Karnataka High Court
Dr L.A. Meena vs National Board Of Examinations on 10 August, 2017
Author: L.Narayana Swamy
Bench: L Narayana Swamy
1
THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE L NARAYANA SWAMY
WP No.8787 OF 2013 (EDN - RES)
BETWEEN
DR L.A. MEENA
AGED ABOUT 29 YEARS
W/O DR B PRAKASH
R/A SRI SHARADA NILAYA
NO.159/B, LAGGERE MAIN ROAD
LAGGERE LAST STOP, PEENYA POST
BANGALORE - 560058. .. PETITIONER
(By Sri GOWTHAMDEV C ULLAL, ADVOCATE)
AND
1. NATIONAL BOARD OF EXAMINATIONS
MEDICAL ENCLAVE, ANSARI NAGAR
MAHATMA MAR, NEW DELHI-110 029
REP BY ITS DIRECTOR
2. NATIONAL BOARD OF EXAMINATIONS
THE ASSISTANT DIRECTOR & CPIO
ANSARI NAGAR, MEDICAL ENCLAVE
MAHATMA MARG, NEW DELHI - 110 029
3. MEDICAL DIRECTOR
SAGAR HOSPITALS
NO.44/54, 30TH CROSS
TILAK NAGAR
BANNERGHATTA ROAD
BANGALORE - 560 041
2
4. DIRECTOR (ACADEMIC STUDIES)
SAGAR HOSPITALS, NO.44/54,
30TH CROSS, TILAK NAGAR
BANNERGHATTA ROAD
BANGALORE - 560 041. .. RESPONDENTS
(By SRI SANDESH J CHOUTA, ADVOCATE FOR R1 & 2,
SRI S V JOGA RAO & SMT.S RADHA PUJARI,
ADVOCATE FOR R3 AND R4)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 18.12.12
ISSUED BY THE R2 TO THE R4 VIDE ANNX-M AND
DIRECT THE R4 HEREIN TO PERMIT THE PETITIONER
TO CONTINUE THE TRAINING FOR THE LEAVE PERIOD.
THIS W.P. COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner states that she has completed MBBS in the month of April 2007 and got herself registered at Karnataka Medical Council on 30.05.2007. She submitted her application for Diplomat National Board (DNB) and appeared for common entrance test held by the first respondent on 14.12.2008 and she got admitted to DNB training in the Department of Radio Diagnosis Course at Sagar Hospitals for the academic year 2009-2010. She has reported for the same on 1.8.2009. The DNB course itself 3 is of three years commencing from 1.8.2009 and it completed in the month of August 2012. Learned counsel for the petitioner submitted that the Diplomat National Board (for short `DNB) course was commenced from 5.8.2009 and the date of completion of course is on 4.8.2012. Before the completion of the course, she was on leave on medical grounds and leave was sanctioned by the concerned authority i.e., the third respondent - Medical Director, Sagar Hospitals. Still she could not complete the said Course as she had applied leave on the medical grounds. Hence she requested for extension of leave before the Medical Board. Instead of considering the prayer for extension the 2nd respondent, the Assistant Director has cancelled the registration of the petitioner for the said course. Against this cancellation of the registration, the petitioner is before this Court.
