W.P. (C) No. 10761/2009 Page 1 of 36 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 04.05.2011 Judgment delivered on: 08.07.2011 W.P.(C) No.10761/2009 and C.M.No.9786/2009 Dr. Hari Nath Yadav & Anr. ……Petitioners Through: Mr. Pradeep Dahiya Adv. Vs. Govt. of NCT of Delhi & Ors. ……Respondents Through: Mr. S.D. Singh with Mr. Rahul Kumar Singh, Advs. for respondent No. 2. Dr. Rakesh Gosain, Adv. for respondent No. 3. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes KAILASH GAMBHIR, J. * W.P. (C) No. 10761/2009 Page 2 of 36 1. By this petition filed under Article 226/227 of the Constitution of India, the petitioner seeks directions to direct the respondent No.3 NBE to grant registration to the petitioner for DNB Course (Session January 2009- December 2011). 2. The present petition was preferred by two petitioners and later petitioner No. 2 sought deletion of his name. The present writ petition thus concerns the case of petitioner No. 1 alone. 3. Brief facts of the case relevant for deciding the present petition are that the respondent no.2 Institute of Human Behaviour & Allied Sciences, which is accredited by the respondent no.3 National Board Of Examinations (NBE), through a public notice dated 4.2.09 invited applications for three years DNB Course for the session of January 2009- December 2011 to which the petitioner responded and applied for the DNB(Neurology) and was selected by the respondent no.2, pending registration by the respondent no.3 Board. The short controversy involved in the present petition is that the W.P. (C) No. 10761/2009 Page 3 of 36 respondent no.2 selected the petitioner without him having qualified the CET-DNB(Super Specialty) examination, which as per the respondent no.3 NBE is the eligibility criteria for admission in a DNB course and therefore the application for registration of the petitioner to the said course was rejected by the NBE vide letter dated 3.6.09. Feeling aggrieved with the same, the petitioner has preferred the present petition. 4. Learned counsel appearing for the petitioner submitted that pursuant to the advertisement published by the respondent no.2 inviting applications from the eligible candidates to seek admission in 3 years DNB super specialty course in Neurology for the academic session January, 2009 – December, 2011, the petitioner was given admission by the respondent no.2 Institute after he appeared before the duly constituted selection committee of the respondent Institute. It is the case of the petitioner that in the said advertisement, the respondent no.2 notified that the candidates who have qualified CET-DNB (Super Specialty) examination would be offered admission on priority, but if the said seats are not filled up by W.P. (C) No. 10761/2009 Page 4 of 36 the qualified CET-DNB candidates, then the remaining seats would be filled on the basis of a written, clinical test and interview. Counsel for the petitioner submitted that there were only four candidates who had applied for the said super specialty course and in the interview only two candidates were finally selected. Counsel further submitted that after the said selection, the petitioner had joined the DNB course in Neurology on 16.02.2009. The counsel further stated that on 18.02.2009 the petitioner was allotted residential accommodation in Senior Residents’ Hostel and on 11.04.2009 he was offered the post of Senior Resident (Neurology) pending consideration of his case for registration in DNB course from the respondent no.3 Board. The contention of the counsel for the petitioner was that the petitioner accepted the said offer as a stop-gap arrangement as he was not apprehending any kind of impediment in getting registration from the respondent no.3 Board on the assumption that the petitioner was duly selected by the respondent no.2 and he also fulfilled the eligibility criteria to seek admission in the three years DNB course. The counsel further stated that on W.P. (C) No. 10761/2009 Page 5 of 36 12.05.2009 the Joint Director (Administration) of the respondent no.2 had issued an office order vide which he was informed that the petitioner will be disengaged w.e.f. the afternoon of 15.05.2009 on the completion of stipulated period i.e. 16.02.2009 to 15.05.2009 but on the representation made by the petitioner his term of engagement was extended from 17.05.2009 to 13.08.2009 by the Joint Director (Administration) of the respondent no.2 Institute. Counsel for the petitioner submitted that the petitioner had received a letter from the Dy. Director (Medical) of the respondent no.3 Board through which the petitioner came to know that his application for registration as DNB trainee was rejected on the ground that the petitioner had got enrolment in the said course without qualifying the CET examination. Counsel for the petitioner further submitted that the