Gauhati High Court
WP(C)/4683/2019 on 22 December, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010159692019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
W.P.(C) 4683/2019
Ms. Manmita Barman,
W/O- Sri Jiban Kishare Barman,
R/O- Vill- Pochagarh, P.O. & P.S- Fakiragram,
Dist- Kokrajhar, BTAD, Assam, Pin- 783345
.....Petitioner
-versus-
1. The State of Assam,
represented by the Commissioner and Secretary to the Govt. of
Assam, Health & Family Welfare Department, Dispur
Guwahati- 781006.
2. The Director of Medical Education, Assam,
Having its office at Sixmile,
Khanapara, Guwahati- 781022, Kamrup (M)
3. The Counseling Committee for the Session, 2019,
C/O- The Director of Medical Education, Assam,
Having its office at Sixmile, Khanapara,
Guwahati- 781022, Kamrup (M)
4. National Institute of Open Schooling
(An Autonomous Institution under Department of School
Education and Literacy, Ministry of Human Resource
Development, Government of India), A-24-25, Institutional Area,
Sector-62, Noida-201309, Uttar Pradesh
5. Sri Abhijit Roy,
S/O- Ananta Roy,
R/O- Patarkuchi, Tengakhal, H/No.27 (A),
Near Durga mandir, P.O. & P.S.- Basistha Chariali,
Guwahati-781029
Page 1 of 41
6. Union of India,
Represented by the Secretary to the Govt. of India,
Ministry of Health & Family Welfare, New Delhi-110001.
.....Respondents
BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY Advocates for the petitioner : Mr. A. Chamuah, K. Borpujari, Mr. S.D. Roy, Mr. C.P. Sharma Advocates for the respondent nos. 1, 2 & 3 : Mr. D. Saikia, Senior Advocate Mr. B. Gogoi, Standing Counsel Health & Family Welfare Department.
Advocates for the respondent no. 5 : Mr. S. Bora, Mr. A. Ganguly
Advocate for the respondent no. 6 : Mr. S.C. Keyal
Date of hearing : 17.12.2020
Date of judgment : 22.12.2020
JUDGMENT & ORDER
(CAV)
(Manish Choudhury,J)
By this writ petition under Article 226 of the Constitution of India, the petitioner has, inter alia, challenged the legality and validity of Rule 4 (2)(b) of the Medical Colleges and Dental Colleges of Assam (Regulation of Admission into 1st year MBBS/BDS Courses) Rules, 2017 and for setting aside and quashing of the impugned decision dated 02.07.2019 of the Counseling Committee whereby the candidature of the petitioner for admission into the Page 2 of 41 MBBS Course was rejected. A further direction in the nature of mandamus has been sought for directing the Director of Medical Education, Assam to admit the petitioner into the MBBS Course in any of the Medical Colleges under the Directorate of Medical Education, Assam as per the entitlement of the petitioner considering her performance in the National Eligibility-cum-Entrance Test (UG)
- 2019 [NEET(UG)-2019, for short].
2. Before dilating in detail about the nature of challenge made to the aforesaid rule, it is appropriate to take notice of the relevant events which led to the rejection of the candidature of the petitioner by the impugned decision dated 02.07.2019 as they are not in dispute.
2.1. As projected in the writ petition, the petitioner whose date of birth is 17.02.1995, passed the High School Leaving Certificate (HSLC) Examination in the year 2010 conducted by the Board of Secondary Education, Assam (SEBA) securing 1st Division. Thereafter, the petitioner took admission in the Higher Secondary (Science) Course in Kokrajhar Government College. She appeared in the Higher Secondary (Science) Final Examination conducted by the Assam Higher Secondary Education Council (AHSEC) in the year 2012. Though in that Final Examination of 2012 the petitioner secured 71.20% marks but she failed in the subject of Physics. Since the petitioner passed in 4 (four) other subjects in 2012 she was declared passed in 1st Division despite failing to secure minimum pass marks in Physics, by the AHSEC as per its norms. The petitioner thereafter, appeared in the Compartmental Examination conducted by the AHSEC in the Physics subject in the year 2013 and secured 58 marks out of total 100 marks. She, thus, passed the High Secondary (Science) Examination in all subjects with overall 71.60% marks.
2.2. The petitioner also took admission in the Higher Secondary / Senior Secondary in Science Stream under the National Institute of Open Schooling (NIOS) in September, 2018 to make an endeavour to clear all the four subjects - Physics, Page 3 of 41 Chemistry, Biology and English - in one sitting, which according to the NIOS Rules, is termed as updation of Educational Qualification of Senior Secondary. The petitioner appeared in the examination conducted by the NIOS in the month of April, 2019 in all the four subjects - Physics, Chemistry, Biology and English and she was declared pass in all those subjects the results of which were declared in June, 2019. The petitioner stated to have secured 273 marks out of total 400 marks in the said examination.
2.3. After passing the Higher Secondary (Science) Examination in the year 2013, the petitioner took admission in B.Sc. Nursing Course in the year 2013 under Srimanta Sankardeva University of Health Sciences and passed the same in the year 2017 with 61% of marks.
2.4. As the petitioner was desirous of pursuing the MBBS Course, she submitted application to appear in the National Eligibility-cum-Entrance Test (UG)-2019 [NEET(UG)-2019] vide application no. 190410422107. As she belongs to the Other Backward Classes (OBC) (Non Creamy Layer) category, she filled up the form accordingly. After processing the application, the National Testing Agency issued to her a Provisional Admit Card for NEET(UG)-2019 which was scheduled on 05.05.2019. For NEET(UG)-2019, the petitioner's Roll no. was 140210959 and she appeared in the examination on the scheduled date.
2.5. The results of NEET(UG)-2019 were declared in due course wherein the petitioner obtained 438 marks out of the total marks of 720. The petitioner's NEET All India Rank was 93339 and she obtained total percentile score of 93.3433516. Her OBC category rank was 40329. As the petitioner at the time of submission of her application opted for State quota seats of Assam, the results of NEET(UG)-2019 had secured her an All Assam Ranking of 693. She accordingly complied with the necessary formalities to be called for counseling by the respondent authorities.
Page 4 of 412.6. In view of her 693rd position in All Assam Ranking, the petitioner was called to attend the Counseling Session on 02.07.2019 for the selection process for admission into MBBS/BDS Courses for the Session 2019 by the Director of Medical Education (DME), Assam. Accordingly, the petitioner appeared in the Counseling Session on 02.07.2019 but her candidature was rejected by the Counseling Committee on the ground that the petitioner had done 10+2 from the NIOS.
2.7. Aggrieved by such rejection, the petitioner has approached this Court seeking the above reliefs by filling the writ petition on 12.07.2019.
3. Heard Mr. A. Chamuah, learned counsel for the petitioner and Mr. D. Saikia, learned Senior Counsel assisted by Mr. B. Gogoi, learned Standing counsel for the Health & Family Welfare Department, Assam for the respondent nos. 1, 2 and 3. None has appeared on behalf of the respondent nos. 5 and 6 though the names of the learned counsel for the said respondents are reflected in the cause-list. The name of respondent no. 4 was struck off from the array of respondents by order dated 21.08.2019 at the request of the learned counsel for the petitioner.
4. Mr. Chamuah, learned counsel for the petitioner after referring to the academic credentials of the petitioner, as have already been noted above, has submitted that there was no reason for the State respondent authorities to deny admission to the petitioner into the MBBS Course on the ground that her qualification at 10+2 stage from the NIOS was contrary to the Medical Colleges and Dental Colleges of Assam (Regulation of Admission into 1st year MBBS/BDS Courses) Rules, 2017 ('2017 Rules', for short).
