Dr. Gayatri.G.J. v Union of India & NBEMS & State of Kerala & Director of Health Services & Aravind Eye Hospital

**2025:KER:26532** **==> picture [58 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947** ## **WP(C) NO. 8713 OF 2024** ## **PETITIONER:** **DR. GAYATRI.G.J. AGED 33 YEARS S.R. VIEW, PRA – 149, KAMALESWARAM, MANACAUD.P.O. THIRUVANANTHAPURAM, PIN - 695009** **BY ADVS. TONY GEORGE KANNANTHANAM N.MAHESH THOMAS GEORGE BIBIN B. THOMAS** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH & FAMILY WELFARE DEPARTMENT, NEW DELHI – 110001, PIN - 110001** - **2 THE NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES REPRESENTED BY ITS DIRECTOR, MAHATMA GANDHI MARG (RING ROAD), ANSARI NAGAR, NEW DELHI, PIN - 110299** **3 STATE OF KERALA REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** 2025:KER:26532 : 2 : **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 - **4 THE DIRECTOR OF HEALTH SERVICES PALAYAM – AIRPORT ROAD, NEAR GENERAL HOSPITAL ROAD, THIRUVANANTHAPURAM, PIN - 695035** - **5 ARAVIND EYE HOSPITAL S.N.HIGH ROAD, TIRUNELVELI JUNCTION, TAMIL NADU, REPRESENTED BY ITS DIRECTOR, PIN - 627001** **BY ADV SHRI.T.SANJAY, SC, NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES (NBEMS) SRI. PREMCHAND R NAIR, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING:** 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.8713 of 2024 ````````````````````````````````````````````````````````````` _Dated this the 28[th] day of March, 2025_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is a Medical Postgraduate undergoing her DNB Program at the 5[th] respondent-College, seeks to quash Exts.P9 and P11 and to direct the 2[nd] respondent-National Board of Examinations in Medical Sciences (NBEMS) to permit the petitioner to complete the DNB Course which she has been undergoing under the 5[th] respondent-College. 2. The petitioner completed MBBS Course from the Government Medical College, Kalamassery in 2015. The petitioner also completed her Postgraduate Diploma in 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 4 : Ophthalmology in the year 2011 from Sree Gokulam Medical College, Thiruvananthapuram. 3. In the year 2017, the Kerala Public Service Commission (PSC) invited applications for appointment to the post of Assistant Surgeon in the Kerala Medical Services. The petitioner was ranked at Serial No.125 in the PSC ranklist. While so, the National Board of Examinations in Medical Sciences (NBEMS) invited applications for admission to Postgraduate Diploma Courses (DNB). Selection to the DNB Courses is on All India basis. Entrance test for DNB was conducted in September, 2021. The petitioner was selected for DNB (Ophthalmology) Course in February, 2022. The petitioner was to complete the Course by February, 2024. As the petitioner took maternity leave for about five months, her DNB Course stood extended upto August, 2024. 4. In July, 2023, the PSC advised the petitioner for recruitment as Assistant Surgeon as per Ext.P1 advice memo dated 24.07.2023. The petitioner appeared for the 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 5 : counselling and the petitioner was appointed as Assistant Surgeon under the DMO, Kasaragod as per Ext.P4. The petitioner took casual leave for four days from the 5[th] respondent-College and reported for joining at Kasaragod on 04.10.023. The petitioner was allotted to Family Healthcare Centre (FHC), Manakkad. On the very same day, the petitioner was relieved from duty enabling the petitioner to continue in the 5[th] respondent-College for finishing her DNB Program. The petitioner resumed her duty in the 5[th] respondent-College. 5. The petitioner was served with Ext.P7 showcause notice alleging that the petitioner accepted a Government job and availed leave without permission and rejoined the DNB training thereafter. Ext.P7 stated that there is no provision to seek employment while undergoing DNB training. The petitioner states that Ext.P7 is unsustainable as the petitioner had taken leave with permission, in order to join the job. The petitioner submitted Ext.P8 explanation to Ext.P7 notice. The 2[nd] respondent, however, rejected the explanation given by the 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 6 : petitioner and cancelled the petitioner's registration for DNB. Ext.P9 stated that an NBEMS trainee is not permitted “to seek and join” any employment while in training. The DNB training is a full time residency program and taking up Government job is not permitted. 