Dr. Hari Nath Yadav & Anr. vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 3201 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: 04.05.2011
                              Judgment delivered on: 08.07.2011


              W.P.(C) No.10761/2009 and C.M.No.9786/2009

Dr. Hari Nath Yadav & Anr.                   ......Petitioners
                Through: Mr. Pradeep Dahiya Adv.

                              Vs.

Govt. of NCT of Delhi & Ors.               ......Respondents
                Through: Mr. S.D. Singh with Mr. Rahul Kumar
                          Singh, Advs. for respondent No. 2.
                          Dr. Rakesh Gosain, Adv. for
                          respondent No. 3.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may                Yes
    be allowed to see the judgment?
2. To be referred to Reporter or not?                        Yes
3. Whether the judgment should be reported
    in the Digest?                                           Yes


KAILASH GAMBHIR, J.

*

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks directions to direct the

respondent No.3 NBE to grant registration to the petitioner for

DNB Course (Session January 2009- December 2011).

2. The present petition was preferred by two petitioners

and later petitioner No. 2 sought deletion of his name. The

present writ petition thus concerns the case of petitioner No. 1

alone.

3. Brief facts of the case relevant for deciding the

present petition are that the respondent no.2 Institute of Human

Behaviour & Allied Sciences, which is accredited by the

respondent no.3 National Board Of Examinations (NBE),

through a public notice dated 4.2.09 invited applications for

three years DNB Course for the session of January 2009-

December 2011 to which the petitioner responded and applied

for the DNB(Neurology) and was selected by the respondent

no.2, pending registration by the respondent no.3 Board. The

short controversy involved in the present petition is that the

respondent no.2 selected the petitioner without him having

qualified the CET-DNB(Super Specialty) examination, which as

per the respondent no.3 NBE is the eligibility criteria for

admission in a DNB course and therefore the application for

registration of the petitioner to the said course was rejected by

the NBE vide letter dated 3.6.09. Feeling aggrieved with the

same, the petitioner has preferred the present petition.

4. Learned counsel appearing for the petitioner

submitted that pursuant to the advertisement published by the

respondent no.2 inviting applications from the eligible

candidates to seek admission in 3 years DNB super specialty

course in Neurology for the academic session January, 2009 -

December, 2011, the petitioner was given admission by the

respondent no.2 Institute after he appeared before the duly

constituted selection committee of the respondent Institute. It is

the case of the petitioner that in the said advertisement, the

respondent no.2 notified that the candidates who have qualified

CET-DNB (Super Specialty) examination would be offered

admission on priority, but if the said seats are not filled up by

the qualified CET-DNB candidates, then the remaining seats

would be filled on the basis of a written, clinical test and

interview. Counsel for the petitioner submitted that there were

only four candidates who had applied for the said super specialty

course and in the interview only two candidates were finally

selected. Counsel further submitted that after the said selection,

the petitioner had joined the DNB course in Neurology on

16.02.2009. The counsel further stated that on 18.02.2009 the

petitioner was allotted residential accommodation in Senior

Residents' Hostel and on 11.04.2009 he was offered the post of

Senior Resident (Neurology) pending consideration of his case

for registration in DNB course from the respondent no.3 Board.

The contention of the counsel for the petitioner was that the

petitioner accepted the said offer as a stop-gap arrangement as

he was not apprehending any kind of impediment in getting

registration from the respondent no.3 Board on the assumption

that the petitioner was duly selected by the respondent no.2 and

he also fulfilled the eligibility criteria to seek admission in the

three years DNB course. The counsel further stated that on

12.05.2009 the Joint Director (Administration) of the respondent

no.2 had issued an office order vide which he was informed that

the petitioner will be disengaged w.e.f. the afternoon of

15.05.2009 on the completion of stipulated period i.e.

16.02.2009 to 15.05.2009 but on the representation made by the

petitioner his term of engagement was extended from

17.05.2009 to 13.08.2009 by the Joint Director (Administration)

of the respondent no.2 Institute. Counsel for the petitioner

submitted that the petitioner had received a letter from the Dy.