4.1. It is submitted that there is no bar prescribed in the Medical Council of India (MCI) Regulations for a candidate to get admission into the MBBS/BDS Courses even if such candidate had passed his/her Class XII examination taking one Page 5 of 41 subject in the Compartmental Examination. The said position has already been clarified by the MCI by a Public Notice dated 24.04.2018 by clearly mentioning that a candidate even if passes one subject in the Compartmental Examination then also such candidate is qualified for taking admission into the MBBS/BDS Course if he/she has obtained the required marks in the NEET. To substantiate his submission, he has also referred to a judgment and order dated 11.05.2018 passed by the Hon'ble Delhi High Court in Writ Petition (Civil) no. 1813/2018 [Anshul Aggarwal vs. Union of India and others] and 10 (ten) other writ petitions.
4.2. In the present case, the petitioner had cleared the Higher Secondary (Science) Examination from the AHSEC in the year 2013 passing the subjects of Physics, Chemistry, Biology and English individually and had obtained minimum of 50% of marks taken together in Physics, Chemistry and Biology at the qualifying examination, which was the requisite percentage for a candidate of Unreserved category, not to speak of OBC category, as per the norms prescribed in 'the Regulations on Graduate Medical Education, 1997', as amended, ('the MCI Regulations, 1997', for short) made by the Medical Council of India (MCI). As the MCI did not put any restriction with regard to obtaining the aforesaid eligibility either in one sitting or more, it was not permissible on the part of the State respondent authorities to set a different benchmark of eligibility criteria to secure admission into the MBBS/BDS Course in the Medical Colleges and Dental Colleges under it in the 2017 Rules.
4.3. It has been further submitted that after the advent of NEET pursuant to incorporation of Section 10D in the Indian Medical Council Act, 1956 ('the IMC Act, 1956', for short), it is the score obtained in the NEET which is the sole criteria for admission into the MBBS/BDS Course all throughout India in so far as the criteria of merit is concerned, provided the candidate has the qualification prescribed by the MCI. It is not open for any individual State to put another qualification in so far as the eligibility at 10+2 stage is concerned. In Page 6 of 41 such view of the matter, he submits, the eligibility prescribed in Rule 4 (2)(b) in the 2017 Rules that the candidate had to pass all four subjects i.e. Physics, Chemistry, Biology/Biotechnology and English of the qualifying examination in the same sitting runs contrary to the scheme envisaged under Section 10D of the IMC Act, 1956 and the MCI Regulations, 1997, as amended, and, thus, Rule 4 (2)(b) of the 2017 Rules is liable to be declared ultra vires.
4.4. In support of his submissions, Mr. Chamuah has extensively relied on a decision of a Division Bench of this Court passed in the writ petition, W.P.(C) no. 4472/2018 [Vicky Kumar Patel vs. the State of Assam and others], rendered on 16.08.2019, whereby Rule 4 (2)(c) of the 2017 Rules was struck down. He has submitted that the respondent authorities while considering the candidature of the petitioner on 02.07.2019, did not deal with her eligibility in the context of qualification in the Higher Secondary Examination and in relation to clarification issued by the MCI. According to him, the reasons for which Rule 4 (2)(c) had been struck down are also applicable proprio vigore in the case in hand. Thus, by application of the same analogy, Rule 4(2)(b) is also required to be held ultra vires.
4.5. It is his further contention that after being denied admission by the impugned decision on 02.07.2019 the petitioner had approached the Court in all promptitude and without any delay on 12.07.2019. Thus, the petitioner is entitled to be considered for the relief in the form of admission into the MBBS/BDS Course as per her score in the NEET(UG)-2019 in the present academic year and in deference to the principles laid down by the Hon'ble Supreme Court of India in Civil Appeal no. 1081/2017 [S. Krishna Sradha vs. the State of Andhra Pradesh and others] as the process of admission into the MBBS Course in the State Medical Colleges is still on. In the year 2019 when the petitioner was denied admission a number of candidates whose merit positions in the NEET and in All Assam Ranking were much lower to the petitioner, were admitted into the MBBS/BDS Course and from the very said Page 7 of 41 fact, it is ex facie established that the petitioner was denied admission in the year 2019 unjustifiably, illegally and arbitrarily.
5. Mr. Saikia, learned Senior Counsel appearing for the State respondents including respondent no. 2, has opposed the aforesaid submissions made on behalf of the petitioner.
5.1. Opening his submissions, he has contended that the petitioner failed in the subject of Physics in Class-XII examination held in the year 2012 and she passed in the subject of Physics only in the year 2013 at a separate sitting. As such, the petitioner did not fulfill the criteria laid down in Rule 4 (2)(b) of the 2017 Rules.
5.2. It is his submission that the Hon'ble Supreme Court of India in Dr. Preeti Srivastava and another vs. State of M.P. and others, reported in (1999) 7 SCC 120, had held that the State has the power to prescribe enhanced qualification than the minimum qualification prescribed by the MCI. Thus, the contention that Rule 4 (2)(b) of the 2017 Rules is repugnant to the MCI Regulations, 1997 where a candidate who has passed Class XII examination by taking one subject as Compartmental is eligible for admission into MBBS/BDS Course, is not sustainable.
5.3. In so far as the decision rendered in Vicky Kumar Patel (supra) is concerned, it is submitted that the said case was specifically pertaining to Rule 4 (2)(c) of the 2017 Rules and thus, the observations made therein cannot be brought in by way of analogy in the instant case. According to him, in Vicky Kumar Patel (supra) it was prescription of higher percentage of marks whereas in the case in hand, it was about securing the qualification by passing the four subjects in one sitting and the two situations cannot be treated as similar.
Page 8 of 415.4. It is further submitted by him that in Vicky Kumar Patel (supra) where Rule 4(2)(b) of the 2017 Rules was put to question, it was fixation of a qualification which was above the eligibility criteria fixed by the MCI Regulations, 1997. But here, the situation is different as it is about passing the qualifying examination in the same sitting. By fixation of such criteria, the qualification criteria set by the MCI Regulations, 1997 has not been tinkered with. In the three-Judge decision of the Hon'ble Supreme Court of India in Yatinkumar Jasubhai Patel and others vs. State of Gujarat and others, reported in (2019) 10 SCC 1, the position elucidated in Preeti Srivastava (supra) has been reiterated. It has further affirmed the view taken in Siddhartha Sarkar and others vs. State of Assam, 2007 (3) GLT 715, and in that context, he has referred to paras 23 and 24 thereof.
5.5. He has submitted that the decision in Vicky Kumar Patel (supra) was rendered on 16.08.2019. But subsequently on 04.10.2019, the three-Judges Bench of the Hon'ble Supreme Court of India in the case of Yatinkumar Jasubhai Patel (supra) has held that the NEET scheme has nothing to do with institutional reservation. The Hon'ble Supreme Court has observed that the State authorities despite introduction of NEET examination as a Uniform Entrance Examination by insertion of Section 10D in the IMC Act, 1956, is not precluded from giving institutional preference in the matter of post-graduate medical courses. Thus, he submits that the change brought about by the NEET scheme does not debar the State authorities to decide about the qualification criteria to be fulfilled by the candidates aspiring to get admissions in the MBBS/BDS Courses in the medical colleges/dental colleges under the control of the State.
5.6. It is his further submission that in Vicky Kumar Patel (supra), Section 19A of the IMC Act, 1956 was not considered in the proper perspective. As Section 19A has provided for prescribing only the minimum standards of medical education to the MCI the State legislation can definitely provide for a higher Page 9 of 41 benchmark by framing its own rules. Thus, Rule 4(2)(b) of the 2017 Rules cannot be considered to be invalid.
5.7. He has also relied upon paragraphs 78 to 91 of the decision in Official Liquidator vs. Dayanand and others, reported in (2008) 10 SCC 1. In view of the legal position that has emerged from Yatinkumar Jasubhai Patel (supra) rendered on 04.10.2019, the issue in hand may be referred to a larger Bench on reference as the decision in Vicky Kumar Patel (supra) appears to be taking a contrary view about fixation of eligibility criteria in respect of matters of admission into MBBS/BDS Courses qua the powers of the State authorities to frame its own rules in the field.
