Damini Sonker v. Union of India & Anr.

2015 SCC Online Del 14584; Bessy Edison and Another v. Indira Gandhi National Open University, 2011 (121) DRJ 238 and Rajeev Kumar and Ors. v. Government of India, Manu/DE/1499/2021, Courts have held that jurisdiction of the High Court under Article 226 of the Constitution of India is an equity jurisdiction and therefore, in order to do substantial justice, Petitioner must be permitted to complete the M.Sc. course as this would enable her to acquire a higher qualification and a post-graduate degree. In Dr. Rohit Kumar v. Secretary Office of Lieutenant Governor of Delhi and Others, (2021) 8 SCC 381, the Supreme Court granted study leave to a doctor to pursue M.D. Course in Paediatrics, during the COVID-19 period. In Dr. Samjaison v. Deputy Director of Health Services and Others, 2020 SCC OnLine Mad 1904, the Madras High Court observed that once a doctor gets admission in a speciality course, the employer/Government cannot thwart his chances. A similar leeway was given by the Supreme Court recently in Archita & Ors. v. National Medical Commission & Ors., W.P.(C) No.607/2022, while dealing with Indian students who were in the last year of their Undergraduate Medical Course and had to leave their Institutes and return to India due to natural calamity. It is, therefore, urged that Petitioner be permitted as a one-time measure to complete the remaining training, without this being treated as a precedent and Petitioner undertakes to take unpaid leave from the Radiology Department.

10. Contentions raised on behalf of AIIMS:

Petitioner that she was entitled to 24 days’ leave in the 1st year and 30 days in the 2nd year and in case leave was extended, course/registration period will be extended and final examination would be postponed for 6 months. Several letters were issued to the Petitioner by the HoD, Nuclear Medicine, including Memorandum dated 15.06.2020, followed by two reminders on 30.06.2020 and 15.07.2020. Petitioner was also informed that the M.Sc. Course requires physical presence and training for participation in patient care services. By a Memorandum dated 29.10.2020, AIIMS regularized the 163 days’ leaves taken by the Petitioner and also informed her that on account of her excessive leaves, which was close to one semester, her registration was extended by 160 days i.e. upto 07.01.2022 instead of 31.07.2021 and that she would have to attend physically. The final examination was also postponed by six months i.e. December, 2021 instead of May, 2021. Although, a request was made by the Petitioner to allow her to appear in the examination in June, 2021, the same was not acceded to being impermissible under the Rules and more importantly, because the course required physical participation for physical training and patient care services. All this was accepted by the Petitioner at the relevant time as she was conscious of the indulgence shown to her by AIIMS.

C. AIIMS cannot be faulted for the Petitioner not having completed the 7 months training, as it is the Petitioner who is responsible for the circumstances, she finds herself in today. Being in the midst of the M.Sc. course, Petitioner readily accepted the appointment to the post of Technician (Radiology) and willingly and on her own volition, chose to resign w.e.f. 02.06.2021 and also deposited money towards the penalty for midstream withdrawal. With the acceptance of resignation, the student-institution relationship came to an end and no law permits/mandates its revival. In fact, it is the Institute which has suffered as the Petitioner was not available for patient care during the testing times of COVID-19 and one seat in the M.Sc. Course is wasted.

11. I have heard learned counsels for the parties and examined their contentions.

12. At this stage, it would require a mention that during the pendency of the writ petition, AIIMS issued Notice No.137/2022 dated 20.09.2022, declaring the Schedule of ‘Post Graduate/Post Doctoral (DM/M.Ch. & M.Sc. Courses) Professional Examinations’ to be held on 02.12.2022, 05.12.2022 and 07.12.2022 and the tentative dates for viva-voce were from 10.12.2022 to 17.12.2022. Interim relief was sought by the Petitioner to appear in the examination, subject to final outcome of the writ petition as well as for a direction to AIIMS to grant study leave for appearing in the examination. Grant of interim relief was vehemently opposed on behalf of AIIMS, however, in order to balance the equities and to ensure that the Petitioner is not confronted with a situation of fate accompli, if she was to ultimately succeed in the writ petition, this Court permitted the Petitioner to appear in the examination scheduled to begin from 02.12.2022. It was made clear that no equity will be created in favour of the Petitioner by merely appearing in the examination and the same shall be subject to final outcome of the writ petition. The Court was informed on 08.12.2022 that Petitioner had undertaken the examination and permission was sought to participate in the vivavoce, without creating equities in her favour and subject to outcome of the petition. Petitioner was permitted accordingly and it was directed that her result shall not be declared and will be placed in a sealed cover.