Director (Medical) of the respondent no.3 Board through which

the petitioner came to know that his application for registration

as DNB trainee was rejected on the ground that the petitioner

had got enrolment in the said course without qualifying the CET

examination. Counsel for the petitioner further submitted that

the petitioner was not at fault as not only he was fully eligible to

secure admission in the said super specialty course but he was

duly selected in the interview out of the two candidates and was

accordingly offered the said seat by the respondent no.2

institute. Counsel further submitted that the respondent-Board

in 2008 itself had relaxed the said condition of CET as only 5%

candidates could qualify for the said super specialty course.

Counsel also submitted that even as per the stand taken by the

respondent-institute, they came to know about the said condition

of CET test only on 4.03.2009 and, therefore, the hospital also

cannot be blamed for issuing the said advertisement dated

4.2.2009. Counsel thus submitted that the case of the petitioner

be considered by this Court on equitable grounds as he cannot

be made to suffer for no fault of his.

5. Opposing the present petition, Dr. Rakesh Gosain,

leaned counsel appearing for the respondent no.3 NBE

submitted that the petitioner cannot claim ignorance about the

said eligibility condition as he himself had appeared in the said

super specialty test, but failed in the same. Counsel also

submitted that as per the Information Bulletin of the NBE, the

last date of submitting the application was mentioned as

14.11.2008 and, therefore, even the respondent-institute cannot

claim that the said bulletin was not within their knowledge.

Counsel further submitted that the respondent-institute had no

right to give admission to the petitioner based only on the

interview once the Board has clearly specified the criteria of

qualifying the said test of CET to seek admission in the said DNB

super specialty course. Counsel thus stated that this Court in

exercise of its writ jurisdiction may not give any directions which

will have the effect of violating the said rules laid down by the

respondent-Board.

6. Counsel appearing for the respondent no.2 -institute,

on the other hand, submitted that the institute came to know

about the said bulletin only on 04.03.2009 and prior thereto, the

same was not within its knowledge. Counsel further submitted

that the petitioner was selected by the Selection Committee

comprising of six eminent persons consisting of Professors and

Doctors of the institute and in the past also the respondent-

institute has been following the same directions to the

knowledge of the said Board. Counsel thus supported the case of

the petitioner and submitted that the petitioner should be

granted relief as prayed for.

7. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the arguments advanced by them.

8. Respondent No. 3 is the National Board of

Examinations (NBE), which was established in the year 1975

with the prime objective of improving the quality of medical

education by establishing high and uniform standards of post

graduate examinations in modern medicine on all India basis. As

per the said Board, it conducts post graduate and post doctoral

examinations in approved specialties leading to the award of

Diplomate of National Board(DNB), a qualification having global

recognition . The said Board was established by the Ministry of

Health and Family Welfare in the year 1975 and later it became

an independent and autonomous organization in the year 1982.

With the derecognition of MRCP/FRCS degrees, the Government

of India felt for the need for a centralized body, which could

evolve high and uniform standards of post-graduate and post-

doctoral examinations in medical sciences at par with

international standards and also to create additional specialties

without burdening the resources of the Central Government. In

certain disciplines of modern medicine, post-graduation is

available only in the form of DNB qualification offered by the

respondent Board through out the country and as per the said

Board, DNB is a much sought after qualification, both amongst

the graduate doctors and even the employer institutes including

overseas institutions and governments due to its high standards.

As per the Board, for facilitating the grant of DNB qualification it

grants accreditation/recognition to various medical

hospitals/institutes situated in various parts of the country. For

granting accreditation to any of the institutes/hospital in the

field of any particular specialty, strict norms are in place and

each and every case for grant of accreditation for any

specialized course in any hospital/institute is decided by the

governing body of the said Board after it is recommended by the

accreditation committee of the Board and it is only on the

approval by the governing body that the hospital or institute is

able to grant admission against such specialized course subject

to the terms and conditions to be followed by such

institute/hospital in terms of the letter of accreditation.

9. Respondent No. 2 i.e. Institute of Human Behaviour

and Allied Sciences, is an autonomous body registered under the

Societies Registration Act, 1960 and is founded jointly by the

Ministry of Health and Family Welfare, Government of India as

well as Government of NCT of Delhi. Respondent No. 2 is one of

the accredited institutes of the NBE and vide letter dated 22nd

December, 2005, respondent No. 3 Board had granted fresh

accreditation to respondent No. 2 institute to train two DNB

candidates in the field of Neurology for a period of three years

w.e.f. January, 2006 to December, 2008 subject to fulfillment of

the terms and conditions laid down in the said letter. The

accreditation of respondent No. 2 institute was renewed further

for a period of three years each.