6. The petitioner submitted Ext.P10 representation requesting to reconsider the matter. The request was rejected as per Ext.P11 order. The petitioner states that she has not violated any norms or principles of residency program. She had not deserted the course nor was on long leave. The petitioner did not work even for a day in the Government service. The employment of the petitioner is only notional. Therefore, Exts.P9 and P11 are liable to be quashed. 7. The 2[nd] respondent resisted the writ petition filing counter affidavit. The 2[nd] respondent submitted that DNB training is a full time residency program wherein the trainee and the institute are in an employee-employer relation for which the trainee is paid a stipend by the institution for the services 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 7 : offered. The 2[nd] respondent-NBEMS has no rule that allows a trainee to take up employment while undergoing DNB training. 8. The petitioner informed the National Board that she has got a posting at Kasaragod District through the PSC. The National Board sought clarification from the petitioner. The petitioner sent Ext.R2(c) reply. The petitioner has abandoned the course midway to take up Government employment without obtaining permission from the NBEMS. 9. The Hon’ble Apex Court has held in the judgment in _**Kerala Solvent Extractions Limited v. Unnikrishnan** [(2006) 13 SCC 619]_ that relief by the Court under Article 226 of the Constitution of India should not tend to degenerate into misplaced sympathy, generosity and private benevolence. The 2[nd] respondent further submitted that the writ petition is not maintainable as no part of the cause of action has taken place within the territorial limits of Kerala. The petitioner is not entitled to any relief. The writ petition is therefore liable to be dismissed. 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 8 : 10. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the 2[nd] respondent. I have also heard the learned Senior Government Pleader representing respondents 3 and 4. 11. as regards maintainability of the writ petition, I find that the petitioner's registration for DNB Course stands cancelled for her joining employment in Kasaragod District in Kerala. Part of the cause of action has taken place in Kerala and therefore the writ petition is maintainable. 12. Ext.P2 proceedings dated 14.08.2023 would indicate that the petitioner was advised for appointment to the post of Assistant Surgeon. The petitioner was undergoing the DNB Course when Ext.P2 advice was made. The petitioner took casual leave for four days from the 5[th] respondent-College and joined duty. The petitioner immediately took leave from the Family Health Centre and resumed the DNB training before the expiry of casual leave. 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 9 : 13. Ext.P2 proceedings of the Director of Health Services provides that in case of a candidate pursuing higher studies and willing to seek extension of joining time, their case will be considered as per the Government Orders. Ext.P2 further states that in case of candidates pursuing higher studies and require extension of joining time beyond six months, they should join duty at the posted station and avail leave without allowance further for the requisite period to complete the course in accordance with the provisions laid down in Appendix XIIB Part I KSR. It is therefore evident that the rules of the Government of Kerala permits Government servants to pursue higher studies taking leave without allowance. 14. The counsel for the 2[nd] respondent would, however, submit that the DNB Training is a full time residential program wherein the trainee and the institute are in an employee-employer relation for which the trainee is paid a stipend by the institution for the services offered at the institution while taking training. The 2[nd] respondent-NBMES 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 10 : has no rule that allows a trainee to take up an employment while undergoing DNB training. The petitioner has not taken any permission before joining a job while she is already on the rolls of the institute for a paid training program. 