Delhi High Court
Ashish Popatrao Jhadav vs National Board Of Examinations ... on 26 September, 2013
Author: G. S. Sistani
22 to 27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6500/2011
% Judgment dated 26th September, 2013
KARNAM VNP KUMAR ..... Petitioner
Through : Mr.Harshad V. Hameed and
Mr.Dileep Poolakkot, Advocates
versus
THE DEPUTY DIRECTOR NATIONAL BOARD
OF EXAMINATIONS AND ANR ..... Respondent
Through : Mr.Mukul Gupta, Sr. Advocate with
Mr.Rakesh Gosain and Mr.S. Kashyap,
Advocate for respondent no.1
+ W.P.(C) 6503/2011
SAYED MUJAHID HUSSAIN ..... Petitioner
Through : Mr.Harshad V. Hameed and
Mr.Dileep Poolakkot, Advocates
versus
THE DEPUTY DIRECTOR NATIONAL BOARD
OF EXAMINATIONS AND ANR ..... Respondents
Through : Mr.Mukul Gupta, Sr. Advocate with
Mr.Rakesh Gosain and Mr.S. Kashyap,
Advocate for respondent no.1
+ W.P.(C) 6683/2011 & CM APPL. 13517/2011 & 13221/2013
P.LAXMI PRATHYUSA ..... Petitioner
Through : Mr.Sanjeev Sahay and Mr.Harish Malik,
Advocates
versus
NATIONAL BOARD OF EXAMINATION AND ANR ..... Respondents
Through : Mr.Mukul Gupta, Sr. Advocate with
Mr.Rakesh Gosain and Mr.S. Kashyap,
Advocate for respondent no.1
+ W.P.(C) 344/2012 & CM APPL. 737/2012
PATEL BHAVINKUMAR RAMESH CHANDRA ..... Petitioner
Through: Dr.K.S. Chauhan, Mr.Ajit Kumar Ekka,
Mr.Ravi Prakash & Mr.K.C. Lamba, Advs.
versus
NATIONAL BOARD OF EXAMINATION AND ORS..... Respondent
Through : Mr.Mukul Gupta, Sr. Advocate with
Mr.Rakesh Gosain and Mr.S. Kashyap,
Advocate for respondent no.1
Mr.Abhinav Mukerji and Mr.Purnima
Kashna, Adv. for respondent no.2
+ W.P.(C) 3232/2012
ASHISH POPATRAO JHADAV ..... Petitioner
Through : Mr.K.Harshavardhan Reddy, Adv
versus
NATIONAL BOARD OF EXAMINATIONS AND ORS.... Respondents
Through : Mr.Mukul Gupta, Sr. Advocate with
Mr.Rakesh Gosain and Mr.S. Kashyap,
Advocate for respondent no.1
Mr.Himanshu Bajaj and Ms.Sakshi
Aggarwal, Adv. for R-2.
Ms.U.Pallavi for Mr.Sumeet Pushkarna,
Adv. for UOI
+ W.P.(C) 114/2013 & CM APPL. 230/2013
PULAK NIGAM ..... Petitioner
Through: Mr.Anuj Kumar Garg, Advocate.
versus
NATIONAL BOARD OF EXAMINATION AND ORS ..... Respondent
Through : Mr.Mukul Gupta, Sr. Advocate with
Mr.Rakesh Gosain and Mr.S. Kashyap,
Advocate for respondent no.1
Mr.Abhinav Mukerji and Mr.Purnima
Kashna, Adv. for respondent no.2
Mr.Ravinder Agarwal, Adv. for UOI
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. Rule. With the consent of counsel for the parties, the present writ
petitions are taken up for hearing and disposal.
2. The petitioner in Writ Petition No.6500/2011 was awarded MBBS degree
by Dr.NTR University of Health Sciences Vijaywada, Andhra Pradesh in
the year 2007. According to the petitioner the respondent no.1 granted
professional accreditation to the paediatrics specialty of respondent no.2
for a period of three years with effect from July, 2009 to June, 2012. The
hospital was granted permission to enroll equal number of trainees
holding recognized post graduate diploma for a period of two years. It is
also the case of the petitioner that if a selected candidate leaves the
accredited hospital, the hospital can complete the procedure of selecting
candidates up to 15th September for July session. In June, 2010 the
respondent no.1 published information bulletin for the post graduate
courses (CET - NBE) June, 2010. As per the petitioner, for the year 2009
the candidates were eligible on the basis of the CET examination and
aptitude test for primary candidates by the concerned institutions. It is
also the case of the petitioner that for a secondary candidate like the
petitioner, clearing CET examination is not a pre requisite for admission
as a DNB candidate.
