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.
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Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

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 month’s
leave starting from 25 November 2019, with loss of pay, so that she
could undergo medical treatment and recuperate.
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Signing Date:21.05.2024
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
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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 petitioner’s 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 petitioner’s 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.
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KUMAR
Signing Date:21.05.2024
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
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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.
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
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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
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KUMAR
Signing Date:21.05.2024
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

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.
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KUMAR
Signing Date:21.05.2024
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Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

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 <thesis@natboard.edu.in> Tue, Jul 18, 2023 at 5:36 PM
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.
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KUMAR
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
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• 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.
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KUMAR
Signing Date:21.05.2024
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

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 <thesis@natboard.edu.in>
Date: Wed, Sep 13, 2023 at 10:25 AM
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
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HARI SHANKAR
Signing Date:21.05.2024
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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:

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
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Signing Date:21.05.2024
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
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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
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Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

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,
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
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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 ,
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HARI SHANKAR
Signing Date:21.05.2024
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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.
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HARI SHANKAR
Signing Date:21.05.2024
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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.
1
(ii) The “FAQ” 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
petitioner’s 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,
1
Frequently Asked Questions
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HARI SHANKAR
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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 petitioner’s
candidature.
(x) As the petitioner had, in her application seeking leave,
never disclosed the earlier leave availed by her, the NBEMS
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HARI SHANKAR
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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 petitioner’s
candidature was perfectly justified.
Rival Contentions
40. I have heard Mr. Kotla Harshavardhan on behalf of the
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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 petitioner’s DrNB candidature, did not
disclose proper application of mind either. It is submitted that the
decision to cancel the petitioner’s 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 petitioner’s 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 petitioner’s 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
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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
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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
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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 petitioner’s 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
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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 petitioner’s 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 Petitioner’s
candidature in the Impugned Cancellation Letter and the
Respondent No. 1 cannot now seek to rely on the same to justify
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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 Hon’ble 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 petitioner’s 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.
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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 petitioner’s 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
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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
2
this Court in Dr. Vivek Kumar v. NBE , 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
petitioner’s DrNB candidature was cancelled, Mr. Kirtiman Singh
cites the judgment of the Supreme Court in PRP Exports v. Chief
3
Secretary, Government of Tamil Nadu , 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 petitioner’s 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
4
paras 43 to 46 and 102 of Prakash Gupta v. S.E.B.I. ; paras 14 and 27
5
of Neeraj Sharma v. U.O.I. ; paras 37 and 38 of Vishal Dahiya v.
6
Medical Counselling Committee and paras 26, 54, 59 and 61 of
2
2020 SCC Online Del 725
3
(2014) 13 SCC 692
4
(2021) 17 SCC 451
5
2023 SCC Online Del 923
6
2022 SCC Online Del 477
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7
Defsys Solutions Private Ltd. v. UOI .
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
8
Examinations v. Dr. Rajani Sinha . 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
9
Dr. Sharddha Saxena v. State of M.P. ; Dr. Manjunath M. v. Guru
7
2023 SCC Online Del 5544
8
2021 SCC Online Del 2719
9
2018 (4) MPLJ 360
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10 11
Gobind Singh Indraprastha University ; Damini Sonkar v. U.O.I. ,
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 petitioner’s 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 petitioner’s
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 petitioner’s 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
10
2021 SCC Online Del 4533
11
2023 SCC Online Del 1784
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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
12
Singh Gill v. Chief Election Commissioner , 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
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affidavit filed by way of response to the challenge. Reliance was
placed, in this context, on an equally classic decision, authored by
13
Vivian Bose J., in Commissioner of Police v. Gordhandas Bhanji .
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.
14
Jagdishbhai M Kamalaya , Hindustan Petroleum Corporation v.
15
Darius Shapur Chenai , Bangalore Development Authority v. R.
16 17
Hanumaih , K.K. Bhalla v. State of MP , Ashoka Smokeless Goal
12
(1978) 1 SCC 405
13
AIR 1952 SC 16
14
(2004) 2 SCC 65
15
(2005) 7 SCC 627
16
(2005) 12 SCC 508
17
(2006) 3 SCC 581
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18 19
Industries Pvt Ltd v. UOI , State of Punjab v. Bandeep Singh ,
Haryana Urban Dev. Authority v. Orchid Infrastructure Developers
20 21
Pvt Ltd , Opto Circuit India Ltd v. Axis Bank , The Andhra
Pradesh Industrial Infrastructure Corporation Limited v. S.N. Raj
22 23
Kumar , Pancham Chand v. State of Himachal Pradesh , Girish
24
Vyas v. The State of Maharashtra , Rashmi Metaliks Ltd. v. Kolkata
25
Metropolitan Development Authority and United Air Travel
26
Services v. Union of India .
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
18
(2007) 2 SCC 640
19
(2016) 1 SCC 724
20 (2017) 4 SCC 243
21
(2021) 6 SCC 707
22
(2018) 6 SCC 410
23 (2008) 7 SCC 117
24
(2012) 3 SCC 619
25
(2013) 10 SCC 95
26
(2018) 8 SCC 141
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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 petitioner’s 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
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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.
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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
27
are to be found in Rule 5 and the answer to FAQ 11 .
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.
27
Refer para 44 supra
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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
28
supplanted, by executive instructions. 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,
28
Senior Superintendent of Post Offices v. Izhar Hussain, (1989) 4 SCC 318; State of Maharashtra v.
Jagannath Achyut Karandikar, 1989 Supp (1) SCC 393
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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
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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:

