Mrs. Anuradha Jain vs National Board Of Examinations & ...
2009 Latest Caselaw 775 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) 7363/2009 & CM 3207/2009

                                        Date of decision : 06.03.2009
IN THE MATTER OF :

#MRS. ANURADHA JAIN                          .....  Petitioner
!                            Through: Mr. Sunil Kumar, Sr. Adv.
                                      with Ms. Amita Kanungo and
                                      Mr. Himanshu Shekhar, Advs.

                    versus

$NATIONAL BOARD OF EXAMINATIONS & ANR.     ........Respondents
^                     Through: Mr. Rajeeve Mehra with
                               Mr. Arvind Sharma, Advs.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? Yes.

     2. To be referred to the Reporter or not? Yes.

     3. Whether the judgment should be reported in the Digest? Yes.

HIMA KOHLI, J. (ORAL)

1. With the consent of counsels for the parties, the present

writ petition is taken up for hearing and disposal at the stage of

admission.

2. The petitioner has approached this Court praying inter alia

for directions to the respondents for setting aside fixation of the date,

9.3.2009, the date fixed by the respondent No.1 as the last date for

submission of the medical internship completion certificates for MBBS

students in order to be eligible to appear for the entrance examination

for the 'Diplomate of National Board Centralized Entrance (CET-NBE)

June 2009' (in short 'CET-NBE June, 2009) course fixed to be held on

14.6.2009. The aforesaid test is for admission to the course commonly

known as the DNB course, which is equivalent to a post-graduate

medical degree like MD/MS.

3. It is stated on behalf of the petitioner that her daughter took

admission in the MBBS course in the year 2003. As per the time

schedule mandated by the Supreme Court for the purposes of medical

entrance tests and admission, the last date for admission in the exam

year is fixed as 30th September. She is in the process of completing

her one year of internship on 31.3.2009 and is adversely affected by

the cut-off date of 9.3.2009 fixed by the respondent No.1 for

submission of medical internship certificates for MBBS students so as

to qualify for taking the Centralized Entrance Test to be conducted on

14.6.2009. A perusal of the notice brought out by the respondent

No.1 on 2.2.2009, as downloaded by the petitioner, shows that the last

date of submission of the application form along with the prescribed

fee is fixed as 9.3.2009. The grievance of the petitioner is that

though her daughter is desirous of undertaking the DNB course, she

will qualify after completing her internship only on 31.3.2009, which

will be too late in view of the last date of submission of application

forms fixed by the respondent No.1 as 9.3.2009.

4. Counsel for the petitioner contends that fixation of the date

as 9.3.2009 by the respondent No.1, for the purpose of eligibility, is

arbitrary and does not have a rational nexus with the objective sought

to be achieved, there being no eligibility criteria fixed by the

respondents in that regard. He further states that last year, the

respondent No.1 had fixed 15th April, 2008 as the last date for

submission of internship completion certificates and this year, the

respondent No.1 has arbitrarily fixed 9.3.2009 as the cut-off date, thus

causing irreparable loss and injury to the daughter of the petitioner

and depriving her of an opportunity to take the CET-NBE to be

conducted on 14.06.2009. In support of his submissions, counsel for

the petitioner relies on the judgments of the Supreme Court in the

following cases :

1. Lokanath Deb & Ors. vs. Raghunath Misra & Ors., AIR 1985

NOC 241 (ORISSA),

2. Dr. Basanta Kumar Behera & Ors. vs. State of Orissa & Ors, AIR 1988 ORISSA 124, and

3. Mridul Dhar (Minor) & Anr. vs. UOI & Ors., (2005) 2 SCC 65.

5. On the other hand, counsel for the respondents submits

that the respondent No.1 has neither been arbitrary, nor irrational in

fixing the cut-off date as 9.3.2009. He submits that in ordinary

course, since the year 2004, the respondent No.1 has always fixed the

cut-off date which falls in the month of February each year and the

examinations are conducted in the month of June of the same year.

