Nishkarsh Singh Patel v. National Medical Commission & Ors.

15. The Respondents have further placed reliance upon a judgment dated 21.02.2022 delivered in by a Division Bench of the High Court of Madhya Pradesh (Indore Bench) in W.P.(C.) No. 3619/2022 titled Sohan Chauhan Vs. State of Madhya Pradesh & Ors., and common judgment dated 09.03.2022 delivered by a Division Bench of High Court of Madhya Pradesh at Jabalpur in W.P.(C.) No. 4244/2022 titled Ku. Aprna Patle Vs. State of Madhya Pradesh & Ors., and W.P.(C.) No. 3887/2022 titled Sachin Jatav Vs. Chief Secretary.

16. Heard Learned Counsel for the Parties at length and perused the record. It is an undisputed fact that the Petitioner before this Court has cleared 12th Standard Examination from CBSE with Physics, Chemistry and Mathematics as core subjects in May 2010 and has thereafter, in the year 2021 qualified Biology from U. P. Board only in one isolated subject of Biology.

17. The Petitioner did participate in the NEET (UG), and his result was declared on 01.11.2021. He was allocated a seat in Kasturba Medical College, Manipal University, Mangalore on 02.02.2022 and, on 05.02.2022, he was informed by Manipal Academy of Higher Education that he has only cleared Biology as a separate subject in 2021 and he has passed Physics, Chemistry and Mathematics without Biology in 2010. Therefore, the Manipal University sought clarification whether the mandatory subjects of Digitaaly Physics & Chemistry passed from CBSE Board and the third mandatory subject of Biology passed from UP Board make the Petitioner eligible for consideration for admission into the MBBS programme.

18. The Petitioner enquired about the matter with the NMC and he was informed by the NMC vide e-mail dated 07.02.2022 that he is not entitled for admission into the MBBS programme keeping in view the Regulations,

1997.

19. The erstwhile Medical Council of India in exercise of powers conferred upon it by Section 33 of the Indian Medical Council Act, 1956 had framed Regulations in respect of Graduate Medical Examination being Regulations, 1997. It is an undisputed fact that the Regulations have been held to be binding and mandatory by the Hon‟ble Supreme Court and Regulation 4 of the Regulations, 1997, inter alia, provides the minimum eligibility criteria for admission to the First Bachelor of Medicine and Bachelor of Surgery (MBBS Course).

20. The Regulations, 1997 of the Medical Council of India, as already stated earlier, have been framed under Section 33 of the Act with the prior approval of Central Government and for achieving a higher standard of medical education which is also dependent on the selection of such eligible students as provided therein and is binding/ mandatory in respect of admission to be made to the MBBS Course.

21. Regulation 4 of the Regulations of 1997 provides for minimum eligibility criteria in respect of admission to MBBS Course and the said Regulations have been amended vide Notifications dated 22.01.2018, 04.02.2019 and 13.05.2019, which have also been published in the Official Gazette on 23.01.2018, 05.02.2019 and 14.05.2019 respectively. Digitaaly

22. Regulation 4(2)(a) of the amended Regulations, 1997 provides that the candidate should have undergone 10 + 2 examination i.e. 12 years of study where the last two years of study comprises of Physics, Chemistry, Biology / Biotechnology and Mathematics or any other elective subject with English. The relevant portion of the Regulations, 1997 is reproduced as under:- “……………..4. Admission to the Medical Course-Eligibility Criteria: No candidate shall be allowed to be admitted to the Medical Curriculum proper of first Bachelor of Medicine and Bachelor of Surgery course until he/she has qualified the National Eligibility Entrance Test, and he/she shall not be allowed to appear for the National Eligibility-Cum Entrance Test until: (1) He/she shall complete the age of 17 years on or before 31st December of the year of admission to the MBBS. (1A) He/She has obtained a minimum of marks in National Eligibility-Cum Entrance Test as prescribed in Clause 5 of Chapter II. (IB) Provided further that in order to be eligible, the upper age limit for candidates appearing for National Eligibility Entrance Test and seeking admission to MBBS programme shall be 25 years as on the date of examination with a relaxation of 5 years for candidates belonging to SC/ST/OBC category and persons entitled for reservation under the Rights of Persons with Disabilities Act, 4(2) He/She has passed qualifying examination as under:- (a) The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of Physics, Chemistry, Biology/Biotechnology and Mathematics or any other elective subjects with English Digitaaly at a level not less than core course of English as prescribed by the National Council of Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education; Note: Where the course content is not as prescribed for 10+2 education structure of the National Committee, the candidates will have to undergo a period of one year preprofessional training before admission to the Medical colleges: Or (b) The intermediate examination in science of an Indian University/Board or other recognised examining body with Physics, Chemistry and Biology/Bio-technology which shall include a practical test in these subjects and also English as a compulsory subject;. Or

