NATIONAL BOARD OF EXAMINATIONS (MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA), NEW DELHI v. GANAPATI BRAT
2007-09-17
ANAND BYRAREDDY, CYRIAC JOSEPH
body2007
DigiLaw.ai
JUDGMENT Cyriac Joseph, C.J. (Oral): This writ appeal is filed against the judgment dated 20-7-2006 in Writ Petition No. 22800 of 2005 which was allowed by the learned Single Judge. The appellants are the respondents in the writ petition. The respondent herein is the petitioner in the writ petition. 2. After obtaining his M.B.B.S. Degree, the petitioner underwent the training in Radiotherapy from the Karnataka Cancer Therapy and Research Centre, Hubli and qualified himself to appear in the final examination held by the National Board of Examinations under the Ministry of Health and Family Welfare, Government of India. The final examination consists of examinations in theory and practical. The petitioner appeared and passed in the theory examination held in December 2002. Though he paid the examination fee for the practical examination held in March 2003, the petitioner could not actually appear in the examination due to certain unavoidable reasons. He appeared in the next practical examination held in September 2003, but he was declared failed. He paid the examination fee for the practical examination held in May 2004, but he could not actually appear in the examination as he was not keeping well. However, he appeared in the practical examination held in October 2004 and he was declared passed. Through communication dated 3-2-2005 (Annexure-B to the writ petition) the respondent-Executive Director of the National Board of Examinations informed the petitioner that he had passed the prestigious Diplomate of National Board of Examination and that the convocation of the Board for conferring the degree was scheduled to be held on 26-3-2005 at Hyderabad. The petitioner was also invited to attend the convocation in person and to receive the degree in the midst of galaxy of medical educationists. However, the petitioner sent a request to confer the degree in absentia and the required demand draft for Rs. 150/- was sent along with his request. He also sent a demand draft for Rs. 1,000/- towards enrollment fee. Thereafter, he received Annexure-C communication dated 25-4-2005 from the Executive Director, National Board of Examinations informing him that the certificate would be dispatched by post. Thereafter, nothing was heard from the National Board of Examinations for a long time and hence the petitioner sent Annexure-D letter dated 30-5-2003 requesting to send the degree certificate.
1,000/- towards enrollment fee. Thereafter, he received Annexure-C communication dated 25-4-2005 from the Executive Director, National Board of Examinations informing him that the certificate would be dispatched by post. Thereafter, nothing was heard from the National Board of Examinations for a long time and hence the petitioner sent Annexure-D letter dated 30-5-2003 requesting to send the degree certificate. Since there was no response from the National Board of Examinations, the petitioner filed the writ petition praying for a direction to the respondents to confer on him the degree "Diplomate of National Board in Radiotherapy" and to furnish the degree certificate immediately. The respondents in the writ petition filed a counter-affidavit opposing the prayer in the writ petition. The respondents contended that in view of Clause 7.7(c) contained in the bulletin of information, the petitioner was not eligible to appear in the practical examination held in October 2004 and hence he was not entitled to the degree. According to the respondents, the petitioner did not appear in the practical examination held in March 2003 and therefore, he was entitled only to two more chances. It was contended that since the petitioner appeared and failed in the practical examination held in September 2003 and had paid the examination fee but failed to appear in the practical examination held in May 2004, he had exhausted all the chances available to him and therefore he was not eligible to appear in the practical examination held in October 2004. According to the respondents, he was bound to appear in the whole examination as a fresh candidate appearing both in theory and practical examinations. However, the learned Single Judge rejected the contention of the respondents and upheld the claim of the petitioner and directed the respondents to confer on the petitioner the Diplomate of National Board in Radiotherapy and issue him the degree certificate immediately and to enroll him as such. Aggrieved by the order of the learned Single judge, the respondents in the writ petition have filed this writ appeal. 3. We have heard Sri Shendge, learned Counsel for the appellants and Sri B.Y. Acharya, learned Senior Counsel appearing for the respondent. 4. The question that arises for consideration is whether the interpretation given by the learned Single Judge to Clause 7.7(c) of the bulletin of information is correct or not.
