1

AFR

Court No. - 39

Case :- WRIT - C No. - 46218 of 2013

Petitioner :- Pratik Singh

Respondent :- Union Of India Thru Secy. And Another

Counsel for Petitioner :- Kamlesh Shukla ,R.P. Upadhayay,

Shagun K. Saran

Counsel for Respondent :- A.S.G.I., Akhilesh Kumar Misra,

S.C., Santosh Kumar Shukla

Hon'ble Dilip Gupta,J.

Hon'ble Prabhat Chandra Tripathi,J.

(Delivered by Hon'ble Dilip Gupta, J.)

This petition has been filed for a direction upon the respondents

to declare the result of the Screening Test in which the petitioner had

appeared in India after obtaining the MBBS Degree from a Medical

Institution outside India, without requiring the petitioner to submit the

'Eligibility Certificate'. It was necessary for the petitioner to qualify

the Screening Test for enrollment in the Medical Register maintained

by the State Medical Council. The petitioner, however, also applied

for issuance of the Eligibility Certificate but the application was

rejected by order dated 7 October 2012. The petitioner has,

accordingly, sought the quashing of this order dated 7 October 2012

also.

The application filed by the petitioner for grant of Eligibility

Certificate has been rejected for the reason that the petitioner had not

studied Biology subject in both Class XI and Class XII before

appearing at the Intermediate Examination in 2003 which was a

requirement set out in the 'Regulations on Graduate Medical

NeutralmCitationmNo.m-m2017:AHC:56809-DB

2

Education, 1997'

1

. The order dated 7 October 2012 rejecting the claim

of the petitioner for grant of the Eligibility Certificate is reproduced

below:-

“After scrutiny of the application it is observed that you

have passed your 11

th

class from RET Inter College,

Dayal Bagh with Hindi, English, Physics, Chemistry and

Mathematics and 12

th

Class Qualification from Uttar

Pradesh Board of High & Intermediate Examination in

the year of 2003 with English, Chemistry and Physics.

Since you have not studied the subject of Biology in

both examinations, you do not fulfill the requirements for

admission to the Medical Course as per GRADUATE

MEDICAL EDUCATION REGULATIONS, 1997.

No candidate shall be allowed to be admitted to the

Medical Curriculum of first Bachelor of Medicine and

Bachelor of Surgery (MBBS) Course until:

1. He/she shall complete the age of 17 years on or before

31

st

December of the year of admission to the MBBS

Course.

2. He/she has passed qualifying examination as under:-

1. 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 and Mathematics or any other elective

subjects with English 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.”

The petitioner had appeared at the Intermediate Examination

conducted by the Board of High School and Intermediate Education,

Uttar Pradesh

2

in 2003 with General Hindi, English, Mathematics,

1the 1997 Regulations

2the Board

3

Physics and Chemistry but the petitioner also appeared at the 2004

Intermediate Examination conducted by the Board in Biology subject

in accordance with Regulation 17(2) contained in Chapter XII of the

Regulations framed under the provisions of the U.P. Intermediate

Education Act, 1921. Thereafter, the petitioner took admission in the

first year MBBS Course in B.P. Koirala Institute of Health Sciences,

Dharan Nepal

3

in the year 2006. This course, which is of 5 years

duration, was completed by the petitioner in 2011 and a provisional

degree was granted to the petitioner in 2012 after he completed the

Residential Rotatory Internship.

The petitioner, then applied for enrollment in the Medical

Register maintained by the State Medical Council but for that purpose

it was necessary for the petitioner to qualify the Screening Test

conducted by the Prescribed Authority under the provisions of the

'Screening Test Regulations, 2002'

4

. The petitioner appeared at the

Screening Test. The result has not been declared because the

petitioner has not submitted the Eligibility Certificate that is issued

under the provisions of the 'Eligibility Requirement for taking

admission in an undergraduate medical course in a Foreign Medical

Institution Regulations, 2002'

5

. The petitioner had submitted an

application before the Medical Council of India on 19 September

2011 for grant of the Eligibility Certificate. According to the

petitioner no decision was taken. This petition was filed for a

3the Institute

4Screening Test Regulation

5the Eligibility Requirement Regulation

4

direction upon the respondents to declare the result of the Screening

Test without requiring the petitioner to submit the Eligibility

Certificate. During the course of hearing of the petitioner, the

respondents stated that the application for grant of the Eligibility

Certificate had been rejected by order dated 7 October 2012. The

petitioner moved an amendment application for adding a prayer for

quashing the order dated 7 October 2012. The amendment application

was allowed.

The order dated 7 October 2012 has placed reliance upon

Regulation 4 (a) of the 1997 Regulations. This Regulation provides

that a candidate shall be allowed to be admitted in the first year

MBBS Course if he has passed the Higher Secondary Examination or

the Indian School Certificate Examination after a period of 12 years

study, of which the last two years shall comprise of Physics,

Chemistry, Biology and Mathematics with English.