5.8. As the petitioner's side has not urged about the issue pertaining to the NIOS qualification, he has submitted that he need not require to address on the same. Referring to paragraph 36 in Vicky Kumar Patel (supra) he has pointed out that though Rule 4(2)(c) of 2017 Rules was struck down there but no relief with regard to admission into the MBBS Course was granted to the said petitioner as the Court found that the academic year was already over. The position in this case is also similar, he submits.
6. In reply, learned counsel for the petitioner has submitted that there is no dispute to the proposition that law was well settled by the decisions in Dr. Preeti Srivastava (supra) and Siddhartha Sarkar (supra) in respect of the Rules and Regulations prevailing at that point of time. Subsequent to Preeti Srivastava (supra) and Siddhartha Sarkar (supra) the situation has changed with the insertion of new provisions in the form of Section 10D and others in the IMC Act, 1956 and in the MCI Regulations, 1997 with the amendments made in 2018. Thus, the issue has to be considered in the context of the extant Rules and Regulations prevailing at the time of NEET(UG)-2019. He has submitted that Vicky Kumar Patel (supra) has neither explicitly nor impliedly overruled the decisions in Preeti Srivastava (supra) and Siddhartha Sarkar Page 10 of 41 (supra). It had taken into consideration both the decisions and the law prevailing at the time of NEET(UG)-2018 and found the said decisions distinguishable. It is his further submission that the decision in Official Liquidator (supra) is not relevant to the instant case. Similarly, the decision rendered in Yatinkumar Jasubhai Patel (supra) is also not relevant as it was in the context of institutional preference whereas the present case is in respect of qualifying and eligibility criteria for admission into the MBBS Course with regard to the MCI Regulations, 1997, as amended, vis-à-vis Rule 4(2)(b) of the 2017 Rules. If Rule 4(2)(b) is allowed to stand, it would create an anomalous situation. A candidate from All India Quota, similarly situated like the petitioner, would be able to get admission in State Medical Colleges within 15% All India Quota whereas the candidates from the State despite obtaining same score in NEET would not be admitted in view of Rule 4(2)(b), thus, creating two different classes out of one homogenous class.
7. We have duly considered the submissions made by the learned counsel for the parties and also perused the materials on record. We have also considered the decisions cited by the parties and the provisions contained in the IMC Act, 1956; the MCI Regulations, 1997 and the 2017 Rules respectively.
8. Before proceeding further, it is appropriate to quote Rule 4 of the 2017 Rules in its entirety as Rule 4(2)(b) of the said Rule is in the forefront of the assailment in the present writ petition.
"4. Mode of Selection of State Quota Candidates :-
(1) The candidates who qualify in the NEET as per NEET Rules for admission into 1st year MBBS/BDS Courses shall have to apply to the DME in a Declaration Form as per the Educational Notice published by the DME immediately after the declaration of NEET result. The Declaration Form shall be available in the office website (www.dmeassam.gov.in).
(2) Eligibility of the candidates to be called for counseling :-
(a) The candidate must pass the qualifying examination.Page 11 of 41
(b) The candidate must pass all the four subjects i.e. Physics, Chemistry, Biology/Biotechnology (which shall include practical tests in these subjects) and English of the qualifying examination in the same sitting and without grace marks.
(c) The candidate must obtain a minimum of 60% marks taken together in Physics, Chemistry and Biology/Biotechnology at the qualifying examination in case of candidates belonging to General/Unreserved category. In respect of candidates to SC/ST(P)/ST(H)/OBC/MOBC category the marks obtained in Physics, Chemistry and Biology/Biotechnology taken together in the qualifying examination shall be 50%.
(d) The candidates who have secured a position in the rank of 1st and 2nd in the current HSSLC (Sc.) examination conducted by Assam Higher Secondary Education Council shall also be eligible to be called for counseling. However, he/she must secure the qualifying marks in the NEET. Such a candidate must apply to the DME with authenticated proof regarding his/her position in the HSSLC (Sc.) examination within 7 (seven) days of declaration of the result of the HSSLC (Sc.) examination or NEET whichever is later provided he/she fulfills all other conditions.
The names of the rank holders shall be included at the top of the counseling list of respective Category in order of their rank in HSSLC (Science) irrespective of their Rank in NEET and admission shall be offered provided he/she fulfills all other criteria for admission.
(3) The Director of Medical Education, Assam shall prepare the counseling list immediately after receiving the Declaration Forms from the State Quota candidates as well as State Merit List prepared by Examination Conducting Authority. The counseling list shall be published as an Educational Notice in the leading news papers of the State of Assam and in the Official Website (www.dmeassam.gov.in) indicating the dates for counseling and important terms and conditions to be fulfilled by the candidates called for counseling."
(emphasis supplied)
9. The provisions of the IMC Act, 1956 which have been referred to and are of relevance, are Section 10D and Section 33(mb) which were inserted by Act 39 Page 12 of 41 of 2016 and came into effect from 24.05.2016. The provision of Section 19A which was inserted by Act 24 of 1964 w.e.f. 16.06.1964, has also been referred to in the course of submissions. For ready reference, the provisions of Section 10D, Section 19A and Section 33(mb) of the IMC Act, 1956 are extracted hereunder :-
"10D. Uniform entrance examination for undergraduate and post- graduate level - There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post- graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner.
Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examination."
"19A. Minimum standards of medical education. - (1) The Council may prescribe the minimum standards of medical education required for granting recognized medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India. (2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government of sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit."Page 13 of 41
"33. Power to make regulations. - The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of these Act, and, without prejudice to the generality of this power, such regulations may provide for -
(a) * * * * * * * * * * *
* * * * * * * * * * *
(mb) The designated authority, other languages and the manner of conducting of uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level;"
(n) any matter for which under this Act provision may be made by regulations.
10. For the issue under consideration, the proviso to Section 10D is not relevant. For NEET(UG)-2019, the designated authority was the National Testing Agency. From the Information Bulletin for NEET(UG)-2019, placed before this Court, it is found that the Ministry of Human Resource Development (MHRD), Government of India (GOI) has established the National Testing Agency, inter- alia, to conduct efficient, transparent and international standard tests in order to assess the competency of candidates for admission. The Department of Higher Education, MHRD, GOI vide their letter no. F.No. 19-5/2014-TS-I dated 06.07.2018 had mandated the National Testing Agency to conduct the NEET(UG)-2019. As per the mandate of Section 10D, the designated authority i.e. the National Testing Agency was to ensure conduct of Uniform Entrance Examination i.e. NEET(UG)-2019 in the prescribed manner. As per Section 2(g) of the IMC Act, 1956, "prescribed" means prescribed by regulations.
11. As per the Information Bulletin for NEET(UG)-2019, the responsibilities of the National Testing Agency were to conduct the entrance test i.e. NEET(UG)- 2019, to declare the results and to provide the All India Ranks to the Directorate General of Health Services, Ministry of Health & Family Welfare (MoH&FW), GOI for counseling of 15% All India Quota seats and also to provide the results to the State Counseling Authorities and other Admitting Institutions. It was mentioned therein that the results of NEET(UG)-2019 may Page 14 of 41 also be utilized by the State Governments for admission purpose in accordance with their rules and during counseling, the eligibility criteria, self-declaration, various documents, etc. of the eligible candidates shall be verified as per norms specified by the respective authorities. It was further mentioned that a candidate's eligibility for NEET(UG)-2019 was provisional and was subject to fulfillment of eligibility criteria as prescribed by the MoH&FW/MCI/other Admitting Institutions, etc. In respect of eligibility for seats in the Medical/Dental Colleges under the control of States, etc. it was mentioned that Indian Nationals were eligible for admission in those seats subject to rules and regulations framed by the respective State Governments.
