Association Of Diplomat Of National Board Of Doctors vs Government Of West Bengal And others

Sabyasachi Bhattacharyya, J

The petitioner claims to be an association of Diplomat of National Board (DNB) qualified Doctors. It is alleged that the members of the

petitioner-association were relocated from their parent Hospitals while undergoing the course of Postgraduate Training, pursuing their DNB

courses from the respondent no.2-Hospital. During the pandemic, the members of the petitioner-association were relocated to different Hospitals.

Learned counsel for the petitioner relies on the Guidelines for Competency Based Training Programme in DNB â€" Obstetrics and Gynecology

issued by the National Board of Examinations (respondent no.3 herein). Under Clause 5 of the said Guidelines for Accredited Hospitals, provisions

are made regarding rotational postings of DNB trainees. As per Clause 5.1, such trainees can be rotated outside the applicant Hospital as per

Guidelines detailed thereunder. Under the column ‘Nature of Rotation’ in Clause 5.1, the relevant entry pertains to externship on mutual

exchange basis, subject to mutual agreement between the trainees and the institute. The purpose/reason given for such externship is that a DNB

trainee may be rotated to a NBE accredited department of another Hospital by mutual exchange between the accredited Hospital/Institution.

Under the column ‘Tentative Period of rotation’, the maximum period for such externship has been stipulated as three months in a three

years training programme and two months in a two years training programme.

Clause 5.2 of the Guidelines provides that the externship of DNB trainees is not automatic. Prior approval of National Board of Examinations is

mandatory.

Clause 5.3 stipulates that the placement of DNB trainees in Hospitals/Institutions that are not accredited with NBE or MCI or Government of

India is not permitted.

Learned counsel for the petitioner submits that the members of the association, whose interest is represented by the petitioner-association, have

already been posted for a period exceeding that which is stipulated in Clause 5.1, as indicated above, thus, exposing the said members, who are all

trainees under the DNB course, to the risk of losing the excess period over the stipulated time-frame for the purpose of being considered to have

completed their training programme.

Learned counsel submits that no consent was obtained from the said members of the petitioner-association. The petitioner prays for relocation of

the member-doctors to their parent Institution/Hospital, being the respondent no.2 herein.

An affidavit of compliance filed by the State-respondent and the rejoinder thereto, filed by the petitioner, be kept on record.

Placing reliance on Annexure R-13 at page 8 of such rejoinder, which comprises Guidelines for relocation of trainees of National Board of

Examinations (NBE), issued by respondent no.3 on December 24, 2020, learned counsel for the State-respondent submits that Clause 1(ii) thereof

deals with relocation of a trainee. It is provided therein that the relocation of a trainee refers to the permanent shifting of a trainee by NBE from

their principal allotted Institute or Hospital to another accredited Institute or Hospital. As such, the temporary shifting under the Disaster

Management Act, 2005 due to the Covid-19 pandemic, which is complained of by the petitioner in the present case, cannot be treated to be a

relocation within the purview of the Guidelines regarding DNB â€" Obstetrics and Gynecology issued by respondent no.3 (Annexure P-6 at page

36 of the writ petition). It is further contended on behalf of the State that the medical students, who have submitted affidavits as per direction of

this court to disclose their credentials for maintaining the writ petition, are different from those trainees who approached the State-respondent with

the grievance that they had nothing to do with the present writ petition, nor had they granted authority to the petitioner-association to do so.

However, it is submitted that the relocation in the present case, which has been extended recently, was within the contemplation of the Disaster

Management Act, 2005 and was a valid exercise of power by the State-respondent.

It is further argued that the writ petition has been filed on mere apprehension on the part of the petitioner, having no present cause of action.

Learned counsel appearing for respondent no.3 relies on a notice dated January 15, 2021 issued by respondent no.3, in support of the

proposition that the interest of the trainees has been protected by such notice. It is also submitted that the apprehension of the petitioner is

premature, in the absence of any decision having been taken by respondent no.3 for discounting the excess period of relocation from the requisite

tenure for the DNB course.