3. On 1.7.2010 the petitioner was awarded DCH (Paediatrics) degree by
Rajiv Gandhi University of Health Science, Karnataka in the examination
held in May, 2010. In the meanwhile, on 6.7.2010 the respondent no.2
published an advertisement in the Deccan Herald inviting applications for
DNB Paediatrics course 2010. The petitioner got his name enrolled with
the respondent no.2 on 12.7.2010 and the petitioner was asked to report
on 27.7.2010.
4. On 27.7.2010 the petitioner applied for DNB paediatrics course 2010 with
the respondent no.2 on the basis of DCH (Paediatrics)degree. Since there
were more than one candidate for the only seat available, respondent no.2
conducted an aptitude test of DCH paediatrics degree candidates on
5.8.2010. The petitioner secured highest marks in the aptitude test and
was accordingly selected.
5. According to the result published, one Dr.Anand Kumar Singh, who
secured the highest marks in DNB CET was selected as the primary
candidate whereas the petitioner was selected as a trainee for a period of
two years. On 16.8.2010, the primary candidate, Dr.Anand Kumar Singh
had resigned and refused to continue with the respondent no.2 and
accordingly in his place one Dr.Sayed Mujahid Hussain was selected as
primary DNB candidate. The college informed the respondent no.1 on
13.9.2010 of selection of Dr.Sayed Mujahid Hussain.
6. By a letter dated 20.12.2010 addressed to respondent no.2 by respondent
no.1, the respondent no.2 was informed that they have violated the
guidelines as prescribed in the information bulletin CET - 2010. The
respondent no.2 informed that the aptitude test was conducted only for the
DCH candidates, as more than one candidate had applied for. Respondent
no.2 further clarified that since Dr.Arvind Kumar Singh, the primary
candidate, had resigned, they selected Dr.Sayed Mujahid Hussain, as a
primary DNB candidate.
7. On 9.3.2011 respondent no.1 issued a reminder to the respondent no.2,
informing them that they had not received any reply to their letter of
20.12.2012. The respondent no.2 while replying to this communication
enclosed a photocopy of their reply dated 7.1.2011 to the respondent no.1.
The petitioner was shocked to receive a communication from respondent
no.1 on 11.7.2011 informing that the registration cannot be granted to the
petitioner.
8. Counsel for the petitioner submits that petitioner was granted admission
as far back as on 27.7.2010 and the communication informing the
petitioner that registration cannot be granted was issued after a period of
almost one year. It is submitted that the reasons for declining the
registration above mentioned are there in the communication dated
11.7.2011, which is reproduced below:
"No.REGN/KA/LSI/2010-4276 Dated: July 11, 2011
To,
The Medical Director,
Lakeside Institute of Child Health,
33/4, Meanee Lake, Bangalore-560042.
Sub: Registration as DNB Trainee - July, 2010 Session
Sir,
Kindly refer your email dated 23.5.2011, 01.7.2011 and 5.7.2011
on the subject cited above.
On perusing the information furnished by you, it is observed that:
1. No applicants applied against advertisement for the session
July, 2010.
2. No candidate has appeared for CET-June 2010
examination.
3. Aptitude test conducted by the hospital which is against
admission guidelines for the session July, 2010.
4. Candidate not in merit selected by the institute and no
satisfactory explanation given by the institute.
In view of the above, Dr.Sayed Mujahid Husain and
Dr.Karanam V N P Kumar as primary and secondary
candidate respectively in the specialty of Paediatrics for the
session July, 2010 cannot be considered by the board. No
further correspondence in the matter will be entertained.
This issues with prior approval of the competent.
Yours faithfully
(R.C. Khatri)
Asstt. Director (Director)"
9. Counsel also submits that the petitioner had made an application pursuant
to an advertisement released by the respondent no.2 on 6.7.2010. Since
the petitioner was asked to appear in the aptitude test, the petitioner had
no choice and thus the petitioner cannot be faulted for any lapse on the
part of the respondent no.2. It is submitted that the petitioner secured the
highest marks in the aptitude test above the two other candidates, who had
also participated in the test and thus her admission is on the basis of
merits.
10. Counsel for the respondent no.1 has opposed this petition on the ground
that the petitioner had made an application even prior to the declaration of
the CET June, 2010 examination and even prior to the advertisement
released by the respondent no.2. It is also submitted that as per admission
bulletin there was no procedure for conducting of aptitude test by the
respondent no.2.
