Heard Sri Amrendra Nath Tripathi, assisted by Sri Ganesh Nath
Mishra, Sri Shailendra Srivastava, assisted by Aastha Mishra, learned
counsel for petitioners, Sri Sanjay Bhasin learned counsel for DGME,
Sri Gyanendra Kumar Srivastava learned counsel for MCI, Sri
Shashank Bhasin for CBSE and the learned standing counsel.
[2]
2. By the present bunch of writ petitions the petitioners have challenged
the eligibility condition No.(vii) and (viii) of the Notification of
National Eligibility Entrance Test (NEET), 2018 which reads as
follows:-
"(vii) Provided that two years of regular and continuous study of
Physics, Chemistry, Biology/Bio-technology taken
together shall be required at 10+2 level for all the
candidates.
(viii) Candidates who have passed 10+2 from Open Schools or
as Private candidates shall not be eligible to appear for
National Eligibility-cum-Entrance Test-UG. Furthermore,
study of Biology/Bio-technology as an Additional Subject
at 10+2 level also shall not be permissible."
3. The admitted facts of the case are that the petitioners completed their
Intermediate as private students from the Uttar Pradesh Board with
subjects Physics, Chemistry, Mathematics and English. Thereafter in
the next year they appeared as private students with Biology subject
and cleared their Biology paper.
4. Submissions of learned counsel for petitioners is that case of
petitioners is covered by Regulation 4 (2) (b) of 1997 Regulations
while submission of learned counsels for respondents is that case of
petitioners would be covered by Regulation 4 (2) (a). Further
submission of learned counsels for respondents is that even
presuming that the petitioners are covered by Regulation 4 (2) (b), the
same shall also be treated to be amended by amendment made in
Regulation 4 (2) (a). For convenience, Regulation 4 (2) (a) and (b) as
existed prior to amendment are 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
31st December of the year of admission to the MBBS
Course.
(2) He/she has passed qualifying examination as under:
[3]
(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 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 preprofessional
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
... ... ... ... ... "
5. The aforesaid Regulation was amended by MCI by Notification dated
22.7.2018 and by Clause 5 of said notification following amendment
in Regulation 4 (2) (a) was made:-
"Provided that two years of regular and continuous study of
Physics, Chemistry, Biology/Biotechnology taken together
shall be required at 10+2 leval for all the candidates.
Candidates who have passed 10+2 from Open Schools or
as Private candidates shall not be eligible to appear for
National Eligibility-cum-Entrance Test. Furthermore, study
of Biology/Biotechnology as an Additional Subject at 10+2
level also shall not permissible."
6. No amendment was made in Sub-clause 4 (2) (b).
7. The admitted facts of the case are that the petitioners completed their
Intermediate as private students from the Uttar Pradesh Board with
subjects Physics, Chemistry, Mathematics and English. Thereafter in
[4]
the next year they appeared as private students with Biology subject
and they cleared their Biology paper.
8. A dispute arose with regard to applicability and interpretation of
Clause 4 (2) (a) and 4 (2) (b) which was considered by a Division
Bench in Writ-C No.46218 of 2013 (Prateek Singh Vs. Union of
India), decided on 4.4.2017. The facts of the said case were that the
petitioner had appeared at the Intermediate Examination conducted
by the Board of High School and Intermediate Education, Uttar
Pradesh in 2003 with General Hindi, English, Mathematics, 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. Thus, the petitioner in the said case was
similarly placed as the petitioner herein. This Court after a detailed
discussion found that Regulation 4 (2) (a) are with regard to CBSE
and ICSE Boards while Regulation 4 (2) (b) are applicable on the
State Boards. and Private students thereof. Relevant portion of the
judgment of Pratik Singh is as follows:-
"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
[5]
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 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
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
[6]
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 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 Biology subject for two years before
appearing at the Intermediate Examination. "
9. Against the said judgment, an SLP was filed by MCI bearing SLP (C)
No.16152 of 2017 (Medical Council of India Vs. Pratik Singh &
Ors.). The SLP was converted to Civil Appeal No.(s).6228 of 2018.
On 9.7.2018, same was disposed of by the following order:-
[7]
"Leave granted.
In the light of the decision rendered in C.A. No.3952
of 2018 (Medical Council of India & Ors. vs. Aiman
Kamal & Ors.) on 18th April, 2018, the instant appeal also
stand disposed of on the same terms.
Pending application, if any, also stand disposed of"
10. Since the same was decided in view of judgment in a case of Aiman
Kamal and others, it would be relevant to see the order of Aiman
Kamal also. The said order reads as follows:-
"O R D E R
IN C.A. No.3952/2018 @ SLP (C) No .35683/2016
Heard learned counsel for the parties.
Leave granted.
The question arises with respect to the eligibility of the
candidate for MBBS Course as prescribed by the Medical
Council of India Regulations on Graduate Medical
Education, 1997 (in short ‘the Regulations’) as provided in
Regulation 4(2) same is extracted hereunder:
“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 and Mathematics or any 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.