2. During the completion of the course of DNB training the petitioner had applied for leave on medical grounds and leave was sanctioned by the 3rd respondent. She again applied leave on medical grounds for the period 4 from 1.3.2010 to 31.3.2010 as she had conceived and she was suffering from Hyperemisis Gravidarum and the permission was also granted by the third respondent subject to grant of loss of pay to be repeated after course completion. A copy of the leave letter dated 26.12.2010 has been produced before this Court in this writ petition. It is submitted that she had to undergo MTP (Medical Termination of Pregnancy) on 21.3.2010 as it was inevitable abortion. After availing the said leave, the petitioner has joined the course but unfortunately again on 5.12.2010, she underwent MRI scanning of Pelvis with both hips and it was diagnosed as Avascular Necrosis of bilateral femoral heads with secondary Osteo Arthritis and the petitioner was advised surgery. In view of the above problem, again she has applied for one month leave and same was also granted by the third respondent. Copy of the leave sanctioned certificate has been produced as per Annexure-G. Since she could not recover from the said ailment, she once again applied for leave and the same was also sanctioned by the third respondent. The copy of 5 the leave letter with sanction certificate is produced as per Annexure-F. It is submitted that the medical leave she had sought was on the basis of the entire medical certificates to the satisfaction of the respondent and thereafter only leave was granted. After availing the leave, she joined the course on 2.2.2011 and she underwent the training till 21.9.2011 and again she fell sick and hence was constrained to seek leave on 22.9.2011 and same was sanctioned by the third respondent saying "pay one year fee and one year course extension". Copy of the same is produced as per Annexure-J. In the meanwhile, she gave birth to a male baby on 19.1.2012. Consequently, the petitioner underwent surgery of Bilateral Total hip replacement on 20.08.2012 and 27.8.2012 and hence the sick leave was extended till 2.10.2012 and she joined the course again on 3.10.2012 and she underwent the training till 24.1.2013. Copy for having applied leave and sanction of leave is also produced before this Court. Despite the fact that petitioner has produced all these certificates and for having undergone the surgery and gave 6 birth to a male baby on 19.1.2012, but notwithstanding the fact, the 2nd respondent has sent letter to the fourth respondent dated 18.12.2012 canceling the registration of the petitioner. The cancellation of the registration is arbitrary under Article 14 of the Constitution of India. The petitioner submits that she had already submitted her thesis to the second respondent on 31.1.2013. It is submitted that when leave is sanctioned on medical grounds, the leave sanctioned and having underwent the surgery and delivered the baby, shows that petitioner was prosecuting to complete the course. But things were beyond the control of human being. When such being the case, the cancellation of the registration is arbitrary under Article 21. He prays to set aside the cancellation and further to direct the 2nd respondent to continue the petitioner to complete the DNB course by extending the time. The impugned action is arbitrary and violation of article 14.
3. The petitioner relied upon the order passed by this Court in W.P.No.6064/2014 disposed of on 28.3.2014 7 wherein the similar circumstances had arisen. The petitioner in the said case had also availed leave on medical grounds for about 387 days. This Court while allowing the writ petition directed the respondent to accept the DNB training of the petitioner which has been completed by her in the second respondent college and announce the results of the examination conducted in June 2013 and permit the petitioner to undergo practical examination, if she has passed in theory examination. This petitioner stands on similar grounds. Hence the benefit which was granted by this Court to be extended to the petitioner also.
4. Learned counsel for the petitioner also relied on the leave policy which was communicated to the accorded hospitals/institutions of the 2nd respondent by communication dated 29.06.2005. In which regulation 7 states as under:
"7. Leave for DNB trainees: Leave to DNB trainee(s) as and when required may be granted by the accorded institutions as per the leave policy. This policy has not been exercised for the purpose of the petitioner and leave policy is 8 not communicated to the accorded institutions for the purpose for which to avail leave and when the exigencies arrived. In the instant reasons and grounds placed before the respondent college for granting leave is purely on the basis of the medical grounds. She has stated in the medical application about the illness she is suffering and also underwent surgery and delivery of a baby. When such is the case it is the voluntary right of the human being i.e., denial of the same which is nothing but denial of the right of person namely right of human. The National Board of Examination has communicated the renewal of accreditation - Board Specialty General Medicine -January 2012 to December 2014, which contains the leave for DNB trainees. Which states as the course is a residency programme. DNB trainees can avail 20 days leave in a calendar year, excluding one day weekly off, in addition, female trainees may be permitted a maternity leave not exceeding 90 days once during the entire duration of the course, while male candidates may be allowed Paternity leave of one week. With regard to that the learned counsel submitted the said provisions made is on the basis of the requirements. The requirement as stated is on the medical ground since she was delivered a bary. This should have been appreciated by the respondent institution and other than the same is not considered. The National Board of Examination has communicated the leave rules dated 3.8.2012,which is produced as Annexure-U3. Under regulation 3.3 states that "Extension of maternity leave is permissible only for genuine medical reasons and after prior approval of NBE. The supporting medical documents have to be certified by the Head of the Institute/hospital where the candidate is 9 undergoing DNB training. NBE reserves its rights to take a final decision in such matters. Rule 7 further states that "any other leave which is beyond the above stated leave is not permissible and shall lead to extension/cancellation of DNB Course. Rule 8 states that "any extension of DNB training for more than 2 months beyond the scheduled completion dated of training is permissible only under extra-ordinary circumstances with prior approval of NBE. Such extension is neither automatic nor shall be granted as a matter of routine. For the purpose of leave item no.10.2 states that "the supporting medical documents have to be certified by the Head of the Institute/hospital where the candidate is undergoing DNB training and have to be sent to NBE."