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way of written submissions or application, as appropriate,
for passing orders as the court deems fit .”
(emphasis supplied)

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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
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(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
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panels of WTMs 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 HPC’s decision
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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
29
Whole Time Members
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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
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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:

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.
”
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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. Defsys Solutions also dealt with a situation in which the
Coordinate Bench of this Court interpreted the FAQs so as to be
beneficial to the citizen concerned and in sync with the law.
97. None of the judgments cited by Mr. Kirtiman Singh, therefore,
permit invocation of a provision in the FAQs which operates to the
prejudice of the candidate or citizen concerned, and which is not to be
found in the rules, for the clarification of which the FAQs had been
issued.
98. FAQs, in essence, are clarificatory. They cannot independently
foist, on the citizen, liabilities beyond those which find place in the
Rules to which the FAQs pertain.
99. Even if the rules are not statutory stricto sensu , that would
nonetheless not justify invocation of a dispensation contained in FAQs
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which is not to be found in the rules. This is for the simple reason that
the FAQs are intended to dispel doubts which remain despite the rules.
A handicap, not to be found in the Rules, cannot be introduced by the
FAQs.
100. At the cost of reiteration, however, it must be noted that a
beneficial dispensation provided in the FAQs would, however, bind
the authority concerned, applying the principle of equitable estoppel.
101. There is no provision in the Leave Rules which envisages
cancellation of the DrNB candidature of a candidate on the ground
that the period of extended leave exceeds one year. The stipulation
that extension of leave of more than a year would lead to cancellation
of candidature is exclusively to be found in the answer to FAQ 11, and
is not to be seen anywhere in the Leave Rules. Inasmuch as the Leave
Rules do not so provide, the NBEMS could not seek to justify the
cancellation of the petitioner’s DrNB candidature on the ground that
the period of extended training sought by her on account of the leave
that she had availed, exceeded one year.
Rule 5 of the Leave Rules
102. While FAQ 11 deals with extension of training, on account of
availment of leave in excess of the eligible maximum limit of 30 days
in a year (subject to clubbing), and envisages cancellation of the DNB
candidature if the extended period of training is of more than a year,
Rule 5 of the Leave Rules deals with unauthorized absence from
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training, and provides that unauthorised absence from DNB training
for more than seven days may lead to cancellation of registration and
discontinuation of the DNB training.
103. The invocation of this Rule against the petitioner, in my
opinion, is unjustified both in law and on facts.
In law
104. Rule 5 employs the word “may”. It is obvious that the word
“may” has been deliberately used. If unauthorized absence from
training of over seven days were ipso facto to lead to cancellation of
the DNB candidature, Rule 5 would have said so. It, however, does
not. Rule 5 states that over seven days’ unauthorized absence may
lead to cancellation of DNB candidature. The use of the word “may”
is clearly intended to clothe the NBEMS with an element of
discretion, to examine, on a case to case basis, whether the absence
was such as would, or would not, justify discontinuation of the DNB
training of the candidate and cancellation of the candidate’s DNB
registration.
105. Where a provision clothes an administrative or executive
authority with discretion, a dual responsibility is cast on the authority.
The authority is required, in the first place, to exercise the discretion
vested in it . Any blind or uninformed decision, bereft of exercise of
discretion would, therefore, ipso facto stand vitiated. Secondly, the
exercise of discretion has to be judicious . It has necessarily to
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disclose conscious application of mind, resulting in an informed
decision that that the punitive action that is being taken is the only one
which, in the circumstances, is appropriate.
106. It is not open to the authority implementing Rule 5 of the Leave
Rules, therefore, to merely state that the candidate has been absent
from DNB training without authorisation for more than seven days
and, on that basis, cancel the candidate’s DNB candidature.
107. That, however, is precisely what the impugned order dated 11
October 2023 does.
108. The circumstances in which the candidate remained absent have
to be borne in mind. An overall and holistic approach has to be
adopted, keeping in mind not only the consideration of ensuring that
standards of medical education are maintained but also the equitable
considerations which would weigh in favour of the candidate.
109. The impugned order dated 11 October 2023 does not disclose
any such application of mind. The order merely notes the fact that the
petitioner had availed 486 days of leave during her training period.
Thereafter, the impugned order quotes Rule 5 and proceeds to
“inform” the petitioner that her DrNB candidature has been cancelled.
110. The impugned order, therefore, clearly misinterprets Rule 5 of
the Leave Rules as envisaging, as an inexorable sequitur to the
petitioner having remained absent from training without due
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authorisation, the cancellation of her DrNB candidature. That,
however, is not what Rule 5 contemplates. It states that unauthorised
absence from DrNB for more than seven days may lead to cancellation
of registration.
111. The tenor of the impugned order clearly states that the NBEMS,
in issuing it, has remained oblivious to the fact that an element of
discretion was built into Rule 5 of the Leave Rules, which it had to
exercise in a judicious manner. That judicious exercise is lacking, in
the impugned order dated 11 October 2023.
112. It cannot, therefore, be said that the impugned order has been
issued in sync with Rule 5 of the Leave Rules.
Re: Argument that the petitioner, after seeking leave from her DrNB
training, proceeded to join duty at the District Hospital, Sircilla
113. Before proceeding to examine what the appropriate outcome of
a judicious exercise of discretion as envisaged by Rule 5 would be, in
the facts of the present case, one may dispose of the most emphatic
contention of Mr. Kirtiman Singh.
114. Mr. Kirtiman Singh takes serious exception to the petitioner
joining duty as Civil Assistant Surgeon Specialist in the District
Hospital, Sircilla on 28 November 2019, after having applied to the
PIMSRC for 8 months’ leave starting 25 November 2019 on the
ground that her clinical condition did not allow her to continue to
pursue her DrNB training. This, according to Mr. Kirtiman Singh,
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indicates that the plea of clinical inability to pursue her DrNB training,
as advanced by the petitioner, was not believable.
115. I have already observed that, as this is not a ground on which
the impugned order dated 11 October 2023 came to be passed , it is
equally not available to the NBEMS as a ground to defend the
issuance of the impugned order.
116. Nonetheless, even on merits, the contention does not appear to
me to be well founded. The petitioner has filed, with the present
petition, her entire medical record. She has been under treatment of
the Nizam’s Institute of Medical Sciences, Hyderabad, which is a
reputed institution.
117. A perusal of the medical record reveals that the petitioner was
indeed a patient of Lupus Nephritis. It is no part of the duty of this
Court, exercising Article 226 jurisdiction, to return a finding on merit
on the petitioner’s medical condition. Suffice it, however, to state that,
in the entire counter affidavit filed by the NBEMS, there is no
traversal to the petitioner’s submission that she was indeed suffering
from Lupus Nephritis.
118. In fact, the counter affidavit does not even contain any specific
traversal to the petitioner’s contention that she was not clinically in a
position to continue with her DrNB training in November 2019. The
PIMSRC has also certified, on 21 November 2019, that the petitioner
was suffering from Lupus Nephritis since 2015 and was on
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immunosuppressants. The correctness of this certificate is also not
questioned in the counter affidavit filed by the respondent. Yet another
document, which the petitioner has placed on record and the
correctness of which is not disputed in the counter affidavit, is a
medical certificate requisition form of Nizam’s Institute of Medical
Sciences, which diagnoses the petitioner as suffering from System
Lupus Erythematosus, specifically from Lupus Nephritis. It is
certified, in the said certificate, that the petitioner was on regular
follow-up in the OPD of the Nizam’s Institute of Medical Sciences for
treatment of her Lupus Nephritis.
119. In the counter affidavit filed by NBEMS, the averments
regarding the petitioner’s state of health are to be found in the
following paragraphs:
“18. Without prejudice to the above, it is submitted that the
Petitioner herein by way of her application 25.11.2019 has sought
leave on medical grounds whereas the Petitioner had resumed her
services on 28.11.2019. This position ex-facie establishes that the
Petitioner herein has misrepresented to the answering Respondent
while seeking leave on medical grounds and thereafter the
Petitioner remained unauthorizedly absent up till 16.12.2020.
*
24. As submitted above, the Petitioner submitted an application
dated 25.11.2019 for leave which was forwarded by the
Respondent No. 2 vide email dated 10.01.2020 to the answering
Respondent. It is the respectful submission of the answering
Respondent that the Petitioner had not submitted and thereby failed
in disclosing any supportive documents / medical certificates
justifying the need of medical leave for a prolonged period of 8
months. ”
120. There is, therefore, no reason to disbelieve the petitioner’s
assertion that, owing to her clinical condition, she was actually not in
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a position to continue with her DrNB training in November 2019.
121. In fact, there is really no occasion for this Court to return any
subjective finding in this regard, for the simple reason that the
