1 WP 2141.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2141 OF 2011 Dr. Nilesh Balwant Gourshettiwar. ... Petitioner. V/s. Union of India and Ors. ... Respondents. WITH WRIT PETITION (L) NO. 1228 OF 2011 Dr. Deep Bharat Parekh. ... Petitioner. V/s. Union of India. ... Respondent. WITH WRIT PETITION (L) NO. 1242 OF 2011 Dr. Gaurav Ahluwalia. ... Petitioner. V/s. Union of India and Ors. ... Respondents. WITH WRIT PETITION (L) NO. 1243 OF 2011 Dr. Gaurang Pradipkumar Raval. ... Petitioner. V/s. Union of India. ... Respondent. WITH 2 WP 2141.11.sxw WRIT PETITION (L) NO. 1244 OF 2011 Dr. Aditi Chetan Doshi. ... Petitioner. V/s. Union of India. ... Respondent. WITH WRIT PETITION (L) NO. 1245 OF 2011 Dr. Ami Rajesh Shah. ... Petitioner. V/s. Union of India and Ors. ... Respondents. WITH WRIT PETITION (L) NO. 1246 OF 2011 Dr. Nikky Chetankumar Mehta. ... Petitioner. V/s. Union of India and 2 Ors. ... Respondents. WITH WRIT PETITION NO. 2142 OF 2011 Dr. Chetan Ramesh Jathar. ... Petitioner. V/s. Union of India. ... Respondent. WITH WRIT PETITION NO. 2143 OF 2011 Dr. Sudarshan Vijay Pawar. ... Petitioner. V/s. Union of India. ... Respondent. 3 WP 2141.11.sxw WITH WRIT PETITION (L) NO. 2421 OF 2011 St. Wilfreds Education Society & Anr. ... Petitioners. V/s. All India Council For Technical Education. ... Respondents. Mr. V.M. Thorat a/w. Ms. Pooja V. Thorat for the Petitioners. Mr. Dinesh Tripathi a/w. Rajinder Kumar a/w. V.P. Sawant i/b. Rui Rodrigues for Respondent 1. Mr. M.S. Bhardwaj for Respondent 2. Mr. E.P. Bharucha, Senior Advocate a/w. Nikhil Agrawal i/b. Rustamji & Ginwala for Respondent 3. CORAM : DR. D.Y. CHANDRACHUD & A.A. SAYED, JJ. 28 NOVEMBER 2011. ORAL JUDGMENT (Per Dr. D.Y. Chandrachud,J.) :- Rule, by consent returnable forthwith. With the consent of Counsel and at their request the Petitions are taken up for hearing and final disposal. 2. This Judgment would govern a batch of nine Petitions, all of them filed by Doctors who seek to challenge a communication issued by the National Board of Examination on 14 June 2011 holding that they could not be considered for 4 WP 2141.11.sxw registration as DNB trainees for the session commencing from July 2010 in the specialties of Radiology, ENT and Paediatrics. 3. Prior to June 2010, certain guidelines have been framed by the National Board of Examinations, the Second Respondent, for admission to the post graduate DNB programme. Under the earlier guidelines, aptitude assessments were required to be conducted by the institute granting admission after inviting applications in a transparent manner upon wide publicity. Each institute was required to evaluate objective skills for assessing the professional aptitude of candidates and a model scale for assessment of skills as proposed was annexed as Annexure 9 to the Guidelines. The institute concerned was required to prepare a subject wise merit list based on the performance of the candidates as assessed in the aptitude test. Under Annexure 9, 10 marks were required to be assigned; of them, 5 were for knowledge about clinical procedures, surgical skills, aptitude and commonly practiced protocols in the concerned specialty. The remaining 5 marks were to be assigned on the basis of experience, academic achievement, publications and conferences attended. Under the earlier Rules, an eligibility 5 WP 2141.11.sxw test was conducted by the Second Respondent. It is common ground that individual marks of candidates were not disclosed and candidates were only required to clear the eligibility test with a minimum of 50% marks. 4. On 2 June 2010, the Nanavati Hospital, impleaded as Third Respondent to these proceedings, issued an advertisement for appointment of Resident Doctors for the DNB Course in six disciplines. The last date for submitting completed application forms was 30 June 2010 and the term was to begin from 1 August 2010. On 5 July 2010, the Second Respondent issued a public notice on its Website by which it was notified that fresh admission guidelines would be applicable from the July 2010 Session. Under the guidelines it was stipulated that selection would be purely on the basis of merit- cum-choice based on the marks obtained by candidates in the Common Entrance Test (CET). The notice stipulated the parameters which would be applied in the event that two or more candidates had the same marks at the CET. Under the fresh admission guidelines which have been notified by the Second Respondent candidates who have passed the CET within the preceding two calender years are eligible for 6 WP 2141.11.sxw training as primary trainees, the training programme being for three years. In other words, candidates who had passed their