Dr. Bindu vs Union Territory Of Jammu And Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking, inter alia, a direction to respondent No. 1 to issue a No Objection Certificate in her favour and a consequential direction to respondent No. 3 to permit her to pursue the DNB Course in General Medicine at Government Hospital, Gandhi Nagar, Jammu, against the seat allotted to her through the counselling conducted by the J&K Board of Professional Entrance Examinations (BOPEE).

Briefly stated, the applicant was appointed as a Medical Officer in the Health Department of the Government of Jammu and Kashmir in the year 2014 pursuant to selection conducted by the Jammu and Kashmir Public Service Commission. By the time the dispute arose, she had rendered about eight years of service and had successfully completed her probation.

For the year 2022, the Government of India allotted DNB seats to various Government Hospitals in the Union Territory of Jammu and Kashmir with the object of augmenting the availability of specialist doctors. One such seat in General Medicine was available at Government Hospital, Gandhi Nagar, Jammu. The DNB seats were intended for eligible in-service doctors who had qualified NEET-PG.

The applicant appeared in NEET-PG, 2022 and secured 246 marks. Initially, the qualifying cut-off for the General Category was 275 marks and, therefore, she did not qualify. Subsequently, however, the qualifying cut-off was reduced to 201 marks, as a consequence whereof the applicant became eligible for consideration for admission to the DNB course.

BOPEE thereafter issued Notification No. 071-BOPEE of 2022 dated 22.10.2022 inviting applications from NEET-PG qualified in-service doctors for admission to Post-MBBS DNB courses. The applicant applied for consideration. One seat in General Medicine was available at Government Hospital, Gandhi Nagar, Jammu.

The applicant also submitted a representation seeking issuance of NOC. The matter was referred to the Director Health Services, Jammu, who vide communication dated 04.11.2022 informed the Administrative Department that although the applicant had not earlier applied for issuance of NOC for appearing in NEET-PG/counselling/DNB courses during the calendar year 2022, she had completed more than eight years of service and the Directorate had no objection if her request for issuance of NOC for the PG/DNB course was considered favourably.

The applicant participated in the counselling conducted on 11.11.2022 and was allotted the DNB seat in General Medicine at Government Hospital, Gandhi Nagar, Jammu. The allotment was, however, subject to production of the requisite NOC from respondent No. 1. Her allotment was reflected in BOPEE Notification No. 081-BOPEE of 2022 dated 12.11.2022.

The respondents declined to issue the NOC principally on the ground that the applicant had not submitted her application within the time prescribed under Circular No. 05-JK(HME) of 2021 dated 21.12.2021. The said Circular required intending in-service doctors to submit their applications through the prescribed channel on or before 10.01.2022 and provided that requests made beyond the cut-off date would not be entertained. Aggrieved by the denial of NOC despite her having qualified NEET-PG after revision of the cut-off and having been allotted a DNB seat, the applicant approached this Tribunal.

At the initial stage of the proceedings, this Tribunal, vide interim order dated 16.11.2022, noticed that the applicant had already qualified NEET-PG and had completed the admission process through BOPEE. The Tribunal further took note of the fact that the Director Health Services, Jammu had no objection to issuance of NOC in her favour. Considering the circumstances and the urgency arising from the admission schedule, respondent No. 3 was directed to permit the applicant to join Government Hospital, Gandhi Nagar, Jammu against the seat allotted to her for pursuing the DNB course. 11. In pursuance of the aforesaid interim order, the applicant was permitted to join the DNB course. It is not disputed before us that during the pendency of the present proceedings she has continued the course and has now successfully completed the DNB course.

The respondents, in their written statement, have defended their action by relying upon Government Order No. 03-HME of 2019 dated 27.05.2019 and Circular No. 05-JK(HME) of 2021 dated 21.12.2021. It is pleaded that the policy was framed to regulate deputation of in-service doctors for higher studies so that public health institutions, particularly those in rural and peripheral areas, do not suffer due to prolonged absence of doctors.

The respondents further submit that the High Court in WP(C) No. 2553/2019 had directed constitution of a panel for consideration of NOCs and that formal applications for the year 2022 were accordingly invited. Since the applicant had not applied within the stipulated time, it is contended that she had no enforceable right to issuance of an NOC.

We have heard learned counsel for the parties and carefully examined the pleadings and material available on record.

The short question which falls for consideration is whether, in the peculiar facts of the present case, the applicant could justifiably be denied the NOC merely on account of her failure to submit an application by 10.01.2022, despite the fact that she became eligible for admission only subsequently upon reduction of the NEET-PG qualifying cut-off, was allotted a DNB seat through the competent counselling authority and was thereafter permitted by this Tribunal to pursue the course.

There can be no quarrel with the proposition that Government policies prescribing timelines and procedures are ordinarily required to be adhered to. Such timelines ensure administrative discipline and enable the Department to assess manpower requirements before permitting in-service doctors to proceed for higher studies. At the same time, procedural requirements cannot be applied in a manner divorced from the factual situation in which an individual candidate became eligible.

