# Dr. Gaurav Khanna v. Secretary, Kamla Nehru Memorial Hospital and others

- **Citation:** (2001) 2 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-01-06
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-gaurav-khanna-v-secretary-kamla-nehru-memorial-hospital-and-others-39846
- **Pages:** 7

## Text

2All] Dr. Gaurav Khanna V. Secretary, Kamla Nehru Memorial Hospital and others
189
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By the Court

1.
 The petitioner passed his
M.B.B.S. examination in 1998 from Moti
Lal Nehru Medical College, Allahabad.
After completing his internship, he was
enrolled for house job at Kamla Nehru
Memorial Hospital, Allahabad (in brief
KNMH). He worked as House Surgeon in
the Department of Radiation & Oncology
from 06.01.2000 to 31.12.2000. He
qualified in the primary examination
conducted by the National Board of
Examinations (Ministry of Health &
Family Welfare, Government of India)
New Delhi, the respondent no. 3 (in brief
NBE) in July 2000. on 20.11.2000 an
advertisement
was
published
in
newspaper
Amar
Ujala
inviting
applications for admission to Diplomate
of National Board (DNB course) in
Radiotherapy
for
the
session
2001.
Petitioner applied and appeared in the
objective written test on 12.12.2000 and
was successful. Thereafter, on 13.12.2000
he appeared in interview. There were two
seats in DNB course in Radiotherapy and
the petitioner was the only candidate who
had applied for Radiotherapy DNB
courses. According to the guidelines
framed by KNMH on 9.12.2000 for
selection of DNB candidate, a candidate
must obtain 50% marks for qualifying in
theory examination and he must secure
50% marks in clinical viva/interview. It
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
190
further provides that in interview, marks
will be given by grades. Grade-A signifies
"very good performance"(8-10 marks),
Grade-B signifies "good performance" (57
marks)
and
Grade-signifies
"unsatisfactory performance" (less than 5
marks). It further provides that past
performance in the work and conduct of
the internal candidates for DNB course, if
any, will also be taken into account while
assessing overall performance of the
candidate. The result of the petitioner of
written examination and interview was
not declared, therefore, this petition was
filed
praying
that
the
respondents
(KNMH) be directed to declare the result
of the petitioner.

2. In the counter affidavit filed by
the respondents, it has been stated that
NBE was established to evolve a pattern
for the conduct of high and uniform
standard of post graduate and post
doctoral examination in medical sciences
for the award of Diplomate of National
Board
which
are
equivalent
to
MD/MS/DM/M.Ch.
of
other
Indian
Universities of the country recognised by
Government of India and the Medical
Council of India. Their main stand is that
passing of Primary Examination of NBE
makes a candidate eligible for admission
to test only for DNB seat. The candidate
does
not
become
entitled
to
seat
automatically.

3. Sri Vishwa Ratan Dwivedi the
learned counsel for the petitioner has
urged that since the petitioner was the
only candidate who applied for DNB
course in Radio therapy and there being
two seats available, he was entitled to be
selected. He further urged that NBE
information brochure provide for two
examinations primary and final. Since he
has
been
successful
in
primary
examination,
he
was
entitled
for
admission in KNMH. And after he
received training in KNMH his final
examination could be taken by NBE. The
information brochure of NBE did not
authorise KNMH to take any other
examination. He has further urged that his
past conduct is satisfactory and a
certificate in this regard has been issued
by the medical Superintendent, Dr. J.P.
Gupta, which has been filed as Annexure1 to the rejoinder affidavit.

