Mohammad Parvez Akhtar vs Union Of India And Others
2009 Latest Caselaw 3446 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Writ Petition No.10133/2009

%                         Date of Decision:   31.08.2009

Mohammad Parvez Akhtar                              .... Petitioner
                  Through Mr.A.R. Masoodi, Advocate

                                   Versus

Union of India and others                             .... Respondents
                      Through Mr.Gaurav Duggal, Advocate for Union
                              of India. Mr. Maninder Singh Sr,.
                              Advocate with T. Singhdev, Advocate for
                              Medical Council of India.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.      Whether reporters of Local papers may be                YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                  YES
3.      Whether the judgment should be reported in              YES
        the Digest?


ANIL KUMAR, J.

*

1. The point for determination is whether the petitioner who did his

intermediate from U.P. Board in 2006 and later on in 2007 took the

additional subject of Biology with practicals is eligible for admission to

MBBS Course under All India Pre Medical Entrance Examination 2009.

2. Brief facts to comprehend the controversies are that the petitioner

passed his High School examination through U.P. Board in 2004 and

thereafter he appeared for Intermediate examination through U.P.

Board in the year 2006 and was declared successful. A year after in

2007 petitioner took an additional subject of Biology with practicals and

appeared privately during the Session 2007 and qualified the additional

subject of Biology. The petitioner has contended that U.P. Board High

School and Intermediate Education has issued an appropriate

certificate to him for Biology as well, after issuing the Intermediate

Examination 2006 certificate.

3. The petitioner appeared in All India Pre Medical Entrance

Examination for admission to MBBS/BDS courses and was successful

by obtaining All India rank of 1435 and category rank of 1421. The

petitioner asserted that he took the medical entrance examination as a

OBC candidate but as per his merit he has qualified against an

unreserved seat also.

4. The petitioner contended that the Intermediate examination of

U.P. Board is recognized under the Bulletin of Information issued for All

India Pre Medical Entrance Examination 2009 and para 8 of the

Bulletin of Information detailed the qualification and qualifying

examination Codes.

5. The petitioner pleas is that he has a requisite certificate of

Intermediate examination as specified under para 8, Code 2. After being

declared successful as he obtained a good rank on merit, petitioner

went for counseling as per his merit ranking against an unreserved seat

which was scheduled for 12th June, 2009 to 20th June, 2009. The

petitioner had been called for counseling by letter dated 5th June, 2009

and the venue for counseling was at Mumbai.

6. The petitioner contended that he participated in the counseling

and a composite list of allotment of seats for MBBS course was

circulated on website on 20.06.2009, however, against the name of the

petitioner, a cross mark was put and he has not been allotted a seat of

his choice. The petitioner also contended that no valid reason was

communicated for not granting him admission to MBBS course.

7. The petitioner filed the present writ petition on 8th July, 2009

seeing direction to the respondents to include the petitioner‟s

candidature for MBBS Course in second round of counseling scheduled

with effect from 8th July, 2009 and allot a seat in the MBBS Course in

the college of his choice.

8. The petitioner also contended the eligibility criteria for appearing

in All India Pre Medical Entrance Examination is based on the criteria

issued by Medical Council of India. The eligibility criteria given by

Medical Council of India and as given in the Bulletin of Information are

as under:-

BULLETIN OF INFORMATION                MEDICAL COUNCIL OF INDIA

"(v) Qualifications        and                    "CHAPTER II
Qualifying examination Codes:
                                       ADMISSION, SELECTION,
Code : 01                              MIGRATION AND TRAINING:-

The Higher/Senior Secondary 4. Admission to the Medical Examination or the Indian School Course - Eligibility Criteria: No Certificate Examination which is candidate shall be allowed to be equivalent to 10+2 admitted to the Medial Curriculum Higher/Secondary Examination of first Bachelor of Medicine and after a period of 12 years study, Bachelor of Surger (MBBS) course the last two years of such study until:

comprising Physics, Chemistry, Biology (which shall include (1) He/she shall complete the practical texts in these subjects) age of 17 years on or before 31st and Mathematics or any other December of the year admission to elective subject with English as the MBBS course;

prescribed by the National Council (2) He/she has passed of Education Research and qualifying examination as under:-

