IN THE HIGH COURT OF DELHI AT NEW DELHI

PAGE 37

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL WRIT JURISDICTION

WRIT PETITION (CIVIL) NO.

OF 2011

IN THE MATTER OF:1. Association of National Board

Accredited Institutions ( ANBAI)

Having its Registered office at

Bangalore Baptist Hospital

Bellary Road, Bangalore- 560024

Represented by its President

Dr. Alexander Thomas

Director (CEO),

Bangalore Baptist Hospital

2. Care Hospital,

6-3-248/1/1A Road No 1

Banjara Hills, Hyderabad-3 Represented by its Authorized SignatoryDr. B.S.Murthy

3. Ganga Medical Centre and Hospitals Pvt. Ltd

313, Mettupalayam Road,Coimbatore, Tamil Nadu.

Represented by its Authorized Representative

Dr. S Rajasekaran4. St.Stephens HospitalTees Hazari New Delhi

By its Authorized Representative

Dr. Sudhir Joseph

5. Indore Institute of Orthopaedics and Traumatology Pvt. Ltd., SNG Hospital,16/1,South Tukoganj, Kanchan Bag Main Road,Near

Samavsharan Mandir, Indore, Madhya PradeshBy its Authorized Representative

Dr. S.N.Goyal

. . . . Petitioners VERSUS1. Union of IndiaRepresented by its Secretary, Government of India, Ministry of Health and Family Welfare

150-A Nirman Bhawan New Delhi : 110001

2. National Board of Examinations

Ansari Nagar, Mahatma Gandhi Marg

(Ring Road) New Delhi 110029

Represented by its President

Dr. Srinath Reddy

. . . . RespondentsPETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SEEKING APPROPRIATE WRIT, ORDER OR DIRECTION FOR QUASHING OF THE PUBLIC NOTICES DATED 5-7-2010, 31-12-2010 AND SUBSEQUENT NOTIFICATIONS DATED 14-01-2011, 17-01-2011, AND 27-01-2011 MOST RESPECTFULLY SHOWETH:1. The Petitioners are filing the present Writ Petition under Article 226 of the Constitution of India seeking an appropriate writ, order or direction for quashing the public notices dated 5-7-2010, 31-12-2010 and subsequent notifications dated 14-01-2011, 17-01-2011 and 27-1-2011 issued by the second respondent to the Petitioners herein, which are highly arbitrary, illegal and issued with a predetermined mind. The brief facts leading to the filing of the present petition are as under:

2. The Petitioners No. 1 is an Association of around 200 Accredited institutions of the 2nd Respondent Board registered under Karnataka Societies Registration Act 1960, with the aim to unite the National Board Accredited Institutions to catalyse their energies toward developing better teaching programs and to present a credible and united front to solve problems together. The main focus of this association is to improve the camaraderie and the partnership between the National Board Accredited Institutions in working towards excellence. The Petitioner association representsmost of the accredited institutions/ hospitals in India.3. The petitioner no 2 is a medical Institution representing the East Zone of the Petitioner Association Board covering 7 State Chapters having 25 member institutions. The petitioner no 3 is a medical Institution representing the South Zone of the Petitioner Association Board covering 4 State Chapters having 97 member institutions. The petitioner no 4 is a medical Institution representing the North Zone of the Petitioner Association Board covering 8 State Chapters having 14 member institutions. The petitioner no 5 is a medical Institution representing the west Zone of the Petitioner Association Board covering 6 State Chapters having 38 member institutions.4. The Respondent no 2 was established in 1975 by the Respondent no 1 to improve the quality of the Medical Education by elevating the level and establishing standards of post graduate examinations in modern medicine on an all India basis. There are more than 450 recognized Medical Colleges in the country. In addition to Postgraduate teaching institutions under Medical Council of India, there are many accredited institutions imparting training in various Broad and Super specialties for the award of postgraduate qualification in Broad and super specialties

