Dr. Suhaila Saxena D/O Sunil Kumar ... vs Union Of India
2021 Latest Caselaw 645 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Writ Petition No. 11396/2020

Dr.Suhaila Saxena D/o Dr.Sunil Kumar Saxena R/o A-56A, Shanti
Path, Tilak Nagar, Jaipur - 302004.
                                                                     ----Petitioner
                                          Versus
1.      Union of India through Secretary, Ministry of Health and
        Family Welfare, having its office at Nirman Bhavan, C-
        Wing, New Delhi - 110001.
2.      Medical Council of India through the Secretary, Pocket-14,
        Sector-8, Dwarka Phase - 1, New Delhi 110077.
3.      National Board of Examinations through Joint Director
        (Medical),     Department             of    Examinations-Conduct        at
        Medical Enclave, Ansari Nagar, Ring Road, New Delhi-
        110029.
                                                                  ----Respondents


For Petitioner(s)          :     Mr.Bal Ram Vashisth, Advocate
For Respondent(s)          :     Mr.Ajay Shukla, Advocate
                                 Ms.Manjeet Kaur, Advocate for UOI


         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
                                      ORDER
Judgment Reserved on :                      9th December, 2020

Date of Order                    :          22nd January, 2021

By the Court:

This writ petition has been filed by the petitioner challenging

order (e-mail) dated 05.05.2020 passed by the National Board of

Examinations (hereinafter shall be referred to as 'NBE') declaring

the petitioner ineligible to appear in the next NEET PG

Examination.

2. The facts of the case, in the nutshell, are that petitioner has

completed her MBBS in March, 2019 from Nepalganj Medical

[CW-11396/2020] (2 of 18)

College, Nepal and applied for Foreign Medical Graduates

Examination (hereinafter shall be referred to as 'FMGE') in

December, 2019 and appeared in the examination for obtaining

permanent license/registration number.

3. The petitioner has pleaded that she was under the

impression that the students who are awaiting their results of

FMGE December, 2019 and have an internship till 31.03.2020 are

eligible to appear in NEET PG Examination, 2020. The petitioner

has pleaded that she applied and filled online application for NEET

PG Examination, 2020 (Application No.PG139214) wherein

information to be filled in about FMGE/MCI registration details was

optional and the students who were awaiting their results and

have not got their registration number from MCI but were in

process of allotment, were also eligible. The petitioner has placed

on record copy of her Application Form of NEET PG 2020 as

Annexure-3.

4. The petitioner has pleaded that after receipt of admit card

for NEET PG 2020, she learnt for the first time that in order to

appear in the Examination, she was to produce certain documents

like admit card, photo ID, permanent/provisional MCI registration

number, etc. The petitioner has pleaded that asking of this

information came as a surprise to the petitioner and being a law

abiding person, since she did not have any permanent/provisional

MCI registration number, as such, she voluntarily chose not to sit

and compete in the Examination.

[CW-11396/2020] (3 of 18)

5. The petitioner has pleaded that the above mistake was crept

in on account of ambiguous information bulletin for NEET PG 2020

and her inadvertence that she assumed herself to be an eligible

candidate to appear in NEET PG 2020. The petitioner has averred

in the petition that she did not fill in any wrong information in the

Application Form and the said mistake was truly a bona fide one.

6. The petitioner has further pleaded that she did not conceal

and suppress any material fact and voluntarily chose not to

appear in the Examination as she was not eligible, as the

documents required to be produced at the examination centre

were not in her possession. The petitioner has pleaded that she

furnished all the required information which a candidate could fill

in the online portal and there was no additional remark or

information box available wherein she could briefly write down the

clarification in the Application Form.

7. The petitioner has pleaded that she received a show cause

notice through e-mail dated 27.01.2020 wherein it was

communicated to the petitioner that she had mentioned the name

of one of the Medical Councils of the country and also the

registration number for registration of her MBBS qualification,

however, she did not upload the registration certificate documents

under SMC/MCI registration in NEET PG 2020 Application Form.

8. The show cause notice issued to the petitioner further

communicated that the petitioner was not registered with any

Medical Council in the country and she was yet to qualify FMGE

and, as such, she submitted false information regarding her SMC/

[CW-11396/2020] (4 of 18)

MCI registration in NEET PG 2020 Application Form. It was

communicated that as per NEET PG 2020 information bulletin

producing permanent/provisional registration with the Medical

Council or FMGE pass certificate, issued by NBE, is mandatory for

an Indian citizen to appear in NEET PG and as such, the petitioner

was asked to furnish a clarification explaining why she should not

be declared ineligible for NEET PG 2020.

9. The petitioner has further pleaded that she submitted a

detailed reply to the show cause notice and stated that she was

misinformed that students who were awaiting their FMGE

December, 2019 result and those who have internship till

31.03.2020, were eligible for NEET PG 2020. The petitioner has

also clarified that at the time of filling of the Application Form for

NEET PG 2020, furnishing of information about FMGE/MCI

registration, was completely optional and accordingly, the

petitioner skipped the said section. The petitioner also

communicated that after receipt of admit card and going through

the requirement of producing the compulsory documents, since

she did not have the permanent/provisional MCI registration

number, as such, she did not sit and compete in the Examination

held for NEET PG 2020.

10. The petitioner has further pleaded that she was in receipt of

another e-mail dated 27.02.2020 informing that the matter has

been referred to the NBE Examination Ethics Committee

(hereinafter shall be referred to as 'EEC') and as such, her matter

was to be presented before EEC with clarification offered by the

petitioner in response to the show cause notice. It was also

[CW-11396/2020] (5 of 18)

communicated to the petitioner that she had submitted false

information in the Application Form and as per NEET PG 2020

Information Bulletin, producing provisional/permanent registration

with the Medical Council or FMGE pass certificate issued by NBE

was mandatory. It was further communicated that as per the said

Information Bulletin, submitting of false information in the

Application Form amounts to resorting to use of unfair means.

11. The petitioner has pleaded that she submitted a detailed

representation to the effect that she has misread the Information

Bulletin for NEET PG 2020 due to which she had filled the

Application Form before passing FMGE December, 2019. The

petitioner has submitted that there is a wrong accusation that she

had put in any registration number for FMGE 2019 on behalf of

MCI, as the section was completely optional in the Application

Form and no documentary proof was submitted by her giving any

false information about FMGE December 2019. The petitioner

reiterated that she had left that section vacant as it was optional

to fill the same and she also did not compete in the Examination

held for NEET PG 2020 and as such, she had not furnished any

wrong information in her Application Form and same could be

verified from checking the Application Form submitted by her.

12. The petitioner has averred that after filing of the

representation, she received the impugned order (e-mail) dated

05.05.2020 communicating that she had resorted to furnish false

information regarding her registration with the Medical Council in

NEET PG 2020 Application Form and without having any

provisional/permanent registration with the Medical Council of

[CW-11396/2020] (6 of 18)

India, she applied for NEET PG 2020 and since the petitioner has

indulged in use of unfair means, and as per the Unfair Means

Guidelines provided in the Information Bulletin for NEET PG 2020,

making a false statement in the NEET PG 2020 Application Form,

amounts to unfair means and as such, the petitioner is debarred

from appearing in the next NEET PG Examination and result of the

petitioner for FMGE December, 2019 was declared wherein she

was declared pass.

13. Learned counsel for the petitioner has made following

submissions:-

(i) That the respondent No. 3 has passed the impugned

order (e-mail) dated 05.05.2020 in an illegal and arbitrary

manner without considering the relevant facts.

(ii) That the petitioner, from any stretch of imagination

cannot be held guilty of concealing and suppressing any

material information as the petitioner voluntarily did not

choose to appear in the Examination, since she was not

eligible as per the documents required to be produced at the

Examination Centre and debarring the petitioner on the

ground that she resorted to furnish wrong information, which

attracted the guidelines of unfair means is wholly perverse,

illegal and unjustified. Learned counsel submitted that had

the intention of the petitioner been to suppress or conceal

any material fact, she would have appeared in the

Examination.

[CW-11396/2020] (7 of 18)

(iii) That since the petitioner had left the Column in the

application with regard to giving information about FMGE

being optional and she did not furnish any information in the

same on online portal and there was no additional remark or

information box available wherein the petitioner could briefly

write down the clarification in the Application Form and, as

such the petitioner cannot be charged with the allegation of

furnishing false information resorting to the case of use of

unfair means.

(iv) That assuming though not admitting, the petitioner

filled the Application Form and since she did not write the

Examination, as such no third party right was affected of any

other candidate. The inadvertent error of the petitioner will

not result into use of unfair means while writing the

Examination or filling up the Application Form. Learned

counsel for the petitioner has also placed reliance on the

judgment dated 01.11.2017 passed by the Division Bench of

this Court in D.B.Civil Special Appeal (Writ)

No.1700/2017 (Kavita Choudhary Vs. The Registrar

(Examination), Rajasthan High Court, Jodhpur and

Anr.).

14. The National Board of Examinations- respondent No. 3 has

filed reply to the writ petition. The respondent has submitted that

the petitioner was not eligible to apply for NEET PG 2020 as per

clause 4.1(B) of the Information Bulletin for NEET PG 2020. The

respondent has submitted that the petitioner was neither FMGE

qualified nor registered with any Medical Council in the country at

[CW-11396/2020] (8 of 18)

the time she applied for NEET PG 2020, as she was yet to appear

and qualify the FMGE December, 2019.

15. The respondent No. 3 has pleaded that as per clause 8.5 of

the Information Bulletin for NEET PG 2020, producing

provisional/permanent registration with the Medical Council or

FMGE pass certificate, issued by NBE, was mandatory for an

Indian citizen to appear in the NEET PG. The eligibility criteria and

test day requirement of documents to appear in the Examination

was well-informed to the petitioner through Information Bulletin.

16. The respondent No. 3 has further pleaded that the disclaimer

(b) of the NEET PG Information Bulletin had advised the

candidates to read the Information Bulletin carefully and go

through the instructions regarding filling of online Application

Form given on NEET PG 2020 website, before starting the online

submission of Application Form.

17. The respondent has further pleaded that as per clause 3.9 of

the Information Bulletin for NEET PG, 2020, the candidates are

deemed to have read, agreed and accepted the Information

Bulletin and the terms and conditions in the Information Bulletin

for NEET PG 2020, once they are registered for NEET PG.

18. The respondent has further pleaded that the petitioner while

signing the declaration, certified that she fulfilled the eligibility

requirement for NEET PG, which was factually incorrect as she was

yet to qualify the FMGE, which was an essential pre-requisite to

apply for NEET PG 2020 and, as such, the petitioner resorted to

submit of false declaration/information in NEET PG 2020.

[CW-11396/2020] (9 of 18)

19. The respondent has further submitted that the assertion of

the petitioner that she left the Column for Medical Council

Registration Number as blank does not support the false

declaration made by her and the Column to indicate registration

number with MCI was optional as foreign nationals also applied for

NEET PG and as per the Information Bulletin, they were allowed to

apply, without having MCI/SMC registration at the time of filling of

the Application Form.

20. The respondent has pleaded that appearance in NEET PG

2020 Examination of the petitioner is not material and the

petitioner deliberately submitted wrong information in her

Application Form by not disclosing the correct status of her MCI

registration number and thereby she tried to take undue benefit.

21. The respondent has further pleaded that as many as 19

candidates were there like the petitioner and their cases were also

referred to the NBE Examination Ethics Committee (EEC) along

with petitioner's case and the said Committee (EEC) concluded

that making a false statement in the NEET PG 2020 Application

Form amounts to unfair means and, as such, it was decided to

debar all of them from appearing in the next NEET PG as well. The

respondent has further pleaded that as per Chapter 12, the said

matters were registered as unfair means.

22. Learned counsel for the respondents, while making

submissions, highlighted the fact of not giving complete

information by the petitioner while filling the Online Application

Form and further supported the impugned order (e-mail) dated

[CW-11396/2020] (10 of 18)

05.05.2020 passed by the Authorities. Learned counsel submitted

that due compliance of principles of natural justice was made and

the petitioner was afforded proper opportunity before taking

action against her and other similarly situated candidates and, as

such, this Court may not like to interfere in its writ jurisdiction.

23. I have heard learned counsel for the parties and with their

assistance perused the material available on record.

24. It would be proper to quote the relevant clauses of

Information Bulletin for NEET PG for admission to MD/MS Post

Graduate Diploma Courses, Session-2020, which reads as

follows:-

"(iii) DISCLAIMER

(b) Candidates are advised to read the Information Bulletin carefully and go through the instructions regarding filling of online application form given on NEET-PG 2020 website www.nbe.edu.in before starting online submission of application form.

3. GENERAL INSTRUCTIONS, TERMS AND CONDITIONS

3.9 Candidates are deemed to have read, agreed and accepted the Information Bulletin and the terms and conditions in the information bulletin for NEET-PG once they register for NEET-PG.

3.12 Application of candidates producing false or fabricated information will not be considered and candidates may be further debarred from appearing in any future examinations conducted by NBE/MoHFW/Other Institutions.

4. ELIGIBILITY CRITERIA FOR NEET-PG 2020

4.1(B) ELIGIBILITY CRITERIA FOR FOREIGN MEDICAL GRADUATES

Indian citizens or overseas citizens of India who have obtained their Primary Medical Qualifications from Medical Colleges outside India should have qualified the Foreign Medical Graduate Examination (Screening Test) which is conducted by National Board of Examinations. Further, they should have been registered with MCI/SMC and should have

[CW-11396/2020] (11 of 18)

completed their internship or likely to complete their internship on or before 31st March 2020.

Foreign Medical Graduates are required to bring their FMGE Pass certificate issued by NBE on their testing day.

8. ADMIT CARD                &     TEST         DAY       DOCUMENTARY
REQUIREMENTS

8.5 Candidates MUST bring to the test centre the following documents:(Unfair means case shall be registered against the candidates submitting false/ forged documents.)

•Printed copy of the Admit Card with Photo of the candidate pasted on it;&

•Photocopy of Permanent / Provisional SMC/MCI registration,* to be retained by the test centre &

• Any one of the authorized photo IDs** (must be original, valid and non-expired)

i. PAN Card ii. Driving License iii. Voter ID iv. Passport v. Aadhaar Card (With photograph)

"In case, any candidate reports to the test center with e- Aadhaar card with Aadhaar number printed on it as proof of identity, the e-Aadhaar card should be a good quality colour print out with clearly visible photograph. The photograph should not have kinks, scratches and stains, and should definitely match with the candidate presenting the e-Aadhaar card. Decision of NBE in this regard shall be final".

12. UNFAIR MEANS

If during the course of training / examination, a candidate is found indulging in any of the following, he/she shall be deemed to have used unfair means:

1) If a candidate is found to have made a wrong statement in his/her application form for admission to the examinations/counseling/training or has attempted to secure or has secured admission to any of the examinations of NBE by making a false statement or by production of a false document.

20) Candidate appearing in FMGE is ineligible to appear in any other NBE exams till such time the candidate qualifies FMGE and is registered by Medical Council of India / State Medical Council, a candidate appearing in FMGE and other exams in the same session is an unfair means case and is to be dealt accordingly."

[CW-11396/2020] (12 of 18)

25. This Court while hearing the matter and at the conclusion of

the arguments also asked both the learned counsels to supply

copy of Online Application Form, which was required to be filled by

the candidates, in order to see as whether giving details of FMGE

was optional or the same was required to be disclosed by all the

candidates.

26. This Court finds that the petitioner has filed the copy of her

Online Application Form as Annexure-3 with the writ petition and

details with regard to passing of MBBS Degree, country of

completion of MBBS qualification, name of city, name of

University, year of passing, details of internship, location of

internship, institute of internship, date of start of internship, likely

date of completion of internship, etc. have been sought in the

application form.

27. A perusal of the said Online Application Form does not

reflect/comment regarding registration number with MCI. This

Court, in absence of such vital information, required for

considering the false information by the petitioner, is not in a

position to comment upon it.