Training after introduction of the
10+2+3 educations structure as         (a)    The    higher     secondary
recommended by the National            examination or the Indian School
Committee on Education.                Certificate Examination which is
                                       equivalent    to    10+2     Higher
                   OR                  Secondary Examination after a
CODE : 2                               period of years study, the last two
                                       years of study comprising of
The    Intermediate/Pre-degree         physics, Chemistry, Biology and
Examination in Science of an           Mathematics or any other elective
Indian   University/Board   or         subjects with English at a level not
other  recognised    examining         less than the core course for
body with Physics, Chemistry,          English as prescribed by the

Biology (which shall include National Council for Educational practical test in these subjects) Research and Training after the and English. introduction of the 10+2+3 years educations structure as OR recommended by the National CODE : 03 Committee on education;

The Pre-professional/Pre-medical Note: Where the course content is Examination with Physics, not as prescribed for 10+2 Chemistry, Biology & English after education structure of the National passing either the Higher Committee, the candidates will have to undergo a period of one Secondary Examination or the Pre-

University or an equivalent year pre-professional training examination. The pre- before admission to the Medical colleges;

professional/Pre-medical
examination shall include practical                    OR
test in these subjects.
                                       (b)   The           intermediate
                   OR                  examination in science of an
                                       Indian    University/Board    or
CODE : 04
                                       other   recognized    examining
The first year of the three years‟     body with Physics, Chemistry
degree course of a recognized          and Biology which shall include
University with Physics, Chemistry     a practical test in these
and Biology including practical        subjects and also English as a
tests in these subjects provided       compulsory subject;
the examination is a University
Examination and further that                           OR
he/she has passed the earlier          (c)   The      pre-professional/pre-
qualifying    examination    with      medial examination with Physics;
Physics, Chemistry, Biology and        Chemistry and Biology, after
English.                               passing     either     the    higher
                   OR                  secondary school examination, or
                                       the pre-university or an equivalent
CODE : 05                              examination.            The      pre-
                                       professional/pre-medical
B.Sc. Examination of an Indian         examination     shall    include    a
University provided that he/she        practical    test     in     Physics,
has passed the B.Sc. Examination       Chemistry and Biology and also
with not less than two of the          English as a compulsory subject;
subjects    Physics,    Chemistry,
Biology (Botany, Zoology) and                          OR
further than he/she has passed
the earlier qualifying examination (d)       The first year of the three

with Physics, Chemistry, Biology years degree course of a recognized and English university with Physics, chemistry and Biology including a practical OR test in three subjects provided the CODE : 06 examination is a "University Examination" and candidate has Any other examination which is passed 10+2 with English at a scope and standard (Last 02 years level not less than a core course;

of 10+2 Study comprising of
Physics, Chemistry and Biology;                     OR
which shall included practical test (e)    B.Sc examination of an

in subjects.) is found to be Indian University, provided that equivalent to the Intermediate he/she has passed the B.Sc Science Examination of an Indian examination with not less than two University/Board, taking Physics, of the following subjects Physics, Chemistry and Biology including Chemistry, Biology (botany, practical tests in each of these Zoology) and further that he/she subjects and English. has passed the earlier qualifying examination with the following Provided that to be eligible for competitive entrance examination, subjects - Physics, Chemistry, candidate must have passed any of Biology and English.