5. The Nomenclature of the degree awarded by the National Board of Examinations is called the Diplomate of National Board(DNB). The list of recognized qualifications awarded by the Board in various Broad and Super specialties as approved by the Government of India and included in the First Schedule of IMC Act 1956. The Diplomate qualifications awarded by the National Board of Examinations have been equated with the postgraduate and post doctorate degrees awarded by other Indian Universities by the Government of India, Ministry of Health and Family Welfare; vide their notifications issued from time to time. As per the recent Ministry of Health &Family Welfare and Medical Council of India notifications the holders of Boards qualification awarded after an examination (DNB Final) are declared as equal to MD, DM, MCh and MS and also can be appointed as teachers in training institutions.

6. It is submitted that as per the guidelines of the Respondent no 2 all the medical Colleges/ Post Graduate Medical Institutions recognized by the Medical council of India can apply for the Accreditation for individual specialty to the Second Respondent Board and subject to the fulfillment of the criteria of guidelines laid down the board will depute an inspector to verify the facilities in the institution. The accreditation Committee after examination of the inspectors report accords the accreditation to the respective institutions/hospitals for an individual specialty for a specific period depending on the course. True copy of the application form for accreditation of Institutions/Hospitals for DNB Programmes is annexed and marked herewith as ANNEXURE P-17. It is submitted that until June 2009 each Accredited institution/hospital was advised to directly recruit candidates for training, according to strict guidelines provided by the board and in the presence of two board approved external consultants. The procedure for admission to super specialty and Broad Specialty candidates to the DNB Programme was that the Respondent No 2 conducts the Centralized Entrance Test for DNB Programme (CET-DNB) for candidates on 2nd Sunday of June and December every year and announces the result by issuing the list of candidates who have passed the examination. Subsequently the accredited institutions/hospitals publishes an advertisement in the local and National News Papers for inviting application from candidates for the admission in the individual specialties, as per the time frame defined by the Respondent Board. Once the applications are received, the respective accredited hospitals/institutions conduct the aptitude assessment of the candidates in a fair and transparent manner as per the guidelines issued by the Second Respondent Board. The selection committee/panel of experts appointed by the concerned institutions should comprise of at least 50% of external members i.e. faculty members not related to the institute and approved by the respondent board. The panel should comprise only of subject experts i.e. those specialties who are associated with the teaching and practice of the concerned specialty. Further the institution concerned should evolve objective skills for assessing the aptitude of the candidate as per the draft scale for assessment of skills proposed in the guidelines for admission to DNB Programme. The candidates admitted to courses after a qualifying diploma recognized by the MCI, need not write the CET-DNB and were selected by the institution as per the guidelines given by the respondent board. Admission to DNB fellowship courses was based on CET-DNB(fellowship program) marks. True copy of the extract of guidelines prescribing the procedure for admission of the DNB trainee is annexed and marked as ANNEXURE P-2. True copy of the scale for assessment of skills proposed in the guidelines for admission to DNB Programmes is annexed and marked as ANNEXURE P-3.8. However to the utter shock and surprise of the petitioners institutions, the 2nd Respondent Board made certain significant changes in selection procedure for admission of the Broad Specialty candidates to the DNB Programme from July 2010 by incorporating a new system of admission of students in accredited institutions for the degree awarded by it. However the old guidelines is still followed for the selection of secondary candidates and Super Specialty courses to the DNB Programme. The petitioner institutions were unaware of the changes since the announcement was made in Student Information page of the Respondent Board website by notification dated 5-7-2010. The Respondent Board has dispensed with the requirement of interview for students desirous for admission in the accredited medical institutions. The earlier system permitted the institutions to hold interview which was based on fair, transparent and non exploitative criteria. The marks obtained in the assessment interview was the basis for selection of students in that particular institutions. However the new rules of the Respondent Board has dispensed with the requirement of the interview and it has further decided that the students shall be allocated in the institutions on the basis of marks obtained by them in the CET-DNB Test held by the Respondent Board. Moreover the old guidelines were followed for the selection of secondary candidates and Super Specialty courses to the DNB Programme, then the change of admission procedure only for broad specialty is highly questionable. True copy of the internet notification dated 5-7-2010 issued by Respondent Board is annexed and marked as ANNEXURE P-4. 9. It is further important to consider the fact that the Memorandum of Association of the Respondent Board does not have any objective clause pertaining to the admissions. As per the objective clause of the said MOA, the jurisdiction of the Respondent Board is limited to conducting of the examination. Therefore the action of the Respondent board in interfering with the admission process without having any object clause, is highly Illegal. True copy of the memorandum of Association of the Respondent Board is annexed and marked as ANNEXURE P-5.10. It is submitted that the respondent board held meetings subsequent to the notification, with limited members of the accredited institutions, where suggestions and concerns were raised regarding the new admission procedure for the DNB courses. However none of the suggestions of the member institutions were considered by the respondent board. Further the minutes of the meeting were also not served to the attending institutions.11. It is submitted that aggrieved by the said notification, with regard to the new admission procedure there were a series of regional agitations by the Petitioners institutions. On 6-07-2010 the Association of Karnataka DNB Institutions filed a petition before the Second Respondent Board to reinstate the earlier admission process in order to maintain high Standards in DNB. True copy of the petition dated 6.7.2010 filed by the Association of Karnataka DNB Institutions before the Respondent Board is annexed and marked as ANNEXURE P-6. Various Accredited institution/hospitals across the country including the Bangalore Baptist Hospital, St Stephens Hospital, Delhi and various other institutions showed their concerns and agitation towards the sudden change of admission process by their letter dated 7 -10 -2010 and 9 -10 -2010 respectively to the respondent board. True copies of the letters dated 7 -10 -2010 and 9 -10 -2010 is annexed and marked as ANNEXURE P-7(Colly). On 4-11-2010 the First Petitioner Association sent a proposal to the 2nd Respondent Board emphasizing on the adverse impact of the new admission process and requested to reinstate the earlier admission process. True copy of the letter dated 4-11-2010 is annexed and marked as ANNEXURE P-8. 12. However, in spite of the Nation wide agitation and consultation against the new process of admission the Respondent Board failed to consider various suggestions put forth by the accredited institutions/hospitals.

