Delhi High Court
Dr. Puja Dewan vs National Board Of Examinations on 4 July, 2008
Author: A.K.Sikri
IN THE HIGH COURT OF DELHI AT NEW DELHI
+LPA No.1279/2007
Date of Decision: 04.07.2008
#Dr. Puja Dewan ....Appellant
! Through: Mr.K.K. Rai, Senior Advocate
With Mr.Tarkeshwar Nath, Mr.V.P. Singh
and Mr.P.K. Mishra
Versus
$National Board of Examinations
& Others .....Respondents
^ Through Mr.N.K. Kaul, Senior Advocate with
Mr.Rajesh Gosain and Mr.Bhuvan for
Respondent.
CORAM:
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.R. MIDHA
1.Whether Reporters of Local papers may be allowed to
see the Judgment?
2.To be referred to the Reporter or not?
3.Whether the judgment should be reported in the Digest?
A.K. SIKRI, J.
:
1. National Board of Examinations, the respondent No.1 herein, has introduced
'Fellowship of the National Board' (for short 'the FNB'), which is treated, by
any standards, as a prestigious fellowship for medical students. Each year
these fellowships are given. Having regard to its prestige and importance,
thousands of persons aspire to be its recipient. In order to select suitable
students for the FNB, the respondent No.1 every year conducts All-India
Entrance Examination. Coming out victorious in a tough competitive
examination like this one is a tall order. When the appellant herein was
declared successful in the entrance examination for FNB-2006, in the subject
'Speciality of Reproductive Medicine', she was on the top of the world, as not
only it was a recognition of her merit, she considered herself lucky enough to
get this prestigious fellowship. After all, she was selected through the said All-
India written examination conducted on 9.12.2006 followed by an Interview-
cum-Aptitude Test on 15.2.2007. Notwithstanding this selection of hers, she
has suffered the cancellation of the said FNB. She pleaded for revocation,
which request was not acceded to. She was forced to file the writ petition in
this Court challenging the action of the respondent No.1. She has remained
unsuccessful in that attempt as a learned Single Judge of this Court has
dismissed the writ petition vide impugned judgment dated 3.9.2007 holding
her responsible for the mess created and blaming her for the state of affairs.
Not satisfied, she has filed the present appeal (LPA) challenging the impugned
judgment.
2. In order to understand as to why the respondent No.1 cancelled her
fellowship; whether the fault thereof entirely lies on the appellant or a
contributory negligence/fault; or whether the action of the respondent No.1 is
valid under the law, some background factual narration would be necessary.
3. As already noted above, the appellant appeared in All-India Written
Examination for FNB on 9.12.2006. She cleared this test and whereafter she
was called for interview-cum-aptitude test on 15.2.2007. On the basis of the
written test and interview-cum-aptitude test she was declared selected for
FNB for doing the course in reproductive medicine. She was given admission
by the respondent No.2, i.e., Institute of Reproductive Medicine (in short 'the
IRM') on the directions of the respondent No.1. The course is of two years'
duration which normally starts in February each year. However, this year
there was delay in conducting the entrance examination. The plea of the
appellant is that while awaiting the result of this examination, with the desire
to pursue the said course, if selected, she also applied for a specialized course
in Reproductive Medicine and Gynaecological Endoscopic Surgery from Kiel
School, University Hospital, Kiel, Germany in September 2006. She was
selected for that course also, which was to commence on 1.2.2007. As by that
time result of FNB had not been declared, she left to join the specialized
course in Germany on 31.1.2007 as the said course was to commence on
1.2.2007. All that time, she was also informed about the date of interview, to
be conducted by the respondent No.1, fixed on 15.2.2007. She came back to
India from Germany to appear in the said interview and after the interview,
the respondent No.1 instructed the appellant to report to the
Director/Medical Superintendent of the respondent No.2/IRM within 15 days
of the receipt of letter dated 15.2.2007 given by the respondent No.2/IRM to
the appellant. The appellant accordingly reported to the respondent
No.2/IRM on 16.2.2007 and submitted her joining report. She was accepted as
Trainee-cum-Resident Medical Officer (RMO) under the post Doctoral
Fellowship Programme of National Board of Examinations in the subject
'Speciality of Reproductive Medicine'. She was issued a letter dated 16.2.2007
intimating about the terms of her course and stipend.