However, during the last year, the date had to be rescheduled from the

month of February to April, 2008 on account of certain inquiries which

had to be undertaken in cases of impersonation. He further states

that the contention of the petitioner that her daughter shall suffer

irreparable loss and injury is answered by the fact that the examination

for the DNB course is not conducted on an annual basis, but on a

bi-annual basis. He states that while the first examination of the

relevant year is conducted in the month of June, the second

examination for the same course is conducted in the month of

December of the same year and the cut-off date for the second

examination for the same course would be August, 2009. He,

therefore, submits that at best, the daughter of the petitioner will lose

only five months to qualify the eligibility criteria laid down by the

respondent No.1.

6. Counsel for the respondents further submits that 90% of the

batch that shall take the examination to be conducted in June, 2009

would be eligible as per the cut-off date fixed by the respondent No.1

in March, 2009, having completed their internships by 31st December,

2008. It is further urged that had the daughter of the petitioner a

valid grievance, nothing precluded her from approaching the Court

immediately or at least within a reasonable time from the date of

issuance of the notice by the respondent No.1 i.e. 2.2.2009, and having

approached the Court as belatedly as on the eve of the cut-off date,

the writ petition is liable to be rejected on the ground of delay and

laches. Reliance is placed by the respondents on a judgment in the

case of WP(C)No.6355/2007 entitled Deepali Yadav & Anr. vs. UOI &

Anr., decided on 29.8.2007.

7. The only issue that this Court is required to consider in the

present case is as to whether the action of the respondent No.1 in

fixing 9.3.2009 as the cut-off date for conducting the CET-NBE June,

2009 examination is arbitrary and unjustified. A consideration of the

submissions made by the counsels for the parties shows that it is an

undisputed position that in ordinary course, for the past few years,

dating back till the year 2004, the respondent No.1 has been fixing the

cut-off date for conducting the examination in the month of June every

year for which the month of February has been fixed as the last date

for submission of forms. The year 2008 was an exception to the rule on

account of extraordinary circumstances beyond the control of

respondent No.1, as noted above.

8. Fact remains that even if the daughter of the petitioner is

not eligible as on 9.3.2009, to sit for the examination to be conducted

by the respondent No.1 for the DNB course in the month of June, 2009,

she would be eligible for taking the said examination six months down

the line, in December 2009. Hence, it cannot be contended that the

daughter of the petitioner would suffer irreparable loss and injury. It is

only a question of relative time lag.

9. In the case relied upon by the counsel for the respondent

i.e. Deepali Yadav (supra), the learned Single Judge had taken into

consideration the examination that was to be held by the respondent

No.1 for the DNB course scheduled to begin in January, 2008. In the

said case, the test was to commence on 9.12.2007. For the said

examination, the respondent No.1 had stipulated that only such

candidates would be eligible to take the examination fixed in

December 2007, who would complete internship of one year on

31.8.2007. While considering the submission of the aggrieved

candidates in the aforesaid case, in the light of the validity of the cut-

off date prescribed for the DNB course, the learned Single Judge

observed that it is well settled that whenever an administrative agency

or the legislature fixes a cut-off date, as long as the stipulation is not

arbitrary but has some co-relation with the objective sought to be

achieved, the Court would not interfere and personal convenience

could not outweigh public interest.

10. Even in the present case, considering the fact that the

respondent No.1 has been consistently for the past few years since the

year 2004, conducting the examination for the first batch i.e. for the

batch of examinees sitting in June of the year, as February of the same

year, as the cut-off date, the plea of the petitioner that an exception

has been made by the respondent No.1 this year, is unacceptable.

Rather, reliance placed by the petitioner on the cut-off date fixed by

the respondent No.1 in the last year, i.e., the year 2008 as April, shows

that the same was an exception to the rule and made on account of

extraordinary circumstances, beyond the control of respondent No.1.