13. It is submitted that on 21-12-2010 the Petitioner association had a meeting with the President and the Executive Director of the Respondent Board concerning the new admission process. The Members of the Petitioner Association highlighted various disadvantages of the new admission process and also requested the Respondent Board to allow them to have their say in the admission process in order to have a fruitful cooperation. For which the respondent Board responded saying that the implementation of Centralized selection process of admission of the DNB Trainee (s) to various accredited institutions have been examined by the High Powered Committee set up by the Respondent Board headed by Dr. Jalalludin. The Respondent Board further assured that once the High Powered Committee report becomes available, the accredited institutions will be consulted before making any changes to the selection process and till then the present procedure of admission will prevail. The Association Board on 10 -01 -2011 had send the copy of the draft minutes of the meeting for approval to the Respondent Board. However the respondent Board grossly failed to respond to the same. True copy of the minutes of the meeting dated 21-12-2010 is annexed and marked as ANNEXURE P-9. True copy of the letter dated 10-01-2011 sent by the Association Board to the Respondent board is marked as ANNEXURE P-10.14. It is submitted that on 31-12-2010 with out the High Powered Committee report and consultation with Petitioner Association as promised, the Respondent Board issued a Public notice vide Reference no. NBE/XXII/2010/9869 declaring the details of the counseling Schedule for centralized counseling for January 2011 session. The copy of the public notice dated 31-12-2010 issued by the National Board of Examinations is marked as ANNEXURE P-11. Further on 14-01-2011 the Respondent Board issued another Public notice declaring the detail of venue and other ancillary details of the centralized counseling for 2011 session. It is submitted that in the said public notice the respondent board further proposed to amend the selection procedure even for the secondary candidates effective from the next session, making it a centralized counseling which is highly unreasonable. True copy of the public notice dated 14-1-2011 issued by the Respondent Board is marked as ANNEXURE P-12. On 17-01-2011 the Respondent Board issued another public notice vide Referance no. NBE/2011/ACC/3147 declaring that the merit list of enrolled candidates for the January 2011 session shall be published online on 7-02-2011. True copy of the public notice dated 17-01-2011, Reference no. NBE/2011/ACC/3147 issued by the Respondent Board is annexed and marked as ANNEXURE P-13. On 17-01-2011 the Respondent Board issued another public notice vide Reference no. NBE/2011/ACC/3146 to the Accredited institutions to fill a form which is in the form of a consent letter to be signed by the Accredited institutions on or before 31-01-2011. The consent form clearly goes to show the intention of the Respondent Board whereby they are trying to coerce the accredited institutions to agree to the new admission process or else they will not register the candidates in the accredited institutions. True copy of the public notice dated 17-01-2011 vide Referance no. NBE/2011/ACC/3146 issued by the Respondent Board is annexed and marked as ANNEXURE P-14. The petitioner herein vide its public notice dated 27-01-2011 called for online application from the candidates to apply to the centralized counseling. The copy of the public notice dated 27-01-2011 issued by the Respondent Board is annexed and marked as ANNEXURE P-1515. The petitioners association herein being aggrieved by the impugned public notices dated 5-7-2010, 31-12-2010 and subsequent notifications dated 14-01-2011, 17-01-2011, and 27-01-2011 issued by the second respondent by incorporating and giving effect to the new process of admission, dispensing with the requirement of interview for students by the accredited medical institutions. The Petitioners having no other alternative and efficacious remedy have approached this Honble Court under Article 226 of the Constitution of India. The petitioners have not filed any other petition on the same cause of action either itself or through anybody else. It is also totally against the public interest and interest of the students and the medical institutions. Hence the Petitioners are filing this petition on the following amongst other grounds.