NBEMS, despite having been forwarded the petitioner’s leave
application, never chose, at any stage, till the filing of the counter
affidavit in the present case, to dispute the petitioner’s assertion that
she was actually not in a position to attend to continue with her DrNB
training in November 201 and was in need of long leave.
122. In the counter affidavit, the respondent has acknowledged the
receipt of the petitioner’s leave application. Having done so, all that
the counter affidavit proceeds to state is that the application could not
be processed owing to “the incoherent situation during the COVID-
19”. No details of the said “incoherent situation” are provided. The
COVID-19 pandemic more or less came to an end (hopefully) towards
the end of 2021 or the beginning of 2022. Even thereafter, the
NBEMS never chose to question the bona fides of the petitioner’s
request for leave, submitted on 25 November 2019. It is only in the
counter affidavit filed in the present writ petition that such a stand has
been adopted.
123. The court is, therefore, constrained to treat this assertion of the
respondent as nothing more than an afterthought. Having never
questioned the petitioner’s assertion that she was not clinically in a
position to continue with her DrNB training after 25 November 2019,
till she re-joined on 16 December 2020, the respondent cannot be
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heard to contend, for the first time in the counter affidavit, that her
plea of clinical inability to attend to her DrNB training was false or
not believable.
124. If that be so, the NBEMS cannot take exception to the fact that
the petitioner was working at the District Hospital in Sircilla during
the said period of leave.
125. There is no known legal principle to the effect that, if leave is
taken on the ground of medical incapacity to continue with the nature
of the duties that the employee has to discharge, the employee must,
during the period of leave, sit at home. Such cases, it may be noted,
may be of various types. It is not as though the petitioner sought
leave on the pretext of a leg injury and was seen running a cross-
country sprint during the period of leave. The petitioner’s specific
contention, in the writ petition, is that the duties which she was
required to perform in connection with her DrNB training were
arduous and that, given her clinical condition, she was not in a
position to undertake those duties. As already noted, this contention
of the petitioner has not been disputed on facts at any stage, even in
the counter affidavit filed by way of response to the present writ
petition.
126. That being so, if the petitioner desired, instead of staying at
home during the period of her leave, to work in the Sircilla hospital
which, according to her, was much less arduous, that fact cannot be
pleaded as a ground to doubt the bona fides of her request for leave.
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There is no requirement in the law that the petitioner had to
necessarily stay at home during the period of her leave.
127. There is no rebuttal or traversal, in the counter affidavit, of the
specific assertion in the writ petition that the nature of duties at the
Sircilla hospital were in fact much less arduous than the duties that the
petitioner had to discharge as a DrNB trainee.
128. In that view of the matter, Mr. Kirtiman Singh’s objection,
based on the fact that the petitioner continued with her duty at the
Sircilla hospital during the period of her leave, in my opinion, lacks
substance. There was, to reiterate, no legal proscription on the
petitioner rejoining duties at the Sircilla hospital during the period of
her leave. No such proscription has been brought to my notice by Mr.
Kirtiman Singh either.
129. The fact that she did so, therefore, cannot be cited as a
justification for cancelling her DrNB candidature.
Justification of the impugned decision on facts
130. The facts that emerge are as follows.
131. Having undergone DrNB training for little over two months, the
petitioner applied to the PIMSRC for eight months’ leave on 25
November 2019, as she was suffering from Lupus Nephritis. No
credible challenge to the assertion of the petitioner that she was
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indeed suffering from Lupus Nephritis, which stands certified even by
the PIMSRC, has been laid by the respondents.
132. The application of the petitioner was forwarded by the PIMSRC
to the NBEMS on 10 January 2020. The receipt of the application
stands acknowledged by the NBEMS in the counter affidavit. The
counter affidavit also acknowledges the fact that the NBEMS took no
decision on the said application. Though this is stated to be on
account of the “incoherent situation” during COVID-19, no details in
that regard are forthcoming. Be that as it may, the fact remains that,
having received the application, the NBEMS did not choose to refuse
the request.
133. The petitioner returned for duty on 7 December 2020, after
having also suffered COVID-19 as an immunocompromised patient,
and resumed duty after a week’s quarantine on 16 December 2020.
The rejoining report of the petitioner, dated 16 December 2020, was
also forwarded by the PIMSRC to the NBEMS on 28 December 2020,
but NBEMS did not choose to respond.
134. No further medical leave was sought by the petitioner.
135. The petitioner applied for 20 days’ further leave from 14
September 2021 to 3 October 2021, as she was getting married. The
NBEMS sanctioned the leave. While doing so, no remark was made
by the NBEMS regarding the earlier period of leave availed by the
petitioner from 25 November 2019 till 15 December 2020. After
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availing the said leave, the petitioner returned and continued with her
DrNB training.
136. The petitioner submitted her DrNB thesis to the NBEMS in
2023. The NBEMS, vide communication dated 18 July 2023, required
the petitioner to submit certain documents, so that her thesis could be
assessed. Vide further communication dated 17 August 2023, the
NBEMS suggested certain modifications to the petitioner’s thesis.
The modified thesis was submitted by the petitioner to the NBEMS on
13 September 2023.
137. On 4 October 2023, the NBEMS issued a show cause notice to
the petitioner disputing her right to appear in the DrNB final theory
examination as she had not undertaken the minimum required number
of FATs. The show cause notice made no reference to any
unauthorized absence, by the petitioner, from her DrNB training. By
her response dated 6 October 2023, the petitioner pointed out that she
had, in fact, appeared in the prescribed number of FATs in July 2021
and, March and April 2023. Till that date, there was no
communication from the NBEMS either to the petitioner or to the
PIMSRC, stating that the petitioner had been on unauthorized absence
from the training or that, on that ground, her DrNB candidature was
liable to be cancelled.
138. It is in the backdrop of these facts that, on 11 October 2023, a
day prior to the DrNB final theory examination of the petitioner, the
impugned order was issued cancelling the petitioner’s DrNB
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candidature.
139. The facts speak for themselves. Having chosen to remain
completely silent regarding the petitioner’s period of absence from
training from 25 November 2019 till 15 December 2020, and having,
thereafter, acted vis-à-vis the petitioner, in a manner which would
convey, to anyone in her place, that the NBEMS had no misgivings
regarding the petitioner’s DrNB candidature, it was clearly not open to
th
the NBEMS to, at the n hour, a day prior to the petitioner’s DrNB
final theory examination, cancel her DrNB candidature altogether.
140. The only ground on which the petitioner’s DrNB candidature
was cancelled, was that she had availed a total of 486 days’ leave. The
impugned order dated 11 October 2023 does not even obliquely seek
to allege that the petitioner was not in fact unwell or that she had
misstated facts while applying for leave. The only ground urged is that
no prior approval of the NBEMS had been obtained while proceeding
on leave. The legitimacy of this ground, as a justification for
cancellation of DrNB cancellation has to be assessed in the backdrop
of the above facts.
141. Besides the above, it is also required to be borne in mind that
the petitioner has not chosen, on the ground of her illness, to escape
any training that she was required to undergo. In fact, the petitioner
has completed nearly all her training, with only 33 days’ training left.
142. The NBEMS chose to remain silent, despite admittedly having
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received the petitioner’s leave application dated 25 November 2019,
and her joining report dated 16 December 2020, and thereafter, having
acted at all times as though the petitioner was legitimately entitled to
continue and complete her DrNB training, to the extent of suggesting
modifications in the thesis submitted by the petitioner. It would, in
my considered opinion, be not only unfair but an outright travesty of
justice to uphold the decision of the NBEMS to, a day prior to the
petitioner’s final theory examination, cancel her DrNB candidature.
143. Even on facts, therefore, I am of the opinion that the
cancellation of the petitioner’s DrNB cancellation has resulted in
injustice to her. This Court is unwilling to lend its seal of approval
thereto.
Violation of the principles of natural justice
144. Cancellation of the DrNB candidature of the petitioner,
especially at the last minute when she was at the threshold of
attempting her final DrNB theory examination, could not have been
effected without strict compliance with the principles of natural
justice. This would require not only issuance of a show cause notice,
calling on the petitioner to show cause against the proposed
cancellation, but also an opportunity of personal hearing, so as to
enable the petitioner to explain her case. The show cause notice
would, moreover, have to set out the precise ground, or grounds, on
which cancellation of the petitioner’s DrNB candidature was
contemplated, and the NBEMS would be bound thereby. It is not
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permissible for the NBEMS to, in the order of cancellation, introduce
a ground which does not find place in the show cause notice.
145. Insofar as the requirement of a personal hearing is concerned,
this Court has, in its recent decision in Mount Columbus School v.
30
CBSE , examined the legal position, and, with all due humility, the
following passages from the said decision are extracted:
“50. Even otherwise, it is well settled in administrative law that
a decision which entails serious civil consequences has to be
preceded by compliance with the principle of audi alterum partum,
even if the statutory provision does not expressly so required. That
the requirement of grant of an opportunity of hearing in such cases
has necessarily to be read into the statute, is the law which follows
from a long line of decisions. A Division Bench of the High Court
of Orissa felicitously expressed the principle thus, in Narayan
31
Chandra Jena v. State Transport Authority :

