ORDER R.A. Sharma, J.
1. By this writ petition the petitioner, Dr. Surabhi Rai has prayed for a writ of direction in the nature of mandamus directing the respondents to admit the petitioner in the First Year Residency Course, 1989 in the subject of Obstetrics and Gynaecology in Moti Lal Nehru Medical College, Allahabad (hereinafter referred to as the Medical College) after correcting the merit index of the petitioner in accordance with the statutory Notification dated 15-12-1982.
2. For completing the M.B.B.S. course a candidate has to appear successfully in three professional examinations. The petitioner passed the first professional examination in November, 1983. In the second professional examination held in November, 1985, petitioner did not appear in two subjects of Forensic Medicine and Community Medicine and in other two papers of Pathology-Microbiology and Pharmacology petitioner appeared only in second paper and theory paper respectively. It is alleged by the petitioner that as due to illness, she could not appear in first paper, oral and practical test of Pathology-Microbiology and oral and clinical test of Pharmacology, she was permitted in subsequent supplementary examination held in April, 1986 in the aforesaid four subjects in which she passed. The petitioner appeared in third professional examination successfully in November, 1987 in which year the petitioner was declared to have passed M.B.B.S. final examination. After completing the M.B.B.S. course the petitioner completed one year internship and thereafter was registered as a qualified doctor with the Medical Council. Subsequently she joined House manship in Obstetrics and Gynaecology in Kamla Nehru Memorial Hospital, Allahabad and worked there for about seven months.
(3) In July/August, 1989 Medical College invited applications for house job in various subjects and in pursuance thereof the petitioner made her application for house job in Paediatrics. The Medical College prepared a merit index of all the candidates and displayed the notice dated 11-8-I989 containing the names of the candidates, who were provisionally selected for the job of House Officer in different subjects. The name of the petitioner, in that list, is at serial No. 14 and her merit index has been shown as 61.33%. In preparing the merit list of the petitioner the respondents Nos. 2 and 3 deducted 1% of the total marks for failure in two subjects of Pathology and Pharmacology and also excluded marks obtained by her in day to day performance in the aforesaid two subjects in the first examination of November, 1985. However, the marks obtained by her in day to day performance in the second/supplementary examination of April, 1986 were added. Being dissatisfied with her merit index she made representation to the Principal of the Medical College for correction of the merit index of the petitioner in accordance with the Notification of the Government of U. P. dated 15-12-1982 issued under Sec. 28 of the State Universities Act, 1973.
(4) In the mean time the Government of U. P. introduced Residency Scheme by Notification dated 22-8-1989 in all the Medical Colleges of the State of U. P. for the Post-Graduate Course. The Medical College, accordingly, has issued a fresh notice dated 1-9-1989 inviting candidates to appear for interview for the First Year Residency Course. This notice further displayed that as the House Job and First Year Residency Course, are equivalent, no fresh application will be necessary; but directed the candidates, who have applied for House Job to apply for choice of subject. In accordance with this notice, the petitioner by means of the application dated 4-9-1 989 opted for the First Year Residency Course in the subject of Obstetrics and Gynaecology. The interview for First Year Residency was held on 11-9-1989. As the petitioner's merit index was not changed in spite of the representation having been made by her, petitioner could not get admission in the subject of Obstetrics and Gynaecology, because there are only seven seats in the aforesaid subject, out of which one seat is reserved for external candidate and six seats are available for internal candidates of the College. The petitioner again made a representation but without any result. Ultimately she filed this writ petition before this Court.
(5) This Court vide Order dated 7-9-1989 directed the Principal of the Medical College to decide the representation of the petitioner. In pursuance of this order the Principal of the Medical College vide Order dated 8-9-1989 rejected the representation of the petitioner, which has been filed as Annexure III to the supplementary affidavit of the petitioner. By another order dated 29-9-1989 this Court directed the Admission Committee to decide the matter afresh after examining the relevant record. The matter was again considered by the College Council on 7-10-1989 and the petitioner's representation was rejected.
(6) Relevant conclusion of the College Council on the two points are quoted below : --
"(1) Whether Dr. Surabhi Rai, who appeared in theory examination only in Pathology and Pharmacology be considered to have failed in these subjects or whether she should be considered as not failed.
The conscience of the members of the College Council was that Dr. Surabhi Rai be treated as failed in two subjects in which she appeared in part of the examination.
(2) Whether day to day marks of the 1st examination should be added or marks obtained in day to day examination subsequent to failure in the Professional Exams. should be added in the grand total for calculating merit index.
It was decided that as the Ordinance and the practice prevailing the marks of the day to day examination in which she was declared passed would be counted for calculating the merit index.
(7) This writ petition has been heard along with Writ Petn. No. 18418 of 1989. Dr. Smt. Sandeepa Shrivastava v. State of U. P. All the candidates, who may be affected by the order, which may be passed in this writ petition, have been impleaded in this case. We have heard the learned counsel for the parties and also the learned counsel for Dr. Smt. Sandeepa Shrivastava.
