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2012 DIGILAW 17 (BOM)

Nupur Vishnu Dhankani v. Union of India

2012-01-05

A.A.SAYED, D.Y.CHANDRACHUD

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Judgment : ORAL JUDGMENT: DR. D.Y. CHANDRACHUD, J. 1. Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal. 2. The Petitioner has challenged inter alia a decision of the National Board of Examinations communicated by a letter dated 19 July 2011 addressed to the Dr.D.Y. Patil Medical College cancelling accreditation of the College for DNB programmes in all specialities and consequently, declining to register the Petitioner for the course. 3. The Petitioner completed her M.B.B.S. together with the Internship in February 2008 and was admitted in August 2008 to a Post Graduate programme of the College of Physicians and Surgeons, Mumbai. The Petitioner completed the Post Graduate Diploma in Child Health in October/November 2010. On 2 December 2009, the Union Government derecognized the Post Graduate Degree and Diploma Courses of the College of Physicians and Surgeons. The Petitioner moved this Court in a Writ Petition under Article 226 of the Constitution. A Division Bench of this Court by an order dated 9 February 2011 granted adinterim relief directing the National Board of Examinations to allow the Petitioner to apply for and enroll for the DNB Degree Course. This order of the Division Bench was passed on the basis that the Petitioner was admitted to the Post Graduate diploma Course prior to the derecognition of the course by the Union Government on 2 December 2009. 4. On 4 February 2011, Dr.D.Y. Patil Medical College, the Fourth Respondent, published an advertisement inviting applications from candidates for the secondary DNB Course, including inter alia in the discipline of Paediatrics for the period from 15 February 2011 to 14 February 2013. The Petitioner was permitted to join the course by the Fourth Respondent for the Session commencing from 15 February 2011. The Fourth Respondent certified that the Department of Paediatrics was accredited to the National Board of Examinations for training DNB secondary trainees and that the accreditation was valid until June 2012. As a matter of fact, it is now an admitted position that the provisional accreditation which was granted to the Fourth Respondent by the National Board of Examinations (the Third Respondent) on 1 August 2007 in the discipline of Paediatrics was valid for a period of three years until December 2010. As a matter of fact, it is now an admitted position that the provisional accreditation which was granted to the Fourth Respondent by the National Board of Examinations (the Third Respondent) on 1 August 2007 in the discipline of Paediatrics was valid for a period of three years until December 2010. The letter of accreditation stipulated that the registration forms for candidates for the January Session shall under no circumstance be sent after 15 February and for the July Session after 15 August. Since the accreditation of the Fourth Respondent was not renewed after December 2010, the Information Bulletin published by the Third Respondent in December 2010 for admission to DNB programmes for January 2011 did not contain the name of the Fourth Respondent as one of the accredited institutions. Clause 2.24 of the Information Bulletin requires candidates to verify whether the hospital/institute was accredited for the DNB programme and contains a disclaimer that the National Board of Examinations shall not be liable for any claim resulting from admission to a Course not recognized by the Board or admission to a hospital not possessing valid accreditation for any particular course or speciality. 5. The Petitioner, as noted earlier, had moved this Court in a writ proceeding in which a Division Bench directed by its order dated 9 February 2011 that her application should be considered for the DNB programme as a secondary candidate. The Fourth Respondent has stated before the Court that it was in March 2011 that the Petitioner communicated a copy of the order passed by the Division Bench. The Fourth Respondent claims that since the interim order was communicated to the Institute only in March 2011, the Institute sent the registration form of the Petitioner to the National Board of Examinations (NBE) for the July Session. Since the accreditation of the Fourth Respondent was to expire in December 2010, the institute states that it had applied for renewal in March 2010. NBE appointed an Inspection Team by its letter dated 23 July 2010 and inspection of the College was conducted on 25 September 2010. NBE appears to have addressed a communication on 4 November 2010 to the institute pointing out certain deficiencies. On 14 March 2011, NBE addressed a letter to the institute stating that it had not received a response to its earlier letter. NBE appears to have addressed a communication on 4 November 2010 to the institute pointing out certain deficiencies. On 14 March 2011, NBE addressed a letter to the institute stating that it had not received a response to its earlier letter. Eventually, by a communication dated 19 July 2011, addressed to the Fourth Respondent, NBE stated that it had received complaints from four candidates who were allotted seats in Medicine, Obstetrics and Gynaecology and Dermatology that the College had demanded very high fees, ranging from Rs.7 to 7.5 lakhs from each student, failing which it was stated that the students would not be allowed to join. NBE noted in its letter that its guidelines stipulate a maximum fee of Rs.50,000/. According to NBE, the College was also not willing to pay stipend as required to students admitted to the DNB course. Consequently, the accreditation of the College for all DNB programmes was withdrawn. As a consequence, the applications of candidates for registration were returned, including the application submitted by the Petitioner. 