5. Learned counsel also relied upon Rules of Renewal of Accreditation -Board Speciality General Medicine -January 2012 to December 2014 (Annexue-U2), which states that "under normal circumstances leave of one year should not be a carried forward to the next year, however, in exceptional cases like prolonged illness or any meritorious grounds, the leave across the training programme may be clubbed together. Any other leave other than the above is not permissible and shall lead to the extension of the course. The institute shall abide by 10 the NBE guidelines issued from time to time in this regard.
6. Learned counsel for the petitioner relied on the unreported decision of the Delhi High Court in W.P.No.8302/2009 in the case of Vandana Kandari /vs./ University of Delhi).
7. Learned counsel for the respondent No.1 and 2 files the statement of objections and submits to dismiss the petition. The respondent has taken primary ground of jurisdiction. Since the petitioner was registered as DNB trainee with the respondent from New Delhi and fees was paid at New Delhi. Thesis was received at the same place and letter of communication was issued by the respondent on 18.12.2012. Under these circumstances, petitioner should have approached the jurisdictional Court for the purpose of 226 of Constitution of India. It is submitted that the person has to approach the jurisdictional Court with regard to the territory. For the said purpose learned counsel submitted that cause of action arose at New 11 Delhi. Hence, petitioner has to approach the jurisdictional Court at New Delhi. Only on this ground also petition should be dismissed. Further submitted that the Court should look into where the illegality of the decision making and shall not interfere with the administrative decision. He further submits that the case of the petitioner has been considered on several occasions and accepted the recommendations made for cancellation of the course, only the petitioner could not comply as per the guidelines issued by the CNB. Under these circumstances, petitioner is not entitled to any relief. The entire case is consisted of disputed question of fact for which they have to approach the appropriate forum and this is not the appropriate forum to redress the grievance of the petitioner. 8. Learned counsel for respondents No.1 and 2 submitted that the grant of relief to petitioner shall lead to administrative difficulties. When grant of such relief is likely to harm larger public interest, it is the legal maxim:
"Salus populi est suprema lex: regard for the public welfare is the highest law". The leave prescribed by the National 12 Board of Examinations during DNB training is 20 days per annum on yearly basis and 90 days once in 3 years for maternity leave (only for female candidates). The training to be extended in case of maternity leave by 90 days. The paternity leave for one week. The 3rd and 4th respondents/Institute have no power to extend the leave to the petitioner. If the leave of petitioner comes within the prescribed period of leave, the same may be considered by the Institute. Rules 6 to 9 of Rules 2012 are applicable for the prevailing period of DNB training. Learned counsel for respondents No.1 and 2 has produced leave Rules as Annexure-R1. Under normal circumstances, leave of one year should not be carried forward to the next year. Only in exceptional cases such as prolonged illness the leave across the DNB training program may be clubbed together with prior approval of NBE. As per Rule 7 of Rules 2012, beyond the above stated leave is not permissible and shall lead to extension/cancellation of DNB course. Rule 8 of Rules 2012 states that any extension of DNB training for more 13 than 2 months beyond the scheduled completion date of training is permissible only under extraordinary circumstances with prior approval of NBE. Such extension is neither automatic nor shall be granted as a matter of routine. The petitioner has not compiled any of these guidelines as per Rules 2012. Accordingly, the case of the petitioner has been rejected.
