MS. BHINU vs. UNION OF INDIA AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ WRIT PETITION (CIVIL) NO. 1813/2018
th
Reserved on : 26 April, 2018
th
Date of decision: 11 May, 2018

ANSHUL AGGARWAL ..... Petitioner
Through Mr. K.K. Rai, Senior Advocate with
Mr. S.K. Pandey, Mr. J.P.N. Shahi, Mr. Awanish
Kumar, Mr. Chandra Shekhar A. Chakarabbi, Mr.
Anshyul Rai and Ms. Vandana Goel, Advocates.

Versus

UNION OF INDIA & ORS ..... Respondents
Through Mr. Sanjeev Uniyal and Mr. Dhawal
Uniyal, Advoctes for UOI.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.

WRIT PETITION (CIVIL) NO. 2119/2018
SHORYA RAGHAV ..... Petitioner
Through Mr. P. Karunakaran and Mr. Mr. R.
Venkatraman, Advocates.

Versus

UNION OF INDIA & ORS ..... Respondents
Through Ms. Bharathi Raju, CGSC for respondent
Nos.1 and 3.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms.
Manpreet Kaur, Mr. Tarun Verma, Ms. Puja
W.P. (C) No. 1813/2018+connected Page 1 of 81



Sarkar, Ms. Michelle Biakthasangi and Mr.
Abhijit Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo,
Advocates for CBSE.

WRIT PETITION (CIVIL) NO. 2523/2018
MS. BHINU ..... Petitioner
Through Mr. Himanshu Jain, Advocate.

Versus

UNION OF INDIA AND ORS ...... Respondents
Through Mr. Roshan Lal Goel and Ms. Anju
Gupta, Advocates for UOI.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.

WRIT PETITION (CIVIL) NO. 1982/2018

JASNA SHAYLA K ..... Petitioner
Through Mr. Kukund P. Unny, Advocate.

Versus

UNION OF INDIA AND ORS. ..... Respondents
Through Mr. G. Prakash, Standing Counsel for the
State of Kerala.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
W.P. (C) No. 1813/2018+connected Page 2 of 81



Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.

WRIT PETITION (CIVIL) NO.2055/2018

RITINATH SHUKLA ..... Petitioner
Through Mr. B.K. Pal, Advocate.

Versus

UNION OF INDIA & ORS ..... Respondents
Through Mr. Vikas Singh, Sr. Advocate with Mr.
T. Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.


WRIT PETITION (CIVIL) NO.1906/2018

NEHA SUKHLA AND ORS ..... Petitioners
Through Mr. Nidhesh Gupta, Sr. Advocate with
Mr. Amit Kumar, Mr. Avijit Mani Tripathi and Ms
Rekha Bakshi, Advocates.

Versus


UNION OF INDIA AND ORS ..... Respondents
Through Mr. P.S. Singh, Dr. A.K. Singh and Mr.
Rajpal Singh, Advocates for UOI.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.

W.P. (C) No. 1813/2018+connected Page 3 of 81



WRIT PETITION (CIVIL) NO.1916/2018

RAKSHANDA SURANA AND ORS ..... Petitioners
Through Mr. Nidhesh Gupta, Sr. Advocate with
Mr. Amit Kumar, Mr. Avijit Mani Tripathi and Ms
Rekha Bakshi, Advocates.

versus

UNION OF INDIA AND ORS ..... Respondents
Through Mr. P.S. Singh, Dr. A.K. Singh and Mr.
Rajpal Singh, Advocates for UOI.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.

WRIT PETITION (CIVIL) NO.1917/2018


MOHIT KUMAR AND ORS. ..... Petitioners
Through Mr. Nidhesh Gupta, Sr. Advocate with
Mr. Amit Kumar, Mr. Avijit Mani Tripathi and Ms
Rekha Bakshi, Advocates.

versus

UNION OF INDIA AND ORS. ..... Respondents
Through Mr. P.S. Singh, Dr. A.K. Singh and Mr.
Rajpal Singh, Advocates for UOI.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.
W.P. (C) No. 1813/2018+connected Page 4 of 81




WRIT PETITION (CIVIL) NO.1970/2018

SAURABH SINGH & ORS ..... Petitioners
Through Ms. Archana Pathak Dave, Ms. Ankita
Chaudhary, Mr. Manish Sharma, and Mr. Prakash
Kumar Jha, Advocates.

versus

UNION OF INDIA & ORS ..... Respondents
Through Mr. Sandeep Mahapatra, Advocate for R-
and R-2.
Mr. Vikas Singh, Sr. Advocate with Mr. T.
Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. S. Rajappa, Advocate for NIOS.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.

WRIT PETITION (CIVIL) NO.1972/2018

JALALUDHEEN T. AND ANR. ..... Petitioners
Through Mr. Jose Abraham, Mr. Blessen
Mathews, Mr. Sarah Shaji and Mr. M. P.
Srivignesh, Advocates.

versus

MEDICAL COUNCIL OF INDIA AND ORS. ..... Respondents
Through Mr. Vikas Singh, Sr. Advocate with Mr.
T. Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. Anil Dabas, Advocate for respondent No.2.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.
Ms. Monika Arora, CGSC with Mr. Harsh Ahuja,
Mr. Kushal Kumar and Mr. Vibhu Tripathi,
Advocates for UOI.
W.P. (C) No. 1813/2018+connected Page 5 of 81



Mr. G. Prakash, Standing Counsel for the State of
Kerala.
Mr. S. Rajappa, Advocate for NIOS.

WRIT PETITION (CIVIL) NO. 3513/2018

NIVEDHYA OUSEPPACHAN AND ORS. ..... Petitioners
Through Mr. Jose Abraham, Mr. Blessen
Mathews, Mr. Sarah Shaji and Mr. M. P.
Srivignesh, Advocates.

Versus

MEDICAL COUNCIL OF INDIA AND ORS. ..... Respondents
Through Mr. Vikas Singh, Sr. Advocate with Mr.
T. Singhdev, Ms. Amandeep Kaur, Ms. Manpreet
Kaur, Mr. Tarun Verma, Ms. Puja Sarkar, Ms.
Michelle Biakthasangi and Mr. Abhijit
Chakravarty, Advocates for MCI.
Mr. Amit Bansal and Ms. Seema Dolo, Advocates
for CBSE.
Ms. Monika Arora, CGSC with Mr. Harsh Ahuja,
Mr. Kushal Kumar and Mr. Vibhu Tripathi,
Advocates for UOI.
Mr. S. Rajappa, Advocate for NIOS.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J.

This common judgment would dispose of the aforestated writ
petitions, challenging amendments made to the Medical Council of India
Regulations on Graduate Medical Education Regulations, 1997
(Regulations, for short) vide notification No. MCI-34(41)2017-med./169873
dated 22nd January, 2018 to the extent the following categories of
students/candidates have been declared ineligible and are disqualified from
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appearing in the National Eligibility cum Entrance Test (NEET, for short)
for admission to Bachelor of Medicine and Bachelor of Surgery (MBBS, for
short) Course;-
(i) Candidates who have completed 10+2 (Senior Secondary
Certification) from recognized Open School Boards like National
Institute of Open Schooling (NIOS, for short).
(ii) Candidates above the age of 25 years (with relaxation of 5 years to
candidates belonging to Scheduled Castes, Scheduled Tribes, Other
Backward Classes and persons entitled to reservation under the Rights
of Persons with Disabilities Act, 2016) on the date of examination.
(iii) Candidates who had completed 10+2 as private students or had taken
Biology/Biotechnology as an "additional subject".
2. Amendments under challenge framed by the Medical Council of India
(MCI, for short) with previous sanction of the Central Government under
Section 33 of the Medical Council of India Act,1956 (the Act, for short),
vide "Regulation on Graduate Medical Education (Amendment) 2017",have
been reproduced and highlighted in italics and underlined alongwith clauses
4 and 4(2) of the Regulations, below:-
―4. Admission to Medical course-Eligibility Criteria:
No Candidate shall be allowed to be admitted to Medical
Curriculum proper of first Bachelor of Medicine and
Bachelor of Surgery (MBBS) Course until:
(1) He/she shall complete the age of 17 years on or
st
before 31 December of the year of admission to the
MBBS Course.‖
― Provided further that in order to be eligible, the upper
age limit for candidates appearing for National
Eligibility Entrance Test and seeking admission to MBBS
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programme shall be 25 years as on the date of
examination with a relaxation of 5 years for candidates
belonging to SC/ST/OBC category and person entitled to
reservation under the Rights of Persons with Disabilities
Act, 2016 .‖
―4(2) He/she has passed qualifying examination as under:
(a) The higher secondary examination or the Indian
School Certificate Examination which is equivalent to
10+2 Higher Secondary Examination after a period of 12
years study, the last two years of study comprising of
physics, Chemistry, Biology/Biotechnology and
Mathematics or any other elective subjects with English
at a level not less than core course for English 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;
― Provided that two years of regular and continuous study
of Physic, Chemistry, Biology/Biotechnology taken
together shall be required at 10+2 level for all the
candidates. Candidates who have passed 10+2 from
Open Schools or as Private candidates shall not be
eligible to appear for National Eligibility-cum-Entrance
Test. Furthermore, study of Biology/Biotechnology as an
Additional Subject at 10+2 level also shall not
permissible .‖
Note: Where the course content is not as prescribed for
10+2 education structure of the National Committee, the
candidates will have to undergo a period of one year pre-
professional training before admission to the Medical
colleges;
or
(b) The Intermediate examination in science of an Indian
University/Board or other recognized examining body
with Physics, Chemistry and Biology/Biotechnology
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which shall include a practical test in these subjects and
also English as a compulsory subject;
or
(c) The pre-professional/pre-medical examination with
Physics, Chemistry and Biology Biotechnology, after
passing either the higher secondary school examination,
or the pre-university or an equivalent examination. The
pre-professional/premedical examination shall include a
practical test in Physics, Chemistry & Biology
Biotechnology and also English as a compulsory subject.
or
(d) The first year of the three years degree course of a
recognized university, with Physics, Chemistry and
Biology Biotechnology including a practical test in three
subjects provided the examination is a "University
Examination" and candidate has passed 10+2 with
English at a level not less than a core course.
or
(e) B.Sc examination of an Indian University, provided
that he/she has passed the B.Sc examination with not less
than two of the following subjects Physics, Chemistry,
Biology (Botany, Zoology)/ Bio-technology and further
that he/she has passed the earlier qualifying examination
with the following subjects- Physics, Chemistry, Biology
and English.
or
(f) Any other examination which, in scope and standard is
found to be equivalent to the intermediate science
examination of an Indian University/Board, taking
Physics, Chemistry and Biology Biotechnology including
practical test in each of these subjects and English.
Note:
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The pre-medical course may be conducted either at
Medical College or a Science College.
Marks obtained in mathematics are not to be considered
for admission to MBBS course.
After the 10+2 course is introduced, the integrated
courses should be abolished.‖
(The amended portions, which are under challenge, have been
highlighted in italics and underlined).
3. As the facts in W.P. (C) Nos.1982/2018, Jasna Shayla K versus
Union of India and Ors. and W.P. (C) No.1972/2018, Jalaludheen T. &
Anr. versus Medical Council of India and Ors. , in which the State of
Kerala is also a party, are somewhat different though these writ petitions
pertain to challenge to upper age limit, they are being dealt with and
examined separately.
4. Regulations framed by the MCI in 1997 prescribe and fix eligibility
criteria for students at the level of 10+2, who seek admission to study
MBBS Course. As per clause 4, candidates should have completed at least
st
age of 17 years on or before 31 December of the year of the admission to
the MBBS Course. As per the proviso, now added and under challenge, an
upper age limit of 25 years for general category and 30 years for reserved
category candidates belonging to Scheduled Castes, Scheduled Tribes, Other
Backward Classes or those persons entitled to benefit under the Disabilities
Act, 2016 has been prescribed. By the amendment notification, proviso to
clause 4 (2) (a) has been added, and mandates that candidates who have
cleared 10+2 from open schools Boards or as a private candidates, would
not be eligible. This proviso is also under challenge.
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5. At the outset, we may record that during the pendency of the present
writ petitions on the question of private candidates etc., certain queries were
raised pursuant to which the MCI has issued a detailed clarification on
eligibility and disqualification. As the said clarification would substantially
ameliorate the grievances of the ―private candidates‖, we would reproduce
the same in entirety:-

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W.P. (C) No. 1813/2018+connected Page 12 of 81

