Devi Gayathri v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 24[TH] DAY OF JANUARY 2022/4TH MAGHA, 1943** **WP(C) NO. 1823 OF 2022** ## **PETITIONER:** **DEVI GAYATHRI, AGED 23 YEARS, D/O. DR. V.S. SIVAPRASAD, VALIPARAMBIL HOUSE, VALLATH LANE, NATTIKA P.O, THRISSUR, KERALA – 680 566. BY ADVS. S.M.PRASANTH T.H.ARAVIND** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**MINISTRY OF HEALTH AND FAMILY WELFARE,**| ||**ROOM NO. 348, 'A' WING, NIRMAN BHAVAN,**| ||**NEW DELHI – 110 011.**| |**2**|**DENTAL COUNCIL OF INDIA,**| ||**REPRESENTED BY ITS PRESIDENT,**| ||**AIWAN-E-GALIB MARG, KOTLA ROAD,**| ||**TEMPLE LANE, OPP. MATA SUNDARI COLLEGE**| ||**FOR WOMEN, NEW DELHI - 110002, INDIA.**| |**3**|**DIRECTOR GENERAL OF HEALTH SCIENCES,**| ||**NIRMAN BHAWAN, NEW DELHI - 110108, INDIA.**| |**4**|**THE MEDICAL COUNSELLING COMMITTEE,**| ||**REPRESENTED BY ITS PRESIDENT,**| ||**DGHS MINISTRY OF HEALTH & FAMILY WELFARE,**| ||**NIRMAN BHAWAN, DELHI – 110 011.**| |**5**|**THE EXECUTIVE DIRECTOR,**| ||**NATIONAL BOARD OF EXAMINATIONS,**| ||**NAMS BUILDING, ANSARI NAGAR,**| ||**MAHATMA GANDHI MARG (RING ROAD),**| ||**NEW DELHI – 110029.**| WP(C)No.1823/2022 2 **BY ADVS. M.P.PRAKASH S.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.1823/2022 3 ## **JUDGMENT** Dated this the 24[th] day of January, 2022 This writ petition was directed to be posted today. Since it was not listed, the learned counsel for the petitioner made a mention. The writ petition was accordingly called and it was heard on consensus of the parties. 2. The petitioner, who is an Under Graduate in Dental Science undergoing compulsory rotary internship, has approached this Court seeking to direct the 5[th] respondent to allow the petitioner to register online for NEET-MDS-2022 irrespective of the eligibility criteria fixed as per Rule 4.2 of Ext.P2. 3. The petitioner states that she qualified all the examinations and secured 60% for the BDS Course. The Final Year Examination was delayed due to the rise in WP(C)No.1823/2022 4 Covid-19 cases. The Examinations which were normally held in the month of September, postponed this time and were held only in the month April-May. As soon as the results were published, the petitioner joined for the compulsory rotary internship as mandated by the BDS Course Regulations, 2007. The petitioner joined the rotary internship on 04.06.2021. The petitioner will complete the internship by June, 2022. 4. The petitioner desires to join Post Graduation Course in Dental Science. The 5[th] respondent conducts the PG Examination. As per the Brochure for NEET MDS– 2022 published on 04.01.2022 in the official website, it was stated that only those candidates who will be completing compulsory rotary internship on or before 31.03.2022 will be eligible for appearing in the Examination. In view of the Brochure published, the petitioner is made ineligible for appearing in the examination. WP(C)No.1823/2022 5 5. The petitioner submits that in the previous year, though the date for completing compulsory rotary internship was on 31.03.2021, due to the delay in completing the internship as a result of rise of Covid-19 pandemic, the eligibility criteria was modified by the 2[nd] respondent by Ext.P4. The petitioner and similarly situated persons are entitled to similar relief this year also. 6. The petitioner contended that the Government of Kerala has also adopted a similar approach in the previous year by granting time to complete the internship till 31.10.2021. This is evident from Ext.P6. 7. The petitioner argued that the delay in completing the internship was due to the delay in conducting the Examination as a result of rise in Covid-19 cases in Kerala. It was not due to omission or negligence on the part of the petitioner. WP(C)No.1823/2022 6 8. The learned counsel for the petitioner relied on the judgment of this Court in **Jomol John and others v. Bar Council of India and others** [2021 (4) KHC 10]. In the said case, a learned Single Judge of this Court held that since the law does not contemplate a vacuum, doctrine of necessity is applied to tide over situations of the instant nature. The doctrine permits certain things to be done as a matter of necessity which would not otherwise countenance on the touchstone of judicial propriety. It was also held that the doctrine of necessity also confers authority on the University to adopt the course suggested by the Bar Council of India so as to enable the petitioners to complete their course. 9. The 2[nd] respondent entered appearance and contested the writ petition. The 2[nd] respondent pointed out that there is no challenge in the writ petition over Clause 4.2 of Ext.P2 Information Bulletin. The delay in completion of WP(C)No.1823/2022 7 internship by the petitioner is not due to any fault of the Dental Council of India or Medical Council of India. The delay is attributable to the University. It is not the petitioner alone who is affected by Clause 4.2. A large number of students might be affected by that Clause. 