10. Respondent No. 3 had invited applications from the

interested candidates to appear in the centralized entrance test

known as CET for seeking admission to DNB (Super Specialty)

programmes in various accredited hospitals and institutions. The

last day of application form as per the Information Bulletin of the

respondent Board was 14th November, 2008 and date of CET

examination was 4th January, 2009. It is not disclosed by the

petitioner that he had appeared in the said centralized

examination CET-DNB on the said date, and failed to qualify the

same. But it is apparent that after having not succeeded in the

said examination, the petitioner found an advertisement issued

by respondent No. 2 in leading newspapers of 4 th February, 2009

inviting applications from the interested candidates seeking

admission to three years DNB course (session January, 2009 to

December, 2011) in the super specialty field of Neurology. The

closing date for making the application was 12.2.2009 and date

and time of interview of the examination was kept for 14 th

February, 2009 at 10.00 a.m. As per the eligibility condition

notified in the said advertisement, the candidates who had

qualified CET-DNB (Super Specialty) would be offered admission

on priority while the remaining vacancies arising after the filling

of the seats from the CET-DNB (Super Specialty), the candidates

will be selected on the basis of a written, clinical test and

interview. In response to the said advertisement, the petitioner

had appeared before the selection committee constituted by

respondent No. 2 on 14th February, 2009 and since there were

no candidates who had qualified the CET-DNB (Super Specialty)

examination having approached respondent No. 2 institute in

response to the said advertisement, the selection committee of

respondent No. 2 had selected the petitioner and offered him

one seat in the DNB in the field of Neurology for the academic

session of January, 2009 to December, 2011. A Memorandum

dated 16th February, 2009 was issued by respondent No. 2

offering the said seat to the petitioner and he joined the said

course immediately on 16th February, 2009 itself and consequent

to joining of the course the petitioner was allotted the residential

accommodation in Senior Residents' hostel vide office order

dated 18th February, 2009 issued by respondent No. 2 in this

regard. The petitioner was also offered the post of Senior

Resident (Neurology) for a period of 89 days and the said ad hoc

appointment was extended for further periods also. During the

continuation of his said ad hoc engagement on the post of Senior

Resident doctor, the petitioner on 3.6.2009 received a letter

from respondent No. 3 Board through which the petitioner and

respondent No. 2 institute were intimated that his application

seeking registration as DNB trainee was rejected as it was found

that the petitioner was granted admission in the said course

without qualifying CET Super Specialty Entrance Exam. The

National Board accordingly returned the application along with

the demand draft to respondent No.2 institute.

11. With the said rejection of the candidature of the

petitioner, the main grievance raised by petitioner is that it was

because of no fault of his that he was denied registration by

respondent No. 3 Board. Counsel for the petitioner termed such

an action on the part of the respondent no.3 as illegal, arbitrary

and violative of Article 14 and 16 of the Constitution of India and

submitted that the said decision taken by respondent No. 3 is in

blatant violation of principles of natural justice as the petitioner

was not given any opportunity of hearing before rejecting his

candidature. Counsel also contended that the petitioner had duly

fulfilled the laid down requirement of respondent No. 2 as

notified in the advertisement dated 4.3.2009 and he was duly

selected by the Selection Committee constituted by respondent

No. 2. Counsel also argued that even respondent No. 3 Board

has not been strictly adhering to its guidelines as in the year

2008 many candidates were granted admission in the said DNB

course without having qualified the said CET exam. Counsel thus

urged that such a relaxation can be extended in the case of

petitioner as well. Counsel for the petitioner also argued that

respondent No.2 hospital was not aware of the said guidelines

issued by respondent No. 3 Board and, therefore, also the

petitioner cannot be victimized to deprive him from completing

the said DNB course.

12. The learned counsel appearing for respondent No. 2

took a stand that respondent No. 2 had selected the petitioner

based on his performance in the interview and out of the four

candidates, the selection committee constituted by respondent

No. 2, petitioner was selected on merits for pursuing his DNB

course for the academic year 2009-2011. Counsel also took a

stand that for the academic year 2006-2008, 2007-2009, 2008-

2010 similar procedure was adopted by respondent No. 2 by

selecting the candidates for the said course through the process

of interview and all such candidates were granted registration

by the respondent No. 3 Board. Counsel for respondent No. 2

also submitted that the public notice dated 17th February, 2009

through which respondent No. 3 had issued the guidelines for

selection of DNB candidates was received by respondent No. 2

institute only on 4th March 2009 and by that time respondent No.

