NIRUPAMA MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) BOTH these writ applications are by the same petitioner. In the first case, she has asked for a writ of mandamus restraining the State Government, the Orissa state Board of Homoeopathic Medicine and the Orissa State Medical Faculty of homoeopathy from implementing the Faculty Resolution of November, 1975 (Annexure 5), canceling the results. In the second application, petitioner has asked for a direction to the very same opposite parties as also the Registrar of orissa State Board of Homoeopathic Medicine and the Principal-Cum-Superintendent of the Government Homoeopathic Medical College and Hospital at Bhubaneswar to allow her to undergo housemanship training unaffected by annexure 5 of the earlier writ application.

(2.) UNDER the Orissa Homoeopathic Act, the Orissa State Board of Homoeopathic medicine has been set up. In May, 1974, the Act was amended authorising government to vest the powers of the Board in the President alone and on 175-1974, Government appointed Sri Chintamoni Mohapatra as the President of the Board and authorised him to exercise all the powers of the Board. The government Homoeopathic Medical College at Bhubaneswar is affiliated to the homoeopathic Board which conducts examinations and awards Degrees and diplomas. Petitioner took admission in the said College at Bhubaneswar for the 4 year D. H. M. S. Course in 1969 and she was one of the first batch of students to be admitted for the course in the College, The final examination was due in 1973. The said examination was, however, not held when due by the board and petitioner and others studying with her were obliged to take the examination in the year 1974 along with the batch of students who got admitted in 1970. Results were published in November, 1974, and petitioner was not shown to have come out successful. Regulations framed under Section 53 of the Homoeopathic Act provide for the setting up of the Medical Faculty of homoeopathy and under the Regulations in cases of extreme hardship, the faculty (which is responsible for the holding of examinations) has power to allow grace marks not exceeding twenty per cent of the total marks on the recommendation of the Examination Sub-Committee. As the result of the 1969 batch of students was bad, petitioner and several others who had not been successful represented that they had already lost one year; on account of lack of facilities for proper teaching and being the first batch of students they had suffered a lot of hardship; the discontinuance of one year of regular study was a set back in their continuous preparation for their examination et cetera. In january, 1975, the President moved Government to clarify if the Faculty could consider the result afresh and Government wrote back saying :-

(3.) TWO counter affidavits have been filed --one on behalf of the State of Orissa and the other on behalf of opposite parties 2 to 4. Government have taken the stand that they are not necessary party to the dispute and should not have been impleaded. In a dispute relating to the constitution of the Homoeopathic board, this Court in its decision reported in ILR (1972) Cut 1419, (Mathesh chandra Satapathy v. State of Orissa) declared the constitution of the State homoeopathic Board to be invalid and as the powers of the Board are not vested In the President, no examination could be conducted in 1973. When government were requested to decide as to whether the results of the 1974 examination could be reviewed, Government informed the Board that the faculty was constituted by the Board with the approval of Gov- ernment and the Board was the authority to empower the Faculty with certain powers. As the regulations issued by the Board were clear, reference to Government was unwarranted. The Faculty in its meeting held on 25-6-1975 after reviewing the cases of failed candidates allowed a maximum grace of twenty per cent of the marks in each subject and by allowing such grace marks declared the petitioner to have passed in four subjects out of five. The Faculty did this in anticipation of amendment of Regulation 35 by Government. The President of the Faculty suggested to Government that a new clause be added in the Regulation to authorise review. Government did not accept the proposal, but instead of awaiting final decision of the Government for the proposed amendment to regulation 35, the Board reconsidered the results of the failed candidates and declared the petitioner to have passed in the four subjects as stated above. The faculty having recalled its resolution declaring the results, Government had nothing to do in the matter.