Dr. Arun B.R. v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WP(C).NO. 16866 OF 2013 (G)** **----------------------------** **PETITIONER(S): -----------------------** **DR.ARUN. B.R., LEKSHMI BHAVAN, ALUMMOOD P.O, MUKHATHALA, KOLLAM, KERALA, DNB TRAINEE (NUCLEAR MEDICINE), SUDHAMAYI HOSPITALS & CLINICS, AMRITA LANE, ELAMAKKARA P.O., KOCHI 26.** **BY SRI.T.A.SHAJI, SENIOR ADVOCATE. ADV. SRI.S.MANU.** **RESPONDENT(S):** **----------------------------** ## **1. UNION OF INDIA,** **REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI- 110 001.** **2. THE NATIONAL BOARD OF EXAMINATIONS, (MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA), MAHATMA GANDHI MARG (RING ROAD), ANSARI NAGAR, NEW DELHI- 110 029, REPRESENTED BY ITS DIRECTOR.** ## **3. THE DIRECTOR,** **NATIONAL BOARD OF EXAMINATIONS, (MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA), MAHATMA GANDHI MARG (RING ROAD), ANSARI NAGAR, NEW DELHI -110 029.** **R1 BY ADV. SRI.P.PARAMESWARAN NAIR, ASST. S.G. OF INDIA. R2 & R3 BY ADVS. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN, SMT.T.J.SEEMA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2014, THE COURT ON 15/07/2014 DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).NO. 16866 OF 2013 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT GRANTING REGISTRATION TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE BOND DATED 07-11-2011.** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 05-06-2013.** - **EXHIBIT P4 TRUE COPY OF THE POSTAL RECEIPT PROVING SENDING OF EXT P3.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE POSTAL RECEIPT PROVING SENDING OF EXT P5.** - **EXHIBIT P7 COPY OF THE POSTAL RECEIPTS.** - **EXHIBIT P8 COPY OF THE POSTAL TRACKING REPORT.** - **EXHIBIT P9 COPY OF THE POSTAL TRACKING REPORT.** - **EXHIBIT P10 COPY OF THE RELEVANT EXTRACT OF EXAMINATION BULLETIN OF JUNE 2013.** - **EXHIBIT P11 COPY OF THE RELEVANT EXTRACT OF BULLETIN OF DECEMBER 2013.** - **EXHIBITP12 COPY OF THE BULLETING FOR THE EXAMINATION IN JUNE 2014.** - **EXHIBIT P13 COPY OF THE RELEVANT EXTRACT OF EXAMINATION BULLETIN OF JUNE 2013.** - **EXHIBIT P14 COPY OF THE RELEVANT EXTRACT OF EXAMINATION BULLETIN OF JANUARY 2013.** ## **RESPONDENT'S EXHIBITS & ANNEXURES:-** **EXT.R2A COPY OF THE LETTER ISSUED BY THE NATIONAL BOARD OF EXAMINATION TO THE REGISTRAR, HIGH COURT OF KERALA DATED 31/03/2014.** **.......2/-** ## **WP(C).NO. 16866 OF 2013 (G)** **EXT.R2B COPY OF THE INFORMATION BULLETIN FOR SESSION JUNE, 2011.** **ANNEXURE I COPY OF THE POSTAL RECEIPTS.** **ANNEXURE II COPY OF THE POSTAL TRACKING REPORT.** - **ANNEXURE III COPY OF THE POSTAL TRACKING REPORT.** **ANNEXURE IV COPY OF THE RELEVANT EXTRACT OF EXAMINATION BULLETIN OF JUNE 2013.** **ANNEXURE V COPY OF THE RELEVANT EXTRACT OF EXAMINATION BULLETIN OF DECEMBER 2013.** - **ANNEXURE VI COPY OF THE RELEVANT EXTRACT OF EXAMINATION BULLETIN OF JUNE 2013.** **ANNEXURE VII COPY OF THE RELEVANT EXTRACT OF THE ADMISSION BULLETIN OF JANUARY 2013.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.16866 of 2013 ---------------------------------------Dated this the 15[th] day of July 2014 ## **J U D G M E N T** This writ petition is filed by a candidate, who is a medical post graduate student pursuing Diplomate of National Board (DNB) course in Nuclear Medicine. He seeks for a direction to the respondents to conduct examinations for the students of DNB course in Nuclear Medicine along with the students of all other disciplines twice every year and for a further direction to complete the course of the petitioner including examinations and publication of results within a period of three years from July 2011. 2. The facts involved in the above case would disclose that the petitioner got admitted and registered with the 2[nd] respondent for the DNB course in Nuclear Medicine in July 2011. The course is for a period of three years. Examinations are only for the final year which is normally conducted twice in a year. It is the contention of the W.P.C.No.16866/2013 2 petitioner that final year examinations for DNB trainees of all disciplines are being conducted every year in the month of June and December except with reference to Nuclear Medicine, for which examination is conducted only in December. Thereafter, the results are announced only in February and the practical examinations will be held subsequently. Final result will be announced only in April or May. According to the petitioner, his course will be over by July 2014 and his joining time in Government service is extended upto 31/07/2014. Since the practice adopted by the 2[nd] respondent is to conduct examination only in December 2014, it is possible that the result will be announced only by April or May 2015. Such delay will cause prejudice to the career prospects of the petitioner and therefore he seeks the direction, as sought for. Though representations were submitted to conduct an examination in June 2014 and to publish the results thereafter, no action has been taken in the matter by the 2[nd] respondent and W.P.C.No.16866/2013 3 hence this writ petition is filed. 