11.1. Chapter 3 of the Information Bulletin had provided for eligibility and qualifications. It stated to have stipulated the eligibility for appearing in NEET(UG)-2019 in accordance with the Indian Medical Council Act, 1956 and the Dentists Act, 1948, as amended in 2018. In respect of qualifications, one of the qualifications was the Higher/Senior Secondary Examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher/Senior Secondary Examination after a period of 12 years study, the last two years of such study comprising of Physics, Chemistry, Biology/Bio-Technology (which shall include practical tests in these subjects) and Mathematics or any other elective subject with English at a level not less than the core course for English as prescribed by the National Council of Education Research and Training (NCERT) after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on Education. The Assam Higher Secondary Education Council (AHSEC) was one of the recognised Boards with Code no. 02.
11.2.It was specifically provided in the Information Bulletin that to be eligible for NEET(UG)-2019, a candidate must have to pass in the subjects of Physics, Chemistry, Biology/Bio-Technology and English individually and must have to obtain a minimum of 50% marks taken together in Physics, Chemistry and Page 15 of 41 Biology/Bio-Technology at the qualifying examination as mentioned in Clause (2) of Regulation 4 of the Graduate Medical Education Regulations, 1997, as amended in 2018, and in addition must have to come in the merit list of NEET (UG)-2019 for admission to MBBS/BDS courses. In respect of the candidates belonging to Scheduled Castes (SC), Scheduled Tribes (ST) or Other Backward Classes (OBC), the marks obtained in Physics, Chemistry and Biology/Bio- Technology taken together in qualifying examination shall be 40% marks instead of 50% marks for Unreserved candidates and 40% marks of SC/ST/OBC candidates.
11.3. Clause 5 of Chapter 3 of the Information Bulletin had provided for admission and reservation. An All India Merit List of qualified candidates shall be prepared on the basis of All India Rank in the Merit List of the NEET(UG)-2019 and candidates shall be admitted to MBBS/BDS Courses from the said list only by following the already existing reservation policy. The National Testing Agency would provide All India Rank and the Admitting Authorities would invite applications for counseling and Merit List shall be drawn based on All India Rank by the Admitting Authorities. Admission to MBBS/BDS Courses within the respective categories shall be based solely on All India Rank as per Merit List of NEET(UG)-2019. In respect of admission in State Medical Colleges for seats other than 15% All India Quota, it was mentioned that admission under State Quota seats shall be subject to reservation policy and eligibility criteria prevailing in the State/Union Territory as notified by the respective State from time to time.
11.4. From Chapter 6 : Merit List and Qualifying Criteria, it was clear that the National Testing Agency had prepared the All India Merit List of successful candidates of NEET(UG)-2019 on the basis of the eligibility criteria provided by the Medical Council of India and the Dental Council of India as given in the Graduate Medical Education Regulations, 1997 issued under the Indian Medical Page 16 of 41 Council Act, 1956 and the BDS Course Regulations, 2007 issued under the Dentists Act, 1948.
12. It is also apposite to advert to the Regulations on Graduate Medical Education, 1997 ('the MCI Regulations, 1997', for short) which have been made in exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 by the Medical Council of India (MCI) with the previous sanction of the Central Government. These Regulations have been amended from time to time up to 23.01.2018 vide various notifications published in the Gazette of India.
12.1.A detail narration as regards the 'National Eligibility-cum-Entrance Test' has been delineated in the Preamble therein contained in Chapter II : Admission, Selection, Counseling, Migration & Training which reads as under :-
PREAMBLE
1. The Parliament of India has amended the Indian Medical Council Act, 1956 by the Indian Medical Council (Amendment) Act 2016. This Amendment Act after receiving the assent of the President has been notified in the Gazette of India on 5th August 2016. The Indian Medical Council (Amendment) Act, 2016 has inserted Section 10D and Section 33 (mb) to the Indian Medical Council Act, 1956. The said provision provides for a uniform entrance examination to all medical educational institutions at the under graduate level and post graduate level by the "designated authority". By virtue of this Amendment the Parliament has provided legislative sanctity to the National Eligibility-cum-Entrance Test [hereinafter 'NEET'] included in the Graduate Medical Education Regulations, 1997 by Amendments notified in the Official Gazette on 27th December 2010, 27th February 2012 and 23rd October 2013.
2. Earlier, the provisions relating to NEET were quashed by the Hon'ble Supreme Court vide its judgment dated 18th July 2013 in Christian Medical College Vellore & Ors. vs. Union of India & Ors. [TC (C) No. 98 of 2012 and other 114 connected Petitions]. However, on a Review Petition preferred by Page 17 of 41 the Medical Council of India and the Union of India, the Hon'ble Supreme Court vide its order dated 11th April 2016 in Review Petition (C) Nos. 2059-
2268 of 2013 captioned as Medical Council of India vs. Christian Medical College Vellore & Ors. has revived NEET Regulations. Furthermore, in pursuance of the Order dated 28th April 2016 of the Hon'ble Supreme Court in Writ Petition (Civil) Nos. 261 of 2016, captioned as Sankalp Charitable Trust & Anr. vs. Union of India & Ors., the National Eligibility-cum-Entrance Test for admission to the MBBS course were conducted for the academic year 2016-17. For admission to MBBS for academic year 2017-18, in terms of the Indian Medical Council (Amendment) Act, 2016 the National Eligibility-cum- Entrance Test is the uniform entrance examination to all medical educational institutions at the undergraduate level and shall continue to be the uniform entrance examination to all medical educational institutions at the undergraduate level.
(emphasis supplied) 12.2. Regulation 4 of the MCI Regulations, 1997 has laid down various eligibility criteria for admission to the medical course. As already indicated in a preceding paragraph in relation to the Information Bulletin of NEET(UG)-2019, one of the eligibility criteria as per Clause (2) of Regulation 4 is the Higher/Senior Secondary Examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher/Senior Secondary Examination after a period of 12 years study, the last two years of such study comprising of Physics, Chemistry, Biology/Bio-Technology (which shall include practical tests in these subjects) and Mathematics or any other elective subject with English at a level not less than the core course for English as prescribed by the National Council of Educations Research and Training (NCERT) after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on Education.
12.3. Regulation 5 of the MCI Regulations, 1997 has provided for the procedure for selection to MBBS Course. As per the said Regulation, to be eligible for admission to MBBS Course, a candidate must have passed in the subjects of Page 18 of 41 Physics, Chemistry, Biology/Bio-Technology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Bilogy/Bio-Technology at the qualifying examination as mentioned in Clause (2) of Regulation 4 and in addition must have come in the merit list of 'National Eligibility-cum-Entrance Test' for admission to MBBS Course. In respect of candidates belonging to SC, ST or OBC the minimum marks in Physics, Chemistry and Biology/Bio-Technology taken together in qualifying examination shall be 40% instead of 50%.
12.4. Regulation 5 has been amended by a notification dated 22.01.2018, published in the Gazette of India on 23.01.2018, by the MCI with the previous sanction of the Central Government and the same is called 'Regulations on Graduate Medical Education (Amendment), 2017', which is extracted hereunder in its entirety :-
5. Procedure for selection to MBBS course shall be as follows :
(1) There shall be a uniform entrance examination to all medical educational institutions at the under graduate level namely 'National Eligibility-cum-Entrance Test' for admission to MBBS course in each academic year and shall be conducted under overall supervision of the Ministry of Health & Family Welfare, Government of India.
(2) The "designated authority" to conduct the 'National Eligibility-Cum-
Entrance Test' shall be the Central Board of Secondary Education or any other body/organization so designated by the Ministry of Health & Family Welfare, Government of India, in consultation with the Medical Council of India.
(3) The language and manner of conducting the 'National Eligibility-Cum- Entrance Test' shall be determined by the "designated authority" in consultation with the Medical Council of India and the Ministry of Health and Family Welfare, Government of India.
Page 19 of 41(4) In order to be eligible for admission to MBBS Course for a academic year, it shall be necessary for a candidate to obtain minimum of marks at 50 th percentile in 'National Eligibility-cum-Entrance Test' to MBBS course held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, in terms of Clause 4(3) above, the minimum marks shall be at 45 th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list for admission in 'National Eligibility-cum- Entrance Test' for admission to MBBS course.
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum- Entrance Test held for any academic year for admission to MBBS Course, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to MBBS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
(5) The reservation of seats in Medical Colleges for respective categories shall be as per applicable laws prevailing in States/Union Territories. An All India merit list as well as State/Union Territory-wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in 'National Eligibility-cum-Entrance Test' and candidates shall be admitted to MBBS course from the said lists only.
(6) No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub-clause (4) above shall be admitted to MBBS course in the said academic year.
(7) No authority/institution shall admit any candidate to the MBBS course in contravention of the criteria/procedure as laid down by these Regulations and/or in violation of the judgments passed by the Hon'ble Supreme Court in respect of admissions. Any candidate admitted in contravention/violation of Page 20 of 41 aforesaid shall be discharged by the Council forthwith. The authority/institution which grants admission to any student in contravention/violation of the Regulations and/or the judgments passed by the Hon'ble Supreme Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year/years.
(8) All admission to MBBS course within the respective categories shall be based solely on the marks obtained in the 'National Eligibility-Cum-Entrance Test'.
13. From the academic credentials in respect of the percentage of marks obtained by the petitioner in the qualifying examination i.e. the Higher Secondary Science Examination under the AHSEC and the percentage score she secured in the NEET(UG)-2019, it is evident that the petitioner fulfilled the requirements of the MCI Regulations, 1997 and also those prescribed in the Information Bulletin for NEET(UG)-2019. Thus, the issue that remains to be considered is whether Rule 4(2)(b) of the 2017 Rules is incongruent to the provisions of the IMC Act, 1956 and the MCI Regulations, 1997.
14. At this juncture, it is relevant to take note of the decision rendered in Vicky Kumar Patel (supra) on 16.08.2019 by a coordinate Bench of this Court whereby Rule 4 (2)(c) of the 2017 Rules was struck down. In Vicky Kumar Patel (supra), the petitioner appeared in NEET(UG)-2018 after securing an average of 57% marks in Physics, Chemistry and Biology in the Higher Secondary (Science) Examination conducted by the AHSEC. Though as per his rank in the NEET(UG)-2018 All India Ranking he was found eligible to be admitted in the MBBS Course under the State Quota because of his name figuring at serial no. 332 and was called for counseling, he was denied admission as under Rule 4 (2)(c) of the 2017 Rules the candidate had to obtain a minimum of 60% of marks taken together in Physics, Chemistry and Biology/Biotechnology at the Page 21 of 41 qualifying examination in case of candidates belonging to general/unreserved category.
15. In Vicky Kumar Patel (supra) the objects, relevance and effects of the provisions of Section 10D, Section 19A and Section 33 of the IMC Act, the MCI Regulations of 1997, as amended, and the 2017 Rules came up for consideration for the purpose of examining as to whether there was any conflict amongst the these provisions qua Article 254 of the Constitution of India r/w Entry 66 of List I, Entry 11 of List II and Entry 25 of List III of the VII Schedule of the Constitution of India. As for the purpose of adjudication of the issue involved in the present case the observations made by the coordinate bench in Vicky Kumar Patel (supra) in the context of submissions advanced by the parties herein are found to be relevant and of import, we like to refer to the relevant parts of the said decision herein below :-
"2. By this application under Article 226 of the Constitution of India, the petitioner has called into question Rule 4(2)(c) of the Medical Colleges & Dental Colleges of Assam (Regulation of Admission into 1st year MBBS Course) Rules, 2017 (for short, "2017 Rules"), as notified on 01.07.2017 by the Health & Family Welfare Department, Government of Assam.
* * * * * * * * * * *
9. Entry 66 of List I of the VII Schedule of the Constitution of India reads as under:-
"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
10. Initially, Entry 11 of List II of the VII Schedule conferred exclusive power to the State to legislate on "Education, including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III." Entry 11 of List II was deleted and Entry 25 of List III was amended with effect Page 22 of 41 from 03.01.1976 by virtue of Constitution (42nd Amendment) Act, 1976 and after such amendment, Entry 25 of List III reads as under:-
"Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."
11. It is to be noted that Entry 25 itself restricts the field of legislation as it is indicated that such law framed by the State Legislature shall be subject to Entries 63, 64, 65 & 66 of List I.
12. Thus, now the authority of the State to regulate admission to the courses of study in medical education is traceable to Entry 25 of List III of the VII Schedule of the Constitution of India.
13. Section 19A of the 1956 Act expressly empowers the MCI to prescribe the minimum standards of medical education required for granting undergraduate medical qualification by Universities or Medical Institutions in India.
14. In exercise of powers conferred by Section 33 of the 1956 Act, the MCI, with the previous sanction of the Central Government, had made the 1997 Regulations. The 1997 Regulations have undergone amendments from time to time.
15. In respect of List III of the VII Schedule, both the Parliament and the State Legislatures have legislative competence to enact laws on the subjects as indicated in Entry 25. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. Article 254(2) of the Constitution of India provides that where a law made by the Legislature of a State with respect to one of the matters Page 23 of 41 enumerated in VII Schedule contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. However, nothing in Article 254(2) prevents the Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. [see T. Barai (supra); M.P. Shikshak Congress (supra); Adhiyaman Educational & Research Institute (supra); Mar Appraem Kuri Co. Ltd. (supra) and Modern Dental College & Research Centre & Ors. (supra)].
* * * * * * * * * * *
18. Thus, power of the State to prescribe higher qualification than the minimum qualification laid down by MCI in 1997 Regulations was the legal position before NEET was introduced. It is now to be seen whether with the holding of NEET, there is any change in the legal firmament.
19. Question that arises is as to whether with the holding of NEET, the State can still continue to prescribe qualifications for admission into Medical Colleges which is higher than the eligibility qualification for appearing in the NEET or whether such a prescription of eligibility criteria will fall foul with the 1956 Act and 1997 Regulations.
20. In Christian Medical College, Vellore1 (supra), amongst others, whether the MCI and DCI has jurisdiction and authority to regulate the process of admissions into Medical Colleges and Institutions run by the State Government, private individuals (aided and unaided), educational institutions run by religious and linguistic minorities in the guise of laying down minimum standards of medical education, as provided for in Section 19A of the 1956 Act and under Entry 66 of List I of Schedule VII, was an issue. Whether NEET offends Article 19(1)(g) and Article 30 was also an issue. It was held that role attributed to MCI and DCI is restricted to laying down standards which are uniformly applicable to all Medical Colleges and 1 Christian Medical College, Vellore & ors. vs. Union of India & ors., (2014) 2 SCC 305;
Page 24 of 41Institutions in India to ensure the excellence of medical education and accordingly, had held that MCI is not empowered under the 1956 Act to actually conduct NEET. However, by the order dated 11.04.2016 passed in review applications in Medical Council of India2 (supra), the aforesaid judgment was recalled and matters were directed to be heard afresh.
21. In Modern Dental College & Research Centre3 (supra), a constitution Bench had held that Entry 66 of List I is a specific entry having a very specific and limited scope. It deals with coordination and determination of standards in institution of higher education or research as well as scientific and technical institutions. The words "coordination and determination of standards" would mean laying down the said standards for which exclusive domain is given to the Union. It was held that Dr. Preeti Srivastava (supra) did not exclude the role of States altogether from admissions and accordingly, had overruled certain judgments taking contrary view, such as Bharati Vidyapeeth -Vs- State of Maharashtra, reported in (2004) 11 SCC 535, wherein it was observed that entire gamut of admission falls under Entry 66 of List I.
