Dr. Manohar Singh Rathore vs Union Of India And Ors.
2011 Latest Caselaw 3008 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment reserved on: 27.05.2011
                          Judgment delivered on: 03.06.2011


+                      W.P.(C) No.1671/2011


Dr.Manohar Singh Rathore                         ... Petitioner.

                               Through: Mr. Avneesh Garg, Adv.

                          versus


Union of India and Ors.                          ..... Respondents

                          Through: Mr. Sumeet Pushkarna for
                                   the respondents 1&2.
                                   Dr. Rakesh Gosain 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
       in the Digest?                                        Yes

KAILASH GAMBHIR, J.

*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks a direction to direct

the respondent no.2 hospital to quash the selection made for

the single seat of DNB(secondary) in Radiodiagnosis for

January 2011 session and allow the petitioner to join the

course in question.

2. Facts shorn of unnecessary details relevant for

deciding the present petition are that the petitioner applied in

the stream of Radiodiagnosis in response to the respondent

no.2 hospital's advertisement/notification published on its

website inviting applications for the DNB Secondary seats for

January 2011 session where the selection of the shortlisted

candidates was to be made on the basis of marks obtained in

the Post Graduate course and the admission was to be

granted at the time of counseling on the appointed date. The

grievance of the petitioner is that in the shortlisted

candidates, the petitioner had the first rank owing to his

marks in the post graduation and respondent no.4 was third

in the said list and at the time of counseling, instead of there

being counseling, an interview took place and in the

impugned result, respondent no.4 was declared selected for

the single seat in DNB(secondary) RadioDiagnosis instead of

the petitioner. Being aggrieved with the aforesaid act of the

respondent no.2 hospital in not following the guidelines of the

respondent no.3 National Board of Examinations, the

petitioner has preferred the present petition.

3. Mr. Garg, learned counsel appearing for the

petitioner argued that the respondent hospital has not

followed the criteria laid down by the respondent no.3 NBE

whereunder for DNB (Broad Specialty) Secondary Seat, the

respondents 1 and 2 could have conducted a counseling and

not the aptitude test/interview. Counsel also submitted that

the petitioner had scored the highest marks in Diploma in

Radio Diagnosis out of the 24 candidates to secure

admission in the said DNB Specialty Course. Counsel further

submitted that the respondent hospital had no authority to

frame their own guidelines and that too in violation of the

guidelines framed by the NBE. Counsel also submitted that

the report filed by the NBE pursuant to the directions given

by this court is contrary to their own guidelines and

unjustifiably they have gone to the extent of endorsing the

said illegal conduct of the respondent hospital. Counsel also

submitted that the NBE guidelines permit the respondent

hospital to devise a mechanism of allocating 100 marks by

allocating 75% marks to P.G. Diploma, 2.5% marks for

experience, 2.5% for academic and 20% for interview.

Counsel also stated that even the aptitude test was not

conducted by the respondents 1 and 2 in terms of the

criteria laid down under the NBE guidelines. Counsel also

submitted that even the selection committee was not

constituted by the respondent in terms of clause 1 (c) of the

'Standard Procedure to be followed' of the NBE guidelines.

4. Counsel further submitted that as per the report

submitted by the NBE, the same clearly shows that there

was only one expert as an external member although the

requirement as per the NBE is equal ratio of experts; external

as well as internal. Counsel further submitted that no waitlist

was prepared by the respondent in terms of clause 1(f) of the

standard procedure laid down under the NBE guidelines.

Counsel invited attention of this court to such similar result

declared by the Max Super Specialty Hospital wherein they

have declared the waitlist of the candidates in order of

merit. Counsel also submitted that the respondent hospital

also failed to furnish the information to the NBE in terms of

clause 2 of NBE guidelines which requires furnishing of every

information right from the stage of advertisement till the

completion of the process within a period of 10 days from the

completion of the admission process. Counsel also

submitted that some of the candidates possibly did not

participate in counseling on the assumption that the

candidate who has scored highest marks in the diploma

course would automatically get the seat and had those

candidates been aware of the fact that the interview would

take place then certainly they would also have participated in

that process.

