Karnataka High Court
National Board Of Examinations vs Dr Sajad Ahmed on 10 April, 2013
Bench: K.L.Manjunath, Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10th DAY OF APRIL, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT APPEAL NO.3361/2012(EDN-RES)
BETWEEN
1 NATIONAL BOARD OF EXAMINATIONS
(MINISTRY OF HEALTH & FAMILY WELFARE,
GOVT OF INDIA)
BY ITS DEPUTY DIRECTOR (MEDICAL)
NAMS BUILDING,
MAHATMA GANDHI MARG ( RING ROAD)
ANSARI NAGAR, NEW DELHI
... APPELLANT
(By Sri: SANDESH J CHOUTA, ADV. )
AND :
1 DR SAJAD AHMED
S/O GHULAM NABI KATHROO
AGED MAJOR
PRESENTLY RESIDING AT NO. 55, S1,
BHEL OFFICERS LAYOUT,
BANNERGHATTA ROAD, JAYANAGAR,
BANGALORE-41
2 SAGAR HOSPITAL
NO. 44/54, 30TH CROSS,
TILAK NAGAR, JAYANAGAR EXTENSION
BANGALORE-41
REPRESENTED BY ITS
MEDICAL DIRECTOR.
... RESPONDENTS
2
(By Sri : S BASAVARAJ FOR R1;
SRI.K.R.ASHOK KUMAR FOR R2 )
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION 27682/11 DATED 26/3/12
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, MANJUNATH J, DELIVERED THE FOLLOWING:
JUDGMENT
The legality and correctness of the order passed in W.P.NO. 27682/2011 dt.26.3.2012 is called in question in this appeal.
2. The respondent No.1 was the petitioner before the Learned Single Judge. The Writ petition was filed challenging the cancellation/denial of admission to DNB(Diplomate of National Board) in Radio Diagnosis by the appellant.
3. It is the case of the Writ Petitioner that he had appeared for CET examination conducted by the appellant in December 2009. After securing the qualifying marks in the test, he appeared for the Aptitude Assessment Test and interview conducted by the Sagar Hospital, Bangalore and that he was admitted to DNB course by the 2nd respondent College. The admission of him has not 3 approved by the appellant on the ground that selection of the Writ Petitioner to DNB course in Radio Diagnosis by the 2nd respondent Hospital is in violation of the Guidelines of 2010 issued by the appellant. Therefore, the Writ Petition was filed.
4. The contention of the Hospital before the Learned Single Judge was that the Writ Petitioner was admitted to the course based on 2009 Guidelines, since 2010 guideline have come into force with effect from 1.7.2010 and the same was intimated by the appellant to the concerned Hospitals at the end of August 2010 by that time the Writ Petitioner was admitted to the course.
5. The learned Single Judge after hearing the parties came to the conclusion that the Writ Petitioner having undergone the course for two years cannot be denied admission to the course on account of mistake, if any committed by the hospital in not following the Guidelines of 2010. Accordingly, the Writ Petition was allowed directing the hospital to follow the new admission guidelines in future. This order is called in question by the appellant.
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6. According to Mr. Chouta, the learned counsel for the appellant that very admission of the Writ Petitioner to the course in question is by dubious method by the 2nd respondent - Hospital. According to him, the hospital was required to follow the Guidelines issued by the appellant from time to time. Having failed to adhere to the Guidelines of 2010 issued by the appellant on account of the mistake committed by the Hospital, if the Writ Petitioner has been wrongly admitted to Radio Diagnosis DNB course, the Writ Petitioner or the hospital cannot find fault with the appellant herein. Therefore, he requests the court to allow the appeal and set aside the order passed by the Learned Single Judge.
7. Mr. Basavaraj the learned counsel for the contesting respondent contends that the candidate has not committed any mistake in joining the course. According to him, the Writ petitioner had appeared for CET examination conducted by the appellant in December 2009 and as on that day 2010 Guidelines were not issued because examination was conducted in December 2009 and much prior to the issuance of Guidelines by the appellant, the Writ petitioner was admitted to the course and it was not 5 within his knowledge that there was a failure on the part of the College in not following the Guidelines. He alternatively contends if there is a delay and latches in intimating the College about the new Guidelines issued by the appellant, Hospital cannot be blamed for admission of the students based on 2009 guidelines.
8. He further contends that even according to the appellant there is a violation of the Guidelines issued by the appellant of the hospital and no action has been taken by the appellant against the concerned Hospital. But the admission to the contesting respondent has been denied for no fault of him. According to him, petitioner has completed the course and he has to take examination which would be conducted by the appellant. He further contends that in a similar circumstances the Bombay High Court had an occasion to consider a similar case which has been ended in favour of the students. The appellant - Board had taken up the matter to the Hon. Supreme Court and Supreme Court considering the equity and that the future of the students would be affected for no fault of them, has dismissed the Special Leave Petition filed by the appellant. He further submits that transfer petitions were 6 also filed by the appellant to transfer the present appeal and connected appeals to the Hon. Supreme Court on the ground that similar question was pending consideration before the Hon. Supreme Court in regard to the students of Bombay. In view of the dismissal of the Special Leave Petition filed by the appellant - Board, by the Apex Court, the transfer petition filed by the appellant - Board have also been dismissed as having become infructuous. Therefore he contends that considering the equity, as the contesting respondent after completion of MBBS and having undergone 3 years training in the Hospital concerned, if he is not allowed to take Final Examination of DNB in Radio Diagnosis, he would be put to great hardship and his future will be in doldrums. Therefore he requests the court to dismiss the appeal.
9. Having heard the counsel for the parties, the facts narrated above and grounds urged by the learned counsel for the parties are not in dispute. Admittedly, CET examination was conducted by the appellant in December 2009. The contesting respondent had passed in the CET examination. He has been admitted to the DNB Course by the Hospital following 2009 Guidelines and the admission 7 of such students cannot be denied by the appellant - Board solely on the ground that the Hospital has not followed the Guidelines of 2010 because CET examination was conducted as per the Guidelines of 2009 and if a student had already been admitted to DNB course much prior to the intimation sent to the College by the appellant in regard to 2010 Guidelines, we cannot find fault with the student who has been admitted to the course. As rightly pointed out by Mr. Basavaraj, if the Hospital has committed any mistake in not following the Guidelines of the appellant Board, it was for the appellant - Board to cancel the permission granted to the hospital to run the DNB course. For no fault of a student, a student cannot be made to suffer. Now the admission is concerning of the year 2010. The course of DNB is 3 years and the academic year would come to an end by May 2013. Therefore, we are of the view that at this length of time, if we deny the admission to a student after completion of 3 years academic carrier, irreparable loss would be caused to the student which cannot be compensated in terms of money. Therefore considering that no fraud or misrepresentation is played by the student in securing the 8 admission, we cannot find fault with the order of the learned Single Judge.
10. Accordingly, the appeal is dismissed. A direction is issued to the appellant to see that respondent- student shall be permitted to take examination by allowing him to complete all formalities.
Sd/-
JUDGE Sd/-
JUDGE Ak