Delhi High Court
Association Of Md Physicians vs National Board Of Examination & Ors. on 23 May, 2022
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.05.2022
Date of decision:23.05.2022
+ LPA 193/2021
ASSOCIATION OF MD PHYSICIANS ..... Appellant
Through: Mr. Adit S. Pujari, Mr. Chaitanya
Sundriyal and Ms. Kajal Dalal,
Advocates.
versus
NATIONAL BOARD OF EXAMINATION & ORS.
..... Respondents
Through: Mr. Kirtiman Singh, Mr. Waize
Ali Noor, Ms. Srirupa Nag and
Ms. Kunjala Bhardwaj, Advocates
for respondent No.1/ NBE.
Mr. Rakesh Kumar, CGSC with
Mr. Sunil, Advocate for
respondent No.2/ UOI.
Mr. T. Singhdev and Mr. Abhijit
Chakravarty, Advocates for
respondent No. 3(NMC).
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J.
C.M. No. 19188/2021
Exemption allowed, subject to all just exceptions. The application stands disposed of.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 1 of 18 LPA 193/20211. This appeal has been filed challenging the judgment dated 11.06.2021 passed by the learned Single Judge in W.P. (C) 5908 of 2021, titled Association of MD Physicians vs. National Board of Examination & Ors., dismissing the writ petition filed by the appellant herein with cost of Rs.25,000/- (Rupees Twenty-Five Thousand only). The learned counsel for the appellant submits that the present appeal has been filed confining the challenge thereto only to the finding of the learned Single Judge that the appellant has "indulged in forum shopping" as well as the imposition of cost of Rs.25,000/- on it.
2. The appellant had filed the above writ petition seeking the following reliefs:-
"a) Issue an Appropriate Writ, Order or Direction, in the nature of a Writ of Mandamus, under Article 226 of the Constitution setting aside the time schedule for conduct of the June 2021 FMGE as contained in the Notice dated 15.04.2021 and the Information Bulletin dated 16.04.2021, titled „Foreign Medical Graduate Exam Screening Test Information Bulletin December 2020 Session," published by the NBE/ Respondent No. 01 and all consequences thereof;
b) Issue an appropriate Writ, Order or Direction, in the nature of a Writ of Mandamus, under Article 226 of the Constitution of India, directing the Respondent No.1 to conduct the examination at a time conducive for such examination, but no earlier than six (6) weeks from the date when the examination was originally scheduled."
3. Before filing the above petition, the appellant had filed a writ petition, titled Association of MD Physicians & Ors. vs. Union of India Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 2 of 18 & Anr., W.P. (C) 585 of 2021 before the Supreme Court, inter alia, praying for the following reliefs:-
"MAIN PRAYER:
a) Issue an appropriate writ, order or direction directing the Respondents to exempt Foreign Medical Graduates (who have obtained their primary medical qualification from outside India) from qualifying the Foreign Medical Examination as a one-time measure for being inducted as Doctors to aid the COVID-19 workforce of healthcare professionals; or in the alternative
b) Issue an appropriate writ, order or direction to ensure that the Respondents take adequate measures to ensure that the medical and monetary benefits like an insurance cover and stipend be granted to such Foreign Medical Graduates who are inducted in the workforce during the Covid 19 pandemic, at par with the Indian Medical Graduates;
c) Issue an appropriate writ, order or direction to the Respondents to reduce the qualifying criteria for those Foreign Medical Graduates that took the Foreign Medical Graduate Examination on 4th December 2020 to bring such qualifying criteria at par with that of the NEET PG Examination 2020;
d) Issue an appropriate writ, order or direction to the Respondents to reduce the qualifying criteria for those Foreign Medical Graduates that will take the Foreign Medical Graduate Examination in June 2021 to bring such qualifying criteria at par with that of the NEET PG Examination 2020;
e) Issue an appropriate writ, order or direction to expedite the process and formalities for all the Foreign Medical Graduates who are awaiting the commencement of their 12 month Compulsory Rotational Internships in India after clearing the Foreign Medical Graduate Examination, and to treat their induction in the COVID-19 workforce as part of such Compulsory Rotational Internship;
f) Issue an appropriate writ, order or direction to expedite the State Medical Council Registration Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 3 of 18 and other formalities for all the Foreign Medical Graduates who have completed their 12 month Compulsory Rotational Internships in India after clearing the Foreign Medical Graduate Examination;
g) Issue an appropriate writ, order or direction to expedite the process and formalities for all the Foreign Medical Graduates who are awaiting the commencement of their 12 month Compulsory Rotational Internships in India after clearing the Foreign Medical Graduate Examination;