5. Opposing the present petition, counsel for the

respondent nos.1 and 2 submitted that the petitioner is

estopped by the doctrine of estoppel and acquiescence to

challenge the selection process once he had participated in

the interview without protest. Counsel also submitted that

the petitioner was well aware of the fact that he was to

appear in the interview which is the practice prevalent in all

the hospitals despite the fact that in the advertisement the

term 'counseling' was used and therefore counseling must be

read in terms of the prevalent practice and not independent of

that. Counsel also submitted that the petitioner had appeared

in similar such interviews in other hospitals as well wherein

he had failed. Counsel further submitted that the process of

selection was broad based and absolutely transparent and

the entire record was not only placed before this court but

was also placed before the NBE. Counsel also submitted that

the Selection Committee duly comprised of two experts from

the hospital i.e. HOD and Senior Consultant and one external

medical expert who was a professor from G.B. Pant Hospital

and one DDG from the Ministry as observer. Counsel also

submitted that similar process was adopted by the hospital

to select the candidates for other broad specialty courses.

Counsel also placed reliance on the similar patterns adopted

by the other hospitals as placed on record along with the

short affidavit. Counsel also submitted that the interview is

necessary to assess and rationalize the suitability of the

candidates who have qualified diploma course from different

institutes of the country.

6. Dr.Rakesh Gosain, learned counsel for the

respondent no.3 NBE submitted that for counseling,

determination of merit is essential. Counsel submitted that

now the NBE has introduced CET for DNB primary and

secondary seats and there will be no scope of any such

controversy. Counsel also submitted that out of the seven

candidates, four candidates came to participate in the

counseling at random and it is not that only four top

candidates in order of merit came to participate in the said

counselling.

7. Counsel for the respondent no.4 submitted that if

the counseling was mentioned in the advertisement, the same

was meant for all the candidates and not for the petitioner

alone and therefore the petitioner cannot claim that he was

taken by surprise. Counsel further submitted that the

petitioner cannot claim that he was treated differently than

the other candidates and therefore he cannot find fault with

the decision making process which was uniformly applied to

all the candidates. Counsel also submitted that the

respondent No.4 had already joined the said course after

resigning from Chirayu Medical College, Bhopal and thus now

cannot be made to suffer.

8. I have heard learned counsel for the parties and

given my thoughtful considerations to the submissions made

by them.

9. The principal grievance raised by the petitioner

was that the respondent No.2 i.e. Safdarjung Hospital and

Vardhman Mahavir Medical College had devised its own

selection process, completely contrary to the procedure laid

down by the respondent No.3-National Board of Examinations

for selecting the candidates for DNB (Broad Speciality)

secondary seats in the field of Radiodiagnosis. The petitioner

has also raised a grievance that the selection procedure

adopted by the respondent No.2-hospital was not transparent

besides being totally arbitrary.

10. The Diplomat of National Board (DNB) courses are

prestigious and highly specialized advanced courses. So far

DNB (Broad Specialty) primary seats are concerned, the

selection is now done through a centralized test know as the

CET and therefore admission to DNB (Broad Specialty) course

for the primary seats is now strictly based on the performance

in the said test which is to be followed by centralized

counseling conducted by the respondent No.3-NBE Board. As

regards DNB (Broad Specialty) secondary seats are

concerned, the same system of centralized test through CET

will be in force w.e.f. June, 2011 with follow up of single

window centralized counseling system for allocation of seats

and, therefore, from June, 2011 the selection of candidates for

both DNB primary and DNB secondary seats will be done

through a centralized test followed by centralized counseling.

11. This Court in the present case is concerned with

DNB (Broad Specialty) secondary seats and that too for

January, 2011 session. The core issue to be examined by this

Court in the present case is whether in the NBE guidelines

the selection of the candidates for DNB (Broad Specialty)

secondary seats was to be conducted based on the marks

obtained by the candidates in their diploma courses followed

by the aptitude test or in place of aptitude test it was to be

done through the process of counseling.

12. It is not in dispute between the parties that as per

the public notice issued by the respondents No.1 & 2 inviting

applications for admission in DNB (Broad Specialty)

secondary seats for the session January 2011 in the stream of

Radiology, the method of selection was prescribed through

counseling and not through the aptitude test. The date of

counseling announced in the public notice for the said course

i.e. DNB (Broad Specialty) seat in Radiology and four other

courses was 18.02.2011. There was only one seat for the

general category in the stream of Radio diagnosis. At the

footnote of the said public notice, it was reiterated that the

counseling for the Broad Specialty (secondary seat) will be

held on 18.02.2011 at 11 a.m. in the Committee Room. It is

also not in dispute that instead of conducting the counseling,

the respondents No.1 & 2 had conducted the clinical aptitude

test, which they claim was conducted by them strictly as per

the NBE guidelines and not in violation of the same.

