Calcutta High Court (Appellete Side)
Baishali Hom Chaudhuri vs The Union Of India & Others on 10 July, 2009
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE
SANJIB BANERJEE
W.P. No. 3141 (W) of 2009
BAISHALI HOM CHAUDHURI
-Versus-
THE UNION OF INDIA & OTHERS
Mr. Pradip Tarafdar
Mr. Santanu Dutta
Mr. Krishnendu Bhattacharya
...For the Petitioner.
Mr. Jaydip Kar
Mr. Siddhartha Ghosh
...For the Respondent Nos. 3 & 4.
Mr. Saibalendu Bhowmik Ms. Manisha Bhowmik ... For the Respondent No. 6.
Ms. Chameli Majumdar Mr. Nabakumar Das ... For the State.
Hearing concluded on: July 9, 2009.
Judgment on: July 10, 2009.
SANJIB BANERJEE, J. : -
The question that arises is as to whether a candidate who has qualified from an institution recognised in the Second Schedule to the Indian Medical Council Act, 1956 is required to take any screening test conducted by the medical council before being registered to function as a medical practitioner in the country.
The petitioner cleared her Madhyamik examinations in first division and obtained a second division in the Higher Secondary examinations. The petitioner's parents are doctors and the petitioner was inclined to also pursue a career in medicine. The petitioner bagged a ticket under the SAARC quota to the B.P. Koirala Institute of Health Sciences in Dharan, Nepal. Such institute is one of the latest entrants into the Second Schedule to the said Act, having been included in the year 2000. The petitioner completed her bachelor of medicine and bachelor of surgery (MBBS) course from such institute in Dharan, Nepal in 2006.
The petitioner had obtained a shade over 51 per cent marks in the two languages at the higher secondary stage. In the compulsory elective group comprising physics, chemistry and biology she secured 287 marks out of 600, which worked out to slightly under 48 per cent. In the optional elective subject of mathematics she scored 21 out of 100 marks, though such subject was not to count towards the total. The grand total that the petitioner secured in the higher secondary examinations was 490 out of 1000 marks.
Following her MBBS degree, the petitioner obtained a provisional registration from the Nepal medical council for a year and successfully completed a year of community oriented compulsory residential Rotary internship to be awarded an internship completion certificate by her alma mater in 2007. In October, 2007 she applied to the Medical Council of India for a permanent registration. By a letter of July 17, 2008, the council informed the petitioner that as she had obtained less than 50 per cent marks in the combined group of physics, chemistry and biology at the higher secondary stage she was not entitled to direct registration as she belonged to the general category. The medical council cited its rules regarding procedure for selection to the MBBS course and declined the request in the following words:
"(3) Procedure for selection to MBBS course shall be as follows:-
(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above.
(ii) In case of admission of the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less that 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or other Backwards Classes the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above:-
Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4.
From perusal of the application form and documents submitted therewith, it has been noted that:-
1. You have joined the MBBS course in BP Koirala Institute of Health Sciences in September, 2000 which is recognized college under 12(2) of the IMC Act, 1956 on the basis having less then 50% marks in PCB.
2. You belongs to General Category.
In view of position explained above, since you are having less then 50% marks in PCB (in 10+2), the permanent registration is regretted in terms of Graduate Medical Education Regulations, 1997."
Several letters were thereafter addressed on behalf of the petitioner to the medical council without any response.
In the affidavit used by the medical council, it has referred to its Graduate Medical Education Regulations, 1997 and has submitted that the recognition to a medical institute under Section 12 of the Act is on the premise that all the standards which have been laid down by the council in India are adhered to by the recognised foreign institution. The council says that foreign institutions recognised under Section 12 of the Act cannot admit students from India to their courses without such students fulfilling the minimum eligibility criteria prescribed by the council for being entitled to be admitted to medical schools in India.