22. The Hon'ble Supreme Court in Sankalp Charitable Trust4 (supra), taking note of the decision in Modern Dental College & Research Centre (supra), had held that admission involved two aspects. First, the adoption of setting up of minimum standards of education and coordination of such standards which aspect is covered expressively by Entry 66 of List I. The second aspect is with regard to implementation of the said standards which is covered by Entry 25 of List III. On the said aspect, the State could also legislate. The two Entries overlapped to some extent and to that extent, Entry 66 of List I prevails over the subject covered by Entry 25. It was noted that NEET provides for eligibility for admission to the MBBS/BDS Course.
23. Thus, a State has the right to control education including medical admission so long as the field is not occupied by any Union Legislation. However, while controlling education in the State, the State cannot impinge on standards in institutions for higher education because determination of 2 Medical Council of India vs. Christian Medical College, Vellore, (2016) 4 SCC 342; 3 Modern Dental College & Research Centre & ors. vs. State of M.P. & ors., (2016) 7 SCC 353; 4 Sankalp Charitable Trust & anr. vs. Union of India & ors., (2016) 7 SCC 487;
Page 25 of 41standards in institutions for higher education is exclusively in the domain of the Union Government.
* * * * * * * * * * *
26. Thus, with the insertion of Section 33(mb), MCI is empowered to make Regulations, with the previous sanction of the Central Government, to provide for designating authority, other languages and the manner of conducting of entrance examination to all medical educational institutions at the undergraduate and post-graduate level.
* * * * * * * * * * *
31. The uniform entrance examination in the form of NEET is conducted by virtue of Section 10D of the 1956 Act and the 1997 Regulations. As noticed earlier, Section 10D along with Section 33(mb) came into force w.e.f. 24.05.2016. 2017 Rules, thus, were framed after Section 10D and Section 33(mb) had come into effect.
32. The procedure for selection goes to show that there shall be a uniform entrance examination to all medical educational institutions at the undergraduate level, which is NEET, for admission to MBBS Course in each academic year and in order to be eligible for admission to MBBS Course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at notified percentile in the NEET held for the relevant academic year. For appearing in the NEET, eligibility criteria has been prescribed under the 1997 Regulations, as amended. An All India Merit List as well as State/Union Territory-wise Merit List of the eligible candidates shall be prepared on the basis of marks obtained in NEET and candidates shall be admitted to MBBS Course from the said lists only. All admission to MBBS Course within the respective categories shall be based solely on the marks obtained in NEET. No authority/institution shall admit any candidate to the MBBS Course in contravention of the criteria/procedure as laid down by the Regulations. The reservation of seats in Medical Colleges for respective categories, however, shall be as per applicable laws prevailing in States/Union Territories.
Page 26 of 4133. Uniform entrance examination in the form of NEET is conducted for the purpose of admission. States/Union Territory-wise Merit List of the eligible candidates is also prepared on the basis of marks obtained in NEET for the purpose of admission to MBBS Course from the said lists. Thus, the uniform entrance examination takes within its fold aspects relating to admission to Medical Institutions by laying down eligibility criteria in respect of merit. In that view of the matter, impugned Rule 4(2)(c) of the 2017 Rules requiring the candidates to obtain minimum marks in the qualifying examination which is more than the minimum marks required as eligibility prescription to appear in NEET, can negate the candidature of a candidate, who finds place in the merit list of NEET for admission, and, therefore, the Rule 4(2)(c) is directly in conflict with Section 10D of the 1956 Act and the 1997 Regulations. It is no longer a case of MCI prescribing minimum qualifications in respect of which, without impeaching such minimum qualifications, it is permissible for the State to prescribe additional or further qualifications of eligibility and to that extent, we are of the opinion that the decisions rendered in the case of Dr. Preeti Srivastava (supra) and Siddhartha Sarkar (supra) are distinguishable. There was no NEET or for that matter, Section 10D of the 1956 Act at the time when judgements in Dr. Preeti Srivastava (supra) and Siddhartha Sarkar (supra) were rendered.
34. The submission advanced by Mr. Saikia on the basis of the expression "all other existing eligibility criteria" appearing at Clause 3 of "Reservation of seats and Admission in Medical/Dental Colleges" and "subject to their applicable rules" appearing at Clause 2 of the Counselling Details of the Admission Notice, that the same fortify that the Rules framed by the State have to be taken into consideration at the time of admission, has to be understood in the overall context of the procedures laid down for the purpose of admission. Clause 1 of "Reservation of seats and Admission in Medical/Dental Colleges" lays down that All India Merit List and All India Rank of the qualified candidates shall be prepared on the basis of the marks obtained in NEET and candidates shall be admitted to MBBS/BDS Courses from the said lists by following the existing reservation policies. Clause 2 indicates that all admissions to MBBS/BDS Courses within the respective categories shall be based solely on marks obtained in NEET. Merit is Page 27 of 41 determined by NEET. The word "other" in the expression "all other existing eligibility criteria" excludes any eligibility criteria with regard to merit laid down by any Rules framed by the State. The words "applicable rules" at Clause 2 under the heading "Counselling Details" refer to Rules which are only applicable and not inconsistent with the 1997 Regulations, as amended.
35. In view of the above discussions, Rule 4(2)(c), which prescribes an eligibility condition for admission, which is above the eligibility criteria fixed for appearing in NEET, is repugnant to Section 10D of the 1956 Act and the 1997 Regulations, as amended, and, therefore, ultra vires. Accordingly, we strike down Rule 4(2)(c) of the 2017 Rules."
16. Section 19A of the IMC Act, 1956 has provided power to the MCI to prescribe the minimum standards of medical education required for granting recognized medical qualifications (other than post-graduate medical qualifications) by Universities or Medical Institutions in India. A perusal of the same indicates that Section 19A is related with minimum standard of medical education required for granting recognized medical qualifications like MBBS. In the present case, we are not considering any issue related with minimum standard of medical education to be observed for grant of medical qualification like MBBS as the issue involved herein is with regard to eligibility and qualification required to be possessed by a candidate to get admission into an institution which imparts medical education leading to a degree like MBBS. The said position has been rightly been taken note of by the coordinate Bench in paragraph 13 in Vicky Kumar Patel (supra).
17. The coordinate Bench in Vicky Kumar Patel (supra), more particularly, in paragraph 15 thereof, had succinctly observed the position of law in respect of Central Legislation vis-à-vis State Legislation operating in the same field qua Article 254 of the Constitution of India read with the fields of legislation in Schedule VII of the Constitution of India. As we wholly agree with the said Page 28 of 41 settled position of law, we refrain ourselves to deliberate any further on that aspect for the sake of gravity but to reiterate the same.
18. The decisions in Dr. Preeti Srivastava (supra) and Siddhartha Sarkar (supra) were duly taken note of by the coordinate Bench in Vicky Kumar Patel (supra). It was only after due consideration of the said two decisions, the coordinate Bench had found the said two decisions distinguishable in view of incorporation of Section 10D by way of amendment in the IMC Act, 1956 and introduction of the National Eligibility-cum-Entrance Test as the Uniform Entrance Examination in the following words :-
"16. In Dr. Preeti Srivastava (supra), it was observed that the MCI had been set up as an expert body to control the minimum standards of medical education and to regulate their observance and as such, has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. It was held that a State has the right to control education including medical education so long as the field is not occupied by any Union Legislation and that the State cannot, while controlling education in the State, impinge on standards in institutions for higher education as this is exclusively within the purview of the Union Government. Norms for admission have connection with standard of education but there can be Rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I and categorically stated that a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. However, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Additional or further qualifications may be laid down as the same would not be contrary to Entry 66 of List I since additional qualifications are not in conflict with the Central Regulations but are designed to further the objective of the Central Regulations which are to promote proper standards.Page 29 of 41
17. In Siddhartha Sarkar (supra), Rule that had fallen for consideration is almost identical to the present Rule. It was stipulated that in case of MBBS/BDC Courses, the candidates must have passed the qualifying examination without any grace marks in the subjects of Physics, Chemistry and Biology individually in the same sitting obtaining a minimum of 60% marks taken together in the said subjects in the qualifying examination in respect of candidates belonging to General Category. This Court relied upon Dr. Preeti Srivastava (supra) to conclude that the issue was no more res integra and had accordingly negated the challenge to the higher minimum qualification prescribed by the State. The Court also did not find favour with the argument advanced in connection with 15% seats available under All India Quota, as is submitted by Mr. Sarania."
18.1.Thereafter, the Court in Vicky Kumar Patel (supra) in paragraph 18 onwards, quoted above, explained why after introduction of Section 10D in the IMC Act, 1956 and the amendments in the MCI Regulations, 1997, the said two decisions were distinguishable in the changed scenario and we have found no reason to differ with the said view.
19. In the two affidavits-in-opposition filed on behalf of the respondent nos. 1 and 2, it is contended that the petitioner failed in the subject of Physics in Class-XII examination held in the year 2012 and she passed in the subject only in 2013 at a separate sitting making her ineligible in view of Rule 4(2)(b) of the 2017 Rules. The affidavits have more elaborately dealt with the matter of alleged ineligibility of the petitioner with regard to her NIOS qualification for which the impugned decision dated 02.07.2019 was taken by the Counseling Committee while rejecting her candidature for admission into the MBBS Course.
20. As has been noted above, the MCI had framed the MCI Regulations, 1997 in exercise of powers conferred on it by Section 33 of the IMC Act, 1956 with the previous sanction of the Central Government. A number of amendments have been carried out from time to time in the MCI Regulations, 1997 by various notifications with their publication in the Gazette of India. Thus, it is a Page 30 of 41 subordinate legislation coming within the purview of Central legislation. On the other hand, the 2017 Rules is a State legislation. The law is well settled that to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made under the Central legislation even if it is under Entry 25 of the List II it shall be repugnant to the Central legislation and would be inoperative. The issue that has arisen here is whether Rule 4(2)(b) of the 2017 Rules, a State legislation, is in conflict and incongruous with the Central legislation, more particularly, Section 10D r/w Section 33 of the IMC Act and the IMC Regulations, 1997, as amended.
21. The MCI Regulations, 1997 has stipulated for a candidate, to be eligible for admission to MBBS Course, to obtain pass marks in the subjects of Physics, Chemistry, Biology/Bio-Technology and English individually and to obtain a minimum 50% marks taken together in Physics, Chemistry and Biology/Bio- Technology at the qualifying examination. The said eligibility criteria for the candidate belonging to SC, ST or OBC have been set at 40%. No restriction has been imposed to the effect that a candidate has to obtain the said eligibility at one sitting in the qualifying examination.
22. During the course of proceedings before the Hon'ble Delhi High Court in Anshul Agarwal (supra), the MCI had issued a detailed clarification on eligibility and disqualification. Then the Hon'ble Delhi High Court had directed the MCI to place the same for information of all concerned on the website of the MCI. Accordingly, a Public Notice bearing no. MCI-7(10)/2018-Legal/15264 dated 24.04.2018 came to be published. For ready reference, the relevant parts of the said Public Notice are extracted hereunder :-
PUBLIC NOTICE MCI-7(10)/2018-Legal/15264 24.04.2018 Page 31 of 41 Clarification on behalf of Medical Council of India in respect of the various categories of candidates who wish to appear in NEET-UG-2018 after the Amendment Notified on 22.01.2018 to the Regulations on Graduate Medical Education, 1997 whereby proviso to Regulation 4(2)(a) has been inserted This is to inform all concerned that in WP(C) No. 1813 of 2018 - Anshul vs. Union of India & Ors and connected matters before the Hon'ble High Court of Delhi the proviso to Regulation 4(2)(a) of the Graduate Medical Education Regulation, 1997 notified in the Official Gazette on 23.01.18 has been challenged.
2. During the course of proceedings on 24.04.18 the Council has submitted the following chart whereby a clarification regarding eligibility of various categories of candidates who wish to appear in the NEET-UG-2018 has been submitted to the Hon'ble Division Bench of the Hon'ble High Court of Delhi.
It has been directed by the Hon'ble High Court to place the below-mentioned chart for information of all concerned on the website of the Council.
S. No. Particulars Rationale / Status
3. Candidates having studied Class Meets the test of regular and
11th & Class 12th in Classroom continuous two years of study
Mode in a Regular School but of Physics /Chemistry /Biology
have failed in a subject in Class or Biotechnology alongwith 12th for which he/she shall take practicals taken together in the Compartment Examination Class 11th & 12th, hence Eligible. from the Recognized Board to which the School is affiliated and successfully clears the Compartment Examination.
23. From the contents of the said Public Notice it is evident that the MCI who has framed the MCI Regulations, 1997 with the sanction of the Central Government, is conscious of the fact that a candidate may obtain the requisite qualification as per the said Regulations by taking the Compartmental Examination in a subject after having studied Class-XI and Class-XII in a regular school and has observed that such a candidate would meet the test of regular Page 32 of 41 and continuous two years of study of Physics/Chemistry/Biology or Bio- Technology along with practicals taken together in Class-XI and Class-XII. The MCI has held that such a candidate meets the qualification criteria for admission into the MBBS Course. The Regulations on Graduate Medical Education (Amendment), 2017 was published in the Gazette of India on 23.01.2018 and the Public Notice was made on 24.04.2018. There appears to be no change in the fact situation till date.
24. The core issue that arose for consideration in Yatinkumar Jasubhai Patel (supra) was whether after the introduction of the NEET Scheme the 'institutional preference' in the Post-Graduate Medical Courses would be permissible. The Hon'ble Supreme Court took note of the fact that in a catena of decisions, more particularly, in Pradeep Jain vs. Union of India, (1984) 3 SCC 654; Saurabh Chaudri vs. Union of India, (2003) 11 SCC 146; and Saurabh Dwivedi vs. Union of India, (2017) 7 SCC 626 it was held that 'institutional preference' in Post Graduate Medical Courses was permissible. Notice was also taken of the fact that 50% seats were filled up on merit drawn on all India basis and 50% seats were filled up on merit drawn on State-Wise basis. It was argued that with the introduction of the NEET Scheme and in view of Section 10D of the IMC Act, 1959 by which admissions were to be given on the basis of merit in the NEET, there was no scope for institutional preference, as legislated by the State.
24.1.It was in the backdrop of the aforesaid fact situation, the Hon'ble Supreme Court had observed that introduction of the NEET had, as such, nothing to do with any preference/institutional preference. The purpose and object of the introduction of NEET was to conduct a Uniform Entrance Examination for all medical educational institutions at the undergraduate level or post-graduate level and admissions at the undergraduate level and post-graduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It has been observed that merit is to be determined on the Page 33 of 41 basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralized admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to post-graduate and PG and diploma courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore, by introduction of NEET, Section 10D of the IMC Act, 1956 has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to post-graduate courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on NEET. Considering the earlier decisions noted above, the institutional preference to the extent of 50% was approved and it was observed that introduction of the NEET Scheme shall not affect such institutional preference/reservation and a regulation providing for 50% institutional preference/reservation shall not be ultra vires to Section 10D of the IMC Act, 1956 considering the fact that even in the case of institutional preference/reservation by way of State registration, the admissions in the post- graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only.
24.2.It is pertinent to note that in Yatinkumar Jasubhai Patel (supra), the decision in Dr. Preeti Srivastava (supra) was not considered. It was in the context of admission into Post-Graduate Medical courses. Even in such a case, it was held that merit is determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in the NEET. The principle deductible therefrom is that in so far as merit is concerned it is the NEET examination which determines it and the State or its agencies has to give admissions in the Medical Courses in the medical educational institutions under it on the basis of the results of the candidates obtained in the NEET examination only.