Now the regulation has undergone some change.
The Regulations have been amended in the year 2018 by
way of Regulations on Graduate Medical Education
(Amendment), 2017 notified on 22nd January, 2018. In
Regulation 4 (2)(a) following proviso has been added:
[8]
“In clause 4, under the heading Admission to the
Medical Course-eligibility criteria and in sub
clause 4(2)(a), the following proviso shall be
added:
Provided that two years of regular and
continuous study of Physics, Chemistry,
Biology/Biotechnology taken together shall be
required at 10+2 level for all the candidates.
Candidates who have passed 10+2 from Open
Schools or as Private candidates shall not be
eligible to appear for National Eligibility-cum-
Entrance Test. Furthermore, study of
Biology/Biotechnology as an Additional Subject
at 10+2 level also shall not permissible.”
The High Court of Delhi has interpreted the
unamended Regulation vide judgment and order dated
29.09.2006 in WP(C) No. 12487 of 2006 has interpreted
the provision in the spirit that by attending the practical
course as regular student qualification ought to have been
obtained and all the requisite subjects should be cleared
together.
The aforesaid opinion expressed by learned Single
Judge was affirmed by the Division Bench in LPA No.
2033 of 2006 vide order dated 31.05.2007. Against the said
order, special leave petition bearing No. 13571 of 2007 was
preferred in this Court and that was also dismissed by this
court on 17.08.2007. That is how the order passed by the
High Court has attained finality.
However in the instant case, we need not go into
various questions as the respondent has done MBBS from
National Medical College Birgunj, Nepal which is one of
the recognised institution by Tribhuvan University,
Kathmandu. She has completed her final examination in
the year 2014 from the said college. Thereafter she
completed one year course to appear in Biology paper of
2006 as she has not done two years’ course with the subject
of Biology. As such applying the decision rendered by the
Delhi High Court which appears to be appropriate, we have
to non suit the respondent. However, at the same time she
has done the MBBS –from recognised university and has
obtained the requisite degree from Nepal.
In the peculiar facts and circumstances of the case,
we are not interfering with the impugned judgment but
make it clear that it should not be treated as precedent in
any other matter. As qualification obtained by the
respondent no.1 is recognised one in India and subject to
qualifying the screening test to be conducted as prescribed
[9]
by the Medical Council of India (in short ‘the MCI’),
obviously, she has to be registered.
Accordingly, the appeal stands disposed of.
IN C.A. No.3960/2018 @ SLP (C) No. 24301/2017
Leave granted.
As the instant case is covered by the order passed in
C.A. 3952/2018, the instant appeal also stand disposed of
on the same terms as stated in the said case.
It was submitted that screening test has already been
held, if that be so, let result be declared."
11. A bare perusal of the judgment in the Aiman Kamal shows that the
same relates only to Regulation 4 (2) (a) which is with regard to
CBSE and ICSE Boards alone and not with regard to private State
Board. Therefore, the law settled by the Division Bench of this Court
was not disturbed or set aside by the Hon'ble Supreme Court
12. Submission of learned counsel for petitioners is that the said
amendment is brought in the Regulation 4 (2) (a) and not in
Regulation 4 (2) (b) and therefore, it is not applicable to petitioners.
13. The amendment made in the year 2018 is made only in Regulation 4
(2) (a) and no change is made in Regulation 4 (2) (b). The change
made in Regulation 4 (2) (a) cover only ICSE and CBSE Boards and
does not cover the State Board as is settled in the case of Pratik Singh
(supra). Even the note appended by amendment to Regulation 4 (2)
(a) itself shows that those persons who have studied Biology only for
one year would be given one year further training by the Colleges
mentioned in the said notification. The said training can only take
place after a person has cleared his NEET. In view thereof, it cannot
be said that the petitioners cannot face the counselling at this stage.
14. There is specific provision in Regulation 4 (2) (b) with regard to
private students and, there is no amendment made in the same. There
is nothing said with regard to private students of such Boards.
Therefore, it was always open for MCI to amend Regulation 4 (2) (b)
along with Regulation 4 (2) (a) more so in view of judgment in Pratik
Singh (supra) which was very much in the knowledge of MCI.
[10]
Therefore, both Regulation 4 (2) (a) and 4 (2) (b) are for separate and
distinct Boards as held in Pratik Singh case.
15. Learned counsel for respondents further placed reliance upon the
judgment of Delhi High Court in Writ Petition No.10133 of 2009
(Mohammad Parvez Akhtar. Vs. Union of India and others and Letter
Patent Appeal No.471 of 2009 (Mohd. Parvez Akhtar. Vs. Union of
India and Ors.) judgment dated 12.10.2009 and SLP arising from the
said judgment. The aforesaid judgment in the case of Mohammad
Parvez and the order of the Letter Patent Appeal are considered by the
Division Bench of this Court in Pratik Singh case. In view thereof, I
am not inclined to accept argument of learned counsel for
respondents.