6. Pursuant to the aforesaid clarification, Counsel have addressed
arguments on the challenge to clarification No.8 i.e., that students, who have
th th
not attended regular school and have cleared 11 and 12 class from NIOS
or State open schools Boards are not eligible. Clarification states that such
students/candidates do not meet the ―test‖ of regular and continuous two
years‘ study of Physics/Chemistry/Biology or Biotechnology with practicals.
Classroom attendance, it is stated, is not required by NIOS and private
candidates. The second challenge is to the prescription of the upper age
limit.
7. The aforesaid provisos are primarily challenged on the following
grounds:-
(i) Disqualification and debarment of students/candidates, who
have done 10+2 from recognized open school Boards, violates
their fundamental right under Article 19(1)(g) of the
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Constitution to study and acquire MBBS degree and practice as
a doctor.
(ii) NIOS and State open Boards‘ certificates are treated as
equivalent and at par with the certificates issued by the Central
Board of Secondary Education (CBSE), State Boards and
Indian Council for Secondary Education (ICSE) by the
Government of India (Ministry of Human Resource
Development), Association of Indian Universities, All India
Institute of Medical Sciences and also for selection in
Jawaharlal Institute of Postgraduate Medical Education and
Research (JIPMER, for short), Puducherry.
(iii) Disqualification of NIOS and open school Board students is
not protected under clause (6) of Article 19 as the
restriction/bar is not based upon any objective study or
empirical data that candidates/students from open school
Boards are inferior and less committed.
(iv) MCI had earlier after due deliberation and consideration vide
th
communication dated 14 September, 2012 had acknowledged
and accepted equivalence and parity of NIOS and State open
Boards with CBSE and State Boards, etc.
(v) Disqualification is discriminatory and violates Article 14 of the
Constitution.
(vi) Prior sanction by the Union of India (Ministry of Health and
Family Welfare) to the amendment and incorporation of
proviso to clause 4(2)(a) of the Regulations suffers from non-
application of mind and was without taking into consideration
W.P. (C) No. 1813/2018+connected Page 14 of 81



parity and equivalence between candidates from open school
Board viz. candidates from CBSE and other State Boards.
(vii) Proviso to clause 4(2)(a) of the Regulations is un-constitutional
and bad in law as it would operate retrospectively. Being a
delegated legislation, in absence of specific provision or
implied power, it cannot be applied retrospectively.
(viii) Upper age restriction of 25 years in case of general candidates
and 30 years in the case of reserved candidates violates right to
education and right to acquire degree of MBBS. It artificially
discriminates, without any just cause and reason, candidates
above the age 25/30 years who want to acquire knowledge and
practice modern or allopathic system of medicine. Proviso to
Regulation 4 violates Article 19(1)(g) as it is not a reasonable
restriction under clause (6) to Article 19. Upper age
prescription also violates Article 14 of the Constitution. It is
inequitable and is antithesis of right to equality and equal
opportunity.
(ix) Proviso to clause 4 of the Regulations prescribing upper age
limits has retrospective effect and being a delegated legislation,
it should not be given retrospective effect.
(x) Prescription of upper age limit vide proviso to clause 4 of the
Regulations is contrary to State laws of Kerala prescribing
reservation for in-service nurses. Nurses would not reap benefit
of reservation as they would be necessarily over-aged.
(xi) Prescription of upper age discriminates and violates right to
education of compounders, nurses, ward boys, etc., who want to
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upgrade their knowledge and skills to acquire degree to work as
doctors.
Proviso to clause (4)(2)(a) disqualifying candidates, who have completed
10+2 (senior secondary certification) from open school Boards
8. We would examine the constitutional validity/validity of the aforesaid
proviso on three different parameters. Firstly, on the ground that the proviso
infringes fundamental right to practice any profession guaranteed under
Article 19(1)(g) read with clause (6), Article 21 and Article 14 of the
Constitution. Secondly, the prior sanction granted by the Union of India is
vitiated on account of lack of application of mind. Thirdly, the proviso has
been given retrospective effect in the sense that the sudden change would
adversely affect students, who had taken admission in NIOS/open school
Boards and were earlier eligible are now disqualified.
9. Article 19(1)(g) states that citizens have the right to practice any
profession, or carry on any occupation, trade or business. The said Article
and clause (6), which regulates the former, read as under:-
―19. (1) All citizens shall have the right—
(g) to practice any profession, or to carry on any
occupation, trade or business.
XXXXX
(6) Nothing in sub-clause (g) of the said clause shall
affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law
imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right
conferred by the said sub-clause, and, in particular,
nothing in the said sub-clause shall affect the operation
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of any existing law in so far as it relates to, or prevent the
State from making any law relating to,—
(i) the professional or technical qualifications necessary
for practising any profession or carrying on any
occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation
owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or
partial, of citizens or otherwise .‖
The second portion of clause (6) printed in italics above was enacted
and incorporated by Section 3 of the Constitution (First Amendment) Act,
1951.
10. To practice profession of medicine as a doctor, the Act i.e. Medical
Council of India Act, 1956, requires that the said person/individual must
have MBBS degree from a recognized college. We have no hesitation in
holding that all citizens of India can claim a right under Article 19 (1) (g) to
practice profession as a doctor and for this purpose have right to be
considered for selection to MBBS course from a recognized medical college.
Right to higher education and study MBBS course to acquire a professional
degree to practice as a doctor would fall within the broad and wide
parameters of the Fundamental Right guaranteed to the citizens under
Article 19 (1) (g), but is subject to restrictions in terms of clause (6) to
Article 19. The State under clause (6) to Article 19 can make law imposing
reasonable restrictions on the right under Article 19(1)(g) including right to
practice as a professional doctor in the interest of general public as per first
part of clause (6) of Article 19 which postulates two requirements. The
restriction should be (i) reasonable and proportionate to required
interference viz. (ii) interest of general public. We have subsequently
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elucidated on the aforesaid aspects. Clause (6) to Article 19 also has a
second part, which has been quoted in italics, enacted and inserted by
Section 3 of the Constitution (First Amendment) Act, 1951. The second part
of clause (6) of Article 19 states that nothing in clause (g) would affect
operation of any existing law insofar as it relates or would prevent the State
from making any law in relation to; (i) professional or technical
qualifications necessary for practising any profession or carrying on any
occupation, trade or business and; (ii) carrying on by the State or a
corporation owned or controlled by the State any trade, business, industry or
service to complete or in part exclusion to citizens or otherwise.
11. Sub-clause (i) of the clause (6) to Article 19, which relates to any law
relating to professional or technical qualifications necessary for practicing
any profession or carrying on any occupation, could be relied upon by the
respondent/MCI. Reflecting upon the impact and the consequence of the
amendment and enactment of sub-clause (ii), Mukherjea, J. in Saghir
Ahmad versus State of U.P. and Others , AIR 1954 SC 728 had observed:-
― 23 . … The new clause in Article 19(6) has no doubt
been introduced with a view to provide that a State can
create a monopoly in its own favour in respect of any
trade or business; but the amendment does not make the
establishment of such monopoly a reasonable restriction
within the meaning of the first clause of Article 19(6).
The result of the amendment is that the State would not
have to justify such action as reasonable at all in a court
of law and no objection could be taken to it on the ground
that it is an infringement of the right guaranteed under
Article 19(1)( g ) of the Constitution.‖
Clause (6) of Article 19 and the effect of incorporation of clause (ii)
by the first amendment were considered by the Supreme Court in Akadasi
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Padhan versus State of Orissa and Others , AIR 1963 SC 1047 and it was
held:

14. The amendment made by the Legislature in Article
19(6) shows that according to the Legislature, a law
relating to the creation of State monopoly should be
presumed to be in the interests of the general public.
W.P. (C) No. 1813/2018+connected Page 19 of 81

15. The amendment made in Article 19(6) shows that it is
open to the State to make laws for creating State
monopolies, either partial or complete, in respect of any
trade, business, industry or service. The State may enter
trade as a monopolist either for administrative reasons, or
with the object of mitigating the evils flowing from
competition, or with a view to regulate prices, or improve
the quality of goods, or even for the purpose of making
profits in order to enrich the State ex-chequer. The
Constitution-makers had apparently assumed that the
State monopolies or schemes of nationalisation would fall
under, and be protected by, Article 19(6) as it originally
stood; but when judicial decisions rendered the said
assumption invalid, it was thought necessary to clarify the
intention of the Constitution by making the amendment.
It is because the amendment was thus made for purposes
of clarification that it begins with the words ―in
particular‖. These words indicate that restrictions
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12. However, in Akadasi Padhan (supra), it was clarified that clauses (i)
and (ii) to Article 19(6), in essence are in the nature of exception to the main
provision, and cannot be given unduly wide and liberal construction for
otherwise it would negate and gravely curtail and dilute fundamental right
guaranteed under Article 19(1)(g). The "protection" under sub-clause (ii)
would mean law relating to monopoly in absolute essential features,
basically and essentially necessary for creating State monopoly and not
other provisions which are subsidiary, incidental or helpful in operation of
the monopoly. These or other provisions would not fall under clause (ii) and
their validity must be judged under first part of Article 19(6). Therefore,
provisions of law which are integral and essential to parts (i) and (ii) alone
would be protected whereas the rest of the provisions which may be
incidental, secondary or helpful would not fall under clause (i) and (ii) of
Article 19(6) and must satisfy the test of the first part of Article 19(6). In
Akadasi Padhan (supra), it was held:-
W.P. (C) No. 1813/2018+connected Page 21 of 81



"17. In dealing with the question about the precise
denotation of the clause ―a law relating to‖, it is necessary
to bear in mind that this clause occurs in Article 19(6)
which is, in a sense, an exception to the main provision of
Article 19(1)( g ). Laws protected by Article 19(6) are
regarded as valid even though they impinge upon the
fundamental right guaranteed under Article 19(1)( g ). That
is the effect of the scheme contained in Article 19(1) read
with Clauses (2) to (6) of the said Article. That being so,
it would be unreasonable to place upon the relevant
clause an unduly wide and liberal construction. ―A law
relating to‖ a State monopoly cannot, in the context,
include all the provisions contained in the said law
whether they have direct relation with the creation of the
monopoly or not. In our opinion, the said expression
should be construed to mean the law relating to the
monopoly in its absolutely essential features. If a law is
passed creating a State monopoly, the Court should
enquire what are the provisions of the said law which are
basically and essentially necessary for creating the State
monopoly. It is only those essential and basic provisions
which are protected by the latter part of Article 19(6). If
there are other provisions made by the Act which are
subsidiary, incidental or helpful to the operation of the
monopoly, they do not fall under the said part and their
validity must be judged under the first part of Article
19(6). In other words, the effect of the amendment made
in Article 19(6) is to protect the law relating to the
creation of monopoly and that means that it is only the
provisions of the law which are integrally and essentially
connected with the creation of the monopoly that are
protected. The rest of the provisions which may be
incidental do not fall under the latter part of Article 19(6)
and would inevitably have to satisfy the test of the first
part of Article 19(6).
Clause (i) protects only law relating to professional or technical
qualification necessary for practicing any profession, carrying on any
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occupation, trade or business and not legislations which are supplementary
subsidiary, incidental etc.
13. The aforesaid principles were referred to by the Supreme Court in
Udai Singh Dagar and Others versus Union of India and Others , (2007)
10 SCC 306 to observe that the test of reasonableness and general public
interest laid down in State of Madras versus V.G. Row , AIR 1952 SC 196
may not ipso facto apply in a case involving clause (6) of the Constitution.
We would subsequently refer to the tests laid down in V.G. Row (supra).
This ratio on the question of scope and ambit of second part and first part of
clause (6) has consistently been referred and reiterated in Orient Paper and
Industries Ltd. and Another versus State of Orissa and Others, 1991 Supp
(1) SCC 81, State of Tamil Nadu and Others versus L. Abu Kavur Bai and
Others, (1984) 1 SCC 515, Tinsukhia Electric Supply Co. Ltd. versus State
of Assam and Others, (1989) 3 SCC 709, Utkal Contractors & Joinery (P)