28. The primary question for consideration before this Court is

that if a candidate is indulging in making false statement in the

application form for admission in the examination or attempts to

secure admission by making a false statement, then whether such

an act would result into a case of using of unfair means.

29. This Court finds that the show cause notice which was given

to the petitioner on 27.01.2020, communicated to the petitioner

[CW-11396/2020] (13 of 18)

that as per the NBE record, she has submitted application for both

FMGE December, 2019 and NEET PG, 2020 and it was alleged that

the petitioner did not upload the registration certificate documents

under SMC/MCI registration in NEET PG, 2020 and since the

petitioner was not registered, she was yet to qualify FMGE and as

such, she submitted false information. The NBE, however,

communicated that producing provisional/permanent registration

with Medical Council or FMGE pass certificate issued by NBE is

mandatory for an Indian citizen to appear in NEET PG and as such,

the explanation was sought as why the petitioner should not be

declared ineligible for NEET PG, 2020.

30. This Court finds that the petitioner had specifically submitted

in her representation that she was awaiting her FMGE December,

2019 result and the candidates who have an internship till

31.03.2020 were eligible to appear in NEET PG Examination, 2020

and she applied for NEET PG 2020 wherein information to be filled

in about FMGE/MCI registration details were optional and as such

she skipped and did not fill that section. This Court finds that the

petitioner has specifically averred that after receipt of admit card,

she did not appear in the examination, as she was not having

provisional/permanent MCI registration number and she also

apologized for the inconvenience caused due to the confusion in

the petitioner's mind.

31. This Court further finds that the respondents while passing

the impugned order (e-mail) have found the petitioner ineligible

for NEET PG, 2020 after holding her guilty of making false

statement in NEET PG, 2020, as a case of use of unfair means.

[CW-11396/2020] (14 of 18)

32. This Court finds that the petitioner having filled the

Application Form, thought herself to be eligible to participate in

the NEET PG 2020 Examination, and if she did not finally write the

Examination, this Court is required to consider her act of filling the

Application Form and the conduct, in the light of the instructions

issued in the Information Bulletin for NEET PG 2020.

33. This Court finds that clause (iii)(b) of Disclaimer provides

that the candidates were advised to read the Information Bulletin

carefully and go through the instructions regarding filling of Online

Application Form for NEET PG 2020 before starting online

submission of Application Form. This Court finds that under

general instructions, terms and conditions, clause 3.9 provides

direction that the candidates are deemed to have read, agreed

and accepted the Information Bulletin and the terms and

conditions in the Information Bulletin for NEET PG once they

register themselves for NEET PG. This Court further finds that

under the eligibility criteria for NEET PG 2020, sub-clause (B) of

clause 4.1 deals with the eligibility criteria for Foreign Medical

Graduates and provides that the Indian citizens or overseas

citizens of India who have obtained their Primary Medical

Qualifications from Medical Colleges outside India should have

qualified the Foreign Medical Graduate Examination (Screening

Test) which is conducted by National Board of Examination (NBE)

and further they should have been registered with MCI/SMC and

should have completed their internship or likely to complete their

internship on or before 31.03.2020. The said eligibility criteria for

foreign medical graduates further provides that they were required

[CW-11396/2020] (15 of 18)

to bring their FMGE pass certificate issued by NBE on their testing

day.

34. This Court further finds that the candidates were required to

bring certain documents at the test centre, as per clause 8.5 of

the Information Bulletin and photocopy of permanent/provisional

SMC/MCI registration was also to be brought by the candidates.

This Court finds that the instances of unfair means have been

enumerated under clause 12 of the Information Bulletin and as per

clause 12(1) if a candidate is found to have made a wrong

statement in his/her Application Form for admission to the

Examinations, the same may amount to unfair means.

35. This Court further finds that the allegation against the

petitioner of making a false/wrong statement in her Application

Form is difficult to be proved. In the present facts of the case, the

Application Form did not specifically ask for the filing of proof of

passing the Examination of FMGE (Screening Test), conducted by

the National Board of Examinations (NBE) and as such, the

candidates in a bonafide manner might have applied for

participating in the Examination.

36. This Court finds that the relevant documents, which were

required to be produced before the test centre included photocopy

of permanent/provisional SMC/MCI registration, were not in the

possession of the petitioner and she decided not to write the

Examination and as such, she did not participate in the

Examination process.

[CW-11396/2020] (16 of 18)

37. This Court finds that initially, even if the petitioner was in

doubt about her eligibility or as per the assertion of the

respondents, she was not qualified and still she filled the

Application Form, this Court will not draw a presumption that the

petitioner had any intention to make a false statement in her

Application Form in order to derive any benefit to write the

Examination and to get herself declared eligible.

38. The submission of the learned counsel for the respondents

that since eligibility was to be considered by the candidates

themselves before applying or filling Online Application Form, this

Court on close scrutiny of the clause relating to eligibility criteria

for foreign medical graduates finds that the candidates who have

passed Primary Medical Qualifications from Medical Colleges

outside India should have qualified the Foreign Medical Graduate

Examination (Screening Test), which is conducted by the NBE and

further they were to bring their FMGE pass certificate issued by

the NBE on their testing day. This clause itself gives some kind of

understanding to the candidate that if he/she passes the

Screening Test, before the Examination is conducted or on the

testing day and such candidate has a belief to become eligible, it

cannot be inferred that the said candidate has any intention to use

unfair means by giving a false statement in the Application Form.

39. This Court finds that if the Application Form is filled by the

candidate and for any reason he/she does not write Examination

or participate in the Examination process, such candidate does not

affect right of any other candidate and any such mistake

committed by the candidate, while filling the Application Form may

[CW-11396/2020] (17 of 18)

not be treated as a case of use of unfair means. The appearance

of such candidate in Examination may definitely result into a

situation where a candidate knowing fully well that he/she does

not fulfill the requisite qualification/eligibility criteria and still he/

she participates in the Examination, the same may amount to

affecting third party rights. This kind of endeavour by any

candidate may not be permissible under the law as it affect rights

of other candidates. This Court is constrained to make such

observation only for the reason that in the competitive

examination several candidates appear and cut-off marks are also

declared for different categories of candidates and if ineligible

candidates participate, then the eligible candidates might suffer on

account of such misleading facts as recruiting/exam conducting

bodies are required to declare only limited number of candidates

qualified by fixing cut-off marks.

40. This Court considering the entire facts of the present case

finds that the petitioner cannot be charged with an allegation of

using unfair means only on account of not possessing the requisite

qualification while filling her Application Form.

41. The Division Bench of this Court in the case of Kavita

Choudhary (supra) has considered that to err is human and to

forgive is divine and the mistakes can be of two kinds wherein first

kind would be where nobody is affected by a mistake and the

second kind is where a third party is affected by a mistake. The

Division Bench has further held that the difference in the two

mistakes would be that whereas rectification of the first would

cause no prejudice and rectification of the second would cause a

[CW-11396/2020] (18 of 18)

prejudice. The relevant portion of the order dated 01.11.2017

passed by the Division Bench in Kavita Choudhary's case (supra)

is extracted as follows:-

"6. Vide impugned decision dated 27.10.2017 the view taken by the learned Single Judge is that being an educated person, the appellant ought to have been careful.

7. To err is human. We do not note the second part: To forgive is divine.

8. Mistakes can be of two kinds. First kind would be where nobody is affected by a mistake. The second is where a third party is affected by a mistake.

9. The difference in the two mistakes would be that whereas rectification of the first would cause no prejudice, rectification of the second would cause a prejudice."

42. This Court finds that in the facts of the present case, if any

inadvertent mistake has been committed by the petitioner and it

has not caused prejudice to any other person/candidate, then

debarring the petitioner from appearing in the next NEET PG

Examination would not be justified.

43. Accordingly, the writ petition is allowed and the impugned

order (e-mail) dated 05.05.2020 (Annexure-8) is quashed and set

aside. No costs.

(ASHOK KUMAR GAUR),J

Solanki DS, PS

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