the qualifying examinations as                         OR
enumerated above. Provided also
that to be eligible for competitive    (f)   Any    other    examination
entrance       examination       the   which, in scope and standard is
candidate must have passed in the      found to be equivalent to the
subjects of Physics, Chemistry,        intermediate science examination
Biology and English individually       of an Indian University/Board,
and must have obtained a               taking Physics, Chemistry and
minimum of 50% marks taken             Biology including practical test in
together in Physics, Chemistry and     each of these subjects and
Biology     at     the    qualifying   English.
examination.     In respect of the
candidates belonging to Scheduled      Note:
Castes, Scheduled Tribes or Other             The pre-medical course may
Backward Classes the marks             be conducted either at Medical
obtains in Physics, Chemistry and      college or a Science Course.
Biology     taken     together    in
qualifying examination be 40%                Marks      obtained      in
instead of 50% for General             Mathematics are not to be
Candidates.                            considered for admission to MBBS
                                       Course.
Provided further that the students
of Indian nationality educated                 After the 10+2 course is

aboard seeking admission into introduced, the integrated course medical colleges in India must should be abolished." have passed in the subjects of Physics, Chemistry, Biology and English upto the 12th standard level with 50% marks and their equivalency determined as per regulation of the Medical Council of India and the concerned University. If a candidate does not fall within the qualifications prescribed as per Code number 01-06 he/she should furnish complete details to determine eligibility."

9. According to the petitioner, he fulfills the eligibility criteria set out

by Medical Council of India and as stipulated in the Bulletin of

Information and as he is entitled for admission according to his merit

ranking. The petitioner has contended that though he is entitled for

admission but he was verbally communicated that since he had not

studied Biology during the last two years of study in the Intermediate

course, therefore, he cannot be allocated a seat in the MBBS course.

The petitioner also contended that on the basis of similar certificates as

possessed by the petitioner, many candidates have participated in Pre

Medical Entrance Examination and no such objection has been raised

in case of such other candidates, as has been raised in case of

petitioner.

10. The writ petition is contested by the respondent/Medical Council

of India who filed a short affidavit contending inter alia that Medical

Council of India (MCI) is a statutory authority created and constituted

by Central Government under an Act of Parliament, namely, Indian

Medical Council of India Act, 1956. According to the MCI, it has been

given the responsibility of maintenance of highest standard of medical

education. The MCI has framed various regulations with the prior

approval of the Central Government for laying down the minimum

norms and requirement. It is contended that Regulations of MCI on

various occasions put to judicial scrutiny and the Supreme Court

through its various pronouncements has held that the regulations as

framed by the MCI with the prior approval of the Central Government

are statutory in character and are binding and mandatory.

11. Relying on Chapter II, relating to admission, selection, migration

and training, it is contended that to be eligible, a candidate should have

undergone 10+2 examination, i.e., 12 years of study, where the last two

years of study should comprise of Physics, Chemistry, Biology and

Mathematics or any other elective subject with English. It has been

asserted that a candidate for PMT examination is obliged not only to

qualify his senior secondary examination with Physics, Chemistry,

Biology and English but should also obtain a minimum 50% marks in

Physics, Chemistry, Biology subjects taken together and having passed

English as one of the compulsory subjects. Relying on the regulations

for admission, it is contended that a student must have undergone

regular and co-terminus/simultaneous teaching and training in the

subjects of Physics, Chemistry and Biology in his/her Senior Secondary

Examination (10+2) and last two years of study should comprise of

these subjects as regular subjects and not as optional subjects, passing

of which is mandatory for a candidate to be treated as having passed

the said senior secondary (10+2) examination, as per the statutory

regulations.

12. The Medical Council of India has asserted that study of Biology

should be for a period of two years in 11th and 12th standards, in 10+2

pattern and since the petitioner has not undergone regular study of

Biology in 11th and 12th standard in all the science subjects, especially

Biology, he is not eligible to get admission to the MBBS course.

13. The respondent No.3 also contended that there is a qualitative

difference between undergoing studying and training as a regular

student and securing qualification as a private student without regular

teaching and training throughout the prescribed duration in the

required seats. According to MCI, the entire scheme of statutory

regulation of the MCI clearly lays down that the candidate concerned

has to undergo regular teaching and training in 11th and 12th standard

Admission in medical courses in the All India quota is the exclusive

responsibility of the Director General of Health Services, Government of

India and for the State quotas it is the competent State/University

authorities. From the total seats of all the medical colleges all over the

country, as per the directions of the Supreme Court, 15% of those seats

are to be filled up on all India basis. Relying on para 8 of the Bulletin of

Information for All India Pre Medical Entrance Examination 2009, it is

contended that the merit list is to be prepared on the basis of clauses of

the regulation on Graduate Medical Education, 1997 under which a

candidate for a PMT examination is obliged not only to qualify his senior

secondary examination with Physics, Chemistry, Biology and English

but must also obtain 50% marks taken together in three subjects and

he/she should have undergone two years of study in these subjects.