6. The withdrawal of accreditation has not been challenged by the Fourth Respondent. No submission has been urged on behalf of the Petitioner at the hearing as regards the withdrawal of accreditation. The Petitioner has sought a direction from this Court to NBE to either grant registration so as to permit the Petitioner to continue as a secondary trainee for the DNB programme for the batch commencing in February 2011 or in the alternative a direction that the Petitioner should be accommodated in any other College. During the course of the hearing, Counsel appearing on behalf of the Petitioner has actually pressed the alternate prayer set out in prayer clause (g) of the Petition. 7. An affidavit in reply has been filed in these proceedings by the NBE in which it has been stated inter alia that as a matter of fact the accreditation of the Third Respondent in the speciality of Paediatrics had expired by efflux of time on 31 December 2010 and was never renewed. The application of the Petitioner was received by the Third Respondent in July 2011 and was returned in August 2011 after preliminary scrutiny. The application of the Petitioner was received by the Third Respondent in July 2011 and was returned in August 2011 after preliminary scrutiny. According to the Third Respondent, the admission of the Petitioner was thus completely unlawful since as a matter of fact, the name of the Fourth Respondent was not included in the list of accredited institutions published by NBE for the Session commencing in July 2011. According to the Third Respondent, (i) The Fourth Respondent had no accreditation in the Speciality of Paediatrics when the Petitioner was allowed to join in February 2011; (ii) The Fourth Respondent in terms of its provisional accreditation was permitted to enroll secondary candidates only after primary candidates had joined; and (iii) The Fourth Respondent had not admitted any primary candidates for the January 2011 Session in Paediatrics and, therefore, in any event could not have enrolled the Petitioner for the January 2011 Session. 8. In view of the reply filed by NBE, this Court by its order dated 20 October 2011 directed that notice be issued to the Fourth Respondent to show cause as to why necessary steps should not be taken to direct the grant of appropriate relief to the Petitioner against the Fourth Respondent, who admitted the Petitioner despite knowledge of the fact that there was no accreditation for the Paediatrics Speciality after December 2010. In response to the notice, the Fourth Respondent has filed an affidavit of its Dean dated 14 December 2011. The affidavit notes that the institute had applied for renewal of accreditation and it was, for the first time, by a letter dated 19 July 2011 that the institute was informed by NBE of the cancellation of its accreditation. According to the Fourth Respondent, the Petitioner was aware of the fact that the accreditation of the institute was valid upto December 2010 and that the application for renewal was pending. According to the Fourth Respondent, the application of the Petitioner was processed only after she became eligible to apply for admission in pursuance of the interim order of the Division Bench dated 9 February 2011. Counsel appearing on behalf of the Fourth Respondent has, in support, submitted that there was no mala fide intent on the part of the Fourth Respondent and the admission that was granted to the Petitioner was in the hope that the accreditation of the institute would be renewed beyond December 2010. Counsel appearing on behalf of the Fourth Respondent has, in support, submitted that there was no mala fide intent on the part of the Fourth Respondent and the admission that was granted to the Petitioner was in the hope that the accreditation of the institute would be renewed beyond December 2010. Counsel submitted that the certificate which was issued by the Fourth Respondent certifying that the accreditation of the Fourth Respondent in the Paediatrics Speciality was valid until June 2012 was an inadvertent error since as a matter of fact, it was in the case of the General Surgery Speciality that the Fourth Respondent had an accreditation until June 2012. 