Private Institutions cannot become “commercial shops” and charge exorbitant fees in name of building fund, infrastructure fund: HC

 

……… The private institutions cannot be permitted to operate like money minting institutions.

……. Over a period of time, education has become a commodity in India. All the genres of society are so overly obsessed with education that it has devalued the real essence of education. Education is no more a noble cause but it has become a business, therefore, the paradigm shift, especially in the higher education from service to business is a matter of concern. The commercialization of education has a dreadful effect that is so subtle that it often goes unnoticed. 

 …… Educational Institutions are indulging in gross misleading advertisements. which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience. 

 …….. It is shocking that the private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time these practices are stopped forthwith and there is a crack down on all these institutions. 

…… Himachal Pradesh High Court

The Himachal Pradesh taking serious cognizance of ill practices of certain educational institution to conduct in unauthorized manner, collecting exorbitant fees and issuing misleading advertisement has directed State Government to set up a Committee to investigate all the Institutions and further directed State Government to ensure that no fees is charged in name of building fund, development fund, infrastructure fund etc.

The Judgement was passed on a petition directed against the order passed in against the Petitioner Institutions to jointly and severally refund the fees taken from the students.

The petitioner is the so called franchisee of the Sikkim Manipal University based at Sikkim and claims to be running its study centre at Shimla. The students had filed petition under Section 11 of the H.P. Private Educational Institutions (Regulatory Commission), Act, 2010 claiming refund of admission fee paid to the petitioner for MBA PGDM course, on the ground that the same was exorbitant and had never been approved either by the State Government or by the UGC. These petitions were contested by the petitioner and vide impugned order, the petitioner was directed to refund the fee.

The order was challenged on the ground that the Education Commission had no jurisdiction to entertain the petition, as the dispute relating to Sikkim Manipal University was beyond its territorial jurisdiction

The Court considered the finding that neither the petitioner Institute had permission by the UGC to run the institute as a distance education programme study centre nor it had  obtained permission from the State Government and thus observed that the petitioner was concerned only with minting money and was least concerned with the prospects and future of the students. It also observed that “Education institution of the petitioner is no less than a commercial shop, where the aspiring needs of the students stand defeated due to the malpractices and frivolous activities of the petitioner. This is a classical example where the petitioner institute has presented an imaginary and illusory picture for making a successful career to the innocent students admitted in their institute, that too, by charging exorbitant fees and thereafter leaving them in the lurch to fend for themselves little knowing that even the courses undertaken by them may probably not even be recognized in the country. This practice is not only to be deprecated, but is also to be handled and dealt with a heavy hand.”

The Court considering various, guidelines and notification relating to territorial restrictions of a State Private University came to the conclusion that the petitioner could not act as a franchisee of the Sikkim Manipal University and dismissed the Petition.

However before it parted with the Judgement, it made certain important observations, regarding practice of educational institutions to issue misleading advertisements, charge exorbitant fees in different names, commercialization of education etc.:

The private institutions cannot be permitted to operate like money minting institutions.

  1. Imparting education can never be equated with profit oriented business as it is neither commerce nor business and if it is so, then the regulatory controls by those at the helm of affairs have not only to be continued, but are also required to be strengthened.
  2. Over a period of time, education has become a commodity in India. All the genres of society are so overly obsessed with education that it has devalued the real essence of education. Education is no more a noble cause but it has become a business, therefore, the paradigm shift, especially in the higher education from service to business is a matter of concern. The commercialization of education has a dreadful effect that is so subtle that it often goes unnoticed. 
  1. Mushroom growth of ill-equipped, understaffed and unrecognized educational institutions was noticed by the Hon’ble Supreme Court and it was observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements.
  1. Educational Institutions are indulging in gross misleading advertisements. which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience. These institutes trap into their web the innocent, vulnerable and unsuspecting students. Their lucrative and mesmerizing advertisements hypnotize the students only to fall into an unknown world of uncertainties. Some institutes promise hundred percent placement, some claim excellent staff, some claim free wi-fi campus, some promise free transportation etc. But what should really matter is ‘education’. This problem is further compounded by the proliferation of coaching institutes which have only made ‘education’ more dirty and murkier. 
  1. It is shocking that the private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time these practices are stopped forthwith and there is a crack down on all these institutions. Every education institution is accountable and no one, therefore, is above the law. It is not to suggest that the private education institutions are not entitled to their due share of autonomy as well as profit, but then it is out of this profit that the private education institutions, including schools are required to create their own assets and other infrastructure. They cannot under the garb of building fund etc. illegally generate funds for their “business expansion” and create “business empires”. 

