Preeti Singh v. National Medical Commission & Ors.

8) He also refers to the application form dated 09th October, 2011 for eligibility certificate filed by the appellant, which does not mention pass/fail status against each subject in the form despite instruction to the applicant/appellant to declare the said fact. He places considerable emphasis on the appellant’s marksheet issued by the CBSE as well as the notation accompanying it, which clearly show that the appellant had been graded ‘E’ qua the subject Biology, that means, a failed candidate. He states that marksheet shows that the appellant had failed in theory in the subject of Biology, however, this fact was not disclosed in the application form.

9) He contends that the then Medical Council of India had issued the eligibility certificate dated 19th February, 2014 relying on the facts disclosed by the appellant in her application. He points out that it was the Delhi Medical Council which vide letter dated 18th April, 2023 pointed out the discrepancy between the marksheet issued by the CBSE and the eligibility certificate issued by the NMC. He states that as per Rule 5 of the Regulations 2002, the Respondent No.1 has a right to cancel the eligibity certificate if it is subsequently discovered that any information furnished by the candidate is false or incorrect. He states that since as per Regulation 5(ii) of the GME Regulations and Regulation 8(ii) of the Regulations, 2002, the applicant/appellant had to mandatorily and individually pass in each of the four subjects mentioned therein, which included Biology and since the appellant admittedly failed in this subject, she was ineligible to apply for the certificate.

10) Having heard the learned counsel for the parties, this Court is in agreement with the findings of the learned Single Judge that the appellant was ineligible for being awarded the eligibility certificate dated 19th February, 2014 for pursuing her MBBS as she had not passed in each of the mandatory subjects i.e. Physics, Chemistry, Biology and English. The fact that the appellant had failed in Biology is apparent from the marksheet and the instructions issued by the CBSE. The said marksheet and the instructions are reproduced hereinbelow:- Sub Code Subject Marks Obtained Positional Grade TH PR Total Total in Words 301 English Core 052 XXX 052 Fifty Two C[2] 302 Hindi core 061 XXX 061 Sixty One C[2] 043 Chemistry 023 028 051 Fifty One D[2] 042 Physics 043 028 071 Seventy One B[2] 049 Painting 023 064 087 Eighty Seven B[1] 044 Biology 013 029 042FT Forty Two E 500 Work Experience B[1] 502 Phy & Health Educa C[1] 503 General Studies C[2] Abbreviations AB: Absent in the subject Result: Pass Ex: Exempted FP: Fail in Practical FT: Fail in Theory Dated: 06-08-2017

2. At the reverse of the marksheet, the following instructions by the CBSE are to be found:

2(a). Maximum marks for each subject of external examination are

100. Minimum pass marks in each subject are 33%. In case of a subject involving practical work, a candidate must obtain 33% marks in theory and 33% marks in practical separately in addition to 33% marks in aggregate in order to qualify in that subject…

3. Clause 38(b) of the Scheme of Examination and pass criteria issued by the CBSE, which clarifies, similarly, thus: “(v) For awarding the grades, the Board shall put all the passed students in a rank order and will award grades as follows: A-1 Top 1/8th of the passed candidates A-2 Next 1/8th of the passed candidates B-1 Next 1/8th of the passed candidates B-2 Next 1/8th of the passed candidates C-1 Next 1/8th of the passed candidates C-2 Next 1/8th of the passed candidates D-1 Next 1/8th of the passed candidates D-2 Next 1/8th of the passed candidates E Failed candidates” (emphasis supplied)

11) This Court is further of the opinion that in view of the aforesaid marksheet, it was mandatory on the part of the appellant to have specifically mentioned in her application for eligibility certificate against each subject as to whether she had passed or failed therein. Such a declaration would serve public purpose and enable the authority issuing the eligibility certificate to immediately note, at a glance, whether the candidate is entitled to the certificate or not. Had the appellant, in her application form for grant of eligibility certificate specifically mentioned that she had failed in the Biology subject, there was no question of the eligibility certificate having being issued to her in the first place. Consequently, having obtained the eligibility certificate by concealing this fact, the appellant cannot plead any equities to seek relief from this Court.

