whole course,
attended all the courses of study for the three sessions of 12 months, 12
months and 18 months respectively and had passed all the examinations in all
the subjects, though not in the sequential order required by the 327
regulations, it appears to us that the submission of the counsel for the
respondents that they being required to go through the courses all over again
and take the examinations after attending the courses afresh, might lead to hardship
and might require consideration, In the words of Anne Sophie Swetchine:
"The
world has no sympathy with any but positive griefs; it will pity you for what
you lose, but never for what you lack.
We
think that their cases may perhaps have to be examined from the point of these
equities by the Council of Homeopathic System of Medicines. The candidates who,
as on today, have attended all the courses and have passed all the examinations
might make an appropriate representation to the Council of Homeopathic System
of Medicines (the appellant) to consider their cases. The representation shall
be filed within a period of four weeks from today. The Council of Homeopathic
System of Medicines (the appellant) will take appropriate decision within one
month thereafter. The Council in doing so shall bear in mind all the relevant
circumstances, including, perhaps the spirit of the corresponding regulations
under the Bihar Act, in which such sequential purpose is not insisted upon.
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