Devesh Dutta & Ors vs National Board Of Examinations & ...
2009 Latest Caselaw 3020 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P(C) No.10697/2009

%                        Date of Decision: 06.08.2009

Devesh Dutta & Ors                                          .... Petitioners

                        Through Mr.Navin Chawla, Advocate.


                                  Versus

National Board of Examinations & Anr                     .... Respondents

                        Through Dr.Rakesh Gosain, Advocate for the
                                respondent No.1.
                                Mr.Sanjay Katyal, Advocate for the
                                respondent No.2.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                  YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                     NO
3.     Whether the judgment should be reported in                 NO
       the Digest?


ANIL KUMAR, J.

*

The petitioners challenge the decision of the respondent canceling

the Exit Examination of Fellowship Programme in Cardiac Anesthesia

and directing the petitioner to reappear for the same on 22nd/23rd

August, 2009 and seeks a direction to the respondents to declare the

result of the petitioner for the Exit Examination held on 12th/13th

March, 2009 at Narayana Hirudayalay, Bangalore.

The petitioners have contended that they had appeared for the

programme in the year 2004/2005/2007 and after being successful in

the entrance examination for the Fellowship examination in cardiac

anesthesia were allotted hospitals where they had to undergo the

course.

The petitioners' plea is that there are only 13 seats all over India

and they had applied for Exit Examination in March, 2008 and

deposited the requisite fees whereafter by communication dated 2nd

March, 2009 they were called upon to appear for the exit examination

on 12th/13th March, 2009 at Bangalore.

According to the petitioners they appeared in the Exit

Examination and waited for the results, however, they received the

communication dated 28th July, 2009 intimating them about

cancellation of Exit Examination held on 12th/13th March, 2009 and

calling them to reappear in the examination on 22nd/23rd August, 2009

at SGPGI, Lucknow.

The petitioners have contended that the programme was started

with the laudatory objective of preventing brain drain of qualified

medical professionals leaving this country, however, the said objective

would stand defeated, if the examination for the same is cancelled at

the whims and fancies of the respondent No.1. It was also contended

that no Exit Examination was conducted by respondent No.1 in the year

2008.

The learned counsel for the respondent, Mr.Gosain who appears

on advance notice has produced the copy of the letter dated 4th August,

2008 from Executive Director of National Board of Examinations to

Under Secretary, ME Desk II, Government of India stipulating the

reasons for cancellation of the examination. It is contended that 9

candidates had appeared in the aforesaid examination. Relying on NBE

rules, it is contended that three examiners had to examine all the

candidates as per the scheme of examination prescribed by the Board.

However, one of the examiners could not report for the examination

duties, thereafter, examination coordinator Dr.Mularalidhar conducted

the examination in the breach of the guidelines of NBE on both days of

examination and conducted the examination with only two examiners

Dr.Mularalidhar and Dr.(Col) G.S.Ramesh against the mandatory

requirement of three examiners. It is also contended that these two

examiners have also awarded identical marks i.e 120 marks to almost

all the candidates. It has also been contended that other infirmities

were also noticed and the mater came to the notice of NBE only when

the result of the aforesaid centre was submitted to NBE office by the

examination centre. In the circumstances, it is contended that decision

was taken to cancel the examination held on 12th/13th March, 2009 and

the candidates including the petitioners have been informed accordingly

and they have been directed to reappear in the examination.

The learned counsel for the petitioner has contended that it was

never communicated to the petitioners that the panel of the examiners

had to be of three examiners and not of two examiners and

consequently the examination conducted by the respondent could not

be cancelled. Reliance has also been placed on Union of India and Ors

v. Rajesh P.Puthuvalnikathu and Ors., (2003) 7 SCC 285, wherein it

was held that if it was possible to weed out the beneficiaries of

irregularities or illegalities out of the selectees, there was no

justification to deny appointment to those selected candidates whose

selection was not vitiated in any manner and in the circumstances on

the facts of the case it was held that the decision cancelling the

selection in the entirety was not right.

In the case of the petitioners, in view of the communication dated

4th August, 2008 it cannot be disputed that as per the rules of NBE, a

panel of three examiners had to examine the candidates as per the

scheme of examination. If one of the examiners had not reported for

examination duties, the remaining two examiners could not have

continued with the examination. However, in breach of the rules of NBE

for conduct of the examination, the examination was conducted by only

two examiners. If examination was not conducted in compliance with

the rules of NBE, the respondents are justified in cancelling the entire

examination. The petitioners do not have such a right which will impel

the respondents to seek consent of the petitioners for cancelling the

entire examination which was not conducted according to the norms.

The learned counsel for the petitioners has rather contended that the

petitioners did not know that the examination had to be conducted by

three examiners in place of two examiners. The alleged ignorance of the

petitioners about this fact, in the facts and circumstances will not be

material. It rather reflects non compliance of rules in conduct of the

examination which will entail cancelation of the entire examination. The

petitioners in the facts and circumstances cannot impugn the decision

of the respondent to cancel the examination of all the candidates which

was taken by panel of two examiners in place of panel of three

examiners.

The learned counsel for the petitioners has also contended that

all the doctors who appeared in the examination are specialists and,

therefore, similar marks have been awarded to them. Another reason

noticed and relied on by the respondents in cancelling the examination

is of awarding 120 marks to almost all the candidates. Even if the

petitioners and other doctors are stated to be very competent persons, if

the respondents have a doubt about the two examiners continuing with

the examination contrary to the rules of NBE and awarding similar

marks, the decision to cancel the examination of the candidates cannot

be faulted. The judgment relied on by the petitioners is distinguishable

as in that case there was no allegations of malpractice or conducting

the examination contrary to the rules in contradistinction to the present

case where though the panel of examiners consisted of three examiners,

however, since one of the examiner could not report, the examination

was conducted by the remaining two examiners contrary to the rules. In

the circumstances, the decision of the respondent to cancel the

examination cannot be faulted. The petitioners cannot get the relief on

the basis of precedent relied on by them which is distinguishable. The

ratio of any decision must be understood in the background of the facts

of that case. What is of the essence in a decision is its ratio and not

every observation found therein nor what logically follows from the

various observations made in it. It must be remembered that a decision

is only an authority for what it actually decides. It is well settled that a

little difference in facts or additional facts may make a lot of difference

in the precedential value of a decision. In Bhavnagar University v.

Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59), the

Supreme Court had observed:-

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The petitioners do not have a vested right to have their result

declared of an examination which had not been conducted in

accordance with the rules. No malafide has been alleged against the

respondents. The learned counsel for the petitioners is also unable to

substantiate that the cancellation of the examination held in March,

2009 shall be contrary to the object of conducting the examination.

The petitioners in the facts and circumstances, is not entitled to

the relief prayed and the decision of the respondents to cancel the

examination of the candidates is not liable to be set aside nor can the

respondents be directed to declare the result of the petitioners for the

examination which has been cancelled. The writ petition is, therefore,

without any merit and it is, therefore, dismissed.

        Dasti




August 06, 2009                                         ANIL KUMAR, J.
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