CET from July 2008 onwards would be eligible as primary trainees. In addition, “A” graded hospitals are permitted to enroll an equal number of trainees holding Post Graduate Diplomas recognized by the Medical Council of India for a period of two years as secondary trainees. The guidelines stipulate that secondary trainees are to be enrolled only against admissions granted to primary trainees either simultaneously or immediately after CET qualified primary trainees have joined but not later than 14 August. Primary trainees are the students, who have completed their MBBS and have passed the CET. Secondary trainees are candidates, who have in addition to the MBBS completed a Post Graduate Diploma. The duration of the course for primary trainees is three years while for secondary trainees, it is two years. 5. After the new guidelines were notified, Writ proceedings under Article 226 of the Constitution of India came to be instituted before this Court challenging the action of the Second Respondent. The contention of the Petitioners in the 7 WP 2141.11.sxw earlier Petitions (Writ Petition (Lodg.) No. 1483 and 1485 of 2010) was that under the Rules which were in force in December 2008 when they passed the qualifying examination, a candidate was only required to secure a minimum of 50% in aggregate in both the papers of the eligibility test in order to be declared as successful and the validity of the result of the December 2008 CET was for a period of two years. Each institute was required to admit students on the basis of an objective assessment test. The grievance of the Petitioners was that whereas, when they appeared for the eligibility test, the examination was only for the purpose of obtaining eligibility to appear for the aptitude test, under the modified Rules, the merit of a candidate is based entirely on the marks obtained in the written examination. 6. A Division Bench of this Court presided over by the learned Chief Justice, by its Judgment dated 16 July 2010, held that there was no infirmity in the new Rules, in so far as they provide for admission to the DNB Degree Course on the basis of marks obtained in the written examination. The Division Bench however held that it would be open to the Second 8 WP 2141.11.sxw Respondent to make some provision for candidates who had passed their qualifying examination prior to June 2010. The observations of the Court were as follows :- “ In view of the above, while we do not find any infirmity in the new Rules in so far as they provide for admission to the DNB Degree on the basis of marks obtained at the written examination, Respondent No.2 would certainly consider the Petitioners’ representations as contained in these petitions for the purpose of making some provision for the students who had passed their qualifying CET examination between June, 2008 and December, 2009. It would be open to Respondent No.2 to provide for quota for such students who had passed their qualifying examination prior to June, 2010 knowing full well that they were only required to obtain minimum 50% marks at the said examination and that the marks at the said examinations were not to determine the merit of the candidates for the purpose of securing admission to the DNB Degree and that the merits were to be determined only on the basis of the 20 marks at the aptitude test out of which 15 marks were relateable to the experience obtained by the candidates after passing M.B.B.S., and completing internship.” 9 WP 2141.11.sxw 7. By a further clarification dated 23 July 2010, the Division Bench directed that these observations in paragraph 7 were made having regard to the fact that a change in the method of selection by the amendment of the Rules did not give sufficient time to the students to prepare for the examination which was held in June 2010. However, the Division Bench clarified that a one time concession for students who passed the qualifying examination between June 2008 and December 2009 would be confined only to the current Session which was being held in July-August 2010 and not for the future. 8. A fresh batch of Writ Petitions came to be filed in this Court in view of the fact that the Second Respondent took a decision not to provide any quota for the students who had passed qualifying examination between June 2008 and December 2009. In that batch of Petitions, the Division Bench in its order dated 9 September 2010 noted that the Petitioners were students who could not secure admission earlier because they did not have the necessary experience and were students, who were in the process of obtaining experience required over a period of one and a half years. The Court 10 WP 2141.11.sxw observed that the rationale for modifying the earlier Rules, according to the Second Respondent, was that under the old Rules, students were getting admissions on the basis of extraneous considerations. This, the Court held that can never be applied to those Petitioners who had not secured admissions in 2008 and 2009 and were in the process of obtaining the requisite experience. Accordingly, by an interim order dated 9 September 2010 which was followed by a further order dated 14 September 2010, consequential relief was granted by the Division Bench to about 13 students. 9. In pursuance of an advertisement which was issued by the Third Respondent on 2 June 2010, letters were addressed on 13 July 2010 to Applicants, calling them for an interview on 22 July 2010. Students were directed to bring their original certificates. On 27 July 2010, the Third Respondent put up a list of candidates who had attended the interview. As would be noticed hereafter, a merit list was prepared on the basis of the marks obtained by candidates in the CET as required by the new Rules which were notified in June 2010. The candidates were directed to pay their fees on or before 31 July 11 WP 2141.11.sxw 2010 in accordance with the order of merit, failing which, it was stated that the next available candidate would be considered. 10. Complaints were received by the Second Respondent from five candidates between July and September 2010. The gravamen of the complaints was that despite the change in criteria for admissions under which admissions were to be granted only on the basis of marks obtained in the CET, the Third Respondent had still conducted interviews with a view to grant admission to two internal candidates though they had lower merit. By a communication dated 31 August 2010, the Second Respondent drew the attention of the Third Respondent to the modified admission guidelines. By a further communication dated 6 September 2010, the Third Respondent, was directed to complete the admissions process in accordance with the prescribed guidelines by 15 September 2010. On 9 September 2010, the Second Respondent addressed a letter to the Third Respondent stating that on a scrutiny of the applications sent for registration, it was found that the Third Respondent had conducted an aptitude test for selection of candidates which was in contravention of the 12 WP 2141.11.sxw guidelines as prescribed in June 2010 and as intimated by a public notice dated 1 July 2010. By its reply, the Third Respondent stated that though under Annexure 9 of the earlier Rules, it had assessed the candidates and sent the marks obtained in the aptitude test to the Second Respondent, as a matter of fact, admissions were granted in accordance with the revised guidelines of the Second Respondent only on the basis of the CET marks obtained by candidates. On 23 September 2010, the Second Respondent addressed a communication to the Third Respondent pointing out certain discrepancies as regards two Applicants in the speciality of Radiology. The Third Respondent addressed a reply dated 30 September 2010 pointing out that students had filed a Petition before this Court challenging the new Rules and had pleaded that those students who had put in experience for more than six months should be considered for admission to the DNB course. The Third Respondent stated that though there was an element of confusion, it had decided to proceed by the CET marks obtained by candidates and to call them for an interview. Accordingly, those students who attended the interview with the original documents on the 13 WP 2141.11.sxw relevant date of the interview were considered and a merit list of those candidates was prepared showing the marks obtained in the CET. The Third Respondent pointed out that even after the lists were displayed on the notice board, until the date of admission on 15 September 2010, no candidate wrote any letter to the institution with any grievance. On 1 March 2011, the Second Respondent addressed a communication to the Third Respondent stating that it was found that candidates in the specialities of Radiology, Paediatrics and ENT had not been admitted on the basis of merit-cum-choice as prescribed in the guidelines for the Session commencing from July 2010. By a reply dated 9 March 2011, the Third Respondent stated that it had no intention to breach any of the guidelines for admission to the DNB programme but sought to tender an apology due to inadvertence if it had failed to follow strictly any of the guidelines. By a communication dated 14 June 2011, the Second Respondent intimated the third Respondent that the candidature of the students admitted in the aforesaid three specialities as DNB trainees could not be considered for registration as per NBE norms. 