14. Relying on the decision in Raghukul Tilak v. Union of India &

Another in W.P.C. No.12487/2006, it is contended that a candidate who

had passed 12th examination conducted by Board of Secondary

Education, Rajasthan, in the year 2000 with the subjects of Physics,

Chemistry, Mathematics, Hindi, English and Computer Science as an

additional subject but who had not studied Biology for two years was

held to be not eligible though the candidate had appeared in All India

PMT Examination in the year 2006 and had secured a rank of 1600.

Reliance has also been placed on the decision of the Division Bench in

LPA No.2033 of 2006 titled Raghukul Tilak v. Union of India and

another decided on 31st May, 2007 reported as AIR 2007 Delhi 237. It

is also contended that in a Special Leave Petition (Civil) NO.13571/2007

titled Raghukul Tilk v. Union of India and Others was filed against the

decision of the Division Bench which was also dismissed.

15. The MCI also contended that qualification as enunciated in the

Information Bulletin issued by Central Board of Secondary Education

for the entrance examination are in conformity with the statutory

regulations of the MCI and since the petitioner has not undergone

regular teaching and training/practical in the subject Biology as part of

his regular course curricula for classes 11th and 12th along with Physics

and Chemistry, therefore, he is not eligible for admission to MBBS

course.

16. A counter affidavit has also been filed on behalf of Director

General of Health Services taking the similar pleas as has been raised

by the Medical Council of India besides the plea that at the time of

applying for All India Pre Medical/Pre Dental Examination to Central

Board of Secondary Education which conducts the entrance

examination, the candidates are not required to submit all the originals

or photocopy of the certificate and mark sheet and the eligibility of the

candidate is examined only at the time of counselling on the basis of

original documents brought by the candidates. It was contended that

the petitioner appeared for counselling on 20th June, 2009, however,

while verifying his education certificate, it was found that the petitioner

did not possess the qualification required for admission to MBBS/BDS

course as fixed by MCI. It is contended that his case was also examined

by the Allotment Committee Members with reference to aforesaid

regulations of MCI and he was not allowed to attend the counselling as

he had not studied Biology subject for a mandatory period of two years.

17. The pleas and contentions raised by the respondents in the

counter affidavits were refuted by the petitioner who filed the rejoinder

affidavit contending inter alia that the petitioner had applied under

clause 8 (V) Code 2 and he is fully eligible as the eligibility is pari

materia with Regulation 4(2)(b) of Medical Council of India Regulation.

It is contended that the regulation framed by Medical Council of India

qua the rules published do not bar a candidate on the basis of

qualifying intermediate examination with Biology as an additional

subject through U.P. Board. The petitioner also contended that after

passing the intermediate examination, he had opted for an additional

subject, Biology in the year 2007 and the course of additional subject is

co-extensive and rather same can be compared to what is taught during

regular study of intermediate. The petitioner pointed out that he

underwent the practical along with the regular students of intermediate

course and he did not joint any other course during the year 2007.

The petitioner also contended that CBSE Board offers the choice of all

the subjects, namely, Physics, Chemistry, Mathematics and Biology

during the course of two years study, however, in U.P. Board

intermediate education, the Mathematics with Biology is not permitted

and therefore for the students to become eligible to appear in the

entrance test of medical education, he/she is bound to undergo the

studies of additional subjects, namely, Biology for a period of one year

along with the practical tests conducted by the respective institutions.

The petitioner categorically asserted that the course of Biology

prescribed by the intermediate Board as additional subject is same for

the Biology as a regular subject and, therefore, the petitioner is eligible

under Rule 8 (v) Code 2.