The council submits at the final hearing that notwithstanding the petitioner not being eligible for registration under the 1997 Regulations, she can take the screening test conducted by the council under the 2002 Regulations and, if successful, obtain a licence to practise in the country.
The petitioner refers to Section 12 and submits that the plain words of sub-section (1) thereof do not imply that a person obtaining a degree from an educational institution named in the Second Schedule to the Act may be subjected to any further examination or screening before such person is permitted to practise in India. The petitioner refers to a judgment reported at AIR 1986 Bom 230 (Dr. Arun H. Bakle v. Union of India & ors.) and relies on paragraph 8 thereof:
"8. Even assuming that it is a regulation, in our view, it cannot override the provisions of the Act especially sub-s.(3) of S.13 and S.15 which entitle a person possessing a degree referred to in Part II of the Third Schedule, and who has undergone practical training in the country which awarded him the qualification as required under the rules governing grant of such medical qualification without being required to undergo further training in India. Sub-sec.(1) of S.15 which declares such medical graduate's right to be enrolled is subject only to the other provisions of the Act. There is no other provision of the Act, so far as such medical graduates, as the petitioner, who have undergone a training as part of their course of study are concerned to undergo further training in India. That being a right conferred by the Act, no subordinate legislation like a regulation envisaged by S.33 can take away that right by imposing a further condition, for S.15(1) is only subject to the provisions of the Act and not to any rule or Regulation made thereunder. Any rule or Regulation for such a medical graduate to be enrolled can only prescribe the form or the fee payable for registration and not prescribe any additional qualification thereby taking away his right to be enrolled. The Medical Council of India, in communicating the aforesaid letter, purports to prescribe an additional qualification or a condition to be acquired or fulfilled by the petitioner to entitle him to be enrolled on the State Medical Register. Any such regulation cannot override or modify the provisions of the Act so as to take away the right vested in a citizen under the Act. However bona fide such power may be exercised, no subordinate legislation can override the provisions of the Act."
The medical council says that such judgment is no longer good law in view of the Supreme Court decision reported at (2005) 1 SCC 45 (Sanjeev Gupta v. Union of India). The medical council insists that the law on the subject of the desirability and the compulsory requirement of the screening test has now been settled in such judgment. The facts in that case pertained to Indian students who had obtained medical degrees from the erstwhile USSR and the subsequent CIS and Russian institutions which, in course of the turmoil in the 1980s and 1990s, had shown a sharp decline in standards. Indian students who were not eligible for admission to medical degree courses in this country had secured admission to Russian medical schools, in some cases without having studied biology at the plus-2 level. At paragraph 13 of the report, the decisions taken at a meeting of November 6, 1998 presided over by the principal secretary to the Prime Minister of India were noticed. One of the points that came out from such meeting was as follows:
"2. Instead of going in for de-recognition of the other medical institutions in the erstwhile USSR, a system of post-screening of the students who are coming back to India after obtaining the degree from these institutions can be introduced straightaway. This can be made applicable to all the students who return to India after obtaining medical degrees from any foreign medical institution."
The executive committee of the medical council suggested a one-time measure to deal with Indian medical students affected by the break-up of the Soviet Union and placed the suggestions before the Supreme Court which were noticed at paragraph 14 of the report. At an interim stage of the proceedings before the Supreme Court, the suggestions of the executive committee were accepted and the class of candidates who, according to the medical council, could be registered in India following a screening test was settled. The concerned candidates were directed to take the screening test and, if successful, be entitled to provisional registration. Paragraph 16 of the judgment recorded the amendments to Section 13 of the Act brought in to provide for maintaining a minimum level of knowledge and acumen to be assessed on the basis of the screening test and noticed the statement of objects and reasons of the amending Act of 2001:
"16. In pursuance of the above decisions, the Central Government proceeded with the procedural formalities for amending Section 13 of the Act to give effect to these executive decisions. After completion of the procedural formalities a Bill further to amend the Act was introduced in the Rajya Sabha on 12-3-2001 with the following Statement of Objects and Reasons thereof:
"1. The Indian Medical Council Act, 1956 contains provisions in Sections 12, 13 and 14 with a view to recognising medical qualifications granted by medical institutions in foreign countries.