The Court in light of all these observations felt that there is an urgent need for Government intervention by conducting a fresh investigation of all these institutions and directed the Chief Secretary to Government of Himachal Pradesh is directed to constitute a committee which shall carry out inspection of all the private education institutions at all levels i.e. schools, colleges, coaching centres, extension centres, (called by whatever name), universities etc. throughout the State of Himachal Pradesh regarding requisite infrastructure, parents teacher associations, qualified staff and submit report regarding compliance of the H.P. Private Educational Institutions (Regulation) Act, 1997 within three months.

The Court directed the State Government to ensure that no private education institution is allowed to charge fee towards building fund, infrastructure fund, development fund etc.

In addition to this, the Principal Secretary (Education) is directed to issue mandatory orders to all educational institutions, whether private or government owned, to display the following detailed information relating to faculty, infrastructure, fees breakup, details of internship and placement, on the notice board which shall be placed at the entrance of the campus and on their websites.

EduLegaL View:

Commercialization of education is certainly a serious issue. It is opposed to public policy and Indian tradition. Education has never been commerce in this country. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture.

To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.

Appropriate machinery can be devised by the state or university to ensure that exorbitant fee is not charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.

But nonetheless, after these borderlines have been drawn in plethora of judgements, the issue remaining a burning issue !

Ravi Bhardwaj | mail@edulegal.in

HC directs all Universities to evolve mechanism to decide eligibility at the beginning of academic year

” ……  A provisional admission does not create any vested right in the students. A provisional admission is a concession, which is granted to a student and the same cannot be elevated to a position of a creating a vested legal right. … ” 

“……… We therefore direct the State Government and the respective Universities in the State of Maharashtra to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible….”

The Bombay High Court, while being pained to see students-institutions wasting time in litigation in Court, has directed all the Universities in the State to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible.

The Petitioner in question could clear her backlog of the first year (IInd Semester- Applied Mathematics) subject, only in November, 2015 and before passing the same was granted admission to the Third year (Vth and VIth semester) which was wholly impermissible. The College and the University, for these reasons refused to allow the petitioner to appear for the viva- voce examination of the VIth semester which is to be held on 18th April,2016 and her form was not accepted.

The Petitioner then approached the Court seeking direction to allow the Petitioner to appear for the Viva Voce examinations and the written examinations for the sixth semester and continuation of studies in the seventh and thereafter in the eight semester in the engineering course in the Information Technology faculty.

The Court declined to entertain the petition relying on a rule that a candidate to be eligible to obtain an admission for the Third Year (V & VI semester) should have passed Semester I and II examination and when the Petitioner approached for admission to third year (V and VI semester) in the Academic Year 2014- 15 and was given provisional admission had not cleared the IInd semester examination namely the subject ‘Applied Mathematics’ in which she had failed and hence the Petitioner was not eligible for admission to Third Year.

The Court also ruled that a provisional admission does not create any vested right in the students. The Court also observed that a provisional admission is a concession, which is granted to a student and the same cannot be elevated to a position of a creating a vested legal right. The Petitioner in the present case was given provisional admission and hence she could have claimed any vested right.