18. Learned counsel for the petitioner also relied on Harsh Pratap

Sisodia v. Union of India and others, (1999) 2 SCC 575 to contend that

the petitioner is eligible for admission to MBBS course. The learned

counsel also relied on (1979) 1 SCC 572, State of Kerala v. Kumar T.P.

Roshana and another ; (1980) 2 SCC 768, Dr. Jagadish Saran and

Others v. Union of India; (1993) 3 SCC 332, Sharwan Kumar and others

v. Director General of Health Services; another and (1995) 4 SCC 104,

State of Tamil Nadu and Another v. Adhiyaman Educational & Research

Institute and Others and (1976) 3 SCC 334, The Regional Manager and

Another v. Pawan Kumar Dubey in support of pleas and contentions on

behalf of the petitioner.

19. The learned counsel for the parties were heard in detail and the

writ petition, replies to show cause notices and rejoinder and

documents have been perused and considered in detail. Learned

counsel for the respondents has relied on (2001) 8 SCC 427, Medical

Council of India v. Sarang and Others to contend that in matters of

academic standards, Court should not normally interfere or interpret

the rules and subject matters should be left to the experts in the filled.

Referring to Harsh Pratap Sisodia (supra) relied on by the petitioner, it

is contended that the Supreme Court in that case had decided the

objection of Maharashtra State regarding passing the qualifying

examination "in one and the same attempt" having no application to the

candidates who qualify the entrance examination against 15% all India

quota. The Supreme Court had not decided that a candidate who does

not undergo two years of regular study for an additional subject and

who undergoes only one year of studies of a subject as an additional

subject will be eligible under the regulations of medical Council of India.

Therefore, on the basis of the ratio of said precedent, it cannot be held

that the petitioner is eligible. Learned senior counsel, Mr. Singh, also

relied on (1991) 4 SCC 139, State of U.P. and Another v. Synthetics

and Chemicals Ltd. and another to contend that a decision which is not

express and is not founded on reason nor proceeded on consideration of

issue, cannot be termed to be a law declared to have a binding effect as

is contemplated under Article 141. Reliance was also placed by learned

senior counsel on AIR 1989 SC 38, Municipal Corporation of Delhi v.

Gurnam Kaur to contend that pronouncements of law which are not

part of the ratio decidendi are classed as obiter dicta and are not

authoritative.

20. In State of Kerala v. Kumar T.P. Roshana and another (supra)

relied on by the petitioner, it was held by the Supreme Court that the

selection criteria on comparison of marks obtained by candidates in

different qualifying examination conducted by different university with

different standards, question papers and set of examination, will not be

discriminatory so as to violate Article 14. The Supreme Court held that

university wise allocation of seats in admission to medical college within

the State is not discriminatory. The Supreme Court had rather held

that benefit of reliefs granted by court should not be extended only to

those affected persons who had moved the court but should be

extended to those affected persons also who did not move the court. The

ratio of the case relied on by the petitioner does not advance the plea of

the petitioner that he is eligible for admission to the course of MBBS

despite not having qualified Biology as regular subject with two years of

study but qualifying the subject in one year as a private student.

21. In Dr, Jagadish Saran and Others (supra), the dispute was

whether 70% of the reservation of seats by Delhi University in its

medical courses was excessive or not. The Supreme Court had,

however, held that no definite decision could be taken on account of

scanty, fragmentary and unsatisfactory material given by the petitioner

despite the sufficient opportunities given to the parties. The Supreme

Court, however, directed the University to appoint a Committee who

was bound to investigate in depth the justification for and quantum of

reservation at the Post Graduate level from the angle of equality of

opportunity for every Indian taking into consideration other

constitutionally relevant criteria. The ratio of said judgment is also of

not any help to the petitioner. The sole question in the case of petitioner

is whether he is eligible are not for admission to the course of MBBS

despite not having undergone the study of the subject biology for two

years with practical. The petitioner has studied biology as an additional

subject for one year only.

