Rohan Gupta vs National Board Of Examinations & ...
2011 Latest Caselaw 3405 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment delivered on: 18.07.2011


                    W.P.(C) No. 212/2011

Rohan Gupta                             ......Petitioner

                    Through: Mr. A.D.N. Rao with
                             Ms. Neelam Jain, Advs.

                        Vs.

National Board of Examinations & Ors.       ......Respondents

                    Through: Dr. Rakesh Gosain for NBE.
                             Mr. Sunil Kumar for UOI.
                             Ms. Ratna Dhingra with
                             Ms. Shreya for respondent No. 3.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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


KAILASH GAMBHIR, J.Oral :
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to direct

the respondent National Board of Examinations (NBE) to

register the name of the petitioner in DNB programme in the

stream of Neurology for the academic year 2010-11 with

Indraprastha Apollo Hospital.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner herein took the DNB-

CET entrance examination on 18.4.2010 and qualified the

same and thus applied for admission in various colleges

including the respondent Indraprastha Apollo hospital. That he

appeared before the Selection Committee of the respondent

hospital for admission to DNB in the stream of Neurology and

was waitlisted at serial no.1. For the one seat in the field of

Neurology that was on offer in the respondent hospital, one

Dr. Vipul Mittal was selected. However, as per the petitioner,

Dr.Vipul conveyed his disinterest in joining the said course on

30.4.2010, which was the cut off date for admission for DNB

and on the same very day the petitioner was offered the said

seat by the respondent hospital by virtue of his being on the

waitlist at serial no.1 and he intimated his acceptance on the

same very day. The case of the petitioner is that after

30.4.2010 he went to his hometown in Jammu to take his

belongings and to arrange for the fee amount of Rs.50,000 and

thus came back and joined the said course on 5.5.2010 and

then continued in the said course thereafter. The respondent

hospital forwarded the registration of the petitioner for the

said course to the respondent no.1 National Board of

Examinations(NBE) which was rejected on the ground of delay

as the cut off date was 30.4.2010. Feeling aggrieved with the

same, the petitioner has preferred the present petition

claiming that he took his admission on 30.4.2010 itself and

thus should be granted registration by the respondent Board.

3. Mr. A.D.N. Rao, learned counsel appearing for the

petitioner submits that the petitioner had duly qualified the

DNB CET (SS) 2010 and after his results, the petitioner had

applied for admission in the said course of DNB at various

hospitals including the Indraprastha Apollo Hospital. Counsel

further submits that the interview of the petitioner was held

by the Selection Committee of the Indraprastha Apolla

Hospital on 28th and 29th April, 2010 and that the petitioner

was placed at serial No. 1 in the waiting list and the said one

seat was offered by the hospital to Dr. Vipul Mittal. It is also

the case of the petitioner that on 30th April, 2010 the said

selected candidate Dr. Vipul Mittal telephonically informed the

hospital authorities that he was not willing to join the said

programme and, therefore, the said seat was offered to the

petitioner as he was at serial No. 1 in the waiting list. It is also

the case of the petitioner that he had immediately conveyed

his acceptance to join the said DNB course on 30 th April, 2010

itself. It is also the case of the petitioner that after joining the

said course the petitioner went back to Jammu, which is his

hometown for arranging money towards the course fee and

the said fee was deposited by the petitioner on 5 th May, 2010

after he returned back from Jammu and that the petitioner has

been continuing the said course since thereafter. It is also the

case of the petitioner that the petitioner has not been granted

registration by the respondent Board on the ground that he

failed to join the said DNB programme before the laid down

cut off date i.e. 30th April, 2010. Counsel for the petitioner

further submits that only on the last date itself the petitioner

was informed by the hospital that Dr. Vipul Mittal did not join

the said course and, therefore, in a great haste he had

approached the respondent hospital to join the said course

and went back to his home for arranging the money. Counsel

also submits that the respondent hospital has conveyed the

joining date of the petitioner as 5th May, 2010 to the

respondent Board and, therefore, the said mistake crept in

even in further communications. Counsel thus submits that

even it is assumed that the petitioner had joined on 5 th May,

2010, the delay would be of around 5 days only and, therefore,

for such a small delay the petitioner should not be made to

suffer, more particularly when the petitioner is already half

way through the said course. Counsel for the petitioner

submits that the prospectus issued by the respondent provides

the period of two years for the selected candidates in the DNB

CET (SS) test to seek their admissions in various affiliated

institutes, therefore, through the notice dated 5th April, 2010

the validity of the test undertaken by the candidates in April,

2010 was restricted to 30th April, 2010. Counsel thus submits

that it is only because of the said public notice the cut off date

has been restricted to 30th April, 2010 otherwise as per the

prospectus the validity period was for two years period.