Before concluding the Judgement, the Court made following observations:

“ We would be failing in our duty if we do not sound a note of caution in such cases which would be in the interest of the institutions and the students. We are at pains to see number of such cases coming to the court at the fag end when the examination is about to commence. This is routinely happening. Many times it is seen that the institution is at fault for not scrupulously enforcing norms of the University in respect of matters which the University would want the institution to do. The students also many times being aware of the rules try to exploit the situation and try to create equities, and then approach the court at the fag end. In all these situations the students may ultimately suffer huge loss in terms of their academic career. Such situations which are not conducive to anyone are required to avoided. All mischief’s if any at which ever level are required to arrested and remedied at the threshold. This would result in maintaining of academic standards. It is least expected that the students and the institutions waste their time in litigation in Courts. We therefore direct the State Government and the respective Universities in the State of Maharashtra to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible. If the institutions and colleges are guilty of making such admissions/ when are against the rules stern action should be taken against such colleges which would be deterrent to these colleges to deviate from the binding academic rules.”

Thus the Court has directed all the Universities in the State of Maharashtra including Deemed Universities to evolve a mechanism by which the students at the beginning of the academic year are informed about the ineligibility of their admission and are prevented from unnecessary pursuing the course when not eligible. The Court has also warned the Institutions and has cautioned that if the institutions and colleges are guilty of making such admissions/ when are against the rules stern action should be taken against such colleges which would be deterrent to these colleges to deviate from the binding academic rules.

EduLegaL View

 There is no doubt that in spirit, this Judgement is very good and will help in maintaining academic and administrative discipline. However, it is also important to note that considering the diversity of this country and different timings and processes all over the Country, it is almost impossible to determine eligibility at the time of admission.

There are many situations, when essential documents required for eligibility like Migration Certificate, verification of caste certificate, equivalence of a foreign degree from AIU consumes time. Additionally, the Institutions are also working a huge volume. In some case, even results of compartment / improvements are also declared and hence with utmost respect to the Judgement, such blanket process and deadline cannot be laid down.

Yes, I agree that this should certainly happen before the commencement of the second year, so that a student does not waste his time, as has also been observed by the Court.

However, this Judgement certainly gives me a thought and if it has to become a reality, we should have UNIFORM ACADEMIC CODE in the Country, when all the examinations start on same and results are declared on the same date throughout the country.

UNIFORM ACADEMIC CODE ! Another debate in making !

Planning Panel [Niti Aayog] recommends structure for setting up Foreign University in India

It all started with a proposed full-fledged legislation, then a via-media route was found and Academic Collaboration Regulations was introduced in 2013, which also did not work out to be effective, now it is planned to be part of National Education Policy.

Ministry of Human Resource Development had sought opinion from NITI AAYOG on the issue of permitting Foreign Universities to set up campus in India. A similar question was raised in Parliament.

As opined by NITI Aayog and as submitted by HRM in response to a question in Lok Sabha, NITI Aayog has opined that the road map for the same would involve a four-fold effort viz., (i) raising educational standards and international benchmarking (ii) attracting investment in the higher education sector (iii) leveraging India’s soft power and (iv) strengthening regulation.

MHRD

 

 

It was also informed by HRM that University Grants Commission had proposed fresh regulations for promotion and maintenance of standards of academic collaboration between Indian and Foreign Educational Institutions with a view to streamlining its regulations in the matter.

In so far as the legal structure is concerned, this can possibly be done by:

a] Passing of a new legislation to regulate such Universities, the scope of UGC Act, 1956 presently can regulate Universities set up Central / State Legislature

 b] Possibly amending the UGC [Institutions Deemed to be Universities] Regulations, 2010 and allowing such Universities to start operation as Deemed Universities. This would also require amendment in UGC Act, 1956.

 c] Amending modifying the existing UGC (Promotion and Maintenance of Standards of Academic Collaborations between Indian and Foreign Educational Institutes) Regulations, 2012, relaxing the criteria for twinning arrangements between Indian and foreign institutions to permit joint academic programs.

