Suhag Bagada Vs National Medical Commission On 28 Aug 2023

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 2944/2022
SUHAG BAGADA
S/O. HITESH KUMAR BAGADA
R/O. H-504, H-BLOCK,
INDRAPRASTHA-5, PRAHLADNAGAR,
NEAR HDFC BANK,
AHMEDABAD- 380015
(GUJARAT) ..... Petitioner
Through: Ms. Anushruti, Advocate
Versus
NATIONAL MEDICAL COMMISSION
THROUGH ITS CHAIRMAN/PRESIDENT
C/O POCKET 14 SECTOR 8
DWARKA NEW DELHI- 110077 ..... Respondent No. 1
SECRETARY,
NATIONAL MEDICAL COMMISSION,
C/O POCKET 14 SECTOR 8
DWARKA NEW DELHI- 110077 ..... Respondent No. 2
Through: Mr. T. Singhdev, Mr. Abhijit
Chakravarty, Mr. Bhanu Gulati, Mr. Aabhas
Sukhramani, Mr. Tanishq Srivastava, Ms. Anum
Hussain and Ms. Ramanpreet Kaur, Advocates for
respondent No. 1
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 24.08.2023
1. The petitioner in the instant writ petition seeks to challenge the order
dated 25.11.2021, passed by the respondent-National Medical Commission
This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 28/09/2023 at 22:49:01
(hereinafter as 'NMC') rejecting his application for grant of an eligibility
certificate with further directions to issue the eligibility certificate to him as
required under the Eligibility Requirement For Taking Admission in an
Undergraduate Medical Course in a Foreign Medical Institution Regulations,
2002 (hereinafter as „Eligibility Regulations,2002‟).
2. The facts of the case would show that after completing Class 12 th in
May, 2015 from the Central Board for Secondary Education (hereinafter as
'CBSE'), the petitioner had subsequently enrolled with National Institute of
Open Schooling (hereinafter as 'NIOS') and passed in the subject of Biology
in April, 2017 as an additional subject. The petitioner, without obtaining
prior eligibility certificate from the Medical Council of India, proceeded to
join the Foreign Medical Institute in 2017 and had taken admission in
International Education College affiliated to Xinjiang Medical University in
Urumqi, Xinjiang, China. The petitioner, thereafter, submitted an application
dated 20.07.2021 for the grant of eligibility certificate which came to be
rejected vide communication dated 25.11.2021. The impugned
communication dated 25.11.2021 reads as under:-
“Dear SUHAG BAGADA,
Your application R.15012/004808/202l-Regn has been rejected.

Kindly refer to the NMC comments:
Dear Candidate kindly refer GME Regulation 1997 chapter II
clause 2 (a). As you have not studied Biology in 11th class hence
your application is rejected.
Thank You !!
NMC Support Team”
3. Learned counsel appearing on behalf of the petitioner submits that the

petitioner is fully eligible for issuance of the eligibility certificate as the

petitioner has completed Class 12th examination alongwith the subject
Biology from NIOS. Learned counsel for the petitioner has placed reliance
on the decisions of this court in the case of Anshul Aggarwal & Ors. v.
Union of India and Ors.1, Tanishq Gangwar & Ors. v. Union of India &
Ors.2 and Patnam Azeez v. Medical Commission of India & Ors.3 and a
decision of the Allahabad High Court in the case of Mohd. Rumman
through friend/brother Muhammad Junad v. UOI and Ors.4
4. Learned counsel for the petitioner, therefore, submits that the
petitioner is entitled for the relief claimed in the instant writ petition.
5. Learned counsel appearing on behalf of the respondents opposes the
submissions made by learned counsel for the petitioner. He, while placing
reliance on the Eligibility Regulations, 2002 and the Graduate Medical
Education Regulations, 1997 (hereinafter as „GME Regulations, 1997‟),
submits that the petitioner does not fulfil the mandatory requirement under
GME Regulations, 1997 and therefore, is not entitled for the relief claimed
in the instant writ petition.
6. According to learned counsel for the respondents, admittedly, the
petitioner, after completing Class 12th examination from CBSE with subjects
combination being Physics, Chemistry and Mathematics, reappeared in
Class 12th examination in the year 2017 with NIOS for the subject Biology.
He, however, submits that what is required under the relevant Regulation is
two years continuous study with Physics, Chemistry, Biology and English as
compulsory subjects with practical, which the petitioner has failed to fulfil.
1
MANU/DE/1763/2018
2
W.P.(C) 6773/2018
3
W.P.(C) 3583/2018
4
Misc.Single Writ No. 9791/2018

