In a major development in the direction to promote probity, transparency and accountability, the Delhi High Court has in an extremely laudable, learned, landmark and latest judgment titled Association of MD Physicians vs National Board of Examination in LPA 193/2021 and cited in 2022 LiveLaw (Del)487 that was pronounced finally on 23 May, 2022 has minced absolutely no words to hold unequivocally that a person approaching the High Court under Article 226 of the Constitution must come with a pair of clean hands, adding that there must be disclosure of full, complete and correct facts.

A Division Bench of Delhi High Court comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla also observed that a petitioner should not suppress any material facts and also not take repeated or parallel recourse to legal proceedings. The Court made these observations while dealing with an appeal challenging the judgment of a Single Judge dismissing the petition filed by Association of MD Physicians with cost of Rs 25,000.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Navin Chawla for a Division Bench of Delhi High Court comprising of Acting Chief Justice Vipin Sanghi and himself sets the pitch in motion by first and foremost putting forth in para 1 that:
This appeal has been filed challenging the judgment dated 11.06.2021 passed by the learned Single Judge in W.P. (C) 5908 of 2021, titled Association of MD Physicians vs. National Board of Examination & Ors., dismissing the writ petition filed by the appellant herein with cost of Rs.25,000/- (Rupees Twenty-Five Thousand only). The learned counsel for the appellant submits that the present appeal has been filed confining the challenge thereto only to the finding of the learned Single Judge that the appellant has indulged in forum shopping as well as the imposition of cost of Rs.25,000/- on it.

Truth be told, the Bench then discloses in para 2 that:
The appellant had filed the above writ petition seeking the following reliefs:

1. Issue an Appropriate Writ, Order or Direction, in the nature of a Writ of Mandamus, under Article 226 of the Constitution setting aside the time schedule for conduct of the June 2021 FMGE as contained in the Notice dated 15.04.2021 and the Information Bulletin dated 16.04.2021, titled Foreign Medical Graduate Exam Screening Test Information Bulletin December 2020 Session, published by the NBE/ Respondent No. 01 and all consequences thereof;
    
2. Issue an appropriate Writ, Order or Direction, in the nature of a Writ of Mandamus, under Article 226 of the Constitution of India, directing the Respondent No.1 to conduct the examination at a time conducive for such examination, but no earlier than six (6) weeks from the date when the examination was originally scheduled.

Needless to say, the Bench then states in para 17 that:
We have considered the submissions made by the learned counsels for the parties.

Most significantly, the Bench minces no words to say in para 18 that:
At the outset, it must be emphasized that for invoking the extraordinary jurisdiction of a writ Court under Article 226 of the Constitution of India, the writ petitioner must disclose full, complete, and correct facts. There should not be any suppression or distortion therein. A writ remedy is an equitable one. A person approaching the High Court under Article 226 of the Constitution of India must, therefore, come with a pair of clean hands. The petitioner should not only suppress any material facts but, should also not have taken repeated/parallel recourse to legal proceedings. (Ref: Udyami Evam Khadi Gramodyog Welfare Sanstha & Anr. vs. State of Uttar Pradesh & Ors. (supra) and Dalip Singh vs. State of Uttar Pradesh, (2010) 2 SCC 114).

Without mincing any words whatsoever, the Bench then points out in para 19 that, The appellant, in the writ petition filed before the Supreme Court, had inter alia prayed for grant of exemption from qualifying the FMGE as a one-time measure. This was certainly a material fact which ought to have been disclosed in the writ petition filed by the appellant before the High Court praying for the postponement of the FMGE. The submission of the learned counsel for the appellant that, before the Supreme Court on 01.06.2021, the appellant did not plead or argue for interim relief in relation to the forthcoming FMGE examination, is neither here nor there.

The first prayer in the writ petition before the Supreme Court was for such exemption. The two petitions preferred by the writ petitioner-one before the Supreme Court, and the other preferred before this High Court related to the same subject-matter viz. the FMGE. In the former, exemption from taking the said exam was sought, whereas in the second, postponement thereof was sought. The appellant could not have maintained two different petitions in respect of the same examination and, that too, one before the Supreme Court, and the other before the High Court. Even the time of filing of the present writ petition before this Court is crucial, and demonstrates the calculative and scheming manner in which the appellant acted.

Be it noted, the Bench then observes in para 20 that:
Herein, three additional facts also became relevant against the appellant. These are as follows:

1. The appellant now admits that alongwith their petition, another petition titled Indian Foreign Medical Students (IFMS) Welfare MCI Gurukul Trust vs. Union of India And Anr. (supra), was also listed before the Supreme Court, wherein a similar prayer of postponement of the examination was made. The Supreme Court, however, had expressed certain reservations on the grant of such a prayer and adjourned the hearing of the writ petition. This fact was extremely material for the learned Single Judge to be appraised of, to decide on the prayer made by the appellant/petitioner before him. However, the same was concealed. This averment has only now been made in the appeal, and is reproduced hereinbelow:
    
2. On 01.06.2021 when W.P.(C) 585/2021 came to be heard by the Hon’ble Supreme Court no interim relief in relation to one time exemption, was pleaded or argued on behalf of the Petitioners (including the Appellant herein). Moreover, at the time of arguments, it was clarified that the issues related only to induction of Foreign Medical Graduates in the COVID-19 workforce, and that the Petitioners did not seek any one-time exemption of the exam. Pertinently on the same day, another writ petition W.P.(C) 591/2021 titled Indian Foreign Medical Students (IFMS) Welfare MCI Gurukul Trust vs Union of Indian & Anr. was listed prior to the petition of the Appellant. During the hearing the Petitions in W.P.(C) 591/2021 the Petitioners therein sought for postponement of the FMGE screening test.
   