9. In respect of the first year, though the leave was applied by the petitioner from 1.3.2010 to 31.3.2010, the same was not sought for from the Board. In respect of the 2nd year, the petitioner had submitted a letter requesting leave from 8.12.2010 to 31.01.2011, but the same was not supported by any medical records. For the third year, she had availed leave for a period of 332 days from 7.9.2011 to 4.8.2012, but the leave was not sought for from the Board. There is no prior sanction from the Board and the request for leave did not contain the dates of leave sought for and there is no sanction for leave by the Institute. It is submitted that the total additional leave availed by the petitioner during 3 years DNB training 14 is 417 days. This length of her absence is impermissible as per NBE. Under these circumstances, the recommendation made by the 3rd respondent for cancellation of registration has been accepted by the 4th respondent. By referring the judgment of this Court in Dr.Vidisha Kumari, learned counsel for the respondents submitted that the said judgment is not applicable to the facts and circumstances of the case. In the operative portion of the order itself, it is stated that it was not precedent and cannot be applicable in this case. In the said case, the petitioner had completed 3 year course and submitted the thesis. Thereafter, the result was withheld. The case of the petitioner in this case is squarely covered by the guidelines of Rules 2012.
10. Learned counsel for the respondents submitted that it was not the cancellation on their own, but on the basis of guidelines under Rules 2012 which is mandatory. If one can complete the course for a period of 3 years, it is extendable period and also the leave period was provided therein. Since the prior sanction of leave is exceeded 15 under the guidelines of Rules 2012, it was recommended for cancellation. Except under the said circumstances, she was not informed about cancellation. But no efforts was made by the petitioner for securing the order of cancellation. Under these circumstances, learned counsel for the respondents submitted that the writ petition may be dismissed. The registration of petitioner for DNB course was cancelled in the month of November, 2012. After cancellation, the petitioner had submitted the thesis in the month of January, 2013. It is submitted that the registration itself has been cancelled. Hence, the question of accepting the thesis does not arise.
11. Heard the learned counsel for the parties.
12. The facts are not in dispute. The petitioner got admitted to DNB training in the Department of Radio Diagnosis Course for three years. During the process of three years, the petitioner had conceived and was suffering sickness and underwent surgery. The petitioner had applied for leave from 1.3.2010 to 31.3.2010 by 16 producing certificate issued by the Competent Authority. The Medical Director granted the leave as loss of pay to be repeated after completion of course. The petitioner had applied for leave from 8.12.2010 to 7.1.2011 since she was diagnosed to have bilateral avascular necrosis of hip joint with secondary osteoarthritis. A certificate was produced to the said effect. The leave was granted by the Institute on loss of pay and extension of course. Again she had applied for leave from 7.1.2011 to 1.2.2011. There was extension of 24 days of previous leave of 30 days for hip joint arthritis. A certificate was provided to Institute and the same was considered and granted with the endorsement of loss of pay with extension of course. Similarly the petitioner has sought leave for 332 days i.e. from 22.9.2011 to 3.8.2012 vide letter dated 22.9.2011. She was permitted to pay one year fee and one year course extension.
13. The petitioner had made an application for leave for the period from 1.3.2010 to 31.3.2010 as she had conceived and she was suffering from hyperemisis 17 gravidarum and permission was also granted by the 3rd respondent. Despite the same, respondents No.3 and 4 have cancelled the registration on the ground that during the course of 3 years the leave was extended which is impermissible as per Guidelines of 2012.
