Delhi High Court
Dr. Akant Pandey vs The National Board Of ... on 21 December, 2021
$~6 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21st December, 2021
+ W.P.(C) 11213/2021 & CM APPL. 34519/2021
DR. AKANT PANDEY ..... Petitioner
Through: Mr. Nishant Datta &
Mr.Pradeep Bhardwaj,
Advocates.
versus
THE NATIONAL BOARD OF
EXAMINATIONS & ANR. ..... Respondents
Through: Mr. Ruchira Gupta &
Ms.Akanksha Sisodia,
Advocates.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
The proceedings in the matter have been conducted through
video conferencing.
1. The petitioner is a doctor. He enrolled for the Diplomate of
National Board ["DNB"] examination and has cleared the theory
component of the said examination. The grievance with which he has
approached the Court concerns the maximum number of attempts
available for clearing the practical component of the DNB.
2. The undisputed position is that, in terms of the Information
Bulletin issued for the DNB Final examination from time to time, a
candidate is given maximum of three attempts to clear the practical
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examination. The petitioner availed of those three attempts in the June
2019 session, December 2019 session and December 2020 session.
However, he was unable to score the minimum pass marks of 150/300.
The respondent no.1-National Board of Examinations ["NBE"] has,
therefore, taken the position that he cannot be granted any further
attempts.
3. The petitioner first approached this Court with regard to this
grievance in W.P.(C) 9748/2021. The reliefs sought in W.P.(C)
9748/2021 were as follows:-
"a) Issue a writ in the nature of Mandamus or any other
appropriate writ, order or direction directing the
Respondents No.1 and 2 to permit the Petitioner to
participate in the upcoming practical examination likely
to be held in October, 2021;
b) Issue a writ in the nature of Mandamus or any other
appropriate writ, order or direction directing the
Respondents No.1 and 2 to provide copies of answer
sheets of the Petitioner in respect of examination held in
03.07.2021 while also directing the Respondents to
consider Petitioner's request for re-checking and/or re-
evaluation of Petitioner's examination papers;
c) Issue a writ in the nature of Certiorari or any other
appropriate writ, order or direction quashing or setting
aside the rule/order/circular/notification dated
22.06.2020 inter alia imposing limit of three attempts in
practical examination being arbitrary, unconstitutional
and without any legal basis, especially after change in
pattern and also considering the prevailing coronavirus
situation;
d) any other or further relief, which this Hon'ble Court
may deem fit and proper in the above facts and
circumstances of the case may also be passed in favour of
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the petitioner and against the respondents, in the interest
of justice."
4. By an order dated 07.09.2021, the petitioner was permitted to
withdraw the writ petition with the following observations:-
"1. The present petition has been filed by a doctor who is
a candidate for the D.N.B. (Diplomate of National Board)
in Family Medicine. The petitioner seeks a direction upon
the respondents, permitting him to participate in the
practical examination schedule to be held in October,
2021.
2. After some hearing, Mr. Rajesh Yadav, learned
Senior Counsel for the petitioner seeks permission to
withdraw the writ petition unconditionally, but with
liberty to pursue his representation dated 30.08.2021
with the respondents.
3. Mr. Yadav submits that the petitioner is conscious of
the fact that he has taken the practical examination three
times, which is the maximum permitted under the relevant
circular of the respondent no.1/National Board of
Examinations ["NBE"], and he only seeks sympathetic
exercise of the respondent's discretion on the grounds
stated in his representation dated 30.08.2021. Ms.
Ruchira Gupta, learned counsel who appears for the NBE
on advance notice, states that the representation will be
decided within a week.
4. The writ petition is dismissed as withdrawn
unconditionally. The respondents will however decide
the petitioner's representation in their own discretion and
communicate their decision to the petitioner within one
week."1
Emphasis supplied.
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5. The petitioner's representation dated 30.08.2021 was for
essentially the same relief: -
"Therefore, it is my humble request that I must be given
one more opportunity to participate in practical
examination coming up in October 2021 and also
provide me the copies of answer sheets of the practical
examination held on 03.07.2021 and also request you to
kindly consider reevaluation or rechecking of my result
while your department considers the present
representation to remove this restriction of three attempts
altogether being arbitrary and without any basis."2
6. The petitioner's representation has been rejected by the NBE
vide a communication dated 14.09.2021 noting the maximum number
of attempts as aforesaid. Against this decision, the petitioner has filed
the present writ petition.
7. At the outset, I am of the view that the writ petition does not lie
in the light of the unconditional withdrawal of the petitioner's earlier
writ petition. The relief sought in the present petition, framed in terms
of challenge to the rejection of the representation, is essentially
directed at the same result as the earlier writ petition. Upon
unconditional withdrawal of a writ petition, albeit with liberty to
pursue a pending representation, the petitioner abandons his right to
institute a fresh writ petition for the same relief. It is significant that
the petitioner was not granted any liberty to institute such fresh
proceedings.
8. The judgment of the Supreme Court in Sarguja Transport
Service vs. State Transport Appellate Tribunal, M.P., Gwalior and
Emphasis supplied.
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Others3, has explained the position thus:-
"8. The question for our consideration is whether it
would or would not advance the cause of justice if the
principle underlying Rule 1 of Order XXIII of the Code is
adopted in respect of writ petitions filed under Articles
226/227 of the Constitution of India also. It is common
knowledge that very often after a writ petition is heard
for some time when the petitioner or his counsel finds
that the court is not likely to pass an order admitting the
petition, request is made by the petitioner or by his
counsel to permit the petitioner to withdraw from the
writ petition without seeking permission to institute a
fresh writ petition. A court which is unwilling to admit
the petition would not ordinarily grant liberty to file a
fresh petition while it may just agree to permit the
withdrawal of the petition. It is plain that when once a
writ petition filed in a High Court is withdrawn by the
petitioner himself he is precluded from filing an appeal
against the order passed in the writ petition because he
cannot be considered as a party aggrieved by the order
passed by the High Court. He may as stated in Daryao v.