Ltd. and Others versus State of Orissa, 1987 Supp SCC 751, Rashbihari

Panda etc. versus State of Orissa, (1969) 1 SCC 414 and Municipal

Committee, Amritsar and Others versus State of Punjab and Others, (1969)
1 SCC 475, etc. Udai Singh Dagar and Others (supra) was a case relating
to challenge to constitutional validity on applicability of the provisions of
Section 30 of the Indian Veterinary Council Act, 1984 relating to right of
persons to be enrolled in the Indian Veterinary Practioners‘ Register, as
persons having diploma or certificates recognized by State of Maharashtra
and some other States had been divested of their right to practice under the
Central Act. Aforesaid decisions, we would observe, uphold the right of the
State to enact laws insofar as they relate to professional or technical
qualifications for practicing any profession or the State to create monopoly
W.P. (C) No. 1813/2018+connected Page 23 of 81



in its own favour in respect of any trade or business. When a question
relating to constitutional validity on the ground of infringement of
Fundamental Right under Article 19(1)(g) covered by (i) and (ii) of clause
(6) is raised, the State is not to justify that such action was reasonable at all
in a court of law and to this extent no objection can be taken to infringement
of the Fundamental Right. However, this does not mean that the Court
cannot enquire whether the provisions of the said law are basically and
essentially necessary for creating State monopoly or for the law relating to
professional and technical qualifications. Therefore, other provisions made
by the Act, which are subsidiary, incidental or helpful in operation of the
State monopoly or any law relating to professional or technical qualification,
would not fall in the second part and their validity must be judged under the
first part of clause (6) of Article 19.
14. The proviso to clause 4(2)(a) of the Regulation, in our opinion, is not
an absolute essential feature of a law relating to professional or technical
qualification necessary for practicing any profession, for in the present case,
we are concerned with eligibility or qualification required to take admission
in the MBBS course to study medicine. We are not dealing with the law
relating to professional or technical qualification for practicing any
profession which would basically and essentially relate to the qualifications
necessary to practice profession of modern medicine and give treatment.
The proviso therefore must satisfy the twin requirements that the restriction
imposed is reasonable and secondly it is also in the interest of general
public, in terms of first part of clause (6) to Article 19.
15. It is in this context that we would have to examine whether the
disqualification imposed is in the interest of general public and is a
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reasonable restriction on the exercise of right guaranteed under clause (g) of
Article 19(1), i.e., right and opportunity to acquire a degree which entitles
you to practice as a professional doctor. To expand and elucidate on the
law, we would refer to the Constitution Bench judgment of the Supreme
Court in Modern Dental College and Research Centre and Others versus
State of Madhya Pradesh and Others, (2016) 7 SCC 353. This would be
the most appropriate case to refer and rely upon for it is recent in point of
time and has extensively referred to earlier case law and had directly dealt
with common entrance examination for medical courses with reference to
Article 19(1)(g) and clause (6) of the Constitution though in the context of
freedom of occupation of the private unaided minority and non-minority
educational institutions. It was held that the right under Article 19(1)(g) is
not an absolute right, but is subject to reasonable restrictions and the concept
of reasonableness has to be determined having regard to the nature of the
right alleged to be infringed, purpose of the restriction, extent of the
restriction and other relevant factors. In this context, we would now refer to
the decision in V.G. Row (supra), which on the test of reasonableness, had
exposited and held:-
―15. … It is important in this context to bear in mind that
the test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no
abstract standard or general pattern of reasonableness can
be laid down as applicable to all cases. The nature of the
right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions
at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances
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of a given case, it is inevitable that the social philosophy
and the scale of values of the Judges participating in the
decision should play an important part, and the limit to
their interference with legislative judgment in such cases
can only be dictated by their sense of responsibility and
self-restraint and the sobering reflection that the
Constitution is meant not only for people of their way of
thinking but for all, and that the majority of the elected
representatives of the people have, in authorising the
imposition of the restrictions, considered them to be
reasonable.‖

16. At this stage, reference may be made to MRF Limited versus
Inspector Kerala Government and Others , (1998) 8 SCC 227, wherein the
Supreme Court had observed that when examining the question of
reasonableness of statutory provision, the following factors have to be kept
in mind:-
―(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirement of the interest
of the general public.
(3) In order to judge the reasonableness of the
restrictions, no abstract or general pattern or a fixed
principle can be laid down so as to be of universal
application and the same will vary from case to case as
also with regard to changing conditions, values of human
life, social philosophy of the Constitution, prevailing
conditions and the surrounding circumstances.
(4) A just balance has to be struck between the
restrictions imposed and the social control envisaged by
Article 19(6).
(5) Prevailing social values as also social needs which are
intended to be satisfied by the restrictions.
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(6) There must be a direct and proximate nexus or
reasonable connection between the restrictions imposed
and the object sought to be achieved. If there is a direct
nexus between the restrictions, and the object of the Act,
then a strong presumption in favour of the
constitutionality of the Act will naturally arise.‖

17. Second aspect, which has to be kept in mind is that the reasonableness
of restriction is not to be determined from the point of view of the persons
on whom the restrictions are imposed, which in this case are the petitioners
or other students, who have done 10+2 from open schools Boards. Neither
is the question of reasonableness to be determined on abstract
considerations. The question of reasonableness has to be determined in an
objective manner from the stand point of interest of general public. Thus,
the Court must ensure and strike a balance between freedom guaranteed
under different sub-clauses of clause (1) of Article 19 and the social control
permitted in terms of clauses 2 to 6, for the limitation imposed for
enjoyment of the right should not be arbitrary or in this case excessive and
beyond the interest of general public. The restriction must have reasonable
relationship and nexus with the object, which the legislation seeks to achieve
and must not be disproportionate to that object. It is in this context that in
Modern Dental College and Research Centre and Others (supra), A.K.
Sikri, J. referred to doctrine of proportionality, which was defined as a set of
rules for determining necessary and sufficient conditions for limitation of a
constitutionally protected right. Reference was made to four sub-
components highlighted by Aharon Barak, Former Chief Justice of Supreme
Court of Israel as to constitutionally permissible limitations, which read:-
“ 60. ….
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( i ) it is designated for a proper purpose;
( ii ) the measures undertaken to effectuate such a limitation
are rationally connected to the fulfilment of that purpose;
( iii ) the measures undertaken are necessary in that there are
no alternative measures that may similarly achieve that same
purpose with a lesser degree of limitation; and finally
( iv ) there needs to be a proper relation (― proportionality
stricto sensu ‖ or ― balancing ‖) between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.‖

18. In Modern Dental College and Research Centre and Others (supra),
it was observed that the requirement of proportionate limitation of
constitutional rights by the sub-constitutional law, i.e., the statute is
something which is derived from interpretation and notion of democracy
itself. This ensures balance between constitutional rights and public interest.
Thus, what is required to be examined is the question of reasonableness with
reference to the tests expounded in MRF Limited (supra) with the doctrine
of proportionality and whether the ineligibility and disqualification imposed
on the students of open school Boards would meet the twin test, i.e., (i) of
reasonable restriction and (ii) which is justified in general public interest.
19. The aforesaid principle/doctrine of proportionality was even earlier
elucidated by the eleven-Judges Bench of the Supreme Court in Rustom
Cavasjee Cooper (Banks Nationalization) versus Union of India , (1970) 1
SCC 248, in the following words:-
―49. ....But it is not the object of the authority making
the law impairing the right of a citizen, nor the form of
action taken that determines the protection he can claim:
it is the effect of the law and of the action upon the right
which attracts the jurisdiction of the Court to grant relief.
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If this be the true view and we think it is, in determining
the impact of State action upon constitutional guarantees
which are fundamental, it follows that the extent of
protection against impairment of a fundamental right is
determined not by the object of the legislature nor by the
form of the action, but by its direct operation upon the
individual‘s rights.‖
20. Referring to the principle of reasonable restriction and the
requirement in clause (6) to Article 19 that the restriction/limitation should
be in the interest of general public, in Chintaman Rao versus State of
Madhya Pradesh , AIR 1951 SC 118, it was observed as under:-

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however, has no reasonable relation to the object in view
but is so drastic in scope that it goes much in excess of
that object. Not only are the provisions of the statute in
excess of the requirements of the case but the language
employed prohibits a manufacturer of bidis from
employing any person in his business, no matter wherever
that person may be residing. In other words, a
manufacturer of bidis residing in this area cannot import
labour from neighbouring places in the district or
province or from outside the province. Such a prohibition
on the face of it is of an arbitrary nature inasmuch as it
has no relation whatsoever to the object which the
legislation seeks to achieve and as such cannot be said to
be a reasonable restriction on the exercise of the right.
Further the statute seeks to prohibit all persons residing in
the notified villages during the agricultural season from
engaging themselves in the manufacture of bidis. It
cannot be denied that there would be a number of infirm
and disabled persons, a number of children, old women
and petty shopkeepers residing in these villages who are
incapable of being used for agricultural labour. All such
persons are prohibited by law from engaging themselves
in the manufacture of bidis; and are thus being deprived
of earning their livelihood. It is a matter of common
knowledge that there are certain classes of persons
residing in every village who do not engage in
agricultural operations. They and their womenfolk and
children in their leisure hours supplement their income by
engaging themselves in bidi business. There seems no
reason for prohibiting them from carrying on this
occupation. The statute as it stands, not only compels
those who can be engaged in agricultural work from not
taking to other avocations, but it also prohibits persons
who have no connection or relation to agricultural
operations from engaging in the business of bidi making
and thus earning their livelihood. These provisions of the
statute, in our opinion, cannot be said to amount to
reasonable restrictions on the right of the applicants and
that being so, the statute is not in conformity with the
W.P. (C) No. 1813/2018+connected Page 30 of 81

Some of the aforesaid decisions were quoted in Cellular Operators
Association of India and Ors. versus Telecom Regulatory Authority of
India, (2016) 7 SCC 703. This decision appropriately also refers to the first
amendment to the Constitution by which clauses (i) and (ii) were added to
clause (6), Article 19. In the context of clause (ii) in respect of State
monopoly, it has been held that the test is separate and distinct from the test
of the law being reasonable and in the interest of general public.

21. In Dharam Dutt and Others versus Union of India and Others,
(2004) 1 SCC 712, two-Judges Bench of the Supreme Court had observed:-
― 35. The scheme of Article 19 shows that a group of
rights are listed as clauses ( a ) to ( g ) and are recognized as
fundamental rights conferred on citizens. All the rights do
not stand on a common pedestal but have varying
dimensions and underlying philosophies. This is clear
from the drafting of clauses (2) to (6) of Article 19. The
framers of the Constitution could have made a common
draft of restrictions which were permissible to be imposed
on the operation of the fundamental rights listed in clause
(1), but that has not been done. The common thread that
runs throughout clauses (2) to (6) is that the operation of
any existing law or the enactment by the State of any law
which imposes reasonable restrictions to achieve certain
objects, is saved; however, the quality and content of
such law would be different by reference to each of sub-
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clauses ( a ) to ( g ) of clause (1) of Article 19 as can be
tabulated hereunder:

Clauses (2) to (6)
Permissible
restrictions
By existing law or by
law made by the State
imposing reasonable
restrictions in the
interests of
( a ) Freedom of
speech and
expression
( i ) the sovereignty and
integrity of India
( ii ) the security of the
State
( iii ) friendly relations
with foreign States
( iv ) public order,
decency or morality
( v ) in relation to
contempt of court,
defamation or
incitement to an
offence
( b ) right to
assemble
peaceably and
without arms
( i ) the sovereignty and
integrity of India
( ii ) public order
( c ) right to
form
associations or
unions
( i ) the sovereignty and
integrity of India
( ii ) public order or
morality
( d ) and ( e ) right
to move freely
and/or to reside
and settle
throughout the
( i ) the general public
( ii ) the protection of
the interests of
Scheduled Tribes
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territory of
India
( g ) right to
practise any
profession, or
to carry on any
occupation,
trade or
business
The general public
and in particular any
law relating to
( i ) the professional or
technical qualifications
necessary for practising
of any profession or
carrying on of any
occupation, trade or
business
( ii ) the carrying on by
the State, or by a
corporation owned or
controlled by the State,
of any trade, business,
industry or service,
whether to the
exclusion, complete or
partial, of citizens or
otherwise.

XXXXX
37. The Court, confronted with a challenge to the
constitutional validity of any legislative enactment by
reference to Article 19 of the Constitution, shall first ask
what is the sweep of the fundamental right guaranteed by
the relevant sub-clause out of sub-clauses ( a ) to ( g ) of
clause (1). If the right canvassed falls within the sweep
and expanse of any of the sub-clauses of clause (1), then
the next question to be asked would be, whether the
impugned law imposes a reasonable restriction falling
within the scope of clauses (2) to (6) respectively.
However, if the right sought to be canvassed does not fall
within the sweep of the fundamental rights but is a mere
concomitant or adjunct or expansion or incidence of that
right, then the validity thereof is not to be tested by
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reference to clauses (2) to (6). The test which it would be
required to satisfy for its constitutional validity is one of
reasonableness, as propounded in the case of V.G.
Row [AIR 1952 SC 196 : 1952 SCR 597 : 1952 Cri LJ
966] or if it comes into conflict with any other provision
of the Constitution.‖

22. In Dharam Dutt and Others (supra), on the question how the Court
should deal with the challenge to constitutional validity of the legislation, it
was observed as under:-
― 48. It is well settled that while dealing with a challenge
to the constitutional validity of any legislation, the Court
should prima facie lean in favour of constitutionality and
should support the legislation, if it is possible to do so, on
any reasonable ground and it is for the party who attacks
the validity of the legislation to place all materials before
the Court which would make out a case for invalidating
the legislation. (See Charanjit Lal Chowdhury v. Union
of India [AIR 1951 SC 41 : 1950 SCR 869]
and Ayurvedic and Unani Tibia College [AIR 1962 SC
458 : 1962 Supp (1) SCR 156] .)
49. In spite of there being a general presumption in
favour of the constitutionality of the legislation, in a
challenge laid to the validity of any legislation allegedly
violating any right or freedom guaranteed by clause (1) of
Article 19 of the Constitution, on a prima facie case of
such violation having been made out, the onus would
shift upon the respondent State to show that the
legislation comes within the permissible limits of the
most relevant out of clauses (2) to (6) of Article 19 of the
Constitution, and that the restriction is reasonable. The
Constitutional Court would expect the State to place
before it sufficient material justifying the restriction and
its reasonability. On the State succeeding in bringing the
restriction within the scope of any of the permissible
restrictions, such as, the sovereignty and integrity of India
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or public order, decency or morality etc. the onus of
showing that restriction is unreasonable would shift back
to the petitioner. Where the restriction on its face appears
to be unreasonable, nothing more would be required to
substantiate the plea of unreasonability. Thus the onus of
proof in such like cases is an ongoing shifting process to
be consciously observed by the Court called upon to
decide the constitutional validity of a legislation by
reference to Article 19 of the Constitution. The questions:
( i ) whether the right claimed is a fundamental right, ( ii )
whether the restriction is one contemplated by any of
clauses (2) to (6) of Article 19, and ( iii ) whether the
restriction is reasonable or unreasonable, are all questions
which shall have to be decided by keeping in view the
substance of the legislation and not by being beguiled by
the mere appearance of the legislation.‖

