IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 07.04.2011 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.20605 of 2010 Dr.Madeswaran ... Petitioner Vs. 1.Union of India, Rep. by its Secretary, Ministry of Health and Family Welfare, New Delhi. 2.Medical Council of India, Rep. by its Secretary, MCI at Sector - 8, Pocket - 14, Dwarka - 1, New Delhi - 110 077. 3.National Board of Examinations, NAMS Building, Mahatma Gandhi Marg (Ring Road), Ansari Nagar, New Delhi - 110 029. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records of the letter dated 07.05.2010 having Ref.No.NBE/CET- SS/APRIL-10 passed by the 3rd respondent and quash the same and consequently direct the respondents to keep the results of the DNB- CET SS examination conducted on 18.04.2010 and results declared on 20.04.2010 valid for a period of 2 years from the date of announcement of the result as per Clause 4.6 of the prospectus issued by the 3rd respondent and pass such further orders. For Petitioner :Mr.N.R.R.Arun Natarajan For Respondents :Mr.Dhruva for M/s.Anand, Samy & Dhruva for R3 No Appearance for R1 & R2 ORDER The petitioner, after completing his M.B.B.S. Degree in Coimbatore Medical College during the years 1988-1994, completed his M.S. Degree in General Surgery from Government Stanley Medical https://hcservices.ecourts.gov.in/hcservices/ College during the years 1997-2000 under the non-service quota. The Government of India established the National Board of Examinations (NBE) / the 3rd respondent herein with a prime objective to improve the quality of the Medical Education in order to maintain high and uniform standards for conduct of post graduate examinations in modern medicine, which conducts postgraduate and post doctoral examinations in approved specialities leading to the Diplomate of National Board (DNB) in the accredited medical institutions. The Nomenclature of the qualification awarded by the 3rd respondent is equated with the postgraduate and post doctorate degrees awarded by the other Indian Universities for all purposes including appointment to teaching posts as Lecture/Assistant Professor. Further, the 3rd respondent has also laid down the guidelines for admission to the DNB super specialty programme in order to help the accredited institutions to enroll eligible candidates in the super specialty programme in a fair, transparent and accountable manner. The DNB Centralized Entrance Test - Super Specialty (CET-SS) is an entrance exam conducted by the 3rd respondent for admission to the three years Post Doctoral DNB programme and the candidates, who complete the 3 years DNB programme, are eligible to be appointed as specialist/faculty in any hospital including a training/teaching institution. Whileso, the 1st respondent, in exercise of his power conferred by Sub Section 2 of Section 11 of the Indian Medical Council Act, 1956, issued a notification with the following amendments to the 1st Schedule of the Act. That the Diplomate National Board (DNB) qualifications included in this schedule shall be treated as equivalent to M.D., M.S., D.M. and M.Ch. qualifications of the respective specialty or super specialty, as the case may be, for all purposes including appointment to the teaching posts in the medical institutions. That the teaching experience gained while pursuing DNB courses shall be treated as teaching experience for appointment to the teaching posts in the medical institutions. Subsequently, the 3rd respondent issued a notification for conducting the DNB CET-SS examination in January, 2010. Followed by the notification, the exams were held on 31.01.2010, without issuing any vacancy list for the exams scheduled to be conducted on 31.01.2010. The petitioner, after writing the examination, has secured 56.5 marks out of 120 marks in the DNB CET-SS examination. But, he failed to qualify, for the reason that he was not able to secure 60 marks. However, there were vacant seats available after conducting the DNB CET-SS examination in January, 2010. Therefore, to avoid wastage of these vacant seats, the 3rd respondent with the approval of the 1st respondent, decided to conduct a special session of the DNB CET-SS examination in April, 2010, to fill up the vacant DNB seats of January, 2010. In view of that, the 3rd https://hcservices.ecourts.gov.in/hcservices/ respondent sent a short messaging service (SMS) to the petitioner stating that the 3rd respondent has decided to conduct a re- examination on 18.04.2010. After issuing prospectus for conducting CET-SS examination, the 3rd respondent also held the examination on 18.04.2010. In Clause 4.6 of the prospectus issued by the 3rd respondent it is mentioned that the validity of the result of the DNB CET-SS examination is for a period of two years from the date of declaration of the results. Accordingly, the petitioner also chose the DNB Gastroenterology specialty and wrote the DNB examination conducted on 18.04.2010 and the results were also finally declared on 20.04.2010. In the result certificate issued by the 3rd respondent, it was stated that the petitioner has obtained 91 marks out of 120 and was eligible for entry-II DNB Surgical Specialty Programme subject to fulfilment of admission criteria as prescribed in the information bulletin. Further, it was mentioned that the validity of the above score is for admission to January, 2010, Super Specialty Courses only and the last date for joining the Super specialty Courses was on 30.04.2010 and further made it clear that the mark sheet will not be valid thereafter. 