   It was upon hearing such submission that the Hon’ble Division Bench observed that one does not know where graduates have completed their MBBS degrees from, and it was again clarified by the Petitioners that no exemption to the exam was being sought. A copy of the causelist dated 01.06.2021 of the Hon’ble Supreme Court of India is annexed herein as ANNEXURE A-5. Pertinently, at the time of such hearing, no representation was made to the Respondents by the Appellant Association as to delaying the conduct of examination. (Emphasis Supplied)
    
3. The appellant, after the first date of hearing before the learned Single Judge held on 09.06.2021, filed another application before the learned Single Judge. Even in this application, the appellant did not choose to make the disclosure of the complete prayers, including prayer (a) made before the Supreme Court in the writ petition filed by them. The only disclosure made was in paragraph 7(k), which has been reproduced hereinabove.
    
4. It is only upon the dismissal of the writ petition by the impugned judgment that the appellant became wiser and on 15.06.2021, withdrew the prayer (a) made by it before the Supreme Court which was for the grant of exemption from appearing in the FMGE in June-2021. The subsequent event, however, cannot absolve the appellant of the taint of not having disclosed all the material facts before the learned Single Judge in the writ petition.

While citing the relevant case law, the Bench then enunciates in para 21 that, In Arunima Baruah (supra), the Supreme Court has held that what would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. Applying the above test to the facts of the present case, clearly, the appellant had concealed material facts from the Court.

While citing yet another relevant case law, the Bench then mentions in para 22 that:
In Cipla Ltd & Anr. (supra), the Supreme Court found that the respondent had disclosed filing of the previous petition before the High Court of Karnataka at the time of filing the petition before the High Court of Allahabad and there was no concealment of that fact. The Supreme Court, in fact, concluded that the respondent ought further to have disclosed the filing of the writ petitions in the High Court of Bombay, however, did not take any action on basis of this non-disclosure, observing that at this stage, we do not think it appropriate to non-suit Cipla only on this ground. In the present case, as noted hereinabove, we are of the opinion that the prayers made by the appellant before the Supreme Court were necessary and material to be disclosed to the learned Single Judge in the writ petition upfront. The concealment of the same was sufficient to non-suit the appellant.

Furthermore, the Bench then states in para 23 that:
In Reliance Infrastructure Ltd. (supra), the Court found that a challenge to the validity of the regulations framed by the Maharashtra Electricity Regulation Commission (in short, ‘MERC’) could only lie before the High Court. There was also no suppression of fact on the part of the appellant in the aforementioned case, which had indicated the recourse it had taken in the appeal before the Tribunal. It was on those facts that the Supreme Court found that the High Court had erred in holding the writ petition filed before it to be not maintainable.

Quite ostensibly, the Bench then holds in para 24 that:
The above judgments, therefore, in our view, do not come to the aid of the appellant in the facts of the present case.

It is worth mentioning that the Bench then observes in para 25 that:
As far as the plea of the learned counsel for the appellant that the appellant was not granted any opportunity to file a rejoinder to the submission of forum shopping made by the respondents, we again find no merit. It has not been stated that the appellant did pray for time to file a rejoinder, and the same was denied by the learned Single Judge. Having proceeded with the arguments in the writ petition, the appellant cannot now find fault with the impugned judgment on this ground.

Most remarkably, the Bench then hastens to add in para 26 that:
At this stage, we may also note the submission of the learned counsel for the appellant that the appellant tenders its apology, in case this Court is of the opinion that the appellant ought to have made a further disclosure in the writ petition. We, however, are of the opinion that this apology is also not genuine, as it is accompanied by the condition that this Court must hold that the finding of the learned Single Judge is otherwise incorrect. The learned counsel for the appellant insists that the finding on the conduct of the appellant being blameworthy must be expunged, and the impugned judgment to that extent be set aside. Clearly, therefore, the appellant till today was not truly regretting the suppression made by it in the writ petition. The appellant was already before the Supreme Court in relation to the prayer for exemption from appearance in the said examination. The appellant not having secured the exemption, did not approach the Supreme Court for postponement of the very same exam, but preferred the present writ petition. This is nothing short of forum shopping, as the appellant or, atleast, its counsel was aware that the Supreme Court had not granted the said relief in W.P. (C) 591 of 2021 on 11.06.2021.

Finally, the Bench then concludes by holding in para 27 that:
In view of the above, we find no merit in the present appeal. The same is dismissed with further cost of Rs. 25,000/- to be deposited with the Delhi State Legal Services Authority.

All told, the Delhi High Court has made it indubitably clear that persons invoking Article 226 jurisdiction must come with clean hands. The Court also made it forthrightly clear that they who approach the Court must also disclose complete and correct facts and there should be no obfuscation of facts. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001