B.P. Dharmadhikari, J.

By this petition filed under Article 226 of the Constitution of India, two Doctors are challenging the communication issued by respondent no.1 National Board of Examination, holding that their admission to Post Graduate Diploma of National Board (DNB) Course is, invalid and refusing to grant registration/enrollment. It is not in dispute that the last date for admission of petitioners was 30.06.2011 and respondent no.1 Board has found that they have been admitted thereafter. According to the petitioners as also their College (respondent no.3), petitioners have been admitted on 30.06.2011 itself and they have joined the course, which commenced from 01.07.2011. The impugned orders are dated 29.08.2011 and 18.11.2011 and present petition has been filed on 06.03.2012.

2. Looking to the nature of controversy involved, we have heard the matter finally by issuing Rule and making it returnable forthwith by consent of the parties.

3. The petitioner No.1 has passed his M.B.B.S. examination in the year 2007 in First Class, while petitioner no.2 has also cleared it in First Class in the year 2005. Petitioner no.1 thereafter has cleared 2 years Diploma Course, namely Diploma in Child Specialist (DCS). Petitioner no.2 cleared 2 years Diploma Course i.e. Diploma in Pathology. Post Graduate DNB Course for them as Secondary Students is of 2 years duration. Primary DNB Post Graduate Course is of 3 years duration with eligibility qualification of MBBS. Secondary DNB Post Graduate Course requires MBBS and 2 years Diploma Course as eligibility condition.

4. It is in this background that the petitioners point out the admission to DNB Course is made twice in one year. First batch is known as January Batch, while later batch is known as July Batch. Respondent no.3 Institution restricted admissions to first batch i.e. January Batch. They submit that first admissions to DNB Primary Course are to be completed and within one month thereafter, admission to Secondary Course can be done. Primary admissions for July 2011 batch got delayed in all centers and respondent no.3 Institute could admit students therein in June, 2011. The candidate Dr. Ramani was admitted in Primary DNB (Specialization Pediatrics), Post Graduation Course on 08.06.2011. Dr. Thakre was given admission to Primary DNB (Specialization Pathology) Post Graduate Course on 11.06.2011. According to the petitioners, thus last date for Secondary Admission to DNB Pediatrics was 07.07.2011; while for DNB Pathology Course it was 10.07.2011. Both of them state that they joined their respective Courses on 30.06.2011. Petitioner no.1 has produced copy of his joining report and intimation to him dated 01.07.2011 that Course was to commence from 01.07.2011. He paid necessary registration fees on 05.07.2011. Petitioner no.2 has also produced similar documents, however, intimation to her about Course commencement from 01.07.2011 is stated to be dated 30.06.2011. She paid necessary fees on 08.07.2011.

5. After their admission, respondent no.3 College forwarded their names to respondent no.1 Board for enrollment in January, 2011 session vide communication dated 07.07.2011 and 09.07.2011 respectively. On 29.08.2011 the respondent no.1 Board refused to enroll them on the ground that they joined the course after last date prescribed for admission i.e. 30.06.2011.

6. Petitioners further contend that respondent no.3 pointed out all facts mentioned supra, vide letter dated 20.09.2011. It also pointed out to said respondent that 01.07.2011 as date of joining was erroneously mentioned in letters dated 07.07.2011 and 09.07.2011. It therefore, requested respondent no.1 Board to reconsider the issue, but, on 18.11.2011 Board reiterated and confirmed its earlier decision holding that the documents furnished by respondent no.3 did not inspire confidence. Respondent no.3 thereafter again requested respondent no.1 Board to grant enrollment. It pointed out that notification prescribing last dates for Primary and Secondary admission was not available on respondent no.1s website. Petitioner have also produced copy of this letter dated 29.12.2011 as annexure to their petition. Petitioners submit that respondent no.1 had not published notification prescribing last date for admission on its official website and after hectic search by employing search engine Google petitioners could trace notification dated 28.06.2011 issued by respondent no.1 which prescribed 30.06.2011 as last date for Secondary candidates. They further submit that similar controversy has been considered by the Delhi High Court in Writ Petition No.212/2011 and copy of its judgment dated 18.07.2011 is relied upon by them to claim similar relief.