10. The Standing Counsel for the Dental Council of India pointed out that the judgment of this Court in **Jomol John and others v. Bar Council of India and others** (supra) may not apply to the case of the petitioner since that judgment related to the examination within the realm of Bar Council of India. In the case of medical courses, the Hon'ble Apex Court has given direction and ordered that the time schedule fixed under the directions of the Apex Court shall be strictly adhered to. Therefore, any orders passed in favour of the petitioner in this writ petition would go against the regulation as well as the orders of the Apex Court. WP(C)No.1823/2022 8 11. The learned Standing Counsel for the Dental Council of India further submitted that complaints regarding the fixation of date for completion of internship, were received by the Dental Council of India. The Dental Council of India considered all the aspects and issued a letter/circular to all Universities/Colleges directing that the institutions adhere to essential eligibility criteria including completion of internship. The writ petition is without any merit, contended the Standing Counsel for the 2[nd] respondent. 12. The learned Standing Counsel for the 5[th] respondent submitted that Ext.P4 notice was issued in the previous year on a different context. Ext.P4 was issued after the conduct of examination. The candidates, who are benefitted by Ext.P4, were eligible to submit application at that time. In the case of the petitioner, it is obvious that the petitioner will not satisfy the requirement of completion of WP(C)No.1823/2022 9 internship by 31.03.2022. In the previous year in respect of the candidates who are benefitted by Ext.P4, the Principals of their Institutions had given certificates to the effect that the candidates therein will be completing internship course before 31.03.2021. 13. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the Dental Council of India and also the learned Standing Counsel for the National Board of Examinations. 14. Ext.P2 is the Information Bulletin issued in respect of NEET MDS–2022 by National Board of Examinations. Clause 4.2 of Ext.P2 reads as follows: “A candidate who after passing the final qualifying examination (BDS or the foreign dental degree recognised by GoI/DCI), is undergoing 12 month compulsory rotatory internship/practical training and is likely to complete the same by 31[st] March 2022 can take up this examination, but he/she shall not be eligible for admission unless he/she has completed the compulsory rotatory internship and obtained provisional or permanent registration on or before 31[st] March 2022 or the candidate produces a certificate from the WP(C)No.1823/2022 10 head of Institution that he/she will be completing internship by 31[st] March 2022. Candidate may visit the DCI website to know any change in date of Internship completion.” Therefore, it is evident that a candidate who after passing final year examination and is undergoing 12 months compulsory rotatory internship/direct training and is likely to complete rotatory internship by 31.03.2022 alone is made eligible to take PG MDS examination. As pointed out by the learned Standing Counsel for the 5[th] respondent, Ext.P4 notice was issued in the previous year in a different context. That time, the candidates who were benefitted by Ext.P4 notice had produced certificates from their respective institutions stating that those candidates will be completing requisite internship. In the present case, admittedly, the petitioner will not be completing the compulsory internship by 31.03.2022. 15. Furthermore, this Court finds that the Hon'ble Apex Court has time and again pointed out the necessity to WP(C)No.1823/2022 11 strictly adhere to the time schedule fixed by the regulations and has ordered time and again that no other time schedule should be permissible. The academic course Post Graduation in Dental Course in question is on a higher pedestal. In view of the facts and circumstances of the case, this Court will not be justified in interfering in the conduct of the Examination in question, at this stage in any manner. The writ petition is therefore found to be without any merit and it is dismissed. Sd/- **N. NAGARESH JUDGE** ncd/25.01.2022 WP(C)No.1823/2022 12 ## **APPENDIX OF WP(C) 1823/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE MARK LIST ISSUED TO THE PETITIONER DATED 15.6.2021.** **Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE BROCHURE FOR THE NEET MDS 2022 PUBLISHED IN OFFICIAL WEBSITE OF THE 5TH RESPONDENT.** **Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE BROCHURE FOR THE NEET MDS 2021 PUBLISHED IN OFFICIAL WEBSITE OF THE 5TH RESPONDENT.** **Exhibit P4 TRUE COPY OF THE NOTICE DATED 24.8.2021 ISSUED BY THE 2ND RESPONDENT.** - **Exhibit P5 TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT OF MAHARASHTRA.** **Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS FOR ADMISSION TO THE POSTGRADUATE COURSES IN DENTAL SURGERY (MDS- MASTER OF DENTAL SURGERY)-2021 DATED 4.10.2021.** **Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.** **Exhibit P7(a) TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT.** - **Exhibit P7(b) TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 FILED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT.** - **Exhibit P7(c) TRUE COPY OF THE REPRESENTATION DATED 5.1.2022 FILED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT.**