It is, therefore, necessary to reproduce Regulation 4 of the 1997

Regulations and it is as follows:-

“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 (MBBS) Course until:

(1)He/she shall complete the age of 17 years on or before

31

st

December of the year of admission to the MBBS Course.

(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 and Mathematics or any

5

other elective subjects with English at a level not less

than the core course for English as prescribed by the

National Council for 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

pre-professional training before admission to the

Medical colleges.

or

(b) The Intermediate examination in science of an

Indian University/Board or other recognized examining

body with Physics, Chemistry and Biology which shall

include a practical test in these subjects and also

English as a compulsory subject.

or

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

with Physics, Chemistry and Biology, 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 & Biology 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 including a practical test in these 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) and

further that he/she has passed the earlier qualifying

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 including

practical test in each of these subjects and English.

6

Note:

The pre-medical course may be conducted either at

Medical College or a Science College.

Marks obtained in mathematics are not to be considered

for admission to MBBS course.

After the 10+2 course is introduced, the integrated

courses should be abolished.”

The issue, therefore, that arises for consideration in this petition

is whether the Medical Council of India could have refused the grant

of Eligibility Certificate to the petitioner for the reason that he had not

studied Biology subject in Class XI and Class XII before appearing at

the Intermediate Examination in Science. This, as noted above is the

sole reason given by the Medical Council of India in the impugned

order dated 7 October 2012 for rejecting the claim of the petitioner for

grant of the Eligibility Certificate.

The contention of Sri G.K. Singh, learned Senior Counsel

appearing for the petitioner is that the Authority completely failed to

appreciate that the petitioner had passed the Intermediate Examination

in Science and not the Higher Secondary Examination or the Indian

School Certificate Examination and, therefore, the admission

eligibility criteria was required to be examined under Regulation 4

(2) (b) of the 1997 Regulations in which there is no requirement that

the last two years of study in Class XI and Class XII should comprise

Physics, Chemistry, Biology and Mathematics subjects. Learned

Senior counsel submitted that the Authority, while examining the case

of the petitioner for grant of the Eligibility Certificate, have wrongly

7

placed reliance upon Regulation 4(2)(a) of the 1997 Regulations to

arrive at a conclusion that the petitioner was not eligible for

admission to MBBS course in the Institute at Nepal since he had not

studied Biology in Class XI and Class XII before appearing at the

Intermediate Examination in Science. The contention is that though

the petitioner had appeared at the Intermediate Examination in 2003

with Physics, Chemistry and Mathematics but the petitioner had also

appeared at the 2004 Intermediate Examination in Biology subject

and qualified it with practical test in accordance with the Regulations

framed by the Intermediate Board and was, therefore, clearly eligible

to be admitted to the MBBS Course in the Institute at Nepal. In such

circumstances, learned Senior Counsel contended that the requirement

for admission to the MBBS Course set out in Regulation 4 of the

1997 Regulations stood satisfied. It was, therefore, incumbent upon

the Authority to issue the Eligibility Certificate and on issuance of the

Eligibility Certificate, the result of the Screening Test can be declared

so that the petitioner becomes entitled to be enrolled on the Medical

Register maintained by the State Medical Council or have his name

entered in the Indian Medical Register if he qualifies the Screening

Test.

Sri Avanish Mishra, learned counsel appearing for the Medical

Council of India, which has been impleaded as respondent no.3 in the

writ petition, has, however, submitted that the Intermediate

Examination is of two years and unless a candidate has studied Class

8

XI and Class XII with Physics, Chemistry and Biology as subjects,

the candidate would not be considered eligible for taking admission to

the MBBS Course. His contention is that the petitioner had studied

Biology subject for only one year and, therefore, in view of the clear

stipulation contained in Clause 4 of the 1997 Regulations, the

petitioner was not entitled to be admitted in the MBBS Course and

consequently not entitled for the grant of Eligibility Certificate.

Learned counsel, therefore, submitted that the Authority committed

no error in rejecting the claim of the petitioner for issuance of the

Eligibility Certificate. It is also the contention of learned counsel that

the petitioner should have obtained the Eligibility Certificate prior to

asking admission in the MBBS Course in the Nepal Institute in view

of the provisions contained in Section 13(4)(B) of the Indian Medical

Council Act, 1956

6

which provides that a person who is a citizen of

India shall not, after such date, as may be prescribed 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 submission of the Eligibility Certificate

issued to him by the Council and in case such a person obtains the

qualification without such Eligibility Certificate, he shall not be

eligible to appear in the Screening Test.

We have considered the submissions advanced by learned

counsel for the parties.