3. We have heard Sri Shendge, learned Counsel for the appellants and Sri B.Y. Acharya, learned Senior Counsel appearing for the respondent. 4. The question that arises for consideration is whether the interpretation given by the learned Single Judge to Clause 7.7(c) of the bulletin of information is correct or not. For convenience Clause 7.7 of the bulletin of information is extracted hereunder: "7.7 Practical examination (Broad Specialities).-(a) Only those successful candidates who have obtained a minimum of 40% in each theory paper and 50% in aggregate shall be allowed for practical examination. (b) Only those candidate who have been declared successful in theory final examination shall be allowed to appear for the practical examination immediately following the theory final examination. (e) If he/she fails or does not appear in the examination he/she will be allowed only two more chances of practical examination within two years of passing the theory examination, on payment of full examination fee. Thereafter such a candidate will be required to take full examination (theory and practical) as a fresh candidate. (d) Candidate who obtain 50% in the aggregate of theory and not less than 50% in practical, shall be declared successful to the speciality examination. (e) NEE will not provide details of marks/grading in the examination". It is admitted by the learned Counsel for the appellants that there are no other rules governing the subject-matter of this case. It is not disputed that even though the petitioner had paid the examination fee for the practical examination held in May 2004, he did not appear in the said practical examination. According to Clause 7.7(b) only such candidates who have been declared successful in theory final examination, shall be allowed to appear for the practical examination immediately following the theory final examination. The petitioner passed the theory examination in December 2002. The practical examination immediately following the theory final examination held in December 2002 was the practical examination held in March 2003. Though the petitioner paid the examination fee, he could not appear in the practical examination held in March 2003. According Clause 7.7(C) if a candidate fails or does not appear in the examination (the reference to examination in this clause can only be to the practical examination immediately following the theory final examination), he will be allowed only two more chances of practical examination within two years of passing the theory examination.
According Clause 7.7(C) if a candidate fails or does not appear in the examination (the reference to examination in this clause can only be to the practical examination immediately following the theory final examination), he will be allowed only two more chances of practical examination within two years of passing the theory examination. There is no definition or explanation for the expression "chance" in the bulletin of information. The question is whether by paying the examination fee but failing to appear in the practical examination held in May 2004, the petitioner has availed of one chance to appear in the practical examination. Ordinarily, a candidate can be said to have availed of the chance to appear in the examination only if the actually appeared in the examination, unless it is specifically stated in the Rules that paying the examination fee and failing to appear in the examination will be counted as one chance or that such a candidate would be deemed to have appeared in the examination. In Annexure-R1 bulletin of information and application format for Diploma of National Board issued by the National Board of Examinations in December 2002, there is no specific provision stating that paying the examination fee and failing to appear in the examination will be counted as one chance or that such a candidate will be deemed to have availed of one chance of practical examination. It is true that in Clause 7.7(c) it is stated that if the candidate fails or does not appear in the examination, he will be allowed only two more chances of practical examination within two years of passing the theory examination. When sub-clauses (b) and (c) are read together, the words in sub-clause (c) "if he/she fails or does not appear in the examination" can only mean that if he or she does not appear in the practical examination immediately following the theory final examination mentioned in sub-clause (b). The said words cannot mean that paying examination fee and failing to appear in any of the subsequent examinations, will amount to availing of one chance to appear in the examination. Hence, we are of the view that the view taken by the learned Single Judge is possible and reasonable. 5. Moreover, the order passed by the learned Single Judge is just and reasonable in the facts and circumstances of this case.
Hence, we are of the view that the view taken by the learned Single Judge is possible and reasonable. 5. Moreover, the order passed by the learned Single Judge is just and reasonable in the facts and circumstances of this case. The petitioner was allowed to appear in the practical examination held in October 2004. No objection was raised then that he was not eligible to appear in the said examination on the ground that he had already exhausted the two chances available to him. The results of the examination were declared and the petitioner was declared passed. He was invited to attend the convocation for conferring the degree. Learned Counsel for the appellants admitted that the results of the examination taken by the petitioner in October 2004 have not been cancelled till date. Even assuming that there was irregularity in admitting the petitioner to the practical examination held in October 2004, the petitione. was not in any way responsible for such irregulmity. The appellants took objection to the admission of the petitioner in the said examination only when he filed the writ petition before this Court. It is also significant that Clause 7.7(c) has stipulated a maximum period of two years for availing of the two chances of practical examination mentioned therein. Admittedly, the petitioner has availed of the chances and passed the practical examination within the maximum period of two years of passing the theory examination. It is also to be observed that in view of the maximum period of two years mentioned in Clause 7.7(C), there is no possibility of a candidate repeatedly paying the fees and failing to appear in the examination and indefinitely prolonging the process of examination. 6. Therefore, we hold that there is no merit in the writ appeal. The writ appeal is dismissed.