In the High Court for the States of Punjab and Haryana at Chandigarh … L.P.A. No. 1415 of 2010 Date of decision: 12.10.2011 National Board of Examinations ..Appellant Versus Dr. Abhishek Kumar Biswas and others ..Respondents Coram: Hon’ble the Acting Chief Justice Hon'ble Mr. Justice Rajiv Narain Raina Present: Mr. Sumeet Goel, Advocate for the Appellant. Mr. Ashok Aggarwal, Advocate for respondent Nos.3,4 and 6. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate for respondent No.5 .. 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest? Rajiv Narain Raina,J. 1. The National Board of Examinations (for short, “NBE”) is in Letters Patent Appeal under Clause X of the Letters Patent 1919 against the judgment and order dated 21.8.2010 rendered by the learned Single Judge. The appellant was the second respondent in the writ petition. The NBE was set up by the Ministry of Health and Family Welfare Govt. of India in 1975 to confer post graduate and post doctoral examination in medical sciences at par with the International standards like the MRCP/FRCS in U.K. etc. Though established in 1975 the Diplomate National Board (for short, “DNB”) became an independent autonomous body in 1982. Degrees and qualifications conferred by DNB are duly recognized by the Indian Medical Council Act as stands inserted in the first schedule of the Act in 1983. Therefore, DNB qualifications are equivalent to MD/MS degrees granted by Indian Universities. Presently NBE inter alia conducts examinations in 54 disciplines or streams of modern medicines at post graduate and post doctoral levels. More than 28000 candidates who are already qualified MBBS doctors appear every year in the various post graduate and post doctoral examinations conducted by this body. DNB has no campus or teaching faculty of its own, nor holds classes. It has accredited various private hospitals and medical institutes in the country in one or more disciplines or streams offered by DNB. The training involves three years. The entry methodology is that candidates register themselves first with the DNB and then they are placed for training at one of the training institutes of their choice across the country. The written examination is followed by acceptance of thesis and also requires appearance in DNB theory examinations. This is followed by practical examinations. It is mix of both a theory and practical examination. There is an elaborate system in place at DNB where it appoints independent inspectors who are ordinarily of the rank of Professors or Senior Consultants and who are persons of eminence in their respective fields. They inspect hospitals and certify them fit to impart specialty and super specialty medical education in the fields and disciplines NBE offers. The relationship between the accredited hospital and DNB is governed by an accreditation contract. The evaluation process for accreditation is done by an elaborate procedure. The number of seats which are permitted at each institute or discipline generally permit enrolment of 1-4 candidates in any particular specialty depending upon the academic infrastructure and patient load at the accredited hospital. 2. Petitioners No.1 to 5 were admitted to pursue DNB courses at the Mohan Dai Oswal Cancer Treatment and Research Foundation, Ludhiana an accredited hospital of DNB. Petitioner No.1 was a primary candidate in Radiotherapy and petitioner Nos.2 to 5 were either primary or secondary candidates in anesthesia. The academic sessions in relation to the admission were for the period of 2008-09/2009-10. The duration of the course is three years. The appellant NBE by three separate letters all dated 8.2.2008 granted provisional accreditation (fresh) in radiotherapy, surgical oncology and anesthesia from January 2008 to December 2010 to the 6th respondent institute. These have been placed as annexure P-6 collectively at page 141-143 of the paper book. The information bulletin for PG courses published in June 2009 mentions that sixth respondent/foundation at serial No.882 displaying two seats each in each of the three disciplines (supra). (Page 266 of paper book, P-16). The DNB letter to the sixth respondent dated 25.6.2009 has been placed as Annexure P-8 which evidences that the appellant granted provisional registration to four trainees in anesthesia. 3. The dispute in the present case resulted from a letter dated 17.5.2009 (P11) the order impugned in the writ petition for which a prayer for quashing was prayed for by the 5 students/petitioners and the hospital respondent No 6. It was said that a complaint was pending against the hospital as it was under investigation by the CVC and that final clearance was still awaited. The Hospital had been advised on 4.2.2009 not to enroll candidates in any specialty till further orders from the appellant. Consequently, the original registration application of the petitioners was returned. It is the case of the petitioner-respondent herein that they were unaware of anything remiss in their admission to specialties of radiotherapy and anesthesia. 