2. At this juncture, the grievance of the petitioner is that when the petitioner has passed DNB CET-SS examination on 20.04.2010 as successful candidate, as per the Clause 4.6 of the prospectus issued by the 3rd respondent, the validity is admittedly for a period of two years from the date of declaration of the results, therefore, he is entitled to seek admission to the DNB course for the vacancy arising for the years 2011 and 2012. But the mark sheet shows the validity of the result only up to 30.04.2010 and thereby taking away the chances of the petitioner to seek admission for a period of two years i.e. till 2012, which is not only reducing the validity of the degree issued to him for two years, but also running contrary to the Clause 4.6 of the prospectus issued by the 3rd respondent. Such action of the 3rd respondent, as contended, is completely going against the prospectus, which has got the force of law and that apart, the vested right conferred by the prospectus cannot be taken away by an executive order in the form of marks certificate issued by the 3rd respondent stating that the validity of the mark sheet will not be valid after 30.04.2010 and on that basis, he further summed up his argument that the restriction of the validity of the marks of the DNB CET-SS only up to 30.04.2010 is illegal and arbitrary. 3. In support of his argument, he has also relied upon a judgment of the Apex Court in the case of State of Punjab and another Vs. Dr.Viney Kumar Kullar and Others (JT 2010(11) SC 575) for a proposition that a candidate, who has appeared on the basis of the prospectus, should be made known about the requirements to be fulfilled by him and cannot be exposed to unknown liabilities or limitations. If the intention was to make the amendment https://hcservices.ecourts.gov.in/hcservices/ notification applicable to subsequent admission, the prospectus should have referred to the amendment circular. He has also relied upon yet another unreported judgment of the Bombay High Court in the case of Sudhir and Satish Vs. The state of Maharastra and others (W.P.No.5197/2009 etc., dated 02.07.2010) for a proposition that when the selection process has commenced and the last date for inviting application is over, any subsequent change in the requirements regarding qualifications, will not affect the process of selection which has already commenced. Otherwise, it would involve issuing a fresh advertisement with the new qualifications. In other words, he added that the rule of the game cannot be changed after or during the middle of the game. With the aforesaid submissions, he sought for allowing the present writ petition. 4. Opposing the argument advanced by the learned counsel for the petitioner, the learned counsel appearing for the 3rd respondent submitted that the Clause 2.27 of the Information Bulletin for the CET-SS April, 2010, clearly mentioned that all the disputes shall lie within the exclusive jurisdiction of the Courts in Delhi. Therefore, if the argument advanced by the petitioner with regard to the prospectus, will hold force of law, then equally Clause 2.27 of the Information Bulletin issued by the 3rd respondent also, will have the force of law and on that basis, it was contended that when the Clause 2.27 of the Information Bulletin mentioned that all the disputes shall lie within the exclusive jurisdiction of the Courts in Delhi, the writ petition filed before this Court has to be decided in the Courts of Delhi, therefore, the present writ petition filed by the petitioner is not maintainable on facts or law and deserves to be dismissed in limine. 