2 had completed the process of selecting candidates for the said

course. Counsel also submitted that respondent No. 2 had taken

up the issue of granting registration to the said two candidates

based on their selection vide their letter dated 6 th August, 2009,

but the same, however, was declined by the respondent Board

vide their letter dated 3rd June, 2009. Counsel also submitted

that it was neither in the interest of respondent No. 2 institute

nor in the interest of other candidates to keep the seats vacant

for the said DNB course for the academic year 2009-2011.

13. From the factual matrix set out above, a very

perturbing situation has arisen before this Court. On one hand,

the respondent Board has laid strong emphasis on qualifying the

CET examination for securing admission in the DNB course and

also strict adherence of the said norms by all the accredited

hospitals/institutions for enrolling the candidates in the said

super-specialty course. On the other hand, the respondent No. 2

Institute has taken a position that it was not aware of the said

guidelines issued by the respondent Board and when they came

to know the same on 4thMarch, 2009 they had already

completed the process of selecting the candidates for the said

DNB course . In the midst of this kerfuffle, the petitioner being

the aggrieved party has taken a stand that he had committed no

fault in responding to the public notice issued by respondent No.

2 through an advertisement in the national dailies, seeking his

admission in the DNB super-specialty course of Neurology. The

petitioner has also taken a stand that he had neither made any

misrepresentation nor suppressed any fact from respondent No.

2 Institute and he was selected by the Selection Committee duly

constituted by respondent No. 2 Institute for admission in the

said DNB course.

14. In the aforesaid scenario, the galling question before this

Court is as to which out of the said parties before the court is at

fault and is flouting the laid down guidelines formulated by the

NBE. The finger can only be pointed towards respondent No. 2

Institute. It is inconceivable that respondent No. 2 Institute was

not aware of the guidelines laid down by the National Board of

Examinations through the Information Bulletin for the year 2009

for granting admission in the super specialty courses.

Respondent no.2 is one of the accredited institutes by the

respondent no.3 and for an institution to know the procedure

laid down for admissions, the Information Bulletin was released

as early as 25 October, 2008 and was available at the website of

the Board and it is unfathomable that the respondent-institute

would be unaware of the said bulletin and guidelines.

Photocopy of the said Information Bulletin placed on record by

the NBE clearly discloses that the last date of submission of

application form to participate in the said test and to seek

admission in the super specialty course was 14th November,

2008 and the date of the examination was 4th January, 2009. The

said Information Bulletin also carries the website address and e-

mail of the said Board. In the column of information for

candidates under clause 2.1 it has been clearly laid that CET -SS

is the entrance examination for the admission to the three years

Super Specialty DNB programme. The said clause 2.1 of the

bulletin and certain other clauses of the bulletin, which are

relevant are reproduced as under:-

"2. INFORMATION FOR CANDIDATES 2.1. CET-SS is the entrance examination for admission to the 3 years Super Specialty DNB programme.

............

2.24 Candidates are advised to verify the status of the hospital/institute as a NBE accredited center for DNB - SS program. NBE shall not be liable for any claim resulting from admission to a course not recognized by NBE or admission to a hospital not possessing valid accreditation for any particular course or speciality. .........................

4. EXAMINATION

CENTRALISED ENTRANCE TEST - SUPER SPECIALITY (CET-SS-NBE)

The NBE CET - Super Specialty is an entrance examination for entry to the DNB Super Specialties. The next session of the examination shall be held on Sunday, the 4th January 2009.

It is an essential pre-requisite to qualify the NBE CET-SS and possess a valid score for admission to the DNB Super Specialty program. Candidates successful in the NBE CET can apply for admission to the three year super specialty program to institute accredited by National Board of Examinations as per the scheme of admission so prescribed by the Board. The applicable scheme is prescribed in this information bulletin. The list of National Board of Examinations accredited Institutes where candidates can pursue DNB courses is mentioned at Annexure V.

Candidates can also pursue DNB at Medical Colleges running DM/MCh courses. Copy of the notification issued by Government of India in this regard is placed at Annexure III.

