50% Marks In Science In Intermediate Exam Necessary For Foreign Qualified MBBS To Appear In Screening Test & Get Registered In India: Delhi HC

Justice Kameswar Rao observed:

"It is clear that in view of the provisions of the IMC Act, 1956, read with the regulations made there under, the petitioner was necessarily required to be eligible for admission to an MBBS course in India, i.e., he should have possessed 50% marks in Physics, Chemistry and Biology taken together for him to be issued the Eligibility Certificate to sit in the Screening Test. The petitioner, admittedly having only 47.83% marks in the three subjects, was ineligible for admission to an MBBS course in India, and as such, could not have been issued the Eligibility Certificate to enable him to sit in the Screening Test"

The petitioner had challenged an email sent to him by the National Medical Commission. Through the email NMC had rejected the application of the petitioner seeking permission to appear in the Screening Test conducted by the National Board of Examinations in Medical Sciences. The primary reason for the rejection was that the petitioner had obtained only 47.83% marks in Physics, Chemistry and Biology taken together in the 10+2 examination and as such could not have been granted the Eligibility Certificate for the Screening Test, in view of the provisions of the Indian Medical Council Act, 1956.

Petitioner argued before court that he has cleared the Intermediate Examination (Science Faculty) from Bihar School Examination Board and secured over 50% aggregate marks in Physics, Chemistry, Biology and English. In the same year of passing his Intermediate Examination, the petitioner opted to pursue an MBBS course from B.P. Koirala Institute of Health Sciences, Dharan, Nepal. The petitioner, being successful in the selection process was able to secure a seat in MBBS course in the said institution.

It is the case of the petitioner that the said institution finds its place in Section 12 read with second Schedule of the IMC Act, 1956. Reference is made to the regulations framed by the erstwhile MCI, called Regulations on Graduate Medical Education, 1997 which prescribes 50% marks in Physics, Chemistry and Biology in aggregate for pursuing an MBBS course in India.

In 2001, Section 13 of the IMC Act, 1956 was amended, whereby sub-sections 4A, 4B and 4C were inserted, which talk about requirement of clearing a Screening Test and obtaining an Eligibility Certificate for students who have obtained medical qualification from outside India, to enroll with the IMC or any State Medical Councils.

The case of the petitioner is also that the MCI vide Press Note dated October 08, 2008 clarified that the requirement of Eligibility Certificate as well as Screening Test would henceforth be applicable to all the colleges, whether recognised under Section 12 or under Section 13 of the IMC Act, 1956, which, according to the petitioner has made it clear that before the issuance of the Press Note and the time when the petitioner took admission in the concerned college, the Eligibility Regulations and Screening Test Regulations were not applicable to the petitioner or his college.

After successful completion of MBBS course and his one year internship, the petitioner, by Eligibility Registration Form, had on February 22, 2021 applied to the NMC for permission to appear in the Screening Test conducted by the NMC, however the same has been rejected on grounds above mentioned.

It is his submission that by the said Press Note, the persons from the institutions under second Schedule read with Section 12 of the IMC Act, 1956 were also made to sit in the Screening Test for getting themselves registered with the National/State Medical Councils for the purpose of practising medicine in this country. That apart, it is his submission that the eligibility criteria for admission in MBBS course in India has been prescribed under Regulation 4 and 5 of the Graduate Medical Education Regulations, 1997, which stipulates certain percentage of marks in Physics, Chemistry and Biology in aggregate, excluding Mathematics, English or any other subject or any other eligibility criteria for persons from the colleges in a foreign country is arbitrary and irrational as well as ultra vires the constitutional provisions.

He argued that the petitioner was duly admitted in the college in Nepal, which falls under Section 12 of the IMC Act, 1956, after fulfilling criteria as per Rules and Regulations and the said institution is a college of eminence recognized by the Medical Regulatory Body of Nepal and also by the World Health Organisation. He also claims that NMC recognises the institution from where the petitioner has secured MBBS.

Counsel for Central government Advocate T. Singhdev argued that the action of the NMC by stating that as the petitioner had only obtained 47.83% marks in Physics, Chemistry and Biology taken together in 10+2 examination and not 50 % marks as required under the statutory regulations, and as such, could not be considered eligible for admission to MBBS course in India. He further stated that because of such lack of eligibility, the petitioner could not have been issued the Eligibility Certificate to sit in the Screening Test. The attempt of the petitioner is only to bypass the regulations which are very clear.

In this regard he has relied upon Section 13(4A) and 13(4B) of the IMC Act, 1956 read with the Eligibility Regulations and Screening Test Regulations, and as the petitioner was ineligible for issuance of Eligibility Certificate in view of the fact that he was unable to obtain 50% in qualifying examination in the subjects of Physics, Chemistry and Biology taken together, he was rightly denied the Eligibility Certificate.

He also stated that the Eligibility Regulations, more specifically, regulation 8 therein, provides that the NMC shall consider an application for issuing Eligibility Certificate only if the candidate fulfills the eligibility criteria for admission in MBBS course in India i.e., minimum qualifying marks criteria in the subjects of Physics, Chemistry, Biology/Bio-Technology and English as prescribed in Graduate Medical Education Regulations, 1997.

He laid stress on the fact that the candidate must necessarily secure 50% marks in the subjects of Physics, Chemistry and Biology taking together, apart from passing in the said subjects, along with English individually, in the case of General category students and 40% marks in the case of candidates belonging to Schedule Cast/Schedule Tribe and Other Backward Classes.

He clarified by stating that in view of the law laid down by the Supreme Court it is clear that a candidate who intends to practise medicine in this country needs to have 50% marks in Physics, Chemistry and Biology combined in the qualifying exam of 10+2, and further has to clear the Screening Test conducted by the National Board of Examinations in Medical Sciences.

The Court after hearing both the counsels placed reliance on Yash Ahuja and Others v. Medical Council of India and Others, (2009) 10 SCC 313 wherein the question before the Supreme Court was whether the petitioners/appellants can be subjected to the Screening Test postulated by the sub-section 4A of the Section 13 of the IMC Act, 1956, as the appellants/petitioners possess medical qualification mentioned in the second Schedule.

"It is apparent from paragraph 77 of the Judgment as reproduced above, that the Supreme Court has also considered an identical submission made on behalf of the petitioners/appellants in that case and has stated that the Press Note of October 08, 2008 cannot be interpreted to preclude either the MCI or the Court in canvassing the correct interpretation of the IMC Act, 1956." Court said

In view of the above, the court said that it does not see any illegality in the impugned email. The application of the petitioner dated February 22, 2021 was rightly rejected by the NMC.

Case Title: APURV SHANKAR versus UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 346

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