petitioner was not at fault as not only he was fully eligible to secure admission in the said super specialty course but he was duly selected in the interview out of the two candidates and was accordingly offered the said seat by the respondent no.2 institute. Counsel further submitted that the respondent-Board W.P. (C) No. 10761/2009 Page 6 of 36 in 2008 itself had relaxed the said condition of CET as only 5% candidates could qualify for the said super specialty course. Counsel also submitted that even as per the stand taken by the respondent-institute, they came to know about the said condition of CET test only on 4.03.2009 and, therefore, the hospital also cannot be blamed for issuing the said advertisement dated 4.2.2009. Counsel thus submitted that the case of the petitioner be considered by this Court on equitable grounds as he cannot be made to suffer for no fault of his. 5. Opposing the present petition, Dr. Rakesh Gosain, leaned counsel appearing for the respondent no.3 NBE submitted that the petitioner cannot claim ignorance about the said eligibility condition as he himself had appeared in the said super specialty test, but failed in the same. Counsel also submitted that as per the Information Bulletin of the NBE, the last date of submitting the application was mentioned as 14.11.2008 and, therefore, even the respondent-institute cannot claim that the said bulletin was not within their knowledge. Counsel further submitted that the respondent-institute had no W.P. (C) No. 10761/2009 Page 7 of 36 right to give admission to the petitioner based only on the interview once the Board has clearly specified the criteria of qualifying the said test of CET to seek admission in the said DNB super specialty course. Counsel thus stated that this Court in exercise of its writ jurisdiction may not give any directions which will have the effect of violating the said rules laid down by the respondent-Board. 6. Counsel appearing for the respondent no.2 -institute, on the other hand, submitted that the institute came to know about the said bulletin only on 04.03.2009 and prior thereto, the same was not within its knowledge. Counsel further submitted that the petitioner was selected by the Selection Committee comprising of six eminent persons consisting of Professors and Doctors of the institute and in the past also the respondent- institute has been following the same directions to the knowledge of the said Board. Counsel thus supported the case of the petitioner and submitted that the petitioner should be granted relief as prayed for. W.P. (C) No. 10761/2009 Page 8 of 36 7. I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them. 8. Respondent No. 3 is the National Board of Examinations (NBE), which was established in the year 1975 with the prime objective of improving the quality of medical education by establishing high and uniform standards of post graduate examinations in modern medicine on all India basis. As per the said Board, it conducts post graduate and post doctoral examinations in approved specialties leading to the award of Diplomate of National Board(DNB), a qualification having global recognition . The said Board was established by the Ministry of Health and Family Welfare in the year 1975 and later it became an independent and autonomous organization in the year 1982. With the derecognition of MRCP/FRCS degrees, the Government of India felt for the need for a centralized body, which could evolve high and uniform standards of post-graduate and post- doctoral examinations in medical sciences at par with W.P. (C) No. 10761/2009 Page 9 of 36 international standards and also to create additional specialties without burdening the resources of the Central Government. In certain disciplines of modern medicine, post-graduation is available only in the form of DNB qualification offered by the respondent Board through out the country and as per the said Board, DNB is a much sought after qualification, both amongst the graduate doctors and even the employer institutes including overseas institutions and governments due to its high standards. As per the Board, for facilitating the grant of DNB qualification it grants accreditation/recognition to various medical hospitals/institutes situated in various parts of the country. For granting accreditation to any of the institutes/hospital in the field of any particular specialty, strict norms are in place and each and every case for grant of accreditation for any specialized course in any hospital/institute is decided by the governing body of the said Board after it is recommended by the accreditation committee of the Board and it is only on the approval by the governing body that the hospital or institute is able to grant admission against such specialized course subject W.P. (C) No. 10761/2009 Page 10 of 36 to the terms and conditions to be followed by such institute/hospital in terms of the letter of accreditation. 