(8) In support of this petition following two submissions have been made before us : (i) Number obtained in day to day examination in the first examination of November, 1985 in the two subjects of Pathology- Microbiology and Pharmacology should be added to the total marks of the petitioner while preparing merit index, and (ii) Petitioner has not failed in November, 1985 examination in two subjects Pathology-Microbiology and Pharmacology inasmuch as she has not appeared in all the examinations of the aforesaid two subjects and in view of this position 2% marks for failure in above two subjects are not liable to be deducted in preparation of merit index.
(9) The Government of U.P. in exercise of its power under Sec. 28(5) of the U.P. State Universities Act, 1973 has issued a Notification, whereby policy and procedure with regard to admission of the candidate to the post-graduate course in the State Medical Colleges has been laid down. According to this order admission is to be made on the basis of the merit and the merit shall be prepared in accordance with clause 2 of this Notification. Clauses 1 & 2 of this Notification are quoted below :
"(1) Admission shall be made only on the basis of merit.
(2) The basis of determining the merit shall be percentage of markes worked out after deducting one per cent marks for each failure in every subject from the total percentage of marks obtained in the M.B.B.S. Examination . In case a candidate who fails in a subject and is declared successful in second, or sub-sequent attempt in that subject, the marks obtained by him for day to day performance in the first examination in that subject shall be added to his total marks while preparing the said index.
(10) According to this Notification, marks obtained in day to day performance of first examination are to be added to the total marks of a candidate for preparing the merit index. Necessary consequences of it is that marks obtained in day to day performance in the second/supplementary examination are to be excluded. In this case the respondents have not added the marks of day to day performance of the first examination of November, 1985 of the petitioner but on the other hand it has added the marks of the second/ supplementary examination of April, 1986. The decisions of the authorities of the Medical College are absolutely unjustified and are contrary to the Government Notification. As such the orders passed by the Principal of the Medical College dated 8-9-1989 as well as the order of the College Council dated 7-10-1989 and the merit index of the petitioner prepared by the respondents are liable to be set aside.
(11) The second submission of the petitioner is that as the petitioner failed to appear in all the papers in two subjects of Pathology-Microbiology and Pharmacology in November, 1985, she cannot be treated to have failed in the aforesaid two subjects because a candidate, who has not appeared in the examination cannot be declared to have failed. For this purpose, the petitioner relied upon a Division Bench decision of this Court in Dr. Anil Gupta v. State of U. P., 1983 UPLBEC 184. The relevant extract from para 9 of this judgment is quoted below:
"The short question which thus arises for consideration is that when a student of the Medical College has not appeared in a professional examination in any subject, would his non-appearance amount to his failure in that subject? In our opinion, by no stretch of imagination it could be said that a person who has not appeared in an examination has failed in that examination. A person is said to have failed in an examination when he has appeared in that examination."
(12) Learned counsel for the petitioner has submitted that unless a candidate appeared in all the papers of a subject, he cannot be treated to have appeared in the examination and cannot be declared to have failed. On the other hand contention of the learned counsel for the respondents is that even if a candidate has appeared in one paper of the subject, that is sufficient to hold that the candidate has appeared in the examination but has failed. The question for consideration is whether appearance in one paper of any subject can be treated to be an appearance in all the papers of that subject or not. It is however, not necessary for us to decide this question because of the statement made by the learned counsel for the petitioner that if the petitioner succeeds on the first point, it will not be necessary to decide the second submission, because the petitioner will get the admission in the First Year Residency Course in the subject of her choice, namely, Obstetrics and Gynaecology. As we are allowing the writ petition on the first point, we express no opinion on the second submission of the petitioner.
(13) The order of the Principal dated 8-9-1989 and that of the College Council dated 7-10-1989 as well as the merit index, so far as it relates to the petitioner are quashed. The respondents Nos. 2 & 3 are directed to prepare the merit index of the petitioner afresh in accordance with the observations made above. If after adding the marks obtained by the petitioner in day to day performance in November 1985 examination to her total marks, she is entitled to be admitted in the First Year Residency Course, 1989 in the subject of Obstetrics and Gynaecology, the respondents shall admit her in the First Year Residency Course, 1989 in the above subject. Due to the faulty merit index prepared by the respondents, the petitioner could not get admission in the First Year Residency Course and had to file the writ petition before this Court, resulting in loss of several months. On account of this position, the petitioner might suffer from shortage of attendance and some other consequences for no fault of her. As such we direct that the petitioner shall not be penalised for shortage of attendance etc. for the period up to the time she gets admission in the First Year Residency Course, 1989.
(14) The writ petition is accordingly allowed. In view of the facts and circumstances of this case, there will be no orders as to costs.
15. Petition allowed.