7. It is in this background, that we have heard Shri B.G. Kulkarni, learned Counsel for petitioners; Mrs. R.S. Sirpurkar, learned Counsel for respondent no.1; Shri R. Darda, learned Counsel for respondent no.2 and Shri S.V. Purohit, learned Counsel for respondent no.3 College. Respondent no.1 as also respondent no.3 have filed their reply affidavits. Respondent no.3 has also filed counter affidavit after receipt of reply of respondent no.1 and then an additional affidavit on 22.01.2013.

8. Shri Kulkarni, learned Counsel states that the petitioners have joined and received copy of joining report dated 30.06.2011 and hence, it cannot be said that the petitioners have been admitted to the Course after last date. He has invited attention to the inward number of the department where that joining report came to be submitted, the outward number by which the said department forwarded it to the Dean and inward number put upon it by the Office of the Dean, in order to demonstrate that all this has been on 30.06.2011 itself. As such inadvertent error by the respondent no.3 in mentioning the date of petitioners joining as 01.07.2011 is liable to be ignored. The outward number on communications put by the said office are also therefore, of no consequence and not binding. The communications having outward No.3284 dated 30.06.2011 addressed to the petitioner no.2 and similar communication with same outward number addressed to petitioner no.1, but with date 01.07.2011, are thus urged to be irrelevant. Shri Kulkarni, learned Counsel submits that in any case as petitioners are not parties to the said documents, they cannot be made to suffer for no fault on their part.

9. In the alternative and without prejudice, he points out that now hardly one month of course is left and thereafter petitioners have to appear for final examinations. Thus they have completed most of the two years course. The last date of admission has been prescribed as 30.06.2011 vide notification dated 28.06.2011 and the course had started on 01.07.2011. The documents on record show that the petitioners have joined the course on 01.07.2011 itself, hence, too technical view taken by the respondent no.1 is arbitrary. The notification prescribing last date was not available on the official website of the respondent no.1 and nobody had knowledge about it. The primary candidate joined DNB Post Graduate Course on 08.06.2011 and hence the petitioner no.1 could have been admitted as secondary candidate by 07.07.2011. Similarly the other primary candidate joined the Post Graduate Course on 11.06.2011 and hence, petitioner no.2 could have been admitted by 10.07.2011. Hence, even if it is presumed that their admission was on 01.07.2011, in present facts it cannot be disturbed. He heavily relies upon the judgment of Delhi High Court to contend that the law laid down therein is squarely attracted in present facts also.

10. Shri Purohit, learned counsel appearing on behalf of respondent no.3 College is supporting the petitioners. He submits that only because of inadvertent error of giving same outward number i.e. 3284/2011, the petitioners have been made to suffer. The error was realized and corrected immediately. The petitioners were also issued communications having outward nos. 3287/11 and 3288/11 both of same date i.e. 30.06.2011. These corrected documents with corrected admission forms were also sent to the respondent no.1 for registration of petitioners, but respondent no.1 has not applied its mind correctly and ignored all relevant facts. He therefore, prays for allowing the petition.

11. Mrs. Sirpurkar, learned counsel appearing for respondent no.1 Board has strongly opposed the petition. She has submitted that the story of inadvertent error in issuing different communications with same outward number on different dates is not substantiated. She further contends that if alleged error was rectified immediately, faulty documents would not have been forwarded to the respondent no.1. The alleged rectification, issuance of same communications with two different outward numbers of 30.06.2011 is, therefore, urged to be not bonafide. She submits that even petitioners have played part in the process by filling in applications for enrollment again, and hence, they cannot claim any equity or other relief in writ jurisdiction. Attention is invited to various documents for said purpose. It is in this background the learned counsel submits that the judgment delivered by the Delhi High Court is, not applicable. She points out that after 30.06.2011 seats not occupied revert to centralized admission process and could not have been filled in by the respondent no.3 College. To press into service the importance of time schedule in such matter, she is taking support from the judgment of Honble Supreme Court reported at (2012) 7 SCC 389 [LQ/SC/2012/554] (Asha .vrs. Pt. B.D. Sharma University of Health Sciences and others).