 Candidates may note that qualifying a CET - SS examination does not confer any kind of right whatsoever on a candidate to register on a permanent basis with the Medical Council of India/State Medical Council or to pursue a DNB or any other Post Graduate/Post Doctoral Courses.

The list of Super Specialities in which candidates can pursue DNB along with their eligibility criteria mentioned in the Information bulletin. ......

4.7 Admission to DNB Super Specialty Courses

The successful candidates will apply directly to the accredited hospitals/institutions and appear in the institutional assessment.

4.8 Institutional Assessment The scheme adapted by NBE for aptitude assessment as per DNB CET - SS information bulletin will be followed by National Board of Examinations accredited hospitals/institutes. The scheme for assessment is stated herein below:

(a) The hospitals/institutes will prepare a speciality-wise merit list based on the combined performance of the candidates in the theory and short structured

question papers (out of 100 marks) and institutional assessment out of 10 marks i.e. total marks obtained by the candidates out of 110 marks.

(b) Candidates will be offered admission as per the order of merit computed as per the combined performance out of 110 marks as stated above.

(c) The list of candidates along with supporting annexures as per NBE guidelines will be sent to NBE for registration. The guidelines governing the admission to DNB programme and registration of candidates are contained in chapter-8 of this bulletin."

15. In the said Information Bulletin, under the Guidelines for

Admission to DNB (Super Specialty) Programmes there is a list

of Annexures that are to be submitted with the application forms

out of which Annexure I is in the form of declaration to be filed

by the Head of Institution and it would be pertinent to reproduce

the format of the same as under:

" Declaration Form of the Head of Institution

(This undertaking is to be submitted on Rs. ten non-judicial stamp paper, duly notarized) I, _____________ working as _____________ (Head of Institute) of ___________________ Hospital hereby certify that:

(i) The information enclosed along with as contained in Annexures 1 to 9 is true to the best of my knowledge and nothing thereon has been concealed.

(ii) That this institute has not charged any kind of capitation fees/security money/caution money/bank deposit/material

security/fees other than prescribed by National Board of Examinations in any format or any such article/instrument from the candidate towards joining the DNB programme.

(iii) I undertake that, if this institute/hospital is found not adhering to any of the guidelines of National Board of Examinations, the accreditation of the institute/hospital will be deemed to stand cancelled forthwith.

(iv) That the selection of DNB trainees has been done as per the guidelines prescribed by the National Board of Examinations.

(v) That all the candidates have been treated alike on equal grounds and no special privilege or weightage has been given to any candidate on any ground.

(vi) That the Certificates and Documents submitted by the trainee(s) have been verified from their original degrees and supporting documents and have found to be authentic.

(vii) That this hospital has maintained a waiting list as per merit obtained by the candidates in this Aptitude Test and any further vacancies arising due to any selected candidate not joining the seat or leaving the seat, the same shall be filled amongst the waitlisted candidates in order of merit. That none amongst the promoters/administrators of the hospital have been associated with the Aptitude Assessment Test and none of their relatives or close contacts have appeared in the Aptitude Assessment Test.

(viii) The panel of experts for the Aptitude Assessment Test and 50% of experts who are not associated with this hospital in any capacity and have never been associated with this hospital.

(ix) I undertake that this institution is abiding by the guidelines of the Board for payment of stipend to DNB trainee resident doctors; fees guidelines issued by the Board and will ensure strict compliance of the same for all DNB trainee resident doctors.

Verified and Certified for above.

(DR____________)

MS/Director ___ Hospital"

The aforesaid format prescribed down by the National Board of

Examinations in the Information Bulletin would clearly show that

the respondent No. 2 being one of the accredited institutes for

the two DNB seats in the super-specialty field of Neurology was

well aware of the consequences of not adhering to the said

guidelines laid down by the NBE. Even the petitioner, who had

appeared in the said exam but without success cannot claim

ignorance of the admission criteria as laid down by the

respondent Board as he might have not only applied to the

respondent institute but also to other hospitals/institutes

accredited by the NBE where the eligibility criteria would have

been the Entrance Examintion.

16. The DNB qualification, as stated by the NBE, is a

qualification duly recognized in Schedule I of the Indian Medical

Council Act, 1956. It is also apparent that the said DNB course is

highly specialized course and the eligibility criteria to appear in

the entrance examination for DNB course is not less than

MD/MS pass candidates. Keeping in view the importance of the

said super-specialty programme, the criteria set out for

selection of the candidates by the National Board of

Examinations has been through the centralized examination i.e.

