Dr. Sanjeeta Behera vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1160 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner seeks quashing/setting aside panel prepared by respondent No. 4 (hereafter called 'the Hospital') for appointment in the DNB (Diplomate National Board, a post-graduate medical course, referred to as 'DNB').

2. The petitioner is a medical graduate who completed the MBBS course in the year 1996 from the Cuttack. She completed her Junior Residency term of one year in Darbhanga Medical College Hospital, in Obstetrics and Gynaecology. Subsequently, in July 2001 she qualified in the DNB Primary Examination, a procedure held on All India Basis. Later on, 8.1.2002 the petitioner joined the Hospital as a Medical Officer in the Department of Obstetrics and Gynaecology.

3. The Diplomat of National Board (DNB) set up by virtue of notification of the Central Government in the year 1975, conducts primary examination as a prelude to admission to the course. A candidate who qualifies in the primary examination can apply institutions which offer the course, a Post-graduate Diploma recognised by the authorities. Prior to the year 2005, candidates who had qualified in the Primary Examination were permitted three chances. That restriction was lifted in the current year.

4. The DNB issued a bulletin of information in June 2005, inviting applications from the interested applicants. The petitioner applied for admission to the Course in Obstetrics and Gynaecology, in the Hospital.

5. The relevant guidelines relied upon by the petitioner (from the Bulletin of Information for the Course) read as under :

"5.1.3 Declaration of CET-NBE Results. The result of CET-NBE will be declared (pass or fail) of the candidates within one month from the date of the examinations. Candidates declared pass in CET NBE examinations and those who have passed their primary examinations earlier will directly contacthe institution/hospital for admission for getting required training. The result will be sent to each candidate individually by post and also can be seen on website www.natboard.nic.in. It can also be seen at Ansari Nagar, New Delhi Office of the Board.

5.1.4 Guidelines for Selection of CET/Primary pass candidates . The restriction on the validity period of primary pass candidates has been removed forthwith. The validity of new procedure (CET) has also been removed.

The CET/Primary Pass candidates will apply directly to the NBE Accredited institution. NBE Accredited institution will select the candidates based on the applications received from CET/Primary passed candidates. The institutions will evolve a merit list taking into consideration the aptitude of candidates and any previous experience in the speciality. The institutions will send the list of selected candidates to NBE for registration, within one month of candidate's joining."

6. It is alleged by the petitioner that contrary to the intent of the DNB, the Hospital, in the guise of ascertaining her aptitude conducted a written test/examination, which impermissible. It is alleged that the petitioner had already qualified in the primary test, (also known as 'CET') and that the provisions of the bulletin did not enable the holding of a second written test, but only permitted an interview/viva voce procedure to find out aptitude of the candidate. The petitioner, as per her ranking was not offered admission in Obstetrics and Gynaecology. It is alleged that in spite of her having vast experience in the field and having worked both at junior residency level as well as subsequently there was no question of her denying admission which appears to have been on the basis of illegal written test.

7. Mr. A.K. Behera, learned counsel for the petitioner submitted that a proper construction of the guidelines would show that the respondents were bound to consider the candidature of everyone who had passed the primary examination. That test or examination constituted the only written test and was a qualifying criterion. The subsequent procedure permitted, as per the bulletin of information, which bind all the affiliated institutions, is only ascertainment of aptitude through viva voce/interview. This was aimed to ensure that local influences and pressures were eliminated. However, the Hospital, contrary to that intendment went ahead and insisted upon a written examination over and above a primary examination which has resulted in prejudice to the petitioner; she has not been offered DNB Course in Obstetrics and Gynaecology. This action, he submits is arbitrary.