13. Pithily put, learned counsel for the Petitioner primarily pitched his case on well settled doctrines of ‘equity’, ‘justice’ and ‘fairness’. It needs no reiteration that he who seeks equity must do equity. [Ref.: Halsbury’s Laws of England, 4th Edn. Vol. 16, pp. 874-76]. As the facts unfold, Petitioner joined the course on 03.08.2019 and was on leave from 27.03.2020 to 02.09.2020. She has not been able to controvert the stand of AIIMS that transport as well as hostel facilities were available during the relevant period, which she did not avail, while her course-mates had attended physically. At the time of taking admission to the Course, Petitioner was clearly apprised in writing, as part of the terms and conditions of the admission letter that she was entitled to 24 days leave in the 1st Year and 30 days in the 2nd Year and in case leave was extended in any year, the registration period would also be extended and final examination would be postponed by six months. Despite this, being mindful of the Pandemic and giving her the benefit of doubt, AIIMS regularized the extraordinary leaves of 163 days, postponed the final examination to December, 2021 and also extended the registration of the course up to 07.01.2022, enabling her to complete the course. Strangely, Petitioner contests the postponement of the examination, as being adverse to her without realising that the number of leaves taken by her totalled to a period of 4 working months, i.e. almost one semester and in the absence of the extension she was not even eligible to appear for the examination in May, 2021. An act of benevolence is being looked at by the Petitioner as an act of prejudice, which is wholly unjustified.

14. It cannot be overlooked that the hurdles in the way of the Petitioner are her own creations. Despite the fact that the leaves taken by the Petitioner were condoned/regularized, she did not think it appropriate or important to join the physical training and complete the course, which she is now anxious to do and instead joined the post of Technician (Radiology) in another department of AIIMS. Preferring a job over M.Sc. course, Petitioner took a conscious call, which she was certainly entitled to take, and tendered her resignation on 02.06.2021. Once the resignation was tendered, AIIMS accepted the same and Petitioner deposited the penalty for midstream withdrawal. With the acceptance of resignation, relationship of the Petitioner was severed with the Institute and there is no provision under All India Institute of Medical Sciences Act, 1956 (hereinafter referred to as ‘AIIMS Act’) or Regulations or in service jurisprudence and none has been shown to the Court, which mandates AIIMS to permit the Petitioner to withdraw her resignation and re-join the course.

15.

AIIMS has rightly brought forth that Petitioner cannot be permitted to withdraw her resignation and the reasons can be captured as: (a) there is no enabling provision under the AIIMS Act or Regulations, which permits AIIMS to accept the request for withdrawal of resignation; (b) Petitioner has not undergone 7 months of training in a two-years course; (c) the session was 2019-2021 and her resignation was accepted w.e.f. 02.06.2021 i.e. one and a half years ago and the relationship between the parties severed at that stage; (d) if permitted to give the examination, the two-years course will be cut-short to a duration of less than one and a half years which will be legally incorrect as also unfair to the course mates and permitting her to take the 7 months training will extend the course and will take her with the next session and would also encourage students to join courses, withdraw midstream and re-join on individual whims; (e) AIIMS has been extremely indulgent and given her opportunity at every stage to complete her physical training and undertake the examination but the Petitioner chose to resign and withdraw from the course mid-stream and no further indulgence can be granted; and (f) AIIMS is an Institute of National important and permitting the Petitioner to take advantage of her own wrongs would set a bad precedent and would be against the ethos and academic standards that the Institution maintains. This Court entirely agrees. Looking at the glaring facts, this Court cannot agree with the Petitioner that balance of equity tilts in her favour.

16. Indisputably, the conduct of the Petitioner has resulted in an irreversible situation where Petitioner has not undergone the mandatory 7 months physical/hands-on training. Petitioner rightly states that AIIMS had published a Circular dated 20.03.2020 by which it had notified to all that all lectures will be held online in view of the ongoing pandemic and the students could stay at home, if they wished to and this would apply to all courses mentioned therein, including M.Sc., however, the point that is missed is that an exception was clearly carved out for those specialities where academic training was largely through participation in patient care services. As per Head of Department, Nuclear Medicine, AIIMS, the M.Sc. (Nuclear Medicine) Course is basically a hands-on training to prepare candidates to operate high-end equipments like PET/CT, SPECT/CT gamma camera, using ward monitoring of patient’s dose etc., which cannot be imparted without physical presence of the candidates, just as ‘a swimmer cannot learn swimming without entering water’. It needs no gainsaying that it is not for this Court to substitute the opinion of experts in the field who have set the curriculum of the M.Sc. Course including the hands on training, patient care etc. and any interference either to exempt the Petitioner from training or extend the Course by allowing her to undergo the training etc. at this stage in unwarranted.

17. As held in several judgments, requirements of training, attendance, etc., particularly in courses undertaken in professional Institutes are designed and tailor-made to suit the courses and to interfere in a curriculum is beyond the remit of this Court. It has been held in M.P. Mittal (supra), that discretionary remedies under Article 226 are for doing justice and correcting injustice and not the other way round. In Maharashtra State Board of Secondary and Higher Secondary Education and Another (supra), the Supreme Court held that the Courts should be extremely reluctant to substitute their views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual dayto-day working of educational institutions and that it will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from actual realities and grassroot problems involved in the working of the system and unmindful of the consequences which emanate if a purely idealistic view as opposed to a pragmatic one was to be propounded. Relevant part of the judgment is extracted hereunder for ready reference:

18. The Supreme Court in All India Council for Technical Education (supra), held that Courts’ interference in academic/ educational matters is not proper as they cannot create or continue courses. Relevant paras of the said judgment are as follows:-