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2018 DIGILAW 978 (JK)

Fayeezah Jahan v. Union of India

2018-12-14

SANJEEV KUMAR

body2018
JUDGMENT : 1. In this petition, the petitioner has, inter-alia prayed for a writ of Certiorari for quashing the Communication No. MCI-201 (EC13-10340) 2015-Ecgi/57506 dated 28.12.2015 and Communication No. MCI-201 (EC13-10340) 2015-Eligi/207515 dated 06.05.2016 issued by the Medical Council of India (for short “MCI”) by virtue of which the application submitted by the petitioner for issuance of eligibility certificate for getting admission to Graduate Medical Course in the Foreign Medical Institute in terms of Section 12 and 13(4B) of Indian Medical Council Act 1956 (for short “Act of 1956”), has been rejected. 2. Facts giving rise to the filing of this writ petition briefly stated are that:- (i) the petitioner qualified Secondary School (Matriculation Examination) with distinction from Jammu and Kashmir State Board of School Education (for short BOSE) on 20th December, 2009. She also qualified Higher Secondary Part-I i.e. 11th class examination also with distinction in the subjects of General English, Physics, Chemistry, Mathematics and Information Technology in the year 2010. (ii) with the permission of BOSE granted vide No. ‘F’ (Reg-Sub/Change) B/KD/2010-11 dated 01.013.2011, the petitioner was permitted to change the subject of “Information Technology” to “Biology” in the 12th Class subject to the condition that she would pass the corresponding subjects (Changed Subject) in Higher Secondary Part-I i.e. 11th T1 and T2 at the time the examination is conducted simultaneously in the same Session. (iii) the petitioner qualified the examination of changed subject i.e. Biology for Class 11th in the Annual Examination 2011. Simultaneously, the petitioner also qualified Higher Secondary Part-II i.e. 12th Class Examination with the subject of General English, Physics, Chemistry and Biology conducted by the BOSE. This was also Annual Examination of 2011. (iv) on the basis of 10+2 qualification, the petitioner succeeded in getting admission in Kumudini Women’s Medical College, Mirzapur Tangail Bangladesh provisionally. The Admission letter bearing No. Ref. KWMC/1939/12 dated 01.12.2012 issued in this behalf substantiates the aforesaid fact. (v) with a view to get admission to Graduate Medical Course in the Foreign Medical Institute, the petitioner applied to the respondent no. 4 for issuance of eligibility certificate in terms of Section 12 and 13 (4B) of the Act of 1956. (vi) the petitioner instead of getting the requisite eligibility certificate, received a letter from the respondent no. (v) with a view to get admission to Graduate Medical Course in the Foreign Medical Institute, the petitioner applied to the respondent no. 4 for issuance of eligibility certificate in terms of Section 12 and 13 (4B) of the Act of 1956. (vi) the petitioner instead of getting the requisite eligibility certificate, received a letter from the respondent no. 3 dated 28th December, 2015 impugned in this petition, by virtue of which her application for grant of eligibility certificate had been rejected on the ground that she had not studied Biology subject in the 11th Class along with other subjects, but had passed the same as additional subject while appearing in 12th Class examination. (vii) the petitioner represented to the MCI and sought reconsideration of the application. The respondent no. 4 considered the representation of the petitioner and vide Letter dated 06.05.2016 impugned in this petition reiterating its earlier decision. 3. The petitioner is aggrieved of the aforesaid communication of the respondent no. 4 and has assailed the same, inter-alia on the ground that she has qualified the requisite subjects including the subject of Biology both in 11th Class and 12th Class and, therefore, was eligible in terms of MCI Regulations to obtain eligibility certificate for seeking admission in Foreign Medical Institute. 4. The rejection of her representation is totally arbitrary and the reason given is both legally and factually incorrect. The regulations made in terms of MCI prescribe that a candidate shall have two years study comprising of Physics, Chemistry, Biology and Mathematics and any other elective subjects with English and nothing more. The petitioner has passed both the examinations i.e. 11th and 12th with the requisite subjects including subject of Biology and, therefore, could not be declared ineligible to obtain the requisite certificate. 5. Apart from this, the MCI has filed its reply. The petitioner has passed both the examinations i.e. 11th and 12th with the requisite subjects including subject of Biology and, therefore, could not be declared ineligible to obtain the requisite certificate. 5. Apart from this, the MCI has filed its reply. The stand taken in the reply is that the application of petitioner for issuance of eligibility certificate has been rejected on the ground that petitioner, as per the provisions of Graduate Medical Education Regulation, 1997, was supposed to undergo Regular, Co-terminus/Simultaneous Teaching and Training in the subjects of Physics, Chemistry and Biology in her Higher Secondary Education (10+2) and last two years of study along with practicals, whereas the petitioner has not studied Biology in 11th Class along with other compulsory subjects including practicals and thereafter has passed the said examination of 11th class conducted after 12th class examination. 6. It may be noted that during the pendency of this writ petition, this Court on 27th June, 2018, while disposing of the IA No. 02/2018 directed the respondents to permit the petitioner to sit/compete in the screening test to be conducted by MCI on 29th June, 2018 at her own risk and responsibility. It was further provided that the result of the petitioner shall not be declared till further orders from the Court. The petitioner, pursuant to the aforesaid direction, appeared in the screening test, which was conducted by the respondent no. 4. 