GROUNDS

(i) Because the public notice issued by the Respondent Board by introducing new process of admission is highly arbitrary, illegal and without authority of law.

(ii) Because the selection process was introduced in a high handed and arbitrary manner without informing and consulting the accredited hospitals and institutions for the reasons best known to the Respondent Board.

(iii) Because being the highest stake holders and being directly involved in the DNB Programme, the Respondent Board should have consulted the accredited hospitals and institutions before making such significant changes in the admission process which will grossly affect the institutions, the students and the system as a whole.

(iv) Because being the instrumentality of the state the Respondent Board is expected to act in most fair, reasonable and transparent manner. But this action of the Respondent of not consulting the institutions clearly goes to show their high handed and arbitrary attitude towards the accredited institutions.

(v) Because since the old procedure is continued for the selection of secondary candidates and candidates for super specialty courses, there no harm in continuing the same procedure in the Broad Specialties.

(vi) Because the various accredited institutions across the country showed their discomfort in introducing the new process of admission by writing letters to the respondent board with various recommendations. However, the board showed a blind eye to all the recommendation and suggestions given by the accredited institutions. The Respondent Board is well aware of the fact that the high standard of DNB can be achieved because of the active participation and contribution of the institutions. Hence in the interest of the students and the institutions, the decision needs to be reviewed.

(vii) Because since the board has dispensed with the requirement of interview for students desirous of admission in the accredited medical institutions, the institutions as well as the students will be highly affected. The earlier system permitted the institutions to hold interview which was based on fair, transparent and non exploitative criteria. The marks obtained in the interview was the basis for selection of students in that particular institution. The interview was based on the guidelines issued by the Respondent Board and it was done in the presence of the board approved external consultants. Records of the selection process were also sent to the Respondent Board. The system was fair, transparent and non exploitative and it suited both the students as well as the medical institutions. The system worked without any difficulty. However the new rule of the Respondent Board has dispensed with the requirement of the interview and it has further decided that the students shall be allocated in the institutions on the basis of marks obtained by them in the CET-DNB held by the Respondent Board.