9. Respondent No. 2 i.e. Institute of Human Behaviour and Allied Sciences, is an autonomous body registered under the Societies Registration Act, 1960 and is founded jointly by the Ministry of Health and Family Welfare, Government of India as well as Government of NCT of Delhi. Respondent No. 2 is one of the accredited institutes of the NBE and vide letter dated 22nd December, 2005, respondent No. 3 Board had granted fresh accreditation to respondent No. 2 institute to train two DNB candidates in the field of Neurology for a period of three years w.e.f. January, 2006 to December, 2008 subject to fulfillment of the terms and conditions laid down in the said letter. The accreditation of respondent No. 2 institute was renewed further for a period of three years each. 10. Respondent No. 3 had invited applications from the interested candidates to appear in the centralized entrance test known as CET for seeking admission to DNB (Super Specialty) W.P. (C) No. 10761/2009 Page 11 of 36 programmes in various accredited hospitals and institutions. The last day of application form as per the Information Bulletin of the respondent Board was 14th November, 2008 and date of CET examination was 4th January, 2009. It is not disclosed by the petitioner that he had appeared in the said centralized examination CET-DNB on the said date, and failed to qualify the same. But it is apparent that after having not succeeded in the said examination, the petitioner found an advertisement issued by respondent No. 2 in leading newspapers of 4th February, 2009 inviting applications from the interested candidates seeking admission to three years DNB course (session January, 2009 to December, 2011) in the super specialty field of Neurology. The closing date for making the application was 12.2.2009 and date and time of interview of the examination was kept for 14th February, 2009 at 10.00 a.m. As per the eligibility condition notified in the said advertisement, the candidates who had qualified CET-DNB (Super Specialty) would be offered admission on priority while the remaining vacancies arising after the filling of the seats from the CET-DNB (Super Specialty), the candidates W.P. (C) No. 10761/2009 Page 12 of 36 will be selected on the basis of a written, clinical test and interview. In response to the said advertisement, the petitioner had appeared before the selection committee constituted by respondent No. 2 on 14th February, 2009 and since there were no candidates who had qualified the CET-DNB (Super Specialty) examination having approached respondent No. 2 institute in response to the said advertisement, the selection committee of respondent No. 2 had selected the petitioner and offered him one seat in the DNB in the field of Neurology for the academic session of January, 2009 to December, 2011. A Memorandum dated 16th February, 2009 was issued by respondent No. 2 offering the said seat to the petitioner and he joined the said course immediately on 16th February, 2009 itself and consequent to joining of the course the petitioner was allotted the residential accommodation in Senior Residents’ hostel vide office order dated 18th February, 2009 issued by respondent No. 2 in this regard. The petitioner was also offered the post of Senior Resident (Neurology) for a period of 89 days and the said ad hoc appointment was extended for further periods also. During the W.P. (C) No. 10761/2009 Page 13 of 36 continuation of his said ad hoc engagement on the post of Senior Resident doctor, the petitioner on 3.6.2009 received a letter from respondent No. 3 Board through which the petitioner and respondent No. 2 institute were intimated that his application seeking registration as DNB trainee was rejected as it was found that the petitioner was granted admission in the said course without qualifying CET Super Specialty Entrance Exam. The National Board accordingly returned the application along with the demand draft to respondent No.2 institute. 11. With the said rejection of the candidature of the petitioner, the main grievance raised by petitioner is that it was because of no fault of his that he was denied registration by respondent No. 3 Board. Counsel for the petitioner termed such an action on the part of the respondent no.3 as illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and submitted that the said decision taken by respondent No. 3 is in blatant violation of principles of natural justice as the petitioner was not given any opportunity of hearing before rejecting his candidature. Counsel also contended that the petitioner had duly W.P. (C) No. 10761/2009 Page 14 of 36 fulfilled the laid down requirement of respondent No. 2 as notified in the advertisement dated 4.3.2009 and he was duly selected by the Selection Committee constituted by respondent No. 2. Counsel also argued that even respondent No. 3 Board has not been strictly adhering to its guidelines as in the year 2008 many candidates were granted admission in the said DNB course without having qualified the said CET exam. Counsel thus urged that such a relaxation can be extended in the case of petitioner as well. Counsel for the petitioner also argued that respondent No.2 hospital was not aware of the said guidelines issued by respondent No. 3 Board and, therefore, also the petitioner cannot be victimized to deprive him from completing the said DNB course. 