5. Secondly, it was contended that the petitioner has not come to this Court with clean hands, since he has concealed various facts, that are relevant for proper adjudication of this petition and that apart, he has also not mentioned about the subsequent corrigendum issued by the 3rd respondent, which was issued well before the examination held on 18.04.2010. In as much as when the 3rd respondent issued a prospectus for conducting DNB CET-SS examination proposing to hold the examination on 18.04.2010, the 3rd respondent failed to mention the validity of the said results by making suitable correction in Clause 4.6 of the prospectus. Therefore, immediately well before the examination held on 18.04.2010 i.e., two weeks before the re-examination, the respondent has issued a corrigendum dated 05.04.2010 stating therein that the validity of the DNB CET-SS examination was limited i.e., till 30.04.2010 only. The said corrigendum was also published on the official website of the respondent along with the information bulletin. Therefore, there is no breach of any legal right of the petitioner, as he allegedly claimed in the present https://hcservices.ecourts.gov.in/hcservices/ writ petition. 6. Adding further, it was argued that the 3rd respondent does not always fix the validity of the test results as to two years in all cases, because the validity of the test results varies from one category to another and this depends on various factors such as vacancy, necessity, demand, etc. After coming to know that among all the candidates, who appeared for 31.01.2010 DNB CET-SS examination, many of them could not succeed by securing sufficient marks, the 3rd respondent, in order to avoid wastage of super specialty seats, took a decision at the highest level to conduct a specialty session of DNB CET-SS with a limited validity till 30.04.2010. Therefore, immediately after issuing the notification finding that the validity period was not mentioned in the earlier notification, a corrigendum dated 05.04.2010 was clearly issued stating that the validity of the DNB CET-SS was limited till 30.04.2010 only and the same was published in the official website of the respondent. Therefore, the petitioner was very well aware of the validity of the DNB CET-SS examination even at the time of writing the examination. Hence, he cannot contend that the petitioner at the time of writing second examination held on 18.04.2010 was not aware of the validity of the examination, that was restricted to 30.04.2010. 7. In support of his submission, that a corrigendum can be issued, he has also relied upon a judgment of the Allahabad High Court in the case of Commissioner of Sales Tax Vs. Dunlop India Limited (CDJ 1991 AII HC 528) for a proposition that if a corrigendum is issued seeking to carry out any correction, it will date back to original order or the proceedings as the case may be. With the aforesaid submission, he prayed for dismissal of the present writ petition. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. The petitioner, after obtaining M.B.B.S. Degree in the year 1994, has also completed M.S. in General Surgery from Government Stanley Medical College in the year 2000. The 3rd respondent, established by the Government of India, has conducted postgraduate and post doctoral examinations in approved specialties leading to the admission to the Diplomate of National Board (DNB) in the accredited medical institutions. Since the DNB has been equivated with the postgraduate and post doctorate degrees awarded by the other Indian Universities for all purposes including appointment to teaching posts as Lecture/Assistant Professor, various guidelines have been laid down by the 3rd respondent for holding admission to the DNB Super Specialty programme to enable accredited institutions to enroll eligible candidates in the Super Specialty programme in a fair, transparent and accountable manner. The DNB Centralized https://hcservices.ecourts.gov.in/hcservices/ Entrance Test - Super Specialty (CET-SS) is an entrance exam conducted by the 3rd respondent for admission to the three years post doctoral DNB programme. The candidates, who complete the three years DNB programme, are eligible to be appointed as specialist/faculty in any hospital including a training/teaching institution. Every candidate, seeking admission for DNB Super Specialities programme, has to qualify CET-SS, as it is an essential pre-requisite for admission into the three years DNB super Specialities programme, because, only after qualifying CET- SS, the successful candidates in the DNB CET-SS will be admitted to the institutions accredited by the 3rd respondent for pursuing the three years post doctoral DNB programme in various Super Specialties. As such, when there was a notification issued by the 1st respondent for conducting DNB CET-SS examination on 31.01.2010, the petitioner, who wrote the said examination on 31.01.2010, did not qualify, as he has failed to secure the requisite marks. However, there were some vacant seats found available after the examination held on 31.01.2010. Since these Super Specialties seats are a precious national resource, the 3rd respondent finding large number of vacant seats lying idle on the expiry of the admission to the January 2010 DNB CET-SS as on 07.03.2010, decided to fill up these Super Specialty seats and accordingly, a decision was taken at the highest level on the basis of the Bhan Committee, who recommended a special session of DNB CET-SS on 18.04.2010 with limited validity of the results till 30.04.2010. 