14. There are Rules/Guidelines issued by the NBE, which are fully applicable to the leave. A copy of Leave Rules has been produced as Annexure-R1. Another Rule was issued by the NBE on 1.8.2012. As per the Rules, the leave prevailed is not applicable to the person who came later after completion of course. As per Rule 7 vide Annexure-U1 regarding the NBE guidelines issued on 29.6.2005, it pertains to leave for DNB trainees and provides that the leave to DNB trainees(s) as and when required may be granted by the Accredited institute to consider either for grant or reject. As per the said provision, the leave sought for by the petitioner was granted. Annexure-U3 issued by the NBE regarding Leave Rules of 3.8.2012. As per Rules 6 and 7, it is stated that "under normal circumstances leave of one year should not 18 be carried forward to the next year. However, in exceptional cases such prolonged illness the leave across the DNB training program may be clubbed together with prior approval of NBE. Any other leave which is beyond the above stated leave is not permissible and shall lead to extension/cancellation of DNB course." Similar provision is also seen in the NBE Accreditation letter of 1.3.2012, wherein Clause (s) states that in exceptional cases like prolonged illness or any meritorious grounds, the leave across the training programme may be clubbed together. Any other leave other than the above is not permissible and shall lead to the extension of the course. The institute shall abide by the NBE guidelines issued from time to time in this regard. It is clarified that under normal circumstances leave of one year should not be carried forward to the next year. But the very Rule may extend in exceptional case. If the case comes or falls under exceptional circumstances, respondents No.1 and 2 are empowered to exercise their power for the purpose of granting extraordinary leave. In the instant case, the 19 petitioner has stated that on an earlier occasion, she was suffering from hip joint arthritis and underwent surgery. Thereafter, she had applied for leave on the ground of maternity, which should have been considered by the respondent.
15. Learned counsel for the respondents has produced a copy of Provisional Accreditation (Fresh) - Radio Diagnosis - July 2007 to June 2010. The reading of Clause (r ) is with reference to the provision of Renewal of Accreditation - 2015. Hence, the Institute has to consider as per the said provision. But in the instant case, on an earlier occasion, the Institute granted the leave. It is submitted by the learned counsel for the respondents that as per the Renewal of Accreditation, the Institute should have communicated or obtained prior permission or sanction from the NBE in contrary to the same and at no point of time, the said permission or sanction was sought. It shows that at the first instance, the Institute has granted the leave which is contrary to the Renewal of Accreditation - 2009. The respondents - Institute have 20 not disputed the medical certificates issued by the competent doctors along with the leave letter by the petitioner. In the leave letter, the petitioner has stated that she has suffered illness and require leave for the said purpose. She also stated that she underwent surgery and during the pregnancy, she suffered medical problems. There is no mentioning of maximum period of leave for extension of leave. In the instant case, the leave was sought for by the female trainee on the medical ground. In similar circumstances, the Delhi High Court by its judgment reported in (2010) 170 DLT 755 in the case of Vandana Kandari -vs- University of Delhi has thoroughly held as hereunder:
"55. At this stage, it would also be significant to mention the case of AIR India Vs. Nergesh Meerza and Others, where the Apex Court was confronted with the constitutional validity of Regulation 46(i)(c) of Air India Employees' Services Regulations which provided that the services of the Air Hostesses would stand terminated on first pregnancy. It would be pertinent to quote the relevant para of the said judgment here:
Having taken the AH in service and after having utilized her services for four years, to terminate her service by the Management if she becomes 21 pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. It seems to us that the termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood the most sacrosanct and cherised institution. We are constrained to observe that such a course of action is extremely detestable and adherent to the notions of a civilized society. Apart from being grossly unethical, it smacks of a deep rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the Constitution.
In Sharron A. Frontiero v. Filliot L Richardson 36 L.Ed. 2d 583 the following observations were made:
Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility.
