DR PRASUNA CHILUKA vs NATIONAL BOARD OF EXAMINATIONS & ANR.
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16 April 2024
Pronounced on: 21 May 2024
+ W.P.(C) 15345/2023, CM APPL. 61559/2023, CM APPL. 61560/2023 and CM APPL. 64009/2023
DR PRASUNA CHILUKA ….. Petitioner
Through: Mr. Kotla Harshavardhan, Ms.
Mansi Sood and Ms. Gayatri Gupta, Advocates
versus
NATIONAL BOARD OF
EXAMINATIONS & ANR. ….. Respondents
Through: Mr. Kirtiman Singh, Mr. Waize
Ali Noor, Mr. Kartik Baijal and Mr. Aryan Agrawal, Advocates for NBE
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 21.05.2024
W.P.(C) 15345/2023
1. The petitioner is a doctor, who graduated with an MBBS degree in March 2010 and MD degree in General Medicine on 27 June 2015.
2. In 2015 itself, the petitioner was diagnosed with Lupus Nephritis, for which she was administered high dose intravenous and oral steroids. The treatment, to some extent, continues even as on date. This resulted in the petitioner developing severe steroid toxicity, hirsutism, acne, obesity and myopathy among other complications.
3. On her medical condition improving to some extent, the petitioner applied for, and was appointed to, the post of Civil Assistant Surgeon Specialist at the District Hospital, Sircilla, Telangana in July 2018. According to the averments in the writ petition, her duties as Civil Assistant Surgeon Specialist involved approximately 30 hours of working per week, which enabled the petitioner to also take care of her own medical problems.
4. The petitioner nonetheless underwent the NEET-SS 2019, conducted by the National Testing Agency (NTA), for entrance into Super Speciality programs. The petitioner elected for the Super Speciality of Medical Gastroenterology. She was ranked 1001. She was, accordingly, admitted to the DrNB program for the Super Speciality of Medical Gastroenterology in the Pushpagiri Institute of Medical Sciences and Research Centre, Tiruvalla, Kerala (hereinafter referred to as PIMSRC).
5. Consequently, the petitioner took leave from her posting at the District Hospital, Sircilla with effect from 14 September 2019 and joined PIMSRC as DrNB Super Speciality Trainee on 15 September 2019.
6. As a result of deterioration of her health, the petitioner claims to have been constrained to apply to the PIMSRC for eight months leave starting from 25 November 2019, with loss of pay, so that she could undergo medical treatment and recuperate.
7. During the above period, the petitioner returned to her hometown at Karimnagar. The writ petition avers that, as she needed a source of income being the sole bread-earner in the family, the petitioner decided to rejoin her duties at the District Hospital, Sircilla, as it merely involved five hours of work a day. The Commissioner, Telangana Vaidya Vidhana Parishad, Hyderabad, allowed the petitioner to join duty at the District Hospital, Sircilla on 28 November 2019, pending disciplinary action.
8. The application submitted by the petitioner to the PIMSRC in November 2019, seeking eight months leave was forwarded by the PIMSRC to the National Board of Examinations in Medical Sciences (NBEMS), which is the competent leave sanctioning authority, on 10 January 2020, with a copy marked to the petitioner.
9. Admittedly, no communication was issued by the NBEMS rejecting the petitioners request for leave. The petitioner, therefore, claims to have continued to proceed on the belief and assumption that her leave had been sanctioned, especially as she had applied to the PIMSRC before proceeding to leave and the PIMSRC had also forwarded the application to the NBE.
10. It is not in dispute that, despite having thus being made aware of the petitioners application for leave at least on or around 10 January 2020, the NBEMS never wrote either to the PIMSRC or to the petitioner, during the entire period for which she had sought leave, raising any objection in that regard.
11. In March 2020, COVID-19 struck. As an immunocompromised patient, the medical condition of the petitioner is claimed to have deteriorated, as a result of which she was unable to rejoin duty with the PIMSRC in time.
12. On 25 August 2020, the PIMSRC wrote to the petitioner opining that it was a good time for her to resume her duties in the PIMSRC after the prescribed stay in quarantine and that postponing her return any further would not serve any purpose.
13. As per the writ petition, in September 2020, the petitioner and her parents were infected with COVID-19. Given her sensitive state of health and prolonged exposure to immunosuppressant medicines, the petitioner was unable to rejoin duty till December 2020.
14. On 7 December 2020, the petitioner returned for duty at the PIMSRC, immediately on lifting of COVID-19 restrictions. She was, however, quarantined for seven days as per protocol, and rejoined training with the PIMSRC on 16 December 2020. She submitted an application and rejoining report, seeking permission to rejoin to the PIMSRC on 16 December 2020. The report was countersigned by the Principal of the PIMSRC on 17 December 2020, permitting her to rejoin.
15. The rejoining report date 16 December 2020, of the petitioner, was forwarded by the PIMSRC to the NBEMS on 28 December 2020.
16. The petitioner, thereafter, continued with her DrNB training in the PIMSRC and did not seek any further medical leave.
17. On 7 September 2021, the petitioner applied for 20 days leave from 14 September 2021 to 3 October 2021, as she was getting married. The application was recommended by the PIMSRC and forwarded to the NBEMS, which, vide the following letter dated 17/20 December 2021, addressed to the PIMSRC, sanctioned leave as sought by the petitioner:
NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES
(Autonomous Body under Ministry of Health and Family Welfare, Govt. of India)
Mahatma Gandhi Marg (Ring Road), Ansari Nagar, New Delhi 110029
Ref. No: NBE/T &M/C&R/2019/NEET-SS/1944105999/Gastroenterology 6088-6089 dated 17/20.12.2021
The Head of the Institution
Pushpagiri Institute of Medical Sciences and Research Centre,
Pushpagiri Medical College Hospital,
Tiruvalla – 689101 Kerala
Sub: Leave of Dr. Prasuna CH-reg.
Sir/Madam,
This is in reference to your email dated 05.10.2021 on the subject cited above.
NBE has been made to understand that the above candidate has applied leave on personal grounds from 14.09.2021 to 03.10.2021 and she re-joined on 04.10.2021.
Your kind attention is invited to the prescribed NBEMS leave norms which have been duly communicated to you through web notices published on NBEMS website www.natboard.edu.,in time to time.
As per the revised leave rules dated 20.03.2018 candidates join in or after 2018 can avail Maternity/Paternity leave, as per the Central or State Government policies, whichever is applicable to DNB/FNB training institute. Any leave availed by the DNB/FNB trainee other than the eligible leave mentioned in the revised leave rules dated 20.03.2018 (i.e 30 days per year), shall lead to extension of DNB /FNB training to complete the prescribed duration of training as mentioned in the information bulletin and registration letter.
I am directed to inform you that leave applied by the candidate on personal grounds from 14.09.2021 to 03.10.2021 and her rejoining on 04.10.2021 has been considered and accepted by NBEMS. Please note that leave availed by the candidate other than the eligible leave shall lead to extension of DNB training.