6the Act

9

The relevant facts to determine whether the petitioner is entitled

to the grant of the Eligibility Certificate can be summarised as

follows:-

(i) The petitioner passed the Intermediate Examination in 2003

with Physics, Chemistry, Mathematics, General Hindi and

English;

(ii) He appeared at the 2004 Intermediate Examination in

Biology subject with practical in accordance with the

Regulations framed by the Intermediate Board and was

declared passed;

(iii)The petitioner took admission in the MBBS Course in

2006 in the Institute at Nepal which is a Medical Institute

mentioned in Schedule II of Section 12 of Act;

(iv)The petitioner completed the five years MBBS Course in

2011 and a provisional degree was awarded in 2012 after

completing the Internship.

(v)Thereafter, the petitioner appeared at the Screening Test

so that he could be enrolled on a Medical Register maintained

by the State Medical Council or have his name entered in the

Indian Medical Council Register under Section 13 (4A) of the

Act;

(vi)For that purpose, the petitioner also moved an application

10

for grant of Eligibility Certificate;

(vii)The Eligibility Criteria is issued under the provisions of

the Eligibility Requirement Regulations. Regulation 8 provides

that for considering the application for grant of Eligibility

Certificate, it has to be verified whether the candidate fulfills

the eligibility criteria for admission to MBBS Course as

prescribed by the 1997 Regulations namely obtaining the

minimum qualifying marks in Physics, Chemistry, Biology and

English. Regulation 10 further provides that in case the

candidate does not fulfill any of the qualifying criteria, the

Council may reject the application for issuing the Eligibility

Certificate.

The Council has rejected the application filed by the petitioner

for issuance of the Eligibility Certificate for the reason that the

petitioner did not satisfy the requirement contained in Regulation 4(2)

(a), namely that the petitioner did not study Biology subject in the last

two years of study before appearing at the Intermediate Examination.

To appreciate the contentions advanced by the learned counsel

for the parties, it would be appropriate to first reproduce the relevant

provisions of the Act and the concerned Regulations. Sub-sections 4A

and 4B of Section 13 of the Act, which deal with Screening Test and

Eligibility Certificate, are reproduced below:-

“Section (4A):- A person who is a citizen of India and

11

obtains medical qualification granted by any medical

institution in any country outside India recognised for

enrolment as medical practitioner in that country after

such date as may be specified by the Central Government

under sub-section (3), shall not be entitled to be enrolled

on any Medical Register maintained by a State Medical

Council or to have his name entered in the Indian

Medical Register unless he qualifies the screening test in

India prescribed for such purpose and such foreign

medical qualification after such person qualifies the said

screening test shall be deemed to be the recognised

medical qualification for the purposes of this Act for that

person.

Section (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.”

The result of the Screening Test, in which the petitioner had

appeared, has been withheld for the reason that the petitioner does not

have an Eligibility Certificate. Regulations 3, 4 and 11 of the

Screening Test Regulations are relevant and are reproduced:

“3. An Indian citizen possessing a primary medical

qualification awarded by any medical institution

outside India who is desirous of getting provisional or

12

permanent registration with the Medical Council of

India or any State Medical Council on or after

15.03.2002 shall have to qualify a screening test

conducted by the prescribed authority for that purpose

as per the provisions of section 13 of the Act:

Provided that a person seeking permanent registration

shall not have to qualify the screening test if he/she had

already qualified the same before getting his/her

provisional registration.

4. Eligibility Criteria: No person shall be allowed

to appear in the screening test unless:

1. he/she is a citizen of India and possesses any primary

medical qualification, either whose name and the

institution awarding it are included in the World

Directory of Medical Schools, published by the World

Health Organisation; or which is confirmed by the

Indian Embassy concerned to be a recognised

qualification for enrolment as medical practitioner in

the country in which the institution awarding the said

qualification is situated.

2. he/she had obtained 'Eligibility Certificate' from the

Medical Council of India as per the 'Eligibility

Requirement for taking admission in an undergraduate

medical course in a Foreign Medical Institution

Regulations, 2002. This requirement shall not be

necessary in respect of Indian citizens who have

acquired the medical qualifications from foreign

medical institutions or have obtained admission in

foreign medical institution before 15

th

March, 2002.

11. The Prescribed Authority shall intimate the result

of the Screening Test to the candidates as well as to the

Secretary, Medical Council of India and the State

Medical Councils. The unsuccessful candidates shall

also be appropriately informed. The candidates who

qualify the Screening Test may apply to the Secretary,

Medical Council of India, New Delhi or to any State

Medical Council for provisional registration/permanent

registration alongwith the requisite registration fee in

favour of Secretary, Medical Council of India or the

State Medical Council. The Medical Council of India

or the State Medical Councils shall issue provisional

registration to such successful candidates, who are yet

to undergo one year internship in an approved

institution and issue permanent registration to such

13

eligible candidates who have already undergone one

year internship, as the case may be.”

