AI Structured Summary
Not yet generated for this judgment
Judgment
V.M. Sahai, J.—The petitioner passed his M.B.B.S. examination in 1998 from Moti Lal Nehru Medical College, Allahabad. After completing his internship, he was enrolled for house job at Kamla Nehru Memorial Hospital, Allahabad (in brief K.N.M.H.). He worked as House Surgeon in the Department of Radiation & Oncology from 6.1.2000 to 31.12.2000. He qualified in the primary examination conducted by the National Board of Examinations (Ministry of Health & Family Welfare, Government of India) New Delhi, the respondent No. 3 (in brief N.B.E.) in July 2000. On 20.11.2000 an advertisement was published in newspaper Amar Ujala inviting applications for admission to Diplomate of National Board (D.N.B. course) in Radiotherapy for the session 2001. Petitioner applied and appeared in the objective written test on 12.12.2000 and was successful. Thereafter, on 13.12.2000 he appeared in interview. There were two seats in D.N.B. course in Radiotherapy and the petitioner was the only candidate who had applied for Radiotherapy D.N.B. courses. According to the guidelines framed by K.N.M.H. on 9.12.2000 for selection of D.N.B. candidate, a candidate must obtain 50% marks for qualifying in theory examination and he must secure 50% marks in clinical viva/interview. It further provides that in interview, marks will be given by grades, Grade-A signifies "very good performance" (8-10 marks), Grade-B signifies "good performance" (5-7 marks) and Grade-C signifies "unsatisfactory performance" (less than 5 marks). It further provides that past performance in the work and conduct of the internal candidates for D.N.B. course, if any, will also be taken into account while; assessing overall performance of the candidate. The result of the petitioner of written examination and Interview was not declared, therefore, this petition was filed praying that the respondents [K.N.M.H.] be directed to declare the result of the petitioner.
In the counter-affidavit filed by the respondents, it has been stated that N.B.E. was established to evolve a pattern for the conduct of high and uniform standard of post graduate and post doctoral examination in medical sciences for the award of Diplomate of National Board which are equivalent to M.D./M.S./D.M./M.Ch. of other Indian Universities of the country recognised by Government of India and the Medical Council of India. Their main stand is that passing of Primary Examination of N.B.E. makes a candidate eligible for admission to test only for D.N.B. seat. The candidate does not become entitled to scat automatically.
Sri Vishwa Ratan Dwivedi, the learned counsel for the petitioner has urged that since the petitioner was the only candidate who applied for D.N.B. course in Radiotherapy and there being two seats available, he was entitled to be selected. He further urged that N.B.E. information brochure provide for two examinations primary and final. Since he has been successful in primary examination, he was entitled for admission in K.N.M.H. And after he received training in K.N.M.H. his final examination could be taken by N.B.E. The information brochure of N.B.E. did not authorise K.N.M.H. to take any other examination. He has further urged that his past conduct is satisfactory and a certificate in this regard has been issued by the Medical Superintendent. Dr. J.P. Gupta, which has been filed as Annexure-1 to the rejoinder-affidavit.
On the other hand, Sri Vijay Ratan Agarwal, the learned counsel for respondent Nos. 1 and 2 has urged that since the petitioner was unsuccessful, therefore, there was no question of declaration of his result. He has placed before this Court the marks awarded to the petitioner in the written examination and interview. He urged that a candidate must obtain 50% marks in theory (written test) and must obtain 50% marks in interview, only then he could be declared selected for D.N.B. course. He urged that no doubt the petitioner obtained 50% marks in the written test but since he has secured less than 50% marks in the interview, therefore, he could not be declared to be selected for D.N.B. course in Radiotherapy. He further urged that information brochure of N.B.E. did not debar the K.N.M.H. from taking examination and Interview, therefore, the respondents could frame guideline for taking admission in D.N.B. course. Sri Agarwal has produced the entire record of Obstetrics and Gynaecology and Radiotherapy of written test and interview including the guidelines framed for selection by K.N.M.H. for admission to D.N.B. course before this Court.
N.B.E. information brochure has been filed by the respondents along with the counter-affidavit, it was established by Government of India in the Ministry of Health and Family Welfare in 1975. It became an independent autonomous organisation in 1982. Primary Examination is taken by N.B.E. and the candidates who are declared successful in primary examination are sent by N.B.E. to 156 accredited institutions for the intake of 570 candidates for various post graduate and post doctoral courses in the private and public sector hospitals/institutions. The brochure further provides that if a candidate has passed his primary examination, he has to pass final examination. The primary and final examinations are to be taken by N.B.E. as extracted below :
Primary Examination :
-- M.B.B.S. standard
-- 2 papers and 3 hours duration each
-- each paper has 180 M.C.Qs.
