Bombay High Court
Dr. Nilesh Balwant Gourshettiwar vs Union Of India And Ors on 28 November, 2011
Bench: Dr. D.Y. Chandrachud, A.A. Sayed
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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
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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.
ig 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.
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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.
ig 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
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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
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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
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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 admissionsig granted to primary trainees
simultaneously or immediately after CET qualified primary
either
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
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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
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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."
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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
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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
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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
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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
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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
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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
in the CET.
granted admissions purely on the basis of the marks obtained
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
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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
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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.
earlier guidelines, every institute was required to grant
Under the
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,
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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.
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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.
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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.)
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