NEHA CHOUDHARY AND OTHER Vs. NATIONAL ELIGIBILITY

JUDGEMENT

(1.) Mr. Tanveer Ahmed and Mr. JK Yogi, counsel for the petitioners submitted that the Division Bench of the Delhi High Court in the case of Tanishq Gangwar and Others. Versus Union of India and Others. - WP (C) 6773/2018 has held that 'the category covered in Sr. No. (7) of the Clarification issued by MCI and the regulation {Regulation 4(2) (a)} to the extent it sets out the impugned disqualification, "Furthermore, study of Biology / Biotechnology as an additional subject at 10 + 2 level also shall not be permissible..." are hereby set-aside as discriminatory and arbitrary."

(2.) Counsel for the petitioners submitted that despite having been successful in NEET, 2018 examination and having participated in the counselling for admission to MBBS Course and allotted Mahatma Gandhi Medical College, Jaipur and Medical College Dungapur, respectively by the UG Admission Board, on presentation before the said colleges, the petitioners were denied admission for reason of not fulfilling the requirement of Regulation 4(2)(a) of the Under Graduate Medical Regulations, 1997 (hereafter 'the Regulations of 1997') which now stands set-aside to the extent of requiring two years continuous study of biology etc. at the Sr. Secondary level.

(3.) Counsel relied upon the judgment of the Apex Court in the case of Kusum Ingots and Alloys Ltd. Versus Union of India (UOI) and Ors., (2004) 6 SCC 254 and submitted that positive order passed on a writ questioning the constitutionality of a Central Act in view of the provisions contained in Clause (2) of Article 226 of the Constitution of India will have effect throughout the territory of India. They further submitted that the offending regulation 4(2)(a) of the Regulations of 1997 leading to denial of their admission by the Mahatma Gandhi Medical College and Medical College, Dungapur despite being allocated the said colleges by the NEET UG Medical and Dental Admission / Counselling Board, 2018 having been set aside by the Delhi High Court, the petitions be allowed. Counsel further relied upon the judgment of the Division Bench of the Madras High Court in the case of Dr. T. Rajakumari Versus The Government of Tamil Nadu and Others. (W.P. Nos. 39022 and connected case No. 36735 of 2015) decided on 3rd August, 2016 and submitted that the Division Bench in the aforesaid judgment held that where a provision of a Central Act is declared ultra-vires by a High Court, that provision struck off would be inoperative across the length and breadth of the country until the judgment in issue were to be stayed by the Apex Court. And only in that eventuality the provision struck down would revive and be operative. Reference was made to para 4 of the aforesaid Division Bench judgment of the Madras High Court, which reads as under:-