13. Because of the aforesaid contrary stands taken by

the petitioner as well as the respondent No.2-Hospital, this

Court vide order dated 07.04.2011 directed the respondent

No.3-NBE to examine the entire issue and to report as to

whether the selection/admission of the respondent No.4 is in

accordance with the criteria laid down by the NBE or not.

Pursuant to the said directions, the National Board of

Examinations had submitted their report dated 21.04.2011

which is signed by a Committee comprising of five experts in

their respective fields. As per the said report, the NBE has

taken a categorical stand that in order to determine the merit

of the candidate the respondent-Hospital had conducted an

aptitude test in accordance with the guidelines of the

National Board of Examinations and its own guidelines dated

10.12.2009. In the concluding remarks, the said Committee

has clearly taken a view that no deviation was made by the

hospital in the selection process from the guidelines laid down

by the National Board of Examinations for selection of DNB

candidate for the secondary seat.

14. As per the guidelines for admission to DNB

programme as placed on record, the following procedure has

been laid down to be followed by the respondent-hospital for

selecting the candidates for DNB (Broad Specialty) in

secondary seats course. The same is reproduced as under:-

"(a) The Aptitude Assessment shall be done in a transparent manner i.e. wide publicity shall be given by the Institution for invitation of the applications, as per the time framed defined by the Board (stated in the accreditation agreement letter).

(b) The concerned Institute shall maintain a complete record of all applicant candidates along with their contact details, which shall be submitted to the Board's office at the end of a selection process (as per format enclosed).

(c) The selection committee/panel of experts appointed by the concerned institutions shall comprise of at least 50% of external members i.e. faculty members not related to the Institute, the panel shall comprise only of subject experts i.e. those specialists who are associated with practice and teaching of the concerned specialty.

(d) Consultants/Administrators/Promoters of the concerned Hospital cannot be associated with the Hospital's selection process, if any of the close relatives or known person is appearing in the said aptitude assessment test.

(e) The Institute concerned shall evolve objective skills for assessing the professional aptitude of candidates (the model scale for assessment of skills is proposed along with at annexure 9).

(f) The Institute concerned shall prepare a subject wise merit list based on the performance of the candidates equal to the number of seats available & an equal number of candidates in order of merit in the wait list panel.

(h) All candidates shall be treated alike and on equal grounds. There shall not be any kind of preferential weightage (example Institute/state of Graduation, Domestic Candidate etc.) to be given to any kind of candidate on any reason or ground."

15. As per the respondent-hospital, the procedure was

strictly adhered by them for selecting the candidates for

different streams of DNB (Broad Specialty) secondary seats.

The hospital has taken a stand that the same method is being

adopted by the hospital for the last several years and even

other hospitals accredited with the NBE are following the

same process to select the candidates through the said

process i.e aptitude test. The documents placed on record by

the respondent-hospital clearly show that similar aptitude

test/interview test to select the candidates for DNB (Broad

Specialty) secondary seats was adopted by Manipal

University, Manipal; Northern Railway Central Hospital, New

Delhi; RML Hospital, New Delhi; L.V.Prasad Eye Institute,

Hyderabad; Rajiv Gandhi Cancer Institute and Research

Centre, New Delhi and Holy Spirit Hospital, Mumbai. The

public notice dated 31.12.2010 issued by the NBE also clearly

states that the process for selecting the candidates for DNB

secondary seats will be strictly on the basis of guidelines of

NBE and the accredited centres shall have to ensure complete

transparency and objectivity in the process. Relevant Clause-

(C) of the said public notice is reproduced as under.

"(c) Secondary DNB seats

Since a CET for DNB secondary seats shall be conducted wef June 2011, the NBE accredited hospitals may advertise for DNB secondary seats for Jan 2011 session, however, the selection process and joining of secondary DNB candidates shall be undertaken only after the primary candidates have joined the DNB course. This process shall be

strictly on the basis of guidelines of NBE. The accredited centres shall have to ensure complete transparency and objectivity in the process."