The extension of leave more than a year will lead to cancelation of registration of candidate.
Please note that any further leave beyond NBEMS leave norms availed by the candidate shall invite prior NBEMS approval.
Yours sincerely,
Assistant Director (Medical)
(Training and Monitoring Division)
Copy to:
Dr. Prasuna CH
H. NO. 8-2-386,
Near Brundavan Gardens, Bhagath Nagar, Karim Nagar, Telangana
18. The writ petition asserts that, as this leave, as sought by the petitioner, was sanctioned by the NBEMS without any adverse comment made regarding the earlier period of leave of the petitioner from 25 November 2019 to 15 December 2020, of which the NBEMS was made aware, the petitioner proceeded on the premise that the NBEMS had no objection to the earlier leave that she had availed.
19. The petitioner, thereafter, submitted a proposal for her DrNB thesis, which was accepted and approved by the PIMSRC on 22 December 2021 and was communicated to the petitioner on 22 December 2021.
20. In 2022 and 2023, the petitioner had again to take leave for 15 days from 17 July 2022 to 31 July 2022 and, thereafter, for two more days on 8 and 9 August 2023, owing to her infant daughter initially being affected by COVID-19 and, thereafter being diagnosed with Avascular Necrosis of Femur.
21. The petitioner completed and submitted her thesis to the NBEMS in 2023.
22. On 18 July 2023, the NBEMS wrote to the petitioner thus:
Acknowledgement for Online Thesis Submission Trainees
NBE
To: prasuna.chiluka@gmail.com
Thesis Submission Form of Dr.PRASUNA.CH and Regn no. DNB:310-28139-192-224483 is hereby acknowledged.
For assessment of your Thesis, the documents as state below should reach NBEMS within the next 5 working days, preferably through SPEEDPOST.
Print out of the Fresh Thesis Submission Form duly signed by the Trainee, Guide / Co-Guide, Head of the Department, Head of the Institution (with stamp).
Hard-bound Thesis along with all relevant enclosures.
Declaration cum undertaking for Fresh Thesis duly signed by Trainee, Guide, Co-Guide (if any), Head of the Institution.
Thesis Protocol (Institutional Ethics Committee (IEC)) clearance certificate.
Summary of the Thesis.
23. The thesis protocol of the petitioner was approved by the PIMSRC on 22 July 2023.
24. On 17 August 2023, the NBEMS addressed the following communication to the petitioner, apropos her thesis (eliminating the vernacular portion thereof which is merely a translation of the English):
NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES
(Autonomous body under Ministry of Health & Family Welfare, Govt. of India)
Ref.No. NBEMS/THESIS/2023/M-230932 Date:17-08-2023
Dr. PRASUNA.CH
Subject: – Modification of Thesis-regarding
Dear Candidate,
CLINICAL ANALYSIS OF PULMONARY PROFILE IN PATIENTS WITH CIRRHOSIS OF LIVER WITH REFERENCE TO ARTERIAL OXYGEN SATURATION AND PULMNOARY FUNCTION TESTS
Your Thesis titled CLINICAL ANALYSIS OF PULMONARY PROFILE IN PATIENTS WITH CIRRHOSIS OF LIVER WITH REFERENCE TO ARTERIAL OXYGEN SATURATION AND PULMNOARY FUNCTION TESTS in the Specialty of Gastroenterology has been assessed and cannot be accepted in the present form.
Modifications as suggested by the Assessor are enclosed herewith. You are directed to submit the revised Hardbound Thesis after incorporating all suggested modifications within a period of 06 weeks from the issuance of this communication. Online modified thesis submission form & guidelines are available on NBEMS website. https://www.natboard.edu.in/thesisonline/index.php
It may be noted that the Application for modified thesis is to be submitted ONLY through online mode at https://www.natboard.edu.in/thesisonline/index.php.
25. The petitioner submitted a modified thesis as suggested by the NBEMS, which was accepted by the NBEMS vide the following acknowledgement dated 13 September 2023:
From: NBE
Subject: Acknowledgement for Online Thesis Submission Trainees
To: prasuna.chiluka@gmail.com
Provisional Submission of Thesis Form of Dr.PRASUNA.CH and Regn no. DNB:310-28139-192-224483 is hereby acknowledged.
The confirmation of submission of form is subject to verification of uploaded thesis and documents by NBEMS. The deficiency (if any) shall be communicated to candidate through email and candidates thesis dashboard panel. It is suggested to keep watching thesis dashboard for updates regarding your thesis
26. Prior thereto, on 31 August 2023, the NBEMS issued a public notice inviting applications for the DrNB final theory examination.
27. On 13 September 2023, the PIMSRC issued a provisional DrNB Training Completion Certificate to the petitioner. This was revised twice on 30 September 2023 and 7 October 2023. In each case, the certificate stated that the petitioner would complete the mandatory three years of DrNB training on 12 November 2023. The period of leave availed by the petitioner was reflected, in each of the certificates, thus:
Year of Training
Period
Period of Leave
No. of days
First Year
15.09.2019
To
25.10.2021
25.11.2019 to 15.12.2020
387 days
14.09.2021 to
03.10.2021
20 days
Second Year
26.10.2021 to
09.11.2022
17.07.2022 to 31.07.2022
15 days
14.10.2022
1 day
Third Year
10.11.2022 to till date (30.09.2023)
08.08.2023 to 09.08.2023
2 days
28. It may be noted, here, that, of the above leaves availed by the petitioners, formal approval from the NBEMS was accorded only for the leave of 20 days availed from 14 September 2021 to 3 October 2021, though the applications for leave for all other periods were also submitted well in advance and in accordance with the procedure prescribed in that regard.
29. On 14 September 2023, the petitioner applied for appearing in DrNB theory examination in Medical Gastroenterology which was to be conducted on 12 to 14 October 2023.
30. On 27 September 2023, a system generated response was received by the petitioner from the NBEMS requiring the petitioner to upload NBE approval or supportive documents in case of extension of DNB training. The petitioner thereupon wrote to the NBEMS on 2 October 2023, seeking regularization of the periods of leave availed by her.
31. The NBEMS, on 4 October 2023, issued a show cause notice to the petitioner, intimating her that she had not appeared in the minimum required numbers of Formative Assessment Tests (FATs) during the period of her DrNB training, which was mandatory for appearing in the DrNB final examination. The petitioner responded on 6 October 2023 informing NBEMS that she had appeared in the FATs conducted by the PIMSRC in July 2021 and in March and April 2023, which rendered her eligible for appearing in the DrNB theory examination, as the information bulletin for the said examination required mandatory appearance in at least two FATs in the case of students of Super Speciality courses, such as the petitioner.
32. The writ petition emphasises the fact that, even at this stage, no adverse observation regarding any period of leave availed by the petitioner was made by the NBEMS.
