Delhi HC Upholds NBE Order, Denies Additional Attempts to Student

Delhi HC Upholds NBE Order, Denies Additional Attempts to Student 
31.12.2021 | Education News | EduLegaL  | |
The Delhi High Court in Dr. Akant Pandey vs The National Board of Examination & Anr – W.P.(C) 11213/2021 & CM APPL. 34519/2021- held that where the petitioner had already exceeded the maximum number of attempts of Diplomate of National Board (DNB) final examination and therefore cannot be further given a chance to attempt examination. 
A single bench of Justice Prateek Jalan held:  

In the circumstances arising out of the Covid-19 pandemic, the examining authority attempted to devise a revised scheme of the examination to obviate the need for large scale postponement and extension of the tenure of the course. It, nevertheless, permitted candidates who wished to take the examination in the conventional manner to opt out of the revised scheme. The petitioner, conscious of this choice, did not opt out, and took the examinations in the revised scheme, not just once, but twice. I do not see any force in Mr. Datta’s submission that he should nevertheless be given further attempts at the examination. There is no arbitrariness or unreasonableness in the actions of the NBE, visiting the petitioner with the consequences his own choice.
The role of the writ court in examining policy matters of this nature is extremely limited.

The petitioner, a doctor and enrolled for Diplomate of National Board (DNB) had cleared all the theory papers in the said examinations, but failed to clear the practical after attempting the same for 3 consecutive times. According to the information bulletin the maximum attempt to clear the practical examinations was 3. He attempted for the same in June 2019 session, December 2019 session and December 2020 session, but failed to get the minimum marks, i.e., 150 marks out of 300. Hence the respondent NBE denied to provide the petitioner any further chance of attempt after his representation to the Board dated 14.09.2021 wherein he had stated: 

Therefore, it is my humble request that I must be given one more opportunity to participate in practical examination coming up in October 2021 and also provide me the copies of answer sheets of the practical examination held on 03.07.2021 and also request you to kindly consider re-evaluation or rechecking of my result while your department considers the present representation to remove this restriction of three attempts altogether being arbitrary and without any basis.  

Aggrieved, he had approached the court. 
The counsel for the petitioner stated that the NBE changed the pattern of the examination by a notification dated 12.06.2020, which was applicable for the December 2019 session and upon change of the pattern of an examination, the attempts taken by a candidate under the old pattern ought not to be counted against him. 
The court at the outset of the petition observed that same relief was sought by the petitioner in WP(C) 9748/2021, which he had withdrawn unconditionally and the court had also stated that the respondents will decide the petitioner’s representation in their own discretion and communicate their decision to the petitioner within one week. The petitioner however, filed the writ against the order of the respondent NBE. 
The court stated that: 

Upon unconditional withdrawal of a writ petition, albeit with liberty to pursue a pending representation, the petitioner abandons his right to institute a fresh writ petition for the same relief. It is significant that the petitioner was not granted any liberty to institute such fresh proceedings. 

The court on reading the said notification of NBE found out that under the notification it was clearly mentioned that the candidates whose results were awaited may or may not opt for attempting the exam in this session, but the petitioner on his own discretion attempted the practical in September 2020 with the revised pattern and now he cannot challenge the action of NBE as arbitrary. Further, the court put emphasize on the Supreme Court in All India Council for Technical Education vs. Surinder Kumar Dhawan and Others ((2009) 11 SCC 726) and Indian Institute of Technology Kharagpur and Others vs. Soutrik Sarangi and Others (2021 SCC OnLine SC 826) where it was made clear that the writ court is not to sit as an appellate authority and re-examine the decisions of academic bodies on academic matters, except on a showing of manifest arbitrariness or unreasonableness. 
Accordingly, the petition was dismissed. 

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