Final Examination - Theory :
-- Broad Specialities
-- 4 papers of 100 marks and 3 hours duration each
-- Pass -- 50% in aggregate
-- Clinical, Practical & Viva-voce
-- After passing the theory examination (Final)
-- Should obtain a minimum of 50% score in practical
-- Super Specialities
-- 3 years training after recognised post graduate degree
-- 3 papers of 100 marks and 3 hours duration each
-- eligible for practical, clinical and viva-voce if secure 40% marks in aggregate
-- should obtain a minimum of 50% in practical
The information brochure of N.B.E. does not provide that a candidate who has been declared successful in primary examination, has to appear again in any other examination or interview to be conducted by private or public sector hospitals/institutions for taking admission of a candidate who has passed the primary examination conducted by N.B.E. The K.N.M.H. has been granted accreditation for purpose of N.B.E. training. It is one of the D.N.B. centre for imparting training in Obstetrics & Gynaecology and Radiotherapy. It can take admission of one candidate in Obstetrics & Gynaecology and two candidates in Radiotherapy for January, 2000 to December, 2002. The K.N.M.H. on 20.11.2000 advertised in various newspapers inviting applications for the aforesaid D.N.B. courses and selection was to be made through an objective type written lest followed by an interview. It is stated in paragraph 8 of the counter-affidavit that a candidate who has been declared successful in primary examination conducted by N.B.E. is not entitled for admission for D.N.B. courses in K.N.M.H. as it is not provided in the information brochure. The petitioner appeared in the written test and interview and was found unsuccessful. As per the practice of K.N.M.H. and as per guidelines framed, the result of only one selected candidates in Obstetrics & Gynaecology was declared. It was not obligatory for the K.N.M.H. to declare the result of unsuccessful candidate. In paragraph 12, it has been stated that the petitioner has been warned on number of occasions for his bad conduct and behaviour. !t is not disputed that the two seats for D.N.B. courses in Radiotherapy are vacant and could not be filled as the petitioner was the only candidate who had applied for selection, was unsuccessful.
The respondents have produced the guidelines for selection of D.N.B. candidates framed by Medical Superintendent of the K.N.M.H. on 9.12.2000 which is extracted as under :
"Guidelines for Selection of D.N.B. Candidates"
The Guidelines for members of Selection Committee for assessing the suitability of prospective candidates for D.N.B. in the Departments of Obst. & Gynaec. & Radiotherapy will be as under :
(1) The candidate must appear for the Theory Examination which will consist of subjective and/or objective for D.N.B. of questions set by the Head of the concerned Department.
(2) The candidate must secure 50% marks for qualifying the Theory Examination.
(3) The eligible candidate will then be called for Clinical Viva/Interview before the Selection Committee constituted by the K.N.M.H.
(4) The Candidate must secure 50% marks in the Clinical Viva / Interview.
(5) The Candidate will be considered ineligible for the Selection of D.N.B. Course if he/she falls to secure the minimum qualifying marks in any of the above examination, i.e.. Theory and Clinical Viva/Interview.
(6) The Selection Committee will Interview the candidate on the overall Clinical aspect to assess the suitability and competence of the candidates. The marks to be given for the interview will be as per following norms :
(i) Grade ''A'' signifies Very good performance (8-10 marks)(ii) Grade ''B'' signifies Good performance (5-7 marks)(iii) Grade ''C'' signifies unsatisfactory performance (less than 5 marks)
The past performance in the work and conduct of internal candidates for D.N.B. course, if any, will also be taken into account while assessing the overall performance of the candidate(s).
(Dr. J.K. Gupta)
Medical Superintendent
According to the respondents, as per the guidelines, if any candidate has been declared successful by N.B.E. in the primary examination, it does not confer any right on him to be admitted in D.N.B. course in Radiotherapy in K.N.M.H. unless he is declared successful in the written lest and interview as per the guidelines framed by the K.N.M.H. The candidate must secure 50% marks for qualifying the theory examination and if he is successful in theory examination, then he would be called for interview. He must secure 50% marks and if a candidate fails to secure 50% minimum qualifying marks in either theory or in interview, then he shall be ineligible for selection for D.N.B. course in K.N.M.H. The records of the respondents show that the petitioner in the written theory examination has secured 53 marks out of 76 marks which comes to 69.7%. He was called for interview, which was taken by Dr. Krishna Mukherjee. Dr. B. Paul, Dr. I. Perhar and Dr. J.K. Gupta. The records of the interview reveal that the petitioner was awarded grade ''C'' in the interview held on 13.12.2000. As per the guidelines framed by the K.N.M.H., grade ''C'' signifies unsatisfactory performance (less than 5 marks) which comes to less than 50%. Therefore, according to the learned counsel for the respondents, since the petitioner secured less than 50% minimum marks fixed for interview, he was unsuccessful and the seat in D.N.B. course in Radiotherapy had to be kept vacant irrespective of the fact that the petitioner was the only candidate.