23. The stand of the MCI to justify the proviso to clause 4 (2) (a)
declaring students from open schools as disqualified is that open school
students/candidates do not undergo school education through face to face
mode and thus they do not undergo regular, co-terminus, simultaneous
teaching and training in Physics, Chemistry and Biology with two years of
study with practicals. MCI in the counter affidavit have submitted as
under:-
―97. It is respectfully reiterated that candidates who
have passed 10+2 examination after 12 years of study in
the requisite subjects have put in sustained effort with
teaching and training along with practicals in the
concerned subjects during the last 2 years and when such
candidates obtain the minimum percentage of marks as
required under the Statutory Regulations, it is this
standard of excellence which is sought for a highly
technical / scientific course in medicine. There can be no
comparison between candidates who have undergone
teaching and training along with practicals in the
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concerned subjects for two years prior to appearing in the
10+2 examination, whereafter through their diligence &
hard work achieved the minimum percentage of marks as
required under the Statutory Regulations and certain other
candidates who will pass the subjects without having to
sustain the pressure of attending a regular school along
with the other subjects to qualify the concerned
subject.
98. It is humbly reiterated that the Statutory
Regulation seeks to obtain candidates for admission in
MBBS course of a particular caliber, who shall be judged
on the basis of their competence to score a requisite
percentage of marks when he/she undergoes teaching and
training along with practicals in the concerned subjects
while attending a regular school thus obtaining a
particular percentage of marks in the concerned subjects.
On the other hand, in respect of candidates who do not
undergo teaching and training along with practicals in the
concerned subjects for two years prior to appearing in the
10+2 examination, there being no restriction on the
manner of teaching and training along with practicals in
the concerned subjects, shall make the object of the
Statutory Regulations redundant as there will be no
parameter to judge their level of competence at that stage.
The caliber of the candidates who obtain admission in
MBBS course shall determine the quality of teaching and
training of MBBS students and the finally the quality of
doctors who shall provide health care in the Country.
99. Such candidates who do not attend a regular school
and simply appear in the 10+2 examination as a private
candidate of a particular Board or who after completing
10+2 examination have taken the subject of Biology as an
additional subject, cannot be said to have achieved the
level of excellence as required under the Statutory
Regulations, even though they might have obtained the
requisite percentage. These candidates will also include
persons who have completed 10+2 examination from
National Institute of Open Schooling or from any other
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open schools. Hence, the Statutory Regulations, in this
regard do not make any distinction, in as much as,
candidates who have completed 10+2 examination from
National Institute of Open Schooling or from any other
open schools or candidates who have appeared in the
10+2 examination as a private candidate of a particular
Board or who have taken the subject of Biology as an
additional subject, have all not undergone regular, co-
terminus I simultaneous teaching & training in the
subjects of Physics, Chemistry and Biology in Higher
Secondary Education (10+2) and last two years of study
comprising of the above mentioned subjects including
particulars.
100. It is respectfully submitted that all averments
made by the petitioner as well as National Institute of
Open Schooling in respect of letter dated 14.09.2012 is,
entirely erroneous, misconceived & thus vehemently
denied. The letter dated 14.09.2012 as issued by the then
Board of Governors appointed by the Central Govt.,
cannot be read to be understood, as if the answering
respondent at any point of time had granted equivalence
to National Institute of Open Schooling with Boards
providing regular, co-terminus / simultaneous teaching
and training in the subjects of Physics, Chemistry and
Biology towards Higher Secondary Education (10+2)
with last two years of study comprising of the above
mentioned subjects alongwith practicals. The said letter
dated 14.09.2012 does not deal with equivalence
whatsoever and only states that any candidate who as per
the then prevailing provisions of Regulations on Graduate
Medical Education, 1997 possesses the eligibility for
admission to MBBS course shall be considered. The
eligibility for admission to MBBS course as per the then
provisions of Regulations on Graduate Medical
Education, 1997 had already been concluded by the
various judgments of the various Hon‘ble High Courts
including this Hon‘ble High Court as well as the Hon‘ble
Supreme Court.‖
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24. Before we go into the merits of the stand of MCI, i.e. distinction
drawn by MCI between regular school and open school with reference to
Article 19 (1)(g) read with clause (6) and Article 14 of the Constitution, we
must place on record the manner and mode in which the approval or prior
sanction to the impugned proviso was granted by the Ministry of Health and
Family Welfare. The opening words of Section 33 of the Act while
empowering the MCI to make Regulations requires that these shall be made
with previous sanction of the Central Government. The relevant portion of
Section 33 reads as under:-
―33. Power to make regulation. - The Council, may,
with the previous sanction of the Central Government,
make regulations generally to carry out the purposes of
this Act, and, without prejudice to the generality of this
power, such regulation may provide for-
XXXXX
(ma) the modalities for conducting screening tests
under sub-section (4A), and under the proviso to sub-
section (4B) and for issuing eligibility certificate under
sub-section (4B) of section 13;
(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;‖
Clause (ma) to Section 33 was enacted and introduced vide Act 34 of 2001
and Clause (mb) to Section 33 and Section 10D were enacted and made
th
applicable with retrospective effect from 24 May, 2016. Section 10D
reads as under:-
"10D. There shall be conducted a uniform entrance
examination to all medical educational institutions at the
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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.‖
25. In the present case, we are not directly concerned with minimum
standard of medical education or the degree mandated to practice as a
doctor, but with the eligibility and qualifications required by
student/candidate, who wants to appear in the entrance examination.
Section 10D of the Act states that a uniform entrance examination for
undergraduate and post-graduate level shall be conducted by a designated
authority in such manner as may be prescribed. It is not MCI but CBSE
which conducts the uniform entrance examination, i.e. NEET.
26. We had called for the original files from the Ministry of Health and
th
Family Welfare and after perusal of the same had passed the order dated 17
April, 2018, which reads as under:-
―Original files of Department of Health and Family
Welfare have been produced and examined.
2. Issue raised in the writ petitions relates to ineligibility
of students, who have passed 10+2 from open schools or
as private candidates or had studied
W.P. (C) No. 1813/2018+connected Page 39 of 81



Biology/Biotechnology as an additional subject at 10+2
level.
3. Draft of the amended regulation submitted by the
Medical Council of India (MCI) for sanction vide letter
th
dated 12 December, 2017 on the question of
ineligibility was commented upon in the detailed official
th
note dated 18 December, 2017, the relevant portion of
which reads as under:-
―ii) Candidates who have passed 10+2 from
Open Schools or as Private candidates shall not
be eligible to appear for NEET. Furthermore,
study of Biology/Biotechnology as an additional
subject at 10+2 level also shall not permissible.
It is submitted that in the meeting held on
26.05.2017 ( minutes at F/A ) Chaired by JS
(ME), MCI was requested to check whether the
NIOS and Private Candidates have any practical
training. However, no justification has been
given by MCI.‖
th
4. Minutes of the meeting dated 26 May, 2017 on the
question of disqualification and eligibility referred to
above, reads as under:-
“ The Chair suggested, the Council to check
for NIOS and Private Candidates. Do they
have practical training. ”
5. Thereafter, the file was processed. Another note dated
th
20 December, 2017, states that ―the proposed changes
were in order except that NIOS and private candidates at
class XII are not eligible to pursue MBBS. We may have
no objection except that no reasoning is given by the
MCI.‖
th
6. Subsequently, detailed note was prepared on 8
January, 2018. This note on the question of open schools,
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private candidates and study of Biology/Biotechnology as
an additional subject at 10+2 level had recorded as
under:-
―ii) Candidates who have passed 10+2 from
Open Schools or as Private candidates shall not
be eligible to appear for NEET. Furthermore,
study of Biology/Biotechnology as an additional
subject at 10+2 level also shall not permissible.‖
nd
This note was approved on 22 January, 2018 and
th
thereafter, sanction letter dated 24 January, 2018 was
issued accepting the draft regulation.
7. Subsequently, question of eligibility of private students
and NIOS students came up for consideration vide note
th
prepared on 18 January, 2018 and the note recorded on
th
19 January, 2018 states:-
―This stand has raised a question regarding
discrimination against NIOS although it is a
valid and fully recognized qualification in our
country. A copy of CBSE‘s recognition of NIOS
qualifications is placed at flag ‗B‘.
The matter is submitted for favour of
necessary orders pl. One way could be to seek
Law departments opinion on inclusion of NIOS
qualifications. Another approach could be to
request MCI to reconsider its stand.‖
8. Competent authority was asked to re-consider its stand
st
on the NIOS matter and letter dated 1 February, 2018
has been issued by the Department of Health and Family
Welfare to the Secretary, MCI. Copy of this letter was
furnished to us by the counsel for the petitioners
yesterday. In response thereto, MCI has written a letter
th
dated 6 March, 2018 that the matter with regard to
W.P. (C) No. 1813/2018+connected Page 41 of 81



including NIOS students was sub judice in the Delhi High
Court.
9. We would observe that the matter being sub judice is
not a valid ground to not examine and decide.
Government must elucidate and state their position
clearly.
10. We have recorded the aforesaid position to bring
the facts on record as the Department of Health and
Family Welfare has not filed their affidavit.
11. Department of Health and Family Welfare will
within two days file an affidavit through their Secretary
explaining the position in view of the facts emerging
from original files/records produced before us.
12. NIOS had sent their response vide letter dated
5th December, 2017, which has been enclosed as
Annexure R-3/22 (internal page 206 to 209) to the
counter affidavit filed by the MCI in W.P. (C)
No.1813/2018, Anshul Aggarwal Vs. Union of India &
Ors. Copy of this letter is not available in the file of the
Department of Health and Family Welfare. Affidavit by
the Department of Health and Family Welfare would
indicate whether this letter dated 5th December, 2017 was
duly examined and considered before sanction was
granted.
13. Similarly, we would require the Ministry of
Human Resource to file their affidavit on their position
and stand regarding private students, NIOS/SOS students
as well as students, who have taken up
Biology/Biotechnology as an additional subject.
Affidavit would be filed within two days.
th
Relist on 24 April, 2018. ”

27. In response to the said order, Ministry of Human Resource
Development have filed their affidavit, which we have quoted below.
W.P. (C) No. 1813/2018+connected Page 42 of 81



Ministry of Health and Family Welfare have also filed their affidavit and
have clarified certain aspects. We would quote the affidavit of Ministry of
Health and Family Welfare subsequently.
28. The issue with regard to disqualification of students/candidates, who
have cleared 10+2 from open school or as private candidates, was
considered by the Ministry of Health and Family Welfare in the meeting
th
held on 26 May, 2017. The Chair had then suggested and asked the MCI to
check for NIOS and private candidates and examine whether the students
undergo practical training. Clearly, reservation was expressed on the
proposed amendments suggested by the MCI to disqualify students, who
have cleared class 12 from open school Boards.
rd
29. MCI had written letter dated 3 November, 2017 to the Secretary
NIOS, on the question of eligibility of NIOS candidates for appearing in
NEET examination and had referred to the Minutes of the meeting of the
th
Executive Committee of its Council held on 26 September, 2017. Letter
rd
dated 3 November had also referred to the legal opinion given by learned
Additional Solicitor General of India that any candidate, who had not
undergone classroom training in subjects of Physics, Chemistry, Biology
and English, simultaneous and co-terminus including practical examination
should not be granted eligibility certificate for seeking admission in primary
medicine courses in a foreign medical institute and, therefore, also not
eligible to appear in screening test for obtaining registration to practice
medicine in the country. The Executive Committee had noted the opinion of
the Chairman, Academic Committee that learners from NIOS were not at
par with those from the regular mode and hence, were ineligible for NEET
W.P. (C) No. 1813/2018+connected Page 43 of 81



