Calcutta High Court (Appellete Side)

Association Of Diplomat Of ... vs Government Of West Bengal And ... on 5 February, 2021

                        In the High Court at Calcutta
                       Constitutional Writ Jurisdiction
                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            WPA No. 7578 of 2020
            Association of Diplomat of National Board of Doctors
                                    Vs.
                   Government of West Bengal and others


For the petitioner                   :      Mr. Puneet Yadav,
                                            Ms. B. Gayatri,
                                            Ms. Debaleena Ganguly

For the respondent-authorities       :      Mr. Sirsanya Bandopadhyay,

Mr. Arka Kumar Nag

For the respondent no.3 : Mr. Soumabho Ghose, Mr. Sourav Roy

Hearing concluded on : 03.02.2021 Judgment on : 05.02.2021

Sabyasachi Bhattacharyya, J:-

1. The petitioner claims to be an association of Diplomat of National Board

(DNB) qualified Doctors. It is alleged that the members of the petitioner-

association were relocated from their parent Hospitals while undergoing

the course of Postgraduate Training, pursuing their DNB courses from

the respondent no.2-Hospital. During the pandemic, the members of the

petitioner-association were relocated to different Hospitals.

2. Learned counsel for the petitioner relies on the Guidelines for

Competency Based Training Programme in DNB - Obstetrics and

Gynecology issued by the National Board of Examinations (respondent

no.3 herein). Under Clause 5 of the said Guidelines for Accredited

Hospitals, provisions are made regarding rotational postings of DNB

trainees. As per Clause 5.1, such trainees can be rotated outside the

applicant Hospital as per Guidelines detailed thereunder. Under the

column 'Nature of Rotation' in Clause 5.1, the relevant entry pertains to

externship on mutual exchange basis, subject to mutual agreement

between the trainees and the institute. The purpose/reason given for

such externship is that a DNB trainee may be rotated to a NBE

accredited department of another Hospital by mutual exchange between

the accredited Hospital/Institution. Under the column 'Tentative Period

of rotation', the maximum period for such externship has been stipulated

as three months in a three years training programme and two months in

a two years training programme.

3. Clause 5.2 of the Guidelines provides that the externship of DNB trainees

is not automatic. Prior approval of National Board of Examinations is

mandatory.

4. Clause 5.3 stipulates that the placement of DNB trainees in

Hospitals/Institutions that are not accredited with NBE or MCI or

Government of India is not permitted.

5. Learned counsel for the petitioner submits that the members of the

association, whose interest is represented by the petitioner-association,

have already been posted for a period exceeding that which is stipulated

in Clause 5.1, as indicated above, thus, exposing the said members, who

are all trainees under the DNB course, to the risk of losing the excess

period over the stipulated time-frame for the purpose of being considered

to have completed their training programme.

6. Learned counsel submits that no consent was obtained from the said

members of the petitioner-association. The petitioner prays for relocation

of the member-doctors to their parent Institution/Hospital, being the

respondent no.2 herein.

7. An affidavit of compliance filed by the State-respondent and the rejoinder

thereto, filed by the petitioner, be kept on record.

8. Placing reliance on Annexure R-13 at page 8 of such rejoinder, which

comprises Guidelines for relocation of trainees of National Board of

Examinations (NBE), issued by respondent no.3 on December 24, 2020,

learned counsel for the State-respondent submits that Clause 1(ii)

thereof deals with relocation of a trainee. It is provided therein that the

relocation of a trainee refers to the permanent shifting of a trainee by

NBE from their principal allotted Institute or Hospital to another

accredited Institute or Hospital. As such, the temporary shifting under

the Disaster Management Act, 2005 due to the Covid-19 pandemic,

which is complained of by the petitioner in the present case, cannot be

treated to be a relocation within the purview of the Guidelines regarding

DNB - Obstetrics and Gynecology issued by respondent no.3 (Annexure

P-6 at page 36 of the writ petition). It is further contended on behalf of

the State that the medical students, who have submitted affidavits as per

direction of this court to disclose their credentials for maintaining the

writ petition, are different from those trainees who approached the State-

respondent with the grievance that they had nothing to do with the

present writ petition, nor had they granted authority to the petitioner-

association to do so. However, it is submitted that the relocation in the

present case, which has been extended recently, was within the

contemplation of the Disaster Management Act, 2005 and was a valid

exercise of power by the State-respondent.