h) Alternatively, Issue an appropriate writ, order or direction suspending the requirement of qualifying the Foreign Medical Graduate Examination for all Foreign Medical Graduates during the Covid 19 pandemic;
PRAYER FOR INTERIM RELIEF:
a) Direct the Union of India/ Respondent No. 01to direct all states to immediately induct all the Foreign Medical Graduates within their jurisdiction into the COVID-19 healthcare workforce, and to provide facilities to such graduates at par with that provided to MBBS graduates with commensurate experience from India who are a part of the workforce;"
(Emphasis supplied)
4. The appellant had also filed an application being I.A. No. 61956 of 2021 in SMW Petition (C) No. 03 of 2021, titled „In re: Distribution of Essential Supplies and Services During Pandemic' before the Supreme Court, inter alia, making the following prayers:-
"a) Allow the present application and direct the Respondents to exempt Foreign Medical Graduates (who have obtained their primary medical qualification from outside India) from qualifying the Foreign Medical Examination as a one-time measure for being inducted as Doctors to aid the COVID-19 workforce of healthcare professionals; or in the alternative
b) Issue an appropriate order or direction to the Respondents to take adequate measures to ensure Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 4 of 18 that the medical and monetary benefits like an insurance cover and stipend be granted to such Foreign Medical Graduates who are inducted in the workforce during the Covid 19 pandemic, at par with the Indian Medical Graduates;
c) Issue an appropriate order or direction to the Respondents to reduce the qualifying criteria for those Foreign Medical Graduates that took the Foreign Medical Graduate Examination on 4th December 2020 to bring such qualifying criteria at par with that of the NEET PG Examination 2020;
d) Issue an appropriate order or direction to the Respondents to reduce the qualifying criteria for those Foreign Medical Graduates that will take the Foreign Medical Graduate Examination in June 2021 to bring such qualifying criteria at par with that of the NEET PG Examination 2020;
e) Issue an appropriate order or direction to expedite the process and formalities for all the Foreign Medical Graduates who are awaiting the commencement of their 12 month Compulsory Rotational Internships in India after clearing the Foreign Medical Graduate Examination, and to treat their induction in the COVID-19 workforce as part of such Compulsory Rotational Internship;
f) Issue an appropriate order or direction to expedite the State Medical Council Registration and other formalities for all the Foreign Medical Graduates who have completed their 12 month Compulsory Rotational Internships in India after clearing the Foreign Medical Graduate Examination;
g) Issue an appropriate order or direction to expedite the process and formalities for all the Foreign Medical Graduates who are awaiting the commencement of their 12 month Compulsory Rotational Internships in India after clearing the Foreign Medical Graduate Examination;
h) Alternatively, Issue an order or direction suspending the requirement of qualifying the Foreign Medical Graduate Examination for all Foreign Medical Graduates during the Covid 19 pandemic;"Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 5 of 18
5. The abovementioned writ petition, that is, W.P.(C) 585 of 2021, was listed before the Supreme Court on 01.06.2021, and was adjourned to 15.06.2021. Immediately thereafter, the appellant filed the writ petition in question, being W.P.(C) 5908 of 2021 before this Court, which was listed before the learned Single Judge on 09.06.2021. In the present writ petition, in relation to the writ petition and the application filed in the suo-motu writ petition before the Supreme Court were concerned, the following disclosure was made by the appellant:-
"j. On 12.05.2021 in the wake of Covid-19 pandemic, the Petitioner along with other Associations approached the Hon‟ble Supreme Court of India by way of W.P. (C) 585 of 2021 seeking, among other reliefs, a writ of Mandamus for induction of Foreign Medical Graduates into the healthcare workforce to augment the ailing healthcare system of country. The said Writ petition is pending adjudication before the Hon‟ble Supreme Court and is next listed on 11.06.2021.
k. Similarly, on 12.05.2021 the Petitioner filed an intervention application bearing I.A. No. 61956 of 2021 titled „Association of MD Physicians & Ors vs Union of India & Anr.‟, and an application seeking directions in SMW Petition (C) No. 3 of 2021 titled „In Re: Distribution of Essential Supplies and Services during the pandemic‟ seeking induction of members of the Petitioner Association into the healthcare workforce of the country."