on equitable basis. This decision of the Executive Committee was approved
th
by the Oversight Committee on 25 October, 2017.
th
30. NIOS vide communication dated 5 December, 2017 had given a
detailed reply stating that their certificates were equivalent and at par with
the certificates issued by the CBSE or ISCE and, therefore, it would not be
correct for MCI to reverse their earlier decision and to withdraw their earlier
th
letter dated 14 September, 2012. NIOS was established by the Ministry of
Human Resource Development with prime objective to offer academic
programmes at pre degree level including Senior Secondary level. NIOS
was a recognized Board at national level. NIOS was offering courses
through affiliated schools recognised by CBSE, ISCE and other State
Boards. These schools act as study centres and had laboratories, libraries
etc. in Science subjects. The learners i.e. students were required to study
theory and perform practicals. Practical examinations were also conducted.
NIOS was also conducting programmes at study centres under face to face
mode.
th
31. MCI thereafter wrote letter dated 12 December, 2017 enclosing
therewith copy of the draft amendments to the Regulations to the Ministry of
Health and Family Welfare. This letter had also referred to the proposal
th
dated 28 April, 2017 of the Central Government, Ministry of Health and
Family Welfare on the question of relaxation of the clause for lowering
minimum marks and to explore possibility of allowing NIOS and private
th
candidates in NEET examination and medical courses. The letter dated 12
th
December, 2017 had not enclosed or referred to the reply of NIOS dated 5
th
December, 2017 or their letter dated 14 September, 2012 to NIOS. We
th
have referred to this letter of MCI dated 14 September, 2012 subsequently.
W.P. (C) No. 1813/2018+connected Page 44 of 81



th

32. On the basis of the correspondence/letter dated 12 December, 2017
th
received from MCI, a detailed office note dated 18 December, 2017 was
prepared in the Ministry of Health and Family Welfare on the question of
sanction to the draft amendments to the Regulations. With reference to open
school candidates, it was observed:-
―ii) Candidates who have passed 10+2 from Open
Schools or as Private candidates shall not be eligible to
appear for NEET. Furthermore, study of
Biology/Biotechnology as an additional subject at 10+2
level also shall not permissible. It is submitted that in the
meeting held on 26.05.2017 (minutes at F/A) Chaired by
JS (ME), MCI was requested to check whether the NIOS
and Private Candidates have any practical training.
However, no justification has been given by MCI.‖

th
Thereafter, another note dated 20 December, 2017 records that “the
proposed changes were in order except that NIOS and private candidates at
class XII are not eligible to pursue MBBS. We may have no objection except
that no reasoning is given by the MCI.” This note had also directed that
comments from Directorate General of Health Services should be obtained
before taking up the matter with MCI. Additional Director General in his
opinion on the proposed amendments to the Regulations did not specifically
refer to and examine the issue of disqualification of open school Boards.
There was complete silence and no comments or opinion were offered by
the Additional Directorate General of Health Services on the said aspect. In
th
view of the aforesaid position, office note dated 7 January, 2018 records
that the Minister‘s approval was quickly required on the “undisputed
points” .
W.P. (C) No. 1813/2018+connected Page 45 of 81



th

33. Thereupon, another detailed note dated 8 January, 2018 was
prepared for approval of draft amendments to the Regulations by the
Minister. Paragraph (ii) of the said note reads as under:-
―ii) Candidates who have passed 10+2 from Open
Schools or as Private candidates shall not be eligible to
appear for NEET. Furthermore, study of
Biology/Biotechnology as an additional subject at 10+2
level also shall not permissible.‖
This note did not take into account the background and the objections,
which had been sounded and recorded in the Minutes of the meeting dated
th th th
26 May, 2017 and notes dated 18 and 20 December, 2017 and also the
fact that approval was sought on ―undisputed points‖ and the issue or
proposal regarding disqualification of open school Board candidates was
under consideration (it would be right to state ―was disputed‖). This detailed
th
noting dated 8 January, 2018 records that the most notable feature was the
prescription of upper age limit of 25 years, relaxable by five years for
reserved categories. Reference was not made to divergent and variant view
on the aspect of open school students/candidates. The note was approved by
th
the Minister on 16 January, 2018.
34. Ministry of Health and Family Welfare in their affidavit accept and
admit that they were not forwarded and did not have the benefit of the letter
th
dated 5 December, 2017, written by the NIOS to MCI. Thereafter, a
meeting between the two Ministers i.e. Minister of Health and Family
th
Welfare and Minister of Human Resource Development was held on 17
January, 2018, wherein the issue of eligibility of NIOS students in NEET
st
was discussed and consequent to the said meeting, letter dated 1 February,
2018 was addressed by the Ministry of Health and Family Welfare to the
W.P. (C) No. 1813/2018+connected Page 46 of 81



MCI. This letter is of significance as it would reflect that the said Ministry
harboured doubts and were unaware of the parity and equivalence accorded
by the Government of India to class 12 certificates issued by NIOS. The
letter reads as under:-
―Subject: Eligibility of NIOS students for appearing in
NEET (UG) — reg. Madam,
I am directed to refer to MCI's letter dated 03.11.2017
wherein it was informed that the candidates who have not
undergone classroom training including practical
examination in class 11th and 12th will not be eligible for
appearing in NEET (UG) and for grant of Eligibility
Certificate.
2. In this context, it is informed that the matter has been
discussed with CBSE and M/o HRD and it was informed
that the NIOS is a recognized qualification in the country.
CBSE vide letter dated 30.10.1991 (copy enclosed) has
granted recognition to NIOS and is consider equivalent to
other recognized Boards. It is also learnt from CBSE that
around 1500-2000 students from NIOS qualify NEET
every year. Excluding NIOS qualification from NEET
will be unreasonable and unjustified.
3. Therefore, the Council is requested to reconsider its
decision for excluding the NIOS students from appearing
in NEET (UG) and convey the same to this Ministry
accordingly.‖
rd
This letter to the MCI specifically refers to the letter dated 3
November, 2017 of the MCI, which has been referred to above.
35. Apparently and contrary to the developments pursuant to the meeting
th
of the two Ministers on 17 January, 2018, approval granted by the Ministry
th
of Health and Family Welfare on 16 January, 2018 to the draft amendments
to the Regulations, which included disqualification of open school
W.P. (C) No. 1813/2018+connected Page 47 of 81



nd
candidates, was notified and informed to the MCI vide letter dated 22
th
January, 2018. This letter refers to letter dated 19 January, 2018, written
by the MCI, requesting for approval under Section 33 of the Act.
Thereupon, the amended Regulations were notified in the Official Gazette
rd
published on 23 January, 2018.
36. Ministry of Health and Family Welfare in their affidavit have stated
st
that the MCI in response to the letter dated 1 February, 2018 had
th
stated/informed vide letter dated 6 March, 2018 that the matter was sub-
judice in the High Court. Ministry of Health and Family Welfare therefore
in their affidavit are ambivalent and not categoric. They have referred to
facts for consideration of the Court and have not proceeded to take a firm
st
and decisive stand in the matter in the light of the letter dated 1 February,
th
2018 read with response of the MCI dated 6 March, 2018. The Ministry of
Health and Family Welfare, who had earlier granted prior sanction on re-
thought and deeper consideration, it is obvious, have reservation on the
proviso to clause 4(2)(a) of the Regulations.
37. We have specifically referred to the prior sanction or approval granted
by the Ministry of Health and Family Welfare, for we find that the said
approval or sanction would faulter and does not meet the mandate of law, as
relevant and seminal aspect and issue, eligibility of students of Open School
nd
Board were never considered and examined. In fact, the letter dated 22
January, 2018 should not have been issued after the question of eligibility of
recognized open schools Boards students had arisen and was under debate
th
and consideration pursuant to the meeting between the two Ministers on 17
January, 2018.
W.P. (C) No. 1813/2018+connected Page 48 of 81




38. At this stage, we would like to note that both CBSE and Ministry of
Human Resource Development, Union of India have supported the
petitioners and are clearly opposed to the proviso disqualifying candidates,
who have completed 10+2 from open schools. We begin by first referring to
the affidavit of the CBSE on the said aspect, as in the counter affidavit, they
have stated on oath in support of the writ petitioners as under:-
―5. That as regards the ineligibility of private candidates
to sit for NEET is concerned, it is submitted that
education is a part of the concurrent list of the
Constitution of India and accordingly there are 02 types
of Educational Boards across the country. The details are
as follows:
a. National Boards: National Boards are CBSE, ICSE &
NIOS. The CBSE and ICSE offers the education through
Face to Face mode only. Further, NIOS is offering
school education through Open and Distance Education
Mode.
b. State Boards – There are following types of educations
boards existing in the Country:
i School Education Bard(s)
ii Open Schools like NIOS and
iii Other Boards like Sanskrit Board and Madrasa Board
etc
6. The National Institute of Open Schooling was
established by Govt. of India in compliance of the
recommendations made by National Policy on Education,
1986. Earlier, NIOS was known as NOS i.e National
Open School and later on its name was changed from
National Open School to National Institute of Open
Schooling. NIOS is a Pace Setting National Board,
which is guiding the states for providing education
through Open and Distance Education Mode to the youths
W.P. (C) No. 1813/2018+connected Page 49 of 81



who are from the disadvantageous category/position. It is
also informed that National Open School was a part of
CBSE till 1988 and after the recommendations of NPE,
1986 unit of CBSE of open school was given an
independent status in the form of National Open School.
Both CBSE and NIOS are autonomous organizations of
Ministry of Human Resources Development , Govt. of
India.
7. As per the policy, the certificates issued by all the
Boards for class X & class XII are treated at par for all
purposes. A student who has done class X from CBSE
may seek admission in National Institute of Open
Schooling in class XII and the reverse is also possible.
Likewise, any student who has passed class X from any
State Board may seek admission in class XII in any of the
03 National Boards. Further, students can move from one
State Board to another State Board also. All the Boards
are allowed to issue the certificates to the students who
have passed either class X or XII from their Boards.
Students of any Board may also seek the admission in
under graduate courses across the country. All the
Boards are following the National Curriculum
Framework, 2005 brought out by National Council for
Education Research and Training (NCERT) and
accordingly allowed to frame their own syllabus.‖
39. Ministry of Human Resource Development in their affidavit filed in
Writ Petition (C) No. 2119/2018, Shorya Raghav versus Union of India
and Others , are equally assertive on the equivalence of the 10+2
certification by approved open school Board and have stated as under:-
―3. That it is submitted that, National Institute of Open
Schooling (NIOS) originally formed by the Ministry of
Human Resource Development (Department of
Education), Government of India vide Resolution dated
21-11-1989 and it has been notified as such in the Gazette
of India dated December 23, 1989, copy of the Resolution
W.P. (C) No. 1813/2018+connected Page 50 of 81



is attached as Annexure R-1. That as per the above
Notification, NIOS was called as ―The National Open
School Society‖. However, thereafter, vide a Resolution
dated 14-09-1990, Government of India ordered vesting
of authority in the National Open School Society (NOS)
for holding certain examinations through distance and
open learning system at the school stage and for
certification thereof. Accordingly, NIOS became a
separate Board in the eyes of law. Presently NIOS‘s
nomenclature has been changed to NIOS and it is an
autonomous body under the MHRD having Regional
Centres all over India.
4. That it is submitted that the answering respondent,
Ministry of Human Resource Development has set up two
National Boards, i.e., Central Board of Secondary
Education (CBSE) and National Institute of Open
Schooling (NIOS). MHRD has authorized the NIOS to
conduct examination through distance and open learning
system at school stage and issue certificate thereof.
MHRD have conveyed to all the State/UT Governments
that the students passing from NIOS are eligible for
admission to higher studies and also for employment
under the Central/State Governments.
5. That it is submitted that the Respondent No. 2 Medical
Council of India (MCI), while amending their
―Regulations on Graduate Medical Education, 1997‖ vide
Notification No. MCI-34 (41)/2017-Med./169873 dated
22.01.2018, have made the candidates, who have passed
10+2 from open Schools or as Private candidate,
ineligible to appear for National Eligibility-cum-
Entrance-Test from this year. As a result, the learners
passing out from NIOS and 20 State Open School Boards
has become ineligible for MBBS/BDS Entrance
Examination. The decision of the MCI is against the
earlier decision of the Board of the Governors of MCI,
taken in its meeting held on 13th August, 2012, as
conveyed vide their letter No.MCI-
34(1)/(UG)(Gen.)/2012-Med./129570 dated 14.09.2012,
W.P. (C) No. 1813/2018+connected Page 51 of 81



making the students appearing in 10+2 examination
conducted by NIOS as eligible for admission to MBBS
course.
6. That it is submitted that the Hon‘ble Minister for
MHRD, wrote a letter to the Hon‘ble Minister of Health
& Family Welfare seeking intervention in the matter to
reconsider the matter so as to enable the students from
NIOS and other State Open Schools eligible to appear in
NEET examination from 2018 (Anexure-R-2).
7. That it is submitted that, in regard to candidates taking
Biology/Bio-Technology as additional subjects in class
11th and 12th will not be eligible to appear in the NEET
Examinations, this Ministry has no comments to offer as
it is the domain of Respondent No. 1 Ministry of Health
& Family Welfare, Govt of India and Respondent No. 2.‖