2. Over a period of time it has come to notice that a large number of private agencies sponsor students for medical studies in institutions outside India for commercial considerations. Such students also include the students who did not fulfil the minimum eligibility requirements for admission to medical courses in India. Serious aberrations have been noticed in the standards of medical education in some of the foreign countries which are not at par with the standards of medical education available in India. Due to lack of uniformity in the standards of medical education in various foreign countries, it has been decided that a provision should be made in the Indian Medical Council Act, 1956 to enable the Medical Council of India to conduct a screening test in order to satisfy itself with regard to the adequacy of knowledge and skills acquired by citizens of India who obtain medical qualifications from universities or medical institutions outside India before they are granted registration to practise medicine in India.
3. Further, issue of prior eligibility certificate by the Medical Council of India would ensure that only those candidates who conform to the Council norms of admission to the medical college in India would go for undergraduate medical education outside India.
4. The Bill seeks to achieve the above objects.
C.P. Thakur New Delhi 2-3-2001."
At paragraph 18 of the judgment, the Supreme Court noticed that in accordance with the amending Act of 2001 the council submitted drafts of the "Screening Test Regulations, 2002" and the "Eligibility Requirement for Taking Admission for an Undergraduate Medical Course in Institutions Abroad Regulations, 2002" for approval. Both sets of Regulations were notified on February 18, 2002 and the Central Government stipulated March 15, 2002 as the cut-off date after which no Indian citizen with a foreign primary medical qualification was to be granted registration, whether provisional or permanent, to practise medicine in India without complying with the said Regulations. At paragraph 19 of the report, the judgment reported at (2002) 3 SCC 696 (Medical Council of India v. Indian Doctors from Russia Welfare Assns.) was noticed and it was observed that the relevant guidelines were approved by the Supreme Court in exercise of the authority under Article 142 of the Constitution. Before referring to the reading of the Indian Doctors from Russia Welfare Assns judgment in the Sanjeev Gupta verdict, the relevant guidelines as quoted at paragraph 39 of the report may be seen:
"39. Under the provisions of the amended Act, a student was required to successfully complete compulsory internship of one year after getting provisional registration. The students who applied for provisional registration after 15-3-2001 were required to do one year of internship and to qualify the screening test as per the Screening Test Regulations, 2002. The Government noticed that there are a number of persons who applied to MCI for grant of provisional registration after completion of their degree abroad prior to 15-3-2001 but were not granted provisional registration by MCI for various reasons including that they have not undergone complete duration of six years of the medicine course from institutes recognised by MCI; and those who did not fulfil the minimum eligibility criteria for joining medical course laid down by MCI at the time of their admission in the medical institutions abroad and those who came back with medical degrees which were not recognised by MCI. In order to regulate the registration of such persons who had completed their degree abroad prior to 15-3-2001, the Government framed the following guidelines which were placed before the Court: (SCC pp. 699-700, para 6) "6. In order to regulate the grant of registration to such persons who have completed their degree abroad prior to 15-3-2001, the following guidelines are placed before this Court by the Government of India:
(A) The case of all persons who applied for registration to MCI prior to 15-3-2001 shall be dealt with according to the provisions of the Act as existing prior to the commencement of the IMC (Amendment) Act, 2001 subject to the following:
(i) Those students who obtained degrees where the total duration of study in recognised institutions is less than six years (i.e. where a part of the study has been in unrecognised institutions, or the total length of study in a recognised institution is short of six years), shall be granted registration by MCI provided that the period of shortfall is covered by them by way of additional internship over and above the regular internship of one year. In other words, for such categories of students, the total duration of study in a recognised institution plus the internship, would be seven years, which is the requirement even otherwise.