CET-DNB. As per the respondent Board, the DNB is a much

sought after qualification and, therefore, the same is highly

competitive and the DNB candidates not only get training from

the eminent doctors and professors but they themselves greatly

contribute and support in the working of the hospital and in the

larger interest of the ailing patients. The respondent Board in its

detailed counter affidavit has explained the setting up of the

NBE and how the standards set out by the Board in monitoring

and granting the DNB degree are at par with the international

standards. A comparison chart of the DNB with MD/MS courses

was also set out, emphasizing that the centralized examination is

conducted on a nationwide basis and is without any element of

bias. The submissions of the Board were focused on highlighting

the prestige attached with the DNB qualification and the fact

that the CET exam is an indispensable prerequisite for admission

in the said course.

17. In the present day and age of cut throat competition,

admissions in almost all of the specialized courses is through

centralized entrance examinations for giving preference to merit

and to have a uniform standard and method of granting

admissions. Today, whether it is the senior secondary

examinations or the eligibility of MBBS or Engineering degree

for pursuing a higher degree, it has become immaterial as to

how one fairs in these examinations as the entire thrust is on

how well you perform in the entrance examination, which is the

gateway for admission in any course based on the merit and

position one secures in these entrance tests. Certainly, Entrance

Examinations are a prism for evaluating students on an

undifferentiated level and any action to dilute the procedure and

standards laid down would be to set the aim and objective of

these tests to naught. Thus, any laxity or concession in favour of

any student or any misplaced sympathy would not only give

leverage to many unscrupulous colleges and institutes but would

also result in compromising the merit, which will ultimately lead

to a pandemonium and deterioration of standards of education of

this country.

18. The Supreme Court in the case of Mahatma Gandhi

University and Anr. Vs Gis Jose and Ors. 2008(17) SCC 611

clearly took a view that misplaced sympathy should not be

shown by the Courts in total breach of the rules. In this case

also, a student securing less than cut off marks was given

admission in MSc Computer Science by the college in violation

of the admission rules and was also allowed to complete the

course after appearing in exams despite the fact that the

Academic Council of the University refused the student to allow

or continue her study in the said course. Taking a strict view the

Hon'ble Supreme Court in the following pars held as under:-

"10. The misplaced sympathies should not have been shown in total breach of the rules. In our opinion, that is precisely what has happened. Such a course was disapproved by this Court in CBSE v. Sheena Peethambaran2. In para 6 of the judgment, this Court observed as follows: (SCC p. 724) "6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations.

Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions."

11. In the present case, the college where the student was admitted, in breach of all possible rules allowed her not only to complete the course but also to write the examination which was totally illegal."

In A.P. Christian Medical Educational Society versus Govt.

of A.P. (1986) 2 SCC 667 the Apex Court took a view that the

Court cannot issue a direction to the University to protect the

interests of students who are admitted in a medical college in

clear transgression of the University Act and the Regulations

framed thereunder. The relevant para of the same is reproduced

as under:-

"Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the medical college established by the Daru-Salam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the

statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws.

The Apex Court in the case of Ombir Singh vs State of U.P.

(1993) Supp. (2) SCC 64 reiterated the same view and it was

held as under:-

"Thus, we are clearly of the view that once having held that the rule prescribed by the State Government laying down minimum qualifying marks in the entrance examination is valid and the State Government having followed the aforesaid rule in granting admission in post-graduate courses, it cannot be held that such action is illegal. There is no infringement of any legal right much less of any fundamental right of the petitioners."

Therefore, from the legal pronouncements stated herein above,

it is clear that the courts cannot give any directions in mutating

the eligibility criteria set by the concerned rules and regulations.

19. In the case of All India Council for Technical

Education vs Surinder Kumar Dhawan and Ors. (2009)11

SCC 726 the Court took a view that the Courts should keep

their hands off if it is a question of education policy or an issue

involving academic matters. Relevant para of the same is

reproduced as under:-

The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha (Dr.) v. Allahabad University 1 this Court observed: (SCC pp. 24 & 426, paras 11 & 17) "11. ... Judges must not rush in where even educationists fear to tread. ...