3. Counter affidavit is filed by respondents 2 and 3. It is inter alia contended that an interim order dated 09/01/2014 came to be passed by this Court when there was appearance on their behalf by the Assistant Solicitor General, without proper authorisation in that behalf. That apart, it is contended that the matter is covered by the judgment of the Supreme Court in **National Board of Examinations v. G.Anand Rammurthy** _[2006(5) SCC 515]_ . It is further contended that no cause of action has accrued in favour of the petitioner within the territorial jurisdiction of this Court as no part of the cause of action has arisen within the jurisdiction of this Court. It is stated that in respect of Nuclear Medicine Discipline examination for all the candidates including the petitioner are scheduled to be held in December every year. The time for conducting the examination, according to them, is a policy decision which has been uniformly applied without any exceptions. The W.P.C.No.16866/2013 4 examinations being conducted in the month of June relate only to 27 disciplines of which there were more than 100 candidates per discipline. In cases where there are only less than 100 candidates, examination is held only in the month of December. 4. They refer to the Bulletin of Information for the Session December 2011 which indicates that instructions in the booklet are liable to changes based on decisions taken by the Board from time to time and the candidates are requested to refer to the latest bulletin or corrigendum that may be issued to incorporate such changes. Reference is also made to Clause 2.3 of the Bulletin of Information which indicated that the examinations are held only as per the schedule of examination prescribed by the Board from time to time. Further in Clause 2.14 it is indicated that NBE reserves its absolute rights to alter the examinations schedule, pattern, policy etc. and the candidate shall have no right whatsoever for claiming/deriving any right from past W.P.C.No.16866/2013 5 or present schedule, policy and guidelines of NBE. It is therefore contended that those candidates who complete their training in June 2014 becomes eligible to appear in the examination for December 2014. 5. The learned Senior Counsel for the petitioner relied upon Ext.P1 dated 28/04/2012 which is a communication issued to the petitioner confirming the registration of the petitioner as DNB trainee in Nuclear Medicine Specialty for July 2011 Admission Session. It is inter alia indicated that the date of provisional registration is 28/07/2011 and duration of training is 3 years. Paragraph 9 indicates that thesis submission and its acceptance is a mandatory requirement for providing DNB degree certificate. The thesis has to be submitted within the prescribed time limit. Further it is stated that the thesis has to be submitted before 30[th] June of the same year for candidates appearing for their scheduled December final theory examination. In respect of candidates who shall be W.P.C.No.16866/2013 6 appearing in their scheduled June DNB final examination shall be required to submit their thesis by 31[st] December of the preceding year. 6. Learned Senior Counsel also relied upon Ext.P11, the Information Bulletin for DNB Final Examination for June 2014. It is indicated in the column provided for important dates, the candidates who have appeared for DNB final examination (Theory) held in December 2013 and declared ‘FAIL’ can submit their application for DNB final examination June 2014 session. It is therefore contended that when admittedly DNB examinations are to be conducted twice in a year, it is possible for the petitioner to be permitted to write the examination if it is conducted in June 2014. 7. It is also contended that the candidates who are completing DNB training by 30[th] June 2014 are permitted to appear for the final examination conducted in December 2013 as evident from Exts.P9 and P10. On the other hand, the Learned counsel for respondents 2 and 3 submits that as W.P.C.No.16866/2013 7 far as the petitioner is concerned, the course will be over only after three years from July 2011 and therefore he cannot be permitted to write the examination prior to the completion of the course. That apart, being a policy decision, it shall be open for the respondents to fix the date of examination which cannot be interfered by this Court. 