Rajasthan High Court - Jaipur
Shreya Basnet vs Union Of India And Ors on 5 February, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.102/2018
Shreya Basnet D/o Sh. Shailendra Bahadur Basnet, Aged About 19
Years, R/o Shivshakti Marg, 03, Biratnagar, Morang Nepal
----Petitioner
Versus
1. Union of India Through Its Secretary Ministry of Health & Family
Welfare, Nirman Bhavan, New Delhi 110011
2. Medical Council of India, Through Its Secretary, Pocket-14,
Sector 8, Dwarka Phase- 1, New Delhi- 110077
3. Mahatma Gandhi Medical College & Hospital Through Its
Principal (A Unit of India Education Trust), RIICO Institutional
Area, Sitapura, Tonk Road, Jaipur, Rajasthan-302022.
4. Mahatma Gandhi University of Medical Sciences & Technology
Through Its Registrar, RIICO Institutional Area, Sitapura, Tonk
Road, Jaipur, Rajasthan-302022.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Ajat Shatru Mina
For Respondent(s) : Mr. Angad Mirdha,
Mr. Saransh Saini,
Mr. R.D. Rastogi, Addl. Solicitor General with
Mr. Ashish Kumar.
_____________________________________________________
HON'BLE MR. JUSTICE ALOK SHARMA
Judgment
05/02/2018
Admitted as foreign national in the NRI quota to
the 5 year MBBS course at the Mahatma Gandhi Medical
College and Hospital, Jaipur (hereafter 'the College') in the
academic year 2016-17 and having spent a year and two
(2 of 11)
[CW-102/2018]
months studying in the said course, vide impugned letter
dated 19th September, 2017, the petitioner on the
recommendation of MCI to the College on 13 th September,
2017, has been discharged and since then not allowed to
continue in 5 year MBBS course. In the circumstances, the
letters dated 13th September, 2017 by MCI to the Principal of
College as also the consequent discharge of petitioner by the
Principal of College on 19th September 2017 are under
challenge in this petition.
Mr. Ajat Shatru Mina appearing for the petitioner
submitted that prior to admission to MBBS in the Academic Year 2016-17 foreign nationals were not allowed to write the NEET 2016 examination. It was submitted that hence the petitioner a foreign national sought admission into the 5 year MBBS course in the quota of NRIs in the Mahatma Gandhi Medical College and Hospital on the strength of her marks in the Secondary and Sr. Secondary School examination conducted by the Central Board of Secondary Education while she was a student of the Vidya Devi Jindal School, Hisar, Haryana. She was admitted in the said MBBS course on the (3 of 11) [CW-102/2018] recommendation of the State Government and now under the impugned letters stands discharged. This has caused her injustice and unless rectified will result in irreparable loss. Mr. Ajat Shatru Mina submits that petitioner's case is identical to that of Ms. Mashal, citizen of Pakistan, who was admitted to MBBS in SMS Medical College, Jaipur and Ms. Riecha Joshi, citizen of Nepal, who was admitted to MBBS in Medical College, Kota in Academic Year 2016-17 without appearing in NEET, 2016. Their admissions have been yet regularized under the letter dated 26/27th October, 2017 under the hand of the Secretary, Medical Education. This entails an inevitable inference that foreign students are not mandatorily required even to write the NEET examination what of securing the minimum prescribed percentage under the Graduate Medical Education Regulations, 1997 as amended in 2010 (hereafter 'Graduate Regulations') for admission into Medical College / MBBS course in the Academic Year 2016-17. Mr. Ajat Shatru Mina further submitted that Graduate Regulations cannot in the circumstances be taken to exclude altogether admission of foreign students to the MBBS course in Academic Year (4 of 11) [CW-102/2018] 2016-17 without participation in NEET examination, 2016. Mr. Ajat Shatru Mina in the alternative submitted that even in equity, the petitioner has a case for this court to interfere and quash the impugned communications as she has expanded 14 months in pursuing the MBBS course subsequent to her admission in August, 2016 and expanded both time and money. Further, the seat in issue, Mr. Ajat Shatru Mina, submitted would stand lapsed and would be of no avail to any other at this stage even if the petitioner is discontinued as she has been under the impugned letter dated 19 th September, 2017 consequent to MCI's letter dated 13th September, 2017.
