NBE independent of MCI, has all powers to extend DNB training period: Delhi HC

"The decision of NBE to extend the training of the petitioners can by no stretch be described as malafide or perverse," asserted the Delhi HC bench of honourable Justice Asha Menon during a hearing of a plea filed by resident doctors who were in the third/final year of the training of the DNB course, conducted by the NBE. They joined the DNB course between April and June 2017 and were scheduled to complete their training between April and June this year.

The doctors challenged the April 4 NBE's notice which states that their training has been adversely impacted by the ongoing COVID-19 pandemic and it has been decided to extend the period of training of all DNB/FNB students, whose tenures were ending between April 1 and June 30, 2020, in all specialities, by six weeks and until further notice.

Via their petition, the counsel on behalf of the medicos contended that NBE had no powers vested in it to vary the training period of the petitioners. Further, there was discrimination between the first year and second-year trainee doctors and the final year trainee doctors, such as the petitioners, inasmuch as the training period has been extended only for the latter.

It was submitted their professional careers were compromised by the arbitrary action of NBE. The medicos had already been offered employment at different hospitals and because of the extension of the training period, they were now unable to join those hospitals. It was pointed out that the Public Notice suffers from the vice of uncertainty, as not only was the training period extended by six weeks, but also "until further notice" was written, which left it open-ended.

The plea mentioned that the two orders issued by the Ministry of Home Affairs on March 24 and April 15 clarified that there would be no discontinuance of work in hospitals or treatment of patients, during the COVID-19 pandemic or imposition of lockdown by the government.

The high court was informed by the Centre's counsel that the availability of petitioner doctors in the hospitals, where they are undergoing training, was essential at this time because if their training is allowed to be completed, there will be an exodus of 3156 doctors.

Read Also: DNB Online Counselling Round 1: NBE informs about inaction

Terming the NBE's explanation on its decision as sham, the counsel for the doctors argued that as the petitioners were trainees for super-speciality and the government had not directed the closure of these departments in the hospitals and therefore, it was improper to say that the training of the petitioners was being adversely affected by the Covid-19 pandemic. Moreover, the Medical Council of India (MCI) had itself exempted the doctors in their super-speciality training programmes, including the DM and MCh from Covid-19 duties and there was no reason why the training of the petitioners was required to be extended.

In response, the counsel contending on behalf of the NBE submitted that the present crisis was of an extreme kind resulting in grave strain on public health services and the extension of training was justified in public interest in that, due to the disturbance caused by the Covid-19 pandemic, fresh infusion of DNB candidates was not possible as the entrance exam cannot be held and if the final year DNB students are allowed to leave, it would have resulted in an exodus with no infusion, leading to a vacuum, which would have adversely impacted the public health system. It was further pointed out that due to Covid-19 pandemic, hospitals have had to concentrate on treating patients suffering from Covid-19. Consequently, though all departments had not been closed down, the OPDs have not been functional and various speciality departments were also working on a low scale. Therefore, NBE decided that training was being impacted adversely and it is in the interest of the medical profession that the training be extended.

Stressing that there can be no promissory estoppel claimed in matters relating to education and as the final year students are much more skilled than the first year and second-year students, therefore, they were all of different categories and there was no discrimination.

After going through the submissions and contentions of both the sides, the judge noted that the petition was without merit and devoid of any force.

The court rejected the argument made by the petitioners regarding the public notice being ambiguous by noting that what is known to the world at large as constituting "special circumstances", particularly to doctors working in the hospitals, even as DNB trainees, did not need spelling out in the Public Notice.

On the part where it was contended that MCI did give exemption to its DM and MCh trainees, does not mean that NBE is bound to follow suit to similarly exempt the DNB trainees who are in super-speciality. NBE is not governed by the advisories of the MCI, the court reminded

NBE is independent of the MCI and it cannot be contended, as has been done by the learned counsel for the petitioners.

It was abundantly clear that NBE is vested with supervening powers which include extension of training period in extraordinary or special circumstances

On the accusations of discrimination, Justice Asha Menon said that the Public Notice of NBE is neither discriminatory nor does it suffer from any uncertainty as the extension of training has been provided for six weeks and till further notice, which clearly is predicated on the intensity of the Covid-19 pandemic.

"With regard to the plea of discrimination, Article 14 of the Constitution of India prohibits discrimination amongst 'equals'. Clearly, the first year, second year and third year students are not 'equals' as they are at different levels of skills. Moreover, as rightly pointed out by the learned ASG, it is the movement of the final year students from the hospitals that would create a gap in health services. Further, as the first and second year students are still available at the hospitals they shall have the time to continue their training in specialized fields, once the acute and emergent demand on health services eases. That may not be the position if the third year students are allowed to leave with whatever training they have received."

Regarding the submission of doctors that extension of the training period has adversely impacted their professional career or career options, the high court observed that there are certain situations in which the usual parameters of professional advancement cannot be applied.

"In times of a severe pandemic, doctors cannot seek that a vested personal interest be placed above public interest, as they are the only ones who can take care of patients with their skills and aptitude. Such expectations are not legitimate, even if the principle of legitimate expectation was applicable to education, which it is not," it said.

Holding that the doctrines of promissory estoppel and legitimate expectation are inapplicable to educational or academic matters, the bench concluded,

"Today, we are faced with a situation that is unprecedented and with no parallel except for the Spanish Flu epidemic of a hundred years ago. In such conditions, the decision of NBE to extend the training of the petitioners can by no stretch be described as malafide or perverse. Therefore, this plea of the petitioners, also fails to impress."

The high court said that since NBE is concerned with the standard of training and the attainment of the candidates after such training, it is fully justified in taking the view that due to the limited operation of all departments, to focus on Covid-19 patients, the training of the petitioners and others, who have completed their tenure between April 1 and June 30, has been adversely impacted.

"Such a decision cannot come under judicial review, as that is the decision of a body of experts in the field. Considerations of personal advancement cannot also be the reason to overturn a rational policy decision taken by a body empowered to make that decision," it said.

The NBE, an autonomous body under the Ministry of Health and Family Welfare, was established to improve the quality of medical education and it conducts postgraduate and postdoctoral examinations. The degree awarded by NBE is called Diplomate of National Board. DNB is a postgraduate or postdoctoral diploma in which the training lasts for three years and FNB is a fellowship in a sub-speciality where the training lasts for two years.