Dr. Priti Ranjan Sinha And Anr. vs National Board Of Exam. And Anr.
2012 Latest Caselaw 596 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 583/2012

                                             Decided on: 30.01.2012
IN THE MATTER OF
DR. PRITI RANJAN SINHA AND ANR.                      ..... Petitioners
                         Through : Mr. O.P. Gaggar, Adv.

                   versus


NATIONAL BOARD OF EXAM. AND ANR.                  ..... Respondents
                        Through : Dr. Rakesh Gosain, Adv. for
                        respondent No.1
                        Mr. Ravinder Aggarwal, Adv. for respondent
                        No.2.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present petition has been filed by two petitioners, who

are qualified M.B.B.S. doctors and have prayed for the following reliefs :-

"(i) direct the respondent to desist from giving discriminatory treatment to practicals vis-à-vis theory examination and to direct that the practicals are also entitled to similar grace marks as the theory and;

(ii) direct the respondent to disclose the criterion adopted by respondent No.1 in assessment in the practical tests and to direct them to make available the assessment of the respondent;

(iii) issue writ or directions in the nature of mandamus directing respondent No.1 to appoint competent examiners/evaluators of impeccable caliber from the institutes who have been conducting the similar courses with unqualified recognition like "permitted" only;

(iv) issue any appropriate writ or direction declaring the petitioner successful in the examination held by the National Board of Examination for the year October, 2011 on the basis of marks obtained in the theory and practical examination; and

(v) issue any appropriate writ or direction commanding respondent No.1, namely, the National Board of Examination to disclose the marks obtained by the petitioner in both theory, thesis and practical examinations for the academic year 2010-11."

2. Learned counsel for the petitioners states that both the

petitioners enrolled themselves with the respondent No.1/Board for DNB

and appeared for the theory examination of DNB conducted by

respondent No.1/National Board of Examinations in June 2010. The said

examination comprises of four theory papers of 100 marks each. On

23.08.2010, the result of the said theory examination was declared and

the petitioners were declared successful. As a result, the petitioners

qualified to appear for the practical examination. But both of them were

declared unsuccessful in the two attempts made by them to clear the

practical examination. On 10.10.2011, the petitioners had appeared in

their third and final attempt for the practical examination. On 2.11.2011,

when the result of the practical examination was declared, the petitioner

no.1 found that he had scored 145 marks whereas the petitioner no.2 had

scored 144 marks out of a total of 300 marks. As the pass marks for the

practical examination was 150, both the petitioners were declared as

having failed in the practical examination.

3. Learned counsel for the petitioners submits that on

9.11.2011, the petitioners had filed applications under the Right to

Information Act seeking information from respondent No.1/NBE pertaining

to the break-up of marks obtained by them in different segments of the

practical examination; provision of grace marks, if any, in practical

exams; photocopies of the answer sheets attempted by them; the final

result with the list of all pass and fail candidates; and the remarks given

by each examiner for the practical examination. However, the application

submitted by the petitioners was returned by the postal authority under

some objection. Thereafter on 23rd November, 2011, the petitioners

submitted fresh applications to respondent no.1/NBE for furnishing

information under the RTI Act, to which replies were given on 19-20th

December, 2011. It is stated that the replies given by respondent no.

1/NBE were extremely vague and unsatisfactory, and goes to establish a

clear intent of concealment and arbitrariness on their part, which has

occasioned the present petition.

4. Dissatisfied by the reply given by respondent No.1/NBE, the

petitioners are not only seeking detailed replies to their queries as raised

by them under the RTI Act, it is also their contention that respondent

no.1/NBE has not made any provision for grant of grace marks in the

practicals of DNB examination for the year 2011 whereas, such a

concession has been granted by it in respect of the theory examinations.

It is further stated that one of the examiners appointed by respondent

no.1 for the practical examination was selected from an institution, which

did not qualify under Regulation 11 of the Medical Council of India

Postgraduate Medical Education Regulations, 2000, as he was not from a

recognized Medical College but was from North Bengal Medical College,

Darjeeling, which is a Medical College permitted under Section 10A of the

MCI Act.

5. Learned counsel for respondent no.1/NBE appearing on

advance notice opposes the present petition and states that the

petitioners cannot claim a grant of grace marks in the practical

examination for the reason that NBE does not have any such policy for

the grant of grace marks to any candidate in the practical examination

and even in the case of theory examinations, recently in the year 2011, a

provision was made for the grant of a total of 8 grace marks, in all the

four theory examinations. He submits that in view of there not being any

policy adopted by the respondent no.1/NBE prescribing grant of grace

marks for the practical examination, the question of grant of grace marks

to the petitioners does not arise. He further states that having once

cleared the theory examination, each candidate is permitted a total of

three attempts to clear the practical examination and in the present case,

both the petitioners have exhausted all the three attempts. He argues

that merely because they have not managed to clear the practical

examination is not a ground for them to claim entitlement to grace marks.