(c) The pre-professional/pre-medical examination with

Physics, Chemistry and Biology/Bio-technology, after passing either the higher secondary school examination, or the pre-university or an equivalent Examination. The pre-professional/pre-medical examination shall include a practical test in Physics, Chemistry and Biology/Biotechnology and also English as a compulsory subject; Or

(d) The first year of the three years degree course of a recognized university, with Physics, chemistry and Biology/Bio-technology including a practical test in three subjects provided the examination is a "University Examination" and candidate has passed 10+2 with English at a level not less than a core course; Or (e) B.Sc. examination of an Indian University, provided that he/she has passed the. B.Sc. examination with not less than two of the following subjects Physics, Chemistry, Biology (Botany, Zoology)/Biotechnology and further that he/she has passed the earlier qualifying Digitaaly examination with the following subjects - Physics, Chemistry, Biology and English. Or f) Any other examination which, in scope and standard is found to be equivalent to the intermediate science examination of an Indian University/Board, taking Physics, Chemistry and Biology/Biotechnology including practical test in each of these subjects and English. Note: The pre-medical course may be conducted either at Medical College, or a science College. After the 10+2 course is introduced, the integrated courses should be abolished……………….”

23. Regulation 4(3) of the amended Regulations, 1997 provides that an aspiring candidate for admission to MBBS course is obliged to not only qualify his Senior Secondary Examination (10+2) with Physics, Chemistry, Biology / Biotechnology and English but should also obtain a minimum of 50% marks in Physics, Chemistry and Biology / Biotechnology subjects taken together and having passed English as one of the compulsory subjects. The relevant portion of the Regulations, 1997 is reproduced as under:- “4(3) To be eligible for admission to MBBS course, a candidate must have passed in the subjects of Physics, Chemistry, Biology (or Botany and /Zoology)/Biotechnology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology (or Botany and Zoology)/Biotechnology at the qualifying examination as mentioned in clause (2) o f Regulation 4 and in addition must have come in the merit list of ―National Eligibility-cum- Entrance Test‖ for admission to MBBS course. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or other Backward Classes the minimum marks obtained in Physics, Chemistry and Biology (or Botany and Zoology)/Biotechnology taken together in qualifying examination shall be 40% instead of 50%. In respect of candidates with specified Digitaaly disability under the Rights of Persons with Disabilities Act, 2016 the minimum marks in qualifying examination in Physics, Chemistry and Biology/Bio-technology taken together in qualifying examination shall be 45% instead of 50%. Provided that a candidate who has appeared in the qualifying examination the result o f which has not been declared, he/she may be provisionally permitted to take up the National Eligibility-cum-Entrance Test and in case of selection for admission to the MBBS course, he/she shall not be admitted to that course until he/she fulfils the eligibility criteria under Regulation 4. 5% of the annual sanctioned intake capacity in Government or Government aided higher educational institutions shall be filled up by candidates with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act, 2016, based on the merit list of ‗National Eligibility-cum- Entrance Test‘. For this purpose the ―Specified Disability‖ contained in the Schedule to the Rights of Persons with Disabilities Act, 2016 is annexed in Appendix ‗G‘ and the eligibility of candidates to pursue a course in medicine with specified disability shall be in accordance with Appendix ‗H‘. If the seats reserved for the persons with disabilities in a particular category remain unfilled on account of unavailability o f candidates, the seats shall be included in the annual sanctioned seats for the respective Category”

24. In light of the aforesaid Regulations governing the field, a candidate is compulsorily required to undergo regular, co-terminus/ simultaneous teaching and training in the subject of Physics, Chemistry and Biology in his/her Higher Secondary Education (10+2), and the last 2 years of Study (Class 11th and 12th ) must comprise of the above mentioned subjects along with practicals.

25. The Regulations, 1997 also provide that the candidate aspiring to join MBBS Course is certainly required to pass Senior Secondary Examination Digitaaly with Physics, Chemistry, Biology and English. It is also mandatory for a candidate to obtain 50% in the subjects of Physics, Chemistry and Biology and pass English as one of the compulsory subjects.

