LPA 225/2021 Page 1 of 17

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 05^th AUGUST, 2022

IN THE MATTER OF:

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LPA 225/2021 & CM APPLs.24695/2021 & 47088/2021

NATIONAL BOARD OF EXAMINATION

..... Appellant

Through:

Mr.

Maninder

Singh,

Senior

Advocate with Ms. Ruchira Gupta,

Ms. Nancy Shah, Mr. Prabhas Bajaj

& Ms. Ashita Chawla, Advocates

versus

ASSOCIATION OF MD PHYSICIANS

.....Respondent

Through:

Mr. Adit S. Pujari and Ms. Aparajita

Sinha, Advocates.

CORAM:

HON’BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

1.

The present appeal has been filed under Clause X of the Letters Patent

Act, 1865, read with Section 10 of the Delhi High Court Act, 1966, against

the Judgement dated 05.07.2021 passed by this Court in W.P.(C) No. 918 of

2021 whereby the writ petition filed by the Respondent herein was allowed.

2.

The facts, in brief, leading to the instant appeal are as under:

a)

It is stated that the Screening Test Regulations, 2002, made by

the Medical Council of India (now National Medical

Commission) in exercise of its powers under Section 33 of the

India Medical Council Act, 1956, instituted the Foreign Medical

Graduate Examination (hereinafter referred to as the “FMGE”)

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002971

LPA 225/2021 Page 2 of 17

Screening Test which must be taken by any Indian

citizen/Overseas Citizen of India (OCI) who has been conferred

a primary medical degree from a foreign medical institution, but

wishes to be provisionally or permanently registered with the

MCI or any State Medical Council on or after 15.03.2002. The

FMGE is conducted by the Appellant herein - National Board of

Examination (hereinafter referred to as the “NBE”).

b)

On 04.12.2020, the NBE conducted the FMGE (Screening Test)

December, 2020, which is a multiple-choice examination

consisting of 300 questions. In order to pass, one needs to score

50% in the examination, and there is no negative marking for

incorrect answers. Post-exam review of all the questions on the

FMGE Screening Test was conducted between 07.12.2020 and

12.12.2020, and it is stated that no error was found in the same.

The results of the FMGE Screening Test were announced on

18.12.2020.

c)

Representations were made to the NBE alleging that one

question was technically incorrect. Pursuant to this, the NBE

constituted a five-member Expert Committee on 11.01.2021 to

look into the issue. Vide report dated 15.01.2021, the Expert

Committee concluded that the said question was technically

correct, and vide Notice dated 16.01.2021, NBE clarified that the

result declared on 18.12.2020 was the final result.

d)

Thereafter, W.P.(C) 918 of 2021 was filed by the Respondent

herein, an association consisting of Indian citizens who hold

degrees in medicine from foreign universities, claiming that

there was a patently erroneous question in the examination

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002971

LPA 225/2021 Page 3 of 17

paper. During the course of the proceedings, the Respondent

herein restricted its relief to the grant of one additional mark to

the candidates who had taken the said paper.

e)

As the alleged incorrect question pertained to the Sample

Registration System (SRS), vide Order dated 05.07.2021, the

learned Single Judge directed the Registrar General and Census

Commissioner of India (hereinafter referred to as the “RGI”) to

file a short affidavit. The question has been reproduced as

follows:

rate; d. Infant mortality rate".

f)

The SRS stat