Aayushi Dineshbhai Prajapati v. Union of India

4. Learned counsel appearing on behalf of the petitioner has also placed reliance on various eligibility certificates issued by MCI/NMC. Even in cases where before joining a foreign University, the concerned candidate did not obtain prior permission from the MCI/NMC, the eligibility certificates have been issued. The specific reliance is placed on Annexure P-14 (colly). She further submitted that the eligibility certificate has been granted even to a candidate who obtained the medical qualification from the same University of Ukraine from which the petitioner did her medical graduation. According to her, if the petitioner has obtained 12th certificate as an additional qualification with Biology from NIOS, the same would not preclude her to obtain eligibility certificate. She submits that this issue has been conclusively decided by this court in the case of Anshul Aggarwal v. Union of India & Ors.[1] and Tanishq Gangwar & Ors. v. Union of India & Ors.[2] She further submitted that the application of the petitioner has also been rejected by MCI/NMC in terms of the e-mail communication dated 08.09.2022 (Annexure R- 2/28) on erroneous understanding of the facts.

5. Learned counsel appearing on behalf of respondent Nos.[2] and 3 opposed the prayer and they submitted that the instant petition is bereft of merit and the same deserves to be dismissed outrightly. Learned counsel appearing on behalf of respondent No. 2 specifically urged that in the absence of a challenge to communication dated 08.09.2022, whereby, the application of the petitioner seeking W.P.(C) 1813/2018 W.P.(C) 6773/2018 - 6 eligibility certificate has been rejected by MCI/NMC, no substantive relief can be granted to the petitioner. It is the specific case of respondent No. 2 that the petitioner in her 12th examination from Gujarat Secondary and Higher Secondary Examination Board in the year 2013 did not study Biology as one of the subjects. The petitioner only studied for a period of six months in NIOS and has been granted the certificate by NIOS with respect to Higher Secondary Examination. According to MCI/NMC, a candidate desirous of joining any undergraduate medical course in a Foreign Medical Institution on or after 15.03.2002 had to approach the MCI/NMC for issuance of an eligibility certificate so as to proceed to a Foreign Medical Institute. According to him, the Indian Medical Council Amendment Act was passed by the legislature on 03.09.2001 incorporating certain provisions in the Indian Medical Council Act, 1956 (IMC Act, 1956). Sections 13(4A) and 13(4B) have been inserted providing for the issuance of eligibility certificate before admission and the qualifying of screening test after obtaining the medical qualification by the candidates coming back with medical qualification from abroad. It is, thus, submitted that after the cut-off date i.e., 15.03.2002, any candidate prior to taking admission in any Foreign Medical Institution has to approach the MCI/NMC for the purpose of procuring an eligibility certificate and upon returning, after completing the said foreign medical course, had to qualify the screening test. The eligibility requirement for taking admission is stipulated in Eligibility Regulation, 2002 and the screening test is contemplated in STR, 2002. He, therefore, submitted that firstly, the petitioner did not obtain any eligibility certificate before taking admission in foreign country and secondly, the qualification obtained by the petitioner from NIOS does not fulfil the requirement of the - 7 applicable Regulation to be eligible to take admission in India in an MBBS Course. The qualification has not been obtained after undergoing a two-year course with practical and English being one of the subjects besides Physics, Chemistry and Biology.

6. He states that the decision relied by learned counsel for the petitioner in the cases of Anshul Aggarwal (supra) and Tanishq Gangwar (supra) is distinguishable. It is submitted that the issue whether any mode of passing Class 11th and Class 12th without undergoing the last two year of education with the subjects of Physics, Chemistry, Biology and English for admission in MBBS course is permissible or not stands conclusively adjudicated by the Hon’ble Supreme Court in the case of Kaloji Narayana Rao University of Health Sciences Vs. Srikeerti Reddi Pingle & Ors[3]. Reliance is also placed in the cases of Medical Council of India v. Indian Doctors from Russia Welfare associations and others[4], Yash Ahuja and Others v. Medical Council of India & Ors.5, Ishan Kaul & Ors. v. Medical Council of India & Anr.6, Rohinish Pathak v. Medical Council of India & Anr. W.P.(C) 5905/2017, Rohinish Pathak v. Medical Council of India & Ors. SLP(C) No. 18168/2019.