Two questions arise for consideration, one whether the guidelines framed by K.N.M.H. for determining . selection for D.N.B. course of N.B.E. candidate is arbitrary and whether an accredited institution is entitled to hold further test for selection from amongst N.B.E. candidate. The first question is settled by the Apex Court. A written examination assesses a candidate''s knowledge and intellectual ability whereas an interview assesses a candidate''s overall intelligence and personal qualities. The Constitution Bench of the Apex Court in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, , in the matter of admission to professional colleges had the occasion to consider the question that where there is both written test and interview, what should be the percentage of marks for interview. It has held that oral interview test should not be relied upon as an exclusive test in the matter of admission of colleges but it may be resorted to only as an additional or supplementary test. It held in paragraph 19 that allocation of more than 15% of the total marks for the oral Interview would be arbitrary and unreasonable and would liable to be struck down as constitutionally invalid. The Apex Court in another Constitution Bench decision in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, In paragraph 25 it has been held that written test and viva-voce test both are accepted as essential features for proper selection. It further held that there cannot be any hard and fast rule regarding the precise weight to be given to the viva-voce test, as against the written examination. It may vary from service to service. It held that percentage of marks in the case of ex-service officers in viva-voce test being 33.3% was unduly high and suffer from vice of arbitrariness. In Mohinder Sen Garg v. State of Punjab. 1991 (1) SCO 662 and in Munindra Kumar and others u. Rajiv Govil and others. 1991 13) SCC 368 , the Apex Court held that where there is a written test and interview. 15% marks in all are to be kept for interview. The law with regard to the fixation of marks in interview in selection as held by the Apex Court in Anzar Ahmed Vs. State of Bihar and others, is extracted below :
"..... the decisions of this Court with regard to the fixation of marks for interview in a selection broadly fall in two categories :
(i) Selection for admission to educational institutions ; and
(ii) Selection for employment in service.
The decisions of this Court in R. Chitralekha and another v. State of Mysore and others 1964 61 SCR 368 A. Peeriakaruppan. Etc. v. State of Tamil Nadu and others. 3971 (2) SCR 430 ; Miss. Nishi Maghu and Others Vs. State of Jammu and Kashmir and Others, ; Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, and Koshal Kumar Gupta and others v. State of Jammu & Kashmir and others 1984 13 SCR 407, relate to admission to educational institutions and fall in the first category. In Ajay Hasia''s case (supra) it has been laid down that where selection is made on the basis of written test followed by interview, allocation of more than 15% of the total marks for interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid."
From the aforesaid decisions, it is clear that so far as admission in educational institution is concerned, where there is a written test and Interview both, in such cases marks for interview could not be fixed more than 15% whereas in cases of public employment where there is both written test and interview, in such cases the marks of interview could be fixed above 15% depending upon the nature of public employment. The guidelines framed by the K.N.M.H. that a candidate must obtain 50% marks in interview, gives a chance to the respondents to arbitrarily pick and choose or reject a candidate even where the candidate had obtained 100% marks in the written test and fails to secure 50% marks in the interview, then he is liable to be declared unsuccessful. Therefore, the guidelines framed by the K.N.M.H. that a candidate for selection to D.N.B. course must obtain 50% marks in interview, is arbitrary, unreasonable and contrary to law laid down by the Apex Court and is struck down.
Coming to the next question, the petitioner is entitled for admission because he being the only candidate for two seats in Radiotherapy, the K.N.M.H. in holding further test for determining his selection acted against the brochure issued by N.B.E. A bare perusal of brochure indicates that it contemplates two examinations one for admission and second after completion of course. The first is known as Primary Examination and the second as Final Examination. It does not empower the accredited institution to hold a further test for determining selection. If there would have been more candidates than the number of seats as was in Obstetrics & Gynaecology the K.N.M.H. may have been justified in resorting to some reasonable method including short listing for determining who was the best and most suitable. But it could not hold a test, which was riot only arbitrary but even more rigorous than the N.B.E. primary or final examination. Since the petitioner was the only candidate for D.N.B. course in Radiotherapy, he was entitled to be admitted as a matter of right.
For the aforesaid reasons, the petitioner is entitled for admission in Diplomats of National Board, D.N.B. course in Radiotherapy in K.N.M.H.
In the result, this writ petition succeeds and is allowed. A writ of mandamus is issued directing the respondents to admit the petitioner in Diplomate of National Board. D.N.B. course in Radiotherapy in Kamla Nehru Memorial Hospital, Allahabad, within a period of one week from the date a certified copy of this order is produced before the respondent No. 1. The counsel for respondents Sri Vijay Ratan Agarwal is also directed to inform the order passed by this Court to respondent Nos. 1 and 2.