17. ... While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."

18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth this Court reiterated: (SCC pp. 6-57, para 29) "29. ... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."

.........................

31.These being educational issues, they cannot be interfered with, merely because the court thought otherwise. If AICTE was of the view that only those diploma-holders with 10+2 (with PCM subjects) should be permitted to upgrade their qualification by an ad hoc bridge course or that such bridge course should not be a regular or permanent feature, there is no reason to interfere with such a decision. The courts cannot by their orders create courses, nor permit continuance of courses which were not created in accordance with law, or lower the minimum qualifications prescribed for admissions. The High Court's decision to permit candidates who have completed 10+1 plus four-years' post diploma course to take the bridge course cannot be sustained.

32. This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/ technical facets which can only be done by an expert body like AICTE. This function cannot obviously be taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four-year advance diploma-holders who had passed the entry-

level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one-time measure was extended for several years and was also extended to post diploma-holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination instead of the required minimum of 10+2 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards and quality of engineering degree courses. Courts should guard against such forays in the field of education."n

Thus education, being a domain of the experts, the courts cannot

supplant their own views and give directions in utter disregard

of the rules and regulations and the courts have time and again

issued strictures not to interfere in matters of education, and

this court is not inclined to take any view contrary to the one set

out above.

20. In a recent case decided by Hon'ble Mr. Justice Rajiv

Sahai Endlaw in the case of Association of National Board

Accredited Institutions & Ors. vs. Union of India & Anr.

WPC No. 714/2011 decided on 23.3.2011 dealing with the

challenge made by the accredited institutes of the National

Board of Examinations making certain changes in the selection

procedure for admission of the super specialty candidates to the

DNB programme the Court held as under:-

"31. I also do not find any force in the proposal that the Institutes/Hospitals be permitted to hold their own State-wise counselling. The procedure suggested by the senior counsel for the petitioners has several pitfalls and there is every possibility of a more meritorious student being denied admission to an Institute/Hospital of his choice, if such procedure is followed. The procedure suggested would also be detrimental to the interest of the students as they would be required to make several applications and appear for counselling in several States. Infact the possibility of the available seats remaining vacant would be much more in such a system. Moreover, I fail to see any reason for the unaided professional Institutes/Hospitals to oppose the centralized counselling when they also claim to be admitting the most meritorious student. They have not been able to controvert that through the process of centralized counselling, they will get the most meritorious student. If that be so, the only reason for opposing the centralized counselling has to be necessarily presumed to be, an intent to admit less meritorious student for extraneous considerations. This cannot be permitted.

33. In this regard I may notice that even in T.M.A. Pai in para 64 it was held that the Institutions are for the students and not vice versa. The merit based admission/selection to Professional Colleges/Institutions having been held to be in national interest, it cannot but be held that the right of the most meritorious students cannot be disregarded.

............

41. Before parting with the matter, I may also record that the Supreme Court vide order dated 7th March, 2011 in WP(C) No. 380/2009 titled Simran Jain vs. Union of India has approved the Regulations on Graduate Medical Education (Amendment), 2010 (Part II) and the Postgraduate Medical Education (Amendment) Regulations, 2010 (Part II) providing for a single eligibility-cum-entrance examination for MBBS course known as 'National Eligibility-cum-Entrance Test for admission to MBBS Course' and a single eligibility-cum-entrance Examination for postgraduate courses known as 'National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses', to be held under the overall superintendence, direction and control of the Medical Council of India. The changed procedure of NBE impugned in this petition is found to be in consonance with the changes approved by the Apex Court. 42. The writ petition is therefore without any merit and is dismissed with costs of Rs.1,00,000/- on the petitioner payable to NBE within four weeks of today."

Thus, it is manifest from above that the criteria as set out by the

NBE is after careful consideration and is in consonance with

transparency and fairness.

