Madras High Court
Dr.P.Mehala … vs The Secretary To Government on 30 September, 2021
W.P.No.19791of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Writ Petition No.19791 of 2021
and W.M.P.No.21064 of 2021
Dr.P.Mehala …. Petitioner
-Vs-
1.The Secretary to Government,
Ministry of Health and Family Welfare
Government of India, New Delhi.
2.The National Board of Examinations in Medical
Sciences (An Autonomous Body under the
Ministry of Health and Family Welfare)
Government of India, represented by the
Assistant Director, Mahatma Gandhi Marg
(Ring Road), Ansari Nagar
New Delhi – 110 029. …. Respondents
Writ Petition under Article 226 of the Constitution of India praying for the issuance of
a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent
bearing reference NBEMS/ DOEC/ December 2020/ 2022251542/ 2021/ 5556- 5559
dated 24.08.2021 and quash the same as illegal consequently to pass an order of
declaration declaring that the candidature of the petitioner for the DNB final
Examination December 2020 under registration number 225 -41132-191 -223144 and
Roll Number 2022251542 is valid so as to direct the 2nd respondent to conduct
Practical Examination for the DNB course December 2020 within stipulated date
prescribed by this Honble Court.
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For Petitioner : Mr.C.G.Kumar
For Respondents : Mr.S.N.Parthasarathy
Senior Central Government Standing Counsel - for R1
Mr.R.Thirunavukkarasu
Standing Counsel – for R2
ORDER
This writ petition has been filed challenging the proceedings of the second
respondent dated 24.08.2021 and for a consequential direction to declare that the
candidature of the petitioner for the DNB final examination is valid and for a further
direction to the second respondent to conduct the practical examination for the DNB
Course within the time prescribed by this Court.
2. The case of the petitioner is that, she joined the Diplomate of National Board
(DNB), which is a Post Graduate Masters Degree, on 07.06.2019. The DNB Final
Theory Examination was supposed to be conducted during December 2020. However,
due to the pandemic situation, the written examinations were conducted by the
second respondent only during March 2021. The petitioner took the examination and
she cleared the theory part of the course. The next stage is for the petitioner to
appear for the practical examination. The second respondent announced that the
practical examination will be conducted during August 2021. It is claimed by the
petitioner that she also obtained the admit card for appearing in the DNB final
practical examination.
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3. In the meantime, the petitioner was working at a hospital at Coimbatore.
She conceived and she was advised by the hospital to proceed on leave after
obtaining a sanction from the second respondent. This advice was given to the
petitioner since there was no clarity at that point of time as to whether a pregnant
lady can be administered with the vaccine and whether it will have any adverse impact
on the child in the womb.
4. Accordingly, the petitioner applied to the second respondent seeking for
leave. The second respondent, through the letter dated 30.07.2021, sanctioned the
leave applied for by the petitioner for the period from 01.06.2021 to 27.11.2021.
5. The petitioner delivered a child on 19.07.2021 and she was discharged from
the hospital on 21.07.2021. Since the final practical examination was slated to be
conducted on 28.08.2021, the petitioner made a request to the second respondent to
take into consideration the extraordinary circumstances in which she was placed and
to permit the petitioner to take the practical examination. The second respondent,
through the impugned proceedings dated 24.08.2021, after taking note of Clause 11.6
and 11.7 of the Information Bulletin of DNB, came to a conclusion that the petitioner
had not completed the required DNB training before the cut-off date viz., 30.09.2021
and hence the petitioner was found ineligible and as a consequence of the same, her
appearance in the DNB Final Theory Examination, December 2020 was declared as
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null and void and the admit card that was given to the petitioner to appear for the
practical examination was also cancelled / withdrawn. The petitioner was advised to
appear in the DNB final examination once again at a future date. Aggrieved by the
same, the present writ petition has been filed before this Court.
6. The second respondent has filed a counter affidavit. The stand taken by the
second respondent in the counter affidavit is extracted hereunder.