8. Reference is also made to the judgment of the Supreme Court in **Anand Rammurthy’** s case (supra) wherein it is held that all candidates will be made aware that the instructions contained in the Information Bulletin including the examination schedule were liable to changes based on the decision taken by the Board from time to time. When the Bulletin, in no uncertain terms, indicated that the instructions contained therein including the schedule of examinations were liable to changes based on the decision taken by the governing body from time to time, there is no embargo on the same to change the examination schedule. That was a case in which the contention of the NBE was that W.P.C.No.16866/2013 8 those candidates who are completing three years training only by 30/06/2006 cannot become eligible or qualified to appear for the examination conducted in June 2006. Reference was made in that case to Bulletin of information in June 2006. According to the learned counsel for the petitioner, a similar situation has arisen in this case. The examination is scheduled only in December 2014 and therefore the petitioner has no right to demand that an examination should be conducted in June 2014. 9. Having regard to the aforesaid pleadings, the question to be considered is whether the petitioner is entitled for any relief, as prayed for. As far as the contention regarding territorial jurisdiction is concerned, in so far as NBE is conducting examinations on an All India basis, part of the cause of action arises within the jurisdiction of this Court. Hence such an issue is not germane for consideration. W.P.C.No.16866/2013 9 10. It is clear from the judgment of the Supreme Court in **Anand Rammurthy** ’s case (supra) that the Information Bulletin issued by the NBE for various examinations is based on the schedule prepared by them each year. It is primarily indicated that the final schedule for each specialty may vary. Though it is argued by the petitioner that candidates who complete their course by three years are permitted to write the examinations during the previous year itself, no such provision is available in the Bulletin. That apart, when the agency, which conducts the course, fixes a schedule for examination, a candidate who had agreed to abide by the said schedule cannot challenge the schedule of such examination. Respondents 2 and 3 had categorically indicated that normally examinations are conducted twice in a year. In respect of disciplines where there are more than 100 candidates, examinations are conducted in June and December of the respective years. In respect of disciplines which have less than 100 candidates, examination is W.P.C.No.16866/2013 10 conducted only in December. The manner in which examination is to be conducted is purely a policy decision of the 2[nd] respondent which cannot be interfered by this Court. There is no material to indicate that respondents 2 ad 3 had categorically agreed to conduct an examination for the petitioner and similarly placed persons in June 2014. As contended by the learned counsel for respondents 2 and 3, the petitioner joined for the Session in July 2013 and he completes the course only in July 2014. Even assuming that he becomes eligible to write the examination as contended by the learned counsel for the petitioner in June 2014, as long as examinations are not conducted by respondents 2 and 3 in June 2014 for the Nuclear Medicine discipline, it is not possible for this Court to issue the directions, as sought for in this writ petition. That apart, in **Anand Rammurthy** 's case (supra), the Supreme Court had held that there could be no embargo in NBE bonafidely changing the examination schedule when it had categorically reserved its W.P.C.No.16866/2013 11 right to do so and completion of three years training is a necessary concomitant for appearing in the DNB final examination. 11. The learned Assistant Solicitor General points out that the counter affidavit filed by respondents 2 and 3 contains a blatantly false statement, denying the fact that the learned ASGI was not authorised to appear on behalf of respondents 2 and 3. ASGI, admittedly, is entitled to appear on behalf of the 1[st] respondent Union of India and it is possible that instructions were given to appear on behalf of other respondents also. Under normal circumstances, ASGI will not propose appearance unless specifically directed. Even assuming that there is a misunderstanding in the matter, there is no reason for respondents 2 and 3 to have made such unwarranted statements in their affidavit by way of preliminary objections in paragraphs 1 and 2. Presumably, such allegations are raised only to cover up their failure to comply with the interim directions issued by W.P.C.No.16866/2013 12 this Court. Since respondents 2 and 3 have filed counter affidavit and also an application I.A.No.6079 of 2014 to vacate the interim order on 19/04/2014, having found that the directions, as prayed for, cannot be issued, the interim order dated 09/01/2014 in I.A.No.14642 of 2013 is hereby vacated. Virtually, the examination was not scheduled to be conducted in June 2014. Hence it was not possible for respondents 2 and 3 to conduct the examination in June 2014 and their obligation is only to conduct the examination as per the schedule fixed by them. In the result, the writ petition fails and is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr