Madras High Court
N.Manikandan vs The Chairman on 16 May, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P(MD)No.26208 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 30.04.2024
Pronounced On : 16.05.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.26208 of 2023
and
W.M.P.(MD)No.22560 of 2023
N.Manikandan ... Petitioner
Vs.
1.The Chairman,
National Medical Commission,
Pocket-14, Sector-8,
Dwarka Phase-1,
New Delhi-110077.
2.The Secretary,
National Medical Commission,
Pocket-14, Sector-8,
Dwarka Phase-1,
New Delhi-110077.
3.The Director,
Under Graduate Medical Education Board,
Pocket-14, Sector-8,
Dwarka Phase-1,
New Delhi-1100077. ... Respondents
1/14
https://www.mhc.tn.gov.in/judis
W.P(MD)No.26208 of 2023
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus, to
call for the records pertaining to the impugned order of the 3rd
respondent in No.U.15024/10/2023-UGMEB-Pt.III/053827 dated
12.10.2023 and quash the same and subsequently directing the
respondent to issue eligibility certificate, hall ticket and allow the
petitioner to participate in the screening test of Under Graduate Medical
Education Board which is scheduled to be held in the month of
December,
For Petitioner : Mr.R.Ramsundarvijayraj
For Respondents : Mrs.Shubharanjani Anath
for R1 & R2
ORDER
Heard both sides.
2. The petitioner was born on 12.01.2001. He completed the
Higher Secondary Course in March 2017. He applied to a Medical
College in Ukraine and got admitted in September 2017. He joined the
course on 18.10.2017 and completed the six years' medical course on
21.06.2023. When he applied for screening test to be conducted by the
National Medical Commission, he was informed vide communication
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dated 12.10.2023 that his request was rejected, since he did not complete
the minimum age for admission in MBBS. The petitioner was short of 17
years by 11 days. Challenging the said communication, the present writ
petition came to be filed.
3. The learned counsel appearing for the petitioner reiterated all
the contentions set out in the affidavit filed in support of the writ petition
and called upon this Court to set aside the impugned communication and
grant relief as prayed for.
4. The learned standing counsel for the second respondent
submitted that the impugned order does not warrant interference. She
drew my attention to the Graduate Medical Education Regulations issued
by the Commission and contended that the candidate must have
completed 17 years in the month of December in the year in which
admission was sought. Since the petitioner fell short by 11 days, the
petitioner's request for exemption was rightly negatived. She drew my
attention to the order dated 07.09.2021 made in W.A.No.1892 of 2021
(National Testing Agency Vs. Minor SP.Shree Harini). A learned Judge
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of this Court granted relief in favour of the candidate. The National
Testing Agency filed the aforesaid writ appeal and the Hon'ble Division
Bench set aside the order of the learned single Judge and allowed the writ
appeal. My attention was also drawn to a few other precedents by the
learned standing counsel. She wanted me to dismiss the writ petition.
5. I carefully considered the rival contentions and went through the
materials on record. When a similar issue was raised before me in W.P.
(MD)No.3913 of 2019, I disposed of the writ petition on 01.02.2023 by
permitting the petitioner to submit a fresh representation before the
authority. The Hon'ble Division of the Rajasthan High Court vide order
dated 08.03.2018 in Writ No.455 of 2018 (Medical Council of India Vs.
Thakra Ram & other) had held that the refusal of eligibility certificate
solely on the ground that the candidate had not completed 17 years of age
in the year of admission to the medical courses may not be justified. The
Hon'ble Division Bench sustained the indulgence shown by the learned
single Judge and the writ appeal filed by the Medical Council of India
was dismissed. Of-course, the Hon'ble Division Bench of the Madras
High Court in W.A.No.1892 of 2021 had struck a different note. But that
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was a case relating to writing NEET (UG) 2021 examination. The case
on hand is different. The petitioner had already completed the medical
course. The petitioner had joined in an overseas college in the year 2017.
The petitioner did not seek admission in MBBS course. He had already
completed the medical course conducted by a college established
overseas. He now only wants to write the screening test.
6. Though the learned standing counsel for the Medical
Commission initially opposed the petitioner's request by pointing out that
the petitioner had joined the overseas college without writing NEET, the
said objection was not subsequently pressed. This was in view of the
decision of the Hon'ble Division Bench of the High Court of Delhi
rendered on 27.09.2018 in W.P.(C) 8091 of 2018 etc, (Shahul Hamed K.S
and others Vs. Medical Council of India). In fact, the requirement of
qualifying in NEET became mandatory even for candidates seeking
admission in the overseas institutions only from the academic year
2019-2020.
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7. A learned Judge of this Court vide order dated 13.03.2020 in
W.P.No.27709 of 2018 (D.Sasirekha Vs. The Assistant Secretary) held
as follows:-
8. This Court does not find any major controversy regarding the
facts of the case. It is a fact that the petitioner at the time of joining the
MBBS course in Ukrine had completed only 16 years 11 months and 18
days and she had not completed 17 years as per the requirements in the
regulations. The petitioner had joined the course in the year 2012 and
she had applied for the eligibility certificate before the respondent only
on 09.10.2013. The petitioner ultimately completed the course in the
year 2018. In the meantime the respondent had rejected the eligibility
certificate sought for by the petitioner through the impugned letter
dated 06.04.2016.
9. The Andhra Pradesh High Court had an occasion to deal with
a very similar case wherein the petitioner therein also did not complete
17 years on the date of joining and the eligibility certificate sought for
by him was also rejected. Under such circumstances, the Andhra
Pradesh High Court in the case of Vanama Sri Venkata Dheeraj vs. The
Uion of India, rep. by its secretaty in W.P.No.36316 of 2015 dated
22.08.2016 held as follows:
However, vide impugned letter dated 10.09.2015, the
petitioner has received communication from the respondent
that as per the regulation of the Council, the petitioner has
not completed the age of 17 years on or before 31st
December of the year of admission, and therefore, the
petitioner is not eligible to receive eligibility certificate.
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Learned counsel for the petitioner submits that a similar issue
came up for consideration before a Division Bench of
Allahabad High Court reported in Ankit Chaturvedi vs.
Union of India and other (2014 Law Suit (all) 814) wherein,
the petitioner therein was admitted to MBBS course in
Universal College of Medical Sciences, Nepal in the
academic year 2004-05. He did not apply and obtain the
eligibility certificate from the Medical Council of India
before seeking admission and pursuing his studies. An
application was made by him on 16.09.2009 to the Medical
Council of India for eligibility certificate after a period of
four years after he was admitted to the Medical College in
Nepal. But the application was rejected by the Medical
Council of India on the ground that he had not completed 17
years of age on or before 31st December of the year of his
admission.
The Division Bench of High Court of Allahabad while
relying upon other cases, observed as under:
“In the cases of Ms. Bhagwasri Goli and other similar placed
cases considered by the Board of governors in its meeting
dated 27.09.2012, provisional certificate was granted despite
the fact that she had not completed 17 years of age at the
time of admission in MBBS course. The explanation was
that she had applied and erroneously issued eligibility
certificate. He case and the other cases, in which provisional
registration was granted, are not similar to the case of the
appellant (therein). The resolution of the board of Governors
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of Medical Council of India in its meeting dated 27.09.2012
in the matter of Ms. Bhagysri Goli is quoted as below:-
“Consideration for grant of Provisional Registration to
Ms.Bhagyasri Golia and other similarly placed cases wherein
provisional Registration and/or Eligibility Certificate was
issued by the Medical Council of India to the candidates who
did not complete the age of 17 years at the time of admission
in MBBS course. The board of governors further decided that
this will not be considered as precedence in future and the
Eligibility Section should be careful in issuing Eligibility
Certificate to the candidates and ensure that all requirements
are fulfilled by the candidate (s) as per provisions of the
Graduate Medical Education Regulations, 1997. The Board
of Governors further decided that candidates aspiring to
pursue MBBS course from Medical College/university
abroad be informed that it is necessary to obtain Eligibility
Certificate before proceeding for admission and they must
fulfill all requirements in terms of the eligibility criteria”.
In para-18, it is opined that there was no requirement as
prescribed under clause 4(1) of the Graduate Medical
Education Regulations, 1997 for completing 17 years of age
before applying and taking admission.
Learned counsel for the petitioner submitted that the
petitioner is now going to complete 24 years of age in the
month of September and he is now eligible for issuance of
eligibility certificate, which does not give him the licence to
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practice. He has appeared for screening test, and if he gets
admission, only thereafter, he can pursue his PG course and
practice in India.
Learned Standing counsel for the respondents filed counter
affidavit and contends that the present petition is contrary to
the statutory, mandatory and binding regulations framed by
MCI with the prior approval of the Government of India.
The respondent-MCI, which is a statutory authority
constituted by the Central Government under an Act of
Parliament, namely, Indian Medical Council Act, 1956.
The duty of the MCI is to maintain the highest standard of
medical education and, as such, the Supreme Court in case of
State of Kerala vs. T.P.Roshana [(1979) SCC 580] had
observed as under:
“..the Indian Medical Council Act, 1956 has constituted the
Medical Council of India as an expert body to control the
minimum standards of medical education and to regulate
their observance. Obviously, this high~powered
council has power to prescribe the minimum standards of
medical education. It has implicit power to supervise the
qualifications or eligibility standards for admission into
medical institutions. Thus, there is an overall invigilation by
the Medical Council to prevent sub-126;standard entrance
qualifications for medical courses..”;
Learned Standing Counsel further submits that the
Regulations of Medical Council of India have binding effect
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as has been decided by the Apex Court. Accordingly, the
case of the petitioner has been rejected on the ground that he
had not applied for eligibility certificate before entering
education into MBBS course.