12. Lastly she points out that the petitioners have deliberately chosen not to approach this Court immediately and though cause of action first accrued to them in August, 2011 they filed the petition at fag end only to some how appear at the examinations by making things irreversible and to seek sympathy. They opted to sit tight and respondent No. 3 College submitted unnecessary reminders /representations, which were again rejected by the respondent no.1 Board immediately on 18.11.2011. Even thereafter neither the College, nor the petitioners chose to invoke the extra ordinary jurisdiction of this Court. She therefore, prays for dismissal of the petition.

13. In reply arguments, Shri Kulkarni, learned Counsel submits that the petitioners have approached this Court at the earliest possible opportunity and technical arguments of delay in present facts should not be accepted. The alleged notification dated 28.06.2011 is itself in dispute and admission of petitioners prior to their attending the course is accepted by the respondent no.1. The course commenced from 01.07.2011 and hence, the respondent no.1 should have granted necessary enrollment/registration to both the petitioners. He therefore, seeks relief in terms of prayer clauses of the petition.

14. The first issue, therefore, to be looked into is about the date on which petitioners were admitted to Post Graduate DNB Course. The contention that, last date for said admission was prescribed on 28.06.2011 or then that communication was not within the knowledge of the petitioners or respondent no.3, and it was not available on the official website, need not detain us. It is not the case of either the petitioners or then the respondent no.3 that because of ignorance of said communication or said last date, they have been given admission after the prescribed date. On the contrary, their effort is to demonstrate to this Court that admissions have been done on 30.06.2011 itself. Thus, contention that notice of last date was very short also pales into insignificance.

15. Respondent no.1 has found the said stand of admission on last date unacceptable. It has been brought to our notice that only document to substantiate this fact is communication dated 30.06.2011 sent by respondent no.3 to petitioner no.2 and a communication dated 01.07.2011 sent by very same Authority to petitioner no.1. Both these communications have same outward number i.e. 3284/11. In normal course if outward numbers are being given contemporaneously, it is apparent that this error could not have occurred. If number 3284/11 was the last outward number on 30.06.2011, on 01.07.2011 very same number could not have been used and next available number would have been 3285/11. If 3283/11 was the last outward number used on 30.06.2011, the said number would have appeared on communication dated 30.06.2011 forwarded to petitioner no.2. Thus, ordinarily there cannot be any error resulting in use of the same outward number for two different communications issued on two consecutive dates. Here mistake alleged is not about use of wrong outward number only but also in using date 1.7.2011 on 30.6.2011 itself which is more difficult to digest.

16. This story of inadvertent error is sought to be explained by filing an additional affidavit by respondent no.3 who states that mistake was realized and hence, revised order was issued to the petitioner on same date i.e. 30.06.2011. In this affidavit the Medical Superintendent Dr. Dilip Sheshraoji Jane, therefore, uses singular number and does not say that revised orders were issued to both the petitioners. But then, in next line he discloses two outward numbers namely 3287/11 and 3288/11. This, therefore, shows that revised orders have been issued to both the petitioners. As noted above, there could have been error only in one of the orders. In present facts as respondent no.3 and petitioners insist that admissions have been effected on 30.06.2011, use of No. 3284/11 and use of date 01.07.2011 in communication to petitioner no.1 perhaps needed change and could have been corrected. Normally it would not have been necessary to correct identical communication issued to petitioner no.2, but here, both the communications are rectified and given same date but a new outward number. This again creates serious doubt about the entire process.

17. The date on which the mistake or error came to the knowledge of respondent no.3 Hospital, the mode and manner in which it come to their knowledge, are not disclosed. These details are also not given by the petitioners. It is not the case of petitioner 2 that because of error committed in joining report of petitioner 1, her registration could not have been denied. The error could have come to their notice in present facts only after the first rejection of enrollment of petitioners by the respondent no.1 Board on 29.08.2011. If the error had come to their knowledge/notice independently, or even after getting knowledge of the notification prescribing the last date, along with the proposal seeking enrollment/registrar, respondent no.3 ought to have forwarded and naturally, would have forwarded the corrected documents. Very fact that these two documents using very same outward numbers on two consecutive days came to be forwarded, again shows the incorrectness in the story of petitioners and respondent no.3 in this respect. Moreover, the alleged error has definitely come to light after 01.07.2011 i.e. after the register in which the outward numbers are given was closed for date 30.06.2011. In this situation, how these two numbers i.e. totally new numbers can be worked out for these two communications in said date is again difficult to comprehend.