4. On the other hand Sri Vijay Ratan
Agarwal
the
learned
counsel
for
respondents no. 1 and 2 has urged that
since the petitioner was unsuccessful,
therefore, there was no question of
declaration of his result. He has placed
before this court the marks awarded to the
petitioner in the written examination and
interview. He urged that a candidate must
obtain 50% marks in theory (written test)
and must obtain 50% marks in interview,
only then he could be declared selected
for DNB course. He urged that no doubt
the petitioner obtained 50%marks in the
written test but since he has secured less
than 50% marks in the interview,
therefore, he could not be declared to be
selected for DNB course in Radiotherapy.
He
further
urged
that
information
brochure of NBE did not debar the
KNMH from taking examination and
interview,
therefore,
the
respondents
could
frame
guideline
for
taking
admission in DNB course. Sri Agarwal
has
produced
the
entire
record
of
Obstetrics
and
Gynaecology
and
Radiotherapy of written test and interview
including
the
guidelines
framed
for
selection by KNMH for admission to
DNB course before this court.
2All] Dr. Gaurav Khanna V. Secretary, Kamla Nehru Memorial Hospital and others
191
5. NBE information brochure has
been filed by the respondents along with
the counter affidavit. It was established by
Government of India in the Ministry of
Health and Family Welfare in 1975. It
became
an
independent
autonomous
organisation
in
1982.
Primary
Examination is taken by NBE and the
candidates who are declared successful in
primary examination are sent by NBE to
156 accredited institutions for the intake
of 570 candidates for various post
graduate and post doctoral courses in the
private
and
public
sector
hospitals/institutions.
The
brochure
further provides that if a candidate has
passed his primary examination, he has to
pass final examination. The primary and
final examinations are to be taken by
NBE as extracted below:

Primary Examination:
--
MBBS Standard
--
2 Papers and 3 hours duration each
--
each paper has 180 MCQs
Final Examination - Theory :
--
Board Specialities
--
4 papers of 100 marks and 3 hours
duration each
--
Pass - 50% in aggrigate
Clinical, Practical & Viva-voce
-
After passing the theory examination
(Final)
-
Should obtain a minimum of 50%
score in practical
Super Specialities
-
3 years training after recognised post
graduate degree
-
3 papers of 100 marks and 3 hours
duration each
-
eligible for practical, clinical and
viva-voce if
-
secure 40% marks in aggrigate
-
should obtain a minimum of 50% in
practical
6. The information brochure of NBE
does not provide that a candidate who has
been declared successful in primary
examination, has to appear again in any
other examination or interview to be
conducted by private or public sector
hospital/institutions for taking admission
of a candidate who has passed the primary
examination conducted by NBE. The
KNMH has been granted accreditation for
purpose of NBE training. It is one of the
DNB centre for imparting training in
Obstetrics
&
Gynaecology
and
Radiotherapy. It can take admission of
one
candidate
in
Obstetrics
&
Gynaecology and two candidates in
Radiotherapy
for
January
2000
to
December
2002.
The
KNMH
on
20.11.2000
advertised
in
various
newspapers inviting applications for the
aforesaid DNB courses and selection was
to be made through an objective type
written test followed by an interview. It is
stated in paragraph 8 of the counter
affidavit that a candidate who has been
declared
successful
in
primary
examination conducted by NBE is not
entitled for admission for DNB courses in
KNMH as it is not provided in the
information
brochure.
The
petitioner
appeared in the written test and interview
and was found unsuccessful. As per the
practice of KNMH and as per guidelines
framed, the result of only one selected
candidates in Obstetrics & Gynaecology
was declared. It was not obligatory for
KNMH
to
declare
the
result
of
unsuccessful candidate. In paragraph 12 it
has been stated that the petitioner had
been warned on number of occasions for
his bad conduct and behaviour. It is not
disputed that the two seats for DNB
course in Radiotherapy are vacant and
could not be filled as the petitioner was
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
192
the only candidate who had applied for
selection, was unsuccessful.

7. The respondents have produced
the guidelines for selection for DNB
candidates
framed
by
medical
Superintendent
of
the
KNMH
on
09.12.2000 which is extracted as under:
"Guidelines
for
Selection
of
DNB
Candidates"

The Guidelines for members of
Selection Committee for assessing the
suitability of prospective candidates for
DNB in the Departments of Obst. &
Gynaec. & Radiography will be as under:

1.
The candidate must appear for the
Theory Examination which will consist of
subjective and or objective for DNB of
questions set by the Head of the
concerned Department.

2.
The Candidate must secure 50%
marks
for
qualifying
the
Theory
Examination.

3.
The eligible Candidate will then be
called for Clinical Viva/Interview before
the Selection Committee constituted by
KNMH.

4.
The Candidate must secure 50%
marks in the Clinical Viva/Interview.

5.
The Candidate will be considered
ineligible for the Selection of DNB course
if he/she fails to secure the minimum
qualifying marks in any of the above
examination i.e. Theory and Clinical
Viva/Interview.