26. The Regulations, 1997 also provide that the candidate should have undergone regular teaching and training/ practical in the subjects of Physics, Chemistry and Biology through the period of 2 years i.e. Class 11th and 12th to be eligible to participate in the selection process for admission for MBBS Course.

27. In respect of similar controversy relating to eligibility for admission to MBBS Course, the Hon‟ble Supreme Court in the case of Kaloji Narayana Rao University of Health Sciences (Supra) in Paragraphs 11, 12, 14, 15, 19, 20, 21, 22 & 23 has held as under:

28. The Hon‟ble Supreme Court in the aforesaid case has held that Regulation 4(2) of the Regulations, 1997 provides that a candidate should Digitaaly have passed 10+2 levels with Physics, Chemistry, Biology/Bio-technology and the candidate should have gone through practical tests in the science subjects and the candidate should have studied English entitling him/her to be considered for admission in MBBS Course.

29. The Hon‟ble Supreme Court has held that the statutory regulations provide for equivalence in standard and scope in an Examination where the candidate is tested in Physics, Chemistry and Biology/ Bio-technology including practicals in the subject along with English. Therefore, in light of the aforesaid judgment, as the Petitioner has not studied Physics, Chemistry, Biology and English together at 10+2 level, his candidature was rightly turned down by the NMC.

30. A Division Bench of High Court of Madhya Pradesh (Indore Bench) in the case of Sohan Chauhan (Supra) has taken a similar view relying upon the judgment delivered by the Apex Court in the case of Kaloji Narayana Rao University of Health Sciences (Supra). The High Court of Madhya Pradesh (Jabalpur Bench) in another case of Ku. Aprna Patle (Supra) has taken a similar view in the matter.

31. A Division Bench of this Court in Judgment dated 03.07.2023 passed in LPA 422/2023 titled Aayushi Dineshbhai Prajapati Vs. Union of India, (2023:DHC:4404-DB), while dealing with grant of eligibility certificate to a candidate to appear in the Foreign Medical Graduate Examination (FMGE), has dealt with a similar controversy. It is pertinent to note that in case a student obtains a MBBS degree from a foreign university, he is required to pass foreign medical graduate examination and for appearing in the FMGE, he/she has to obtain eligibility certificate from NMC. The grant of eligibility certificate is subject to fulfillment of requirements provided under the Digitaaly Medical Council of India Regulations i.e. Graduate Medical Education Regulations, 1997 (Regulations, 1997) as amended from time to time and on account of Regulation 4(2), the Petitioner/Appellant before this Court in the aforesaid case was denied eligibility certificate by NMC.

32. It is in those circumstances that the Division Bench of this Court has held that it is mandatory for a student to pass Physics, Chemistry, Biology/ Bio-technology and should have undergone practicals in the Science subjects at 10+2 level. The Division Bench of this Court in Paragraph Nos. 14 to 20 has held as under:

33. In the considered opinion of this Court, in light of the aforesaid judgments as the Petitioner has not passed the subject in Biology in Class 11th and 12th Examinations as regular/ continuous/ co-terminus/ simultaneously with other prescribed subject i.e. Physics, Chemistry and Digitaaly English, he does not fulfill the conditions as required for admission to MBBS Course under the Regulations, 1997.

34. The Petitioner before this Court except for stating that the aforesaid regulations are in violation of Article 21 of the Constitution of India has not raised any other ground enabling this Court to declare the Regulations, 1997 as ultra vires as prayed for.

35. The Petitioner except for making a bald statement that the Regulations, 1997 are in contravention of new Education Policy, 2020 has not been able to demonstrate before this Court as to how the Regulations, 1997 are violative of the New Education Policy, on the contrary new Education Policy, 2020 at Clause No. 18.[3] categorically provides that the Policy would exclude medical and legal education. Therefore, the ground raised by the Petitioner that the Regulations, 1997 are violative of the new Education Policy, 2020 also does not help the Petitioner in any manner.

36. Accordingly, in the considered opinion of this Court, the Petitioner has not been able to raise any ground for declaring the Regulations, 1997 as ultra vires. Hence the question of interference by this Court in the facts and circumstances of the case does not arise.

37. With the aforesaid observations, the present Writ Petition stands dismissed. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

JUDGE AUGUST 21, 2023 Digitaaly