Indian Kanoon - Search engine for Indian Law

Mr. Vigyan Shah then submitted that while the petitioners have been excluded by the CPS Mumbai from admission to its two year Post Graduate Diploma courses on the purported ground of not having qualified and not found eligible at the NEET-PG-2017 examination, adopting a different yardsticks in the State of Maharashtra for the very same two year post graduate diploma courses, CPS-Mumbai has admitted Maharashtra in-service candidates with marks as low 8/ 9 as against the petitioners 646.7582, 589.7384 and 484.2113 marks at NEET-PG-2017. That, Mr. Vigyan Shah submitted, indicates that CPS itself admits to qualifying marks/ ranking eligibility in NEET-PG-2017 not to be relevant for admission to its two year PG diploma courses. Mr. Vigyan Shah submitted, that the petitioners thus aside of being subjected to illegality and arbitrariness, in being denied admissions to CPS PG 2 year diploma course have also been invidiously discriminated against.

Heard. Considered.

The Ministry of Health and Family Welfare, Department of Health and Family Welfare, Central Government issued notification dated 17-10-2017 (amended 22-1-2018) under Section 11(2) of the Act of 1956 after consultation with the Medical Council of India and amended the first schedule to the Act of 1956 including therein certain broad specialty diploma courses (two years courses at the post MBBS level) granted by CPS Mumbai. The said notification at note-1 clearly provided that admissions to the 2 year PG diploma courses of CPS be made on basis of NEET-PG. What do the words "NEET-PG" in the notification of 17-10-2017 under Section 11(2) of the Act of 1956 issued by the Ministry of Health and Family Welfare signify? This notification is central to the recognition and validity of the two year diploma courses conducted by CPS Mumbai as without it such courses would be of no avail. I am of the considered view that as the admissions have been made subject to NEET-PG, it has to necessarily entail, on the principle of a bonam partem construction, a situation of the candidates being NEET-PG qualified, ranked and declared eligible at the said examinations. Any other interpretation would render the requirement of NEET-PG for admission to CPS PG diploma courses wholly redundant. The information bulletin for NEET-PG-2017 categorically states that it is a qualifying-cum- ranking examination. It is thus inconceivable that while admission to CPS-PG diploma courses were made by the Central Government subject to NEET-PG, such admissions could be available to candidates who had not qualified at the said NEET-PG examination, were not ranked there at and specifically declared not to be eligible. For this reason and construction bonam partem referred to above, I would hold the requirement of NEET-PG-2017 score in clause 3.3 of the notice for admission for PG diploma and Fellowship courses of CPS (2017) in the State of Rajasthan, which is part of clause 3 dealing with eligibility, to mean a NEET-PG-2017 valid score. The principle of the construction bonam partem is that where an Act refers to a thing being done, it has to be taken as reference to a thing being lawfully done. Reference can be made, for the application of the maxim of bonam partem to the case of Gaurav Sondhi Manbir Sondhi vs. Income Tax Officer [(1991) 38 ITD 129 (Delhi)] where the words "on the basis of any return" in Section 140 A(3) of the Income Tax Act, 1961 were construed as "on the basis of any valid return". Further in UOI Vs. Kurukundu Balakrishnaiah [II(2004) ACC 591] the Larger Bench of the Andhra Pradesh High Court reiterated that it is a basic principle of legal policy that law should serve the public interest and on this principle the courts have evolved the technique of construction in bonam partem i.e. in good faith (to come to a lawful and rightful interpretation). And where a statutory benefit has been given on specified condition having been satisfied it presumes that the legislators intended the benefit to operate only when the required act was performed in a lawful manner--and I would add, validly. Further if a contrary interpretation is taken, as argued by Mr. Vigyan Shah, that the word "score" in clause 3.3 has to mean raw score without consideration of it being at or above the qualifying percentile of 42.5 (667.4111) at NEET-PG-2017, it would entail a clear absurdity as on that interpretation a score of 1 or even 0 in NEET-PG would render a MBBS graduate seeking admission to CPS-PG two year diploma course eligible.

The other argument of Mr. Vigyan Shah is based on admission to CPS-PG diploma courses 2017 in the State of Maharashtra without the threshold eligibility of the concerned students having secured the qualifying percentile of 42.5--cut off marks of 667.4111 at the NEET-PG-2017. Mr. Vigyan Shah submitted that such admission of in-service doctors in the State of Maharashtra with as low as 8 marks in NEET-PG-2017 and exclusion of petitioners from admission to the same course despite their securing marks 646.7582, 589.7384 and 484.2113 at the NEET-PG-2017 is wholly discriminatory. Mr. Vigyan Shah submitted that such admission in the State of Maharashtra also entail CPS's accepting that qualifying percentile of 42.5 and corresponding cutoff marks of 667.4111 at the NEET-PG-2017 was not the immutable criterion and eligibility, for if it were so how could the candidate in Maharashtra without the above alleged requisite eligibility be admitted. The submissions of Mr. Vigyan Shah has no merit. For one admissions to CPS-PG two year diploma are state wise and not on all India basis. They are based of independent MOUs signed by CPS with different State Governments. And where the State of Maharashtra required CPS Mumbai to overlook the qualifying percentile requirements of NEET-PG-2017 for admissions to CPS in the State of Maharashtra it did so in its wisdom and understanding of law and so did CPS accept. But it cannot bind the admissions to CPS PG diploma courses in the State of Rajasthan. CPS's case as recorded above is that it was advised by State of Maharashtra and that advice was binding on it under Section 28 of the Maharashtra Medical Council Act. That may or may not be the correct legal position but that question is not in issue in this petition. and in any event this court would lack territorial jurisdiction to address the legality and validity of State of Maharashtra's directive to CPS situate at Mumbai. And further the State of Maharashtra is not a party in this petition. Suffice to state that as a respondent in this petition, the State of Rajasthan has not issued any similar directive. Contrarily, CPS states, and that has not been denied, that the State of Rajasthan expressed concerns with the lowering and dilution of standards in Medical education. Besides it has been earlier held in the judgment that the recognition of the 2 year broad specialty diplomas of CPS as notified by the Central Government in the Ministry of Health and Family Welfare on 17-10-2017 is premised--as indicated in note-I thereof--on admissions being based on NEET-PG. and that requirement has been construed as NEET-PG qualified/ eligible. It needs no further repetition that an argument based on parity/ equality has to be founded upon a legal right and not on a demand for court's mechanical reiteration of earlier instances in the exercise of executive powers or even judicial determination. It having been held that admission to CPS-PG two year diploma courses 2017 can be open only to those who are found eligible in NEET-PG-2017, I would reject Mr.Vigyan Shah's contention based on Article 14 of the Constitution of India.

What however now remains to be addressed is Mr. Vigyan Shah's contention based on clause 38 of the MOU dated 23-12- 2015, between State of Rajasthan and CPS Mumbai which reads under:-

"Any additional qualification acquired from CPS from any other recognized state prior to signing of this MOU or henceforth shall not be barred as valid qualification and shall be registered with the Rajasthan Medical Council as per the rules prescribed by Government of Rajasthan for the purpose."