At this stage it will also be useful to reproduce Regulations 3,

4, 8, 9, 10 and 11 of the Eligibility Requirement Regulations dealing

with the Eligibility Certificate and they are:-

“3. An Indian citizen, who has passed the qualifying

examination either from India or an equivalent

examination from abroad and is desirous of joining an

undergraduate medical course in any foreign medical

institution on or after 15th March, 2002 shall approach

the Council for issue of an Eligibility Certificate for that

purpose.

4. The request for issue of Eligibility Certificate shall be

made by the candidate in the proforma prescribed by the

Council and shall be accompanied by the original

certificate/mark-sheet (alongwith Photostat copy) of the

qualifying examination. The original certificate shall be

returned to the candidate after verifying the same with

the photostat copy which shall be retained by the

Council. Request shall also be accompanied by a

Demand Draft for the specified sum in favour of

Secretary, Medical Council of India, New Delhi. The fee

shall be fixed by the Council.

5.....

6.....

7.....

8. The Council shall consider the application for

Eligibility Certificate and verify the following details as

per the Regulations of the Council:-

1. Whether the candidate fulfills the age criterion

prescribed by the Council?

2. Whether the candidate fulfills the eligibility

criteria for admission to MBBS course in India as

prescribed in the Graduate Medical Education

Regulations, 1997, i.e., minimum qualifying marks

criteria in Physics, Chemistry, Biology and

English, including relaxed criteria in case the

candidate belongs to a reserved category?

3. If the candidate belongs to SC/ST/OBC, whether

he/she has produced a caste certificate from a

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Competent Authority.

9. After verification, as required, if the candidate is found

to fulfill the eligibility criteria, the Council 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. The certificate shall indicate that

on return after obtaining the foreign primary medical

qualification, the candidate shall have to undergo a

screening test, subject to fulfillment of the conditions

prescribed in the Screening Test Regulations, 2002, and

that passing this test shall only entitle him to

provisional/permanent registration by the Medical

Council of India or the State Medical Councils.

10. In case the candidate does not fulfill any of the

qualifying criteria the Council may reject his application

for issue of Eligibility Certificate giving the reasons

therefore.

11. The issue of a eligibility certificate to a candidate

shall not entitle him to any right, whatsoever, other than

to take admission in an undergraduate medical course in

a foreign Medical Institute.”

Thus, a person who obtains a medical qualification granted by

any Medical Institution in a foreign country can be enrolled on a

Medical Register maintained by the State Medical Council only after

he qualifies the Screening Test. The Screening Test Regulations

provide that a person would be eligible to appear in the Screening Test

only after he obtains the Eligibility Certificate from the Medical

Council of India in accordance with the requirements contained in the

Eligibility Requirement Regulations. The Eligibility Requirement

Regulations provides that Eligibility Certificate would be issued after

verifying that the candidate fulfills the eligibility criteria for

admission to MBBS Course as prescribed in the 1997 Regulations.

The 1997 Regulations provides for six alternative qualifying

15

examinations. Regulation 4(2)(a) deals with the Higher Secondary

Examination or the Indian School Certificate Examination, while

Regulation 4(2)(d) deals with Intermediate Examination in Science.

The petitioner has been denied the Eligibility Certificate for the

reason that the petitioner does not satisfy the requirement contained in

Regulation 4 (2) (a) of the 1997 Regulations for taking admission in

the MBBS Course. Regulation 4 deals with admission to the Medical

Course. Clause (1) provides that no candidate shall be allowed to be

admitted in the first year MBBS Course until the candidate has

completed the age of 17 years on or before 31 December of the year

of admission in the MBBS Course. Clause (2) provides that the

candidate should have passed the qualifying examination enumerated

in clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or

clause (f). Clause (a) refers to Higher Secondary Examination or the

Indian School Certificate Examination. It provides that the candidate

should have passed either of the aforesaid examinations after a period

of 12 years study, but the last two years of study should comprise

Physics, Chemistry, Biology and Mathematics subjects or any other

elective subjects with English. Clause (b) refers to Intermediate

Examination in Science. It provides that the candidate should have

passed the Intermediate Examination in Science with Physics,

Chemistry and Biology, which shall include a practical test in these

subjects and also English as a compulsory subject. Clauses (c) or (d)

or (e) or (f) refer to other examinations. The relevant alternative

16

clauses are (a) and (b) since the Medical Council of India is relying

upon clause (a), while the petitioner is relying upon clause (b).

Clause (a) and (b) are contained in the same Regulation 4 of

1997 Regulations. What is important is that whereas clause (a), which

refers to Higher Secondary Examination or the Indian School

Certificate Examination, requires a period of study of 12 years, of

which the last two years of study should comprise Physics, Chemistry,

Biology and Mathematics, clause (b) is silent on this requirement of

study of Physics, Chemistry, Biology in the last last two years of

study. The Regulation making body, in its wisdom, has itself drawn a

distinction between the eligibility requirement set out in clause (a)

and clause (b) inasmuch as a candidate who has passed the Higher

Secondary Examination or the Indian School Certificate Examination

is required to study Physics, Chemistry, Biology, Mathematics and

English in Class XI and Class XII which are the last two years of his

study but for a candidate who has passed the Intermediate

Examination in Science with Physics, Chemistry and Biology there is

no such requirement.