9. The primary relief that has been sought by the Petitioner which seeks to enforce a direction for registering the Petitioner as a secondary DNB trainee either in the Fourth Respondent or in any other institution cannot be granted. The provisional accreditation that was granted to the Fourth Respondent on 1 August 2007 in Paediatrics was valid only until December 2010 and has not been renewed thereafter. The Information Bulletin published by NBE in December 2010 did not include the name of the Fourth Respondent for the Paediatrics Speciality as an accredited institution. NBE had by its notice dated 31 December 2010 clarified that the selection process for secondary DNB candidates shall be undertaken only after primary candidates had joined the course. Moreover, it was stated that the process shall be conducted strictly on the basis of the guidelines of NBE and that accredited centres shall have to ensure transparency and objectivity in the process. The Fourth Respondent had no accreditation at all in Paediatrics after December 2010. As a matter of fact, NBE’s letter dated 14 March 2011 to the Fourth Respondent recorded that the institute had not responded to its earlier communication dated 4 November 2010 following an inspection conducted by the Inspection Team. Eventually, as already noted earlier, the accreditation of the Fourth Respondent was withdrawn in all specialties on 19 July 2011 on the ground that the institute was found to be charging fees well in excess of the stipulation made by NBE and on the ground that the institute was not paying a stipend to the admitted candidates. Eventually, as already noted earlier, the accreditation of the Fourth Respondent was withdrawn in all specialties on 19 July 2011 on the ground that the institute was found to be charging fees well in excess of the stipulation made by NBE and on the ground that the institute was not paying a stipend to the admitted candidates. A direction cannot be issued to NBE by this Court in the exercise of its jurisdiction under Article 226 of the Constitution contrary to the mandate of its admission regulations. 10. The matter, however, cannot, in our view, rest merely on the finding of the Court that a direction cannot be issued as against NBE to register the Petitioner. The Fourth Respondent granted admission to the Petitioner as its certificate at Exhibit ‘G’ would indicate as a secondary DNB trainee for the February 2011 Session. The certificate states in no uncertain term that the accreditation of the Fourth Respondent in Paediatrics was valid until June 2012. This statement in the certificate is evidently false since it is an admitted position before the Court that the provisional accreditation that was granted to the Fourth Respondent on 1 August 2007 was valid only until December 2010 and was not renewed thereafter. According to Counsel for the Fourth Respondent, the statement in the certificate is erroneous, but mistaken since it was in the speciality of General Surgery that the College had an accreditation valid until June 2012. Moreover, according to the Fourth Respondent, the institute acted on the expectation that its accreditation would be renewed; and it is only on 19 July 2011 that NBE cancelled accreditation in all specialities, including that of a Paediatrics. We are not inclined to accept that submission for the simple reason that it is evident that there was no renewal of the accreditation beyond December 2010 in Paediatrics at all. As a matter of fact, the Fourth Respondent could not, in law, have admitted any student in the Paediatrics Speciality since admittedly there was no renewal of the provisional accreditation after December 2010. As a result of the admission which was granted by the Fourth Respondent, the Petitioner has lost a valuable part of her professional career in pursuing admission for a course in an institute which was not entitled to admit any candidate in Paediatrics. As a result of the admission which was granted by the Fourth Respondent, the Petitioner has lost a valuable part of her professional career in pursuing admission for a course in an institute which was not entitled to admit any candidate in Paediatrics. The Fourth Respondent could not have been unmindful of the serious consequence which would follow to the life of a student admitted without authority of law. There is no evidence in support of the submission of the institute before this Court that the student was on notice of the fact that she was seeking admission to an institute which was not accredited. The certificate which was issued to the student is to the contrary. The primary responsibility must lie on the institute to act in compliance with law. Where as in the present case, an institute has granted admission in defiance of the applicable regulations and in a completely unlawful manner, the Court would be failing in its obligation to render justice if it were not to take cognizance of the conduct of the institution and direct it to provide restitution. The Court, in our view, is duty bound to grant some remedial measure to a student who has suffered by losing valuable time, effort and money. Counsel for the Fourth Respondent states that the Fourth Respondent would return the amount of Rs.1,10,000/that has been recovered from the Petitioner towards the Hostel accommodation. In addition, we direct that the Fourth Respondent shall pay to the Petitioner compensation which we quantify at Rs.1 lakh which shall be paid over within a period of two weeks from today. 11. For the reasons which we have indicated, we have not granted any relief to the Petitioner as against NBE. The Fourth Respondent shall, for the reasons stated above, pay to the Petitioner an amount of Rs.1 lakh as compensation, in addition to the repayment of the Hostel fees in terms of the statement made on instructions before the Court, within a period of two weeks from today. 12. Rule is made absolute in these terms. There shall be no order as to costs.