It was also informed that States were also requested to give their views on this issue under the theme of “Internationalisation of Education” and all suggestions received from States and during other consultation processes have been sent to the Committee for Evolution of New Education Policy.

EduLegaL View

Foreign Direct Investment [FDI] is not a new term for any economy. In fact under the policy framework, the Indian government has allowed 100 percent Foreign Direct Investment (FDI) in the education sector through automatic route. However, due to lapsing legislations, stringent regulations, the Policy has remained only a Policy and has not been exploited.

Higher education has suffered in India due to variable reasons, including quality, regulations, infrastructure etc. Resultantly, a large number of Indian students go abroad for their higher education. The entry of foreign universities will encourage competition, quality and will also provide locally the same international platform for Indian students, which are available outside.

“Brain Gain” and not “Brain Drain” is underlying manifestation of the proposed new Policy.

Ravi Bhardwaj | mail@edulegal.in

Advertising Council finds ads of major Coaching Institutes misleading

In a major crackdown on Advertisements released by the Coaching Institutes in print media as well as on their websites, engaged in field of Coaching Students for CAT, MBA, Law Entrance, Banking Examinations, the Advertisement Standard Council of India, has in its decision of January 2016 has found several of their ads to be misleading, unsubstantiated and ambiguous.

These Institutes as per the decision of the Advertising Council have claims of Ranking in the Entrance Examinations, Number of successful students, Coaching and Learning Material Preparations and Contents, Test Series, Coaching Pedagogy to influence the aspirants to join their Institutes.

In January 2016, ASCI’s Consumer Complaints Council (CCC) upheld complaints against major Coaching Institutions which operate in MBA / Engineering / Law Domain relating to misleading advertisements and unsubstantiated claims in their Advertisements. The CCC found that claims in the following advertisements were not substantiated and, thus, violated ASCI Guidelines for Advertising of Educational Institutions.

1. CL Educate Ltd. (Career Launcher):

A] The claims in the advertisement, “CL, No.1 CAT coaching institute with 9629 IIM Calls in CAT’14. Best MBA prep for CAT, IIFT, XAT, NMAT, SNAP Exams“, “Best MBA prep for CAT, IIFT, XAT, NMAT, SNAP Exams” were not substantiated. The claims were misleading by exaggeration.

B] The claim in the advertisement, “Undisputed market leader in the field of Mgmt Entrance Training”, was false.

C] CAT’16/17: The claim in the advertisement, “9629 IIM calls in CAT 2014”, was not adequately substantiated and was misleading by ambiguity and omission of mention of number of students.

2. Think & Learn Pvt. Ltd. (Byju’s Cat Coaching Institute):

A] The claims in the advertisement, “Best CAT Coaching Institute in Delhi”, and “CAT Coaching by India’s Best Trainers, Byju and Santosh”, were not substantiated.

B] The claim in the advertisement, “Join the best coaching for CAT and boost your CAT preparation”, was not substantiated.

3. TathaGat (MBA Entrance / CAT coaching): The claim in the advertisement, “TathaGat is Delhi’s most successful MBA Entrance / CAT coaching institute for last 5 years now”, was not substantiated.

4. Bulls Eye: The claims in the advertisement, “Highest selection/conversion ratio in the industry”, “Best free prep website in India”, “Bulls eye test series is the best” and “Best free MBA preparation website in India”, were not substantiated.

5] National Banking Academy: The claim in the advertisement, “No.1 institute for BANK & SSC”, was not substantiated.

6] Sriram Law Academy: The claim in the advertisement, “Sriram student secure All India 1st Rank for 12th year in a row!”, was not substantiated adequately and is misleading by ambiguity, as the advertiser does not mention the name of the test/exam in the advertisement, and has not submitted supporting data to prove that the photographs of students shown were actually 1st rankers and were from Sriram Law Academy.

