JUDGMENT

1. This petition under Article 226 of the Constitution of India seeks to challenge the communication dated 29.08.2022 (Annexure P- 1) issued by Union of India through the Ministry of Health and Family Welfare, Department of Health and Family Welfare, New Delhi, whereby, in response to the letter dated 28.07.2022, for issuance of an eligibility certificate in favour of the petitioner, the concerned Ministry has responded negatively.

2. The facts of the case are as under:

(i) In March, 2013, the petitioner cleared Higher Secondary Certificate Examination (12th Examination) from the Gujarat Secondary & Higher Secondary Examination Board, Gandhinagar with Physics, Chemistry, and Mathematics as her primary subjects with an aggregate of 54.44% marks.

(ii) In April, 2014, the petitioner took admission in National Institute of Open Schooling (hereinafter referred as `NIOS') to obtain the same qualification with the combination of Biology being one of the subjects along with Physics and Chemistry.

(iii) On 14.11.2014, the petitioner obtained the certificate of clearing Senior Secondary School Examination through NIOS.

(iv) In pursuance to the request of the petitioner, the Ministry of Public Health Bukovinian State Medical University, Ukraine, in terms of the communication dated 15.06.2015 (Annexure P-6) allowed the petitioner to undergo MBBS/MD Physician course in Ukraine for Session 2015-2016.

(v) In the year 2021, the petitioner completed the full course in the said University and a certificate in that respect was issued by the concerned University on 03.09.2021 (Annexure P-7).

(vi) In order to appear in the screening test, the petitioner applied for the eligibility certificate by a request letter dated 13.10.2021. There were various correspondence between the petitioner and the concerned authority. However, despite all clarifications, the eligibility certificate was not issued in favour of the petitioner. The respondent No. 1 issued the impugned communicated dated 29.08.2022, informing the petitioner that for the reasons mentioned therein the eligibility certificate cannot be issued. The impugned communication dated 29.08.2022 reads as under:

"I am directed to refer to your letter dated 28.07.2022 seeking help in getting Eligibility Certificate issues and to inform you that the matter has been examined in the Ministry and it has been observed as under:

(a) A candidate should have taken Eligibility Certificate from Erstwhile MCI.

(b) At the time when you took admission, candidates passing from Open school were not eligible for getting admission in MBBS.

(c) Hon'ble High courts in judgment dated 11.05.2018 declared passing 12th class from NIOS at par with 12th Class (regular), However, it is still for consideration whether the judgment can be considered in retrospective effect

(d) Finally, as per eligibility, a candidate has secure 50% marks which is pre requisite for pursuing MBBS courses by General Candidate & you have not presented OBC category or any other reserved category certificate.

Yours faithfully

(Sunil Kumar Gupta)

Under Secretary to Government of India"

3. Learned counsel appearing on behalf of the petitioner submits that the petitioner, in order to practice Medicine in India, is required to pass the Foreign Medical Graduate Examination (FMGE) and the only reason for the denial of the certificate is that she has not studied Physics, Chemistry and Biology at the 12th level which is factually incorrect. According to her, the Screening Test for granting approval to the medical graduates from foreign countries is governed by Screening Test Regulation, 2002 (in short STR, 2002). To enable the candidates to appear in Screening Test, an eligibility certificate is required from the Medical Council of India (now National Medical Commission, hereinafter referred as MCI/NMC). The eligibility certificate is granted in terms of the applicable Regulations, it being Eligibility Requirement for Obtaining Admission in an Undergraduate Medi