It needs to be remembered that the Higher Secondary

Examination/Indian School Certificate Examination as well as the

Intermediate Examination are all 10 + 2 Examinations. Yet a

distinction has been drawn by the Medical Council of India in the

1997 Regulations. The Higher Secondary Examination and the Indian

School Certificate Examination have been clubbed together under

17

Regulation 4(2)(a), but for the Intermediate Examination a separate

requirement is contained in Regulation 4(2)(b) of the 1997

Regulations. It also needs to be noted that while Regulation 4(2)(a)

deals with Physics, Chemistry, Biology and Mathematics with

English, Regulation 4(2)(b) deals with Physics, Chemistry and

Biology only. The Regulation making body was aware of the

examinations conducted by these three separate Boards. It was aware

that the Intermediate Board permits a candidate under Regulation

17(2) contained in Chapter XII to opt for one or at the most four

subjects, after having cleared the Intermediate Examination. Thus, a

candidate who qualifies the Intermediate Examination in particular

year has the option to appear in all or any of the four subjects

including Biology in subsequent year. Thus, a candidate who has

qualified the Intermediate Examination can opt for Biology subject in

the subsequent year and on clearing it would be issued a certificate. It

is for this reason that there is no requirement for a candidate

appearing in the Intermediate Examination to study Physics,

Chemistry and Biology in both Class XI and Class XII. Such a

distinction has been consciously made and the requirement of study of

Biology both in Class XI and Class XII cannot be inferred in the

eligibility requirement contained in Regulation 4(2)(b).

The impugned order dated 7 October 2012, by which the claim

of the petitioner for grant of the Eligibility Certificate has been

rejected, only refers to clause (a) of Regulation 4(2). The petitioner, it

18

needs to be emphasized, had not passed the Higher Secondary

Examination or the Indian School Certificate Examination. There is

no doubt that the petitioner had passed the Intermediate Examination

conducted by the Board in 2003 with Physics, Chemistry and

Mathematics and had subsequently appeared at the Intermediate

Examination in Biology subject in 2004 in accordance with the

Regulations and cleared it. Clause (b) of Regulation 4(2) dealing with

Intermediate Examination does not require study of Biology, Physics

or Mathematics during last two years, unlike, the requirement

contained in clause (a) for a candidate who appears at the Higher

Secondary Examination or the Indian School Certificate Examination.

What has to be noticed is that the Medical Council of India has

not even referred to clause (b) of Regulation 4 (2) of the 1997

Regulations, which clause specifically deals with a candidate who has

appeared at the Intermediate Examination. The order only refers to

clause (a) relating to a candidate who has appeared at the Higher

Secondary or the Indian School Certificate Examination. Learned

counsel for the Medical Council of India has however, submitted that

mere reference to a wrong Regulation will not make any difference

because even under Regulation 4 (2) (b), the petitioner should have

undertaken two years of study of Biology subject before appearing at

the Intermediate Examination. The eligibility requirement under

clause (b) has been examined and there is no manner of doubt that

clause (b) does not require that a candidate should have studied

19

Biology subject for two years before appearing at the Intermediate

Examination.

A Division Bench of the Patna High Court in Letters Patent

Appeal No.1136 of 2015

7

, arising out of Civil Writ Jurisdiction

Case No.20894 of 2014 also examined whether Eligibility Certificate

can be granted to a candidate who passed the Intermediate

Examination in the same manner, as the petitioner has. The candidate

passed the Intermediate Examination conducted by the Intermediate

Education Council, Patna in 2005 with Physics, Chemistry and

Mathematics and then appeared in the 2006 Examination with

Biology as an additional subject. After clearing it, the candidate took

admission in the National Medical College, Birganj in Nepal in 2008,

and cleared the MBBS Examination in 2014. The Eligibility

Certificate was not granted for the reason that the candidate had not

studied Biology for two years.