7. Learned counsel for the respondents has placed reliance on a decision
of this court in the case of Aayushi Dineshbhai Prajapati v. Union of India
& Ors.5, affirmed by the Division Bench of this Court in LPA 422/2023 vide
judgment dated 03.07.2023 and another decision of the Division Bench in
the case of Nishkarsh Singh Patel v. National Medical Commission &
Ors.6
8. Learned counsel for the respondents, therefore, submits that the
decisions relied upon by learned counsel for the petitioner have been
considered by the Division Bench of this court in the aforesaid cited
decision and it has been unequivocally held that there cannot be any dilution
of the mandatory requirement of two years continuous study after Class 10th
examination alongwith relevant subjects as required under Clause 4(2) of the
GME Regulations, 1997.
9. I have considered the submissions made by learned counsel for the
parties and have perused the record.
10. This court in the case of Aayushi Dineshbhai Prajapati (supra) had
an occasion to consider the inter-play between the Eligibility Regulations,
2002 and the GME Regulations, 1997. The decisions which have been relied
upon by learned counsel for the petitioner, in the instant case, were also
considered alongwith other relevant pronouncements of the Hon’ble
Supreme Court and the other High Courts. In paragraph nos.16, 18, 22 and
31 of the said decision, it has been held as under:-
“16. It is thus seen that it is only after verification, the MCI shall issue an
eligibility certificate in the prescribed format to the candidate certifying
that he/she is eligible to join a medical institution outside India to obtain a
primary medical qualification. Regulation 8(ii) specifically stipulates that
5
2023:DHC:800
6
2023:DHC:5956-DB

one of the conditions to be fulfilled by the candidate is to be eligible for
admission to MBBS Course in India as prescribed in GME Regulations,
1997, which stipulates the minimum qualifying marks criteria in Physics,
Chemistry, Biology and English including relaxed criteria in case the
candidate belongs to a reserved category.
18. It is thus seen that the candidate must have passed qualifying
examination of Higher Secondary or the Indian School Certificate
Examination which is equivalent to 10+2 (Higher Secondary
Examination) after a period of 12 years of study. The last two years of
study must comprise of Physics, Chemistry, Biology/Biotechnology and
Mathematics or any other elective subject with English at a level not less
than core course as prescribed by the National Council of Educational
Research and Training after the introduction of the 10+2+3 years
educational structure, as recommended by the National Committee on
Education.
22. So far as the decision relied upon by learned counsel for the petitioner
in the case of Anshul Aggarwal (supra) is concerned, the same would not
be applicable in the instant case. Firstly, the issue in the case of Anshul
Aggarwal (supra) was with respect to challenge to the notification dated
22.01.2018, whereby, amendments were made in GME Regulations, 1997,
declaring certain categories of candidates to be ineligible and thereby
disqualifying them from appearing in the National Eligibility cum
Entrance Test (NEET) for admission to the MBBS Course. Paragraph
No.61 of the said decision is being reproduced as under:-
“61. Clause 4(2)(a) requires that the student/candidate should
have studied in the last two years subjects of Physics,
Chemistry, Biology and Mathematics with English at a level
not less than a core course prescribed by National Counsel for
Educational Research and Training as per educational
structure recommended by the National Committee on
education. We are not diluting, interfering or amending the
said requirement and eligibility condition. Indeed, MCI itself
in their letter dated 14th September, 2012 accepts that
students from NIOS Board could meet the said minimum
requirement and condition, if the student had studied the
relevant subjects for two years at 10+2 level. It is the proviso
now incorporated vide Notification dated 22nd January, 2018
which disqualifies and declares such candidates as ineligible
and disqualified. Emphasis on regular and continuous study
for two years, we would hold, does not exclude study by
methods and manner recognized by law as appropriate and
proper method of imparting education. Pertinently, sub-clause
(f) to clause 4(2) of the Regulations states that any other