(viii) Because the change in the process of selection of students by the Respondent Board is not conclusive to get the right candidates to the petitioner institutions. Many valuable seats of the petitioner institutions have been lost last year because of this trial and error policy of the Respondent Board. Doctors who are selected for working and training in the medical institutions need to meet the requirement of that particular institution and the same can be determined only on the basis of the interview. Marks obtained in the written examination can not fully determine the suitability of a student for admission in that particular institution.

(ix) Because the Supreme court has rightly laid down in T.M.A. Pai Foundation and Ors.Vs.State of Karnataka and Ors. AIR 2003 SC 355 that the deprivation of private medical institutions of right to rational selection is contrary to the law. The relevant portion of the judgment reads as under:

Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

(x) Because the autonomy of the private unaided institutions in selecting the students should be respected as it is their statutory right to select candidates.

(xi) Because the Doctors selected for DNB are required to take care of the patients in the hospital. They form an important and integral part of the patient management in the hospital. The management of the hospital is ultimately liable for the acts of omission or commission that is done by these students in the course of their service training. Therefore the medical institutions are required to examine the suitability of the students who are to obtain admission in the particular institution. They must meet the requirement of the particular institution. It is for the institution to determine the suitability of the candidates as to whether the candidates meet the requirement of that particular institution or not. For the said purpose the institution concerned is required to determine the suitability and aptitude on the basis of the interview.

(xii) Because interview is the important part through which the suitability and the aptitude of the candidate can be ascertained, hence it should be part of the selection process.

(xiii) Because the action of the respondent board by the Public notice dated 17-01-2011 of coercing the Accredited institutions to agree to the New selection Process without their free consent is highly illegal and arbitrary.

(xiv) Because the earlier CET was valid for a period of two years, however the present new rule requires the candidates to appear for the CET examination every time they apply for a seat in the DNB program, which is not only inconvenient for the students but also does not have a reasonable basis. This clearly goes to show the non application of mind by the respondent board in making such a significant change to the procedure.(xv) Because through a public notice dated 14 -01 -2011 the respondent board further proposed to amend the selection procedure even for the secondary candidates effective from the next session, making it a centralized counseling which is highly unreasonable.

(xvi) Because the memorandum of Article of the Respondent Board does not have any objective clause pertaining to the admissions. As per the objective clause of the said the MOU, the jurisdiction of the Respondent Board is limited to conducting examinations. Therefore the action of the Respondent board of interfering in the admission process without having any object clause, is highly Illegal.

(xvii) Because it is important to consider that the Respondent Board has not only been acting in a high handed, and reckless manner but also in a very negligent manner which is very evident from the fact that the respondent Board has failed to respond to the various hospitals after 6-12 months from their accreditation inspection and in many other instances they have grossly failed to respond to the accreditation application filed by various hospitals/institution. This clearly goes to show the careless attitude of the Respondent Board towards their primary duty.(xviii) Because each educational institution must have the freedom to have a say in the Admission process. The decision on the Admission must necessarily be left to the private educational institutions as they spent their own resources to train the candidates under the DNB Programme.(xix) Because the facts in the present matter reveal that the decision taken by the Respondent Board in introducing new centralized admission process is in violation of the fundamental rights under Article 14 & 21 of the Constitution of India. (xx) Because right of administration of a private unaided educational institution includes right to give admission and to fix the fee as is held in T.M.A. Pai Foundation & Ors Vs State of Karnataka & Ors.(xxi) Because it is necessary to keep the Government control of unaided institutions to the minimum. There can be no State control of education as is rightly held by the Apex court.(xxii) Because right of administration of a private unaided educational institution includes right to give admission and to fix the fee as held in T.M.A. Pai Foundation & Ors Vs State of Karnataka & Ors reported in (2002) 8 SCC 481. Para 50 read as under:

50. The right to establish and administer broadly comprises of the following rights:-

(a) to admit students:

(b) to set up a reasonable fee structure:

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching); and

(e) to take action if there is dereliction of duty on the part of any employees.(xxiii) Because every institution is free to devise its own admission process (right guaranteed under Articles 19 (1) (g) and 26 (a) of the Constitution of India) so far as it is done in a fair and transparent manner in line with the norms prescribed by the authorities. (xxiv) Because the Respondent Board in issuing the Impugned public notices has failed to appreciate that the Petitioner Institutions rights to devise its own admission process which can be regulated and the State Governments function is to oversee that there is no malpractice adopted in admitting candidates. The regulative measures can be brought to ensure that no malpractice adopted in admitting candidates is adopted directly or indirectly or in any other form as long as they comply with the conditions regarding fair, transparent, non exploitative and merit.(xxv) Because the Respondent Board has introduced this new centralized admission process without applying its mind with regard to the criteria and guiding factors governing the admission to the DNB Programme(xxvi) Because the decision of the Respondent Board in introducing new centralized admission process to the DNB Programme by the petitioner is highly arbitrary, illegal and in contrary to the judgment rendered by the Honble Supreme Court in TMA Pais case and Islamic Academy of Educations case and P.A.Inamdars case.(xxvii) Because the Apex Court has clearly held that the Committees must be rational to ground realities. No reason has been given for introducing new centralized admission process to the DNB Programme. The entire basis on which the Respondent Board has proceeded to a new centralized admission process is wholly arbitrary and contrary to the guidelines issued by the Apex Court. (xxviii) Because the Respondent Board failed to appreciate the fact that the Honble Supreme Court has held that the decision of admission in private unaided institutions which does not seek funds or is not dependent on the Government, shall be left to the Respective institutions/hospitals. There are no specific reasons assigned by the respondent board and thus the respondent board erred in introducing new centralized admission process which is highly arbitrary, illegal and contrary to the judgment of the Honble Supreme Court. As long as the admission by the petitioner institutions is transparent and fair, the petitioner institution is entitled to have their say in the admission process.. (xxix) Because the Respondent Board further failed to appreciate the fact that it is not disputed that the petitioner institutions herein have invested huge amount of money in setting up the hospital and that the latest state of art equipments and infrastructure have been provided in the hospital to its students.. In view of the fact that the petitioner institution should have their say in their own admission process.

(xxx) Because if the new centralized admission process is implemented, the petitioner institution as well the students will be put to irreparable loss and great injustice.(xxxi) Because the proposed new centralized admission process might lead to confusion as outstation candidates with good CET marks may like to join and opt out later for better options in their native states. As replacement of these candidates by the institutions is not allowed, the same may lead to lapse of the seat.(xxxii) Because for many years candidates who have cleared their CET have subsequently applied to the institutions for admission and by an interview process, been admitted to the DNB Courses. This process has worked well in the petitioner institutions as well as it has given the institutions an opportunity to judge both the capability as well as aptitude of a candidate in the particular field. The excellent results of the candidates in the petitioner institution speaks volumes for the selection process and training. (xxxiii) Because the Respondent board has failed to take note that that right to admission is an essential and integral component of right to administer. The Respondent board has arbitrarily introduced the new centralized admission process and is not based on any rational or reasonable data.