12. The learned counsel appearing for respondent No. 2 took a stand that respondent No. 2 had selected the petitioner based on his performance in the interview and out of the four candidates, the selection committee constituted by respondent No. 2, petitioner was selected on merits for pursuing his DNB course for the academic year 2009-2011. Counsel also took a W.P. (C) No. 10761/2009 Page 15 of 36 stand that for the academic year 2006-2008, 2007-2009, 2008- 2010 similar procedure was adopted by respondent No. 2 by selecting the candidates for the said course through the process of interview and all such candidates were granted registration by the respondent No. 3 Board. Counsel for respondent No. 2 also submitted that the public notice dated 17th February, 2009 through which respondent No. 3 had issued the guidelines for selection of DNB candidates was received by respondent No. 2 institute only on 4th March 2009 and by that time respondent No. 2 had completed the process of selecting candidates for the said course. Counsel also submitted that respondent No. 2 had taken up the issue of granting registration to the said two candidates based on their selection vide their letter dated 6th August, 2009, but the same, however, was declined by the respondent Board vide their letter dated 3rd June, 2009. Counsel also submitted that it was neither in the interest of respondent No. 2 institute nor in the interest of other candidates to keep the seats vacant for the said DNB course for the academic year 2009-2011. W.P. (C) No. 10761/2009 Page 16 of 36 13. From the factual matrix set out above, a very perturbing situation has arisen before this Court. On one hand, the respondent Board has laid strong emphasis on qualifying the CET examination for securing admission in the DNB course and also strict adherence of the said norms by all the accredited hospitals/institutions for enrolling the candidates in the said super-specialty course. On the other hand, the respondent No. 2 Institute has taken a position that it was not aware of the said guidelines issued by the respondent Board and when they came to know the same on 4thMarch, 2009 they had already completed the process of selecting the candidates for the said DNB course . In the midst of this kerfuffle, the petitioner being the aggrieved party has taken a stand that he had committed no fault in responding to the public notice issued by respondent No. 2 through an advertisement in the national dailies, seeking his admission in the DNB super-specialty course of Neurology. The petitioner has also taken a stand that he had neither made any misrepresentation nor suppressed any fact from respondent No. 2 Institute and he was selected by the Selection Committee duly W.P. (C) No. 10761/2009 Page 17 of 36 constituted by respondent No. 2 Institute for admission in the said DNB course. 14. In the aforesaid scenario, the galling question before this Court is as to which out of the said parties before the court is at fault and is flouting the laid down guidelines formulated by the NBE. The finger can only be pointed towards respondent No. 2 Institute. It is inconceivable that respondent No. 2 Institute was not aware of the guidelines laid down by the National Board of Examinations through the Information Bulletin for the year 2009 for granting admission in the super specialty courses. Respondent no.2 is one of the accredited institutes by the respondent no.3 and for an institution to know the procedure laid down for admissions, the Information Bulletin was released as early as 25 October, 2008 and was available at the website of the Board and it is unfathomable that the respondent-institute would be unaware of the said bulletin and guidelines. Photocopy of the said Information Bulletin placed on record by the NBE clearly discloses that the last date of submission of application form to participate in the said test and to seek W.P. (C) No. 10761/2009 Page 18 of 36 admission in the super specialty course was 14th November, 2008 and the date of the examination was 4th January, 2009. The said Information Bulletin also carries the website address and e- mail of the said Board. In the column of information for candidates under clause 2.1 it has been clearly laid that CET -SS is the entrance examination for the admission to the three years Super Specialty DNB programme. The said clause 2.1 of the bulletin and certain other clauses of the bulletin, which are relevant are reproduced as under:- “2. INFORMATION FOR CANDIDATES 2.1. CET-SS is the entrance examination for admission to the 3 years Super Specialty DNB programme. ………… 2.24 Candidates are advised to verify the status of the hospital/institute as a NBE accredited center for DNB – SS program. NBE shall not be liable for any claim resulting from admission to a course not recognized by NBE or admission to a hospital not possessing valid accreditation for any particular course or speciality. ……………………. 