15. It is stated in the counter affidavit filed by the NBEMS that the Board has no rule that allows a trainee to take up an employment while undergoing DNB training. No rule has been brought to the notice of the Court either, prohibiting joining of employment while undergoing DNB training, without causing any hindrance to the DNB Training Program. The contention of the 2[nd] respondent is that the trainee and the institute are in an employee-employer relation for which the trainee is paid a stipend by the institution for the services offered at the institution while taking training. Therefore, the employeeemployer relation being between the trainee and the institute, it is for the institute to grant or decline permission to the petitioner to join a Government employment during the period of training. 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 11 : 16. The pleadings in the counter affidavit would indicate that the 5[th] respondent-College has no serious objection in allowing the petitioner to join the Kerala Medical Service, without causing any interruption to the Training Program. The petitioner has taken long leave from the Kerala Medical Service in order to complete the DNB training. Knowing that the petitioner is joining the Kerala Medical Service, the 5[th] respondent has granted casual leave to the petitioner to join the Kerala Medical Service. 17. Rules and Regulations are made for regulating governance and social behaviour. One should look at the purpose of the rules while implementing/executing the same. In this case, the Government of Kerala, Department of Health Sciences has framed Rules enabling Government servants joining duty to take long leave for pursuing higher education. It is as per the provisions of Appendix XIIB Part I KSR that the petitioner has been granted leave by the Government of Kerala to pursue higher education. As long as there is no express 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** W.P.(C) No.8713/2024 : 12 : prohibition for taking up such employment without affecting the quality of DNB training, there is no reason why the petitioner's training should be terminated prematurely. The 2[nd] respondent should take an informed decision in the matter, taking note of the Rules of the Government of Kerala as also the willingness of the 5[th] respondent-College. In the circumstances of the case, the writ petition is disposed of directing that if the petitioner makes an application for _ex post facto_ sanction to join Kerala Medical Service along with a consent / No Objection Certificate of the 5[th] respondent -College, within a period of two weeks, the 2[nd] respondent shall consider the same and take appropriate decision thereon, taking note of the observations made hereinabove, within a further period of two weeks. Sd/- **N. NAGARESH, JUDGE** aks/26.03.2025 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** ## W.P.(C) No.8713/2024 : 13 : ## **APPENDIX OF WP(C) 8713/2024** ## **PETITIONER'S EXHIBITS** **Exhibit-P1 TRUE COPY OF THE ADVICE MEMO NO.RIE (3)12257/13/GW DATED 24-7-2023** **Exhibit-P2 TRUE COPY OF THE ORDER NO.DHS/15655/2023- EA3 DATED 14-8-2023** **Exhibit-P3 TRUE COPY OF THE ORDER NO.EA315655/2023/DHS DATED 7-9-2023** - **Exhibit-P4 COPY OF THE ORDER NO.EA3-15655/2023/DHS DATED 27-9-2023** - **Exhibit-P5 TRUE COPY OF THE ORDER NO.DMOHKSD/23/2023-A1 DATED 4-10-2023 BY THE DMO KASARGOD** - **Exhibit-P6 TRUE COPY OF THE ORDER NO. 308/2023 DATED 4-10-2023 OF THE MEDICAL OFFICER, PHARMACY HEALTH CENTRE, MOUCODE.** - **Exhibit-P7 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 6-1-2024 BY THE PETITIONER** - **Exhibit -P8** - **TRUE COPY OF THE DRAFT EXPLANATION, DATED NIL. BY THE PETITIONER** - **Exhibit-P9** **TRTUE COPY OF THE ORDER NO.NBEMS/ DOTM/C&R/31007/12101543/2122101414 DATED 30-1-2024** **Exhibit -P10** **TRUE COPY OF THE REPRESENTATION DATED NIL. SUBMITTED BY THE PETITIONER** **Exhibit-P11** **TRUE COPY OF THE ORDER NO.NBEMS/ DOTM/C&R/23101543/ 2122101414/43845 DATED 1-3-2024** 2025:KER:26532 **==> picture [58 x 57] intentionally omitted <==** ## W.P.(C) No.8713/2024 : 14 : ## **RESPONDENT'S EXHIBITS** **Exhibit R2 (b) Communication webportal of NBE10.10.2023 Exhibit R2 (d) Reply to show cause issued.06.01.2024 Exhibit R2 (c) Re seeking clarification-05.11.2023 Exhibit R2 (e) Reply for board-07.012024 Exhibit R2 (a) Communication webportal of NBE3.10.2023**