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This, and several other pronouncements to the said effect, were
relied upon by a Division Bench of the High Court of Punjab &
Haryana (speaking through Swatanter Kumar, J., as he then was) in
33
Ram Niwas Bansal v. State Bank of Patiala , to hold that the
requirement of compliance with audi alteram partem is to be read
into every provision, the enforcement of which entails civil
consequences, even if the provision is itself silent in that regard,
unless the statute provides otherwise.
34
51. J.T. (India) Exports v. U.O.I. , rendered by a Full Bench
of this Court, is also relevant. Division Benches of this Court were
divergent on the issue of whether the third proviso to Section 4-M
of the Imports & Exports (Control) Act, 1947 required grant of an
opportunity of personal hearing before deciding whether to waive
penalty in full or in part. Significantly, the Full Bench noted, at the
very outset, the earlier decision of the Supreme Court in U.O.I. v.
35
Jesus Sales Corporation which, dealing with the same provision,
held that, in every case, in could not be held that failure to grant
personal hearing was fatal. Nonetheless, the Full Bench proceeded,
in paras 13 and 15 of its judgment, to hold thus, apropos that the
requirement of grant of an opportunity of hearing; thus:
“13. How then have the principles of natural justice
been interpreted in the Courts and within what limits
are they to be confined? Over the years by a process
of judicial interpretation two rules have been evolved
as representing the principles of natural justice in
judicial process, including therein quasi judicial and
administrative process. They constitute the basic
elements of a fair hearing, having their roots in the
innate sense of man for fair-play and justice which is
not the preserve of any particular race or country but
is shared in common by all men. The first rule is
nemo judex in causa sua ' or nemo debet esse judex in
propria causa sua ' as stated in (1605) 12 C R 114 ,
that is, 'no man shall be a judge in his own cause'.
Coke used the form 'aliquis non debet esse judex in
propria causa quia non potest esse judex at pars ' ( Co.
Litt. 1418 ), that is, 'no man ought to be a judge in his
own cause, because he cannot act as Judge and at the
33
(1999) II LLJ 126 (P & H)
34
94 (2001) DLT 301 (FB)
35
(1996) 4 SCC 69
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same time be a party;. The form 'nemo potest esse
simul actor et judex' , that is, 'no one can be at once
suitor and judge' is also at times used. The second rule
and that is the rule with which we are concerned in
this case is 'audi alteram partem ', that is, 'hear the
other side'. At times and particularly in continental
countries, the form ' audietur at alteram pars ' is used,
meaning very much the same thing, A corollary has
been deduced from the above two rules and
particularly the audi alteram partem rule, namely ' qui
aliquid statuerit parte inaudita alteram actquam licet
dixerit, haud acquum facerit ' that is, 'he who shall
decide anything without the other side having been
heard, although he may have said what is right, will
36
not have been what is right' (See Bosewell' case ): or
in other words, as it is now expressed, 'justice should
no only be done but should manifestly be seen to be
done'.
14. Even if grant of an opportunity is not
specifically provided for it has to be read into the
unoccupied interstices and unless specifically
excluded principles of natural justice have to be
applied. Even if a statute is silent and there are no
positive words in the Act or Rules spelling out the
need to hear the party whose rights and interests are
likely to be affected, the requirement to follow the fair
procedure before taking a decision must be read into
the statute, unless the statute provides otherwise.
Reference is accordingly disposed of.”
(Emphasis supplied)
52. The fact that the impugned order was passed with no
opportunity of hearing granted to the petitioner, is, therefore, an
additional circumstance which would justify its evisceration.
37
53. Swadeshi Cotton Mills v. U.O.I. , cited by Mr. Gupta,
crystallizes this position. Para 18 of the report noted the point that
arose for consideration, thus:
“18. Thus, the first point for consideration is
whether, as a matter of law, it is necessary, in
accordance with the rules of natural justice, to give a
hearing to the owner of an undertaking before issuing
a notified order, or enforcing a decision of its take-
36
(1605) 6 C R 48
37
(1981) 1 SCC 664
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38
over under Section 18-AA .”
The Supreme Court held:
“25. Before dealing with the contentions advanced
on both sides, it will be useful to have a general idea
of the concept of “natural justice” and the broad
principles governing its application or exclusion in
the construction or administration of statutes and the
exercise of judicial or administrative powers by an
authority or tribunal constituted thereunder.
26. Well then, what is “natural justice”? The
phrase is not capable of a static and precise definition.
It cannot be imprisoned in the straight-jacket of a
cast-iron formula. Historically, “natural justice” has
been used in a way “which implies the existence of
moral principles of self-evident and unarguable
truth”. [Paul Jackson : Natural Justice, 2nd Edn., p 1]
In course of time, Judges nurtured in the traditions of
British jurisprudence, often invoked it in conjunction
with a reference to “equity and good conscience”.
Legal experts of earlier generations did not draw any
distinction between “natural justice” and “natural
law”. “Natural justice” was considered as “that part of
natural law which relates to the administration of
justice”. Rules of natural justice are not embodied
rules. Being means to an end and not an end in
themselves, it is not possible to make an exhaustive
catalogue of such rules.
27 . But two fundamental maxims of natural
justice have now become deeply and indelibly
ingrained in the common consciousness of mankind,
as pre-eminently necessary to ensure that the law is
applied impartially, objectively and fairly. Described
in the form of Latin tags these twin principles are:
(i) audi alteram partem and (ii) nemo judex in re sua .
For the purpose of the question posed above, we are
primarily concerned with the first . This principle was
well-recognised even in the ancient world. Seneca,
the philosopher, is said to have referred
39
in Medea that it is unjust to reach a decision without
38
Section 18-AA of the Industries (Development & Regulation) Act, 1951
39
Regarded as the strongest play by Seneca the Younger, written around 50 CE
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40
Maneka Gandhi v. U.O.I., (1978) 1 SCC 248
41
1964 AC 40
42
State of Orissa v. Dr Bina Pani Dei, AIR 1967 SC 1269
43
(1969) 2 SCC 262
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29. In A.K. Kraipak , the court also quoted with
approval the observations of Lord Parker from the
44
Queen's Bench decision in In re H.K. (Infants) ;
which were to the effect, that good administration and
an honest or bona fide decision require not merely
impartiality or merely bringing one's mind to bear on
the problem, but acting fairly . Thus irrespective of
whether the power conferred on a statutory body or
tribunal is administrative or quasi-judicial, a duty to
act fairly, that is, in consonance with the fundamental
principles of substantive justice is generally implied,
because the presumption is that in a democratic polity
wedded to the rule of law, the State or the legislature
does not intend that in the exercise of their statutory
powers its functionaries should act unfairly or
unjustly.
30. In the language of V.R. Krishna Iyer, J.
45
(vide Mohinder Singh Gill : “... subject to certain
necessary limitations natural justice is now a brooding
omnipresence although varying in its play ... Its
essence is good conscience in a given situation;