The Patna High Court emphasised that the requirements

contained in Regulation 4 of the 1997 Regulations are alternative

requirements and either of them can make a candidate eligible for

seeking admission to the MBBS Course. The Court noticed the

distinction between the eligibility requirement prescribed under

Regulation 4(2)(a) and 4(2)(b) of the Regulations and held that there

was no requirement of two years of study of Biology subject under

Regulation 4(2)(b). The Court, therefore, set aside the order rejecting

7Aiman Kamal v. The Medical Council of India and Others decided on 23 August 2016

20

the request for issue of Eligibility Certificate and the observations are

as follows:-

“22. On the basis of the pleadings on record and rival

submissions made on behalf of the parties, the issues, which

have emerged for determination in the present appeal can be

summarized as under:-

Is it essential for a candidate to have undergone

two years of study, simultaneously in the

subjects Physics, Chemistry and Biology at

Intermediate/+2 level in order to acquire

eligibility for admission to MBBS course in

Medical Colleges in India, as contemplated

under Regulation 4(2) of the "Regulations on

Graduate Medical Education, 1979" as noted

above? In the present case, the moot question is as to

whether a candidate is disqualified from being admitted

to MBBS course under the said Regulations on the

ground that the Regulation 4(2)(e) of the same provides

for two years course in Physics, Chemistry and Biology,

whereas the appellant pursued her one year course as

regular student, in Biology, to secure certificate of

passing Intermediate course in the said subject, after

having passed the two years course in the subjects

Physics, Chemistry and Mathematics? ….....

24. Unlike the case of Rajendra Prasad Mathur

(supra), the Medical Council of India has laid down, in

the present case, alternative conditions of eligibility

under Regulation 4(2) of the Regulations as quoted and

discussed hereinabove, which includes passing of

Intermediate Examination in Science of an Indian

University/Board or other recognized body, Physics,

Chemistry, Biology/Bio Chemistry. There is another

alternative qualification at clause (f) under Regulation

4(2) of the Regulations according to which, a candidate,

who has passed an examination of which, the scope and

standard is found to be Intermediate Science

Examination of an Indian University/Board taking

Physics, Chemistry and Biology including practical test,

is eligible for admission to MBBS course. Whereas at

(a) Regulation 4(2), 12 years of study is

specifically provided, there is no such

prescription at (b) and (f). For this purpose, we

need to closely examine Regulation 4(2) of the

Regulations on Graduate Medical Education, 1997. We

have already extracted Regulation 4(2) in the foregoing

21

paragraphs, which prescribes alternative conditions of

eligibility for admission to MBBS course.

25.....

26. Upon careful reading of Regulation 4(2) of

the said Regulations, we find ostensible

distinction between the qualification prescribed

under Regulation 4(2)(a) and 4(2)(b) of the

Regulations. For a candidate to be eligible for

admission to MBBS course, under Regulation

4(2)(a) of the said Regulations, he/she is

required to have passed Higher Secondary

Examination or Indian School Certificate

Examination, which is equivalent to 10+2

Higher Secondary Examination after a period of

twelve years, the last two years of study

comprising of Physics, Chemistry, Biology/Bio-

technology and Mathematics or any other elective

subjects with English......... Whereas in Regulation

4(2)(a), passing of Higher Secondary

Examination/Indian School Certificate

Examination after a period of twelve years of

study, the "last two-years of study", comprising

Physics, Chemistry and Biology/Bio-

technology, has been prescribed as the

eligibility qualification, no such period has

been mentioned under Regulation 4(2)(b) of the

said Regulations in relation to Intermediate

examination in Science of an Indian

University/Board or other recognized

examining body with Physics, Chemistry and

Biology/Bio-technology. The qualification,

prescribed under Regulation 4(2)(b) of the said

Regulations, is certainly alternative to the

qualification as prescribed under Regulation

4(2)(a) of the Regulations.

27.......

28.What we find in Regulation 4(2) of the

said Regulations is that there is intentional

omission of "last two-years of study", in

Regulation 4(2)(b) of the Regulations, which

expression is there in Regulation 4(2)(a) of the

Regulations.…........

The reason, which has been assigned in the

communication, is that as per the Regulations

of Medical Council of India on Graduate

Medical Education, 1997, a candidate has to

22

undergo two-years of study in subjects Physics,

Chemistry and Biology for issuing eligibility

certificate.….......

30. In our view, thus, the decision of the

Medical Council of India, refusing to grant

eligibility certificate to the appellant on the

ground that a candidate has to undergo "two-

years of study in Physics, Chemistry and

Biology" as mandatory for issuing of eligibility

certificate, cannot be sustained inasmuch as the

Medical Council of India has not considered

the case of the appellant with reference to

Regulation 4(2)(b) and 4(2)(f) of the Regulations

of the Council on Graduate Medical Education, 1997,

and Regulation 13 of the Regulations for Intermediate

examination, framed by the Bihar Intermediate

Education Council, Patna.”

(Emphasis supplied)

Learned counsel for the Medical Council of India, has,

however, placed reliance upon judgement of a learned Judge of the

Delhi High Court in Writ Petition No.10133 of 2009

8

and has

submitted that the requirement of two years of study of Biology even

for a candidate who has passed the Intermediate Examination is an

essential requirement and the Medical Council of India can reject the

application for issuance of the Eligibility Certificate under clause 10

of the Eligibility Requirement Regulations.

