Doctors challenge DNB, FNB training extension; HC asks NBE to respond

New Delhi: Challenging the National Board of Examinations (NBE) over its notification extending the training period of DNB and FNB candidates, doctors have now knocked the doors of the Delhi High court.

The bench of Justice C. Hari Shankar of the Delhi HC while refusing to grant any ad interim relief to the candidates has issued notices to Central Government and the National Board of Examination to respond on the matter

Medical Dialogues had earlier reported about a Public Notice issued by the NBE that observed that, as training of students undergoing the Diplomate of National Board (DNB)/Fellowship of National Board (FNB) programme, conducted by the NBE, has been adversely impacted by the ongoing COVID2019 pandemic, it has been decided to extend the period of training of all DNB/FNB students, whose tenures were ending between 1st April and 30th June, 2020, in all specialities, by six weeks and until further notice.

Read Also: Coronavirus Impact: NBE extends training of DNB, FNB candidates by atleast 6 weeks

While doing so, the Public Notice also clarified that such extension would not interfere with the eligibility of the candidates to appear in their respective exit examinations, and that the candidates would be paid stipend by the hospital as per the stipend guidelines of the NBE.

The cut-off date for training completion of the candidates, for the purposes of eligibility for appearing in the DNB final examination, December 2019, therefore, has been modified to 11th August 2020

The petitioners are resident doctors, 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, 2020. They challenged the legality of the notice on the following grounds

(i) Orders, dated 24th March, 2020 and 15th April, 2020, issued by the Ministry of Home Affairs (MHA), clarify that there would be is no discontinuance of work in hospitals or treatment of patients therein, during the currency of the COVID-2019 pandemic, or imposition of lockdown by the government in connection therewith. Therefore, that the main ground on which the impugned public notice has been issued, i.e., that training of DNB/FNB residents has been adversely impacted by the COVID-2019 pandemic, is essentially a sham ground.

(ii) The impugned Public Notice is discriminatory and violative of Article 14 of the Constitution of India, inasmuch as there has been no extension of training of first and second year students of the DNB course, and hostile discrimination has been practiced, applicable only to final year students, such as the petitioners.

(iii) The impugned Public Notice operates retrospectively, inasmuch as it also covers DNB students who may have completed their training between 1st and 4th April, 2020. Such retrospective application is contrary to the law.

(iv) The impugned Public Notice is, further, void on the ground of uncertainty, as it extends the period of training of DNB/FNB students "by a period of six weeks and until further notice". The use of the words "and until further notice" results in the impugned Public Notice becoming effectively open ended, which is impermissible in law.

(v) The impugned Public Notice has resulted in serious and deleterious consequences to various DNB students.

(vi) There is no provision, whereunder the impugned Public Notice, dated 4th April, 2020, could have been issued by the NBE, either in the DNBCETSS Handbook, governing such issues, or elsewhere. The impugned Public Notice is, therefore, ultra vires the powers and authority of the NBE.

(vii) Lastly, the petitioners also pointed to a communication from the Directorate of Health Services, Thiruvananthapuram, Kerala, to the NBE, which seeks exemption of doctors, in the Directorate of Health Services, Kerala, from the application of the impugned Public Notice, dated 4th April, 2020.

The court, however, denied giving any prima facie interim relief to the candidates

The orders dated 24th March, 2020 and 15th April, 2020, issued by the MHA, are, in my view, really tangential to the issue at hand. There is a qualitative and quantitative difference between functioning of hospitals and imparting of training to DNB/FNB students therein. Functioning of hospitals, during the period of the COVID lockdown, or during the currency, in the country, of the COVID pandemic itself cannot, obviously, be equated with the manner in which hospitals function at other times. It is a matter of common knowledge that several hospitals have had to discontinue their normal activities and restrict their activities to treatment of COVID patients, with many hospitals - such as the Trauma Centre, AIIMS and LNJP Hospital – being designated as dedicated COVID Hospitals. Moreover, the workload on doctors, during the period of the present COVID pandemic, even cannot remotely be compared with the workload being handled by them in normal times. The mere facts that hospitals and medical establishments continue to functioning during the COVID pandemic, therefore, does not, ipso facto, lead to the conclusion that training of DNB residents is not adversely impacted, or belie the averment, to that effect, as contained in the impugned public notice, dated 4th April, 2020.

The court was also not convinced of the fact that DNB/FNB training was not adversely impacted

It is not possible for this Court, as a writ court, to return a finding that there is, in fact, no adverse impact on training of DNB/FNB students merely because, even during the currency of the COVID pandemic, hospitals continue to function. The extent to which imparting of training to DNB and FNB students stands impacted by the COVID-2019 crisis, and the altered workload and manner of functioning of hospitals during the currency thereof, is entirely within the province of knowledge of the respondents. There is no reason for this Court to believe that the respondents are, without any justification, averring, in the impugned Public Notice, that the exercise of imparting of training to DNB and FNB students stands impacted during the COVID-2019 pandemic, and the crisis that has arisen as a consequence thereof.

The court prima-facie also rejected the other arguments put forward by the petitioner, noting that the respondents are able to satisfy this Court that the impugned Public Notice was issued on legitimate grounds, no plea of adverse discrimination can further the cause of the petitioner. The court also noted that if it allowed the petitioners' training to be completed and they leave the hospitals, there will be an exodus of 3156 doctors, which could adversely impact the treatment of patients, COVID sufferers and otherwise, during the currency of the present pandemic

In view of the above discussion, while I am of the opinion that given the pan-India impact of the impugned Public Notice, it would be appropriate to seek a response from the respondents, to the writ petition, no case for grant of any ad interim relief, ex parte or otherwise, is made out. It cannot be said that, in view of the above - discussion, a clear prima facie case, justifying issuing any interim injunction, has been made out by the petitioners. Nor, in view of the fact that the conclusion of training of the petitioners has merely been extended, can it be contended that the petitioners would suffer any irreparable loss, were injunction as sought not to be granted. Further, given the necessity for optimum availability of doctors during the present COVID pandemic, and bearing in mind the interests patients, the balance of convenience would also militate against grant of interim relief to the petitioners.