Rajasthan High Court - Jaipur
Dr. Suhaila Saxena D/O Sunil Kumar ... vs Union Of India on 22 January, 2021
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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.
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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/ (Downloaded on 22/01/2021 at 10:31:40 PM) [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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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.(Downloaded on 22/01/2021 at 10:31:40 PM)
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(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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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. (Downloaded on 22/01/2021 at 10:31:40 PM)
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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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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."(Downloaded on 22/01/2021 at 10:31:40 PM)
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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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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. (Downloaded on 22/01/2021 at 10:31:40 PM)
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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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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.
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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 (Downloaded on 22/01/2021 at 10:31:40 PM) [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 (Downloaded on 22/01/2021 at 10:31:41 PM) [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 (Downloaded on 22/01/2021 at 10:31:41 PM) Powered by TCPDF (www.tcpdf.org)