Page 34 of 4125. Reverting that to the decision of the coordinate bench in Vicky Kumar Patel (supra) we find that it has been held therein that the Uniform Entrance Examination in the form of NEET is conducted for the purpose of admission and State-Wise merit list of eligible candidates is to be prepared on the basis of marks obtained in the NEET for the purpose of admission to the MBBS Course from the said list. The Uniform Entrance Examination i.e. the NEET takes within its fold aspects relating to admission to medical institutions by laying down eligibility criteria in respect of merit. It has been held that it is no longer a case of the MCI prescribing minimum qualification in respect of which it is permissible for the State to prescribe additional or further qualifications of eligibility over and above the eligibility prescription which has been prescribed to appear in the NEET. In other words, after the introduction of the NEET with the insertion of Section 10D in IMC Act, 1956 and the eligibility criteria prescribed by the MCI Regulations, 1997, as amended, where the eligibility criteria to appear in the NEET for the purpose of getting admission into the MBBS Course in Medical Colleges all over India has been prescribed it is no longer permissible for any State to prescribe any additional or further qualifications of eligibility.
26. Official Liquidator (supra) has recapitulated the doctrine of binding precedent by restating the well settled position that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of different arguments or otherwise, on a question of law, it is appropriate for the subsequent Bench of coordinate jurisdiction to refer the matter to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate. No coordinate Bench can comment upon and sit in judgment over the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench. If a coordinate Bench does not agree with the principle of law enunciated by another coordinate Bench, the matter has to be referred to a larger Bench.
Page 35 of 4127. In view of the discussion made above, we find no apparent conflict between the decisions in Vicky Kumar Patel (supra) and Yatinkumar Jasubhai Patel (supra). When the 2017 Rules were notified on 01.07.2017, Section 10D was already in the IMC Act, 1956 w.e.f. 24.05.2016. The eligibility criteria with regard to qualifying examination was brought in the MCI Regulations, 1997 vide Clause (2) of Regulation 4 in 2018. The MCI had further clarified with regard to said eligibility before the Hon'ble Delhi High Court in Anshul Aggarwal (supra) and by way of its Public Notice dated 24.04.2018 wherefrom it is apparent that a candidate meets the eligibility criteria of qualifying examination for getting admission into the MBBS Course if such a candidate after having studied the subjects of relevance in Class-XI and Class-XII with practicals in class room mode, as indicated in Public Notice dated 24.04.2018, and after having failed in a subject in Class-XII examination, passes the said subject in the Compartmental examination. It is the legal position that if a provision in a State legislation is repugnant to any provision in a Central legislation including sub- ordinate legislation irrespective of the fact whether the State legislation was passed before or after the Central legislation it is the Central legislation which will prevail. It is not the case of the State respondents that the 2017 Rules, notified on 01.07.2017 and published in the Official Gazette on 11.07.2017, was reserved for consideration of the President and had received the assent.
28. As no conflict is found between the decisions in Vicky Kumar Patel (supra) and Yatinkumar Jasubhai Patel (supra) the decision in Official Liquidator (supra), relied on by the learned counsel for the State respondents, is found not applicable to the fact situation obtaining in the case in hand. It needs mention that a review application, Review Petition no. 130/2019 [The State of Assam and others vs. Vicky Kumar Patel] preferred against the judgment and order dated 16.08.2019 passed in W.P.(C) no. 4472/2018 [Vicky Kumar Patel vs. State of Assam and others] was dismissed on 15.12.2020.
Page 36 of 4129. In such view of the matter, the prescription of passing all the four subjects of Physics, Chemistry, Biology/Bio-Technology (which shall include practical tests in these subject) and English of the qualifying examination in the same sitting as laid down in Rule 4(2)(b) in the 2017 Rules, runs contrary to the eligibility criteria prescribed by the Central legislation for getting admission into MBBS Course in the face of no such restriction of requiring to pass the said four subjects in the Central legislation in the same sitting as it amounts to prescribing additional or further qualification of eligibility which is not permissible.
30. Accordingly, we are of the considered view that Rule 4 (2)(b) of the 2017 Rules is repugnant to Section 10D of the IMC Act, 1956 and the MCI Regulations, 1997, as amended, and it is ultra vires. As a result, we strike down Rule 4(2)(b) of the 2017 Rules.
31. In view of striking down of Rule 4(2)(b) of the 2017 Rules, the next issue to be considered is as to whether the petitioner can be considered for granting the relief of admission into the MBBS Course in the present academic year on the basis of her result in the NEET(UG)-2019.
32. The issue arose for consideration in S. Krishna Sradha (supra), on reference, was whether a student, a meritorious candidate, for no fault of his/her and who had pursued his/her legal right expeditiously without delay, could be denied admission in MBBS Course because of the expiry of the cut-off date. The issue was referred to the three-Judge Bench noticing two conflicting decisions in Asha vs. Pt. B.D. Sharma University of Health Science, reported in (2012) 7 SCC 389 and Chandigarh Administration vs. Jasmine Kaur, reported in (2014) 10 SCC 521. After considering the afore-mentioned two decisions of two-Judge Benches, the three-Judge Bench had answered the reference on 13.12.2019 in the following terms :-
Page 37 of 41"33. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:
(i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest.
(ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed - 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving Page 38 of 41 an opportunity of hearing to a student whose admission is sought to be cancelled.
(iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.
(iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.
(v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course."
33. The directions, quoted above, in S. Krishna Sradha (supra) pertained to admission in MBBS Course only. A two-Judge Bench in Civil Appeal no. 3940/2020 [National Medical Commission vs. Mothukuru Sriyah Koumudi & Ors.], rendered on 07.12.202, has also observed that the directions issued in S. Krishna Sradha (supra) case can be made applicable to admission to Post- Graduate Courses as well.
Page 39 of 4134. From the chronology of events delineated above, it can be noticed that after denial of admission into the MBBS Course in the Counseling Session on 02.07.2019, the petitioner has approached this Court expeditiously and without much delay on 12.07.2019. During the course of adjudication, one of the factors for consideration was the pendency of the Review Petition no. 130/2019, preferred by the State of Assam and others against the judgment and order dated 16.08.2019 passed in Vicky Kumar Patel (supra), which was dismissed on 15.12.2020. The case of the petitioner was considered for admission into the MBBS Course on 02.07.2019 which goes to show that she was otherwise eligible to be considered for admission into the MBBS Course in terms of her rank and score in the NEET(UG)-2019 and it is not denied that the candidates positioned below her were granted admission into the MBBS Course in the Medical Colleges under the Director of Medical Education, Assam. It was in view of presence of Rule 4(2)(b) in the 2017 Rules, notified on 01.07.2017, which is found repugnant to Section 10D of the IMC Act, 1956 which came into effect from 24.05.2016 and the MCI Regulations, 1997, as amended, the petitioner was denied admission into the MBBS Course unjustifiably, arbitrarily and illegally. Thus, the petitioner was denied of a fair treatment.
35. It is also settled that the denial of admission in such manner with no fault of a candidate is violative of the principle embodied in Article 14 of the Constitution of India. The denial of admission of the petitioner in Vicky Kumar Patel (supra) in view of the decisions in S. Krishna Sradha (supra) and National Medical Commission (supra), cannot be a ground of denial of admission to the petitioner in the present case. It has been informed at the bar that counseling for admission into MBBS/BDS Courses for the Medical Colleges/Dental Colleges in the State is going on at present and the same will come to an end on 31.12.2020 with a mopping-up Counseling Session.
36. Considering all the above fact situation obtaining in the case, it is directed that the respondent authorities, more particularly, the respondent no. 2 shall Page 40 of 41 consider the case of the petitioner for admission into the MBBS Course in any of the Medical Colleges under the State respondents in her respective category as per her entitlement, subject to fulfillment of other criteria in the 2017 Rules, save and except Rule 4(2)(b) of the 2017 Rules which has been struck down hereinabove and also Rule 4(2)(c) of the 2017 Rules which has been struck down in Vicky Kumar Patel (supra). The entire exercise shall be carried out on or before 31.12.2020.
37. With the observations made and directions given above, this writ petition stands allowed. There shall, however, be no order as to cost.
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant
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