The Division Bench of the Delhi High Court in the case of Association of MD Physicians vs National Board of Examination & Ors. consisting of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla reiterated as to what amounts as ‘material facts’ for a case.
Facts
This appeal was filed challenging the judgment passed by the learned Single Judge in W.P. (C) 5908 of 2021 titled Association of MD Physicians vs. National Board of Examination & Ors. The present appeal has been filed confining the challenge thereto only to the finding of the learned Single Judge that the appellant has “indulged in forum shopping” as well as the imposition of cost of Rs.25,000/- on it.
Before filing the above petition, the appellant had filed a writ petition in 2021 before the Supreme Court. The appellant had also filed an application in 2021 before the Supreme Court. The abovementioned writ petition was listed before the Supreme Court on 01.06.2021 and was adjourned to 15.06.2021. Immediately thereafter, the appellant had filed the writ petition in question, being W.P.(C) 5908 of 2021 before this Court, which was listed on 09.06.2021. In the present writ petition, in relation to the writ petition and the application filed in the suo-motu writ petition before the Supreme Court were concerned, disclosure was made regarding all the application and petitions by the appellant.
Procedural History
The W.P. (C) 5908 of 2021 was adjourned to 11.06.2021 for the respondent no. 1 to place on record the documents regarding the decision taken by it to hold the examination, i.e., the Foreign Medical Graduate Examination (FMGE) on the scheduled date, including the steps taken to demonstrate preparedness and precautions regarding conduct of an examination during the COVID-19 pandemic. On 10.06.2021, the appellant filed an application before the learned Single Judge. In the said application, disclosure was made by the appellant regarding the writ petition filed by it before the Supreme Court. The writ petition before the learned Single Judge came up for hearing on 11.06.2021, which was dismissed. Thus, the present appeal.
Contentions Made
Petitioner: The appellant did not make any prayer before the Supreme Court seeking postponement of the conduct of the FMGE for 2021. When the writ petition came up for hearing, no interim relief in relation to the one-time exemption was argued on behalf of the appellant. So, there was no overlap between the two petitions. No plea of the appellant having “indulged in forum shopping” was made. Appellant had apologized for not having made further disclosure of the writ petition filed by it before the Supreme Court and placing a copy thereof before the learned Single Judge. Reliance was placed on Arunima Baruah vs. Union of India to submit that the pendency of the writ petition filed by the appellant before the Supreme Court was, in fact, not a “material fact for determination of the lis raised in the writ petition before the learned Single Judge”. Since cause of action in the two writ petitions was different, and the appellant could not have been held guilty for “forum shopping”.
Respondent: The appellant had indulged in suppression of material facts in the present writ petition filed before the learned Single Judge. Even a copy of the writ petition filed before the Supreme Court was not placed on record by the appellant before the learned Single Judge. Even the prayers made therein were not properly spelt out in the writ petition filed before the learned Single Judge. Another petition titled Indian Foreign Medical Students (IFMS) Welfare MCI Gurukul Trust vs. Union of India & Anr. was also listed before the Supreme Court praying for postponement of the FMGE was made which got adjourned, and this was never disclosed.
Observations of the Court
The Bench noted that a person approaching the High Court under Article 226 of the Constitution of India should not only suppress any material facts but also not have taken repeated/parallel recourse to legal proceedings. The appellant, in the writ petition filed before the Supreme Court, had inter alia prayed for grant of exemption from qualifying the FMGE as a one-time measure. This was certainly a “material fact” which ought to have been disclosed in the writ petition filed by the appellant before the High Court praying for the postponement of the FMGE. The appellant could not have maintained two different petitions in respect of the same examination and, that too, one before the Supreme Court, and the other before the High Court.
It was further noted that:
“In Arunima Baruah (supra), the Supreme Court has held that what would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief.” Applying the above test to the facts of the present case, clearly, the appellant had concealed material facts from the Court.”
It was also observed that in the present case the prayers made by the appellant before the Supreme Court were material facts to be disclosed in the writ petition upfront. So, its concealment was sufficient to non-suit the appellant.
Judgment
The Bench noted that the appellant ought to have made a further disclosure in the writ petition. However, the apology tendered by the appellant was not genuine as it was accompanied by the condition that this Court must hold that the finding of the learned Single Judge as otherwise incorrect. So, finding no merit in the present appeal, it was dismissed with further cost of Rs. 25,000/- to be deposited with the Delhi State Legal Services Authority.
Case: Association of MD Physicians vs National Board of Examination & Ors.
Citation: LPA 193/2021
Bench: Acting Chief Justice Vipin Sanghi, Justice Navin Chawla
Decided on: 23rd May 2022
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