6. The W.P. (C) 5908 of 2021 was listed before the learned Single Judge on 09.06.2021, and was adjourned to 11.06.2021 for the respondent no. 1 to place on record the documents with regard to the decision taken by it to hold the examination, that is, the Foreign Medical Graduate Examination (in short, „FMGE‟) on the scheduled date, Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 6 of 18 including the steps taken to demonstrate preparedness and precautions with regard to conduct of an examination during the COVID-19 pandemic.
7. On 10.06.2021, the appellant filed an application before the learned Single Judge, inter alia, praying for the following relief:-
"a. Direct ad interim stay of the schedule of conduct of the Foreign Medical Graduate Examination-2021 proposed to be conducted on 18.06.2021 as contained in the Notice dated 15.04.2021 and the Information Bulletin „FMGE Screening Test Information Bulletin - June 2021 Session‟ issued on 16.04.2021, pending outcome of the subject Writ Petition;"
8. In the said application, the following disclosure was made by the appellant with regard to the writ petition filed by it before the Supreme Court:-
"k. The issue of persons being a part of the COVID workforce, as the Applicants so desire, is already pending before the Hon‟ble Supreme Court, in a Writ Petition filed by the Petitioner Association itself, being WP (C) No. 585/2021, which is also listed for hearing on 11.06.2021. The Petitioner Association has been continuously making representations to the Respondents that its members be allowed to be a part of the Covid-19 workforce, and that some states such as Karnataka and Gujarat have permitted their involvement irrespective of clearing the NBE."
9. The writ petition before the learned Single Judge came up for hearing on 11.06.2021. The learned Single Judge has dismissed the writ petition, inter alia, making the following observations:-
"17. I have carefully considered the submissions of the parties. I find substance in the submission of the respondents that the petitioner Association has not been honest Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 7 of 18 in its disclosure in the present petition with regard to the petition filed by it before the Supreme Court. In light of the prayers made before the Supreme Court in W.P.(C) No.585/2021, the petitioner Association should have clearly disclosed in the present petition the reliefs sought before the Supreme Court. In fact, a copy of the petition filed before the Supreme Court ought to have been placed before this Court. In paragraph 6 (a) referred to above, the petitioner has only made a vague and evasive reference to reliefs sought before the Supreme Court. A reading of the prayers made before the Supreme Court, clearly brings out that the petitioner had sought exemption/suspension from the requirement of qualifying the FMGE- June, 2021 during the COVID-19 pandemic, which essentially amounts to the relief sought in the present petition of postponing the said Examination. Having not succeeded in getting any interim relief before the Supreme Court on 1st June, 2021, the present petition was filed before this Court on 6th June, 2021. On a query from the Court to the counsel for the petitioner Association whether, this fact that prayers (a) and (h) were not pressed before the Supreme Court, has been mentioned in the present petition, the answer is in the negative. It is trite that the petitioner approaching a Court under its writ jurisdiction has to come with clean hands. In the present case, I have no doubt in my mind that the petitioner Association did not come clean with regard to the prior petition filed before the Supreme Court and has indulged in forum shopping. Timing of filing of the present petition also leaves one in no doubt that the petitioner Association has indulged in forum shopping and is, therefore not entitled to invoke the equitable writ jurisdiction of this Court under Article 226 of the Constitution of India. In this regard, reference may be made to Udyami Evam Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 8 of 18 Khadi Gramodyog Welfare Sanstha & Anr. vs. State of Uttar Pradesh & Ors., (2008) 1 SCC 560, relevant portions of which are set out below:-
"15. In the said counter- affidavit, it has further been disclosed that after being unsuccessful in their attempt to stall the recovery proceedings against the Samiti, a fictitious welfare Sanstha, namely, Udyami Evam Khadi Gramodyog Welfare Sanstha was started by Appellant. We, therefore, are of the opinion that the attempt on the part of the appellants herein must be termed as "abuse of the process of law".