4. On notice being issued on the petition, the appellant filed its reply before the writ court taking the stand that since the hospital had already been informed not to admit students the admissions of petitioners were illegal and in violation of its command. Further, that the Mohan Dai Hospital had misrepresented to the candidates and that therefore, the writ court should not come to their rescue. 5. It appears that the reason which weighed with the Board temporarily injuncting not to admit students was the CVC inquiry aforesaid which was investigating some underhand dealing between the erstwhile president of the Board and the respondent-hospital for grant of additional accreditation. There being no clarity as to the status of the inquiry by the CVC even at the stage of decision of the writ petition and in appeal and during the present proceedings after notice was issued in the present appeal, this court by order dated 25.5.2011 directed that in case there was any report in existence as was being relied upon, a copy of the same should be furnished to the petitioners so that they have opportunity to rebut the same before the NBE so that it may pass a final order as to their status and continued right to carry on with their studies at the respondent No 6.It appears that only two of the petitioners, i.e. Dr. Neha Arora and Dr. Sarika Kalra remained aggrieved and were allegedly heard on 11.8.2011 and 12-8.2011 by DNB in compliance of the interim order. Three of the remaining petitioners have shifted to other institutes and have been registered with the NBE/appellant. 6. Mr. Ashok Aggarwal, learned Senior counsel for respondent No.5 has pointed out before us an order dated 2.9.2011 passed in consequence of the interim directions dated 25.5.2011. It has been recorded in the order as follows:- “Apparently, CVC has fixed the responsibility on the former ED and the section officer of NBE, however, in view of the weak evidence it was unable to take any action against the former President of the NBE and M.D. Oswal Institute. “ 7. The Learned Senior Counsel argued that in the face of the above conclusion which establishes no nexus sufficient to take action against the former President of NBE and the respondent-Institute nothing remains to shroud, eclipse or extinguish the right to registration and continuance of the course by his client. The reason for non registration by NBE through its impugned order Annexure P- 11 stands so eroded that in the absence of any trick, deceit or misrepresentation on the part of his client, the learned Single Judge was correct in equity and the factual matrix of the case to have issued mandamus to the respondents/NBE, the present appellant, to register the names of the petitioners and permit them to complete the course. 8. We have examined this fresh order dated 2.9.2011 passed by DNB pursuant to the interim directions of this Court. We feel that the order appears to have been made with a pre-determined mind being based on irrelevant considerations. It cannot also be said to be conclusive against the contesting respondents herein or that it gives rise to a fresh cause of action since the appellant at the end has declared that it is left with no other choice but the get the present appeal adjudicated from this court while denying relief at their primary level. We, consequently, proceeded to decide the case on merits and to obviate a fresh round of litigation which would delay the matter further and be of no benefit to anyone in a matter involving examinations testing doctors at the highest level medical speciality/super speciality. 9. Mr. Ashok Aggarwal, learned senior counsel has produced before us a download from the official website of the appellant board dated 7.10.2011 professing to the world that in the discipline of anesthesia, the Mohan Dai Oswal Cancer Treatment and Research Foundation, Ludhiana has two sanctioned seats with accreditation up to December, 2010. Even in the application form in the 2010 guidelines, NBE has shown that the respondent college can admit two students in anesthesia. We would pin the appellant to its own declaration on its website. It may be remembered that the petitioner/students were admitted for the course beginning 1st January 2008 and ending 31st December, 2010 i.e., full three years. The admissions were made by Mohan Dai Hospital when there was provisional accreditation granted by the appellant to the sixth petitioner. 