22. In Sarwan Kumar (supra), the Supreme Court had approved the

scheme prescribing the procedure to be followed for allotment of 15% all

India Quota for admission to MBBS/BDS courses in various colleges in

the Country. In State of Tamil Nadu and another (supra), the Supreme

Court had held that the State Acts cannot lay down standards and

requirements higher than those prescribed by the Central Act for

technical educational institution and cannot deny situations/seats to

applicants on the ground that they do not fulfill such higher standards

and requirements. In this case, the short question involved was

whether after coming into force of All India Council for Technical

Education, the State Government had the power to grant and withdraw

permission to start a technical institution as defined in the Central Act.

It was held that if the supervision on the basis of Central Statute on one

hand and of the State Statute on the other, is inconsistent and

repugnant to each other, then the Central Statute will prevail and de-

recognition of the State government or dis-affiliation by the State

University on grounds which are inconsistent with those enumerated in

the Central Statute will be inoperative. In The Regional Manager and

Another v. Pawan Kumar Dubey (supra) relied on by the petitioner, the

Supreme Court was concerned with the question of reversion from the

post of Senior Station In-charge to a substantive post of Junior Station

In-charge which order was passed as a measure of punishment. The

Supreme Court had elaborated about the ratio decindedi of a case,

holding that it is the rule deducible from the application of law to the

facts and circumstances of a case which constitute its ratio decidendi

and not some conclusion based upon facts which may appear to be

similar. It was held that one additional or different fact can make a

world of difference become conclusion in two cases even when the same

principles are applied in each case to similar facts. The ratio of any

decision must be understood in the background of the facts of that

case. What is of the essence in a decision is its ratio and not every

observation found therein nor what logically follows from the various

observations made in it. It must be remembered that a decision is only

an authority for what it actually decides. It is well settled that a little

difference in facts or additional facts may make a lot of difference in the

precedential value of a decision. In Bhavnagar University v. Palitana

Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59), the Supreme had

observed:-

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The Supreme Court in Bharat Petroleum Corporation Ltd and

Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had also held that a

decision cannot be relied on without considering the factual situation.

In the same judgment the Supreme Court also observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

23. The petitioner has contended that under Code 2 of clause 8 (v) of

Bulletin of Information, the eligibility condition of study of last two

years of Biology, Physics, Chemistry is not provided. What is provided is

that a candidate should have obtained his intermediate/pre degree

examination in science of an Indian University/Board or other

recognized examining body with Physics, Chemistry and Biology which

should include practical tests in these subjects and English. It is

asserted that two years of study as provided in Code 1 is not provided

in Code 2 and therefore, this condition cannot be read in Code 2 of

clause 8 (v) of Bulletin of Information. The learned counsel has

contended that the U.P Board from where the petitioner has done his

intermediate had not permitted Mathematics with Biology and,

therefore, the petitioner had Physics, Chemistry and Mathematics in

2006 when he passed the intermediate examination and, thereafter he

studied Biology as a regular subject and attended the practical and

qualified the Biology also and was awarded a certificate to that effect in

2007.