nothing more — but nothing less.”
31. The rules of natural justice can operate only in
areas not covered by any law validly made. They can
supplement the law but cannot supplant it (per Hedge,
J. in A.K. Kraipak ). If a statutory provision either
specifically or by inevitable implication excludes the
application of the rules of natural justice, then the
court cannot ignore the mandate of the legislature.
Whether or not the application of the principles of
natural justice in a given case has been excluded,
wholly or in part, in the exercise of statutory power,
depends upon the language and basic scheme of the
provision conferring the power, the nature of the
power, the purpose for which it is conferred and the
effect of the exercise of that power. (see Union of
46
India v. Col. J.N. Sinha )
32. The maxim audi alteram partem has many
facets. Two of them are: (a) notice of the case to be
met; and (b) opportunity to explain. This rule is
44
1965 AC 201
45
Mohinder Singh Gill v. Election Commissioner of India, (1978) 1 SCC 405
46
(1970) 2 SCC 458
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universally respected and duty to afford a fair hearing
in Lord Lore-burn's oft-quoted language, is “a duty
lying upon everyone who decides something”, in the
exercise of legal power. The rule cannot be sacrificed
at the altar of administrative convenience or celerity;
for, “convenience and justice” — as Lord Atkin
felicitously put it — “are often not on speaking terms
47
[ General Medical Council v. Spackman ] ”.
33. The next general aspect to be considered is:
Are there any exceptions to the application of the
principles of natural justice, particularly the audi
alteram partem rule? We have already noticed that the
statute conferring the power, can by express language
exclude its application. Such cases do not present any
difficulty. However, difficulties arise when the statute
conferring the power does not expressly exclude this
rule but its exclusion is sought by implication due to
the presence of certain factors: such as, urgency,
where the obligation to give notice and opportunity to
be heard would obstruct the taking of prompt action
of a preventive or remedial nature. It is proposed to
dilate a little on this aspect, because in the instant case
before us, exclusion of this rule of fair hearing is
sought by implication from the use of the word
“immediate” in Section 18-AA(1). Audi alteram
partem rule may be disregarded in an emergent
situation where immediate action brooks no delay to
prevent some imminent danger or injury or hazard to
paramount public interests. Thus, Section 133 of the
Code of Criminal Procedure, empowers the
Magistrates specified therein to make an ex parte
conditional order in emergent cases, for removal of
dangerous public nuisances. Action under Section 17,
Land Acquisition Act, furnishes another such
instance. Similarly, action on grounds of public
safety, public health may justify disregard of the rule
of prior hearing.
34. Be that as it may, the fact remains that there is
no consensus of judicial opinion on whether mere
urgency of a decision is a practical consideration
which would uniformly justify non-observance of
even an abridged form of this principle of natural
47
1943 AC 627, 638
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48
justice. In Durayappah v. Fernando Lord Upjohn
observed that “while urgency may rightly limit such
opportunity timeously, perhaps severely, there can
never be a denial of that opportunity if the principles
of natural justice are applicable.
35. These observations of Lord Upjohn
in Durayappah were quoted with approval by this
Court in Mohinder Singh Gill . It is therefore,
proposed to notice the same here.
36. In Mohinder Singh Gill the appellant and the
third respondent were candidates for election in a
Parliamentary Constituency. The appellant alleged
that when at the last hour of counting it appeared that
he had all but won the election, at the instance of the
respondent, violence broke out and the Returning
Officer was forced to postpone declaration of the
result. The Returning Officer reported the happening
to the Chief Election Commissioner. An officer of the
Election Commission who was an observer at the
counting, reported about the incidents to the
Commission. The appellant met the Chief Election
Commissioner and requested him to declare the
result. Eventually, the Chief Election Commissioner
issued a notification which stated that taking all
circumstances into consideration the Commission was
satisfied that the poll had been vitiated, and therefore
in exercise of the powers under Article 324 of the
Constitution, the poll already held was cancelled and
a repoll was being ordered in the constituency. The
appellant contended that before making the impugned
order, the Election Commission had not given him a
full and fair hearing and all that he had was a vacuous
meeting where nothing was disclosed. The Election
Commission contended that a prior hearing had, in
fact, been given to the appellant. In addition, on the
question of application of the principles of natural
justice, it was urged by the respondents that the tardy
process of notice and hearing would thwart the
conducting of elections with speed, that unless civil
consequences ensued, hearing was not necessary and
that the right accrues to a candidate only when he is
declared elected. This contention, which had found
favour with the High Court, was negatived by this
48
(1967) 2 AC 337
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49
1971 AC 297
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50
(1958) 98 CLR 383
51
14 Aus LR 519
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42. “The necessity for speed”, writes Paul
Jackson: “may justify immediate action, it will,
however, normally allow for a hearing at a later
stage”. The possibility of such a hearing — and the
adequacy of any later remedy should the initial action
prove to have been unjustified — are considerations
to be borne in mind when deciding whether the need
for urgent action excludes a right to rely on natural
justice. Moreover, however, the need to act swiftly
may modify or limit what natural justice requires, it
must not be thought “that because rough, swift or
imperfect justice only is available that there ought to
be no justice”: Pratt v. Wanganui Education Board .
43. Prof. de Smith, the renowned author
of Judicial Review (3rd Edn.) has at p. 170, expressed
his views on this aspect of the subject, thus: “Can the
absence of a hearing before a decision is made be
adequately compensated for by a hearing ex post
facto? A prior hearing may be better than a
subsequent hearing, but a subsequent hearing is better
than no hearing at all; and in some cases the courts
have held that statutory provision for an
administrative appeal or even full judicial review on
the merits are sufficient to negative the existence of
any implied duty to hear before the original decision
is made. The approach may be acceptable where the
original decision does not cause serious detriment to
the person affected, or where there is also a
paramount need for prompt action, or where it is
impracticable to afford antecedent hearings.”
44. In short, the general principle – as
distinguished from an absolute rule of uniform
application – seems to be that where a statute does
not, in terms, exclude this rule of prior hearing but
contemplates a post-decisional hearing amounting to
a full review of the original order on merits, then such
a statute would be construed as excluding the audi
alteram partem rule at the pre-decisional stage.
Conversely, if the statute conferring the power is
silent with regard to the giving of a pre-decisional
hearing to the person affected and the administrative
decision taken by the authority involves civil
consequences of a grave nature, and no full review or
appeal on merits against that decision is provided,
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Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