4. Learned counsel appearing for the respondent

hospital, has supported the case of the petitioner. She submits

that the petitioner had joined the said course on 30th April,

2010, but had deposited the necessary course fee on 5 th May,

2010 and, therefore, by mistake the said date of 5 th May, 2010

was communicated by the hospital to the Board as the joining

date of the petitioner in the said programme.

5. Dr. Rakesh Gosain, learned counsel appearing for

the Board on the other hand has strongly opposed the present

petition. Learned counsel submits that respondent

Indraprastha Apollo Hospital vide its letter dated 4th May,

2010 had conveyed to the petitioner about his selection in the

said DNB course and on 5th May, 2010 the petitioner under his

own signatures acknowledges the receipt of the said letter.

Counsel further submits that by letter dated 4 th May, 2010, the

hospital had also conveyed the date of joining to the petitioner

with the hospital as 5th May, 2010. Counsel also placed

reliance on another document referred to as check list

wherein again the date of the joining of the petitioner in the

said programme has been indicated as 5th May, 2010. Similarly

in the certificate given by the hospital in Format 3 the date of

the joining of the petitioner has been mentioned as 5 th May,

2010. Counsel also submits that vide letter dated 23 rd June,

2010 also the respondent hospital made a request to the Board

to give a special consideration to all the cases of DNB(SS)

admissions and this request as per the counsel was made by

the hospital only because the hospital was conscious of delay

on the part of the petitioner to join the said course. Based on

the said documents, counsel submits that it is quite evident

that the petitioner has failed to join the said DNB course

before the cut off date of 30th April, 2010 and, therefore, he

was rightly denied registration by the respondent Board.

Counsel also submits that the Board had duly conveyed the

said rejection vide their letter dated 18 th June, 2010, but yet

the petitioner continued with the said course at his own peril.

Counsel has also drawn attention of this Court to the

application form duly filled in by the petitioner himself, which

was forwarded by the Head of the Department hospital

wherein again the petitioner has stated his joining date as 5 th

May, 2010. Counsel also submits that the petitioner after

having come to know about his rejection filled another form

wherein he has indicated his joining date as 30 th April, 2010.

6. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the arguments advanced by them.

7. The short controversy which has arisen in the

present case is as to whether the petitioner had joined the

DNB course in the stream of Neurology with the respondent-

Indraprastha Apollo Hospital on 30.4.2010 which was the laid

down cut off date by the National Board of Examinations

(NBE) or later in time on 5.5.2010. It is not in dispute that the

petitioner after having qualified the common entrance test i.e.

DNB-CET conducted by the respondent Board approached

the Indraprastha Apollo Hospital which is an accredited

hospital with the Board to seek admission in the DNB

course in the stream of Neurology. It is also not in dispute

that the petitioner was placed at serial no. 1 in the wait list

after he was interviewed by the selection board constituted

by the Indraprastha Apollo Hospital and one Dr. Vipul Mittal

was selected against the said one DNB Neurology seat. It is

also not in dispute that Dr. Vipul Mittal had expressed his

unwillingness to join the said seat and had accordingly

informed the hospital authority telephonically on 30.4.2010.

The said seat was accordingly offered by the hospital to

the petitioner on 30.4.2010 itself as he being at serial no. 1

in the wait list. As per the petitioner and the respondent

hospital the petitioner had immediately conveyed his

acceptance and in fact joined the said DNB course in the

stream of neurology on 30.4.2010 itself but could deposit the

training fee on 5.5.2010 as after joining the said course he

went back to his native place Jammu to arrange money for the

same. It is therefore quite evident that the date of joining of

the petitioner in the said DNB course, if taken as 5.5.2010

then clearly, there is a delay of about five days from the cut

off date i.e. 30.4.2010 and if the date of joining of the

petitioner is accepted as 30.4.2010 then the petitioner was

well within his right to seek his registration with the

respondent Board. On perusal of the various documents

placed on record by the respondent Board it is quite manifest

that the petitioner had joined the respondent hospital on

5.5.2010 and not on 30.4.2010. The respondent hospital in its

letter dated 8.5.2010, addressed to the Executive Director,

NBE conveyed the date of joining of the petitioner in the said

DNB course as 5.5.2010. The said letter is duly signed by

none else but the Additional Director Medical Services of the

respondent Hospital. In another document i.e. DNB Trainee's

Registration-Check List, the date of joining of the petitioner

in the relevant column has been disclosed as 5.5.2010 and

this document is not only signed by the petitioner himself but

by the concerned Head of the Institution. In another

document referred to as Format No.3, again the date of

joining of the petitioner has been mentioned by the

respondent hospital as 5.5.2010 and this document is also

signed by the Head of the Department of Neurology and also

by the Head of the Institution of the respondent hospital.