The Delhi High Court also examined whether an Eligibility

Certificate can be granted to a candidate who had appeared at the

Intermediate Examination in 2006 and had subsequently again

appeared at 2007 Intermediate Examination with Biology as an

additional subject. The Court inferred that the requirement contained

8 Mohammad Parvez Akhtar Vs. Union of India and Others decided on 31 August 2009

23

in clause (a) of Regulation 4 (2) regarding two years of study in

Physics, Chemistry, Biology and Mathematics subjects should be read

in clause (b) and the observations are as follows:

“26. The plea of the petitioner that in Code 2 of

clause 8 (v) of Bulletin of Information, two years

of study in Biology is not specifically provided

and so it should not be read into it is also not

acceptable as on the basis of examination such

distinction should not be carved out.

Classification on the basis of type of examination

i.e two years continuous study in one particular

examination and not insisting for two years study

in respect of another examination will not be

permissible. The learned counsel for the

petitioner has also contended that in the

intermediate examination from the U.P Board a

candidate is not allowed to take Mathematics

with Biology. Therefore, the petitioner had taken

Physics, Chemistry and Mathematics, he was not

allowed to take Biology and therefore, after

qualifying intermediate examination in 2006, he

took Biology as an additional subject and

qualified the same with practical in 2007 as a

regular subject. This is not disputed that a candidate is

entitled to take Physics, Chemistry and Biology even for

the intermediate examination. Such a candidate who opts

for biology in preference to Mathematics, study Biology for

two years with practical. Therefore, if the petitioner wanted

to join MBBS course he should have opted for Biology as a

regular subject with a study of two years. If MCI insists on

last two years study in each subject being essential on the

reasoning that such study necessarily assimilates with

periodic practical and evaluation of students in such activity

is vital for the study of medicine, such insistence cannot be

termed as an empty or ritualistic experience but is a matter

of maintaining standard having regard to the nature of

medical education and it cannot be ignored on the grounds

as has been alleged by the petitioner. If in Code 1 of

clause 8 (v) a two years study in each subject is

required, then for the same reasoning the two

years study of each subject in necessary even

under other Codes of clause 8 (v) and has to be

read in Code 2 of clause 8 (v) also ”.......

(Emphasis supplied)

24

Learned counsel for the Medical Council of India has also

pointed out that Special Appeal filed by Mohd. Parvez Akhtar was

dismissed on 12 October 2009 and the Special Leave Petition was

also dismissed by the Supreme Court on 5 July 2010. It needs to be

noted that dismissal of the Special Leave Petition would only mean

that the judgement of the Division Bench of the Delhi High Court

attained finality.

There are, therefore, two contrary views interpreting Regulation

4(2)(b) of the 1997 Regulations. The Patna High Court has held that a

candidate who has qualified the Intermediate Examination need not

have studied Biology subject for two years as is the requirement

contained in Regulation 4(2)(a) of the 1997 Regulations. The Delhi

High Court has, however, held that the requirement of two years of

study of Biology, even though not contained in Regulation 4(2)(b),

should be read in it since it is a requirement contained in Regulation

4(2)(a). For the reasons we have already indicated, it is difficult to

subscribe to be the view taken by the Delhi High Court.

It is, therefore, clear that while rejecting the application filed by

the petitioner for grant of the Eligibility Certificate, the Authority did

not even consider it appropriate to examine that the petitioner had

passed the Intermediate Examination and not the Higher Secondary

Examination/Indian School Certificate Examination because the

impugned order refers to the requirements contained in Regulation

4(2)(a) which relate to Higher Secondary Examination/Indian School

25

Certificate Examination. The denial of the Eligibility Certificate to the

petitioner in 2012 has resulted in non-declaration of the Screening

Test result in which the petitioner had appeared. This has

consequently led to a situation where the petitioner cannot be enrolled

on the Medical Register maintained by the State Medical Council.

The callous attitude of the Authority has, therefore, resulted in loss of

five precious years of the petitioner.

Thus, for all the reasons stated above, the admission of the

petitioner in the MBBS course was in accordance with Regulation 4

of the 1997 Regulations and the decision contained in the order dated

7 October 2012 that the petitioner did not fulfill the criteria contained

in Regulation 4(2)(a) of the 1997 Regulations, is patently wrong. The

petitioner is, therefore, clearly entitled to the issuance of an Eligibility

Certificate since that is the only reason assigned in the order for not

granting the Eligibility Certificate.

Learned counsel for the Medical Council of India in the end,

made an attempt to support the impugned order by contending that the

petitioner was not entitled to be admitted to the MBBS course in the

Nepal Institute since he had not submitted the Eligibility Certificate

before taking admission and in this connection learned counsel

referred to Section 13 (4B) of the Act.