What is said about the fair sex by Judges fully applies to a pregnant woman because pregnancy also is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction therefore, made on the ground of 22 pregnancy cannot but be held to be extremely arbitrary.
56. In the light of the above discussion, if a female candidate is deprived or detained in any of the semester just on the ground that she could not attend classes being in the advanced stage of pregnancy or due to the delivery of the child, then such an act on the part of any of the university or college would not only be completely in negation of the conscience of the Constitution of India but also of the women rights and gender equality this nation has long been striving for. It is a saying that `Motherhood is priced of God, at price no man may dare to lessen or misunderstand.' By not granting these students relaxation, we will be making motherhood a crime which no civilized democracy in the history of mankind has ever done or will ever do. We cannot make them pay the price for the glory that is motherhood.
57. It would not be inappropriate to mention at this juncture the recent rulings of the Apex Court in the cases of Lata Singh Vs. State of U.P. and Another, and S Khushboo Vs. Kanniammal and Another, where it has given liberty to the live-in relationship from the shackles of being an offence and also in the latter case where it has held that premarital sex is not an offence. The society today is changing at a rapid pace and we must be in tune with the realities and not hold on to archaic social mores. Once such a right, however unpopular, is recognized then it cannot be ruled out that there can be more cases of girl students proceeding on Maternity Leave when while they are still in college. Law should be an instrument of social change and not a defender of it. Motherhood is not a medical condition 23 but a promise. We all kowtow to our mothers to whom we owe our existence and to punish a woman for becoming a mother would surely be the mother of all ironies.
58. Hence, a female student cannot be deprived from her student status or can be detained in any semester on account of the fact that she could not attend the classes because of her pregnancy and therefore so far these two students in W.P. (C) No. 8302/2009 and W.P.C No. 8419/2009 are concerned, they deserve relaxation under the mandate of the Constitution. These petitions are accordingly allowed with the following directions:
In W.P.(C) No.8302/09, the petitioner, at the time of filing of the writ petition, was a student of the VIth semester and her result of this semester was also declared wherein sh has passed the semester. Hence, she must now be awarded the final degree of L.L.B. In W.P.(C) No.8419/09, the petitioner was a student of IVth semester at the time of filing of the writ petition and as an interim measure she was allowed to appear in the examination of the IVth semester and it was directed that her result be kept in a sealed cover. The interim application (C.M.No.12580/09) for direction to let the petitioner provisionally attend the classes of the Vth semester was filed on 8.10.2009, but there is visibly no order regarding the said application. Therefore, in the present circumstances, now as the petition is being allowed, it is directed to declare the result of the petitioner for the IVth semester and she be promoted to the next semester in conformity with the promotion rules.24
Bar Council of India, although not a party in the present writ petitions, is hereby suggested to make rules for women students claiming relaxation on ground of Maternity relief so that they are not deprived of appearing in the LLB examinations due to pregnancy."
16. The Madras High Court by its judgment in W.P.No.440/2011 in the case of A Arulin Ajitha Rani -vs- State and others has held as under:
"15. The General Assembly of the United Nations adopted the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), on 18th December 1979. India ratified the Convention on 25.6.1993 with some reservations. At the 4th World Conference on Women held in Beijing, the Government of India made an official commitment to formulate and operationalise a national policy and also to set up a Commission for women's rights. This eventually led to the enactment of the Protection of Women against Domestic Violence Act, 2005.