16. As per the respondent hospital, they have

constituted a Committee of DNB under the Chairmanship of

Dr.K.T.Bhowmik, Medical Superintendent which consisted of

seven members and 13 course coordinators and in the

meeting the said Committee held on 2.12.2009 had decided

that the shortlisted candidates will be interviewed by the

Interview Board comprising of (i) Medical Superintendent as

the Chairman (ii) HOD or the nominated person of the

specialty in Safdarjung Hospital (iii) external expert of the

concerned specialty from another teaching institute/hospital,

preferably from a government teaching institute of Delhi and

(iv) a representative from the reserved category. The said

Committee further decided that the candidates could apply

only for one specialty and they would be called for interview

to maintain the ratio of 1:7 depending upon the number of

vacancies available. The Committee further decided that the

selection in the aptitude test will be comprised of 100 marks

and breakup of the same was decided as under:-

"4. Regarding Secondary Seats in Broad Specialities:-

a) Diploma marks, speciality experience and achievements to be considered as for short listing and final selection.

b) Selection will comprise of 100 marks. The break of these marks shall be as follows:-

        Diploma                       - 75 marks
        Experience &
        Academic Achievements        - 5 marks (Gold, Distinction,Publications)
        Interview                      - 20 marks"

The NBE guidelines also prescribe for a scale for assessment

of aptitude of the candidates which is reproduced as under:

S.No.             Item                                Max
                                                      Marks
A.         Knowledge about Clinical Procedures,

           Practiced protocols in the concerned
           specialty.
1.         Awareness about          the specialty 5
           concerned; Is the candidate aware abut
           the commonly practiced           clinical
           procedures relevant/applied to the
           concerned specialty and the scope of
           specialty
(a)        Not Aware - 0 Marks
(b)        Somewhat Aware - 2 Marks
(c)        Aware to a reasonable extent - 3 Marks





 (d)      Possesses sound knowledge - 5 Marks

2. Assessment of candidate for aptitude, 5 commonly practiced protocols, knowledge of applied basic sciences, applied broad specialty to the subject.

(a)      Aptitude & Knowledge - Nil
(b)      Aptitude & Knowledge - Reasonable 2
         Marks
(c)      Aptitude & Knowledge - Above Average
         3 Marks
(d)      Sound Knowledge & Definitive Aptitude -
         5 Marks

         publication and conference attended.
(a)      Does not posses any experience - 0 5
         Marks
(b)      Possess some experience in the

concerned specialty/allied specialty (has observed procedures/skills), experience less than a year - 2 Marks

(c) Possess experience in the concerned specialty (has assisted procedures in the specialty), experience 1-2 years - 3 Marks

(d) Definitive experience (independently carried on procedures), possesses at least 2 years of valid experience in the specialty/allied specialty - 5 Marks

2. Academic achievement/publications and 5 conference attended

(a) Does not possess any Academic Aptitude

- 0 Marks

(b) Possess Academic Aptitude - 2 Marks (Evidence attended at least one conference /CME in sub-specialty concerned)

(c) Possesses academic aptitude, is aware about recent publications and has

attended at least two conferences in the concerned specialty - 3 Marks

(d) Sound Academic Aptitude - attended at least 3 CME/Conference in the specialty

- 5 Marks TOTAL MARKS (A + B) 20 Marks obtained (out of 20) Rank in Merit List

17. There were in all seven candidates who were

shortlisted by the respondent-hospital to participate in the

counseling/aptitude test as per the said ratio of 1:7 and out of

seven candidates only four candidates turned up for the said

counseling/aptitude test. The respondent-hospital has not

disputed the fact that the petitioner having secured 66%

marks in his P.G course was top in the merit list amongst all

the said four candidates who had participated in the said

counseling/aptitude test, but since the respondent No.4 had

secured more marks in the aptitude test, therefore, he

surpassed the petitioner in the said selection.

18. Thus, the aforesaid background of facts would

clearly show that the respondent-hospital has not deviated

from the guidelines laid down by the NBE in selecting the

candidates for DNB (Broad Specialty) secondary seats

through the process of aptitude test/interview. There also

cannot be any dispute that once the ultimate selection of a

candidate is through an interview/ aptitude test, then the

candidate who is possessing higher marks in the diploma

course may not necessarily be selected and the candidate

with the lower marks in the diploma course in comparison

may ultimately get selected. Once the respondent-hospital has

followed the procedure laid down by the NBE then the

disturbing question is where did the things go wrong and who

is responsible for the same. The surprising part is that once it

is laid down in the NBE guidelines that the selection process

will be through the aptitude test/interview then how in the

public notice the respondent-hospital could have notified the

criteria of selection through counseling.