examination which in scope and standard is found to be
equivalent to intermediate science examination of an Indian
university/Board with Physics, Chemistry and Biology
including practical test in each and English are to be
considered as eligible”.
31. In the instant case, neither the Regulations are under challenge nor the
communication dated 08.09.2022 (Annexure R-2/28) issued by National
Medical Commission is assailed. Nevertheless, this court considered the
submissions made by learned counsel for the petitioner on merit so as to
examine whether the petitioner fulfils the criteria for the issuance of the
eligibility certificate in accordance with the applicable Regulations of
2002. The Regulations, as they exist today, have been framed by
MCI/NMC, which is the expert body and can lay down the criteria for
grant of eligibility certificate to a person to practice Medicine. Practising
in the medical field involves taking care of a patient and his or her
management, the act of such a nature requires specialised training and
knowledge. The nature of services to be rendered by medical practitioner
necessarily involves the larger public interest. A person who is not duly
qualified, as prescribed by MCI/NMC, cannot be permitted to involve
himself in public health care and play with the lives of the human beings.
It is not for this court to decide as to whether the knowledge acquired by
the petitioner while studying in Ukraine is sufficient for granting her
eligibility certificate to appear in the eligibility test or not. Since the
petitioner does not fulfil the criteria for her entitlement to obtain eligibility
certificate, this court is not inclined to issue any directions in that
respect."
11. The Division Bench of this court in LPA 422/2023 has affirmed the
aforesaid decision and in paragraph nos.14 to 18, it has been held as under:-
"14. A perusal of the above shows that Appellant had enrolled herself in
the NIOS in the month of April, 2014 and obtained her 12th Standard
certificate in the month of November, 2014. It, therefore, cannot be said
that the Appellant had Biology as a continuous subject along with the
practical in the last two years of her education (Class 11th and 12th),
which is an eligibility criteria for grant of an Eligibility Certificate to
appear in Foreign Medical Graduates Examination (FMGE). She is,
therefore, ineligible to take the Foreign Medical Graduates Examination
(FMGE) even if she has obtained a MBBS course degree from Ukraine.
The fact that the Appellant had received invitation to study in a college in
Ukraine is irrelevant for the purpose of enabling her to take the Foreign
Medical Graduates Examination (FMGE), since she does not satisfy the
conditions which are necessary to take the Foreign Medical Graduates
Examination (FMGE).

15. The learned Single Judge has examined the Judgment of Anshul
Aggarwal (supra) and has distinguished Anshul Aggarwal (supra) with
the facts of the present case by holding that the Judgment of Anshul
Aggarwal (supra) does not dispense with the requirement of studying
Biology for a period of two years.
16. Admittedly, the Appellant did not study Biology in her 11th and 12th
standard class for the whole two years. The Judgment passed by the
Division Bench of this Court in Anshul Aggarwal (supra) also
categorically holds that a students who obtains 12th standard certificate
from NIOS must mandatorily study 11th and 12th class from NIOS with
the requisite subjects and practical without which the candidate will not
be eligible to obtain admission in a foreign university to pursue MBBS
course. Paragraph No.43 of the Judgment Anshul Aggarwal (supra)
reads as under
“43. The issue whether students, who clear class 12 from the
recognized open school Boards were eligible and should be
treated at par with candidates who have undergone regular
schooling, it is apparent, had arisen earlier in 2012. MCI vide
their letter dated 23rd February, 2012 to the NIOS had sought
clarification on procedure adopted for conducting practical
tests in Physics, Chemistry and Biology and whether NIOS
students passing 10+2 had to undergo practical lessons and
practical tests. NIOS had then responded vide communication
dated 28th February, 2012 stating that the courses offered by
them were undertaken through study centres, that were schools
affiliated to a recognized National and State Board. Such
schools had laboratories in the desired subjects like, Physics,
Chemistry and Biology. It was mandatory for the students
undertaking the said courses to perform practicals at the study
centres. Attendance in these classes was compulsory for every
learner. Practical exams were also conducted as held by any
formal board. NIOS was following National Curriculum
Framework, 2005 for evaluating the learners. NIOS had an et
cetera curriculum, as their exams were conducted for both
11th and 12th class courses. In formal Boards, exams were
conducted for class 12th course only. It may be relevant to
state here that a student/candidate cannot appear in 10+2
examination unless he has been enrolled for two years with the
NIOS/open Boards. These aspects were again clarified by NIOS
to MCI vide their communication dated 30th July, 2012. This
letter by NIOS had affirmed that large number of candidates of
NIOS were appearing in various competitive examinations,
including admission in MBBS at national and State level and