16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M.P. Khair Industries, (1980) 3 SCC 311 : 1980 SCC (Cri) 688 this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt."
10. It is the above observations by which the appellant is aggrieved and is in challenge before this Court.
11. The learned counsel for the appellant submits that the appellant did not make any prayer before the Supreme Court on 01.06.2021 seeking postponement of the conduct of the FMGE for 2021, as announced in the Notice dated 15.04.2021 and the Information Bulletin dated 16.04.2021.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 9 of 18He submits that on 01.06.2021, before the Supreme Court, when the writ petition of the appellant came up for hearing, no interim relief in relation to the one-time exemption was pleaded or argued on behalf of the appellant. It was clarified that the issue raised before the Supreme Court related only to the induction of the Foreign Medical Graduates in the COVID-19 workforce. He submits that, therefore, there was no overlap between the two petitions-one preferred before the Supreme Court, and the other preferred before the High Court, and adequate disclosure was made in the writ petition filed before the learned Single Judge, in the present writ petition regarding the filing of the writ petition before the Supreme Court.
12. He submits that, in the brief note of submissions filed by the respondent no. 1 before the learned Single Judge, no plea of the appellant having "indulged in forum shopping" was made. It was only in the course of oral submissions, on 11.06.2021, that the learned counsel for the respondent no. 3/National Medical Commission raised such a plea. The learned Single Judge without giving any time to the appellant to file its rejoinder and explain its stand on the said issue, passed the impugned judgment, thereby violating the principles of natural justice.
13. He further submits that the appellant had, in any case, tendered its apology for not having made further disclosure of the writ petition filed by it before the Supreme Court and placing a copy thereof before the learned Single Judge. He submits that, therefore, the observations made by the learned Single Judge were unwarranted.
14. Placing reliance on the judgments of the Supreme Court in Arunima Baruah vs. Union of India, (2007) 6 SCC 120, and Udyami Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 10 of 18 Evam Khadi Gramodyog Welfare Sanstha & Anr. vs. State of Uttar Pradesh & Ors., (2008) 1 SCC 560, he submits that the pendency of the writ petition filed by the appellant before the Supreme Court was, in fact, not a "material fact for determination of the lis raised in the writ petition before the learned Single Judge". The said non-disclosure, even assuming the same to be a non-disclosure, was not intended to seek any benefit behind the back of the respondents.
15. Further, placing reliance on the judgment of the Supreme Court in Union of India & Ors. vs. Cipla Ltd & Anr., (2017) 5 SCC 262, he submits that for attracting the principle of "forum shopping", it must be shown that the litigant has approached the Court for the same relief, having earlier failed to get that relief from another Court. The factual circumstances for the two sets of writ petitions should, therefore, be common. He submits that in the present case, this was not so. While in the writ petition filed before the Supreme Court, the appellant was claiming induction of the Foreign Medical Graduates in the COVID-19 workforce without the requirement of cleaning the FMGE for 2021, in the writ petition filed by the appellant before the High Court, the prayer was that the examination be postponed in the light of the then-prevailing COVID-19 pandemic. He submits that, therefore, the cause of action in the two writ petitions was different, and the appellant could not have been held guilty for "forum shopping". In support of his submission, he places reliance on the judgments of the Supreme Court in Reliance Infrastructure Ltd. vs. State of Maharashtra & Ors., (2019) 3 SCC 352, and Brahma Singh & Ors. vs. Union of India & Ors., (2020) 12 SCC 762. Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 11 of 18
16. On the other hand, the learned counsel for the respondent nos. 1 and 3 respectively submit that the appellant had clearly indulged in suppression of material facts in the present writ petition filed before the learned Single Judge. They submit that even a copy of the writ petition filed by the appellant before the Supreme Court was not placed on record by the appellant before the learned Single Judge. The reference made to the writ petition filed by the appellant before the Supreme Court was also vague, as even the prayers made therein were not properly spelt out in the writ petition filed before the learned Single Judge. They further submit that on 01.06.2021, along with the writ petition filed by the appellant herein, another petition titled Indian Foreign Medical Students (IFMS) Welfare MCI Gurukul Trust vs. Union of India And Anr., W.P.(C) 591 of 2021 was also listed before the Supreme Court. In the said writ petition, a prayer for postponement of the FMGE was made, as in the writ petition filed by the appellant before the learned Single Judge. The said prayer was, however, not granted by the Supreme Court and the petition was adjourned to 15.06.2021. The counsel representing the present writ petitioner, was also representing it before the Supreme Court, and was present before the Supreme Court on 01.06.2021. Despite that being the position, neither appellant, nor its counsel disclosed even this fact before the learned Single Judge on 09.06.2021, when the writ petition filed by the appellant was listed for the first time before the learned Single Judge for hearing. They submit that, therefore, the observations made by the learned Single Judge in the impugned judgment do not deserve any interference by this Court.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 12 of 1817. We have considered the submissions made by the learned counsels for the parties.