(xxxiv) Because in spite of the observation of the Honble Supreme Court that the Committees are expected to be more sensitive and act rationally and reasonably with due regard to realities. In spite of the same, the Respondent Board arbitrarily introduced the new admission Process without emphasizing the ground realities. While altering the admission process the Respondent board should have given their reasons for doing such changes and should have consulted the institutions who play an integral role in the programme. (xxxv) Because the action of the Respondent Board is illegal inasmuch as it has assumed to itself the power of a sole administrator to the admission to the DNB Programme. This Honble Court in the TMA Pai Foundation case (Supra) and in Islamic Academy of Education case (Supra) P.A.Inamdars case (supra) has categorically held that the respective institutions have to have their say in their own admission process. This Honble Court had only entrusted to the Boards/committes the supervisory function of checking as to whether the admission process is conducted in a fair and transparent manner.

(xxxvi) Because the action of the Respondent Board is illegal on grounds of non-application of mind, arbitrariness, unreasonableness and for the fact that it has taken into account irrelevant considerations and omitted relevant considerations and is further illegal and violative of Articles 14 and 19(1)(g) of the Constitution of India.(xxxvii) Because the petitioner institutions are wholly privately funded institutions, no aid or any infrastructure is sought from any government agency. In other words, the petitioner institutions are unaided educational institutions. The Apex Court in the case of UNNIKRISHNAN Vs. STATE OF ANDHRA PRADESH (1993) 1 SCC 045 was pleased to frame a scheme in respect of admission and selection of students by medical, dental and engineering colleges. Both minority and non-minority professional colleges found that the scheme envisaged by the Apex Court totally eroded the autonomy vested in the educational institutions regarding admission, selection of students. The Honble Supreme Court referred the matter to a larger bench and addressed these grievances in TMA PAI FOUNDATION Vs. STATE OF KARNATAKA. The Honble Supreme Court vested with the managements of the professional institutions certain discretion in respect of admission and selection of students. However, after rendering of the judgement, certain doubts arose regarding the execution of the same. When this was appraised before the Apex Court, a five-judge bench decided the matter in ISLAMIC ACADEMY OF EDUCATION Vs. STATE OF KARNATAKA. The Apex Court in these Judgments has categorically held that the selection of candidates should be vested with the respective managements.(xxxviii) Because the right to admission and selection of candidates by private management has been dealt with by the Apex Court in various judgments as under in TMA PAI FOUNDATION Vs. STATE OF KARNATAKA has held as under:

In para 45:

45. In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC AICTE, the Medical Council of India, the Central and State Governments etc. are overruled.

In para 53

53. With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government.

In para 55

55 in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged. Appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible.

(xxxix) The Honble Supreme Court in the case of P.A.Inamdar Vs. State of Maharashtra (2005 SCC(6) 607) held as follows:

The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.

(xl) In the light of the aforesaid averments the earlier process of admission was much more effective and suitable for the students as well as the institutions and the respondent board should not have removed such an effective and sound process of admission.

PRAYER:Therefore, on the facts and in the circumstances of the case it is most humbly and respectfully prayed that this Honble court may graciously be pleased to:

A) issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the public notice dated 5-7-2010, 31-12-2010, 14-01-2011, 17-01-2010 vide Reference no. NBE/2011/ACC/3146, 17-01-2010 vide Reference no. NBE/2011/ACC/3147, 27-01-2010 issued by the Second Respondent Board,

B) issue a writ of mandamus or any other appropriate writ, order or direction to the Respondent Board not to proceed with any further actions pursuant to the aforesaid impugned public notices.

C) issue a writ of mandamus or any other appropriate writ, order or direction to reinstate the earlier admission procedure prevailing prior to the July 2010 permitting the institutions to hold interview in a fair, transparent manner as per the guidelines of the Respondent Board. D) pass such further or other orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice.

PETITIONERS.

THROUGHPrasanth.P.AdvChamber No.340,

M.C.Setalvad Block,

Opp Supreme Court,

New Delhi-110 001

Mob: 9818297293NEW DELHI

DATED: .2011

IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (CIVIL) NO.

OF 2011

In the matter of:

Association of National Board

Accredited Institututions ( ANBAI) & Ors.

PETITIONERS

Versus

Union of India & Anr.