courts will be extremely reluctant to construe such a
statute as excluding the duty of affording even a
minimal hearing shorn of all its formal trappings and
dilatory features at the pre-decisional stage, unless,
viewed pragmatically, it would paralyse the
administrative progress or frustrate the need for
utmost promptitude. In short, this rule of fair play
“must not be jettisoned save in very exceptional
circumstances where compulsive necessity so
demands”. The court must make every effort to
salvage this cardinal rule to the maximum extent
possible, with situational modifications. But, to recall
the words of Bhagwati, J., the core of it must,
however, remain, namely, that the person affected
must have reasonable opportunity of being heard and
the hearing must be a genuine hearing and not an
empty public relations exercise.”
(Italics in original; underscoring supplied)
54. Compliance with the audi alteram partem requirement is,
therefore, non-negotiable. In rare cases, and where administrative
exigencies or considerations of expedience absolutely proscribe
grant of a pre-decisional hearing, an immediate post-decisional
hearing may suffice. That, however, is clearly the exception, and
cannot be used as an escape route to avoid granting a pre-
decisional hearing. Where, therefore, the situation is not so
emergent as would justify the hearing to be deferred to the post-
decisional stage, the decision, if it entails civil consequences and
has not been preceded by a hearing, is vitiated in its entirety. The
only exception is where the statute expressly excludes the
requirement of grant of a hearing.”
146. The impugned order does not satisfy these requirements. The
show cause notice dated 4 October 2023, which proposed cancellation
of her DrNB candidature, made no reference to her absence from
DrNB training. The only ground for cancellation, which found place
in the said show cause notice, was the petitioner’s alleged failure to
undertake the required number of FATs. The petitioner, through her
reply dated 6 October 2023, pointed out that the allegation was
incorrect, and the NBEMS apparently stood disabused in that regard,
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Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