33. A day prior to the DrNB final theory examination, which was to be conducted on 12 October 2023, the NBE, on 11 October 2023 addressed the following communications to the petitioner:
NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES
(Autonomous Body under Ministry of Health and Family Welfare, Govt. of India)
Mahatma Gandhi Marg (Ring Road), Ansari Nagar, New Delhi 110029
Ref. No: NBEMS/T&M/C&R/NEET-SS/2019/1944105999/32242, 32243 dated 11.10.2023
DR. PRASUNA CH
H. NO. 8-2-386,
NEAR BRUNDAVA GARDENS, BHAGATH NAGAR,
KARIM NAGAR, TELANGANA
Sub: Cancellation of Candidature with NBEMS-reg.
Sir/Madam,
You have been allotted DrNB seat in the specialty of Gastroenterology through stray round of NEET-SS 2019 counseling at Pushpagiri Institute of Medical Sciences and Research Centre, Pushpagiri Medical College Hospital, Tiruvalla – 689101 Kerala.
Kindly refer to the TCC (Provisional) dated 13.09.2023, which mentioned training completion details and leave availed during the tenure. The matter has been examined by NBEMS and it has been noted that you had availed total 486 leaves during entire training period. In this regard your attention is invited to NB EMS leave norms whereas it is mentioned that:-
A DNBIFN/3 Trainees can avail a maximum of 30 days of leave in a year excluding regular duty off I Gazetted holidays as per hospital I institute calendar I policy.
As per the revised leave rules dated 20.03.2018 candidates join in or after 2018 can avail Maternity I Paternity leave, as per the Central or State Government policies, whichever is applicable to DNB/FNB training institute.
Any Leave availed by the candidate other than the eligible leave (30 days per year) shall lead to extension of DNB IFNB training (If the extension of leave of more than a year will lead to cancellation of candidature). The training institute has to forward such requests to NBEMS along with the leave records of the candidate since
his/her joining and supportive documents (if any) through the Head of the Institute with their recommendation/comments.”
Unauthorized absence from DNBIFNB training for more than 7 days may lead to Cancellation of registration and discontinuation of the DNBIFNB training and rejoining shall not be permitted.
In view of the above, this is to inform you that your candidature to pursue Dr NB training in the specialty of Gastroenterology at Pushpagiri Institute of Medical Sciences and Research Centre, Tiruvalla, Kerala for 2019 admission session stands CANCELLED.
The matter has been closed and no further communication shall be entertained in this regard.
This issues with the approval of the competent authority.
Yours sincerely,
Sd
(Rashmi Munjal)
Assistant Director
Counseling & Registration
Training and Monitoring Division
Copy to:
The Head of the Institution
Pushpagiri Institute of Medical Sciences and Research Centre,
Pushpagiri Medical College Hospital,
Tiruvalla – 689101 Kerala
*****
NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES
(Autonomous Body under Ministry of Health and Family Welfare, Govt. of India)
Mahatma Gandhi Marg (Ring Road), Ansari Nagar, New Delhi 110029
Ref. No: NBEMS/DoEC/51016/X/October 2023/2321048237/ 2023/32324 dated 11/10/2023
DR. PRASUNA CH
H. NO. 8-2-386,
NEAR BRUNDAVA GARDENS,
KATTARMPUR, KARIM NAGAR,
TELANGANA 505001
8977176500
Sub: Regarding DNB/DrNB-FINAL Theory Examination October 2023 Session
Dear Candidate,
Refer your application for DNB/DrNB Final Theory Examination – October 2023 bearing Application ID 2321048237 in the specialty of MEDICAL GASTROENTEROLOGY.
Since your registration for DNB training has been cancelled by NBEMS vide letter No NBEMS/T&M/C&R/NEET-SS/2019/1944105999/32242-43 dated 11.10.2023, you are not eligible to appear in DNB Final Examination – October 2023.
In view of the above, I am directed to inform you that your application for DNB/DrNB Final Theory Examination – October 2023 cannot be considered and admit card for DNB/DrNB Final Theory Examination – October 2023 not be issued to you.
Yours sincerely,
Sd
Dr. Devender
Assistant Director (M.)
Department of Examination Conduct
34. Paradoxically, thereafter, on 16 October 2023, the NBEMS issued a certificate to the petitioner certifying that her thesis had been accepted towards partial fulfilment with the award of DrNB Gastroenterology.
35. It is in these circumstances that the petitioner has approached this Court by means of the present writ petition seeking issuance of an appropriate writ for quashing and setting aside the decision to cancel the DrNB candidature of the petitioner as contained in the letter dated 11 October 2023 extracted in para 33 (supra) and for consequential relief.
36. The NBEMS has filed a counter affidavit. The prayer of the petitioner has been contested on various grounds.
37. It is sought to be contended, inter alia, thus:
(i) The petitioner joined DrNB training without disclosing the fact that she was employed as Civil Assistant Surgeon Specialist at the District Hospital Sircilla.
(ii) The FAQ1 published on the website of the MCC which conducted the NEET SS 2019 clearly stated that, if a candidate was employed with another organization, she, or he, had to furnish a No Objection Certificate (NOC)/Relieving Letter, issued by her, or his, employer before joining the institute where the DrNB training was to be undertaken.
(iii) No such NOC from the District Hospital Sircilla, or from the Government of Telangana, was furnished by the petitioner before joining DrNB training.
(iv) The petitioner was, therefore, ineligible to pursue the DrNB course, thereby entitling the NBEMS to cancel the petitioners candidature.
(v) While seeking leave on medical grounds vide her application dated 25 November 2019, and remaining away from DrNB training till 16 December 2020, the petitioner, in the intervening period, resumed her services as Assistant Civil Surgeon in the District Hospital, Sircilla on 28 November 2019, where she discharged her duties.
(vi) The petitioner had proceeded on leave without any prior approval of the NBEMS, which was mandatory.
(vii) Clause 8.6 of the Registration Letter dated 22 June 2020 issued to the petitioner by the NBEMS registering her for DrNB training, which dealt with the extension of DrNB training on availment of leave by a candidate for 30 days per year specifically went on to state, in Clause 8.7, that extension of DrNB training was permissible only in extraordinary circumstances with prior approval of the NBE, and was neither automatic nor to be granted as a matter of routine.
(viii) The petitioner was never granted approval for any period of leave except the period of 20 days, which she sought in order to attend her marriage.
(ix) Even in the approval letter dated 20 December 2021 of the NBEMS approving the leave sought by the petitioner on the ground of her marriage from 14 September 2021 to 3 October 2021, it was specifically stated that extension of leave for more than a year would lead to cancellation of the petitioners candidature.
(x) As the petitioner had, in her application seeking leave, never disclosed the earlier leave availed by her, the NBEMS failed to note the said fact and inadvertently approved the 20 days leave period sought by the petitioner in 2021.