“ 4. I state that in terms of Clause 11.6 of Information Bulletin of
DNB Final December 2020, any leave availed by the candidate other than
the eligible leave (30 days per year) shall lead to extension of DNB/FNB
training. Further as per Clause 11.7, “any extension is permissible only
under extraordinary circumstances with prior approval of NBEMS. Such
extension is neither automatic nor shall be granted as a matter of routine.
5. I state that the petitioner had furnished a Provisional Training
Completion Certificate (PTCC) dated 22.01.2021 when she applied for
DNB Final Theory Examination December 2020. According to the
submitted PTCC, she had been stated to have availed 40 days leave by
then in total. The scheduled date of training completion therefore was
06.06.2021. And after mandatory 3 months of COVID Extension as per
the notice dated 18.01.2021 her date of completion as per Provisional
Training Completion Certificate was 11.09.2021, which was within the
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prescribed cut-off date for completion of training december 2020 Session
ie., 30.09.2021. Therefore, she was allowed to appear in the DNB Final
Theory Examination-2020 Session. It is submitted that the Information
Bulletin categorically mentions that the eligibility of the candidate is
purely provisional and subject to the fulfillment of eligibility criteria as
prescribed by the 2nd respondent.
6. I state that the Petitioner had also availed maternity leave from
01.06.2021 to 27.11.2021 which comes to 180 days. Therefore, the total
leave during the training turns out to be 220 days. Even after giving the
benefit of maximum autonomous examining body and are governed by
their rules and regulations. It is denied that the 2nd respondent acted
arbitrarily by declaring the petitioner as ineligible for the said exam. As
already pointed out, it is submitted that 2nd respondent has acted as per the
Rules contained in the Information Bulletin. The petitioner herself has
acknowledged and undertaken in the Provisional Training Completion
Certificate (PTCC) dated 22.01.2021, while applying or the DNB Final
Examination December 2020, that if she is unable to complete her DNB
training on or before the cut-off date ie., 30.09.2021, it is understood that
her candidature shall stand cancelled for DNB Final Examination
December 2020.”
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7. Heard Mr.C.G.Kumar, learned counsel appearing for the petitioner,
Mr.S.N.Parthasarathy, learned Senior Central Government Standing Counsel appearing
for the first respondent and Mr.R.Thirunavvukarasu, learned Standing Counsel for the
second respondent.
8. The learned Standing Counsel appearing on behalf of the second respondent,
apart from reiterating the stand taken in the counter affidavit, also brought to the
notice of this Court, the Division Bench judgment of the Delhi High Court in
L.P.A.No.715 of 2019 dated 26.03.2021 (National Board of Examinations
-vs- Dr.Rajani Sinha and Others). The portions of the judgment relied upon by the
learned Standing Counsel are extracted hereunder.
“ 11. In view of the aforesaid Rules, we are respectfully unable to
agree with the reasoning in the impugned judgment, that since the
appellant NBE did not immediately respond to the DNB Training
Completion Certificate (Provisional) dated 19th September, 2017, inter
alia providing that in case the respondent no.1 was unable to complete the
DNB training on or before the cut-off date of 23rd August, 2018 towards
the eligibility determination, her candidature shall stand cancelled, the
same became binding on the appellant NBE and the appellant NBE could
not subsequently refute that the cut-off date was 30th June, 2018 and not
23rd August, 2018. It cannot be lost sight of that the appellant NBE is an
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examining body and is to function not as per the ipse dixit of the persons
manning it from time to time but as per its Rules and Regulations
published from time to time. The said Rules and Regulations, in the present
case contained in the Information Bulletin for DNB Final Examination-
December, 2017, clearly prescribed cut-off date as 30th June, 2018 and
there was no reason for the respondent no.4 Institute to, in the DNB
Training Completion Certificate (Provisional) dated 19th September, 2017,
mention the cut-off date as 23rd August, 2018. The same was clearly a
mistake of the respondent no.4 Institute. Merely because the appellant NBE
did not immediately refute the same and / or merely because the appellant
NBE, notwithstanding the said error / mistake in the DNB Training
Completion Certificate (Provisional) of the respondent no.1, allowed the
respondent no.1 to take the examination would not change the cut-off date
prescribed for all those taking the subject examination, for the respondent
no.1. Once an autonomous body, as NBE is, particularly an Examining
Body, is governed by its Rules and Regulations, it is not open to any person
manning the said body, to grant relaxation in the said Rules and
Regulations or to change the same by his / her conduct, express or implied
viz. of non-refutal of the error in the certificate aforesaid. This is what
differentiates a society governed by law from a society governed by men.