18. At the outset, it must be emphasized that for invoking the extraordinary jurisdiction of a writ Court under Article 226 of the Constitution of India, the writ petitioner must disclose full, complete, and correct facts. There should not be any suppression or distortion therein. A writ remedy is an equitable one. A person approaching the High Court under Article 226 of the Constitution of India must, therefore, come with a pair of clean hands. The petitioner should not only suppress any material facts but, should also not have taken repeated/parallel recourse to legal proceedings. (Ref: Udyami Evam Khadi Gramodyog Welfare Sanstha & Anr. vs. State of Uttar Pradesh & Ors. (supra) and Dalip Singh vs. State of Uttar Pradesh, (2010) 2 SCC 114).
19. The appellant, in the writ petition filed before the Supreme Court, had inter alia prayed for grant of exemption from qualifying the FMGE as a one-time measure. This was certainly a "material fact" which ought to have been disclosed in the writ petition filed by the appellant before the High Court praying for the postponement of the FMGE. The submission of the learned counsel for the appellant that, before the Supreme Court on 01.06.2021, the appellant did not plead or argue for interim relief in relation to the forthcoming FMGE examination, is neither here nor there. The first prayer in the writ petition before the Supreme Court was for such exemption. The two petitions preferred by the writ petitioner-one before the Supreme Court, and the other preferred before this High Court related to the same subject-matter viz. the FMGE. In the former, exemption from taking the said exam was sought, whereas Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 13 of 18 in the second, postponement thereof was sought. The appellant could not have maintained two different petitions in respect of the same examination and, that too, one before the Supreme Court, and the other before the High Court. Even the time of filing of the present writ petition before this Court is crucial, and demonstrates the calculative and scheming manner in which the appellant acted.
20. Herein, three additional facts also became relevant against the appellant. These are as follows:-
i) The appellant now admits that alongwith their petition, another petition titled Indian Foreign Medical Students (IFMS) Welfare MCI Gurukul Trust vs. Union of India And Anr. (supra), was also listed before the Supreme Court, wherein a similar prayer of postponement of the examination was made.
The Supreme Court, however, had expressed certain reservations on the grant of such a prayer and adjourned the hearing of the writ petition. This fact was extremely material for the learned Single Judge to be appraised of, to decide on the prayer made by the appellant/petitioner before him. However, the same was concealed. This averment has only now been made in the appeal, and is reproduced hereinbelow:-
"n. On 01.06.2021 when W.P.(C) 585/2021 came to be heard by the Hon‟ble Supreme Court no interim relief in relation to one time exemption, was pleaded or argued on behalf of the Petitioners (including the Appellant herein). Moreover, at the time of arguments, it was clarified that the issues related only to induction Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 14 of 18 of Foreign Medical Graduates in the COVID-19 workforce, and that the Petitioners did not seek any one-time exemption of the exam. Pertinently on the same day, another writ petition W.P.(C) 591/2021 titled Indian Foreign Medical Students (IFMS) Welfare MCI Gurukul Trust vs Union of Indian & Anr. was listed prior to the petition of the Appellant. During the hearing the Petitions in W.P.(C) 591/2021 the Petitioners therein sought for postponement of the FMGE screening test. It was upon hearing such submission that the Hon‟ble Division Bench observed that one does not know where graduates have completed their MBBS degrees from, and it was again clarified by the Petitioners that no exemption to the exam was being sought. A copy of the causelist dated 01.06.2021 of the Hon‟ble Supreme Court of India is annexed herein as ANNEXURE A-5. Pertinently, at the time of such hearing, no representation was made to the Respondents by the Appellant Association as to delaying the conduct of examination."