7] Rice Education: The claim in the advertisement, “The Best Training for Govt. Jobs Examination”, is an absolute claim and was not substantiated with supporting comparative data versus other institutes.

8] Adamas Career: The claim in the advertisement, “The Best Choice for Medical and Engineering Entrance Examination”, was not substantiated.

9] Shanti Business School: The claims in the advertisement, “100% Placements (misprinted as 1 0%)” and “Average Package – INR 4.65 LPA” were not substantiated and when read in conjunction, were grossly misleading by implication of availability of higher salary packages.

10] Mewar Classes (Crash Course): The claim in the advertisement, “No. 1 coaching in Bhilwara”, was not substantiated.

The Advertising Standards Council of India (ASCI) was established in 1985. One of the important functions of ASCI to ensure the protection of the interests of consumers in various categories. ASCI has therefore laid down guidelines with a view to achieve the acceptance of fair advertising practices in the best interests of the ultimate consumer.

The Consumer Complaints Council (CCC) of ASCI deals with complaints received from Consumers and Industry, against Advertisements which are considered as False, Misleading, Indecent, Illegal, leading to Unsafe practices, or Unfair to competition, and consequently in contravention of the ASCI Code for Self-Regulation in Advertising.

ASCI is also the “Executive Arm” of the Department of Consumer Affairs handling all complaints pertaining to misleading advertisements.

EduLegaL View:

An old marketing strategy saying goes “ Jo Dikhta wahi bikta hai”, it would not be out of place to improvise it to say “Jo Dikhaya Jata hai, wahi bikta hai”.

Coaching Classes and Institutions have overgrown in India due to huge peer pressure and parental aspirations. It is one of the biggest sector, but still unregulated in majority part of the Country. It is high time that this sector is regulated.

Advertisements surprisingly have become one of most important medium to attract students recently amongst educational institutions. Advertisements play a big role in deciding an Institution and it is required that it should be a responsible step devoid of inducements and falsehoods.

But my issue is, what next, what is the action that will be taken against these coaching institutions, who have indulged in misleading publications and advertisements and what about the students who found themselves on the wrong side relying upon the advertisements.

There is no effective legislation in place, which deals with these situations. MHRD look into the matter and bring effective legislation to ban such ads and take effective actions against the Institutions.

Ravi Bhardwaj | mail@edulegal.in

SC issues Notice to Deemed Universities on Transfer Petition by MHRD relating to Deemed University Regulations, 2010

Supreme Court has issued Notice to Deemed Universities on a Transfer Petition filed by MHRD relating to transfer of Appeal filed by MHRD challenging the judgement passed by Karnataka High Court dated 22.05.2014, which quashed the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 as ultravires to UGC Act, 1956 and Constitution of India.

University Grants Commission in the year 2010, has notified University Grants Commission (Institutions Deemed to be Universities) Regulation 2010. The Deemed Universities felt that the Regulations interfered with the autonomy of the Institutions. The Regulations also in their view placed unreasonable restriction on rules relating to governance, admission, fee structure etc. Therefore, several Deemed Universities had challenged the provisions of the University Grants Commission (Institutions Deemed to be Universities) Regulations, 2010 in different High Courts in India.

Tamilnadu

The Deemed Universities based in Tamilnadu made the first challenge. Though initially STATUS-QUO was granted in the matter, but later by a detailed Judgement, the challenge by Deemed Universities based in Tamilnadu was over ruled and the legality and validity of University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 was upheld. The Deemed Universities in Tamilnadu later challenged the Judgement pronounced by Single Judge before Division Bench. The matter is pending for determination before the Division Bench, however the Court has ordered that STATUS QUO will be maintained.