Moreover, the principle in law, of deducing admission from non-refutal, is
otherwise also not an absolute one. It cannot be lost sight of that an
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Examining Body such as the appellant NBE, holding examinations for
thousands if not lakhs of students, cannot be expected to minutely scan
through each and every communication submitted to it and to refute any
content contrary to the Rules. The Rules of examination cannot change
merely by stating the wrong in a communication especially when the
Examining Body in its Rules has clearly provided that the entrance to the
examination was purely provisional and that the candidature for the
examination could be cancelled at any time as and when finding that the
candidate was not eligible to appear in the examination. The reasoning
given by the Single Judge is capable of mischief, playing havoc with the
standards of the examination and of being abused by institutes and
students. An Examining Body such as the appellant NBE, is bound by its
own Rules and without any provision in the Rule vesting any discretion in
it, does not have any discretion to change or bend the Rules for any
candidate.
12. We have perused the judgments relied upon by the counsel for
the respondent no.1 and find that none of them come to the aid the
respondent no.1. In Amulya Mysore supra, the DNB candidate had
compensated for the number of days of excess leave, before the cut-off
date. In Teena Peter supra, the excess leave availed by the DNB candidate
had been granted by the appellant NBE, which alone under the Rules is
competent therefor. As distinct therefrom, in the present case, the excess
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medical leave admittedly taken by the respondent no.1 was without prior
approval of appellant NBE. Once the Rules clearly provide that excess
medical leave has to be with prior approval of appellant NBE, neither the
respondent no.4 Institute nor the respondent no.1 could have entertained
any doubt with respect thereto and leave, even if granted by respondent
no.4 Institute, cannot make the respondent no.1 eligible for the
examination when in accordance with the Rules, she was / is not. We are
also unable to agree with the reasoning in the impugned judgment, that
since the respondent no.4 Institute is accredited to the appellant NBE, the
appellant NBE is bound by its act of granting medical leave in excess of
that provided and without approval of appellant NBE. It has not been
reasoned that the appellant NBE has any administrative control over the
respondent no.4 Institute. Merely because the training imparted by the
respondent no.4 Institute meets the parameters of appellant NBE and the
appellant NBE has granted accreditation to the respondent no.4 Institute,
would not bind the appellant NBE with the leave granted by respondent
no.4 Institute in excess of that provided in the Rules to the respondent no.1.
It cannot also be lost sight of that the respondent no.1 herself is highly
educated, qualified to grant medical care to others and expected to have
made herself conversant with the Rules and Regulations of the examination
and has to bear the consequences of violation thereof. In Garima Singh
supra, there was miscommunication between the hospital and the appellant
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NBE in relation to the cut-off date due to the implementation of a
revised/revamped procedure. As distinct therefrom, in the present case
there was no ambiguity as to the prescribed cut-off date being 30th June,
2018 as per the Information Bulletin for DNB Final Examination
-December, 2017. N. Siva Krishna supra, rather than supporting the
respondent no.1, is against the respondent no.1. Therein also the
candidates concerned had availed of excess leave and relief was denied on
the ground that the candidates concerned had not completed their training
prior to the cut-off date. In G. Anand Ramamurthy supra, the Supreme
Court held that the High Court was not justified in directing the petitioner
to hold examinations against its policy, in complete disregard to the
mandate of the Courts for not interfering in the academic matters
particularly when the interference in the facts of the matter leads to
perversity and promotion of illegality. Finally, in Dr. Sajad Ahmed supra,
the relief was granted in the light of different facts and circumstances,
where a DNB candidate had been admitted in contravention of the relevant
guidelines.