21. Reverting back to the facts of the case at hand, the

petitioner in the present case after being selected by the

Selection Committee of respondent No. 2 Institute had joined

DNB Neurology on 16th February, 2009 and as per his own case

he received a letter from the National Board of Examinations on

3rd June, 2009 rejecting his application for registration as DNB

trainee. Challenging the said decision of the NBE he filed the

present writ petition on 4th August, 2009 and vide order dated

11th August, 2009 this Court directed the respondent not to

disengage the services of the petitioner as Senior Resident till

the next date of hearing and with the said interim protection the

petitioner continued with the said DNB programme. It would be

thus quite evident that the petitioner and even respondent No. 2

Institute had received the said communication from the National

Board of Examinations through their letter dated 3rd June, 2009

in a reasonable time frame of getting admission. Despite the fact

that the petitioner and the institute were well aware that the

admission of the petitioner in the DNB programme was in

complete violation of the policy guidelines laid by the NBE

notified by them through their Information Bulletin, the

petitioner decided to approach this court for relief. The

petitioner no doubt possesses the requisite qualification for

being eligible to undertake the said DNB programme, but the

admission could be granted only after he had passed the said

centralized exam i.e. CET-DNB. As per the NBE, in fact the

petitioner had appeared in the said exam but failed and,

therefore, to his very knowledge he was not entitled to seek

admission in any of the institutions/hospitals accredited by the

National Board of Examinations. The contention of the counsel

for the petitioner that the rules of natural justice have been

violated as the petitioner was not given an opportunity of being

heard by the Board before rejecting his application, does not cut

any ice. The rules of natural justice, though not codified are the

guiding spirit of the Rule of Law, but they cannot be stretched

too far to be read into every possible situation so as to avoid the

obvious consequences. The Board being a body scrutinizing the

application forms, where everything which is required is

supplied in the form of annexures and documents cannot be

blamed for not granting a hearing to the petitioner as there is

nothing that on explanation by the petitioner personally would

have changed the decision of the Board. Similarly respondent

No. 2 Institute had no right to grant admission to any of the

candidates in violation of the policy guidelines laid by the

National Board of Examinations by which the Institute got its

accreditation for administering the said DNB specialized course

in the field of Neurology. The petitioner also cannot be heard to

say that the Board itself had relaxed the said guidelines in the

previous academic sessions, as nothing was produced to prove

the same. Even otherwise, the respondent board has admitted

that due to desperate circumstances, the criteria was relaxed in

the year 2008, but only as a one time measure and it was not to

be carried on to the next academic sessions. Respondent No. 2

thus had no right to issue the said advertisement or to select any

candidate by constituting their own selection committee, the

process which has already been set aside by the recent judgment

of this court in Association of National Board Accredited

Institutions & Ors. vs. Union of India & Anr. (supra) . The action

of respondent No. 2 is also in violation of the declaration form,

which has been reproduced above. Respondent No. 2, which is

an autonomous body being funded by the Ministry of Health and

Family Welfare and Govt. of NCT of Delhi has clearly acted not

only in breach of the policy guidelines of the NBE but also

caused unnecessary harassment and agony to the petitioner

making him believe that his selection in the said DNB

programme was legal. To add insult to injury, the petitioner

approached the court for relief, and due to the passage of time

and because of interim orders, is now in the last leg of his

course.

22. In the light of the above discussion, this Court does

not find any merit in the present petition as no undue sympathy

can be shown by this Court on account of the fact that the

petitioner had undergone the said DNB programme for a period

of about 4 months on the date of the receipt of the rejection

letter and then continued the said course under the protection of

this Court through interim orders. This court is thus troubled not

to grant relief to the petitioner as prayed for and no special

advantage can be claimed by the petitioner as he continued with

the said course at his own peril.

23. However, considering the fact that respondent No. 2

Institute has acted in clear breach of the policy guidelines laid

down by the NBE according to which the eligibility criteria for

granting admission in the said DNB programme is qualifying the

said entrance test CET-DNB and also the fact that such illegal

act has caused anguish, pain and torture to the petitioner,

therefore, a cost of Rs. 1 lakh is imposed upon respondent No. 2

Institute which shall be paid by it to the petitioner within a

period of one month from the date of this order. The said cost of

Rs. 1 lakh shall be recovered by the Director/Administrative

Head of the respondent No.2 Institute from the officials

responsible for publication of the flawed advertisement. A

compliance report of the said recovery shall be submitted by the

Director/Administrative Head within a period of two months

from the date of this order.

24. The respondent No.3 Board is also directed to take

suitable action against respondent No.2 Institute for selecting

the candidature of the petitioner by flouting the guidelines as

laid down by the Board for the grant of accreditation for the said

course to them.

25. With the above directions, the petition stands

dismissed.

July 08, 2011                               KAILASH GAMBHIR, J