38. The NBEMS further avers that it was only in the examination application submitted by the petitioner that the NBEMS became aware of the total leave that the petitioner had availed. It is further asserted that the NBEMS never approved rejoining of the petitioner with PIMSRC on 16 December 2020. It is further pointed out that even while initially applying for eight months leave, the petitioner suo moto extended leave for four more months without any approval from the NBEMS and without seeking any such approval either. The NBEMS submits that it cannot keep track of the leave availed by thousands of candidates who undertake the DrNB course and it is for the candidate concerned to keep the NBEMS abreast of the leave that she or he has availed.
39. Pointing out that consistency in training is essential for building up and comprehensive understanding of patient care and long interruption in training, as in the case of the petitioner, impedes the progress of the candidate as required by the prescribed curriculum and affects the essential learning components of the training program, the NBEMS submits that the decision to cancel the petitioners candidature was perfectly justified.
Rival Contentions
40. I have heard Mr. Kotla Harshavardhan on behalf of the petitioner and Mr. Kritiman Singh on behalf of the NBEMS, at length. Written submissions have also been tendered by learned counsel.
41. Mr. Harshavardhan submits that, besides the fact that it was issued to the petitioner one day before the DrNB Final Theory examination to be held on 12 October 2023, the impugned communication, cancelling the petitioners DrNB candidature, did not disclose proper application of mind either. It is submitted that the decision to cancel the petitioners DrNB candidature is purely mechanical.
42. Mr. Harshavardhan further submits that, during oral arguments in Court, Mr. Kirtiman Singh has advanced an altogether new ground to support cancellation of the petitioners DrNB candidature, which finds no place in the impugned order of cancellation, viz., that the petitioner was performing her duties as Civil Assistant Surgeon Specialist at the District Hospital, Sircilla during the period for which she desired to be treated as on leave. Besides the fact that such a new ground cannot be urged to support the impugned order, Mr. Harshavardhan submits that, even on merits, this cannot constitute a basis to cancel the petitioners DrNB candidature. It is pointed out that the inability of the petitioner to continue with her DrNB training at PIMSRC was only because the nature of duties was unduly strenuous and, as a patient of Lupus Nephritis, she was not in a position to devote such long hours for work. Having therefore proceeded to her home town, she had to find means to sustain herself, which was why she rejoined duties at the District Hospital, Sircilla. The working hours in the District Hospital, Sircilla were far more relaxed than in the DrNB training course, so that she was in a position to undertake it and sustain herself during her period of recuperation.
43. Mr. Harshavardhan also seeks to point out that, out of the total period of three years of DrNB training that the petitioner was required to undergo, she has already completed 2 years and 332 days and only 33 days of training remain. The applicable Rules permit her to complete the said training upto 31 December 2024 in order to be entitled to be awarded the DrNB qualification. So long as she was in a position to complete the required mandatory training till 31 December 2024, the petitioner was eligible to undertake the DrNB Final Theory examination to be conducted from 15 to 17 May 2024 and was not required to be relegated to the next examination to be conducted in January 2025. He points out that there is no dispute that the petitioner would complete her DrNB training much before 31 December 2024.
44. The Leave Rules did not contain any provision by which, solely on the ground of the extension of leave that the petitioner had to avail, the DrNB candidature of the petitioner could have been cancelled. Reliance was being placed by the NBEMS on the response to Question 11 in the FAQs appended to the Leave Rules, which read thus:
11) What is the maximum period of leave of any kind which can be allowed to a DNB/FNB trainees? What is the impact if such limit is exceeded?
Ans. A DNB/FNB Trainees can avail a maximum of 30 days of leave in a year excluding regular duty off / Gazetted holidays as per hospital / institute calendar / policy. Any Leave availed by the DNB/FNB Trainees other than the eligible shall lead to extension of DNB /FNB training. Under normal circumstances leave of one year will not be carried forward to the next year. However, in exceptional cases such as prolonged illness, the leave across the DNB/FNB training program may be clubbed together with prior approval of NBE. NBE shall consider such requests on merit, provided the seat is not carried over and compromise with training of existing trainees in the Department. If the extension of leave more than a year will lead to cancelation of candidature.
45. Though the answer to Question 11 in the FAQs envisaged cancellation of candidature in the case of extension of leave for more than a year, the Leave Rules themselves did not contain any such provision. A dispensation not contained in the Leave Rules could not be added in the FAQs and even if, it was so added, would not be of any legal or binding effect. Moreover, the FAQs were published on 18 November 2019, more than 18 months after the Leave Rules were published on 20 March 2018 and nearly two months after the petitioner had joined her DrNB on 15 September 2019. The FAQs were not therefore strictly speaking an annexure or appendix to the Leave Rules. Besides they could not have been made retrospectively applicable to the petitioner who had joined her DNB course prior thereto. The stipulation that extension of leave for more than a year would result in cancellation of the DrNB candidature did not find place even in the Information Bulletin for the 2023 examination undertaken by the petitioner.
46. Moreover, Mr. Harshavardhan submits that the use of the expression may in the answer to FAQ 11 indicated that the cancellation of the DrNB candidature was not an inexorable consequence of extension of leave of the candidate beyond one year. The provision was permissive and entrusted the NBEMS with discretion. That discretion was required to be exercised judiciously and keeping in mind the facts of the case. The impugned decision to cancel the petitioners DrNB candidature does not reflect judicious exercise of discretion.
47. Besides, the petitioner had vide her application dated 25 November 2019 sought leave of eight months as she was suffering from Lupus Nephritis. Rule 6 of the Leave Rules required the application to be submitted to the Hospital where she was undergoing her DrNB training. The Leave application was duly submitted by the petitioner to the PIMSRC and was also forwarded to the NBEMS on 10 January 2020. The inability of the petitioner to rejoin in November 2019 was only because owing to her medical pre-disposition, she fell within the highly vulnerable category of persons likely to contract COVID-19 which she actually suffered, resulting in her able to rejoin only on 16 December 2020. These facts were also intimated to the NBEMS by Respondent 2 on 28 December 2020.
48. The NBEMS, however, did not condescend to respond to any of these communications, because of which, submits Mr. Harshavardhan, the petitioner proceeded on the bona fide belief that her period of leave had been regularized. This belief was strengthened by the fact that when she subsequently sought leave to attend to her marriage, it was granted by the NBEMS with no caveats and with no reference to the earlier period of leave availed by her. It is pointed out in this regard that in its counter affidavit filed by way of response to this writ petition, Respondent 1 has acknowledged the fact that it had indeed received the emails dated 10 January 2020 and 16 December 2020 but has pleaded the incoherent situation during the COVID-19 as the justification for not processing the said mails. Besides, thereafter, the NBEMS actively permitted the petitioner to participate in the requisite formalities in connection with her DrNB course including payment of fees, participation in the Formative Assessment Tests (FATs) in 2022 and proposal, modification and final approval of her thesis. All these factors contributed to the bona fide belief of the petitioner that the period of her leave from 25 November 2019 to 15 December 2020 stood acknowledged and granted by the NBEMS.