13. In the present case there is no manner of doubt that the
respondent no.1 did not satisfy the criteria for appearing in the DNB Final
Examination 2017 and as per the Rules, her candidature was liable to be
cancelled and was rightly cancelled. Once the actions of the appellant
NBE are found to be in terms of its Rules, the Court cannot direct the
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appellant to act in violation thereof or allow relief to the respondent no.1
in violation of the Rules governing her examination. The appellant NBE is
expected to uphold the standards of medical qualifications / degrees
awarded by it and Courts cannot by their orders, dilute the rigours
prescribed for upholding the said standards. A Co-ordinate Bench in Rajat
Duhan Vs. All India Institute of Medical Sciences MANU/DE/4003/2019
has reiterated that any eligibility criteria is bound to cause hardship to
some set of students, particularly if they are closure to cut-off criteria;
however such considerations cannot outweigh with the Court to dilute the
standards of academic excellence prescribed by the academicians, who are
experts in the field.”
9. There is no serious dispute with regard to the facts of the present case and
therefore, this Court will straight away get into the main issue that is involved in the
present case. As per the Rules, a candidate is eligible for 30 days leave per year.
However, Clause 11.7 of the Information Bulletin, which has been extracted at Para 4
of the counter affidavit gives the authority to the National Board of Examinations
(NBE) to extend the period of training beyond the scheduled completion under
extraordinary circumstances. As a word of caution, it is stated that such an extension
should not be automatic and it should not be granted as a matter of routine. The
judgment that is cited by the learned counsel appearing on behalf of the second
respondent specifically has dealt with these Rules and has held that the NBE, as an
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examining body, has to strictly comply with the Rules and it cannot be given an
interpretation depending upon the person who is manning the NBE. In short, the
Division Bench held that, NBE is bound by its own Rules and it does not have the
discretion to change or bend the Rules for any candidate. This proposition of law laid
down by the Division Bench is perfectly in line with the settled principles of law and
this Court is in respectful agreement with the same.
10. It is therefore necessary for this Court to focus on the facts of the present
case and to assess as to whether the above judgment will apply to the facts of the
present case and whether the available Rules that govern NBE will enable the
condonation of the training period by considering the extraordinary circumstances.
11. The petitioner appeared in the DNB Final Theory Examinations during
March 2021 and she has cleared the examination. The Rules provide that a candidate
has to undergo training and in the present case, the scheduled date for the
completion of the training was initially fixed as 06.06.2021 and considering the
pandemic situation, it was extended by three months and hence, the completion as
per the Provisional Training Completion Certificate (PTCC) was 11.09.2021. A person
who has fulfilled this criteria alone will be allowed to appear in the final practical
examinations. Even if a candidate has cleared the theory examination and is
provisionally found eligible, the non-fulfillment of the training period will end in
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cancellation of the DNB Final Theory Examination and a candidate has to once again
take the examination to fulfill the criteria.
12. It is seen from records that, the petitioner availed maternity leave from
01.06.2021 to 27.11.2021 for nearly 180 days. This period, added with the leave that
was already taken by the petitioner, worked out to a total leave of 220 days. This was
taken into account by the second respondent while issuing the impugned proceedings
and the second respondent strictly went by Clause 11.6 of the Information Bulletin of
DNB.
13. There would have been absolutely no questions asked if this action had
been taken by the second respondent under normal circumstances. The leverage that
is given in Clause 11.7 of the Information Bulletin also makes it clear that, the same
should not be exercised as a matter of routine and it should be exercised only under
extraordinary circumstances. The issue is whether the facts of the present case falls
under such extraordinary circumstances.