11. No doubt, the daughter of the petitioner would face some

hardship to the extent that she would be able to fulfill the criteria of

eligibility for taking the examination to be held in the month of

December, 2009, only at the end of March, 2009. However, this alone

cannot be considered as sufficient ground for interference by this Court

while exercising its powers under judicial review. The Court is also

required to take into consideration the broader spectrum of the matter

by examining as to whether the decision of respondent No.1 of fixing a

cut-off date for a large number of candidates who would qualify to sit

for the examination to be conducted in June, 2009 would be adversely

impacted. The answer to the same has to be in the negative in view of

the statement of the counsel for the respondents that if the date

09.03.2009 is maintained as the cut-off date to qualify, then 90% of

the batch in question would qualify for taking the examination, fixed in

June 2009, exception being about 10% thereto. Fact also remains that

the latter category would still get an opportunity to sit for the

examination at the end of this year.

12. Counsel for the respondents also draws the attention of this

Court to Clause 4.1(a) of the information bulletin annexed as

Annexure-2 to the writ petition to state that it is a mandatory

requirement that candidates should be in possession of medical

degrees from Indian Universities registerable as per the provisions of

Indian Medical Council Act 1956 and should possess a permanent

registration certificate issued by Medical Council of India/State Medical

Council and must have completed one year of internship on or before

the last date of submission of the application form i.e. 9 th March, 2009.

He submits that in the present case, the petitioner has not challenged

the second criteria of possession of a permanent registration certificate

by the cut-off date i.e. by 9.3.2009 and, thus even otherwise, the

daughter of the petitioner would not qualify to sit in the examination in

June, 2009, not being in possession of a permanent registration

certificate.

13. There is force in the aforesaid contention of the counsel for

the respondents and the Court is inclined to agree with the said

submission. Thus, the daughter of the petitioner would suffer from a

two-fold disqualification. Both of them are linked with the date,

31.3.2009 by which date, the daughter of the petitioner would not be

in a position to possess a permanent registration certificate and

complete the one year internship. But this is true only for the first

examination to be conducted in June 2009 and not for the second one

to be conducted in December, 2009.

14. Reliance has been placed by the counsel for the petitioner

on a judgment of the Supreme Court in the case of Mridul Dhar (supra)

wherein directions were issued that no student shall be admitted in

any course of medicine or dentistry after expiry of the last date

prescribed for closure of admission in that course; nor shall any

university register any such admission sought to be made. The

aforesaid judgment undoubtedly fixes the cut-off date for admission to

the MBBS, post graduate and super-specialty course, but it does not fix

the date of exit from the said course.

15. Counsel for the petitioner contends that her daughter being

of the first batch for the purpose of consideration after the aforesaid

judgment, having taken admission in the MBBS course in the year

2003, the said issue has cropped up for the first time and needs to be

considered. In the aforesaid judgment, the Supreme Court has not

mandated the respondent No.1 to take into consideration the month of

admission of the students in the courses of medicine and dentistry in

the year 2003 for the purposes of conducting their examinations for

the DNB course. In other words, the aforesaid judgment has not fixed

an exit date for the students undertaking the aforesaid courses.

16. The Full Bench judgment relied on in the case of Dr.

Basanta Kumar Behera (supra) reveals that in the said case, the

examinations for joint post-graduate course in higher specialities in the

State of Orissa were held annually and the grievance of the petitioners

therein was that they did not fulfill the eligibility requirements by 30th

June of the year of admission due to reasons beyond their control and,

thus they were deprived of the opportunity to appear in the entrance

examination for selection for admission to post-graduate courses.

17. Unlike the facts of the above case, in the present case, as

already indicated above, the examination is a bi-annual affair. Even if

the daughter of the petitioner loses the first chance on account of non-

fulfillment of the eligibility criteria, as on 9.3.2009, a second chance

shall be available to her five months down the line, in the month of

August, 2009. Hence, it cannot be stated that it is the end of the road

for the daughter of the petitioner.

18. For all the aforesaid reasons, this Court is not persuaded to

interfere with the action of the respondent No.1 in fixing the cut-off

date as 9.3.2009 for submission of the application form by a candidate

to be considered eligible for taking the CET-NEB June, 2009

examination.

19. Accordingly, the writ petition is dismissed, along with the

pending application. Parties are left to bear their own costs.

HIMA KOHLI,J

MARCH 06, 2009 sk