IMPORTANT POINT
Past practice can not over ride the statutory rules and regulations in the conduct of examination.

Headnote:EDUCATION—Diplomate of National Board (Final Examination) Centralised Entrance Test—Rule 7.12—Eligibility for appearing in Super Specialities—Permission granted by High Court to respondents to sit for examination—Appeal—Effect of High Court order was that petitioner would have to permit respondents to take the exam even if they do not meet the eligibility criteria fixed by petitioner—Petitioner had reserved its rights in the Bulletin of Information to change instructions which would encompass and include all instructions relating to schedule of examination—There could be no embargo in the way of petitioner bonafidely changing the Examination Schedule—Completion of three years training was a necessary concomitant for appearing in DNB final examination—No mala fide was alleged against petitioner in the writ petition—Impugned order was liable to be set aside.
       Held : According to him, the petitioner Institution has been allowing the candidates for taking the super speciality examinations, which were conducted in the month of June. But the facts remain that such a past practice as argued before the High Court has not been pleaded at all. This apart, the alleged past practice cannot override the statutory rules and regulations since the respondents are not qualified as per Rule 7(12). We are, therefore, not permitting them to sit for the Examinations in June, 2006 as directed by the High Court.(Para 6)
       We have carefully considered the submissions made by both the learned Senior Counsel. In our opinion, the High Court was not justified in directing the petitioner to hold examinations against its policy in complete disregard to the mandate of this Court for not interfering in the academic matters particularly when the interference in the facts of the instant matter lead to perversity and promotion of illegality. The High Court was also not justified in exercising its power under Article 226 of the Constitution of India to merge a past practice with decision of the petitioner impugned before it to gave relief to the respondents herein. Likewise the High Court was not correct in applying the doctrine of legitimate expectation even when the respondents herein cannot be said to be aggrieved by the decision of the petitioner herein. The High Court was also not justified in granting a relief not sought for by the respondents in the writ petition. The prayer of the respondents in the writ petition was to seek a direction to the petitioner herein to hold the examinations as per the schedule mentioned in the Bulletin of 2003. However, the High Court passed an order directing the petitioner herein to hold the examinations for the respondents according to the schedule mentioned in the Bulletin of 2003. The effect of this order is that the petitioner would have to permit the respondents to take the exam even if they do not meet the eligibility criteria fixed by the petitioner in its policy of 2003. (Para 7)
       Thus, it is seen that the petitioner has categorically reserved its rights in the Bulletin of Information to change instructions as aforesaid which would encompass and include all instructions relating to schedule of examinations. It is also mentioned in the Bulletin in no unascertain terms that the instructions contained in the Bulletin including the schedule of examinations were liable to changes based on the decisions taken by the Governing Body of the petitioner from time to time. Hitherto Examinations were being conducted twice a year i.e. in the months of June and December, 2006. There could be no embargo in the way of the petitioner bonafidely changing the Examination Schedule, more so when it had admittedly and categorically reserved its rights to do so to the notice and Information of the respondent nos. 1 and 2. In any event, the completion of three years training is a necessary concomitant for appearing in the DNB final examination.(Para 7)
       No malafide has been alleged against the petitioner in the writ petition. The Governing Body of the petitioner in the larger interest of the candidates as well as of the petitioner, and medical education in general, has decided to change the current practice of conducting the examinations on biannual basis for all the disciplines of modern medicine with the revised policy to conduct the biannual examination only in those streams where number of candidates is more than 100, from June 2006 onwards to curtail its expenditure. The above policy decision, in our opinion, cannot at all be faulted with.(Para 9)

JUDGMENT

Dr. AR. Lakshmanan, J.—By consent of parties the special leave petition itself is taken up for final hearing.

2. This special leave petition is directed against the final judgment and order of the High Court of Delhi on 27.4.2006 passed in LPA No. 661 of 2006, which was in turn directed against the judgment of the learned Single Judge of the High Court of Delhi dated 21.4.2006 passed in W.P. (C) No. 5565-66 of 2006, whereby the writ petition filed by the respondents was allowed.

3. We have heard Mr. Gopal Subramanium, learned Addl. Solicitor General for the petitioner and Mr. S. Bala Krishnan, learned Senior Advocate for the respondents. The matter was argued at length.

4. We have perused the Bulletin of Information issued by the National Board of Examinations and also the Bulletin of Information cum Application Form for Diplomate of National Board (Final Examination). Centralised Entrace Test for the relevant post. Our attention was also drawn to Rule 7.12, which deals with eligibility for appearing in super specialities, and reads thus :

“7.12 Eligibility for appearing in Super Specialities :

**Medical Super Specialities and Surgical Super Specialities (refer Para 1.2)

(i)Candidates should be in possession of a recognised Postgraduate degree qualification as specified under each speciality given in the syllabus for Medical and Surgical super specialities respectively.

(ii)Candidates should have completed the prescribed three years training in the speciality after postgraduate degree. In an institution recognised by the MCI/NBE/University as specified under each speciality.

(iii)Candidates should be in possession of a certificate of training from the Head of the department duly countersigned by the Head of the institution and produce necessary records as may be required.

**Note : There will be three years training in each Super Speciality for all the subjects listed under clause 1.2 of this Bulletin with effect from January, 2000.

(iv) ........

(v)Every candidate will be required to produce performance record (log book) containing details of work done by him/her duly certified by the supervisor, and countersigned by the administrative Head of the Institution at the time of their Practical Examination falling which he/she will not be allowed to take the practical examination. However, a certificate to this effect has to be attached alongwith application form for eligibility purposes. The supervisor would also offer his remarks on the training received by the candidate in the log book. Honorary staff members, who are recognised as supervisors by their institutions or the local university will also be recognised by the NBE.”

5. According to Mr. Gopal Subramanium, the respondents herein are not eligible to sit for examination and, therefore, the permission granted by the High Court permitting to sit for the examination is not proper and not called for. Rule 7(12) specifically provides that the candidates should be in possession of the recognised postgraduate degree qualification as specified under each speciality given in the syllabus for Medical and Surgical super specialities respectively. Clause 7(12), sub-clause (ii), stipulates that candidates should have completed the prescribed three years training in the speciality after postgraduate degree, in an institution recognised by the MCI/NBE/University as specified under each speciality. According to Mr. Gopal Subramanium, the respondents will be completing three years training only by 30th June, 2006. They are not qualified and eligible to appear for June 2006 examination.

6. Mr. S. Bala Krishnan, learned Senior Counsel for the respondents, per contra submitted that the stand of the petitioner herein was totally inconsistent not only in terms of the eligibility criteria but also as per past practice. According to him, the petitioner Institution has been allowing the candidates for taking the super speciality examinations, which were conducted in the month of June. But the facts rema

Click Here to Read the rest of this document

2006 Supreme(SC) 518

IMPORTANT POINTPast practice can not over ride the statutory rules and regulations in the conduct of examination.

IMPORTANT POINT
Past practice can not over ride the statutory rules and regulations in the conduct of examination.