40. It would be appropriate, at this stage, to also refer to the affidavit filed
on behalf of NIOS. The said institute was formed by the Ministry of Human
st
Resource Development, Department of Education, vide resolution dated 21
rd
November, 1989 and was notified in the Gazette of India dated 23
December, 1989. The primary aim and object for creating the said institute
was proper development of distance and open learning system at the school
level in the country and to develop, prescribe and offer wide spectrum of
study courses for the purpose of general and continuing education. This
Board was established to take over administration and management of the
open schools, which was hitherto operationalized and managed by the
CBSE. NIOS was to work as a society. Thereafter, vide resolution dated
th
14 September, 1990, Ministry of Human Resource Development had
decided that NIOS shall conduct pre-degree level 10 and 12 class
examination whether ―academic, technical or vocational‖, subject to
W.P. (C) No. 1813/2018+connected Page 52 of 81



approval of the society‘s Executive Board or as would be called upon to
conduct by the Government of India, Ministry of Human Resource
Development, and would act as a certifying authority for such courses and
programs and to do such acts ancillary to such objects as may be necessary.
41. NIOS has placed on record copy of their curricula in different
subjects, which include Physics, Chemistry and Biology. They have also
placed on record ―Guidelines for Centre Superintendents for Practical
Examinations‖ which are applicable to practicals conducted for subjects
like, Physics, Chemistry and Biology. It is mandatory that each student
should have been enrolled for a period of two years and each student must
undergo the entire course spread over this period of two years, which
includes a minimum of thirty face to face programs (Personal Contact
Programs) per session per subject for theory and five additional sessions for
subjects having practicals. These sessions are held on weekends and
holidays at the nominated study centres. The study centres selected have
proper infrastructure and laboratories for Science subjects and are the
affiliated schools of CBSE or State Education Boards. Marks are separately
assigned for theory and practicals. Theory exams are conducted and
evaluated by a panel of evaluators/examiners having experience in the Board
of Education. Practical exams, which carry 20% weightage are conducted at
the study centre. 50% of the practical was/is formative assessment and 50%
was/is summative assessment.
42. Association of Indian Universities vide their letter No. EV
th
11/(354)/91 dated 25 July 1991 have stated that they had in the meeting
granted equivalence to courses conducted by NIOS with those of
W.P. (C) No. 1813/2018+connected Page 53 of 81



examination of recognized Boards for the purpose of admission to higher
studies in Indian Universities.
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
rd
earlier in 2012. MCI vide their letter dated 23 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
th
responded vide communication dated 28 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
th th
curriculum, as their exams were conducted for both 11 and 12 class
th
courses. In formal Boards, exams were conducted for class 12 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
th
vide their communication dated 30 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
W.P. (C) No. 1813/2018+connected Page 54 of 81



State level and they were qualifying. Large number of such students were
already studying in various medical colleges.
44. MCI vide communication/letter No.MCI-34 (1) (UG)(Gen.)/2012-
th
Med/129570 dated 14 September, 2012, after making reference to earlier
th
correspondence in the form of six letters starting from 4 January, 2012 till
th
27 August, 2012, had positively stated that the matter regarding their
acceptance to NIOS certificate for evaluating eligibility of students seeking
admission to MBBS course had been considered by the Board of Governors
th
on 13 August, 2012 and it was resolved that since the Regulations i.e.
Graduate Medical Education Regulations, 1997 “do not specify as to the
qualification granted by particular Board will be recognized,
therefore,..............eligibility criteria for admission to MBBS course are
fulfilled by the students appearing in 10+2 examination conducted by the
National Institute of Open Schooling they may be considered for admission
to MBBS course.” Aforesaid letter/communication affirms and accepts that
students/candidates who had completed 10+2 from open school Boards were
eligible.
th
45. The contention of the MCI that their earlier letter dated 14
September, 2012 was vague and ambiguous or was written under
th
misapprehension is far-fetched and should be rejected. The letter dated 14
September, 2012 accepting the students of NIOS as eligible for NEET
examination was issued after thorough examination and after detailed
correspondence including the letters written by NIOS on the question of
face-to-face learning, practicals and classes being held in the subjects,
Physics, Chemistry and Biology. It was a conscious decision. The principle
that estoppel does not apply to law, would not be of avail in so far as MCI
W.P. (C) No. 1813/2018+connected Page 55 of 81



had correctly and fairly interpreted the Regulation as they existed prior to
enactment of the proviso under challenge.
46. We would now examine importance of right to education and
opportunity to acquire knowledge and higher education. We are conscious
and aware that under Article 21A, the State has to provide for free and
compulsory education to all children between 6 to 14 years of age in a
manner determined by law. It could be argued that in some cases, it has
been held that right to professional degree may not be covered by Article 21.
Reference could be made to paragraph 102 in National Legal Services
Authority versus Union of India and Others , (2014) 5 SCC 438, which
refers to Unni Krishnan J.P. and Others versus State of Andhra Pradesh
and Others , (1993) 1 SCC 645. In this case, we are directly concerned with
Article 19(1)(g) and Article 14 of the Constitution and there are number of
decisions in which right and opportunity to higher education is treated as
falling within the scope and ambit of Article 19(1)(g).
47. It is sometimes urged that the decision in Unni Krishnan, J.P. (supra)
holds that there is no fundamental right to higher education. Unni
Krishnan, J.P. (supra) on the question whether right to establish educational
institutions was over-ruled in TMA Pai Foundation versus State of
Karnataka , (2007) 8 SCC 481. Unni Krishnan, J.P. (supra) had referred to
Bandhua Mukti Morcha versus Union of India and Others , (1984) 3 SCC
161 wherein it was held that the right to life guaranteed by Article 21 does
―take in‖ ―education facilities‖. This legal proposition was accepted in Unni
Krishnan, J.P. (supra) observing that right to education was implicit in and
flowed from the right to life guaranteed by Article 21. Right to education, it
was affirmed, was of transcendental importance in life and was so
W.P. (C) No. 1813/2018+connected Page 56 of 81



recognized all over the world observing that education was perhaps the most
important function bestowed on the Government and the very foundation of
good citizenship. It was doubtful if any child would succeed in life if he
was denied opportunity to education. The right to education finds reference
in three Articles of Part IV, viz., Article 41, Article 45 and Article 46 which
shows the importance attached to the said rights. Referring to Mohini Jain
(Miss) versus State of Karnataka and Others , (1992) 3 SCC 666, it was
observed that the right to education, though implicit in the right to life, was
somewhat different from the latter in the sense that the said right was not
determined by perspective of threat. It means that the State cannot deprive a
citizen of his right to education except in accordance with the procedure
prescribed by law. Education means knowledge and knowledge itself is
power and, therefore, a part of right to life, but this does not mean that every
citizen of this country can command to the State to provide him education of
his choice. Differentiation was made between the right to free education for
all children until they complete the age of 14 years as stated in Article 45,
now a fundamental right in Article 21A, and right to education of citizens
after they complete the age of 14 years referable to Article 41 of Part IV of
the Constitution which states that the citizen has a right to call upon the
State to provide educational facilities to him within the limits of its
economic capacity and development. In this context, it was observed that
the limits of economic capacity were ordinarily speaking matters within the
subjective satisfaction of the State. We would note that the aforesaid
decision refers to Article 21 of the Constitution and the right to life. In the
context of the present case, however, we are dealing with the issue of right
of open school Board students to appear in NEET examination who, on
W.P. (C) No. 1813/2018+connected Page 57 of 81



qualification, can study medicine and acquire MBBS degree. In University
of Delhi and Another versus Anand Vardhan Chandel , (2000) 10 SCC
648, referring to the decision of the Division Bench of the Delhi High Court
reported as Anand Vardhan Chandel versus University of Delhi and
Another , ILR (1978) 2 Delhi 297 holding that the right to education was a
fundamental right under clause (a), (b) and (c) of Article 19(1) and Article
21, it was held that there could be no dispute that the right to education was
a fundamental right to the extent it had been spelt out by the Constitution
Bench in Unni Krishnan, J.P. (supra). Reference can also be made to the
observations of the Supreme Court in AIIMS Students’ Union versus
AIIMS and Others , (2002) 1 SCC 428 and Secretary, Mahatma Gandhi
Mission and Another versus Bhartiya Kamgar Sena and Others , (2017) 4
SCC 449 dealing with admissions to post graduate courses and college
education respectively. Pertinently, in the present case, impact of Article
19(1)(g) can be clearly appreciated and understood for we are concerned
with the right of the students/candidates who want to practice the profession
of modern system of medicine. These candidates are not seeking or praying
for right to education in the sense that the State must, notwithstanding its
resources, provide for and establish medical college, but for opportunity to
the students/ candidates from open school Boards. Albeit their contention is
that they have been denied their right to participate and opportunity to
compete with others in the selection process to get admission to MBBS
course by imposing an unreasonable restriction, which is also not in general
public interest.
48. On the question of reasonableness, we would also like to quote and
reproduce Article 41 of the Constitution which reads as under:
W.P. (C) No. 1813/2018+connected Page 58 of 81



―41. Right to work, to education and to public assistance
in certain cases.- The State shall, within the limits of its
economic capacity and development, make effective
provision for securing the right to work, to education and
to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of
undeserved want.‖

49. Appropriately, reference can also be made to Article 15(4) and (5) of
the Constitution which though couched in negative terms prescribe that the
States shall not be prevented from making any special provision for
advancement of socially and educationally backward classes of citizens and
Scheduled Castes and Scheduled Tribes including relating to admission to
educational institutions including private educational institutions. These
clauses may not be directly applicable, but they reflect constitutional vision
and need to ensure that persons from socially and economically backward
classes must be afforded fair and equal opportunity to acquire professional
degrees, an aspect which was highlighted by different judges in Ashoka
Kumar Thakur versus Union of India , (2008) 6 SCC 1 (see paragraph 445
in the judgment of K.G. Balakrishnan, J., paragraphs 285 to 286, 324 and
355 in the judgment of Pasayat, J. and paragraphs 457, 482, 483 and 634 in
the dissenting opinion of Bhandari, J.).
50. We also find unequivocal merit in the contention raised by the
petitioners that the disqualification of open school candidates/students
would violate and infringe Fundamental Right under Article 19 (1) (g) of the
Constitution in view of the test and parameter of reasonableness prescribed
vide judicial decisions noted above. We would accept that the MCI is an
expert body, which has been given primacy under the Act and the question
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of eligibility or calibre of students to be admitted to the MBBS course can
be made subject matter of the Regulations vide Section 10D and clause (ma)
and (mb) of Section 33 of the Act. Even before enactment of Section 10D,
the Supreme Court in State of Kerala versus Kumari T.P. Roshana and
Another , (1979) 1 SCC 572 had observed that the MCI as a high powered
Council would have power to prescribe the minimum standards of medical
education as this was implicit in power to supervise qualification or
eligibility standard for admission. We would also accept that in academic
matters, the Courts accord and give respect and opinion to the statutory
experts in education and would hesitate and distance themselves from
adverse comments as such bodies are the best judges of standards, which
have to be laid down and maintained. But there should be uniformity.
However, in the facts of the present case, there is divergence between the
academic experts themselves. The divergence is in the form of affidavit
filed by the CBSE and the Ministry of Human Resource Development.
Affidavit of NIOS, an expert body, obviously is also to the contrary. Thus,
reliance placed by the MCI on the several decisions on the scope of judicial
review on academic and educational policy matters or matters concerning
admission, prescribing criteria or calibre of students eligible to appear in
NEET examination in the facts of the present case, we would observe is not
final and would not prevent the Court from examining and deciding this lis .
51. It is not anyone‘s case that the Court cannot interfere when
constitutional validity of eligibility condition in the matter of educational
qualification is challenged. The power to interfere is conferred by the
Constitution and cannot be abrogated and excluded vide first part of clause
(6) to Article 19. (Scope and power of judicial review under part two of
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clause (6) of Article 19 is somewhat different but in this case we do not deal
with the second part). Existence of such power of judicial review is not
debatable. Exercise of power, i.e. when and in which situations the power is
to be exercised, is the matter of debate and ratio of legal decisions. This was
aptly summarized and stated in V.G. Row (supra) in the following words:-
―13. Before proceeding to consider this question, we
think it right to point out, what is sometimes overlooked,
that our Constitution contains express provisions for
judicial review of legislation a to its conformity with the
Constitution, unlike as in America where the Supreme
Court has assumed extensive powers of reviewing
legislative acts undercover of the widely interpreted ―due
process‖ clause in the Fifth and Fourteenth Amendments.
If, then, the courts in this country face up to such
important and none too easy task, it is not out of any
desire to tilt at legislative authority in a crusader‘s spirit,
but in discharge of a duty plainly laid upon them by the
Constitution. This is especially true as regards the
―fundamental rights‖, as to which this Court has been
assigned the role of a sentinel of the qui vive. While the
Court naturally attaches great weight to the legislative
judgment, it cannot desert its own duty to determine
finally the constitutionality of an impugned statute. We
have ventured on these obvious remarks because it
appears to have been suggested in some quarters that the
courts in the new set-up are out to seek clashes with the
legislatures in the country.‖

52. In State of T.N. versus P. Krishnamurthy, (2006) 4 SCC 517, it was
observed:-
"15. It is well recognised that a subordinate legislation
can be challenged under any of the following grounds:
( a ) Lack of legislative competence to make the
subordinate legislation.
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( b ) Violation of fundamental rights guaranteed under
the Constitution of India.
( c ) Violation of any provision of the Constitution of
India.
( d ) Failure to conform to the statute under which it is
made or exceeding the limits of authority conferred by
the enabling Act.
( e ) Repugnancy to the laws of the land, that is, any
enactment.
( f ) Manifest arbitrariness/unreasonableness (to an
extent where the court might well say that the
legislature never intended to give authority to make
such rules)."