6.
The
Selection
Committee
will
interview the candidate on the overall
Clinical aspect to assess the suitability
and competence of the candidates. The
marks to be given for the interview will
be as per following norms:

(i) Grade 'A' signifies- Very good
performance

(8-10 marks)

(ii) Grade 'B' signifies-
Good
performance

(5-7 marks)

(iii) Grade 'C' signifies- unsatisfactory
performance

 (less than 5 marks)

7.
The past performances in the work
and conduct of internal candidates for
DNB course, if any, will also be taken
into account while assessing the overall
performance of the candidate(s).

 (Dr. J.K. Gupta)
Medical Superintendent

8. According to the respondents, as
per the guidelines, if any candidates had
been declared successful by NBE in the
primary examination, it does not confer
any right on him to be admitted in DNB
course in Radiotherapy in MNMH unless
he is declared successful in the written
test and interview as per the guidelines
framed by the KNMH. The candidates
must secure 50% marks for qualifying in
the theory examination and if he is
successful in theory examination, then he
would be called for interview. He must
secure 50% marks and if a candidate fails
to secure 50% minimum qualifying marks
in either theory or in interview, then he
shall be ineligible for selection for DNB
course in KNMH. The records of the
respondents show that the petitioner in the
written theory examination has secured 53
marks out of 76 marks which comes to
69.7%. he was called for interview, which
was taken by Dr. Krishna Mukherjee,
2All] Dr. Gaurav Khanna V. Secretary, Kamla Nehru Memorial Hospital and others
193
Dr.B. Paul, Dr. I. Pehar and Dr. J.K.
Gupta. The records of the interview reveal
that the petitioner was awarded grade 'C'
signifies unsatisfactory performance (less
than 5 marks) which comes to less than
50%. Therefore, according to the learned
counsel for the respondents, since the
petitioner
secured
less
than
50%
minimum marks fixed for interview, he
was unsuccessful and the seat in DNB
course in Radiotherapy had to be kept
vacant irrespective of the fact that the
petitioner was the only candidate.

9.

Two
questions
arise
for
consideration, one whether the guidelines
framed
by
KNMH
for
determining
selection for DNB course of NBE
candidate is arbitrary and whether an
accredited institution is entitled to hold
further test for selection from amongst
NBE candidate. The first question is
settled by the apex court. A written
examination
assesses
a
candidate's
knowledge
and
intellectual
ability
whereas an interview assesses a candidate
over
all
intelligence
and
personal
qualities. The Constitution Bench of the
apex court in Ajay Hasia etc. v. Khalid
Mujib Sehravardi and other AIR 1981 SC
487 in the matter of admission to
professional colleges had the occasion to
consider the question that where there is
both written test and interview, what
should be the percentage of marks for
interview, It has held that oral interview
test should not be relied upon as an
exclusive test in the matter of admission
of colleges but it may be resorted to only
as an additional or supplementary test. It
held in paragraph 19 that allocation of
more than 15% of the total marks for the
oral interview would be arbitrary and
unreasonable and would be liable to be
struck down as constitutionally invalid.
The apex court in another Constitution
Bench decision in Ashok Kumar Yadav
and others v. State of Harayana and others
AIR 1987 SC 454. In paragraph 25 it has
been held that written test and viva voce
test both are accepted as essential features
for proper selection. It further held that
there cannot be any hard and fast rule
regarding the precise weight to be given
to the viva voce test as against the written
examination. It may vary from service to
service. It held that percentage of marks
in the case of ex-service officers in viva
voce test being 33.3% was unduly high
and suffer from vice of arbitrariness. In
Mohinder Sen Garg v. State of Punjab
1991 (1) SCC 662 and in Munindra
Kumar and others v. Rajiv Govil and
others 1991(3) SCC 368 the apex court
held that where there is a written test and
interview, 15% marks in all are to be kept
for interview. The law with regard to the
fixation of marks in interview in selection
as held by the apex court in Anzar Ahmad
v. State of Bihar and others JT 1993 (6)
SC 168 is extracted below:

"......the decisions of this Court with
regard to the fixation of marks for
interview in a selection broadly fall in two
categories:
(i) Selection
for
admission
to
educational institutions; and
(ii) Selection for employment in
service.