7. It is further submitted that the candidates who studied Biology after passing Class 12th examination cannot be permitted to take admission in MBBS Course and the study of the subjects of Physics, Chemistry and Biology with English is necessary with practical in Class 11th & Class 12th. Reliance is further placed on various decisions including the cases of Raghukul Tilak v. Union of India & Anr.7,

- 8 - Raghukul Tilak v. Union of India & Anr[8], Raghukul Tilak v. Union of India & Ors[9], Rubab v. Medical Council of India10, Mohammad Parvez Akhtar v.Union of India & Ors 11, Mohammad Parvez Akhtar v. Union of India & Ors12, Mohammad Parvez Akhtar v. Union of India & Ors. 13, Ms. Sneha Manimurugan v. MCI & Ors14, Medical Council of India & Ors v. Aiman Kamal & Ors.15, Mrs. Ouwshitha Surendran Vs. NMC & Ors16, Sohan Chauhan v. State of Madhya Pradesh & Ors.17 and Ku. Aprna Patle v. State of Madhya Pradesh & Ors. 18

8. It is thus submitted that since the petitioner has not undergone regular, continuous and co-terminus/simultaneous teaching and training alongwith practical in the subject of Biology alongwith other requisites subjects in the last two years of education (Class 11th & Class 12th ), the petitioner is ineligible for the grant of eligibility certificate to appear in the screening test.

9. The respondent No. 3 while filing a separate counter affidavit has also opposed the prayer made by the petitioner and has submitted that unless the petitioner submits eligibility certificate in terms of Regulation 4(2) of the STR, 2002, the said respondent cannot allow the petitioner to appear in FMGE screening test examination. It is the specific case of respondent No. 3 that in the absence of any certificate, no direction can be given to the said respondent to disobey applicable Regulations. 2007 SCC Online Del 871 SLP(C) No.3571/2007 W.P.(C) No. 2985/2008 W.P.(C) 10133/2009 LPA 471/2009 SLP (C) No. 32833/2009 2016 SCC Online Mad 17468 SLP (C) No. 35683/2016 W.P. No. 12782/2021 W.P. No. 3619/2022 W.P. No. 4244/2022 - 9 -

10. The learned counsel in rejoinder submission has tried to distinguish the judgments relied upon by respondent No.2 and it has been submitted that there is no denial to the fact that various candidates were issued eligibility certificate even after they completed the course from Foreign Institutions without the prior obtaining of eligibility certificate. It is also submitted that the petitioner is not requesting for outright issuance of permission to practice in India but the petitioner is ready to undergo the screening test so that her merit can be examined.

11. I have heard Ms. Archana Pathak Dave assisted by Mr. Kumar Prashant, learned counsel appearing on behalf of the petitioner, Mr. Shrey Sharawat, Special Panel Counsel assisted by Mr. Prajesh Vikram Srivastava, GP, on behalf of respondent No.1; Mr. T. Singhdev assisted by Mr. Abhijit Chakravarty, learned counsel for respondent No. 2 and Mr. Kirtiman Singh, learned CGSC assisted by Mr. Waize Ali Noor, learned counsel for respondent No.3 and perused the record.

12. It is seen that on 03.09.2001, the Indian Medical Council Amendment Act, was passed by the legislature incorporating certain provisions in the IMC Act, 1956 including Section 13(4A) and 13(4B) providing for issuance of eligibility certificate before admission and qualifying screening test after obtaining the medical qualification by the candidate coming back with medical qualification from abroad. The case of the petitioner would fall within the scope of sub-Section 4(B) of Section 13 of the IMC Act, 1956, which is being reproduced as under:- “13. Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule.— - 10 - 1............................. 2............................. 3............................. 4............................. (4A)........................ (4B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in sub-section (4A): Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before' the commencement of the Indian Medical Council (Amendment! Act. 2001 shall not be required to obtain eligibility certificate under this sub section but, if he is qualified for admission to any medical course for recognised medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register.”