49. Apropos the allegation in the counter affidavit that, at the time of obtaining admission to the DrNB course, the petitioner had concealed the fact that she was employed as a Civil Assistant Surgeon Specialist with the District Hospital, Sircilla, Mr. Harshavardhan submits that this is not a ground on which the petitioners DrNB candidature was cancelled. That apart on merits, he points out that this contention has been answered by him in paras 3 and 4 of the rejoinder filed by the petitioner in the present proceedings which read thus :
3. The preliminary objection raised by the Respondent No.1 in the Reply is that the Petitioner allegedly failed to disclose the fact that she was in service as Civil Assistant Surgeon Specialist (General Medicine) at the District Hospital, Sircilla at the time of her admission to the DrNB course at the Respondent No. 2 institute. At the outset, it is reiterated at the risk of repetition that the issue of non-disclosure of prior employment is not a ground for cancellation of the Petitioners candidature in the Impugned Cancellation Letter and the Respondent No. 1 cannot now seek to rely on the same to justify the cancellation of her candidature. It is pertinent to note that in fact, it is the Petitioner who has herself made specific disclosures with regard to her employment with the Government of Telangana in the instant Petition, in order to come with clean hands before this Honble Court.
4. While it is admitted that the Petitioner did not submit any No Objection Certificate (NOC) from the District Hospital, Sircilla/Government of Telangana before joining the DrNB course at the Respondent No. 2 institute or during the biometric and certificate verification, it is submitted that the same was on account of the same never having been asked for, nor forming part of the documents to be submitted at the time of counselling. It is categorically and specifically denied that the Petitioner intentionally did not disclose the position to the Respondent No.1, as alleged or otherwise. In fact, even the document check-list for the biometric and certificate verification (@Page 31 of Annexure R-3 along with the Reply) does not contain a 2 column for NOC/relieving letter. Further, the options given in the declaration and certification list (@Page 32 of Annexure R-3 along with the Reply) were also unclear and created confusion in so far as both, option 1 (not pursuing any other post-graduate medical course other than this DNBSS course and nor ever under any bond) and option 2 (under a bond/ employed) were applicable to the Petitioner, even though the question was framed as an either/or question. In view of this, the Petitioner herein ticked the most relevant box (being option 1) to the best of her understanding, without any mala fide intention. Even otherwise, such a requirement was not previously mentioned in the email received by the Petitioner with regard to attending the biometric and documents verification nor was such a document asked for by the Respondent No. 2 at any time. Therefore, the Petitioner was under the bona fide belief that she was not required to submit any other document at the relevant time
50. Mr. Harshavardhan submits therefore that the decision to cancel the petitioners DrNB candidature was unsustainable in law and also taken without affording the petitioner a prior opportunity of personal hearing, a day prior to her DrNB Final Theory examination. For all these reasons, he submits that decision is liable to be set aside.
Submissions of Mr. Kirtiman Singh in response
51. Mr. Kirtiman laid great emphasis during arguments on the fact that, having sought long leave on 25 November 2019 on the ground that she was suffering from a debilitating illness and having proceeded to her home town, she went ahead on 26 November 2019, to apply to the Sircilla Hospital to rejoin her duties there as Civil Assistant Surgeon Specialist. This submits, Mr. Kirtiman Singh, reflects clear want of bona fides. The petitioners contention that she was unable to pursue her DrNB training at PIMSRC on account of her medical condition cannot, therefore, be believed. He submits it could not be accepted that the petitioner was unable to pursue her DrNB training in PIMSRC but was fit enough to work as Civil Assistant Surgeon Specialist at the Sircilla Hospital.
52. Mr. Kirtiman Singh further submits that the petitioner was also guilty of having concealed, at the time of her obtaining admission to her DrNB course, the fact that she was already employed as Civil Assistant Surgeon Specialist at Sircilla. He refers to another FAQ issued by the NBE, particularly, to the following question and answer:
Q. What if I am employed and wish to attend the counselling?
A. You can attend the counselling and opt for a seat also, however, if a candidate is employed or under any kind of bond, he/she has to furnish a No Objection Certificate and/or Relieving letter issued by competent authority of concerned University /Employer at the time of joining the allotted institute.
53. Despite the above requirement, Mr. Kirtiman Singh submits that the petitioner neither informed the NBEMS about her prior employment with the District Hospital, Sircilla, nor obtained an NOC from the said Hospital before joining her DrNB training at PIMSRC. Mr. Kirtiman Singh relies on the judgment of the Division Bench of this Court in Dr. Vivek Kumar v. NBE2, for the proposition that non-submission of the NOC from an employment at the time of obtaining admission to an examination could constitute a justifiable basis for cancelling the admission.
54. While acknowledging that this is not a ground on which the petitioners DrNB candidature was cancelled, Mr. Kirtiman Singh cites the judgment of the Supreme Court in PRP Exports v. Chief Secretary, Government of Tamil Nadu3, to contend that as it was a fact which came to light subsequently, this Court could take judicial notice thereof.
55. Mr. Kirtiman Singh also disputes the petitioners contention that the stipulation that extension of leave for more than a year could result ipso facto in the cancellation of her DrNB candidature, could not be enforced upon her as it was only contained in a FAQ and not in the Leave Rules. For the proposition that the FAQs also constituted part of the applicable Rules, Mr. Kirtiman Singh places reliance on paras 43 to 46 and 102 of Prakash Gupta v. S.E.B.I.4; paras 14 and 27 of Neeraj Sharma v. U.O.I.5; paras 37 and 38 of Vishal Dahiya v. Medical Counselling Committee6 and paras 26, 54, 59 and 61 of Defsys Solutions Private Ltd. v. UOI7.
56. Besides, submits Mr. Kirtiman Singh, the request for extension of DrNB training on the ground of availment of leave in excess of 30 days per year was, as per the registration letter dated 22 June 2020 issued to the petitioner, a matter to be considered by the NBEMS on merits, provided the seat was not carried over and granting the request did not compromise with training of existing trainees in the department. It was not, therefore, a matter of right.
57. Mr. Kirtiman Singh seeks to submit that the NBEMS could not maintain constant watch over the leave availed by several thousands of candidates registered with it nor could it be expected to minutely scan every communication submitted to it and refute any content therein, contrary to the Rules. Reliance is placed in this context on the judgment of a Division Bench of this Court in National Board of Examinations v. Dr. Rajani Sinha8. At the same time, it is acknowledged that the said decision was carried to the Supreme Court by way of SLP in which, by order dated 22 August 2022, the Supreme Court has kept open the issue of the correctness of the manner in which the Division Bench interpreted the relevant rules and regulations pertaining to leave.
58. Mr. Kirtiman Singh submits finally relying on the decisions in Dr. Sharddha Saxena v. State of M.P.9; Dr. Manjunath M. v. Guru Gobind Singh Indraprastha University10; Damini Sonkar v. U.O.I.11, that Courts ought not to interfere with well considered decisions to proceed against candidates who have been absent from training or from duties without leave.