18. The story does not end here. The enrollment forms submitted by the respondent no.3 to respondent no.1 again create similar doubts. Petitioner no.1 has signed that non-scanable application form for registration as DNB Training on 05.07.2011 and has shown date of joining the institution as 01.07.2011 therein. Similar form signed by petitioner no.2 is undated and it shows date of joining as 01.07.2011. It is not in dispute that both these candidates have paid necessary fees after 05.07.2011. After first rejection by respondent no.1 on 29.8.2011, respondent no.3 forwarded fresh application forms duly signed by both the petitioners in original. Both these forms do not bear the date on which same came to be signed by the respective petitioners. They only correct and mention that petitioners have joined on 30.06.2011. Thus, date of joining disclosed in rejected forms has been rectified. Both the petitioners and respondent no.3 accordingly have together corrected subsequently the documents to suit their story of joining on 30.6.2011.

19. Perusal of judgment of Honble Apex Court in the case of Asha .vrs. Pt. B.D. Sharma University (supra), reveals the findings of the Honble Apex Court that criteria for selection has to be merit alone. In paragraph no.21, the Honble Apex Court has observed that merit, fairness and transparency are ethos for admission to such courses, and it will be a travesty of the scheme formulated by it and duly notified by the States, if the role of merit is defeated by inefficiency, in-accuracy or improper methods of admission. Role of merit can never be compromised. The Honble Apex Court has pointed out various earlier judgments delivered by it to show that circumvention of merit is not only impermissible, but, it also is an abuse of process of law. Its finding show that in facts before it, merit of appellant Asha was discarded by the respondents. 30th September was the cut-off date in the said matter and the Honble Apex Court has held that admission cannot be granted after the said date. But, then, when admission is denied for arbitrary reason and no fault is attributable to a candidate, cut-off date cannot be permitted to operate as a bar for admission to such students, particularly when it results in complete ruining of a professional carrier of a meritorious candidate. The Honble Apex Court has noted that the appellant before it pursued her rights and remedies as expeditiously as possible, and cut-off date cannot be used as a technical instrument to deny admission to her, as she had secured 832 marks, while students securing marks between 821 to 731 i.e. less then her, were already admitted. In paragraph no.32, the Honble Apex Court clarified that in exceptional circumstances, Courts may have to mould the relief, making an exception to cutoff date. But, then the Court must first record a finding that no fault is attributable to a candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay, that there is fault on the part of the Authorities and there has been apparent breach of some Rules, Regulations and principles in the process of selection and grant of admission. In paragraph no.38.2 the Honble Apex Court has further added that this extra ordinary jurisdiction of admitting candidate after the cut-off date can be exercised only if these conditions are satisfied unexceptionally and reasons therefor are recorded by the Court of competent jurisdiction.

20. Judgment of Delhi High Court in Writ Petition (C) No. 212/2011 (Rohan Gupta .vrs. National Board of Examinations and others), delivered on 18.07.2011, needs to be viewed now. There the petitioner had appeared for DNBCET Entrance Examination on 18.04.2010. His interview was held by the Selection Committee of Indraprastha Apollo Hospital on 28/29.04.2010 and the petitioner was placed at Sr.No.1 in the waiting list. Seat was offered to one Dr. Vipul Mittal. Dr. Mittal, on telephone informed the hospital authorities his unwillingness to join and hence, the petitioner was immediately informed. Petitioner Rohan also conveyed his acceptance to join on 30.04.2010 itself. However, he was required to go back to Jammu (his Hometown), for arranging money and he deposited the fees on 05.05.2010. Thus, in this background the contention that he did not join before the cut-off date i.e. 30.04.2010 has been looked into by the learned Single Judge of Delhi High Court. The documents submitted by the Hospital revealed date of joining as 05.05.2010 itself. The Delhi High Court arrived at a finding that date of joining could not have been accepted as 30.04.2010 and he did joined on 05.05.2010 itself. It then noted that the petitioner approaching the High Court must truthfully place all relevant material facts on record and any false statement by him would result in denial of relief. It then noticed that not only the petitioner, but the respondent Hospital also supported the claim of petitioner Rohan, that he joined DNB Course on 30.04.2010. However, it then noted that the petitioner had qualified in common entrance test; was successful in interview and was placed at Sr.No.1 in the waiting list. It therefore, imposed costs of Rs. 25,000/- each upon the petitioner and respondent Hospital for taking false stand and considering the merit of the petitioner, though he was admitted little late after the last date, in facts before it, the Delhi High Court allowed the petition. The respondent Board was directed to register the petitioner in DNB (Neurology). It is not in dispute before this Court that respondent no.1 Board has not challenged that judgment of Delhi High Court further and thus it has attained finality.