State of U.P. [AIR 1961 SC 1457 : (1962) 1 SCR 574] in
a case involving the question of enforcement of
fundamental rights file a petition before the Supreme
Court under Article 32 of the Constitution of India
because in such a case there has been no decision on the
merits by the High Court. The relevant observation of this
Court in Daryao case [AIR 1961 SC 1457 : (1962) 1 SCR
574] is to be found at p. 593 and it is as follows:
"If the petition is dismissed as withdrawn it
cannot be a bar to a subsequent petition under
Article 32, because in such a case there has been
no decision on the merits by the court. We wish to
make it clear that the conclusions thus reached by
us are confined only to the point of res judicata
(1987) 1 SCC 5
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which has been argued as a preliminary issue in
these writ petitions and no other."
9. The point for consideration is whether a
petitioner after withdrawing a writ petition filed by him
in the High Court under Article 226 of the Constitution
of India without the permission to institute a fresh
petition can file a fresh writ petition in the High Court
under that article. On this point the decision in Daryao
case [AIR 1961 SC 1457 : (1962) 1 SCR 574] is of no
assistance. But we are of the view that the principle
underlying Rule 1 of Order XXIII of the Code should be
extended in the interests of administration of justice to
cases of withdrawal of writ petition also, not on the
ground of res judicata but on the ground of public policy
as explained above. It would also discourage the litigant
from indulging in bench-hunting tactics. In any event
there is no justifiable reason in such a case to permit a
petitioner to invoke the extraordinary jurisdiction of the
High Court under Article 226 of the Constitution once
again. While the withdrawal of a writ petition filed in a
High Court without permission to file a fresh writ petition
may not bar other remedies like a suit or a petition under
Article 32 of the Constitution of India since such
withdrawal does not amount to res judicata, the remedy
under Article 226 of the Constitution of India should be
deemed to have been abandoned by the petitioner in
respect of the cause of action relied on in the writ
petition when he withdraws it without such permission.
In the instant case the High Court was right in holding
that a fresh writ petition was not maintainable before it in
respect of the same subject-matter since the earlier writ
petition had been withdrawn without permission to file a
fresh petition. We, however, make it clear that whatever
we have stated in this order may not be considered as
being applicable to a writ petition involving the personal
liberty of an individual in which the petitioner prays for
the issue of a writ in the nature of habeas corpus or seeks
to enforce the fundamental right guaranteed under
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Article 21 of the Constitution since such a case stands on
a different footing altogether. We, however leave this
question open."4
9. Be that as it may, I have heard Mr. Nishant Datta, learned
counsel for the petitioner, on the merits of the present case also and
find the petitioner's case equally unmerited on that score.
10. The petitioner participated in the examination knowing fully
well the contents of the Information Bulletin and the maximum
number of attempts afforded to a candidate. Mr. Datta's main
argument is that the NBE changed the pattern of the examination by a
notification dated 12.06.2020, which was applicable for the December
2019 session. He submits that, upon change of the pattern of an
examination, the attempts taken by a candidate under the old pattern
ought not to be counted against him.
11. I am unable to accept this contention. The examination in
question was to be held in September, 2020 and the notification with
regard to the change of pattern was issued on 12.06.2020. The most
significant feature of the notification, however, is Clause 4 thereof,
which reads as follows:-
"4. Practical Examination of all such DNB candidates
who opt out of this revised scheme of Examination shall
be held in the conventional manner at a later date when
circumstances so permit. However, all such DNB
candidates who opt out from this revised scheme of
Examination will not be eligible for the NEET SS 2020
which is likely to be held in September 2020. Such DNB
candidates shall be able to exercise their choice for
opting out of this new revised scheme, if they desire to do
Emphasis supplied.
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so, through login into their account at "Online Exit
Examination Portal (OEEP)."
12. Clause 4 gave candidates an option to opt out of the revised
scheme of examination and to await the examination held in the
conventional manner, when circumstances permitted. In the light of
this option given to the candidates, the argument advanced by Mr.
Datta is of no force. In the circumstances arising out of the Covid-19
pandemic, the examining authority attempted to devise a revised
scheme of the examination to obviate the need for large scale
postponement and extension of the tenure of the course. It,
nevertheless, permitted candidates who wished to take the
examination in the conventional manner to opt out of the revised
scheme. The petitioner, conscious of this choice, did not opt out, and
took the examinations in the revised scheme, not just once, but twice. I
do not see any force in Mr. Datta's submission that he should
nevertheless be given further attempts at the examination. There is no
arbitrariness or unreasonableness in the actions of the NBE, visiting
the petitioner with the consequences his own choice.
13. The role of the writ court in examining policy matters of this
nature is extremely limited. The judgments of the Supreme Court inter
alia in All India Council for Technical Education vs. Surinder Kumar
Dhawan and Others5 and Indian Institute of Technology Kharagpur
and Others vs. Soutrik Sarangi and Others6 make it clear that the writ
court is not to sit as an appellate authority and re-examine the
(2009) 11 SCC 726
2021 SCC OnLine SC 826
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decisions of academic bodies on academic matters, except on a
showing of manifest arbitrariness or unreasonableness. The present
case falls far short of that high standard.
14. The writ petition, alongwith the pending application, is
consequently dismissed.
PRATEEK JALAN, J
DECEMBER 21, 2021
'Bp'
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