Upon considering the submissions of counsel, it is evident that the notice dated January 15, 2021, a copy of which is handed over in court by

respondent no.3, is irrelevant for the present purpose. Although the said notice recognizes the adverse effect on trainees with regard to relocation,

such recognition was in a different context. The notice-in-question was issued to contradict an article “Relocation of DNB Doctors leads to

‘back-door entry’ †published in a newspaper and refers to withdrawal of accreditation by the NBE. It provides that, based on complaints

received from trainees undergoing training in NBE accredited institutes and if those complaints are found to be correct, accreditation of such

Institutes in the concerned specialties is withdrawn, after giving ample opportunities for compliance.

The policy of relocation mentioned in the notice dated January 15, 2021 speaks of a Hospital losing its accreditation, in which event the first

year trainees have to be mandatorily relocated as majority of their training cannot be undertaken in a de-accredited Hospital. Such relocation is

done strictly as per Guidelines for Relocation of Trainees of NBE.

Since the said notice pertains to relocation of trainees under several courses, including the DNB course, in respect of de-accredited Hospitals,

the same is not relevant for the present purpose.

Nothing has been brought on record by any of the parties to show that respondent no.3 has taken a specific stand on credit being given to the

trainees of the DNB Course for the excess period of their relocation at Hospitals other than their parent Institutes, over and above the maximum

period stipulated in Clause 5.1 of the relevant Guidelines.

However, learned counsel for the State-respondent is justified in arguing that the Guidelines for relocation of trainees of NBE, annexed to the

rejoinder filed on behalf of the petitioner, specifically provides that the relocation of a trainee mentioned therein refers to the permanent shifting of

the trainees by the NBE from their principal allotted Institute or Hospital to another accredited Institute or Hospital. The relocation complained of in

the present writ petition is of a temporary nature, within the ambit of the Disaster Management Act, 2005, in view of the pandemic situation, which

created a shortage of qualified medical practitioners to deal with Covid-19 patients. Moreover, such relocation was done by the State Government,

in respect of State Hospitals in West Bengal, and not by the NBE, as contemplated in clause 1(ii) of the Guidelines for relocation of trainees of

NBE. The relocation, being temporary in nature, cannot be termed as “permanent†as contemplated in Clause 1(ii). Thus, there is no

reasonable basis for the apprehension on which the petitioner has moved the present writ petition, at least as of now.

The Guidelines for Competency Based Training Programme in DNB â€" Obstetrics and Gynecology, issued by respondent no.3 provides a

maximum period of three months and two months respectively for three years and two years training programmes. However, the heading of the

column under which such time-limit occurs in Clause 5.1 of the Guidelines is “Tentative Period of rotationâ€. Since the expression

“tentative†is used to define the maximum period, the enforcement of such time-limit is directory and not mandatory by its very nature. It is

very well within the discretion of respondent no.3 to attribute the excess period of relocation of the members of the petitioner-association to ‘Act

of God’ or supervening impossibility, arising due to the emergency brought about by the Covid-19 pandemic. Such an emergency, arising

subsequently, could not be within the contemplation of respondent no.3 or the trainees pursuing the DNB course at the time of framing of the

relevant Guidelines and, as such, ought not to be enforced against the trainees who were relocated for periods in excess of those stipulated in

Clause 5.1 of the Guidelines.

Thus, there is no present basis of apprehension on the part of the petitioner as regards its members losing their months of relocation in excess

of the stipulated maximum period of three months and two months respectively. Such temporary relocation by the State, even if found to have been

done without consent of respondent no.3, cannot give a handle to respondent no.3 to exclude the excess period of relocation for the purpose of

granting completion certificate of the DNB â€" Obstetrics and Gynecology course being pursued by the concerned trainees, some of whom are

represented by the petitioner-association.

WPA No.7578 of 2020 is, thus, disposed of in the light of the above observations. The State-Respondent is, however, directed to endeavour to

relocate the trainees of the DNB course to their parent hospitals/institutions at the earliest and to take up, with respondent no.3, the issue of

consideration of the excess period of relocation to be counted within the tenure of the DNB course for the purpose of grant of the requisite

certificate to the concerned trainees on completion of the course, to prevent such relocation, due to no fault of the trainees, from operating to the

detriment of the trainees’ interests.

Respondent no.3 shall also look into the matter and treat the excess period of relocation of the trainees of the DNB course, necessitated for

public service due to the pandemic situation, to be included within the tenure of the course.

There will be no order as to costs.

Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.