9. Though the 3rd respondent issued a prospectus containing Clause 4.6 holding that the validity of the DNB CET-SS examination is valid for two years, after coming to know that 18.04.2010 exams are special one, they have decided to issue corrigendum dated 05.04.2010 restraining the validity of the special session of DNB CET-SS till 30.04.2010 only. Accordingly, a corrigendum was also published on the official website of the respondent along with information bulletin on 05.04.2010. Therefore, the petitioner, before writing the examination, was put on notice about the validity of the results of the examination and accordingly, as held by the Allahabad High Court in Dunlop India Ltd.'case (cited supra), the impugned corrigendum dated 05.04.2010 unambiguously stating that the validity of the DNB CET-SS was limited till 30.04.2010 will hold legally valid and in law this will certainly date back to the original prospectus issued for the examination. Therefore, the arguments advanced by the learned counsel for the petitioner that as per the Clause 4.6 of the prospectus issued by the 3rd respondent, the petitioner has a right to rely on the DNB CET-SS examination result for admission to the DNB course for the years 2011 and 2012, has to be dismissed as unsustainable in law. 10. In any event, the petitioner, in the second time, has written the examination on 18.04.2010 and two weeks before the examination i.e., on 05.04.2010, a corrigendum was issued in the https://hcservices.ecourts.gov.in/hcservices/ official website of the respondent along with information bulletin. Therefore, the corrigendum will have to take back the original prospectus issued by the 3rd respondent, in which event, Clause 4.6 of the prospectus, mentioning the validity of the examination for two years, will stand amended, as unambiguously stated in the corrigendum dated 05.04.2010, wherein the validity of the examination held on 18.04.2010 was restricted till 30.04.2010 only. Therefore, there is no breach of any legal right of the petitioner. 11. Further, it is also relevant to refer to a Bhan Committee's recommendation held on 08.03.2010. In the said report, a reference is made to a judgment pronounced by the Supreme Court of India and further, it was stated therein that the revised scheme of the examinations as approved by the Apex Court is largely in the interest of candidates and on that basis, the report further held that after thorough discussions, they decided that a special session of CET-SS may be conducted by NBE in March/April, 2010 as an extraordinary measure to fill up vacant seats for DNB Super Specialty courses 2010 session. Further, in paragraph 7 of the said report, the committee has also discussed the case of one Dr. Kamlesh Goverdhanlal Shah Vs. NBE, stating that the cut off date for admission to DNB SS courses as adapted by NBE i.e. 30th April, 2008, cannot be relaxed or extended, since there are more such cases/candidates, whose application for registration has been rejected. Further, it is stated therein that once the sanctity of the last date is tampered with or changed in favour a particular candidate, finality in the process of registration and examination cannot be attained. Therefore, when the Bhan Committee has already taken a decision on the basis of the similar case decided in Dr. Kamlesh Goverdhanlal Shah Vs. NBE holding unambiguously that the cut off date for admission to DNB SS courses as adapted by NBE i.e., 30th April, 2010, cannot be relaxed or extended, I do not find any merit in the present case to interfere with the prospectus as well as corrigendum issued by the 3rd respondent. Moreover, the petitioner, even without challenging the Bhan committee's recommendation, has wrongly come to this Court complaining that the corrigendum issued subsequently was behind his back and therefore, the corrigendum goes against the prospectus, this argument, does not merit any consideration. Accordingly, this Court finding no merit in the writ petition, dismisses the same. No Costs. Consequently, connected miscellaneous petitions are closed. rkm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, Union of India, Ministry of Health and Family Welfare, New Delhi. 2.The Secretary, Medical Council of India, MCI at Sector - 8, Pocket - 14, Dwarka - 1, New Delhi - 110 077. 3.National Board of Examinations, NAMS Building, Mahatma Gandhi Marg (Ring Road), Ansari Nagar, New Delhi - 110 029. + 1 cc to M/s. C. Uma, Advocate SR No.24565 + 1 cc to M/s. Anand, Advocate SR No.24721 VSN(CO) SR/28.4.2011 W.P.No.20605/2010 https://hcservices.ecourts.gov.in/hcservices/