The distinguishing feature of the present case is that when the cut-off date of 10.01.2022 under Circular dated 21.12.2021 was operating, the applicant had not yet qualified NEET-PG. She secured 246 marks, whereas the qualifying cut-off for the General Category was initially 275 marks. It was only subsequently, upon reduction of the qualifying cut-off to 201 marks, that she acquired eligibility to participate in the admission process. 18. Thereafter, BOPEE initiated the process for admission to DNB seats by notification dated 22.10.2022. The applicant approached the Department for issuance of NOC, participated in counselling and was ultimately allotted the seat in General Medicine at Government Hospital, Gandhi Nagar, Jammu. Thus, the material cause for seeking the NOC crystallized only after she became qualified and the actual admission process commenced.

The respondents have sought to treat the requirement contained in the Circular dated 21.12.2021 as an absolute bar irrespective of subsequent developments. Such an approach, in the peculiar facts of the present case, would lead to an anomalous result. The applicant would be required to have sought permission in January 2022 for pursuing a course to which, at that point of time, she had not even qualified and for which the counselling process had not yet commenced.

More importantly, the Director Health Services, Jammu, who was directly concerned with the applicant’s service position and availability, had specifically conveyed that the applicant had completed more than eight years of service and that the Directorate had no objection if NOC for the PG/DNB course was issued in her favour. Therefore, the very administrative concern underlying the policy, namely the requirement of considering the service exigencies before permitting an in-service doctor to pursue higher studies, stood substantially addressed.

The matter does not rest there. At the time of institution of the OA, the applicant had already been allotted the DNB seat and admission was dependent upon production of NOC. Having regard to the urgency involved, this Tribunal, on 16.11.2022, directed respondent No. 3 to permit the applicant to join the allotted seat. The interim order was acted upon and the applicant pursued the course continuously.

It is now an admitted position that, during pendency of these proceedings, the applicant has successfully completed the DNB course. The interim arrangement has thus operated for the entire duration of the course and has resulted in a completed academic qualification. No allegation has been made that the applicant secured admission by fraud, misrepresentation, want of merit or lack of academic eligibility.

Judicial orders passed at the interim stage are undoubtedly subject to the final outcome of the proceedings. However, while deciding the matter finally, the Court or Tribunal cannot remain oblivious to subsequent events, particularly where the interim order has been fully worked out and the factual situation has become irreversible without causing wholly disproportionate prejudice.

Setting at naught the applicant’s completed DNB course at this stage merely because the NOC was not formally issued prior to her joining would serve no legitimate administrative purpose. On the contrary, it would result in serious prejudice to the applicant despite her having been permitted to pursue the course under an order of this Tribunal and despite the concerned Director having already expressed no objection to her pursuing the course.

The object of the DNB scheme itself was to increase the availability of specialist doctors in Government health institutions. The applicant, having acquired the specialist qualification, is now in a position to contribute to the very public healthcare system which the scheme intended to strengthen. In these circumstances, insistence upon the procedural objection raised by the respondents would amount to elevating form over substance.

We are, therefore, of the considered view that this is a fit case where the interim order dated 16.11.2022 deserves to be made absolute and the applicant’s pursuit and completion of the DNB course deserves to be protected.

Accordingly, the Original Application is allowed. The interim order dated 16.11.2022 is hereby made absolute. The respondents are directed to treat the applicant as having been duly permitted to pursue the DNB course in General Medicine at Government Hospital, Gandhi Nagar, Jammu and to regularize, for all official purposes, the period spent by her in pursuing the said course in accordance with the applicable rules governing in-service doctors.

The respondents shall not deny recognition of the applicant’s DNB qualification or any consequential service consideration merely on the ground that a formal NOC had not been issued prior to her joining the course, since she pursued and completed the course pursuant to the interim protection granted by this Tribunal. Her DNB qualification shall be taken on record and given due effect for such service purposes for which the qualification is otherwise recognized under the applicable rules.

It is, however, clarified that this order has been passed having regard to the peculiar facts of the present case, particularly the subsequent reduction of the NEET-PG qualifying cut-off, the allotment of the DNB seat by BOPEE, the favourable recommendation/no objection of the Director Health Services, Jammu, the interim order passed by this Tribunal and the applicant’s successful completion of the course. The present order shall not be construed as dispensing with the requirement of obtaining prior permission/NOC in cases where candidates are otherwise in a position to comply with the prescribed policy and timelines.

The respondents shall complete the necessary consequential formalities and make appropriate entries in the service record of the applicant within a period of 12 weeks from the date of receipt of a certified copy of this order.

The Original Application stands disposed of in the above terms. Pending MAs, if any, shall also stand disposed of. There shall be no order as to costs.