11. Mr.Gupta and Dr. Gosai, counsel for respondent no.1 also submit that the
collusion on the part of the petitioner, candidates and the college is writ
large on the face of the record and is evident from the fact that the
petitioner applied even prior to the advertisement and there was no
competition, as no candidate, who had appeared in the CET June, 2010
examination, participated in the admission process.
12. Counsel further submits that there has been no satisfactory explanation on
the part of the college and further it is submitted that petitioner was well
aware of the admission bulletin and thus the petitioner can neither claim
ignorance nor the petitioner is innocent and in fact the petitioner was hand
in glove with the acts of the college.
13. Reliance is placed on a certificate issued by the respondent no.2,
according to which the petitioner has made an application on 12.4.2010,
however, there is no explanation on the part of the petitioner as to how the
application was made and on what basis.
14. Dr.Gosai, also submits that the details which have been filed along with
the counter affidavit duly bears the signatures of the director of the
respondent no.2 along with the rubber stamp and thus it cannot be said
that the petitioner is not aware of such application form on 12.4.2010.
Reliance is also placed on the medical information bulletin, which has
also been placed on record, to show that there is no provision for
conducting eligibility test for students.
15. Dr.Gosai, submits that the selection process, timeframe and the schedule
for enrolment has been detailed in the information bulletin. It is further
submitted that there is no delay in informing the respondent no.2 that the
process of selection is irregular, as the communication was issued soon
after relevant documents were submitted by the college to respondent
no.1, which also finds mention in the impugned order dated 11.7.2011.
16. The above writ petitions have been heard together and with the consent of
counsel for the parties are being disposed of by a common order. In all
these matters the petitioners have completed their M.B.B.S. course and
thereafter applied to their respective colleges for DNB 2/3/6 year(s)
course. All the petitioners were granted admissions and have completed
their course except petitioners in WP(C)No.344/2012 and
WP(C)No.114/2013. The admissions granted in favour of all these
petitioners were revoked and cancelled by communications issued by the
National Board of Examinations. The impugned communications in each
case, are as under:
Petition No. & Party Name Impugned order
dated
WP(C)No.344/2012 21.11.2011
Patel Bhavinkumar Ramesh Chandra
W.P.(C) 114/2013 21.11.2011
Pulak Nigam
W.P.(C) 6683/2011 30.07.2011
P.Laxmi Prathyusa
W.P.(C) 6500/2011 11.07.2011
Karnam Vnp Kumar
W.P.(C) 6503/2011 11.07.2011
Sayed Mujahid Hussain
W.P.(C) 3232/2012 24.02.2011
Ashish Popatrao Jhadav
17. After communication of cancellation was received by the petitioners, the
present writ petitions were filed. An interim order was granted in
WP(C)No.3232/2012, WP(C)No.6500/2011 & WP(C)No.6503/2011,
however, petitioners in the WP(C)No.6683/2011 were also permitted to
complete the course by the college and also appear in the examination. It
may be noticed that the petitioners in WP(C)No.344/2012 and
WP(C)No.114/2013 were not permitted to complete the course.
18. The common case of the petitioners is that they are the bona fide students,
they had made applications to their respective colleges; after the
candidates had cleared the CET examinations conducted by the Board and
also cleared the aptitude test which was conducted by the respective
colleges.
19. Counsel for the petitioners also submit that some of the petitioners more
particularly petitioners in WP(C)No.344/2012 and WP(C)No.114/2013
belong to the lower strata of the society and are the first in their family
and village to have become doctors and have attained this distinction. It is
also a common argument that the parents of the petitioners have spent
their hard earned savings on their education and in case their admissions
are not regularized, their hopes would be dashed into pieces.
20. Counsel for the petitioners have strongly urged before this court that the
petitioners had nothing to gain in appearing for the aptitude test and they
simply appeared in the same as it was the requirement of the college. A
strong argument has also been put-forth by the respective counsel for the
petitioners that holding of aptitude test was the norm up till 2010 and in
addition to clearing the CET examination, the college was to conduct an
aptitude test, and thus, the candidates did not consider it unusual when
they were asked to appear in the aptitude test.
21. As far as the stand of respondent no.1, National Board of Examinations is
concerned, Mr.Mukul Gupta, learned senior counsel ably assisted by
Mr.Gosain, advocate have submitted before this court that after the year
2010 the rules were amended and the procedure of conducting aptitude
test was done away with and conducting aptitude test and granting
admissions to the petitioners, is thus irregular.