4. As she had already joined the University School, Kiel and was undergoing the
studies which had commenced on 1.2.2007, the desire of the appellant was to
complete that course as well. Therefore, on 16.2.2007 itself, the day she gave
joining report to the respondent No.2/IRM, she also applied for grant of her
study leave vide application dated 16.2.2007 seeking leave from 19.2.2007 to
30.6.2007. The Director of the respondent No.2/IRM sanctioned the said leave
for the aforesaid period without pay by making the following endorsement
"Granted leave without pay and she has to complete her tenure of training
after coming from Germany." On sanctioning of this leave, she left for
Germany on the same day. However, after some time she received an e-mail
dated 12.3.2007 from the respondent No.2/IRM that her leave for training in
Germany was not accepted by the respondent No.1. Along with this e-mail,
letter dated 6.3.2007 of the respondent No.1 to the respondent No.2/IRM was
attached stating that leave could not be granted as it was against "Board
Rules". The appellant vide her e-mail dated 16.3.2007 to the Director of the
respondent No.2/IRM requested him to reconsider her case and treat the said
period, which she was going to spend in Germany, as part of FNB Course
tenure as she was pursuing training in the same course in Germany as well.
Copy of the said e-mail was sent to the respondent No.1 and the respondent
No.2/IRM through courier as well. In the meantime, Dr. B.N. Chakravarty,
Director of the respondent No.2/IRM, sent the registration form dated
16.2.2007 of the appellant to the respondent No.1, which was forwarded by
Dr. R.N. Ghosh, Medical Superintendent of the respondent No.2/IRM. It was
forwarded on 24.3.2007. On 26.3.2007, the respondent No.2/IRM also
intimated the appellant that her representation in support of leave application
had been forwarded to the respondent No.1 for consideration.
5. While she was awaiting further response on her leave application from the
respondents, it transpires that on 3.4.2007 Dr.R.N. Ghosh, Medical
Superintendent of the respondent No.2/IRM intimated the respondent No.1
that the appellant had left for training abroad and her seat was lying vacant.
On this basis, the respondent No.1 posted another candidate Dr. Samita
Malhotra alis Samita Jain to the respondent No.2/IRM vide letter dated
16.4.2007. She, however, did not join. According to the appellant she was
unaware of these developments and as far as she is concerned, vide e-mail
dated 16.4.2007 the respondent No.2/IRM suggested the appellant for the
topic of studies. She, thus, remained under the impression that her Fellowship
and posting with the respondent No.2/IRM continued, as even at that time she
was not apprised of her replacement by a new candidate. On 28.4.2007, she
intimated the respondent No.1 that she would report at the respondent
No.2/IRM on 1.5.2007 and also requested the respondent No.2/IRM that no
other candidate should be allowed to join the duties against her place.
However, respondent No.2/IRM had already posted Dr. Jayeeta Samanta
(respondent No.3) vide letter dated 23.4.2007, who joined the respondent
No.2/IRM on 30.4.2007. Thus, when the appellant wanted to resume her
course on 1.5.2007 and for this purpose when she approached the respondent
No.2/IRM, she was not allowed to join the duties as her slot had already been
filled by another candidate.
6. It was, on these averments, that she filed writ petition challenging the
aforesaid action of the respondent Nos. 1 and 2 seeking direction that she be
permitted to resume studies in the FNB in the respondent No.2/IRM. After
taking note of the aforesaid facts, the learned Single Judge concluded that the
appellant was not entitled to any relief because the situation in which she
finds herself today was of her own making. The reading of the judgment would
reveal that the following factors influenced the mind of the learned Single
Judge in forming the said opinion:-
a) The authority for approving or sanctioning leave was the
respondent No.1 and the application for leave was to be dealt
with by the leave regulations which stipulated that no leave
beyond 15 days in the entire course of two years was permissible.