16. Some of the Articles of CEDAW, which may help in throwing some light on the issue raised in the writ petition, are as follows:
(i) Article 4.2 of the Convention declares that the adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory;
(ii) Article 5(a) mandates States Parties to take appropriate measures to modify the social 25 and cultural patterns of conduct of men and women, with a view to achieve the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
(iii) Article 5(b) mandates the States Parties to take appropriate measure to ensure that family education includes a propr understanding of maternity as a social function;
(iv) Article 10(f) mandates the States Parties to take appropriate measures for the reduction of female drop-out rates;
(v) Article 11.2(b) mandates States Parties to take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of employment, seniority or social allowances;
(vi) Article 11.2(d) requires the States Partis to provide special protection to women during pregnancy in types of work proved to be harmful;
(vii) Article 12.2 requires the States Parties to ensure to women, appropriate services in connection with pregnancy, confinement and the post natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation; and
(viii) Article 16.1(e) mandates the States Parties to ensure that women have same rights to decide freely and responsibly on the number and spacing of their children."26
17. In the light of the above judgment, it is mandatory and constitutional obligation and the State to provide special protection to the women. Article 41 of the Constitution provides that right to work, to education and to public assistance in certain cases. Similarly, Article 42 provides for provision for just and humane conditions of work and maternity relief. These provisions provide to the humane and any consideration for adversity and deprive should have been taken care of the case of this nature.
18. As per NBE Leave Rules, the leave should be obtained with prior permission or sanction from the Board. The respondents/Institute have sanctioned the leave sought for by the petitioner. On the basis of Rules prevailed under the Rules, the Institute is enable to consider the leave. The Rules - 2009 is applied in this matter. What is to be looked into is the medical certificates produced by the petitioner. The same have not been considered in the exceptional circumstances. Hence, the said lapse in not considering the leave in exceptional 27 circumstances should be held arbitrary on the part of the respondents.
19. The petitioner was successful in the CET held by the 1st respondent and selected for DNB training. Thereafter, it was allotted to the 3rd respondent/Institute to complete the course within a period of three years. Now the petitioner has completed the course and the registration has been cancelled. The said cancellation was not communicated and it was not within the knowledge of the petitioner. But before cancellation, the leave application was made to the Institute and it was not forwarded to the NBE. Hence, the respondents have committed an error.
20. The petitioner was selected the DNB Course in the year 2009. A lot of change has been taken at this juncture to consider the long absence on the part of the petitioner. It is appropriate to issue any direction either to the 1st respondent or the 2nd respondent to permit the petitioner to continue the course. In these circumstances, it is appropriate to direct the 2nd respondent to consider 28 the case of the petitioner on the basis of her completion of CET admission to the DNB course of the year 2009. By taking note of her admission, the 1st respondent is directed to permit the petitioner to start afresh the DNB course for three years. In view of the same, the 1st and 2nd respondents have to take a decision whether the petitioner is to get admitted to the 3rd respondent/Institute or any other Institute to prosecute the DNB course. Hence, it is appropriate to direct the 1st and 2nd respondents to permit the petitioner as an exceptional circumstances. In the light of the judgments referred to above, where the Hon'ble Supreme Court and the High Courts of Delhi and Tamilnadu considered the similar cases by referring the provisions in the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW). The Vienna Convention on the Elimination of all forms of Discrimination Against Women was ratified by the U.N.O on December 18, 1979. If the said decision is not taken as per the discussion, it may be contrary to the judgments referred to above, more particularly, the Government of 29 India is a party. Under these circumstances, the petition is entitled to be allowed. Accordingly, it is allowed.
The 1st respondent is directed to consider the case of the petitioner from the date of her admission in the DNB course on the basis of CET. Further, the petitioner is directed to complete the course within three years as per the prevailing Rules or Regulations of NBE, Delhi and it is to be treated as a special case. For the said purpose, Clause 6.2.8 of the National Board of Examinations - Information Bulletin & Main Application Form - 2015 is extracted hereunder:
"THESIS GUIDE/CO-GUIDE: Sr. Consultants available on full time basis with the applicant hospital/institute in the concerned department can be guide/co-guide of DNB trainees.
The PG teacher can be a Guide for a maximum of two DNB trainees in an academic year and has to Co-Guide other DNB trainees in the department."
In view of the above, it seems that the petitioner may be accommodated in the same Institute as a second candidate.
30
Time for compliance is four weeks from the date of receipt of the copy of this order.
Sd/-
JUDGE KLY/Bkm.