22. Counsel for the petitioners appearing in WP(C)No.344/2012 and
WP(C)No.114/2013 submit that the college was also misled by the fact
that earlier an aptitude test was prescribed and it was not that the college
intentionally flouted the admission procedure. Similar stand has been
taken by the college in the petition, WP(C)No.6683/2011. Counsel for the
college has also urged before this court that the explanation rendered by
them to respondent no.1 has been accepted by them, which fact is
disputed by counsel for respondent no.1.
23. Counsel for the colleges further submit that barring this discrepancy/
irregularity committed, they have neither in past nor in future flouted any
guidelines, rules or regulation of respondent no.1 and the court should
take a lenient view in the matter.
24. Counsel for the petitioners have also drawn attention of the court to
another decision rendered by a Single Judge of this court where the
admission of the student was regularized by imposing a penalty of Rs.1.0
lac on the college which was to be paid to the Board to regularize the
admission of the candidates.
25. At this stage, counsel for the petitioners submit that petitioners are willing
to deposit a sum of Rs.1.0 lac to respondent no.1, to enable them to
regularize their admission. Counsel appearing in the writ petitions
[WP(C)No.344/2012 and WP(C)No.114/2013] submit that financial status
of the petitioners is such that the penalty amount should be decreased or
the college should be asked to share the same, as they are still in debt of
paying for their tuition fee, etc.
26. Counsel for the college in WP(C)No.344/2012 and WP(C)No.114/2013
have also agreed to this suggestion. Counsel for respondent no.1 submits
that mere penalizing the students and the college cannot regularize the
admissions of the petitioners herein.
27. Admittedly all the petitioners were granted admissions in the year 2010
and thereafter out of six (6) petitioners, four (4) petitioners have
completed their course. Petitioners in WP(C)No.344/2012 and
WP(C)No.114/2013 have mostly attended training, but not completed the
course. It may be noticed that despite irregularities committed by the
college(s), no action has been taken by respondent no.1 against them till
date, although an explanation has been rendered by counsel for
respondent no.1 that since the matter was subjudice, respondent no.1 did
not take any action in the matter. The court cannot lose track of the fact
that four (4) petitioners out of six (6) petitioners have already completed
the course. The seats which have been granted to these petitioners can be
of no use either to the college or to the Board and also the fact that at one
stage the aptitude test was the part of regulations. I am also inclined to
accept the argument of counsel for the petitioners and the college that
barring this one incident, the colleges have not flouted the regulations of
respondent no.1. The statement so made has not been rebutted. The
colleges also undertake not to conduct any aptitude test in future unless so
provided under the rules and regulations.
28. Having regard to the future of the petitioners herein and for the reasons
aforestated and subject to payment of penalty in the sum of Rs.1.0 lac to
be deposited by the petitioners in each writ petition for the default
committed by the college, the present writ petitions are allowed in the
peculiar facts of these cases.
29. The petitioners and the colleges in two matters [WP(C)No.344/2012 and
WP(C)No.114/2013] have brought to the court, bank draft(s) in the sum
of Rs.1.0 lac each, which have been accepted by counsel appearing for
respondent no.1, National Board of Examination. The details of the bank
drafts are given below:
Petition No. & Party Name Name of the Bank,
Demand Draft No.
and amount.
WP(C)No.344/2012 Bank of Baroda
Patel Bhavinkumar Ramesh D.D.No.373748
Chandra For Rs.50,000/-
By the Hospital Indian Overseas Bank
DD No.495000
Rs.50,000/-
W.P.(C) 114/2013 ICICI Bank
Pulak Nigam D.D.No.308185
For Rs.50,000/-
By the Hospital Indian Overseas Bank
DD No.495000
Rs.50,000/-
W.P.(C) 6683/2011 Axis Bank
P.Laxmi Prathyusa DD No.010753
Rs.1,00,000/-
W.P.(C) 6500/2011 ICICI Bank
Karnam Vnp Kumar DD No.032034
Rs.1,00,000/-
W.P.(C) 6503/2011 ICICI Bank
Sayed Mujahid Hussain DD No.032034
Rs.1,00,000/-
W.P.(C) 3232/2012 Punjab National Bank
Ashish Popatrao Jhadav DD No.091417
Rs.1,00,000/-
30. The impugned orders as detailed in para (1) above, are set aside.
Petitioners in WP(C)No.344/2012 and WP(C)No.114/2013 shall be
permitted to complete their course from the stage from where they were
directed to leave.
31. Leave, as prayed is granted to the petitioners to recover the amount paid
from the hospital concerned, in accordance with law.
32. Accordingly, the above said writ petitions and the applications stand
disposed of.
G.S.SISTANI, J
SEPTEMBER 26, 2013
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