- (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 :-
". . . . . . . . . . . . I am directed to say that the Faculty is constituted by the homoeopathic Board with the approval of Government and the Board is the authority to empower the Faculty with certain powers. As the regulations issued by the Orissa State Board of Homoeopathic medicine are clear on the subject, the reference to Government to give a ruling if the Faculty can reconsider the results already declared is not warranted as there is no provision in the regulations for issue of any such direction. "
In the meantime, the Examination Sub-Committee recommended for addition of grace marks under the appropriate regulation and on 25-6-1975, the Faculty with the President of the Board as its Chairman approved the results on the basis of addition of grace marks and the Secretary of the Board declared the results of several students including the petitioner. Petitioner whose roll number was 211 was declared to have passed, in all, four subjects excepting gynaecology and Obstetrics. Petitioner took the supplementary examination in the subject wherein she had failed in August, 1975, and on 23-11-1975, petitioner whose roll number was 66 was declared to have passed in the said subject, petitioner thereafter wanted to undertake the housemanship training but as in the meantime the republication of the results had been cancelled, she was not admitted by the Principal of the College for housemanship training. In the first case by an interim order dated 4-12-1975 the operation of the resolution cancelling her result was stayed and in the second case, petitioner was permitted to be admitted into the housemanship training. By now; the petitioner has already completed her training of six months and has obtained the requisite certificate. After the results had been declared on 25-6-1975, the President of the Board wrote to Government asking for approval of the resolution of the Faculty dated 25-6-1975 and on 22-9-1975, Government informed the President to the following effect (vide Annexure 3):-
"sub:-- Seeking Government approval of the resolution of the Faculty meeting held on 25-6-1975 regarding review of the results after publication. Ref:-- Your Letter No. 2319 dated 1-9-1975. Sir, i am directed to say that in view of what has been stated in the government letters No 1128/h dated 13-1-1975, No. 1632/h, dated 10-6-1975. No. 22231/h, dated 2-8-1975 and No. 25127/h dated 258-1975 to your address on the above subject, it is considered that the above resolution is not required to be cancelled by the Government. "
On 11-11-1975, Government turned down the proposal for amendment of certain Regulations including one for conferring power to review results and informed the President to the following effect:-
"i am directed to say that according to the Orissa Homoeopathic Act, 1956, the State Board of Homoeopathic Medicine has no power to review the results of any examination conducted by it after publication of the results thereof. As the matter has been inordinately delayed, the Board may therefore please take necessary action immediately and action taken be reported to Government by 22-11-1975 positively. "
In view of the aforesaid letter, the Faculty passed the following resolution on 21-11-1975 :-
"reconsidered the resolution No. 2 of the last meeting of the Faculty held on 25-6-1975 where the result of the candidates of 1969-70 batch was reviewed in the circumstances noted in the said resolution and the result was always subject to the Government approval. The said resolution of the Faculty has not been approved by. , the government and they have further intimated that a review of the result after once it is published is beyond the jurisdiction of the faculty or the Board. In the circumstances, the Faculty feels that as government do not approve this particular result as required under regulations 20 and 21, the same shall stand null and void. Let a copy of the same be forwarded to the Principals also. "
It is this resolution of the Faculty which is assailed in the writ application.
(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.