21. In this background when facts of matter at hand are appreciated, the petitioners have approached this Court on 06.03.2012. The order of rejection of their representation is dated 29.08.2011 and its copies have been forwarded to both the petitioners. It is not their case that they were not aware of that order. Inspite of that, they have not chosen to approach this Court at that juncture. Their college forwarded a representation on 20.09.2011 and along with this representation they have forwarded copies of revised joining letters with outward Nos. 3288/11 and 3287/11 dated 30.06.2011. Copies of this representation are also given by respondent no.3 to both the petitioners. On 18.11.2011, this communication is again rejected by respondent no.1 and rejections are forwarded to both the petitioners again. On 29.12.2011, College has again reiterated the same facts in its re-representation sent to respondent no.1. It has mentioned that it was inadvertently informed that both the petitioners joined on 01.07.2011. Again copies of this second representation dated 29.12.2011 have been given to both the petitioners. Thus, petitioners were aware of stand of their college, adverse orders of respondent 1 and still took no steps to approach this Court with grievance that respondent no.3 Management had committed an error and hence they should not be made to suffer for it. Such a type of grievance is being made almost at the fag end of completion of one year of the course. The petitioners appear to be still prosecuting the course with respondent no.3 though there is no interim order by this Court. One of the arguments of the petitioners was only one month of their two years course is now left to be completed. In petition, they have not explained why they did not approach this Court immediately after first rejection. They have also not come with a case that they had no knowledge of last date prescribed and hence, could not have been blamed for taking admission on 01.07.2011 or after 30.06.2011.

22. The petitioners begin narration of facts only by urging that they joined on 30.06.2011 and communication of said joining w.e.f. 01.07.2011 is an inadvertent error. They have not pointed out how otherwise their secondary admission by respondent no.3 can be treated as correct as per procedure and according to their standing in the merit list. The date on which admissions were thrown open; date on which they applied; date on which interviews were held and date on which the list of selected students was displayed on notice board, are the vital details which petitioners have not furnished in the present matter. Petitioners and respondent no.3 together have only attempted to demonstrate that date of joining of petitioners is 30.06.2011. To enable the respondent no.3 to demonstrate this and to secure registration, petitioners have filled in fresh/second enrollment forms without putting any date. In this situation, in the light of the judgment of the Honble Apex Court, we are not in a position to hold that the petitioners have taken recourse to legal remedies expeditiously without any delay. We also do not find that there is any fault on the part of the respondent no.1 or other authorities, and they have violated any Rules/Regulations. The petitioners have not brought on record necessary details including the true and correct facts to enable us to judge their bonafides, to hold that the regulations governing the process of selection and admission have been strictly observed and the meritorious students then available have been admitted in a fair, transparent selection process. The finding of no fault on their part cannot be returned by us. Even otherwise while invoking the extra ordinary jurisdiction, it was the bounden duty of the petitioners to approach with clean hands. It appears that they have toed line of respondent no.3 only. Thus, on facts we are not in a position to conclude that the petitioners were admitted prior to the prescribed last date. We are not in a position to hold that cut-off date needs to be ignored in this matter because, otherwise the merit would be the casualty. The petitioners and respondent no.3 deliberately kept silent and allowed precious time to lapse. The petitioners and respondent no.3 have taken the risk with open eyes and continued with prosecution of a course in absence of registration with respondent no.1 Board.

23. In this situation, we find no case made out warranting interference in writ jurisdiction. Petition is, therefore, rejected. Rule discharged. No cost.