as this ground finds no place in the impugned order dated 11 October
2023. Unauthorized absence from training, which was the sole ground
for cancellation in the impugned order, found no place in the show
cause notice which had been issued to the petitioner.
147. Besides, the petitioner was never heard, prior to the passing of
the impugned order of cancellation of her DrNB candidature on 11
October 2023. Strict compliance with audi alteram partem is, in such
a situation, a non-negotiable imperative, as held in Swadeshi Cotton
Mills . The failure to hear the petitioner, even by itself, vitiates the
impugned order of cancellation of her DrNB candidature.
Concluding remarks:
148. A brief observation. It is often a stock defence taken by the
authorities, in cases such as this, that there can be no relaxation of
standards in medical education and that, therefore, strict compliance
with the stipulated requisites is an indispensable sine qua non , for any
candidate who is undergoing a course of medical education. The
correction of this proposition cannot be gainsaid. Medical
professionals deal with human lives. There can, therefore, be no
relaxation in standards, nor can there be any leeway granted in the
matter of compliance with standards in the matter of attending classes,
undergoing training and the like, as, given peculiarities of the medical
profession, practical hands-on experience in dealing with patients is
often times of greater value than text book knowledge. The Court
cannot, therefore, impelled by sympathetic considerations, permit
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Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

relaxation of the prescribed qualifications or experience, where
medical professionals are concerned.
149. Absolute and unrelenting strictness, with no relaxation or rigor
at any stage is, therefore, the legal imperative.
150. Once, however, a candidate is found to have satisfied the
requisite stipulations in the matter of attendance of classes,
undergoing of training and the like, the court cannot be unduly hyper-
technical while considering the entitlement of such a candidate to
emerge as a full-fledged medical professional. In such cases, the Court
has to weigh, in the balance, the proclivities of the individual
candidate and assess whether it would be in public interest not to
allow the candidate to practice as a medical professional.
151. The present case could act as a guiding example in that regard.
The petitioner, despite facing a debilitating illness, has emerged out of
it and has managed to complete her rigorous DrNB course of training.
She has satisfied the requisite number of days of attendance as well as
the hours of training, except for 33 remaining days. The fact that she
was actually suffering from Lupus Nephritis and was facing severe
handicaps even at home is not disputed. The cancellation of the DrNB
candidature of such a candidate, especially at a time when her DrNB
programme has almost reached its end, would completely destroy her
morale. In such cases, the facts matter. Wiping out, with one stroke of
the pen, the entire DrNB training that the petitioner has undertaken,
despite her physical handicaps, would do no good to her, or to the
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Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
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By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