(Emphasis Supplied)
ii) The appellant, after the first date of hearing before the learned Single Judge held on 09.06.2021, filed another application before the learned Single Judge. Even in this application, the appellant did not choose to make the disclosure of the complete prayers, including prayer (a) made before the Supreme Court in the writ petition filed by them. The only disclosure made was in paragraph 7(k), which has been reproduced hereinabove.
iii) It is only upon the dismissal of the writ petition by the impugned judgment that the appellant became wiser and on 15.06.2021, withdrew the prayer (a) made by it before the Supreme Court which was for the grant of Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 15 of 18 exemption from appearing in the FMGE in June-2021. The subsequent event, however, cannot absolve the appellant of the taint of not having disclosed all the material facts before the learned Single Judge in the writ petition.
21. In Arunima Baruah (supra), the Supreme Court has held that "what would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief." Applying the above test to the facts of the present case, clearly, the appellant had concealed material facts from the Court.
22. In Cipla Ltd & Anr. (supra), the Supreme Court found that the respondent had disclosed filing of the previous petition before the High Court of Karnataka at the time of filing the petition before the High Court of Allahabad and there was no concealment of that fact. The Supreme Court, in fact, concluded that the respondent ought further to have disclosed the filing of the writ petitions in the High Court of Bombay, however, did not take any action on basis of this non-disclosure, observing that "at this stage, we do not think it appropriate to non-suit Cipla only on this ground". In the present case, as noted hereinabove, we are of the opinion that the prayers made by the appellant before the Supreme Court were necessary and material to be disclosed to the learned Single Judge in the writ petition upfront. The concealment of the same was sufficient to non-suit the appellant.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 16 of 1823. In Reliance Infrastructure Ltd. (supra), the Court found that a challenge to the validity of the regulations framed by the Maharashtra Electricity Regulation Commission (in short, „MERC‟) could only lie before the High Court. There was also no suppression of fact on the part of the appellant in the aforementioned case, which had indicated the recourse it had taken in the appeal before the Tribunal. It was on those facts that the Supreme Court found that the High Court had erred in holding the writ petition filed before it to be not maintainable.
24. The above judgments, therefore, in our view, do not come to the aid of the appellant in the facts of the present case.
25. As far as the plea of the learned counsel for the appellant that the appellant was not granted any opportunity to file a rejoinder to the submission of "forum shopping" made by the respondents, we again find no merit. It has not been stated that the appellant did pray for time to file a rejoinder, and the same was denied by the learned Single Judge. Having proceeded with the arguments in the writ petition, the appellant cannot now find fault with the impugned judgment on this ground.
26. At this stage, we may also note the submission of the learned counsel for the appellant that the appellant tenders its apology, in case this Court is of the opinion that the appellant ought to have made a further disclosure in the writ petition. We, however, are of the opinion that this apology is also not genuine, as it is accompanied by the condition that this Court must hold that the finding of the learned Single Judge is otherwise incorrect. The learned counsel for the appellant insists that the finding on the conduct of the appellant being blameworthy must be expunged, and the impugned judgment to that extent be set aside.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 17 of 18Clearly, therefore, the appellant till today was not truly regretting the suppression made by it in the writ petition. The appellant was already before the Supreme Court in relation to the prayer for exemption from appearance in the said examination. The appellant not having secured the exemption, did not approach the Supreme Court for postponement of the very same exam, but preferred the present writ petition. This is nothing short of "forum shopping", as the appellant or, atleast, its counsel was aware that the Supreme Court had not granted the said relief in W.P. (C) 591 of 2021 on 11.06.2021.
27. In view of the above, we find no merit in the present appeal. The same is dismissed with further cost of Rs. 25,000/- to be deposited with the Delhi State Legal Services Authority.
NAVIN CHAWLA, J VIPIN SANGHI, ACJ MAY 23, 2022/rv/AB/DJ Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:24.05.2022 11:25:09 LPA 193/2021 Page 18 of 18