53. On the question of reasonableness of the restriction, we had
specifically asked and called upon the counsel for MCI to state to whether
there exists any empirical data or whether any study was made with regard
to the performance of open school Board candidates who had qualified and
were selected for MBBS course in earlier years. On instructions, it was
stated that no such empirical data or study was made and is available. This
crucial and critical aspect was not examined and considered before
debarment proviso was proposed vide draft Regulations, crippling and
crumbling the wishes and desire for equal opportunity of such candidates.
54. The petitioners, on the other hand, have pointed out that
students/candidates who have done open schooling had appeared in NEET
examination held in 2017 and have relied upon the following data:

PERFORMANCE OF OPEN SCHOOL IN NEET – (UG), 2017

W.P. (C) No. 1813/2018+connected Page 62 of 81

55. MCI states that the data only reflects and states number of
students/candidates who had qualified and would not indicate number of
students/candidates from open schools Boards who actually secured seats
and were admitted to recognized medical college. The argument raised by
the respondent MCI would only reflect that MCI has not conducted and
made objective and thorough study on the performance of the open school
Board candidates. They have proceeded on prejudice and assumption or a
priori ex hypothesis predicated on the belief the students/candidates who do
not attend regular schools, because of financial hardship and social reasons,
are inferior and less deserving and turn downs. Such presumptions must be
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resoundingly rejected as contrary to the constitutional ethos and would
clearly violate both Article 14 and right to opportunity to acquire
professional degree. Such perception would falter when we apply test of
reasonableness, which is not wholly a subjective test. Reasonableness is to
be tested on the golden thread of advancement of the nation and society as a
whole, social and economic justice, distributive equality and fair
opportunity. Contention of the MCI, if accepted, would be contrary to
Article 41, Directive Principles of the State Policy and also Articles 15(4)
and (5) of the Constitution. Everyone has a right to choose employment and
take up a trade or profession of one‘s liking. This right is subject to
reasonable regulation in the interest of general public under first part of
clause (6) of Article 19 and the State can under the second part of clause (6)
to Article 19 prescribe professional or technical qualification for pracising
any profession. We are concerned with the first part, as we are concerned
with right to opportunity and not directly with the right to practise a
profession. Regulation to be reasonable must provide level playing field and
should not restrain those who have struggled and fought social prejudice and
financial hardship to complete 10+2 schooling, from right and opportunity
to acquire a professional degree. After all, all students including those from
open schools Boards are treated at par and equivalent to candidates with
regular schooling. Once equivalence is accepted and affirmed, they should
be given opportunity to compete with others. Only on meeting the eligibility
marks and excellence on merits, they become eligible for selection.
Selection and actual admission being based on merit, i.e. the marks obtained,
no privilege or advantage is bestowed and given to a student from open
school Boards. NEET is a centralized and a single window examination,
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conducted in a transparent manner. This is a true and sure test of
competence, caliber and aptitude. Professional degree would be awarded to
students who meet the exacting standards and qualify the MBBS course.
Impugned prohibition in the form of disqualification of students/candidates
of open school Board would not meet the constitutional standard of
reasonableness and test of interest of general public. The restriction in the
nature of prohibiting students belonging to open school Board is therefore
disproportionate and unreasonable to the purported ―evil‖ sought to be
remedied, i.e. to filter out students who are not interested and do not have
the calibre and intellect to undergo and clear the MBBS course.
56. Higher level of knowledge is liberating, enabling and empowering to
those who suffer from prejudice and are financially challenged. Efforts have
to be made and law must permit inclusion and not exclusion of such persons
from portals of knowledge. Indian Constitution recognises affirmative action
as an extension of the principle of equality. It would be unfair and unjust, if
we on vague and unsubstantitated pretence of unfitness close the door of
knowledge on candidates, who have done class 12 from open school Boards.
The restrictions envisaged would not only be unreasonable, but would
perpetuate inequality and hamper promotion of egalitarian social order and
justice.
57. In the aforesaid discussion, we have primarily discussed and
elucidated on infringement of Fundamental Right under Article 19 (1) (g)
read with clause (6). The aforesaid analysis, on the question of
reasonableness, would be relevant to the issue of discrimination under
Article 14 of the Constitution which formalises and ordains significant and
salutary guarantee of equality before the law and equal protection of the
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laws, including opportunity to education and matters relating to appointment
and employment as held in E.P. Royappa versus State of Tamil Nadu &
Anr., (1974) 4 SCC 3. Right to equality from a positivistic point of view is
antithetic to arbitrariness, which ensures that the State action must be fair
and guided by considerations to ensure equality in treatment. All similarly
situated should be treated alike and unequal treatment should not be guided
by extraneous and irrelevant considerations, for otherwise the law would
violate and deny equal treatment. In the context in question, we would hold
that it is permissible to fix qualifications and eligibility norms for higher
education but the eligibility norm and criteria must not fall foul of the
principle of equality in opportunity. Prescriptions and qualification must be
in the interest of general public, and to further the cause of education in
MBBS courses. This discretion is not be exercised to curtail and deny
opportunity to those who are not privileged, due to
financial constraints and social reasons, and are not in a position to attend
regular schooling, yet have the desire, merit and ability to study and want to
become doctors. On the one hand government policy exposits a concerted
attempt and effort to ensure that those denied opportunity to attend regular
schooling are enabled to pursue and study higher education; the proviso,
now enacted, seeks to undermine and negate the said objective and purpose.
To us, it is apparent that the desire of the Union of India to recognize open
school Boards and treat them equivalent and at par with school Boards,
would suffer a contradiction and blow by the proviso enacted. We can while
examining the validity of the proviso take into account connected laws
including the executive policy and examine their combined concord, and
erase and strike down laws which destroy equal opportunity to higher
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education violating Article 14. We have earlier commented on the question
of object and purpose behind the bar and disqualification of
students/candidates, who have cleared 10+2 from open school Boards, and
on analysis observed that the restriction enacted as based upon conjures and
beliefs indicative of preconceived assumption and bias resulting in
discrimination. This disqualification is not based upon any sound principle
or basis, relevant to object and purpose. The proviso would result in hostile
discrimination and hence, cannot be sustained on the ground that it does not
have any rationale relation with the object sought to be achieved by the
statute, which is that most meritorious and best students as per the test score
are selected. The test of reasonableness and rationale is decided on the
principle what is conducive and relevant to the functioning of the present
day society. The petitioners and others similarly situated do not seek any
preference and selection at the cost of merit and excellence, even when they
compete as unequals with those who had the benefit of schooling, coaching,
etc. What they seek and have prayed for, is right to compete on equal terms
with their counterparts from regular schools. Proviso to clause 4(2)(a) runs
counter to the objective that excellence and merit from every quarter must
be given an opportunity. The bar and prohibition promotes inequality in
opportunity, if not promoting inequality itself.
58. We would reject the contention of the MCI that students/candidates
from open school Boards were ineligible under the existing Regulations
nd
before the amendment made effective from 22 January, 2018. The
submission is incorrect and fallacious. MCI, in support of the contention,
had referred to decision of this Court in Raghukul Tilak versus Union of
India , (2006) 92 DRJ 356, which judgment was affirmed by a Division
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Bench vide judgment authored by one of us (Sanjiv Khanna, J.). Division
Bench judgment is reported as Raghukul Tilak versus Union of India &
Anr. , AIR 2007 Delhi 237. In these decisions, the question raised and
considered was different as Raghukul Tilak had not studied Biology for two
years as a subject in classes 11 and 12. He had taken Biology as an optional
subject after clearing 10 + 2 examination vide supplementary classes. The
said judgment clearly records that the issue raised in the case was of
eligibility as per the extant rules and constitutional validity of the provision
was not challenged. The question raised was relating to applicability and
interpretation of the applicable Rule in the factual matrix of the said case.
59. Single Judge (S. Ravindra Bhat, J.) in Raghukul Tilak versus Union
of India , (2006) 92 DRJ 356 had elegized on the methods in vogue which
had left much to be desired and had lamented that a meritorious student who
had secured a high rank in coveted All India quota was being denied a seat.
It was specifically observed that Raghukul Tilak had not appeared in any
practical examination and if practical examination had been incorporated to
a large measure, concerns of MCI about proficiency and aptitude of the
candidate ultimately selected and the ability in the practicals would have
been addressed. Single Judge had hoped that suitable remedial action would
be taken soon and this would be matter of some conciliation and solace to
Raghukul Tilak who could then derive some cold comfort that the system
had changed at his behest. MCI instead of taking note of the words, has
gone back from the position accepted and in existence for the last five years
th
in terms of their letter dated 14 September, 2012.
60. Our attention was drawn to judgment of the Madras High Court in
Sneha Manimurugan versus Medical Council of India, W.P. No.
W.P. (C) No. 1813/2018+connected Page 68 of 81



30328/2015 of the single Judge dated 18.02.2016 and of the Division Bench
in W.A. No.321/2016 dated 12.04.2016 respectively. In the said case, the
candidate did not fulfill the criteria of two years of study in Biology as she
had completed her certificate course from Singapore Cambridge without
Biology in December, 2013 and had done Biology alone as a single subject
from NIOS in April, 2014 and then had passed Physics, Chemistry, Biology
and English from NIOS in October, 2014. She did not have two years of
regular and continuous study in Biology.
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
th
condition. Indeed, MCI itself in their letter dated 14 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
nd
Notification dated 22 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
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university/Board with Physics, Chemistry and Biology including practical
test in each and English are to be considered as eligible.
62. Another additional factor may be noticed in favour of the petitioners.
Open school Board candidates are considered eligible for selection for
MBBS course in All India Institute of Medical Sciences and JIPMER,
Puducherry. These prestigious institutions have not disqualified open school
Board candidates. MCI has not disputed or denied this position and
eligibility. Such candidates are also eligible and can appear in Joint
Engineering Examination and can become engineers by studying in
prestigious institutions like Indian Institute of Technology etc.
63. There is yet another aspect highlighted by the petitioners, relying
upon decision of the Supreme Court in Suresh Pal and Others versus State
of Haryana and Others , (1987) 2 SCC 445, to the following effect:-
―3. We are of the view that since at the time when the
petitioners joined the course, it was recognised by the
Government of Haryana and it was on the basis of this
recognition that the petitioners joined the course, it would
be unjust to tell the petitioners now that though at the
time of their joining the course it was recognized, yet
they cannot be given the benefit of such recognition and
the certificates obtained by them would be futile, because
during the pendency of the course it was derecognized by
the State Government on January 9, 1985. We would,
therefore, allow the appeal and direct the State
Government to recognize the certificates obtained by the
petitioners and others similarly situate as a result of
completing the certificate course in Shri Hanuman
Vayayam Prasarak Mandal, Amravati for the purpose of
appointment as Physical Training Instructor in
government schools in Haryana. Of course, if any person
has joined the certificate course after January 9, 1985 he
W.P. (C) No. 1813/2018+connected Page 70 of 81