6. As regards reliefs no.(i) & (iv) sought by the petitioners for

directions to the respondents to grant grace marks in the practical

examinations, as granted in the theory examinations and for declaring

them successful in the examination held by respondent no.1/NBE for the

year 2011 on the basis of the marks obtained by them in theory and

practical examination, it is relevant to note that the eligibility criteria

stipulated for a candidate to be declared as successful in the examination

has been clearly laid down in the Information Bulletin of Examinations

circulated by respondent no.1/NBE for December 2011. It is an

undisputed fact that neither of the petitioners have cleared their practical

examination in terms of the conditions stipulated in the said Bulletin. In

view of failure on their part to meet the eligibility criteria as laid down in

the Bulletin, i.e., to clear the practical examinations, the question of

declaring the petitioners as successful solely on the basis of their clearing

the theory examination does not arise. Nor can the petitioners claim

entitlement to grace marks in the practical examinations simply because 8

grace marks have been granted in the theory examinations. It is settled

law that courts do not interfere in matters relating to fixation of eligibility

criteria by academic bodies for the reason that the decisions taken by

such bodies are largely in the nature of policy decisions for the purpose of

ensuring better talent and academic excellence. Providing standards for

clearing examinations by laying down eligibility criteria is in consonance

with the said object of promoting excellence in academics. A Division

Bench of this court in the case of Siddhartha Kaul & Ors. Vs. Guru Gobind

Singh Indraprastha University reported as MANU/DE/6677/2011 opined

that a university/academic body is always entitled to set a higher

benchmark and students cannot be permitted to decide the academic

policy or seek change thereof to enable them to overcome their

deficiencies. In the present case, to give such a relief to the petitioners to

better their career prospect would only lead to dilution of educational

standards and adversely affect the standards and quality of medical

degree courses.

7. The reliefs no. (ii) and (v) sought by the petitioners are

almost identical. The petitioners have sought directions to the

respondentno.1/NBE to disclose the marks obtained by them in theory,

thesis and practical examination for the academic year 2010-2011.

Learned counsel for respondent No.1/NBE has responded by stating that

for the purpose of considering the said relief, Clause (C) of Instruction No.

4.4 of the aforesaid Bulletin may be examined. Instruction No.4.2 deals

with declaration of DNB Final Results and Clause (C) of Instruction No. 4.2

states that the details of marks obtained/grading in final theory/practical

examinations will be provided to unsuccessful candidates and that the

procedure for obtaining question-wise marks can be seen at the NBE

Website.

8. Learned counsel for the petitioners states that both the

petitioners have already accessed the website of respondent no.1/NBE

but, the result which was displayed therein did not furnish the necessary

details. In this regard, he draws the attention of this Court to Annexure

P-2 enclosed with the writ petition which is silent on the aspect of the

marks obtained/grading of the petitioners in the final theory/practical

examination.

9. Learned counsel for the respondent no.1/NBE states that he has

informed the learned counsel for the petitioners that the necessary

information with regard to the marks obtained by the petitioners in

theory, thesis and practical examinations shall be duly communicated by

NBE directly to the petitioners and the same shall be made available to

them as soon as they apply to respondent no.1/NBE in terms of the

requisite format, as has already been communicated to them in the reply

dated 19-20/12/2011 submitted by the NBE under the RTI Act.

10. Now, the only remaining issue is the grievance of the

petitioners that the respondent no. 1/NBE had not appointed a competent

examiner/evaluator from an institute that is recognized by the Medical

Council of India as specified under the Regulations framed by MCI. It is

the submission of learned counsel for respondent no. 1/NBE that NBE is

not guided by the Regulations laid down by the MCI and relied upon by

the petitioners as it has a wider base for selecting examiners/evaluators

for conducting each examination and the procedure followed by NBE is

not necessarily the same as laid down by the MCI. He further submits

that if the petitioners had a grievance with regard to the eligibility of the

one of the four examiners, they should have raised this issue immediately

after the practical examination, which was held on 10.10.2011.

11. There is force in the aforesaid submission made by learned counsel

for the respondent. It is clear that the present petition is a sheer after

thought and only an attempt on the part of the petitioners to overcome

the bar of three attempts granted by NBE to each candidate to clear the

practical examination, as per the Information Bulletin for DNB Final

Examination - 2011, which both of them have exhausted last year. It is

apparent that they have raised this issue only now because they have

been declared as having failed in their final attempt in the practical

examinations held on 10.10.2011. With regard to prayer no.(iii) in the

writ petition, in view of the decision of the Supreme Court in the case of

State of Maharasthra vs. Vikas Sahebrao Roundale & Ors. reported as

AIR 1992 SC 1926 and the decision of the Single Judge of this Court

entitled Pranshu S. Raghuvansh vs. Indraprastha Institute of Information

Technology reported as MANU/DE/2655/2009, it is settled law that in

matters relating to framing of policies by academic bodies, the courts

should normally stay their hands unless and until the decision taken

therein is so patently arbitrary, malafide or unreasonable, that is requires

interference. The case in hand is not one in which the Court proposes to

issue any directions to the respondent No.1 to appoint competent

examiners/evaluators to test the skills of candidates participating in the

examinations, as the petitioners have miserably failed to establish that

the respondent No.1/NBE is obliged to follow the norms as laid down by

MCI for appointment of examiners/evaluators.

12. The present petition is therefore disposed of in limine while

granting liberty to the petitioners to fill up and submit their applications

as per the format laid down by respondent no.1/NBE for obtaining the

details of the marks scored by them in the practical and theory

examinations. As and when the petitioners submit their applications, the

same shall be processed by the respondent no.1/NBE as per law and the

information sought shall be furnished to them.

                                                            HIMA KOHLI, J
      JANUARY      30, 2012
      sd