13. Before the STR 2002 or Eligibility Regulations, 2002 were to be made applicable; the same were placed before the Hon’ble Supreme Court in the case of Indian Doctors from Russia Welfare Associations and Others (supra). Paragraph No.6(B) and 7 of the decision in Medical Council of India v. Indian Doctors from Russia Welfare associations and others (supra) are reproduced as under:-

14. The cut-off date and the power of the MCI has further been assented to by the Hon’ble Supreme Court in the matters of Sanjeev Gupta & Ors. v. Union of India & Anr.19 and Yash Ahuja and Others (supra). Paragraph No.62 of the decision of Yash Ahuja and Others (supra) is reproduced as under:-

15. The Regulation 2(f) of Eligibility Regulations, 2002 defines ‘qualifying examination’, which would mean the examination to be qualified to become eligible for admission to MBBS Course in India

- 12 as prescribed in the Graduate Medical Education Regulations, 1997 (in short ‘GME Regulations’, 1997). Regulation 3 prescribes the cutoff date as 15.03.2002. As per the Regulation 8, MCI/NMC is required to consider the application for eligibility certificate and to verify various aspects as mentioned therein. Regulation 2(f), 3, 8, 9 & 10 of the Eligibility Regulation, 2002 are being reproduced as under:-

- 13 provisional/permanent registration by the Medical Council of India or the State Medical Councils.

10. In case the candidate does not fulfill any of qualifying criteria the Council may reject his application for issue of Eligibility Certificate giving the reasons therefore”.

16. It is thus seen that it is only after verification, the MCI shall issue an eligibility certificate in the prescribed format to the candidate certifying that he/she is eligible to join a medical institution outside India to obtain a primary medical qualification. Regulation 8(ii) specifically stipulates that one of the conditions to be fulfilled by the candidate is to be eligible for admission to MBBS Course in India as prescribed in GME Regulations, 1997, which stipulates the minimum qualifying marks criteria in Physics, Chemistry, Biology and English including relaxed criteria in case the candidate belongs to a reserved category.

17. Clause 4(2) substituted in terms of notification published on 03.11.2010 in the Gazette of India of Graduate Medical Education Regulations, 1997, which is reproduced as under:- “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 alter a period o f 12 years study, the last two years of study comprising of Physics, Chemistry, Biology/Biotechnology and Mathematics or any other elective subjects with English at a level not less than core course o f English as prescribed by the National Council o f 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 o f the National Committee, the candidates will have to undergo a period of one year pre-professional training before admission to the Medical colleges;” - 14 -

18. It is thus seen that the candidate must have passed qualifying examination of Higher Secondary or the Indian School Certificate Examination which is equivalent to 10+2 (Higher Secondary Examination) after a period of 12 years of study. The last two years of study must comprise of Physics, Chemistry, Biology/Biotechnology and Mathematics or any other elective subject with English at a level not less than core course 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.

19. In the instant case, the certificate relied upon by the petitioner to prove her eligibility clearly lacks the basic requirement of completing 12 years of study with the last two years comprising of Physics, Chemistry, Biology/Bio-technology and Mathematics. The petitioner first obtained Higher Secondary qualification with the combination of Physics, Chemistry and Mathematics and realizing that the same qualification may not qualify her to undergo medical education, she appears to have undergone a 6-7 months course from NIOS. The same apparently does not qualify her to be admitted in medical course even in India.

20. A mark sheet issued by NIOS, which is the basis of the petitioner’s eligibility, is reproduced as under:- - 15 -

21. A perusal of the Score Card of the petitioner (Annexure P-4) would clearly reveal that the same is the certificate of passing Senior Secondary School Examination. The admission appears to have been taken in April, 2014 and certificate appears to have been given on 14.11.2014. The requirement under GME Regulations 1997 is that out of the 12-years of study, last two years, means Class 11th & 12th, must comprise of Biology and these two years, have to be two Academic Sessions and cannot be clubbed in one year of study. The petitioner’s Score Card only indicates that she appeared in Physics, Chemistry and Biology and has passed the said examination without any further details to appreciate whether the same comprised of two years of study with required subjects. - 16 -