RESPONDENTSURGENCY APPLICATIONTo,

The Registrar,

Delhi High Court,

New Delhi.

Sir,

Kindly treat the accompanying application as urgent in accordance with the Delhi High Court Rules and Order. The grounds of urgency are as under:

On 17-01-2011 the Respondent Board issued public notice vide Reference no. NBE/2011/ACC/3147 declaring that the merit list of enrolled candidates for the January 2011 session shall be published online on 7-02-2011. Hence since the last date for publication of merit list is 7-02-2011 stay of the public notice dated 5-7-2010, 31-12-2010 14-01-2011, 17-01-2011 and 27-01-2011 issued by the Respondent Board and all further proceedings carried out in pursuance thereof is prayed for.

Thanking you,

Yours faithfully, New delhi

Dated:

advocates.IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (CIVIL) NO.

OF 2011

In the matter of:

Association of National Board

Accredited Institutions ( ANBAI)

and others

PETITIONERS

Versus

Union of India & anr

RESPONDENTS

APPLICATION UNDER SECTION 151 CPC OF THE CODE OF CIVIL PROCEDURE CODE.

To,

The Honble Chief Justice and his companion

Judges of the Honble High Court of Delhi at

New Delhi.

MOST RESPECTFULLY SHOWETH:

1. The Petitioner is filing the present writ petition under Article 226 of the Constitution of India with a prayer to this Honble Court to issue a writ of mandamus or any other appropriate writ, order or direction for quashing the public notice dated 5-7-2010, 31-12-2010 and subsequent notification dated 14-01-2011, 17-01-2011 and 27-01-2011 issued by the second respondent to the Petitioner herein which are highly arbitrary, illegal and with a predetermined mind. 2. That the contents of the writ petition are not being reproduced herein for the sake of brevity and to avoid repetition. The petitioner craves leave of this Honble court to refer to and rely upon the contents of the petition at the time of arguments. The same may be read as a part and parcel of this application.

3. It is submitted that the respondent Board abruptly changed the admission process of the DNB courses without consulting the Accredited hospitals/institutions whereby only the CET results should be the only qualifying criteria for the admission process instead of the earlier process of conducting interview by the Accredited institutions as per the norms given by the Respondent Board , causing great injustice to the Petitioners Institutions and students and seriously affecting their statutory rights.4. The Respondent Board has dispensed with the requirement of interview for students desirous for admission in the accredited medical institutions. The earlier system permitted the institutions to hold interview which was based on fair, transparent and non exploitative criteria. The marks obtained in the assessment interview was the basis for selection of students in that particular institutions. However the new rules of the Respondent Board has dispensed with the requirement of the interview and it has further decided that the students shall be allocated in the institutions on the basis of marks obtained by them in the CET-DNB Test held by the Respondent Board which is highly illegal and without the authority of law.

5. That in view of the facts and circumstances of the present case and the grounds raised in the present petition, it is necessary in the interest of justice to grant stay of the Public Notices dated 5-7-2010, 31-12-2010 and subsequent notification dated 14-01-2011, 17-01-2011, 27-01,2011 issued by the second respondent to the Petitioner.6. The continuance of any further proceedings is wholly illegal and is likely to cause great irreparable loss to the Institutions, students and the process as a whole.

7. The balance of convenience is in favour of the Petitioner. In case the stay as prayed for is not granted the petitioner will suffer irreparable loss and injury. 8. The present application is being filed bonafide and in the interest of justice.

Therefore, in the facts and in the circumstances of the case it is most humbly and respectfully prayed that this Honble court may kindly be pleased to

I. grant ad-interim ex parte stay of the Public Notices dated 5-7-2010, 31-12-2010 and subsequent notification dated 14-01-2011, 17-01-2011, 27-01,2011 issued by the second respondent to the PetitionerII. pass such further or other orders which this Honble Court may deem fit on the facts and in the circumstances of the case.

PETITIONER.

THROUGH

ADVOCATES.

Dated