would not be entitled to the benefit of this order and any
certificate obtained by him from the said Institute would
be of no avail. There will be no order as to costs of the
appeal.‖
64. In Rohit Naresh Agarwal versus Union of India and Others , (2013)
204 DLT 401 (DB), a Division Bench of this Court had dealt with challenge
th
to clause 4.4(3) of the Screening Test Regulations issued and notified on 16
April, 2010 by the MCI. One of the reasons to strike down the impugned
stipulation that migration from one university or medical college to another
was impermissible, was that the amendment had impacted and resulted in
retrospective effect inasmuch as it had adversely affected students who, on
the basis of eligibility certificates, had proceeded overseas and had obtained
medical qualification or were in process of doing so. The Court observed
that unless there were compelling and good reasons in public interest,
legislation with retrospective effect could be declared as unreasonable or
arbitrary and violating Article 14 of the Constitution. Further, in case of
delegated legislation, power to make retrospective legislation must exist and
should be expressly stated or inferred by necessary implication. Such power
in the context of the Act cannot be inferred to have been granted to MCI and
MCI had not indicated any compelling reason why the Regulation should be
given retrospective effect. Similar observations are to be found in Narendra
Sakharam Jadhav versus State of Maharashtra , 2000 (3) Mh.L.J. 806.
65. Counsel for MCI has drawn our attention to decision of the Supreme
Court in Kailash Chand Sharma versus State of Rajasthan and Others ,
(2002) 6 SCC 562, wherein the decision in the case of Suresh Pal (supra)
was distinguished and clarified. We would observe that this reason is not
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the primary ground to allow the writs and quash the proviso to Clause 4 (2)
(a) of the Regulations, albeit is a supporting and a secondary factor.
66. We would also like to record that some of the counsels for the
petitioners had relied upon Section 19A of the Act to contend that the
amendments made should have been circulated and approved by the State
Governments. In our opinion, Section 19A of the Act would not be
applicable for the said provision does not apply to qualifications prescribed
for NEET examination which is conducted in terms of power conferred
under Section 10D of the Act, read with clauses (ma) and (mb) to Section 33
of the Act.
Challenge to age limit / over age
67. This brings us to the second issue and question of over age or upper
age limit. The proviso to clause (4) of the Regulations, as noticed above,
now postulates that general candidates above the age of 25 years and
reserved category candidates above the age of 30 years would not be eligible
to appear in NEET Examination, 2018 and onwards. At the outset, we
would reject the contention of the petitioners that the aforesaid amendments
would fall foul on the ground that they are retrospective. The said assertion
cannot be accepted for the simple reason that whenever upper or any age
criteria is prescribed, it will be effective from a particular date. If the
contention of the petitioners on the aspect of age or cut-off date is to be
accepted, then by legislation, subordinate or otherwise, upper or any age
criteria cannot be fixed or altered. With regard to cut-off dates, it is normally
left to the domain of the executive authority and courts do not interfere,
unless the cut-off date appears to be ex-facie arbitrary and causes blatant
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discrimination [see Government of Andhra Pradesh & Ors. versus N.
Subbarayudu & Ors., (2008) 14 SCC 702].
68. In the counter affidavit filed by the respondent/MCI on the question
of fixation of upper age limit, it has been explained that approximately 11
Lakh students compete each year for about 61000 seats for MBBS courses
in various government and private medical colleges across the country.
Prior to the amendment, no upper age limit was fixed for appearing in the
NEET examination and it was noticed that large number of candidates kept
on appearing year after year in the hope of getting a seat or secure an
upgrade to a reputed medical college. This had resulted in an unhealthy
competition amongst the candidates and the rule position was to the
disadvantage of those who were young and meritorious, who would face
tough and rather unfair competition from those who had earlier appeared and
were not successful or wanted to secure admission to a better college.
Candidates who would repeat were at an advantage, on account of
preparation, etc. The respondent/MCI, on the over age aspect, have
explained as under:-
―68. It is relevant to submit here that the conditions
relating to the maximum age limit assumes great
significance since the underlying objective behind having
a Uniform Entrance Examination for admissions to
MBBS course is to ensure that every candidate gets equal,
fair and reasonable opportunity to compete with the other
candidates. The idea of having a Uniform Entrance
Examination is to have a level playing field as also to
curb unhealthy competition and at the same time ensuring
that only bona fide meritorious candidates are selected
through a transparent process of selection.
W.P. (C) No. 1813/2018+connected Page 73 of 81



69. It is respectfully submitted that there are
approximately 61,020 seats available in MBBS course in
various Government and Private Medical College across
the Country. It is submitted that on an average
approximately 11 Lakh students compete every year
seeking admission in the above-mentioned number of
seats for MBBS course. Prior to the amendment to the
Regulations on Graduate Medical Education, 1997, no
upper age limit was fixed for appearing in the Uniform
Entrance Examination was there as a result of which it
was noticed that large number of candidates kept
appearing in the Uniform Entrance Examination year
after year just in the hope of getting a seat in a reputed
medical college. This has resulted in a very unhealthy
competition amongst the candidates since the numbers of
candidates appearing in the Uniform Entrance
Examination has tremendously increased every year for
almost the same number of seats.
70. It is submitted that it is discernible that when the
number of candidates competing are far in excess of the
number of seats available then it becomes very difficult to
assess and determine the real merit. In other words, it is
unfair to make a young candidate appearing in the NEET
examination for the first time to compete with a much
older candidate who had more time to prepare and had
already given several attempts. It is respectfully
submitted that it is in the interest of the candidates that
there is cap fixed on the upper age so that certain
candidates who have already given several attempts do
not steal a march over the other candidates.
71. It is respectfully submitted that fixing of upper age
limit is very crucial as it would ensure that the candidates
do not become victims of unhealthy competition,
resulting in a situation where it becomes impossible for
the young candidates to secure admission in the medical
college.
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72. It is submitted that by way of the amended Graduate
Medical Regulation, 1997 the answering respondent has
prescribed 17 years as the minimum age limit to be
eligible for admission in the medical college. By fixing
25 years as the maximum age limit for appearing in the
NEET examination every candidate belonging to General
Category on an average gets 7-8 years for preparation to
appear in the NEET examination. Similarly a candidate
belonging to SC/ST/OBC category on an average gets 13
years till he attains the age of 30 years for preparation to
appear in the NEET examination. In view thereof, no
candidate is deprived of a fair and reasonable opportunity
to compete with other candidates in the Uniform Entrance
Examination.
73. It is relevant to submit that merit is determined on the
basis of the calibre of the candidate to score certain
number of marks in the entrance examination and secure
a position in the merit list. The study of medicine
requires meritorious and intelligent candidates having the
requisite knowledge and such candidates should be within
a particular age group. It is submitted that appearing in
the Uniform Entrance Examination endlessly will neither
benefit the candidate nor the medical colleges as well as
the Country since it will only increase the burden on the
candidates to compete with more and more candidates
every year.
74. It is further submitted that the introduction of
maximum age limit to appear in the NEET examination,
is also required to be viewed from the perspective of the
candidates. It is a well-known fact that the number of
candidates aspiring to become doctors is far more than
any other profession in the Country. It is submitted that
the total number of seats available in the medical college
are far less than the number of candidates seeking
admission in MBBS course. It is respectfully submitted
that it is quite apparent that every candidate appearing in
the NEET examination cannot get admission to MBBS
course as there is a great dearth of seats. In view thereof,
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no fruitful purpose would be served by permitting a
candidate to appear in the NEET examination year after
year without there being any cap on the age limit.
75. It is respectfully submitted that there have been many
instances where the candidates despite appearing several
times in the entrance test has failed to get admission in
the medical colleges. It is submitted that if there is no
upper age limit fixed then the candidates aspiring to
become doctors will continue to appear in the
examination just in hope of getting selected even though
they have been unsuccessful in the entrance examination
on several occasion. This would result in unnecessary
wastage of the valuable time, energy and hard work put in
by the candidate and such candidate who failed to qualify
even after repeated opportunities will also be left with no
other alternative option to pursue any other profession in
life.
76. It is submitted that by way of the amended Graduate
Medical Regulation, 1997 the answering respondent has
prescribed 17 years as the minimum age limit to be
eligible for admission in the medical college since the
candidates at that age possess a developing mind and can
cope up with highly technical/ scientific subject of MBBS
since the candidates at that age possess a developing
mind due to high grasping power but beyond a certain age
a person‘s mind becomes fully developed and the same
inhibits him from grasping technical / scientific course in
medicine.‖
The aforesaid reasoning and grounds given appeal to us. Factually,
the assertions of the MCI are not under challenge. By fixing upper age limit
of 25 years in case of general candidates, a candidate belonging to the
general category on an average would get 7 to 8 years for preparation and
appearing in NEET examination. A reserved category candidate, till he
attains the age of 30 years, will get an average of 12 to 13 years to prepare
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and appear in the NEET examination. No candidate therefore is denied an
adequate and fair opportunity to get selected.
69. Aforesaid need to put the upper age limit was necessary as there are
approximately 61000 seats for MBBS course in government and private
medical colleges in the country. There has to be a level playing field for
selection amongst lakhs of candidates who appear every year (in 2017, about
11 Lakh candidates had appeared). It is obvious that a candidate who is 17
or 18 years of age will find it difficult to compete with a candidate who is
above 26/31 years of age and has been studying for last 7 to 10 years or even
more only to get admission to an MBBS course.
70. Contention of the petitioners that no upper time limit has been
prescribed for completion of the MBBS course after admission to acquire a
degree, would not in our opinion make the proviso prescribing the upper age
limit for selection as arbitrary and unconstitutional. These are two separate
aspects. Failure to prescribe an upper time period to complete MBBS course
may be an anomaly, which it can be argued requires a correction (on which
we give no direction). It will not be a ground to strike down the impugned
proviso which is justified and necessary, as invalid and unconstitutional.
71. We are conscious that several countries do not impose and have not
fixed upper age limit for MBBS course, but the situation in these countries is
different for there are not that many candidates competing for selection to a
few and limited seats. The present situation in India cannot be compared
with the situation prevailing abroad or the professional course in law which
entitles a candidate to practice as an advocate. There are large number of
colleges offering LL.B. degree and, therefore, the position is too far
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different. There is need to avoid unhealthy and unfair advantage and
competition which is to the disadvantage of the candidates belonging to
younger age group. There is also need to ensure that candidates from young
age group get admission to medical colleges so that they bloom and groom
themselves into experts and specialists who can render medical services over
a long period of time. We do not think the challenge on the upper age limit
has any merit and is therefore rejected.
72. As eidolons, we would accept that every person should be given an
opportunity to compete for selection for neither age nor subjects studied in
school matter, when the person has competence and calibre clear the
entrance examination and successfully complete the MBBS course. Multi
disciplinary approach in medicine and other fields is now accepted as
necessary and beneficial. There are several countries that do not subscribe
any restriction on age limit or the course/subjects studied during schooling
without sacrificing quality and calibre. Midlife change in profession should
be accepted and should not treated as a disqualification. However, in the
present context and background in India, given the limited number of seats
and large number of aspirants, it is difficult to hold that the upper age limit
is not a reasonable restriction, which has been imposed in the interest of
general public. Hopefully, in near future, this situation would change, and
age and ―subject‖ constraint and restriction would not be required and
necessary.
73. W.P.(C) No.2055/2018 has been preferred by Ritinath Shukla who is
a compounder/ward boy aged 45 years. Petitioner submits that they should
be given preference and they want to upgrade their skills as a compounder /
ward boy to that of a qualified doctor. We can empathise with the desire of
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Ritinath Shukla to appear in the NEET examination to qualify to selection to
a medical college, but do not think this can be a ground to allow the writ
petition and grant relief. We have already examined the question of upper
age limit above.
74. The case of nurses from Kerala in W.P.(C) Nos.1982/2018, Jasna
Shayla K and 1972/2018, Jalaludheen T. & Anr. is somewhat different for
by State legislation, nurses are entitled to reservation in medical colleges in
the State of Kerala. However, we do not think we can grant any relief to the
said petitioners in view of the decision of the Supreme Court in State of
Uttar Pradesh and Others versus Dinesh Singh Chauhan , (2016) 9 SCC
749 which decision refers to Entry 66 of the Union List and Entry 25 of the
Concurrent List. The law and ratio expounded is that law under Entry 25 of
the Concurrent List is subject to the Central law referable to Entry 66 in the
Union List which in this case would be the Regulation. The legal issue and
ratio, in Dinesh Singh Chauhan (supra) was referred to a larger Bench in
W.P.(C) No.196/2018, Tamil Nadu Medical Officers’ Association & Ors.
th
versus Union of India & Ors. vide order dated 13 April, 2018. The prayer
for interim relief was not granted as it was felt appropriate that the prayer for
interim relief would be considered by the larger Bench. The larger Bench of
th
five Judges of the Supreme Court in their order dated 24 April, 2018 in
Tamil Nadu Medical Officers’ Association & Ors. versus Union of India
& Ors. have not acceded to and accepted the prayer for interim relief which
was refused observing that at this stage, Dinesh Singh Chauhan (supra)
holds the field and primacy has to be accorded to the legislation framed
under Entry 66 of List I. We, therefore, regret and express our inability to
accept the prayers made in the aforesaid writ petitions.
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Conclusions
75. In view of the aforesaid discussion, our findings and conclusions are
as under:-
(a) Proviso to clause 4(2)(a) of the Regulations disqualifying recognized
open school Board candidates is struck down and declared
unconstitutional. Students/candidates, who have done class 12 from
NIOS or recognized open school State Boards, would not be treated as
per se disqualified for selection and appearance in NEET
examination. Their NEET results, when otherwise eligible, would be
declared with other candidates.
(b) Proviso to clause 4 prescribing upper age limit of 25 years in case of
general category candidates and 30 years in case of reserved category
candidates is legal and valid. To this extent, the writ petitions
challenging vires of proviso to clause 4 of the Regulations are
dismissed.
(c) In respect of private students, MCI has already issued clarification,
which appears to have satisfied grievance of the private candidates.
In the light of the said clarification, no arguments have been
addressed before us and, therefore, we have not decided or
adjudicated on the said issue/aspect.
(d) Writ Petition (C) No. 1982/2018, Jasna Shayla K versus Union of
India and Ors. and Writ Petition (C) No.1972/2018, Jalaludheen T.
& Anr. versus Medical Council of India and Ors. are dismissed in
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view of the judgment of the Supreme Court in Dinesh Singh
Chauhan (supra).
The afore-stated writ petitions are disposed of in the aforesaid terms.
There would be no order as to costs.
-sd-

(SANJIV KHANNA)
JUDGE


-sd-

(CHANDER SHEKHAR)
JUDGE
MAY 11, 2018
NA/VKR/PK
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