4. EXAMINATION CENTRALISED ENTRANCE TEST – SUPER SPECIALITY (CET-SS-NBE) W.P. (C) No. 10761/2009 Page 19 of 36 The NBE CET – Super Specialty is an entrance examination for entry to the DNB Super Specialties. The next session of the examination shall be held on Sunday, the 4th January 2009. It is an essential pre-requisite to qualify the NBE CET-SS and possess a valid score for admission to the DNB Super Specialty program. Candidates successful in the NBE CET can apply for admission to the three year super specialty program to institute accredited by National Board of Examinations as per the scheme of admission so prescribed by the Board. The applicable scheme is prescribed in this information bulletin. The list of National Board of Examinations accredited Institutes where candidates can pursue DNB courses is mentioned at Annexure V. Candidates can also pursue DNB at Medical Colleges running DM/MCh courses. Copy of the notification issued by Government of India in this regard is placed at Annexure III.  Candidates may note that qualifying a CET – SS examination does not confer any kind of right whatsoever on a candidate to register on a permanent basis with the Medical Council of India/State Medical Council or to pursue a DNB or any other Post Graduate/Post Doctoral Courses. The list of Super Specialities in which candidates can pursue DNB along with their eligibility criteria mentioned in the Information bulletin. …… 4.7 Admission to DNB Super Specialty Courses The successful candidates will apply directly to the accredited hospitals/institutions and appear in the institutional assessment. 4.8 Institutional Assessment The scheme adapted by NBE for aptitude assessment as per DNB CET – SS information bulletin will be followed by National Board of Examinations accredited hospitals/institutes. The scheme for assessment is stated herein below: (a) The hospitals/institutes will prepare a speciality-wise merit list based on the combined performance of the candidates in the theory and short structured W.P. (C) No. 10761/2009 Page 20 of 36 question papers (out of 100 marks) and institutional assessment out of 10 marks i.e. total marks obtained by the candidates out of 110 marks. (b) Candidates will be offered admission as per the order of merit computed as per the combined performance out of 110 marks as stated above. (c) The list of candidates along with supporting annexures as per NBE guidelines will be sent to NBE for registration. The guidelines governing the admission to DNB programme and registration of candidates are contained in chapter-8 of this bulletin.” 15. In the said Information Bulletin, under the Guidelines for Admission to DNB (Super Specialty) Programmes there is a list of Annexures that are to be submitted with the application forms out of which Annexure I is in the form of declaration to be filed by the Head of Institution and it would be pertinent to reproduce the format of the same as under: “ Declaration Form of the Head of Institution (This undertaking is to be submitted on Rs. ten non-judicial stamp paper, duly notarized) I, _____________ working as _____________ (Head of Institute) of ___________________ Hospital hereby certify that: (i) The information enclosed along with as contained in Annexures 1 to 9 is true to the best of my knowledge and nothing thereon has been concealed. (ii) That this institute has not charged any kind of capitation fees/security money/caution money/bank deposit/material W.P. (C) No. 10761/2009 Page 21 of 36 security/fees other than prescribed by National Board of Examinations in any format or any such article/instrument from the candidate towards joining the DNB programme. (iii) I undertake that, if this institute/hospital is found not adhering to any of the guidelines of National Board of Examinations, the accreditation of the institute/hospital will be deemed to stand cancelled forthwith. (iv) That the selection of DNB trainees has been done as per the guidelines prescribed by the National Board of Examinations. (v) That all the candidates have been treated alike on equal grounds and no special privilege or weightage has