Heard learned counsel for the parties.
It is not in dispute that in certain cases, the Medical Council
of India has granted exemption to the applicants for grant of
eligibility certificate when they had taken admission at the
age of less than 17 years. Accordingly, the High Court of
Allahabad directed the respondent that the required
consideration shall be made by the Board of Governors of
Medical Council of India, preferably, within a period of three
months.
In another judgment of Delhi High Court reported in batch of
petitions, WP(C) No.18600 of 2005 in case of Jishalakshi
Embrandiri and others vs. Medical Council of India and
others, wherein, on a similar circumstances vide its judgment
dated 05.04.2006 allowed the petition and directed the
respondents to issue eligibility certificate. The cases
mentioned above attained the finality as not challenged by
the respondents.
This Court put a specific query to the learned counsel for the
respondents that in case of Ankit Chaudary (supra) the
petition therein was allowed and thereafter Jishalakshi
Embrandiri (supra), as noted above was also allowed.
moreover, in the other case as discussed above, Medical
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Council of India had relaxed the age and accordingly, issued
the eligibility certificate.
....
In view of the above discussion and the facts and
circumstances of the present case, I hereby direct the second
respondent-Medical Council of India to issue eligibility
certificate to the petitioner with two (2) weeks from the date
of receipt of a copy of this order.
10. The judgment was taken on appeal by the Medical
Council of India before the Hon?ble Supreme Court in SLP(C) No.
31683 of 2016. The Hon?ble Supreme Court, by an order dated
11.11.2016, refused to interfere with the orders passed by the
Andhra Pradesh High Court and the SLP was dismissed.
11. In the present case, it is seen that the petitioner was short
of 17 years only by 12 days when she joined the MBBS course. The
petitioner has also completed the course in the year 2018. It will be
too harsh to deny the eligibility certificate to the petitioner after the
petitioner has put in so much of effort and the difference in the age
was not too much and it only falls short by 12 days. For the purpose
of granting this relief, the judgment of the Andhra Pradesh High
Court also has a persuasive value and therefore, this court is inclined
to grant the same relief to the petitioner.
12. This Court has taken into consideration the peculiar facts
and circumstances and also of the fact that the petitioner had
completed her course which she under took for 6 years and she was
only falling short by 12 days from the fixed age limit. Therefore,
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this judgment cannot be taken as a precedent in any other case,
where a candidate falls short of the minimum age of 17 years fixed
by the regulations of the Medical Council of India.
13. The Andhra pradesh High Court, in the above judgment,
had made certain observations to the effect that the minimum age
limit of 17 years must be given a go bye and it should be
reconsidered by the Medical Council of India. In the considered
view of this Court, this observation runs contrary to the Division
Bench judgment of this Court in W.A.No.1270 of 2010 dated
28.06.2011, wherein, this Court had upheld the fixation of the age
limit as 17 years. To that extent, this Court is not in agreement with
the observations made by the Andhra Pradesh High Court. The
mandatory requirement of fixing 17 years as the minimum age for
joining the MBBS course cannot be relaxed at any point of time by
stating the present judgment as a precedent. This will apply to both
the cases where the application was made before the admission and
after the admission to the MBBS course.”
8. I am inclined to adopt the very same approach in this case also.
The petitioner in his written submission has pointed out that one
S.Kamesh and V.Chandru who also joined the very same University
(Uzzhord National University, Ukraine) in 2017, like the petitioner, were
issued with admit cards for participating in the screening test. I am
satisfied that the petitioner is identically placed and a different yardstick
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ought not to be adopted. The principle of parity is applicable in favour of
the petitioner. If the petitioner had to study MBBS course in India, then
obviously he would have had to write NEET and he should have fulfilled
the age qualification. During the relevant time, the petitioner was not
required to write NEET. The question of petitioner having to write the
qualification test for joining the medical course in an overseas institution
did not arise at all. The petitioner completed his six years course. If he
is denied relief at this point of time, it ruin him. In similar cases, relief
was granted. I do not want to take a different approach in this case. The
Division Bench decision relied on by the learned standing counsel for the
second respondent cannot be pressed into service because it was a case of
threshold admission. The impugned order is set aside. The second
respondent is directed to issue the eligibility certificate, hall ticket and
allow the petitioner to participate in the screening test as and when it is
held. The Writ Petition is allowed. No costs. Consequently, connected
miscellaneous petition is closed.
16.05.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
rmi
NOTE:Issue Order Copy on 17.05.2024
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
rmi
16.05.2024
https://www.mhc.tn.gov.in/judis