The decisions of this Court in R.
Chitralekha & Anr v. State of Mysore &
Ors.
(1964
(6)
SCR
368),
A.
Peeriakaruppan, Etc. v. State of Tamil
Nadu & Ors. (1971 (2) SCR 430), Nishi
Mathu Etc. v. State of Jammu & Kashmir
and Ors. (1980 (3)SCR 1253), Ajay Hasia
Etc. v. Khalid Mujib Sheravardi & Ors.
Etc. (1981 (2) SCR 79) and Koshal
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
194
Kumar Gupta & Ors. V. State of Jammu
Kashmir and Ors. (1984 (3) SCR 407),
relate
to
admission
to
educational
institutions and fall in the first category.
In Ajay Hasia's case (supra) it has been
laid down that where selection is made on
the basis of written test followed by
interview, allocation of more than 15% of
the marks for interview would be arbitrary
and unreasonable and would be liable to
be
struck
down
as
constitutionally
invalid."

10. From the aforesaid decisions, it
is clear that so far as admission in
educational
institution
is
concerned,
where there is a written test and interview
both, in such cases marks for interview
could not be fixed more than 15%
whereas in cases of public employment
where there is both written test and
interview, in such cases the marks of
interview could be fixed above 15%
depending upon the nature of public
employment. The guidelines framed by
the KNMH that a candidate must obtain
50% marks in interview, gives a chance to
the respondents to arbitrarily pick and
choose or reject a candidate even where
the candidate had obtained 100% marks in
the written test and fails to secure 50%
marks in the interview, then he is liable to
be declared unsuccessful. Therefore, the
guidelines framed by the KNMH that a
candidate for selection to DNB course
must obtain 50% marks in interview, is
arbitrary, unreasonable and contrary to
law laid down by the apex court and is
struck down.

11. Coming to the next question, the
petitioner
is
entitled
for
admission
because he being the only candidate for
two seats in Radiotherapy, the KNMH in
holding further test for determining his
selection acted against the brochure
issued by NBE. A bare perusal of
brochure indicates that it contemplates
two examinations one for admission and
second after completion of course. The
first is known as Primary Examination
and the second as Final Examination. It
does
not
empower
the
accredited
institution to hold a further test for
determining selection. If there would have
been more candidates that the number of
seats as was in Obstetrics & Gynaecology
the KNMH may have been justified in
resorting to some reasonable method
including short listing for determining
who was the best and most suitable. But it
could not hold a test, which was not only
arbitrary but even more rigorous than the
NBE primary or final examination. Since
the petitioner was the only candidate for
DNB course in Radiotherapy, he was
entitled to be admitted as a matter of
right.

For
the
aforesaid
reasons,
the
petitioner is entitled for admission in
Diplomate of National Board, DNB
course in Radiotherapy in KNMH.

12. In the result, this writ petition
succeeds
and
is
allowed.
Writ
of
mandamus
is
issued
directing
the
respondents to admit the petitioner in
Diplomate of National Board, DNB
course in Radiotherapy in Kamla Nehru
memorial Hospital, Allahabad, within a
period of one week from the date a
certified copy of this order is produced
before the respondent no. 1. The counsel
for respondents Sri Vijay Ratan Agarwal
is also directed to inform the order passed
by this court to respondents nos. 1 and 2.

13. Office is directed to issue a
certified copy of this order to the learned
2All] State of U.P. and another V. U.P. Public Service Tribunal- III, Lucknow and another 195
counsel for the parties, within twenty four
hours, on payment of usual charges.

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By the Court

1. Heard Shri Vinay Malviya, the
learned Standing Counsel representing the
petitioners and Shri K.P. Agrawal, learned
Senior Advocate representing respondent
no. 2.

2. The petitioner - State of U.P. has
filed the instant petition praying for
issuing a writ, order or direction in the
nature of certiorari quashing the order of
the tribunal dated 4.2.1980, and has
further prayed for issuing a writ, order or
direction in the nature of mandamus
directing the respondents not to give
effect to the order dated 4.2.1980.

3. The respondent no. 2 was
appointed on the post of Taqavi Accounts
Clerk by an order dated 9th July, 1963, a
copy whereof is Annexure '3' to the writ
petition. The relevant portion of the said
order runs as follows:

"The
following
candidates
who
appeared for the Competitive Test for the
post of Taqavi Accounts Clerk, in the
scale 60-3-72 EB-3-87-EB-3-90-4-110,
are posted in the blocks noted against
them. They should report for duty to the
B.D.O.s concerned within 7 days. The
appointment is purely temporary they will
remain on probation for six months during
which the services can be terminated at
any time without notice ......."