9. It is further argued that the writ petition has been filed on mere

apprehension on the part of the petitioner, having no present cause of

action.

10. Learned counsel appearing for respondent no.3 relies on a notice dated

January 15, 2021 issued by respondent no.3, in support of the

proposition that the interest of the trainees has been protected by such

notice. It is also submitted that the apprehension of the petitioner is

premature, in the absence of any decision having been taken by

respondent no.3 for discounting the excess period of relocation from the

requisite tenure for the DNB course.

11. Upon considering the submissions of counsel, it is evident that the notice

dated January 15, 2021, a copy of which is handed over in court by

respondent no.3, is irrelevant for the present purpose. Although the said

notice recognizes the adverse effect on trainees with regard to relocation,

such recognition was in a different context. The notice-in-question was

issued to contradict an article "Relocation of DNB Doctors leads to 'back-

door entry' " published in a newspaper and refers to withdrawal of

accreditation by the NBE. It provides that, based on complaints received

from trainees undergoing training in NBE accredited institutes and if

those complaints are found to be correct, accreditation of such Institutes

in the concerned specialties is withdrawn, after giving ample

opportunities for compliance.

12. The policy of relocation mentioned in the notice dated January 15, 2021

speaks of a Hospital losing its accreditation, in which event the first year

trainees have to be mandatorily relocated as majority of their training

cannot be undertaken in a de-accredited Hospital. Such relocation is

done strictly as per Guidelines for Relocation of Trainees of NBE.

13. Since the said notice pertains to relocation of trainees under several

courses, including the DNB course, in respect of de-accredited Hospitals,

the same is not relevant for the present purpose.

14. Nothing has been brought on record by any of the parties to show that

respondent no.3 has taken a specific stand on credit being given to the

trainees of the DNB Course for the excess period of their relocation at

Hospitals other than their parent Institutes, over and above the

maximum period stipulated in Clause 5.1 of the relevant Guidelines.

15. However, learned counsel for the State-respondent is justified in arguing

that the Guidelines for relocation of trainees of NBE, annexed to the

rejoinder filed on behalf of the petitioner, specifically provides that the

relocation of a trainee mentioned therein refers to the permanent shifting

of the trainees by the NBE from their principal allotted Institute or

Hospital to another accredited Institute or Hospital. The relocation

complained of in the present writ petition is of a temporary nature,

within the ambit of the Disaster Management Act, 2005, in view of the

pandemic situation, which created a shortage of qualified medical

practitioners to deal with Covid-19 patients. Moreover, such relocation

was done by the State Government, in respect of State Hospitals in West

Bengal, and not by the NBE, as contemplated in clause 1(ii) of the

Guidelines for relocation of trainees of NBE. The relocation, being

temporary in nature, cannot be termed as "permanent" as contemplated

in Clause 1(ii). Thus, there is no reasonable basis for the apprehension

on which the petitioner has moved the present writ petition, at least as of

now.

16. The Guidelines for Competency Based Training Programme in DNB -

Obstetrics and Gynecology, issued by respondent no.3 provides a

maximum period of three months and two months respectively for three

years and two years training programmes. However, the heading of the

column under which such time-limit occurs in Clause 5.1 of the

Guidelines is "Tentative Period of rotation". Since the expression

"tentative" is used to define the maximum period, the enforcement of

such time-limit is directory and not mandatory by its very nature. It is

very well within the discretion of respondent no.3 to attribute the excess

period of relocation of the members of the petitioner-association to 'Act of

God' or supervening impossibility, arising due to the emergency brought

about by the Covid-19 pandemic. Such an emergency, arising

subsequently, could not be within the contemplation of respondent no.3

or the trainees pursuing the DNB course at the time of framing of the

relevant Guidelines and, as such, ought not to be enforced against the

trainees who were relocated for periods in excess of those stipulated in

Clause 5.1 of the Guidelines.