they were qualifying. Large number of such students were
already studying in various medical colleges.” (emphasis
supplied)
17. In view of the above, the contention of the learned Counsel
appearing for Respondent No.2/NMC that the Judgment of Anshul
Aggarwal (supra) is distinguishable from the facts of the present case is
accepted.
18. Similarly, the decision relied upon by the learned Counsel
appearing for the Appellant in the case of Tanishq Gangwar (supra)
would not apply to the facts of the present case. The Judgment of
Tanishq Gangwar (supra) does not state that even if a student has not
studied Biology in 11th and 12th standard, will still be eligible to take
admission in a foreign university for pursuing a MBBS course. The
Judgment of Tanishq Gangwar (supra) only equates a student who has
obtained 12th standard certificate from NIOS to a student who has
obtained 12th standard certificate form a State Board or CBSE Board.
The Judgment of Tanishq Gangwar (supra) also dealt with a case
where the Petitioner therein had taken Biology as an additional subject
which is not the case in the present matter. In the present case, the
Appellant had not taken Biology in her 11th and 12th standard. She
only studied Biology for only 7 months which cannot equate her to a
candidate who has studied Biology for the whole two years in NIOS and
then passed the 12th standard examination conducted by NIOS."
12. It is also to be noted that when the constitutional validity of the GME
Regulations, 1997 came to be challenged before this court, the Division
Bench vide its judgment dated 21.08.2023, in terms of paragraph nos.24, 25
and 31 has held as under:-
"24. In light of the aforesaid Regulations governing the field, a candidate
is compulsorily required to undergo regular, co-terminus/ simultaneous
teaching and training in the subject of Physics, Chemistry and Biology in
his/her Higher Secondary Education (10+2), and the last 2 years of Study
(Class 11th and 12th) must comprise of the above mentioned subjects
along with practicals.
25. The Regulations, 1997 also provide that the candidate aspiring to join
MBBS Course is certainly required to pass Senior Secondary Examination
with Physics, Chemistry, Biology and English. It is also mandatory for a
candidate to obtain 50% in the subjects of Physics, Chemistry and Biology
and pass English as one of the compulsory subjects.
31. A Division Bench of this Court in Judgment dated 03.07.2023 passed

in LPA 422/2023 titled Aayushi Dineshbhai Prajapati Vs. Union of India,
(2023:DHC:4404-DB), while dealing with grant of eligibility certificate to
a candidate to appear in the Foreign Medical Graduate Examination
(FMGE), has dealt with a similar controversy. It is pertinent to note that in
case a student obtains a MBBS degree from a foreign university, he is
required to pass foreign medical graduate examination and for appearing
in the FMGE, he/she has to obtain eligibility certificate from NMC. The
grant of eligibility certificate is subject to fulfillment of requirements
provided under the Medical Council of India Regulations i.e. Graduate
Medical Education Regulations, 1997 (Regulations, 1997) as amended
from time to time and on account of Regulation 4(2), the
Petitioner/Appellant before this Court in the aforesaid case was denied
eligibility certificate by NMC."
13. It is, thus, unequivocally clear that a candidate is compulsorily

required to undergo regular, co-terminus/simultaneous teaching and training
in the subjects of Physics, Chemistry and Biology in his/her Higher
Secondary Education (10+2), and the last two years of study (Class 11th and
Class 12th) must comprise of the abovementioned subjects alongwith
practicals.
14. In the instant case, admittedly, the requirements have not been met.
The petitioner admittedly has completed Class 12th examination, initially
with CBSE without Biology and later on by NIOS, with Biology as an
additional subject. The petitioner, therefore, in the year 2017, has appeared
in Class 12th examination without there being any continuous study for two
years of the relevant subjects.
15. It is, thus, seen that the petitioner is not entitled for any relief.
Accordingly, the instant petition is dismissed.
PURUSHAINDRA KUMAR KAURAV, J

AUGUST 24, 2023
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Suhag Bagada Vs National Medical Commission On 28 Aug 2023

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Through: Ms. Anushruti, Advocate

This is a digitally signed order.

Your application R.15012/004808/202l-Regn has been rejected.

NMC Support Team”

3. Learned counsel appearing on behalf of the petitioner submits that the

This is a digitally signed order.

This is a digitally signed order.

This is a digitally signed order.

This is a digitally signed order.

This is a digitally signed order.

This is a digitally signed order.

This is a digitally signed order.

13. It is, thus, unequivocally clear that a candidate is compulsorily

PURUSHAINDRA KUMAR KAURAV, J

This is a digitally signed order.

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