14 WP 2141.11.sxw 11. Nine Writ Petitions have been filed by candidates in these proceedings under Article 226 of the Constitution. Of them, five Petitioners are candidates who have been admitted as primary trainees in the Specialities of Radiology, ENT and Paediatrics. Four Petitions are by the students who have been admitted as secondary trainees by the Third Respondent. At the outset, and before we deal with the submissions which have been urged, it would be necessary to note the admitted position that there is no allegation as regards the admissions which have been granted to the secondary trainees. The only basis on which the admissions granted to the secondary trainees are questioned is a clause in the guidelines which stipulates that secondary trainees are to be enrolled only against primary trainees. The Second Respondent has objected to the admissions which have been granted to the primary trainees and it is on that basis that registration to the four secondary trainees is also sought to be refused. On this factual aspect, there is no dispute before the Court in the present proceedings. 12. Counsel appearing on behalf of the Petitioners submitted that (i) The modified guidelines came to be notified in July 15 WP 2141.11.sxw 2010. Prior thereto the admissions process had commenced by the issuance of an advertisement on 2 June 2010; (ii) In the proceedings which were initiated by several students before this Court, a Division Bench had, by its order dated 16 July 2010 left it open to the Second Respondent to make some provision for students who had passed their qualifying examination prior to June 2010; (iii) The Third Respondent, as a matter of fact conducted the admissions process and granted admissions purely on the basis of the marks obtained in the CET. Though an aptitude test was conducted, admissions were not granted on the basis of the marks obtained in the aptitude test but only on the basis of the new guidelines which mandate that admissions be granted on the basis of marks obtained in the CET. 13. Counsel appearing on behalf of the Third Respondent has similarly urged before the Court, that as a matter of fact, admissions have been granted only on the basis of the CET marks. Candidates were called for an interview together with their original certificates. Though the Third Respondent did hold an aptitude test, it clarified to the Second Respondent that no admissions were granted on the basis of the marks 16 WP 2141.11.sxw obtained in the aforesaid test. Candidates who appeared in response to the letters calling them for the interviews together with their original certificates were considered for admission on the basis of the CET marks. 14. On the other hand, the Second Respondent has filed an affidavit in reply in these proceedings. In the affidavit in reply, it has inter-alia been stated that on the basis of the complaints which were received from six candidates, it was found that the Third Respondent had breached the guidelines by granting admission to less meritorious candidates and by conducting an aptitude test and interview in breach of the guidelines. These submissions have also been reiterated in the arguments which were addressed before the Court by the Counsel appearing on behalf of the Second Respondent. Counsel submitted that sufficient opportunities were granted to the Third Respondent to act in accordance with the guidelines which came to be issued in July 2010. 15. Under the revised guidelines that were issued by the Second Respondent in July 2010, which according to the 17 WP 2141.11.sxw Second Respondent were published on the Website on 1 July 2010, it came to be stipulated that admissions to primary candidates for the DNB Course shall be granted only on the basis of merit as determined in the marks obtained in the CET. Under the earlier guidelines students were required to appear at an eligibility test conducted by the Second Respondent. However, the marks obtained in the eligibility test were not determinative of the merit position since a student was only required to obtain a minimum of 50% marks. Under the earlier guidelines, every institute was required to grant admissions on the basis of an objective assessment test and as noted earlier, a model scale of assessment of skills was proposed in Annexure 9 to the guidelines. The Third Respondent initiated the process of admissions by issuing a public notice which was published in the Times of India on 2 June 2010. Candidates who had applied in response to the notice were intimated to appear for an interview on 22 July 2010 together with their original certificates. The