22. So far as the decision relied upon by learned counsel for the petitioner in the case of Anshul Aggarwal (supra) is concerned, the same would not be applicable in the instant case. Firstly, the issue in the case of Anshul Aggarwal (supra) was with respect to challenge to the notification dated 22.01.2018, whereby, amendments were made in GME Regulations, 1997, declaring certain categories of candidates to be ineligible and thereby disqualifying them from appearing in the National Eligibility cum Entrance Test (NEET) for admission to the MBBS Course. Paragraph No.61 of the said decision is being reproduced as under:-

23. A perusal of the discussion made in paragraph No.61 of the said decision would clearly indicate that the requirement of two year study with relevant subjects has not been dispensed with. The case of the petitioner is not that she has undergone two year study with relevant subjects as mandated under GME Regulations, 1997. - 17 -

24. Similarly, the decision relied upon by the learned counsel for the petitioner in the case of Tanishq Gangwar & Ors. (supra) would also not be of any help to the petitioner. The said decision is based on the case of Anshul Aggarwal (supra), where it has been specifically held that last two years (Class 11th & 12th ) subjects, of Physics, Chemistry, Biology and Mathematics with English will not be diluted or interfered with.

25. However, the issue in hand has been conclusively decided by the Hon’ble Supreme Court in the case of Kaloji Narayana Rao University of Health Sciences (supra). Paragraph Nos. 14, 15, 21 & 22 of the said decisions are reproduced as under:-

26. The Division Bench of this court in the case of Ishan Kaul (supra) has also taken a similar view in paragraph No.20 of the said decision. The same is reproduced as under:-

27. The same principles have been followed in the case of Rohinish Pathak (supra). The decision of Rohinish Pathak (supra) has also been affirmed by the Hon’ble Supreme Court while dismissing the Special Leave Petition.

28. The insistence of MCI/NMC on the requirement of subjects in the last two years of studies being essential is based on the footing that such study necessarily assimilates periodic practical and evaluation of the students and his/her aptitude in such activity which is vital for the study of Medicine. This has been noted by this court in the case of Raghukul Tilak (supra). Paragraph Nos.18, 21 and 22 of the said decision are reproduced as under:-

29. Notably the decision of Raghukul Tilak (supra) has been affirmed in LPA No.2033/2006 (supra) and the decision of the Division Bench in LPA was also not interfered with by the Hon’ble Supreme Court in SLP (C) No.13571/2007. A similar view has been taken in the case of Rubab (supra) and in the case of Mohammad Parvez Akhtar (supra).

30. A similar view is taken by the Division Bench of the Hon’ble High Court of Madhya Pradesh in the cases of Sohan Chauhan (supra) and Ku. Aprna Patle (supra).

31. In the instant case, neither the Regulations are under challenge nor the communication dated 08.09.2022 (Annexure R-2/28) issued by National Medical Commission is assailed. Nevertheless, this court considered the submissions made by learned counsel for the petitioner on merit so as to examine whether the petitioner fulfils the criteria for the issuance of the eligibility certificate in accordance with the applicable Regulations of 2002. The Regulations, as they exist today, have been framed by MCI/NMC, which is the expert body and can lay down the criteria for grant of eligibility certificate to a person to practice Medicine. Practising in the medical field involves taking care of a patient and his or her management, the act of such a nature requires specialised training and knowledge. The nature of services to be rendered by medical practitioner necessarily involves the larger public interest. A person who is not duly qualified, as prescribed by MCI/NMC, cannot be permitted to involve himself in public health care and play with the lives of the human beings. It is not for this court to decide as to whether the knowledge acquired by the petitioner while studying in Ukraine is sufficient for granting her eligibility certificate - 21 to appear in the eligibility test or not. Since the petitioner does not fulfil the criteria for her entitlement to obtain eligibility certificate, this court is not inclined to issue any directions in that respect.

32. Accordingly, the petition stands dismissed alongwith pending application.

JUDGE FEBRUARY 02, 2023 p’ma