In the first instance, such a reason has not even been mentioned

by the Medical Council of India in the order rejecting the claim of the

26

petitioner for grant of the Eligibility Certificate. Even otherwise, the

petitioner had taken admission in the MBBS Course in an Institute

referred to in Section 12 of the Act in the year 2006. The name of the

Institute is mentioned in the Second Schedule. The Medical Council

of India had at the relevant time in 2006 drawn a distinction between

medical qualification granted by Institutions referred to in Section 12

(Schedule II) and Section 13 (Part-II of Schedule III) since after

introduction of sub-sections 4 (A) and (B) in Section 13 of the Act,

the Medical Council of India maintained that it was not necessary for

candidates seeking admission to a Medical Institution referred to in

Section 12 (Schedule II) to submit the Eligibility Certificate before

taking admission in the MBBS Course and candidates seeking

admission to an Institution referred to in Section 13 (Part II of the

Third Schedule) alone was required to submit the Eligibility

Certificate. Candidates who were seeking admission to a Medical

Institution referred to in Section 12 (Second Schedule), therefore, did

not apply for such a certificate. It is only, when the Courts did not

accept the view of the Medical Council of India that there is a

distinction between a Medical Institution referred to in Section 12 and

a Medical Institution referred to in Section 13 that the Medical

Council of India issued a Press Note on 8 October 2008 that it was

also henceforth necessary for a candidate seeking admission to a

medical institution referred to in Section 12 (Schedule II) to submit

the Eligibility Certificate before taking admission in the MBBS

27

Course. The relevant portion of the Press Note dated 8 October 2008

which explains this position is as follows:

“On a further examination of the relevant facts, the

provisions of the Act including the amendments carried

out in the year 2001, the provisions of the regulations

dated 18.02.2002, i.e., Screening Test Regulations and

Eligibility Certificate Regulations relatable to Section

13(4)A and 13(4)B of the Act, it has been observed that a

careful and correct reading of the provisions of the Act

and the regulations do stipulate that all the Indian

citizens who secure primary medical qualification

(MBBS) from any foreign medical institution which is

either included in the Schedule-II or included in Part-II

of the IIIrd Schedule shall be required to qualify the

screening test under the provisions of the Screening Test

Regulations.

The only exception which has been made is with regard

to the temporary permissions which are granted by the

MCI for the purposes of research, medical services for

charitable and philanthropic purposes under the

provisions of Section-14 of the Act. It was submitted

before the High Court that there seems to be a bonafide,

however, an erroneous understanding of the requirements

of the provisions of the IMC (Amendment) Act, 2001

and the Screening Test Regulations. The requirement of

law gets clear on the proper reading and understanding of

the above-mentioned statutory position under the Act. It

would neither depend on the affidavit(s) of any authority,

Govt. of India etc. nor would it be dependent upon the

erroneous impression or understanding of any authority

including the Council. In any case, the ultimate analysis

and interpretation shall be within the exclusive

jurisdiction of the Hon'ble Courts requiring the

concerned authorities to abide by it.

It is further made clear that henceforth all

those Indian students who are desirous of

seeking admission in any foreign medical

institution, shall be required to obtain an

"Eligibility Certificate" from the MCI under

the Eligibility Certificate Regulations 2002,

before they are admitted in any foreign medical

institution whether recognized under section 12

or under section 13 of the Indian Medical

Council Act, 1956.”

(Emphasis supplied)

28

The petitioner had taken admission in the Nepal institute in the

year 2006 much prior to the issuance of the Press Note dated 8

October 2008. At that point of time, as noticed above, the Medical

Council of India was clearly of the view that a candidate seeking

admission in a Foreign Medical Institute referred to in Section 12

(Schedule II) was not required to submit the Eligibility Certificate

before taking admission in the MBBS Course. It is only when this

view of the Medical Council of India was not accepted by the Courts

that a Press Note was issued on 8 October 2008 requiring that a

candidate seeking admission to a Foreign Medical Institute referred to

in Section 12 (Schedule II) has to also submit the Eligibility

Certificate before taking admission. It is, therefore, not open to the

learned counsel for the Medical Council of India to contend that the

petitioner could not have been granted admission to the MBBS

Course in the Nepal Institute, which is an institute referred to in

Section 12 (Schedule II), since the Eligibility Certificate was not

submitted by the petitioner before taking admission. It is obvious that

is for this reason that such a ground was not even taken by the

Medical Council of India in the order dated 7 October 2012 while

rejecting the application filed by the petitioner for grant of the

Eligibility Certificate. Thus, even this additional reason of learned

counsel for the Medical Council of India cannot be accepted.

The impugned order dated 7 October 2012 denying the issuance

of the Eligibility Certificate to the petitioner, therefore, deserves to be

29

set aside and is set aside. The Medical Council of India shall now take

a decision for issuance of the Eligibility Certificate to the petitioner

strictly in the light of the observations made above within a period of

three weeks from the date a certified copy of this order is filed by the

petitioner. The writ petition is allowed to the extent indicated above.

Order Date :- 4.4.2017

S.Sharma

(Dilip Gupta,J.)

(Prabhat Chandra Tripathi,J.)