Kamleshkumar Gordhanlal Shah vs National Board of Examination and 1

Hon''ble Smt. Justice Abhilasha Kumari

Rule. Mr.Anshin H.Desai, learned advocate, waives service of notice of Rule for respondent No.1 and Mr.Nikhil D.Joshi, learned advocate, waives service of notice of Rule for respondent No.2.

The present Civil Application has been made by the applicant, original petitioner, with the following prayers:

A. That YOUR LORDSHIPS be pleased to allow this application;

B. That pending admission and final hearing of the Special Civil Application no.15778 of 2008, YOUR LORDSHIPS be pleased to direct the Respondent Board to declare the result of the theory and practical examinations of DNB final examination (Super Specialty) of the applicant;

C. And pass any other orders as deemed fit in the interest of justice.

The brief background of the case, discernible from the material on record is that, respondent No.1 (National Board of Examination) (hereinafter referred to as "the Board") conducted a Common Entrance Test for the purpose of granting admission to candidates in accredited Postgraduate Centres imparting Super Speciality training in India. The applicant appeared in the examination, but was not successful. As a large number of seats remained vacant due to nonavailability of candidates,the Board issued guidelines to the effect that if candidates from the merit list are not available, the concerned Institute would re-advertise the vacancies under intimation to the Board, which would be filled up from amongst students who had not cleared the Common Entrance Test, after following procedure consistent with the guidelines issued by the Board.

An advertisement was issued by respondent No.2 in the leading newspapers, inviting applications for one seat for the DNB (Genito Urinary Surgery and Urology) course for the year 2008,under intimation to the Board. After appearing in an examination and interview, the applicant was given admission by respondent No.2 Institute for the year 2008. According to the applicant, he joined respondent No.2 Institute on 07/05/2008 and commenced the training, which was to last for three years. Respondent No.2 also submitted the form of the applicant to the Board for the purpose of registration. However, the Board refused to register the applicant as a trainee of respondent No.2 Institute on the ground that the admission process for all DNB Super Speciality Courses for the year 2008 was to be completed by 7th of March 2008 and the applicant was given admission by respondent No.2 much later than that date.

This is, broadly, the controversy that is the subject matter of adjudication in the main petition. During the pendency of the petition, the applicant had filed Civil Application No.14013 of 2010, praying that the respondents be directed to issue a provisional registration number to the applicant, accept his application form and permit him to appear in the DNB final examination (Super Speciality) to be held on 11th and 12th December 2010. On 06/12/2010 this Court (Coram: Akil Kureshi,J) passed an order, disposing of the application. The operative portion of the said order reads as below:

Under the circumstances, without expressing any opinion on the rival contentions, on the central controversy regarding the admission of the petitioner and without creating any equity in favour of the petitioner, he shall be PERMITTED to appear in such examination, to be held on 11TH-12TH DECEMBER, 2010, without insisting for either FINAL or PROVISIONAL registration, provided he is, OTHERWISE, eligible to appear in such examination and fulfills the requirements, under the rules. His result WILL NOT be declared. His answer-sheets may be ASSESSED, but, be kept in a SEALED cover.

(Emphasis as it is)

The applicant then preferred another Civil Application, being Civil Application No.3379 of 2011 praying that the Board be directed to declare the result of the Theory Examination of the DNB Final Examination (Super Speciality) of the applicant or, in the alternative, allow him to appear in the practical examination of DNB Final Examination (Super Speciality) on such terms and conditions as the Court deems fit. This application came to be disposed of by order dated 17-03-2011 (Coram:K.M.Thaker,J), the operative part of which is reproduced below:

Under the circumstances, without expressing any opinion on the rival contentions and/or on the merits of the matter and on the central controversy regarding the admission of the petitioner and without creating any equity or right of any nature whatsoever in favour of the petitioner, it is directed that he shall be permitted to appear in the practical (final of DNB- Super Speciality) on the same terms and in the same manner as was done in case of theory examination and without insisting for either FINAL or PROVISIONAL registration, provided he is, OTHERWISE, eligible to appear in such examination and fulfills the requirements, under the rules. His result WILL NOT be declared. His answer-sheets may be ASSESSED, but, be kept in a SEALED cover.

(Emphasis as it is)

This brings us to the prayer made by the applicant in the present application, that has been reproduced hereinabove, which is, essentially, to direct the Board to declare the result of the applicant in the Theory and Practical Examinations of DNB (Super Speciality).

Mr.Mitul K.Shelat, learned counsel for the applicant submits that it would be necessary to declare the results of the applicant as only when they are declared would it be known whether the applicant has passed or failed. In the event that the applicant is successful, no further action would be required but if he is unsuccessful, he could appear in the examination to be held in December 2011, for failed candidates, otherwise he would have to wait for the next such examination which would be held in the year 2012. It is contended that if the results of the applicant are not directed to be declared, he would be seriously prejudiced as another academic year would be wasted.