10. Mr. Ashok Aggarwal, learned Senior Counsel has taken us through the contents of Civil Misc. No. 4161 of 2011 and its Annexures filed by respondents 4 and 5 in which it has been categorically stated that despite the orders dated 25.5.2011 of this court, no copy of the report of the CVC was sent to any the respondents as was directed to be done. They received only letters asking them to explain their case; therefore, they got no action oriented hearing at the hands of DNB. 11. The Learned Senior Counsel has further pointed out that even after the alleged bar (P-5) appellant has registered the applications of four candidates in anesthesia on 25.6.2009 (P-8), therefore, now the version put forth by the appellant cannot be accepted. In other words the petitioners cannot be discriminated against when their admissions were prior thereto. We feel that this is a material circumstance as well in favour of the petitioners (respondents herein). 12. We have heard Shri Sumeet Goel, learned counsel for the appellant at length. He has reiterated the stand taken by the board in its written statement. He has not been able to show us any final report of the CVC, the foundation of the passing of the impugned order returning the registration applications of the petitioners. We would draw an adverse inference from this. If the CVC has fixed responsibility on the former Executive Director Dr. A.K. Sood, whose tenure in NBE completed on 6.10.2010 after having remained on deputation from the National Institute of Health and Family Welfare to NBE from 8.12.2004 to 7.12.2009, and upon repatriation ceased to be an employee of the Board. The recommendation to initiate major penalty proceedings against Dr. A. K. Sood is not sufficient ground to nullify the admissions of the respondents in this appeal. The learned Single Judge has examined the inspection committee report annexed with the written statement and has observed that the recommendation for accreditation granted for running DNB course in surgical oncology was to be withdrawn due to the lack of qualified faculty to teach candidates whereas no such recommendation was made as far as anesthesia and radiotherapy is concerned, the streams at issue in the present appeal. 13. The Learned Counsel for the appellant has further argued that when the learned Single Judge has expressed his strong disapproval of the conduct of the Mohan Dai Oswal Cancer Treatment and Research Foundation, Ludhiana in admitting students despite specific direction not to do so, no direction ought to have been issued granting relief to the petitioners (respondents herein). We are not impressed by this argument. It is not that the respondent institute was not accredited at all by DNB. The petitioners were admitted during the currency of fresh provisional accreditation. Their entry was not illegal. They were not at any fault. They did not barge in from the backdoor. Therefore, their career could not be put at stake. We are in respectful agreement of the final conclusion of the learned Single Judge, as just, fair and equitable so far as the courses of anesthesia and radiotherapy are concerned. The so called CVC report has not seen the light of day. Its gist alone has been disclosed in the order dated 2.9.2011 to the effect that there was weak evidence not sufficient to take action against the former president of NBE and the MD Oswal Institute in granting accreditation and that the matter stands concluded by ordering only major penalty proceedings against Dr. A.K. Sood former Executive Director, NBE against whom there are said to be allegations of misconduct. 14. We would, therefore, in the totality of the facts and circumstances presented before us and now especially emanating out of the order dated 2.9.2011 passed lis pendens; considerably water down the finding of the learned Single Judge that the petitioner-institution’s actions were unjustified in granting admissions to petitioners Nos. 1 to 5 in their respective specialties. We say no more except that nothing in this order would prejudice the case of DNB against Dr. A.K.Sood if at all anything is put in motion against him, nor anything said in this judgment would be of any help to him. 15. As a result of the above discussion, we do not find any substance in this appeal and dismiss the same while upholding the concluding directions of the learned Single Judge and that they would run qua the two candidates admitted in the Anesthesia course. We hope and trust that DNB would deal with the two candidates left in the fray with fairness when they appear for the examination and evaluate their merit without any rancour from failure of this litigation. (M.M.KUMAR) (RAJIV NARAIN RAINA) ACTING CHIEF JUSTICE JUDGE October 12,2011 nk