19. Vide order dated 16.05.2011, a direction was given

to the respondent No.2-hospital to categorically name the

officer who was responsible for committing such a lapse or

mistake in the public notice calling for the candidates to

appear in the counseling instead of aptitude test/interview.

Instead of complying with the said direction disclosing the

name of the official/officer due to whose negligence or lapse

the said public notice did not carry the correct procedure of

calling the candidates for selection, the respondent No.2-

hospital in their affidavit has made an attempt to justify and

explain that the term 'counseling' in the advertising must

necessarily and contextually as per prevalent practice to be

read with the applicable regulations as including the

'interview' for the purpose of assessment/suitability. Such an

absurd explanation given by the respondent No.2-hospital

deserves outright rejection. Counseling as per the prevalent

system was introduced as a single window system of

admission based on the merit or rank achieved by a

candidate. Counseling in admission process is nowhere

defined as such but is the most common and prevalent

practice today in almost all educational institutions

throughout the country. A day and time is allotted to the

candidate according to his rank and at the time of counseling,

a student is allowed to choose his choice of stream in the

seats on offer on showing of the requisite documents like

proof of date of birth, certificates of eligibility, etc to establish

his claim and on the spot admission is granted on deposit of

money. Now interview is on the other hand is a totally

contrary phenomenon; an evaluation based on questions

asked and answers given by the candidate. The two terms

however much diluted cannot be by any stretch of imagination

be interchangeably used. In this modern age, keeping in view

the rapid strides made in the sphere of Information and

Technology, the process of online counseling through a

centralized system is being undertaken. There are also Post

Graduate Medical Courses, admission to which is done by

counseling for which in case of an emergency or any exigency

is allowed to be attended by any representative of the

candidate. If the contention of the counsel for the respondent

hospital is accepted that the aptitude test was implicit in the

term counseling then how do the prevalent practice of online

counseling and attending of the counseling by a

representative can take place, is a question which is beyond

the comprehension of this court to answer. Had the

respondent No.2-hospital issued a proper public notice strictly

in terms of the NBE guidelines, then the present imbroglio

would not have arisen. This Court thus does not subscribe to

the stand taken by the respondent-hospital that the aptitude

test or interview is implicit in the term 'counseling'.

20. It is not dispute that the petitioner is a well

qualified Doctor possessing the Diploma in Medical

Radiodiagnosis and was seeking admission in the specialized

course of DNB (Broad Specialty) in secondary seat in the

respondent hospital. It seems that the petitioner wants to

take undue advantage of the said mistake committed by the

respondent No.2-hospital in the said advertisement as an

aspirant who wants to pursue a DNB course would apply in

not one but many other hospitals accredited with the NBE and

it is not fathomable that he was so naive that he was not

aware of the fact that he would be required to appear in the

aptitude test/interview. Hence, even if the respondent

hospital committed an error in using the wrong term in the

public notice, the petitioner cannot be allowed to take

advantage of the same.

21. Another fact which cannot be ignored is that the

petitioner at no stage had lodged any protest, not only with

the hospital, but even with the NBE and it is only when he

came to know about his result of being unsuccessful in the

said selection, he in utter desperation sought to challenge the

selection process by way of filing the present writ petition

before this Court. It is a settled legal position that the

correctness of the selection procedure cannot be challenged

by an unsuccessful candidate who had fully participated in the

selection process without any protest or demur. The Hon'ble

Apex Court in the case of Madan Lal and others vs. State

of J & K and others, AIR 1995 SC 1088,, while dealing

with the similar situation, held as under:-

"9. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who

ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to re-assess the relative merit of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."

There is also no dispute with the legal position that it is not

the function of the Court to sit over the decisions of the

Selection Committee and to scrutinize the relative merit of

the candidates unless there is illegality or patent material

irregularity in the constitution of the Committee or its

procedure vitiating the selection, or proved mala fides

affecting the selection etc. In Dalpat Abasaheb Solunke &

Ors. vs. Dr. B.S.Mahajan & Ors, AIR 1990 SC 434, it was

held as under:-

9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though

their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."

22. Taking into consideration the aforesaid legal

principles, this Court does not find that the respondent No.2-

hospital did not adhere to the laid down criteria as prescribed

by the National Board of Education for selecting the

candidates for DNB (Broad Specialty) secondary seats and the

petitioner cannot be put to any advantageous position simply

because an error or lapse was committed by the hospital in

the public notice calling the candidates for counseling instead

of appearing for the aptitude test/interview.