8. What surprises this court is that even in the

application form duly filled in by the petitioner and signed by

the Head of the Department of the respondent hospital, the

date of joining of the petitioner in the said course has been

clearly stated as 5.5.2010, although another such form was

filled in by the petitioner and forwarded by the Head of the

Department of the hospital carries the joining date of the

petitioner as 30.4.2010. Manifestly, the said joining date of

30.4.2010 was filled in by the petitioner when the respondent

Board rejected the request of the hospital to grant

registration to the petitioner in the said DNB super specialty

course vide their communication dated 18.6.2010. No doubt

the respondent hospital in their letter dated 29.6.2010

addressed to the Executive Director, NBE took a stand that

the said seat was offered to the petitioner on 30.4.2010 and

the same was accepted by him on the same date, but this

stand of the respondent hospital as well as of the petitioner

does not find support from the aforesaid various documents

placed on record by the respondent Board.

9. It is a settled legal position that for invoking the

writ jurisdiction of this court under Article 226 of the

Constitution of India, the petitioner approaching the court

must truthfully place all the material facts and any false

averment or assertion made by the petitioner would result in

denial of any relief to the petitioner. It is not only the

petitioner but shockingly even the respondent hospital has

come in support of the petitioner in supporting his wrong

stand of his joining the said DNB course on 30.4.2010. The

said false stand taken by the petitioner and the hospital has

been taken by them with a view to bring the case of the

petitioner well before the cut off date of 30.4.2011 as laid

down by the respondent Board so that he is not denied

registration in the DNB course. There cannot be any dispute

that the petitioner did qualify the common entrance test and

was also declared successful in the interview taken by the

respondent hospital and was placed at serial no.1 in the wait

list. The said DNB Neurology Course is of three years

duration and the petitioner is already half way through and

in case the petitioner is denied his registration in the said

course by the respondent Board then the said seat of DNB

Neurology Course would go waste as the same cannot be

filled at this stage. Another extenuating factor which goes in

favour of the petitioner is that the schedule for the special

CET-SS for admission in the DNB Super Specialty Course was

quite compressed as from 18th April, 2010 to 30th April, 2010

the entire process from entrance test to the admission was to

be completed. After having appeared in the said exam on

18.04.2010 the result was declared by the Board on 20th April,

2010 and thereafter the petitioner had approached the

Indraprastha Apollo Hospital to seek his admission in the

Super Specialty DNB Course in the stream of Neurology for

which he was interviewed on 28/29.4.2010 and after the

interview one Dr. Vipul Mittal was selected and the petitioner

was placed at serial no.1 in the wait list. On 30.4.2010 which

was the last date as per the respondent to seek admission in

the said course, Dr. Vipul Mittal had declined to join the said

seat and due to this fact alone the petitioner became entitled

to seek admission in the said course. It was thus humanly

impossible for the petitioner who was a resident of Jammu

to have joined the said course on 30.4.2010 itself and also to

deposit the training fee on the said date and therefore some

delay on the part of petitioner placed in such a situation was

inevitable.

10. This court is mindful of the mandate perpetuated by

various legal authorities that ordinarily the writ court would

not interfere in academic matters and the decision is best left

to the experts in the field and any misplaced sympathy may

lead to passing of an order which may be in disregard of the

rules of the educational institutions. But, at the same time, it

also cannot be forgotten that the writ court while exercising

the equitable jurisdiction under Article 226 of the Constitution

of India has also a pious duty to see that there is no

miscarriage of justice and wherever possible dispensation of

justice should not become a causality. This court is of the

opinion that this case is fit case to make an exception and that

any interference in favour of the petitioner would not lead to

perversity or promoting any illegality. Taking a judicious view

of the matter and to balance the equities and also considering

the fact that the petitioner has already completed almost half

of the duration of his course and also considering the fact that

it was impossible for the petitioner to have given his

acceptance on the same very date when the selected

candidate declined to join the said course, the late joining of

the petitioner on 5.5.2010 deserves to be condoned. This

court however deprecates the conduct of the petitioner and

the respondent hospital in taking the said false stand of

disclosing his joining date as of 30.4.2010 by giving benefit of

doubt to them as they knew that the mention of the correct

date i.e. 5.5.2010 could result in denial of registration of the

petitioner in the said course. However, cost of Rs.25,000

each is imposed upon the petitioner and the hospital for

taking such a false stand which is not supported even by their

own documents, which shall be deposited by them to the

Indian Red Cross Society(IRCS) and the receipts of the same

shall be filed with the Registry of this Court within a period of

4 weeks from the date of this order.

11. In the ultimate analysis, the petitioner succeeds in

the present petition. The respondent Board is accordingly

directed to register the petitioner in the DNB (Neurology)

within a period of two weeks from the date of this order. This

order in any circumstance shall not be treated as a precedent

and is passed only in respect of facts of the case at hand.

12. The petition is accordingly allowed.

JULY 18, 2011                            KAILASH GAMBHIR, J
rkr/mg