interests of the public at large. The community would also, in the
reckoning, lose the services of a possibly dedicated medical super-
specialist.
152. While examining and applying the rules in such a case,
therefore, the Court has to be pragmatic rather than pedantic.
153. Pragmatically viewed, this Court is convinced that in a space
governed by the rule of law and where justice must predominate – as it
always must, given that justice, and not law, remains our preambular
goal – the cancellation of the petitioner’s DrNB candidature by the
impugned order dated 11 October 2023 cannot sustain.
Conclusion
154. For the aforesaid reasons, the impugned order dated 11 October
2023 is quashed and set aside.
155. By order dated 14 May 2024, the petitioner has been allowed to
undertake the DrNB final theory examination. The results of the said
examination would, therefore, be declared. The petitioner is also
entitled to complete her DrNB candidature, subject to the outcome of
the DrNB final theory examination, and undertake the remainder of
her DrNB training. All consequential reliefs would follow.
156. The writ petition stands allowed accordingly, with no orders as
to costs.
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W.P.(C) 15345/2023 Page 73 of 74
Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26

CM APPL. 61559/2023, CM APPL. 61560/2023 and CM APPL.
64009/2023
157. These applications do not survive for consideration and are
disposed of.
C.HARI SHANKAR, J
MAY 21, 2024
rb/yg/dsn
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W.P.(C) 15345/2023 Page 74 of 74
Digitally Signed By:AJIT
KUMAR
Signing Date:21.05.2024
17:56:16
Digitally Signed
By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:21.05.2024
17:55:26