Therefore, the leave granted by the respondent No.2 was of no
avail as it was subject to the approval of the respondent No.1.
b) The respondent No.1 had rejected the application for leave about
which the appellant was informed on 12.3.2007. However, she
failed to come back and join her course.
c) The Fellowship Programme, to which the appellant was selected,
was not only prestigious but rigorous as to attendance norms. If
candidates are permitted to go on leave at their whim, the
discipline of the course would be undermined.
d) The object of the programme is intensive training. Subjective
determination of desirability of another course cannot be the
basis of individual candidate's leaving programme at any point, at
their convenience.
e) The plea of the appellant that she had gone back to Germany on a
bona fide belief after her leave was sanctioned by the respondent
No.2/IRM, which was aware of the appellant's intentions, has not
been accepted by the learned Single Judge. Finding is recorded
that she never informed the respondent No.1/NBE about her
admission at the Kiel School, University Hospital, Kiel, Germany
and NBE was unaware of impending absence of four months at
the time of her interview, which took place on 15.2.2007.
f) The NBE is the regulatory and expert body, which design the
course as well as the Fellowship Programme. It has an overriding
interest in the manner in which candidates have to conduct
themselves in the course. Attendance and other academic
stipulations, whether embodied in the statutory rules or not, are
meaningful; designed to attain specific objectives. The fellowship
programme in question is of two years. The overriding concern of
the NBE, while stipulating a 14 day cap on leave, is to ensure
attendance in the programme. If individuals, howsoever brilliant,
are permitted to leave the course at any point of time (in this
case, at the commencement) and return in the fellowship on the
basis of their assessments of the worth of other courses and
programmes, that would be injurious to the larger discipline of
the course.
g) Such attendance conditions cannot, in judicial review, be
examined on merits by the Courts. Being part of standards
evolved by an expert body, the Court cannot don the hat of a
super executive and explore its wisdom.
h) Plea of the appellant that due to lapses and omissions of the NBE
in commencing the course late was of no avail inasmuch as,
having chosen to accept the fellowship, it was not proper for her
to blame the NBE for alleged delay in conducting the admission
procedure. She did not find any difficulty in appearing in the test
or the interview, which is clear from her unconditional
participation.
7. Mr.K.K. Rai, learned senior counsel, appearinig for the appellant reiterated
the submission made before the learned Single Judge, which were howsoever
not accepted by the learned Single Judge. He reiterated that normally such
courses commence in the month of July and therefore, selection process
should have been completed at least by June. But in that particular year, the
exam was held in December 2006 and interview conducted only in mid
February 2007. On account of this indecision and delay, the appellant had also
applied for and got admission in the prestigious course in Kiel School,
Germany. It was also submitted that she had apprise the respondent No.2 of
this fact and was duly sanctioned the leave by the respondent No.2. She was
not aware as to whether leave is to be ultimately sanctioned by the
respondent No.2 and on the strength of sanction of the respondent No.2, she
left for Germany in a bona fide belief that she would be allowed to resume the
course on her return. It is further submitted that though she was informed
vide e-mail dated 12.3.2007 that her leave for training in Germany had not
been accepted by the NBE, she had made representation for sanction of leave
and reconsideration of the matter not only no outcome thereof was
communicated, in the meantime, the respondent No.2 had processed her
registration form and also forwarded her joining report to NBE and from these
acts she gather bona fide impression that she would be allowed to rejoin the
said course. It was also submitted that other candidate joined on 30.4.2007
whereas before that on 20.4.2007 she had written e-mail that she would be
joining the course on 1.5.2007. Therefore, it was not a bona fide act on the
part of the respondents No.1 and 2 to allow the respondent No.3 to join in her
place when she was coming on the very first day. Mr.Rai also pointed out that
the respondent No.2 in the counter affidavit filed in the writ petition had
categorically stated that it had no objection if the appellant was allowed to
join even at that stage and therefore, there was no impediment at all. Further,
queried the learned counsel, she could not be refused to join the course on
1.5.2007 when there was no order for cancellation of her candidature.