24. Under Code 1 of clause 8 (v) of Bulletin of Information which

contemplates higher/senior secondary examination or the Indian school

certificate examination equivalent to 10+2 higher/senior secondary

examination after a period of 12 years study, the last two years study

should be of Physics, Chemistry, Biology which should also include

practical tests. A student who had done 10+2 with Physics, Chemistry,

Mathematics, Hindi and English and thereafter who had studied

Biology as an additional subject and had qualified the additional

subject in the regular examination and not in a supplementary

examination, a dispute had arisen about his eligibility for admission to

the MBBS course as he had not studied Biology for two years in the

case of Raghukul Tilak v. Union of India and Anr,

MANU/DE/9184/2006. The plea raised was that the insistence on the

last two years of study in each of the subjects is not essential which

point of view was also supported by Central Board of Secondary

Education. However, Medical Council of India had insisted on last two

years study in each subject being essentially on the premise that such

two years study necessarily assimilates with periodic practicals,

evaluation of the student and his aptitude in such activity, which is

vital for a student of medicine. The Medical Council of India had also

submitted that such insistence is not an empty or ritualistic exercise

but a matter of standards having regard to the nature of medical

education. The Single Judge of this Court relying on the decision of the

Supreme Court in State of Tamil Nadu & Anr v. Adhiyaman Educational

and Research Institute, (1995) 4 SCC 104 and other precedents had

noted the need to adhere to standards, and not to permit deviations,

even statutory deviations prescribed by academic bodies, other than the

technical or expert organization empowered to do so. The Supreme

Court had held:-

"............As pointed out earlier, so far as technical institutions are concerned, the norms and standards and the requirements for their recognition and affiliation respectively that the State Government and the University may lay down, cannot be higher than or be in conflict and inconsistent with those laid down by the Council under the Central Act. Once it is accepted that the whole object of the Central Act is to determine and coordinate the standards of technical education throughout the country, to integrate its development and to maintain certain standard in such education, it will have to be held that such norms, standards and requirements etc will have to be uniform throughout the country. Uniformity for the purposes of coordinated and integrated development of technical education in the country necessarily implies a set of minimum standards the fulfillment of which should entitle an institution and its alumni, titles, degrees and certificates to recognition anywhere in the country."

25. In Raghukul Tilak (Supra) it was held that though the

interpretation that a student who does not undergo training for two

years in any of the three subjects but who qualifies in some subsequent

additional or supplementary examination would also be eligible,

appears to be tenable, on a textual interpretation of Code 1 and Code 6

of clause 8 (v) of Bulletin of Information. However on wider

consideration of other codes such construction is impermissible as

proviso to Code 6 clause 8 (v) dealing with students of Indian

nationality who study abroad, it is apparent that they should have

qualified in all the three subjects after having studied up to 12th

standard in those subjects after having studied for two years and

consequently the continuous nature of education for last two years is

essential in the facts and circumstances. In the circumstances the

interpretation placed by MCI was given preference to the other

interpretations and construction and such a candidate was held to be

not eligible for admission to MBBS course who had not studied Biology

for two years with practical. In an appeal filed against the said order,

the Division Bench in AIR 2007 Delhi 237, Raghukul Tilak v. Union of

India had held that the candidate did not fulfill the eligibility criterion

mentioned in Code 1 of clause 8 (v) which contemplated that the

student should have studied Biology in last two years before he

qualified Senior Secondary Examination. The candidate Raghukul Tilak

had not studied Biology for two years, therefore, it was held that he did

not meet the eligibility criterion and merely passing in the subject of

Biology in Class 12 does not satisfy the eligibility criterion. The decision

of the Division Bench was upheld by the Supreme Court and the

Special Leave Petition No.13571/2007 was dismissed by order dated

17th August, 2007.

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. This is not the case of the petitioner that none of the students who

opted for subject Biology in intermediate examination were required to

study Biology for two years. The petitioner had an option to study

Biology with Chemistry and Physics for two years with practical,

however, he opted not to study Biology for two years and instead took

Mathematics as a subject for two years study. Had the petitioner opted

for Biology as a regular subject he would have been eligible. The

requirement of MCI cannot be whittled down or diluted on account of

conscious act of the petitioner.

27. A Single Judge of this Court in Rubab v. Medical Council of India,

W.P (C) No.2985/2008 decided on 5th November, 2008 had held that a

candidate who passed the intermediate examination with subjects

Physics, Chemistry and Mathematics as a regular candidate and

thereafter, passed the intermediate examination in subject Biology

including practical test which was permissible by the U.P Board, shall

not be eligible for admission to M.B.B.S course relying on Raghukul

Tilak (Supra) by the Single Judge and the Division Bench.

28. Therefore, for the foregoing reasons the decision of the

respondents not to admit the petitioner in the MBBS course despite

having a merit ranking in the entrance examination on the ground that,

he is not eligible as he had not done Biology for two years in

intermediate examination, cannot be faulted.

30. The writ petition is, therefore, without any merit and it is

dismissed. Parties are, however, left to bear their own costs.

August 31, 2009                                         ANIL KUMAR, J.
„Dev‟