14. The petitioner, after taking her examination during March 2021, joined for
training in G.Kuppusamy Naidu Memorial Hospital at Coimbatore. While so, she
conceived. Under normal circumstances, the petitioner would have continued to
undergo the training period and such maternity leave is not availed right from the day
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a woman conceives a child and it is availed only during the last phase of the
pregnancy. However, the petitioner was facing a very tricky situation. The vaccination
for the COVID-19 had just arrived and there were lots of questions that were raised
and one such question was as to whether a pregnant woman can be administered
with vaccination. There was no clarity on this issue and no pregnant women wanted
to expose themselves to the dangerous virus since this will result in the fatality of the
mother and the child in the womb. Therefore, taking into consideration the peculiar
situation, the hospital where the petitioner was undergoing the training advised the
petitioner to go on leave. Obviously, this advise was given by taking into consideration
the precious life of the petitioner and her child in the womb.
15. The petitioner thereafter made an application before the second respondent
requesting for maternity leave and the second respondent, through letter dated
30.07.2021 granted / sanctioned leave from 01.06.2021 to 27.11.2021. Of course,
while granting the leave, the second respondent made it clear that the eligibility for
DNB Final Examination shall be determined strictly in accordance with the criteria
prescribed in the Information Bulletin.
16. The petitioner, after delivering the child, made a representation to the
second respondent on 11.08.2021 and requested for permitting the petitioner to take
her practical examination on 28.08.2021. This request was rejected by the second
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respondent by taking into consideration Clause 11.6 of the Information Bulletin of
DNB.
17. Clause 11.7 of the Information Bulletin of DNB has given powers to the NBE
to grant extension of the training period beyond the scheduled completion date of
training under extraordinary circumstances. The facts above mentioned clearly
demonstrates that, the petitioner was indeed placed under extraordinary
circumstances. On the one hand, the Corona Virus was challenging human lives and
added to that, the petitioner was also pregnant and she became concerned about her
child in the womb and there was no clarity on administering the vaccine to a pregnant
woman. This clearly falls under the category of an extraordinary circumstance. The
facts of the present case definitely warranted the second respondent to exercise the
powers under Clause 11.7 by taking into consideration the extraordinary
circumstances and the second respondent ought to have extended the DNB training
period beyond the scheduled completion date of training. This power has to be
exercised sparingly and it should not be used as a matter of routine. However, in an
appropriate case this power must also be exercised and the authority cannot ignore
Clause 11.7 and stick on to Clause 11.6 of the Information Bulletin of DNB. Clause
11.7 is a exception to Clause 11.6 of the Information Bulletin and this exception ought
to have been exercised on the facts of the present case.
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18. The above discussion leads this Court to come to a conclusion that the
impugned proceedings of the second respondent dated 24.08.2021 requires the
interference of this Court. Accordingly, the proceedings are hereby quashed. In view
of the same, there shall be a direction to the second respondent to permit the
petitioner to take the Practical Examination for DNB Course, December 2020. It is
made clear that the order passed in the present writ petition cannot be taken as a
precedent for all the cases that may arise in future and this Court took into
consideration the extraordinary circumstances faced by the petitioner and this order is
confined to the peculiar facts and circumstances of the present case.
19. In the result, this writ petition is allowed with the above directions. No
costs. Consequently, connected miscellaneous petition is closed.
30.09.2021
Index : Yes
Internet : Yes
KST
Note : Issue order copy on Monday (04.10.2021)
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W.P.No.19791of 2021
To
1.The Secretary to Government,
Ministry of Health and Family Welfare
Government of India, New Delhi.
2.The Assistant Director
National Board of Examinations in Medical
Sciences (An Autonomous Body under the
Ministry of Health and Family Welfare)
Mahatma Gandhi Marg
(Ring Road), Ansari Nagar
New Delhi – 110 029.
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N.ANAND VENKATESH, J.
kst
W.P.No.19791 of 2021
30.09.2021
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