Karnataka

Following the suit, certain Deemed Universities in Karnataka also challenged the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 in Karnataka High Court. In some of the Petition there, stay was granted on the Regulations and some the Court was pleased to order STATUS QUO in favour of the Petitioner as against UGC and MHRD. Later vide detailed Judgement dated 22.05.2014 the Hon’ble Court declared University Grants Commission (Institutions Deemed to be Universities) Regulation 2010, was declared to be invalid and unconstitutional. UGC and MHRD have both filed appeals independently against the Judgement before Division Bench.

Punjab

One of the challenge was also filed before Punjab & Haryana High Court. The matter is pending consideration before the Hon’ble Court. Interim Order staying the Regulations have been passed.

Maharashtra [Aurangabad Bench]

Some of the Deemed Universities based in Maharashtra have also challenged the University Grants Commission (Institutions Deemed to be Universities) Regulation 2010. Though as understood, no Interim Order has been passed in the matter.

Matter Sub-Judice- but UGC keeps amending these Regulations

While Interim Stay is prevailing in one High Court and another High Court has quashed the Regulations, UGC continued to amend the Regulations from time to time, which raised a critical issue as to, did UGC had the legal competency to amend the Regulations, while Courts in India hearing cases relating to challenge and Interim Order restraining UGC from enforcing the Regulations were prevailing and the Regulations were quashed.

Transfer Petition in Supreme Court

MHRD has now filed Transfer Petitions before the Hon’ble Supreme Court of India in Transfer Petition (Civil) Nos. 1555-1561 of 2014 seeking transfer of the cases relating to challenge to University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 before Hon’ble Supreme Court of India. The Transfer Petition were called before the Hon’ble Supreme Court on 11.11.2014. The Supreme Court adjourned these matter on request of the Government to 18.11.2014. The matter was not listed thereafter for so many months.

Eventually, vide order dated 26.02.2014 and 29.03.2014 has issued notice on the Transfer Petition filed by MHRD. The notice is returnable in four weeks. The matter may now be listed on 29.04.2016.

EduLegaL View

University Grants Commission (Institutions Deemed to be Universities) Regulation 2010 applies to all the Deemed Universities. Different High Courts in India took different view of the Regulations resulting in conflict as regards its validity and applicability, as one High Court said it is valid and another said it is invalid.

It is appropriate that considering the universal applicability of the Regulations, the Highest Court of the country rules on its validity and legality, so that issue is settled once and for all.

But again MHRD has take half-effort. It has filed transfer petition in respect of Petitions filed in Karnataka only and not in respect of petitions filed in other High Courts. This will again leave vacuum in the Regulatory Regime.

But till then, the arguments will continue !!!!

Ravi Bhardwaj | mail@edulegal.in

Making a student to re-appear for all papers, for failing in one subject, to pass the course is arbitrary and unconstitutional: HC

“ …… what is the purpose in requiring the candidate to write all the four theory papers again if he has failed in one practical or undergo Clinical/Practical tests again for all the subjects if he has failed in one theory paper? Repetitive undertaking of examinations after having secured the minimum prescribed does not scale up the standard and can only be termed as oppressive from the point of view of the student.”

…. Kerala High Court

The Kerala High Court in a landmark Judgement while setting aside a Kerala University of Health Sciences Regulations has held that making a student to re-appear in all the papers to pass a course, just because he has failed in a single paper in first attempt or thereafter in arbitrary, unconstitutional and violative of Article 14 of Constitution of India.

kerala high court

The case involved Post-graduate medical students who have failed, either because they did not secure the minimum in one of the four theory papers or in one of the clinical/practical tests and were made to re-appear in all the papers to pass the course. The petitioners have not been declared successful in the Post-graduate Medical Course for the reason that they have failed to secure the minimum for the theory and the practical in all the subjects simultaneously.

The petitioners contended that they should be permitted to appear for the theory or the clinical/practical (in which they have failed) without insisting on the appearance for all the papers and practical again. They also argued that such insistence is violative of Constitution of India and does not serve any purpose. It was also their argument that such practice has no nexus with maintaining the standards of education.