Analysis
Re: Ground for cancellation of DrNB candidature of the petitioner
59. The impugned order dated 11 October 2023, which cancelled the petitioners DrNB candidature, is predicated on one sole ground, which was that the petitioner had remained absent on leave for a total period of 486 days during her training period, of which there was no authorisation for a period of 387 days. Thus, the sole ground on which the impugned order dated 11 October 2023 cancelled the petitioners DrNB candidature was of unauthorised absence for more than seven days.
60. In the counter affidavit filed by way of response to the writ petition and during oral arguments, the NBEMS has advanced two other grounds to defend the cancellation of the petitioners DrNB candidature. The first is that the petitioner, having sought eight months leave starting from 25 November 2019, vide her application dated 25 November 2019, on the ground that her clinical condition did not allow her to continue with the DrNB training, proceeded to join duty as Civil Assistant Surgeon Specialist at the Sircilla Hospital on 28 November 2019. This, according to Mr. Kirtiman Singh, indicates that the petitioner was not unable, in fact, to continue with her DrNB training but basically wanted to rejoin at the Sircilla Hospital. The ground on which leave was sought by the petitioner w.e.f. 25 November 2019, from continuing with her DrNB. training was, therefore, in his submission, not believable.
61. The second ground, which does not find place in the impugned order dated 11 October 2023, but which has been urged both in the counter affidavit as well as by Mr. Kirtiman Singh in Court, is that, at the time of joining of her DrNB course, the petitioner had concealed the fact that she was already employed as Civil Assistant Surgeon Specialist at the Sircilla Hospital. Additionally, it is sought to be submitted that the petitioner had not produced an NOC from the Sircilla Hospital, as was required by the FAQs published on the website of the NBEMS, before joining DrNB training.
62. Are these grounds available to the NBEMS?
63. As far back as in 1978, a Constitution Bench of the Supreme Court, speaking through V.R. Krishna Iyer J., held, in Mohinder Singh Gill v. Chief Election Commissioner12, that an executive order, under challenge before the Court, has to be supported on the reasons contained in the order, and by none else. The order cannot be sought to be improved by providing additional reasons in the counter affidavit filed by way of response to the challenge. Reliance was placed, in this context, on an equally classic decision, authored by Vivian Bose J., in Commissioner of Police v. Gordhandas Bhanji13. Paras 8 of the report in Mohinder Singh Gill, which encapsulates this legal position, reads as under:
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commr. of Police, Bombay v. Gordhandas Bhanji:
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
64. Mohinder Singh Gill has been followed by the Supreme Court in case after case, including Bahadur Singh Lakhubahi Govil v. Jagdishbhai M Kamalaya14, Hindustan Petroleum Corporation v. Darius Shapur Chenai15, Bangalore Development Authority v. R. Hanumaih16, K.K. Bhalla v. State of MP17, Ashoka Smokeless Goal Industries Pvt Ltd v. UOI18, State of Punjab v. Bandeep Singh19, Haryana Urban Dev. Authority v. Orchid Infrastructure Developers Pvt Ltd20, Opto Circuit India Ltd v. Axis Bank21, The Andhra Pradesh Industrial Infrastructure Corporation Limited v. S.N. Raj Kumar22, Pancham Chand v. State of Himachal Pradesh23, Girish Vyas v. The State of Maharashtra24, Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority 25 and United Air Travel Services v. Union of India26.
65. The principle that an order, whether executive or quasi-judicial, has to stand, or fall, on the reasons contained in that order, and that it is not open to the party defending the order before the court to provide additional reasons to support it, may therefore be treated as fossilized in the law.
66. Applying this principle, the only ground which is open to the NBEMS, to support the impugned order dated 11 October 2023, is the reason contained in that order, and none other. The only reason contained in the impugned order dated 11 October 2023 is that the petitioner remained absent on leave without authorisation for more than the maximum period envisaged in that regard. Such unauthorised absence, according to the impugned order, would necessarily visit the petitioner with cancellation of her DrNB candidature.
67. The supplementary grounds urged in the counter affidavit, viz. that the plea of illness was untrue as the petitioner had joined duty at the District Hospital, Sircilla, and that the petitioner had failed to disclose the fact of her earlier employment at the District Hospital Sircilla, before joining her DrNB course or obtain an NOC from the said hospital, being outside the impugned order dated 11 October 2023 cannot, applying the Mohinder Singh Gill dictum, be urged by the respondent as grounds on which the impugned order can be sought to be defended.
68. This Court, in examining the correctness of the impugned order, is therefore, strictly speaking, only required to consider whether cancellation of the petitioners DrNB candidature could have been justified on the ground of her unauthorised absence. Though I have, hereinafter, also examined the other two grounds urged by the NBEMS in its counter affidavit as well, that is only because the said grounds were urged, and not because they are available to the NBEMS as grounds to support the impugned order.
Provisions for cancellation of DrNB candidature on the ground of availment of excess leave
69. It goes without saying that cancellation of candidature of a medical student is an extreme act. It wipes out, in one fell swoop, years of study that the student has undertaken. It can, therefore, be supported only on grounds on which cancellation of candidature is permissible by the applicable Rules.
70. The leave rules applicable to the petitioner, and to the DrNB course which she was pursuing, read thus:
LEAVE RULES FOR DNB/FNB TRAINEES
Attention: All NBE Accredited Hospitals/ Institutes/Medical Colleges and DNB/FNB Trainees
The following revised leave rules shall apply to the candidates, those who join on or after 2018. Those who joined before 2018, the old leave rule shall be applicable.
1. DNB/FNB Trainees are entitled to avail leave during the course of DNB/FNB training as per the Leave Rules prescribed by NBE.
2. A DNB/FNB Trainees can avail a maximum of 30 days of leave in a year excluding regular duty off/ Gazetted holidays as per hospital/institute calendar/policy. This leave shall be processed at the institutional level.
3. Any kind of study leave is not permissible to DNB/FNB Trainees.
4. Under normal circumstances leave of one year should not be carried forward to the next year. However, in exceptional cases such as prolonged illness, the leave across the DNB/FNB training program may be clubbed together with prior approval of NBE.
5. Unauthorized absence from DNB/FNB training for more than 7 days may lead to cancellation of registration and discontinuation of the DNB/FNB training and rejoining shall not be permitted.
6. Any Leave availed by the candidate other than the eligible leave (30 days per year) shall lead to extension of DNB /FNB training. The training institute has to forward such requests to NBE along with the leave records of the candidate since his/her joining and supporting documents (if any) through the Head of the Institute with their recommendation/comments. NBE shall consider such requests on merit provided the seat is not carried over and compromise with training of existing trainees in the Department.
7. Any extension of DNB/FNB training beyond the scheduled completion date of training is permissible only under extra-ordinary circumstances with prior approval of NBE. Such extension is neither automatic nor shall be granted as a matter of routine.