23. Another objection raised by the counsel for the

petitioner was that the selection committee was not

constituted by the respondent in terms of clause 1(c) of the

Standard Procedure of the NBE guidelines. The said clause

of the NBE guidelines envisages that the selection

committee/panel of experts to be appointed by the concerned

institute shall comprise of at least 50% of external members

and such a panel shall comprise only of subject experts. In

the report filed by the NBE, the stand that has been taken is

that to make the admission process transparent, Vardhman

Mahavir College and Safdarjung Hospital had framed the

guidelines dated 10.12.2009 for conducting the aptitude

test in accordance with National Board of Examinations

guidelines. As per the respondent hospital, the said

guidelines were framed by the hospital in its meeting held on

2.12.2009 under the chairmanship of Medical

Superintendent, wherein the decision was taken that

shortlisted candidates will be interviewed by a Board

comprising of (i) Medical Superintendent, Chairman (ii)

H.O.D. or nominated person of the specialty in SJH (iii) An

external expert of the concerned specialty from another

teaching institution/hospital preferably from a Govt. teaching

institute of Delhi (iv) A representative from reserved

category.

24. Counsel for the petitioner has not disputed the fact

that the selection committee comprised of two external

members and two experts from the hospital. Counsel for the

respondent hospital has also not disputed the fact that only

one external member was the expert in the concerned

specialty while the other external member was in the capacity

of observer. The said clause 1(c) does provide that the

interview board should comprise of two external experts and

two internal experts but so far the panel constituted by the

respondent hospital was concerned, the same comprised of

one expert and one external member as an observer. It has

also come on the record that the said panel was constituted

by the respondent strictly in terms of their own guidelines

decided by the hospital in their meeting held on 2.12.2010.

The NBE has also taken a stand that the aptitude test was

conducted by the respondent hospital strictly in accordance

with the guidelines of the NBE and the guidelines of the

hospital dated 10.12.2009.

25. In the light of this factual position, not much can

be seen gathered to say if one external member was an

external expert or not. It is not the case of the petitioner that

the respondent hospital had violated its own guidelines or

committed any act targeting the petitioner to oust him from

the selection. It cannot be lost sight of the fact that all other

DNB candidates be it of primary seats or secondary seats

were interviewed by the interview board constituted by the

hospital in terms of the above guidelines and therefore in the

absence of any specific allegation of malafides or bias, the

plea raised by the counsel for the petitioner attacking the

constitution of selection committee in violation of the NBE

guidelines does not cut any ice.

26. There are also certain other objections raised by

counsel for the petitioner castigating the selection process,

but considering the fact that in the petition there are no clear

allegations of malafide or arbitrariness against the members

of the Selection Committee and also the fact that other

candidates had also passed through the same process of

selection as was undergone by the petitioner in the stream of

Radiodiagnosis, therefore, the said objections in the absence

of any extraneousness, allegations of malafide or bias do not

deserve any attention. Once there was a complete uniformity

in the selection process and highest number of marks i.e. 75%

marks were allocated to the PG diploma course, 2.5% for

experience and 2.5% for academic, this Court does not find

allocation of 20% marks for interview in any case on higher

side when there was also a detailed scale of assessment of the

aptitude as has been reproduced above. Written examination

assesses the man's intellect and the interview tests the man

himself and the twain shall make the selection proper and no

suspiciousness can be attributed to the selection process if in

the aptitude test the respondent No.4 secured higher marks

than the petitioner, although in the diploma course he might

have secured lesser marks.

27. Hence, In the light of the above discussion, this

Court does not find any merit in the present petition and the

same is hereby dismissed.

28. However, a cost of Rs.50,000/- is imposed upon the

respondent-hospital for the negligence committed by them in

notifying to the candidates the procedure of selection as

counseling instead of aptitude test/interview. Cost shall be

paid by the respondent-hospital to the petitioner within a

period of two weeks from the date of this order. After

payment of the said cost, the hospital shall recover the same

from those officers/doctors who were responsible for

committing such a lapse/mistake by insertion of the said

wrong information in the public notice. Compliance affidavit

shall be filed by the respondent No.2-hospital within a period

of two months from the date of this order.

June 3, 2011                    KAILASH GAMBHIR, J