12) During the hearing, it also transpires that the appellant had taken admission in Medical College in Nepal in 2009, whereas, she had applied for the eligibiligy certificate on 09th October, 2011 and had been issued the said certificate only on 19th February, 2014 i.e. virtually after completion of her MBBS course.

13) The appellant does not dispute her ineligibility under the applicable Regulations, however, she only seeks to invoke the equitable jurisdiction of this Court. Though this Court’s sympathy is with the appellant, yet it is not in a position to preserve the eligibility certificate, as it had been issued due to non-disclosure of all relevant documents and/or particulars by the appellant and as noted above, the appellant is indisputably disqualified to apply for admission to MBBS course in India or abroad.

14) In this regard, it will be relevant to refer to the judgments of the Supreme Court relied upon by the respondent No.1, wherein the Supreme Court after detailed deliberation has held that restoration of academic benefits obtained out of improper MBBS admission do not serve larger public administration of justice and if permitted to continue would infact cause manifest injustice. The judgments of the Supreme Court read as under:-

SCC 1, wherein it has been held as under:-

of his success. We direct the authorities to admit the appellant to the course within two weeks from today. We therefore, allow this appeal, set aside the order dated 10-8-1992 of the High Court and grant the reliefs claimed in the writ petition.

12. What remains to be considered is whether the selection of Respondent 6 should be quashed. We are afraid, unduly lenient view of the courts on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalised in courts of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictate that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardise the purity of selection process itself; engender cynical disrespect towards the judicial process and in the last analysis embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the court. Such instances reduce the jurisdiction and discretion of courts into private benevolence. This tendency should be stopped. The selection of Respondent 6 in the sports category was, on the material placed before us, thoroughly unjustified. He was not eligible in the sports category. He would not be entitled on the basis of his marks, to a seat in general merit category. Attribution of eligibility long after the selection process was over, in our opinion, is misuse of power. While we have sympathy for the predicament of Respondent 6, it should not lose sight of the fact that the situation is the result of his own making. We think in order to uphold the purity of academic processes, we should quash the selection and admission of Respondent 6. We do so, though, however, reluctantly.” (emphasis supplied) ……………… 73………… Based on the aforesaid observations, it was submitted that this Court in the above judgment consciously refused to regularise the admission of the students. Not only that, this Court declared that the students admitted to the course by manipulation would not be entitled to be awarded degrees, etc. by the affiliating body. Even if such a degree had already been awarded the same was to be treated as invalid for all purposes. …… 92……..Having given our thoughtful consideration to the above submission, we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of “the unfair”. It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself…….. …………….. 94.…….…… Law, has consequences. And the consequences of law brook no exception. The appellants in this case, irrespective of their age, were conscious of the regular process of admission. They breached the same by devious means. They must therefore, suffer the consequences of their actions. It is not the first time that admissions obtained by deceitful means would be cancelled. This Court has consistently annulled academic gains arising out of wrongful admissions. Acceptance of the prayer made by the appellants on the parameter suggested by them would result in overlooking the large number of judgments on the point. Adoption of a different course, for the appellants, would trivialise the declared legal position……”

68. Medical education is what middle-class parents across the length and breadth of the country aspire for their children (whether this will continue to be so in future is a moot question). There is intense competition for a limited number of undergraduate, postgraduate and super-speciality seats. This can furnish no justification for recourse to unfair means including adopting a false claim to belong to the reserved category. The fault-lines of our system, be it in education, health or law, are that its lethargy and indolence furnish incentives for the few who choose to break the rules to gain an unfair advantage. In such a situation, the court as a vital institution of democratic governance must be firm in sending out a principled message that there is no incentive other than for behaviour compliant with rules and deviance will meet severe reprimands of the law.”

15) At this stage, learned senior counsel for the appellant, on instructions, states that the appellant has recently once again appeared in the examination conducted by National Institute of Open Schooling for all the Class XII subjects. He states that her result is awaited.

16) This Court is of the view that, in the event, the appellant is successful in the said exam, that would constitute a new cause of action and for that the appellant would be at liberty to file a fresh application with the NMC for eligibility certificate.

17) In view of the above, present appeal along with the applications is dismissed.

ACTING CHIEF JUSTICE MANMEET PRITAM SINGH ARORA, J MAY 09, 2024