Kerala University of Health Sciences in response contended that the candidates cannot pass the examinations piece-meal. The right of the University to prescribe stricter conditions for a Post- graduate medical student to be declared passed is emphasised stating that it is only a step for raising the level of standard. The University adds that its autonomy to fix higher standards in order to declare a candidate as having passed the Post-graduate medical examination cannot be interfered with in exercise of the writ jurisdiction.

KUHS

The rule under challenge was Clause 3.16. of KUHS Regulations of Post- graduate Medical Courses which prescribes that a candidate who has secured minimum of 50 percent marks for theory (40 percent separate minimum for each paper), 50 percent for Clinical/Practical including oral shall be declared to have passed in that subject. A candidate who fails in one subject either theory/practical shall have to appear for all the papers including theory and practical.

It was however, noted by the Court that in the corresponding clause in the MCI Regulations there is no insistence that the candidate who has failed in one subject either theory or practical should again appear for all the papers including theory and practical in the MCI Regulations as in the KUHS Regulations. Even in the Affidavit filed by Medical Council of India there was conspicuous silence as to whether the MCI Regulations insist on a simultaneous pass in the theory and practical.

The Judge however noted the contradiction in the two rules and felt that one cannot lose sight of the fact that a candidate could be declared as ‘passed’ if the MCI Regulations are adopted and at the same time declared as ‘failed’ if the KUHS Regulations are adopted.

After examining all the Rules and hearing the arguments of the parties, the Hon’ble Court while deprecating the practice of re-appearing in all the papers to pass, because he failed in one subject in first attempt, held that:

One can understand if the candidate is required to appear again in the theory and related practical of the particular paper if he has failed to secure the minimum prescribed in that subject as per the norms. But what is the purpose in requiring the candidate to write all the four theory papers again if he has failed in one practical or undergo Clinical/Practical tests again for all the subjects if he has failed in one theory paper? Repetitive undertaking of examinations after having secured the minimum prescribed does not scale up the standard and can only be termed as oppressive from the point of view of the student. The repetitive appearance in examinations under the KUHS Regulations has no rationale nexus with the object sought to be achieved and is obviously violative of Article 14 of the Constitution of India.

The mental anguish which a student has to face in the event of his losing a theory or practical by marginal marks necessitating re-appearance for all the papers in theory and practical in order to secure a pass is unimaginable. It is possible that a candidate who has passed in the first attempt may fail in the same examination in the second attempt and the vicious circle of pass and fail will only result in unfairness to the extreme.

The High Court eventually held that Clause 3.16 of the KUHS Regulations to the extent it insists that ‘a candidate who fails in one subject either theory/practical shall have to appear for all the papers including theory and practical’ is unreasonable and arbitrary.

mci

It however, also asked Medical Council of India to clarify as to whether each candidate should simultaneously pass the theory and practical securing 50 percent marks in each which can be incorporated in the KUHS Regulations appropriately.

EduLegaL View:

“Arbitrariness” is generally tested on touchstone of the parameters of Article 14 of Constitution of India. It also includes in itself a principle that a law / rule should have reasonable nexus [connection] to the object of the law / rule.

In our view, making a student re-appear for the entire paper to achieve the academic award, merely because he has failed in one of the papers does not achieve any object of high standard of education. Such practice is not only unconstitutional but also regressive and oppressive. It is legalized exploitation. In this throat cutting edge of competition, liberalization should be the guiding factor for the regulators.

If a student is asked to re-appear in all the papers, will it increase the standards, the answer is big NO. Then why have such rule.

Just imagine the agony of a student, he has to undergo all the papers again, read the same material all over again, which may enhance his application skills but only create a culture of “repetitiveness” or “ratta” [as they call in Hindi]. This will create bookworms than sharp professionals.

Ravi Bhardwaj | mail@edulegal.in