7. Vide Order dated 06.09.2018 passed in IA. No. 03/2018, this Court directed the respondents to produce the result of the petitioner in a sealed cover before this Court. In compliance the respondents have produced the result of the petitioner, in which the petitioner is shown to have qualified. The result produced by the respondents is taken on record. 8. In view of the petitioner having qualified the screening test, learned counsel appearing for the parties argued at length with regard to the eligibility of the petitioner to sit in the aforesaid screening test. 9. Having heard learned counsel for the parties and perused the record, I am of the view that the stand taken by the MCI is arbitrary and, in any case, not in consonance with the relevant regulations of the MCI. It is not in dispute that the petitioner has qualified the Class 11th and Class 12th Examination with the subjects of Physics, Chemistry, Mathematics and Biology along with General English. It is not in dispute that the petitioner has qualified the Class 11th and Class 12th Examination with the subjects of Physics, Chemistry, Mathematics and Biology along with General English. In the Class 11th, the petitioner had opted for Information Technology and not Biology, but she took admission in 12th Class Examination with Biology as one of the compulsory subjects in place of Information Technology subject, which she had opted in 11th Class, of course, with the prior permission of BOSE granted to her on 1st March, 2011. The BOSE, while granting the permission to the petitioner to opt Biology at 10+2 Level, had made it clear that the permission is subject to condition that she passes the Changed Subject in Higher Secondary Part-I i.e. 11th T1 and T2 at the time the examination is conducted simultaneously in the same Session under CCE Scheme and with the recommendation of the Head of the Department. It was also made clear that the result of Higher Secondary Part-II should not be declared till she clears Higher Secondary Part-I Examination in the Changed Subject. This permission granted by BOSE was complied with by the petitioner and she qualified the 11th Class Examination in the subject of Biology and cleared the same both in theory and practical. After qualifying the aforesaid subject in the 11th Class, she has also qualified 10+2. In that view of the matter, it is not understandable as to how the petitioner was found not meeting the requirements of MCI regulations. 10. After qualifying the aforesaid subject in the 11th Class, she has also qualified 10+2. In that view of the matter, it is not understandable as to how the petitioner was found not meeting the requirements of MCI regulations. 10. In terms of Foreign Medical Institute Regulation 2002 framed by MCI conferred under Section 33, it is provided that a candidate must fulfill 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 and the candidate shall not be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until he/she has attained the age of 17 years on or before 31st December, of the year of admissions to the MBBS Course and passed the qualifying examination as under:- 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 the 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. It is this part of the regulation, which needs to be interpreted:- 11. The arguments of MCI are that a candidate to be eligible must have qualified 10+2, Higher Secondary Examination after a period of 12 years study, the last two years study must be comprising of Physics, Chemistry, Biology. Since the petitioner had qualified the Biology subject only after having passed 10+2 Examination and, therefore, was not treated as eligible. It is on the strength of this interpretation, the respondent no. 4 has tried to justify the impugned communications. 12. I have carefully gone through the aforesaid Regulation and find that the interpretation made by the MCI is totally arbitrary and has no nexus with the object sought to be achieved by the regulation. Admittedly, the petitioner at the time of applying for eligibility certificate was 12th pass with subjects of Physics, Chemistry, Biology and General English both in the 11th and 12th Class Examination. Admittedly, the petitioner at the time of applying for eligibility certificate was 12th pass with subjects of Physics, Chemistry, Biology and General English both in the 11th and 12th Class Examination. Mere of passing of subject of Biology in 11th Class as an additional subject simultaneously with the examination of 12th Class cannot change the position. The Marks Sheet placed on record clearly indicates that the petitioner qualified the subject of Biology in 11th Class and has obtained qualifying marks both in theory and practical. 13. The requirement of the Regulation, is, therefore, completely met. The impugned Communications of the respondents are bad in the eye of law and, therefore, cannot sustain. Resultantly that being the position, the Communication No. MCI-201 (EC13-10340) 2015-Ecgi/57506 dated 28.12.2015 and Communication No. MCI-201 (EC13-10340) 2015-Eligi/207515 dated 06.05.2016 issued by the Medical Council of India are, therefore, quashed. The petitioner has already qualified the screening test, the respondents are, therefore, directed to issue eligibility certificate in favour of the petitioner for admission to Graduate Medical Course in the Foreign Medical Institute in terms of Section 12 and 13(4B) of Indian Medical Council Act, 1956 within a period of four weeks from the date of certified copy of this order is made available to the respondents. 14. Disposed of in the above terms along with connected IAs.