S. D. Agarwala, J.- - (1.) DR. N. D. Tabiliani is the Professor and Head of the Department of Surgery in the Moti Lal Nehru Medical College, Allahabad. He is the petitioner in the present petition. Undisputably he is a very eminent surgeon. He has filed the present petition in connection with the appointment of examiners for M.S. and M.B.B.S. examinations held by the University of Allahabad. The dispute is in regard to the appointment of examiners for the years 1986 and 1987. On 9th March, 1985, a meeting was held of the Board of Studies of the Department of Surgery In this meeting examiners were appointed for 1986 examinations. Similarly on 26th April, 1986, the meeting of the Board of Studies took place for appointment of examiners for the year 1987. The Board of Studies in both the above meetings appointed examiners for the years 1986 and 1987. In the petition it has been stated that the Medical Council of India, which is a body constituted under the Medical Council of India Act, had made recommendations wherein it was stated that the Head of the Department should ordinarily be one of the examiners for the post graduate examinations. In accordance with the recommendations of the Medical Council of India a meeting of the joint board of studies under the Faculty of Medicines was held on 9-11-1978 and the following resolution was passed : "There should be a Chairman of the Board of examiners, who shall be of the rank of Professor and Head of the Department or Professor and who shall supervise and co-ordinate the examination." On 4th November, 1986, the petitioner received a communication from the Registrar asking the petitioner to contact the Dean, Faculty of Medicine, on whose recommendation the Vice-Chancellor was pleased to pass an order that he may not be associated with the examinations of his department of Surgery.
(2.) THE petitioner challenged this communication dated 4th November, 1986, before this Hon'ble Court in a petition under Article 226 of the Constitution of India. In that petition serious allegations of malafides were made against Dr. S. R. Singh, respondent no. 4, who is the Principal of the Medical College, Allahabad. A Division Bench of this Court by order dated 12-11-1986 quashed the communication dated 4th of November, 1986, issued by the Registrar on the ground that the order was of a penal nature and since it had been made without affording any opportunity to the petitioner it was void in law. This court, however, did not think it necessary to examine the allegations of malafides made against Dr. S. R. Singh. On that very day after the order was quashed by this court the Registrar issued another order, contents of which are quoted below : "I have been advised by the University counsel to inform you that the order of Vice-Chancellor dissociating Dr. N. D. Tahiliani has been quashed. It is, however, open to the University to make fresh appointment of Examiners for the ensuing examinations. The Board of studies in Surgery should, therefore, meet soon to recommend names of examiners. You may please inform Dr. N. D. Tahiliani, Head of Department of Surgery to convene the meeting of Board of Studies latest by 15-11-1986 so that necessary action is taken in respect to paper setting etc." It is surprising that the University should have scant respect for the orders of this court that inspite of the fact that this court quashed the order dated 4th November, 1986, on the ground that no opportunity was afforded another order was passed by the University directing appointment of fresh examiners without completing the process of giving an opportunity to Dr. Tahiliani as to why he should be dissociated with the examination. On receipt of this letter the petitioner objected to the holding of this meeting and specifically pointed out that this amounts to contempt of the High Court. Immediately thereafter it appears that a complaint by Professor A. K. Gupta and Professor D. K. Mittal dated 12th November, 1986, was forwarded by Dr. S. R. Singh, the Principal of the college, to the Vice-Chancellor complaining against Dr. Tahiliani. This complaint has been attached as Annexure VI to the petition. On the basis of this complaint, however the University issued a notice to the petitioner on 18th of November, 1986, asking him as to why he should not be dissociated from the examination of the University in view of the irregularities pointed out in the complaint, referred to above. This show cause notice has been attached as Annexure V to the petition.
(3.) HOWEVER, in respect of the examiners for the year 1986 the then Vice Chancellor of the Allahabad University, Dr. R. P. Misra, called the petitioner along with almost all the Doctors of the Department of Surgery at an informal meeting at his residence on 27-11-86. On the insistence of Dr. R. P. Misra the petitioner keeping in mind the interest of the students and also the fact that the examinations of M.B.B.S. and M.S. were bound to be postponed in view of the dispute in regard to the appointment of the examiners agreed not to act as examiner. In view of the fact that the petitioner agreed not to act as the examiner, the examinations were held as per the schedule and were not delayed. The result was that the dispute in regard to the appointment of examiners for the year 1986, came to an end. On 26th December, 1986, the University issued letters to Dr. R. K. Mathur and Dr. D. K. Mittal appointing them as examiners for the year 1987 examination. Since these appointments were absolutely contrary to the resolution passed by the Board of Studies as far back as 26th April, 1986, the petitioner filed the present petition in this court seeking a writ of mandamus restraining the respondents from interfering with the petitioners' acting as an examiner for M.S. and M.B.B.S. examination, 1987, and further seeking enforcement of the decision of the Board of Studies in the meeting held on 26th April, 1986, appointing examiners for the year 1987. It is pertinent to mention here that the University subsequently on 8th January, 1987, withdrew the letters dated 26th December, 1986, appointing examiners. The case as set up by the University in the counter affidavit is that the letters dated 26th of December, 1986, were issued to Dr. R. K. Mathur and Dr. D. K. Mittal due to inadvertance and consequently they were withdrawn. Though the University withdrew the letters issued to Dr. R. K. Mathur and Dr. D. K. Mittal still the case taken up by the University in the counter affidavit is that since the decision taken by the Board of Studies on 26th April, 1986, was not accepted by the Board of Faculty of Medicine in its meeting held on 8th August, 1986, the petitioner was not entitled to enforcement of the decision taken by the Board of Studies on 26th of April, 1986.;