8. DNB/FNB trainees are required to complete their training by a prescribed cutoff date (as per information bulletin of Exit exam) for being eligible to DNB/FNB Exit examination.
9. The eligibility for DNB/FNB Final Examination shall be determined strictly in accordance with the criteria prescribed in the respective information bulletin.
71. The Leave Rules, and the FAQs applicable thereto, envisage cancellation of DNB/DrNB candidature in two circumstances, which are to be found in Rule 5 and the answer to FAQ 1127.
72. Rule 5 of the Leave Rules provides that over 7 days unauthorized absence from DNB training may lead to cancellation of DNB registration. The answer to FAQ 11 states, on the other hand, that leave in excess of the eligible maximum under the Leave Rules would result in extension of DNB/DrNB training by a corresponding period, and that if the extension is of more than a year, it will lead to cancelation of candidature.
73. Mr. Kirtiman Singh has sought to invoke, against the petitioner, both Rule 5 of the Leave Rules and the answer to FAQ 11.
74. It is appropriate, therefore, to address them individually.
Can the answer to FAQ 11 be cited as a justification for the impugned decision?
75. What is the status of a stipulation contained in a FAQ? Can an additional liability be casted on the citizen in an answer to a FAQ, which finds no place in the substantive Rules to which the FAQ relates?
76. FAQs are merely Frequently Asked Questions. The answers provided to FAQs are merely intended to dispel doubts regarding the actual import of the rules themselves. It is not permissible, in my view, to introduce, in the answer to an FAQ, seeking a clarification regarding the Rules, an element, or a stipulation, which finds no place in the Rules.
77. Before adverting to the decisions cited by Mr. Kirtiman Singh in this regard, the sequitur of this proposition must be understood.
78. Rules, it is trite, may be supplemented, but cannot be supplanted, by executive instructions.28 A dispensation which is provided in an executive instruction, in excess of the rule, cannot be used against the citizen, but binds the authority issuing the instruction to the extent it is beneficial to the citizen. In other words, while a citizen can claim the benefit of a beneficial dispensation contained in an executive instruction, even if the instruction transcends the Rule, the authority issuing the instruction cannot enforce it against a citizen, if it is prejudicial to the citizen concerned.
79. Expressed otherwise, if the Rule contains a certain stipulation, and an additional benefit is conferred by an executive instruction, beyond the stipulation contained in the Rules, the authority issuing the executive instruction is bound thereby, and cannot refuse to confer the benefit to the citizen on the ground that it is contained only in an executive instruction. If the authority is of the view that the benefit conferred by executive instruction was wrongly conferred as it travelled beyond the rules, the instruction itself has to be withdrawn or rescinded. So long as it in place, the authority concerned is bound by it, to the extent it benefits the citizen.
80. If, however, something is contained in an executive instruction which is not contained in the rule, and which is prejudicial to the citizen, it is open to a citizen against whom the executive instruction is being sought to be enforced to argue that the concerned dispensation cannot be enforced as it travels beyond the Rule.
81. Plainly expressed, the executive authority is empowered to confer a benefit to a citizen even by executive instructions, even where the field is otherwise occupied by Rules, but cannot enforce a liability against a citizen, which the Rules do not contemplate, by an executive instruction.
82. This is because no principle of equitable estoppel can be invoked against a citizen, whereas it applies with full force against the authority in favour of the citizen. If, therefore, the executive instruction contains something which is to the benefit of the citizen, the author of the instruction is bound by that dispensation, applying the principle of equitable estoppel, even though it is a dispensation not to be found in the Rule.
83. To support his reliance on the FAQs, Mr. Kirtiman Singh has placed reliance on the judgment of the Supreme Court in Prakash Gupta, and of this Court in Neeraj Sharma, Vishal Dahiya and Defsys Solutions.
Prakash Gupta
84. The relevant paragraphs in Prakash Gupta may be reproduced thus:
43. In a Circular dated 20-4-2007, SEBI issued guidelines for consent orders under Sections 15-T of the SEBI Act and Section 23-A of the Depositories Act, 1996, and for compounding of offences under Section 24-A of the SEBI Act, Section 22-A of the Depositories Act and Section 23-N of the Securities Contracts (Regulation) Act, 1956. It noted that compounding of an offence may cover appropriate prosecution cases filed by SEBI before the criminal courts and can take place after filing criminal complaint by SEBI. Finally, it notes the procedure to be followed by an accused person while seeking compounding, in the following terms:
Any party who wishes to compound an offence shall file an appropriate application before the court where complaint is pending with a copy addressed to the Prosecution Division, Enforcement Department of SEBI’s Mumbai office (address is given above) which will forward the application/request to be placed before the High-Powered Committee. The terms of compounding as recommended by the Committee and approved by the Panel of WTMs would be placed before the court by the Prosecution Division by way of written submissions or application, as appropriate, for passing orders as the court deems fit.
(emphasis supplied)
44. Accompanying this circular were certain frequently asked questions (FAQ) issued by SEBI. The relevant ones are extracted below:
Q.6. What is the objective of Compounding of Offence?
A. Compounding of offence allows the accused to avoid a lengthy process of criminal prosecution, which would save cost, time, mental agony, etc. in return for payment of compounding charges.
***
Q. 14. At what stage Compounding of Offence can take place?
A. At any stage after filing criminal complaint by SEBI. Where a criminal complaint has not yet been filed but is envisaged, the process for consent orders will be followed rather than the one for compounding.
***
Q. 16. What is the process for passing consent orders/compounding of offences?
A.
Any party who wishes to compound an offence shall file an appropriate application before the court where complaint is pending with a copy addressed to the Prosecution Division, Enforcement Department of SEBI’s Mumbai office which will forward the application/request to be placed before the High-Powered Committee. The terms of compounding as recommended by the Committee and approved by the competent authority would be placed before the court by the Prosecution Division by way of written submissions or application, as appropriate, for passing orders as the court deems fit
***
Q. 23. What will be the consequences of non-acceptance?
A. In cases where SEBI is not inclined to accept Settlement/Compounding of offence, SEBI would file its objections before SAT/Court for consideration.
45. SEBI amended the Circular dated 20-4-2007 through a Circular dated 25-5-2012. While the circular primarily issues new guidelines in relations to consent orders, it also provides a list of offences which SEBI shall not settle, which includes:
(ii) Serious fraudulent and unfair trade practices which, in the opinion of the Board, cause substantial losses to investors and/or affects their rights, especially retail investors and small shareholders or have or may have market wide impact, except those defaults where the entity makes good the losses due to the investors;
46. A combined reading of the two circulars and FAQs issued by SEBI clarifies the following : firstly, a party can seek compounding under Section 24-A at any stage once the criminal complaint has been filed by SEBI; secondly, the party shall have to file the application for compounding before the court where the criminal complaint is pending; thirdly, a copy of the application for compounding must also be sent to SEBI, which will place it before HPAC [ Constituted under Circular dated 25-5-2012 to consist of a retired Judge of a High Court and three other external experts, as may be decided by the Board from time to time.] ; and fourthly, HPAC’s decision on the application, be it an acceptance or an objection, shall be placed by SEBI before the appropriate court, which will have to pass appropriate orders. Hence, this makes it abundantly clear that while HPAC’s decision on a party’s application for compounding under Section 24-A must be placed before the appropriate court, the final decision must remain in the domain of the court.