8. We have given our due consideration to the aforesaid submissions in the light
of the reply given to these submissions by Mr.Neeraj Kaul, Senior Advocate,
who appeared for the respondents. We express our inability to agree with
these submissions as we do not find any fault with the judgment of the
learned Single Judge. The learned Single Judge is correct in his observations
that the situation in which the appellant is landed today is her own doing.
Whether there was any delay in starting the course by the NBE or not, would
be of no consequence and the appellant cannot draw any mileage therefrom.
The moot question is that if there was delay in conducting the exam and
starting the course and in the meantime, the appellant was selected for
undertaking a specialized course in Reproductive Medicine and Gynaecological
Endoscopic Surgery from Kiel School, University Hospital, Kiel, Germany, could
she claim that it is now her right to undertake both the courses at the same
time? No doubt, when she was selected for pursuing the aforesaid course
from Kiel School, Germany, which was to commence on 1.2.2007, the selection
process of the course in question by the NBE had not concluded. Therefore, as
on that date she was not sure as to whether she would get the admission in
NBE and it appears that she did not want to miss the opportunity of joining the
training course in Germany. However, when she was given a call for the
interview-cum-aptitude test, scheduled for 15.2.2007, she knew that she could
be selected in the fellowship course of NBE. It was for her to make a choice at
that time as to whether she wanted to complete the training in Germany or
prefer the fellowship of NBE. Even if she carried an impression that it was
possible to do both the courses at the same time as training course in
Germany was for six months duration only whereafter she would be in a
position to join the IRM, she should have disclosed this fact to NBE at the time
of her interview on 15.2.2007. She did not do so. Instead she informed the
respondent No.2/IRM on 16.2.2007 and moved application for leave with the
IRM only.
9. Even if she is to be given the benefit of doubt up to this stage, at least on
12.3.2007 when she was informed that her leave application was not approved
by the NBE, she should have at that time made her choice, inasmuch as this
information that her leave is not sanctioned was with obvious consequence,
namely, if she does not join, she may lose her fellowship. However, she
cannot have her cake and eat it too. Her intention was to have best of both
worlds. She wanted to complete her training course in Germany as she
thought that it was very prestigious and at the same time was nursing
erroneous belief that her attendance for all this period from IRM will be
excused. It was an ostrich like approach where even knowing the obvious the
appellant was trying to turn a blind eye in a faint hope that her default would
be condoned. However, the respondents are bound by their attendance
regulations. It was not possible for the respondents to help the appellant in
these circumstances, which was possible only by bending the rules.
10.Though the appellant states that she was not informed about the fate of her
request for reconsideration of leave application, it is strange that she wrote e-
mail on 28.4.2007 stating therein that she was joining on 1.5.2007 and
requesting that nobody else should be allowed to join in her place. It is
manifest that she had come to know about her replacement and in these
circumstances, when almost driven to wall, she adopted the aforesaid course
of action. However, it was too late by that time as the respondent No.3 was
given letter dated 23.4.2007 to join the respondent No.2/IRM, i.e., much
before her e-mail dated 28.4.2007. Therefore, neither in law nor in equity the
appellant can claim any remedy. No doubt, she has academic brilliance and
her ouster from the said fellowship is somewhat harsh to her, however, the
respondents are also bound by the rules and regulations and if NBE decided
that in the interest of discipline, it is not possible to help the appellant, it
becomes difficult for this Court to come to the rescue of the appellant. We
may record that the learned counsel for the IRM had made a statement before
us that it was not possible to adhere to the statement in the counter affidavit
giving offer to the appellant to join the course even at this stage, as it is
realized that the same would be contrary to rules. The quota of the said
institute is of two seats and if the appellant is accommodated, it would be
breach of that quota.
11.In these circumstances, we agree with the reasoning of the learned Single
Judge, as stated above by us in summarized form. For all these reasons we
affirm the judgment of the learned Single Judge and dismiss this appeal. There
shall, however, be no orders as to costs.
(A.K. SIKRI)
JUDGE
July 04, 2008 (J.R. MIDHA)
HP. JUDGE