record before the Court does indicate that the Third Respondent conducted an aptitude test. There can be no dispute about the position that upon the enforcement of the new guidelines, 18 WP 2141.11.sxw an aptitude test could not be conducted and admissions were required to be given only on the basis of the marks which were obtained in the CET. The Second Respondent brought about a change from the earlier pattern in order to ensure that extraneous consideration would not come into operation with each individual institute holding its own assessment test. However, what is of significance in the present case is that though the Third Respondent held an aptitude test, the merit list was drawn up on the basis of the marks which were obtained in the CET. The Third Respondent clarified this to the Second Respondent initially by its communication dated 10 September 2010 and once again on 30 September 2010. 16. As the narration of the facts would indicate a batch of students had filed Writ proceedings before this Court challenging the action of the Second Respondent in applying the new guidelines. The Division Bench, by its order dated 16 July 2010 had, while upholding the new guidelines recorded that it would be open to the Second Respondent to make some provision for students who had passed their qualifying examination prior to June 2010 knowing that they were only required to obtain a minimum of 50% marks in the aggregate 19 WP 2141.11.sxw at the eligibility test. By its letter dated 30 September 2010, the Third Respondent clarified that there was some element of confusion in the prevailing state but as a matter of fact, a decision was taken to grant admissions only on the basis of the marks obtained by candidates in the CET. Those students who attended the interview with the original documents at the relevant date were interviewed and a list was prepared of students showing the marks which they obtained in the CET. The merit list, as the material before the Court would indicate, was prepared on the basis of the CET marks. As regards the grievance that candidates, who have been admitted had lower marks than others in the merit list, we have perused the merit list which has been placed on the record in the compilation of documents filed on behalf of the Third Respondent. According to the Third Respondent, candidates who appeared at the interview with their original certificates were considered strictly in accordance with their order of merit based on the CET marks. The Third Respondent has stated that it could not consider candidates who did not appear on the date prescribed with their original documents. 20 WP 2141.11.sxw 17. On this aspect of the matter, the record before the Court does not indicate that any of the candidates who had lodged a complaint to the Second Respondent did as a matter of fact present themselves for admission together with the original certificates before the Third Respondent when the admissions were finalized. No candidate who had appeared for the interview has complained before the Second Respondent or to this Court that though he or she was placed higher in merit, admission came to be denied. 18. In this background, the Court is now confronted with a situation where the students have been admitted for the batch commencing from July 2010 and have substantially progressed in their studies. As noted earlier, there is no allegation whatsoever, in any event, as regards the four students who have been admitted as secondary trainees for the DNB Course. Those candidates would be due to complete their two year training period. The students have continued to pursue their studies in pursuance of the interim directions of the Court in these proceedings. 21 WP 2141.11.sxw 19. The Court has also been informed that subsequently the Second Respondent has introduced a Centralized pattern of admission under which all admissions are to be granted by the Second Respondent. 20. Hence, considering the matter in all its perspectives, we are of the view that this is a fit and proper case for the exercise of the writ jurisdiction under Article 226 of the Constitution to direct the Second Respondent to register the Petitioners as Post Graduate DNB students in their respective disciplines and to allow them to pursue their course of studies. 21. The reasons which weighed with the Second Respondent in declining to register the candidates are clearly erroneous and we accordingly quash and set aside the impugned communication dated 14 June 2011. 22. Rule is accordingly made absolute in all the Petitions in the aforesaid terms. There shall be no order as to costs. (Dr. D.Y. Chandrachud, J.) (A.A. Sayed, J.) 22 WP 2141.11.sxw