Per Contra, Mr. Angad Mirdha, appearing for MCI submitted that admissions to graduate medical courses are to be determined strictly in terms of the Graduate Regulations. He has drawn the attention of this Court to Regulation 5.5(V) of the aforesaid regulations to submit that it is mandatory that all admissions to MBBS course within the respective categories be based without any variation solely on marks obtained in the National Eligibility-cum-Entrance Test. It has (5 of 11) [CW-102/2018] been submitted that the words "respective categories" in the said regulation would necessarily include the NRI category / foreign students seeking to avail a vacancy in the said quota. Mr. Angad Mirdha submitted that in this view of the matter on the face of the governing regulations, the petitioner was not eligible to be admitted into MBBS course without having passed NEET, 2016 and even if she was admitted on the basis of the State Government's recommendations, no right to regularization is made out. It was submitted that in-fact under the Graduate Regulations, the State Government has no power to make any recommendation for regularization of an admission wrong made to the MBBS course without passing a NEET. Mr. Angad Mirdha further submitted that even the Central Government under the Graduate Regulations does not have the power to facilitate admissions or their regularization contrary to the said Regulations which effectively prohibit admissions without passing the NEET examination. Mr. Angad Mirdha referred to the judgment of the Apex Court in Rishabh Choudhary Versus Union of India & Ors. {2017 (3) Supreme Court Cases 652}, where it was held (6 of 11) [CW-102/2018] that any admission to MBBS 2016-17 without passing NEET 2016 even in respect of the seats in the NRI quota not be regularized or continued. Mr. Angad Mirdha submitted that the law laid down in respect of NRI students would ipso facto apply to foreign students seeking admission in the NRI quota. Mr. Angad Mirdha also submitted that even if foreign students were not allowed to write NEET Examination, 2016, as contended by counsel for the petitioner, it is of no avail as such a situation cannot entail the circumvention of the mandatory regulation 5.5 (V) of the Graduate Regulations. It was submitted that in the event the petitioner sought to write the NEET Examination, 2016 and was not yet permitted, it was for her to have then approached this Court and sought an appropriate direction. She however failed to do so at her own peril and cannot now make capital thereof. Mr. Angad Mirdha then relied upon an order of the Apex Court passed in the case of Vigyan Bharati Trust Versus Union of India & Ors. in IA No 5/2016 in Writ Petition (Civil) No. 490/2014 on 11.5.2016 to submit that the Apex Court seized of the issue with regard to filling up of 15% seats under the NRI (7 of 11) [CW-102/2018] quota proceeded to clarify that only such NRI students who had passed the NEET examination would be eligible for admission to MBBS in the NRI quota in the academic year 2016-17. Mr. Angad Mirdha submitted that the petitioner seeks directions contrary to Graduate Regulations-- particularly Regulation 5.5(V) as also the judgments of the Apex Court and hence being without any legal foundation be dismissed.
Heard. Considered.
No doubt the petitioner was admitted to the 5 year MBBS course in the College in August, 2016 for the Academic Year 2016-17 and at the time of her discharge therefrom under the impugned letters in the month of September, 2017 had expanded about 14 months in the said course expanding valuable time and money in the process. In the circumstances equity would be with the petitioner if her case was not in the cross-hair of statutory provisions and judgments of Apex Court bases thereon. That statutory provision is embedded in regulation 5.5 (V) of the Graduate Regulations, which provides that:
(8 of 11) [CW-102/2018] "All admissions to MBBS course within the respective categories shall be based solely on marks obtained in the National Eligibility-cum- Entrance Test."
The plain language of the said regulations is per- emptory and does not allow for any deviation. Admittedly the petitioner has for whatever reasons not written the NEET, 2016 examination. She thus has not passed NEET Examination and is not entitled to be admitted into the 5 year MBBS course in the Academic Year 2016-17 or otherwise. If at all the petitioner was indeed aggrieved of not being allowed to write the NEET Examination, 2016, as alleged, for reason of being a foreign national entailing in terms of the Regulation 5.5 (v) of the Graduate Regulations her non consideration for admission into the MBBS in 2016-17, it was for her to approach the competent Court at the relevant time and seek appropriate directions to be allowed to write NEET 2016. She evidently and admittedly did not do so on her own peril.
Now from the facts on record, it is indeed apparent (9 of 11) [CW-102/2018] that two students namely Ms. Mashal, citizen of Pakistan and Ms. Riecha Joshi, citizen of Nepal have been admitted into Government Medical Colleges in the State of Rajasthan in the year Academic Year 2016-17 without having appeared and passed in the NEET, 2016 examination with statutory requisite percentages. However, the argument based on equality founded on the aforesaid fact is in the cross-hair of regulation 5.5 (v) of the Graduate Regulations. Right to Equality asserted thus is of negative equality. It is well settled that the right to equality is a positive right and can not entail claim of negative equality in the sense that if an illegality has been done, it is not for the court to perpetuate it in the exercise of its equitable extraordinary jurisdiction. No doubt the admission of Ms. Mashal, citizen of Pakistan, and Ms. Riecha Joshi, citizen of Nepal, appears to have been on the recommendation of the Ministry of External Affairs, Government of India for purported reasons of diplomatic compulsions which obviously have not been stated and is not in any event within the provisions of mandatory Graduate Regulations. That however does not make the admission of (10 of 11) [CW-102/2018] two students into MBBS course in the academic year 2016- 17 without writing the NEET, 2016 examination legal. From the Graduate Regulation, I find no provision where an exception to clause 5.5 (V) can be made even for reasons of diplomatic necessity as determined by the Ministry of External Affairs. It is for the MCI to exercise its autonomy and not be a mere client of the Ministry of External Affairs overlooking a gross illegality to its knowledge in the two admissions to the 5 year MBBS course in the cross-hairs of the provisions of the Regulation 5.5(v) of the Graduate Regulation, which Mr. Angad Mirdha, counsel appearing for it has rightly and emphatically submitted are mandatory in nature permitting of no deviation. Even otherwise the issue of NEET examination being mandatory for admission into the 5 year MBBS Course in the academic year 2016-17 had came up before the High Court of Karnataka at Bangalore in the case of Manipal University and Others Versus Union of India & Ors. (Writ Petition No. 46081/2016, 46082/2016, 46083/2016 and 46084/2016; decided on 15.9.2016) where it was held that writing the NEET examination, 2016 was (11 of 11) [CW-102/2018] absolutely essential for admission into 5 year MBBS Course in the academic year 2016-17. A challenge to the judgment of the High Court of Karnataka passed on 15.9.2016 was made by Manipal University before Apex Court in Petition for Special Leave to Appeal (C) Nos. 27805-27808/2016, which was dismissed on 28.9.2016 In these circumstances, even though sympathy in the facts of case may be with the petitioner for having expanded about 14 months as a MBBS student after her admission expanding both time and money in the process, yet in the obtaining legal position, no order as sought for quashing the letters dated 13th September, 2017 and 19th September, 2017 can be passed by this Court.
The petition is therefore, dismissed.
(ALOK SHARMA)J. DK