8. At the stage of the preliminary hearing itself emergent notice was issued to the respondents and records were produced in the course of the proceedings. Ms. Ahlawat, learned counsel for respondent No. 3 relied upon a letter written by the National Board of Examination on 29th June, 2005 which outlined the decisions taken by the governing body of the DNB regarding admission and conduct of the courses in the participating hospitals/institutions. She placed particular reliance on paras 1 to 4 of the said letter which are extracted below:

"1. Validity of Primary/CET: The restriction on the validity period of Primary pass candidates has been removed forthwith. The restriction on the validity of the CET has also been removed.

2. No marks for CET : Effective from June, 2005, the Central Entrance Test (CET) shall be of qualifying nature only. Therefore, Marks/ Merit List shall not be applicable and should not be insisted upon while enrolling candidate(s).

3. Admission Ratio : In super session to the Board's letter dated 21st January, 2004, the admission ratio of 75 : 25 between Primary and CET passed candidates has been dispensed with. All accredited institutions are hereby allowed to enroll either Primacy pass or CET pass candidate against their allotted seat (s).

4. Selection process : Accredited hospitals are NOT to conduct any written examination for selecting candidates as this defeats the very objective of the Board's conduct of the CET. Selection of DNB trainees is to be done only through an Interview and Ojective assessment of the candidate's aptitude, communication and technical skills. Details of the method adopted for selection, along with marks obtained and rank of each candidate is to be sent to the Board immediately on declaration of results."

9. Learned counsel for the respondents submitted that no written examination was conducted as required by the directions of the National Board. The procedure adopted by the respondents was only objective assessment of the candidate's aptitude, communication and technical skills, and interview. It was submitted that the procedure known as Objective Structural and Clinical Examination (OSCE) which has been attacked by the petitioner in these proceedings as a written test is in fact nothing but a mode of ensuring the knowledge levels of each candidates and his/her ability to diagnose or describe conditions based on visual inputs. The questions asked in this are common to all the candidates. They are by way of diagrams/photographs of typical medical conditions, which have to be described in one or two sentences each. This is a part of the aptitude test required to be undergone by every candidate. She submitted this couldn't be called a written text by any stretch of the imagination. The questions asked ad the answers given during the course of OSCE were also produced in Court.

10. The letter dated 29th June, 2005 and provisions of the guidelines disclose the intention of the Board that pre-existing restriction of not more than three chances to every candidates, seeking admission in the course was lifted. Similarly, the participating institutions like the 4th respondent Hospital here, were enjoined not to hold a written test over and above the primary written test which the candidate had already undergone. In these circumstances, the limited question which arises is whether the OSCE can be characterised as a written test.

11. Learned counsel for the petitioner endeavored to say that OSCE is nothing but a written test. He submitted that the characteristics of every written test are setting up a question paper common to all; limited time duration granted to each candidate; all questions to be answered in writing by the candidate and the last step being declaration of the results. Judged by these characteristics OSCE is no more and no less a written test.

12. Having considered the records and heard counsel for parties, I am of the considered opinion that the OSCE cannot be called a written test. The objective sought to be achieved by the National Board, in its directive of 29th June, 2005 as well as in the provisions contained in the bulletin was to ensure that candidates who are medical graduates and with some years experience in the field are adjudged on the basis of their aptitude. The letter of 29th June, 2005 set broad parameters, namely, aptitude (bility to diagnose) communication and technical skills on the basis of objective assessment. Para 4 of the letter dated 29th June, 2005 clearly demarcates interview and objective assessment. Objective assessment, therefore, in my opinion can constitutea separate procedure in which the candidate can be asked, on the basis of a common diagram/photograph/description the nature of the disease or medical condition. It could be done by giving common time to all the candidates; it could be done equally in addition, or separately during the course of individual interviews.

13. In view of this intention and the objective sought to be achieved, namely, ascertaining of aptitude, knowledge, and the ability to communicate/describe in writing in a brief and terse manner the medical/ clinical condition queried, OSCE in my considerd opinion does not fall within the description of a written test.

14. In view of the foregoing conclusions, the petition is rejected as being without merits.

15. No costs.