85. Unlike the present case, the Supreme Court, in Prakash Gupta, was not concerned with FAQs which contained a dispensation not to be found in the Rules to which the FAQs pertained. Besides, the FAQs were accompanying a Circular issued by the SEBI, so that their stature was the same as that of the circular, both being administrative instructions.
86. The Circular dated 20 April 2007, issued by the SEBI provided that
(i) a party who wished to compound an offence was required to file an appropriate application before the court where the complaint instituted by the SEBI was pending,
(ii) a copy of the application was required to be addressed to the Prosecution Division, Enforcement Department of the Mumbai office of the SEBI,
(iii) the Prosecution Division was required to forward the application to the High-Powered Committee (HPC),
(iv) the HPC was required to recommend the terms of compounding,
(v) the terms of compounding were to be approved by the panels of WTMs29 and
(vi) the terms of compounding thus recommended by the HPC and approved by the WTMs panel were to be placed before the court by the Prosecution Division of the SEBI and
(vii) the court was, thereafter, to pass such orders on the compounding application as it deemed fit.
87. Questions 6, 14, 16 and 23 of the FAQs merely reiterated the position already available in the Circular, further setting out the objective of compounding of offence and the state at which the application for compounding could be made.
88. The Supreme Court, therefore, in para 46 of the report encapsulated the position which emerged from the Circular read with the FAQs and observed, in conclusion, that, while the HPCs decision on the compounding application would be placed before the Court, the ultimate decision on the application was to be taken up by the Court.
89. Inasmuch as Prakash Gupta did not involve a situation in which the FAQs in issue introduced a limitation or a handicap not to be found in the Circular in respect of which they were issued, the decision cannot assist the NBEMS in the present case.
90. Besides, the Supreme Court has specifically noted, in para 44 of the report in Prakash Gupta, that the FAQs were accompanying the Circular dated 20 April 2007. They, therefore, were in the nature of an adjunct to the Circular. As against that, in the present case, the Leave Rules were published on 20 March 2018 and FAQs were published on 18 November 2019, almost 18 months after the Leave Rules. They did not, therefore, strictly speaking, accompany the Leave Rules, unlike the FAQs in Prakash Gupta.
91. There is also substance in the submission of Mr. Harshavardhan, in this context, that the FAQs could not have been applied against the petitioner, as they had been issued two months after the petitioner had joined her DrNB course.
Neeraj Sharma
92. Neeraj Sharma was a case in which the application filled in by the petitioner itself stipulated that the applying candidates had to abide by the FAQs. Moreover, the Division Bench of this Court noted that, on the application form, there was a hyperlink directly taking the candidate to FAQs. It was in these circumstances that the court rejected the contention that the FAQs were not binding as they were not part of the application. Para 27 of the report may, in this context, be reproduced thus:
27. The contention of learned counsel for the respondent that FAQs do not form part of the application form, in our view cannot be sustained for the reason that the advertisement itself stipulates that the candidates have to abide by the FAQs on the website and there is a hyperlink taking the candidates directly to the FAQs. Clearly, by providing the hyperlink in the advertisement itself, respondents have made all the terms and conditions of the FAQ a part of the application process.
93. In the present case, no such circumstances exist. The decision in Neeraj Sharma cannot, therefore, be of any help to the NBEMS. If anything, it may be deduced, from Neeraj Sharma, that, in the absence of any specific indicator that the FAQs would bind the candidate concerned, they cannot be regarded as binding.
Vishal Dahiya
94. Vishal Dahiya was a judgment of a learned Single Judge of this Court. Paras 37 and 38 of the said decision read thus:
37. In the present case, both the institutions in question, have all along been described as Central Institutes both by the respondent no. 1 and respondent no. 2, this was made clear as early as on 10.06.2021 when the respondent no. 2 issued its Information Bulletin, and was reiterated in the Information Brochure issued by respondent no. 1 on 03.10.2021. It is also undisputed that these institutes are funded and maintained by the Central Government. In my view, this position that in all Central Institutions, admissions against seats reserved for the OBC was meant to be only for those in the Central OBC list was, therefore, crystal clear to everyone right from the beginning. Moreover, all the candidates were also well aware that in all central institutes including the VMMC & SJH, ABVIMS & RML, ESIC, BASAIDARAPUR, it was only the central OBC list which was being followed for Under Graduate courses from NEET-PG 2020 itself. At the same time, it cannot be denied that FAQ no. 50 as initially notified on 03.10.2021, and thereafter, on 10.01.2022 sought to convey otherwise. Undoubtedly, the impression sought to be given was that the admission against OBC seats in the institutional preference seats would be as per the Delhi OBC list; this was however, changed on 12.01.2022. While the respondent no. 1 claims it was a mistake which was corrected, the petitioners contend otherwise. The changes in FAQ no. 50 are mentioned hereinbelow:
NEET-PG Information Bulletin & Counselling Scheme on Respondent No. 1’s website before 13.1.2022
NEET-PG Information Bulletin & Counselling Scheme on Respondent No. 1’s website on 13.1.2022
Q. No. 50 : What is the criteria for OBC reservation in Central Institutes of IP University?
Q. No. 50 : What is the criteria for OBC reservation in Central Institutes of IP University?
Ans : There will be provision for OBC candidates of state quota of IP University to exercise their right of OBC reservation in IP University seats while they will be treated as UR (General Category) in All India Quota.
Ans: The rules of Central Institutes/University and the OBC list as per Central Rules will apply.
38. Though, the petitioners are justified in urging that they were misled by answer to FAQ no. 50, which was changed only on 12.01.2022 to exclude them, the fact remains that all other clauses, of both the brochure of respondent no. 1, and the Information Bulletin of respondent no. 2 clearly indicated that in these two institutes, described as Central Institutes, it was the Central OBC List which would be applicable, both for the AIQ and Institutional seats. The brochure and bulletin have to be read as a whole and compositely; merely because there was an error in the answer to one of the many FAQs, which error too was amended before the petitioners were to undertake their choice filling, cannot unfortunately, come to their aid.
95. The issue before this Court in Vishal Dahiya was, therefore, whether a change in the FAQ, which was earlier favourable to the citizen, which operated to his prejudice, could be implemented against him. This Court held otherwise, rejecting the contention of the MCC that the change was only clarificatory. Vishal Dahiya also did not, therefore, deal with a situation in which the FAQ provided for a prejudicial dispensation, against the citizen, not to be found in the rules.
Defsys Solutions
96. D