The application has been vehemently opposed by Mr.Anshin H.Desai, learned counsel for the Board, by submitting that the matter is pending adjudication since the year 2008. Though the applicant has been able to complete the three years'' course on the strength of interim orders of this Court, this Court has specifically ordered that the result of the applicant will not be declared, and the answersheets, which may be assessed, shall be kept in a Sealed Cover. It is contended that declaration of the result would amount to review of order dated 06-12- 2010 of this Court, that has been passed consciously, keeping in mind the controversy in issue in the main petition. That, when the said order was passed, the applicant did not oppose the same, and he cannot now demand that the result be declared.

9.1 The learned counsel for the Board has further argued that when the very registration of the applicant is in issue, to permit declaration of the result would tilt the equity in favour of the applicant, on the basis of unwarranted sympathy, which course would not be in consonance with the principles enunciated by the Supreme Court in Mahatma Gandhi University and Another Vs. Gis Jose and others (2008) 17 SCC 611. It is further contended by Mr. Desai, that no prejudice would be caused to the applicant if the result is not declared, as the main issue in dispute in the petition is yet to be adjudicated, and no equity may be created in favour of the applicant, before that stage. It is, therefore, prayed that the application be dismissed.

Mr.Nikhil D.Joshi, learned counsel for respondent No.2, has submitted that respondent No.2 Institute has rightly given admission to the applicant as, in the year 2008, there was no cut-of date. However, as this submission touches upon the merits of the case, it may not be necessary to deal with it, at this stage.

Coming to the prayers made by the applicant in the present application, it cannot be overlooked that the very admission of the applicant for the DNB (Genito Urinary Surgery and Urology) course is in question, in the main petition. Though this Court, by order dated 06-12-2010, permitted the applicant to appear in the Examination, it has been specifically stated that the result will not be declared and the answer sheets, though may be assessed, shall be kept in a Sealed Cover. In order dated 17-03-2011, while permitting the applicant to appear in the practical (final of DNB Super Speciality) examination, a similar caveat has been put by the Court, while clearly stating that the result of the applicant will not be declared and though the answer sheets may be assessed, they shall be kept in a Sealed Cover. It is, essentially, these orders that would come in the way of the applicant in the present application, as the net result of the prayer made by him would amount to reviewing/modifying the said orders, without there being any specific prayer, for review/recall or modification.

It was known to the applicant that if he fails in the examination, he could reappear, at a later point of time. However, when the orders dated 06-12-2010 and 17-03-2011 were passed, no objection was raised by the applicant to that part of the orders that prohibit declaration of the result and direct that the assessed answer sheets shall be kept in a Sealed Cover. It is not disputed before this Court, that another opportunity to appear in the examination would be available to the applicant, assuming that he has failed, during the next year. The applicant has virtually completed the three years'' Degree course, on the strength of interim orders,therefore, the contention of the learned counsel for the Board, to the effect that declaration of his result, at this stage, would amount to tilting the equity in favour of the applicant, does carry weight. In the view of this Court, no prejudice is likely to be caused to the applicant if his result is not declared, as the petition is at the stage of final hearing and can be heard and decided, at the earliest.

In Mahatma Gandhi University and Another Vs. Gis Jose and others (Supra), the Supreme Court has held, as below:

The misplaced sympathies should not have been shown in total breach of the rules. In our opinion, that is precisely what has happened. Such a course was disapproved by this Court in CBSE v. Sheena Peethambaran. In para 6 of the judgment, this Court observed as follows:

This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared, the mater deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions.

As has already been stated hereinabove, declaration of the result of the petitioner would result in the equity being tilted in his favour since the applicant has been able to complete his course on the strength of the interim orders. Though the arguments advanced by the learned counsel for the applicant may appear attractive at the first blush, the Court has to keep in mind the consequence of misplaced sympathy, as stated by the Supreme Court, upon final adjudication of the case.

Even otherwise, when the petition is ripe for hearing and final decision, it cannot be said that any prejudice would be caused to the applicant if the result is not declared, as the petition is pending since the year 2008. The core issue in the petition still remains to be decided, therefore, no fundamental or legal right of the applicant has been infringed by not declaring the result of the examination. This Court, in the orders dated 06-12- 2010 and 17-03-2011, was aware of this situation and appears to have consciously stated that the answer sheets of the applicant may be assessed and kept in a Sealed Cover and the result shall not be declared. There is no justifiable reason for this Court to modify those directions.

In view of the above facts and circumstances, in the view of this Court, no prejudice is likely to be caused to the applicant if his result is not declared, at this stage.

For reasons stated hereinabove, the application is rejected. Rule is discharged.

The petition may be listed for final hearing on 16-01-2012.