(ii) Where students who did not meet the minimum admission norms of MCI for joining undergraduate medical course, were admitted to foreign institutes recognised by MCI, this irregularity be condoned. In other words, the degrees of such students be treated as eligible for registration with MCI.
(B) All students who have taken admission abroad prior to 15-3-2002 and are required to qualify the screening test for their registration as per the provisions of the Screening Test Regulations, 2002 shall be allowed to appear in the screening test even if they also come in the categories of circumstances contained in (A)(ii) above, as the relaxation contained therein would also be applicable in their case. In other words, any person at present undergoing medical education abroad, who did not conform to the minimum eligibility requirements for joining an undergraduate medical course in India laid down by MCI, seeking provisional or permanent registration on or after 15-3-2002 shall be permitted to appear in the screening test in relaxation of this requirement provided he had taken admission in an institute recognised by MCI. This relaxation shall be available to only those students who had taken admission abroad prior to 15-3-2002. From 15-3-2002 and onwards all students are required to first obtain an Eligibility Certificate from MCI before proceeding abroad for studies in medicine. (C) The categories of students not covered in (A)(i) and (ii) above and whose entire period of study has been in a medical college not recognised by MCI, will be allowed to appear in the screening test for the purpose of their registration provided they fulfil all the conditions laid down in the IMC (Amendment) Act, 2001. In other words, the qualification obtained by them must be a qualification recognised for enrolment as medical practitioner in the country in which the institution awarding the same is situated and they must be fulfilling the minimum eligibility qualification laid down by MCI for taking admission in an undergraduate medical course in India. They shall not be entitled to any relaxation."
The interpretation of the Indian Doctors from Russia Welfare Assns judgment at paragraph 19 of the Sanjeev Gupta report is important:
"19. Appeals filed by MCI were finally decided by this Court by passing a common judgment dated 8-3-2002 in Medical Council of India v. Indian Doctors from Russia Welfare Assns. with connected matters. It was noticed by the Government of India that there were a number of persons who applied to MCI for grant of provisional registration after completion of their degrees abroad prior to 15-3-2001 but were not granted provisional registration by MCI for various reasons including that they have not undergone complete duration of six years of the medicine course from institutes recognised by MCI and those who did not fulfil the minimum eligibility criteria for joining medical course laid down by MCI at the time of their admission in the medical institutions abroad and came back with medical degrees which were not recognised by MCI. In order to regulate the registration of such persons who had completed their degrees abroad prior to 15-3-2001, the Government framed guidelines dated 15-3-2001 which were placed before the Court. The Court took note of the provisions of amended Section 13 of the Act and the fact that the same had been published in the gazette dated 18-2-2002 by MCI after obtaining the approval from the Government of India. The guidelines dated 15-3-2001 were approved by this Court in exercise of the power under Article 142 of the Constitution. The guidelines were approved by way of one-time measure and it was observed that future cases will be governed by the revised guidelines framed by MCI as approved by the Government."
To emphasise the point, in Sanjeev Gupta it was clearly observed that in the Indian Doctors from Russia Welfare Assns judgment it was the relevant guidelines that had been approved under Article 142. Such guidelines were to "regulate the registration of such persons who had completed their degrees abroad prior to 15-3-2001." The direction that "future cases will be governed by the revised guidelines framed by MCI as approved by the Government" given in the Indian Doctors from Russia Welfare Assns order, had necessarily to apply to the cases of those who were similarly placed as the candidates in the Indian Doctors from Russia Welfare Assns matter. In fact, such position is apparent from paragraph 7 of the Indian Doctors from Russia Welfare Assns case was quoted at paragraph 40 of the Sanjeev Gupta judgment:
"7. In the special features and circumstances arising in these cases, it is unnecessary to consider the various contentions urged on behalf of the parties but we propose to dispose of these matters by approving the guidelines set forth above in exercise of powers under Article 142 of the Constitution and these guidelines will be applicable to all such persons who are similarly situate, whether they are parties before this Court or not. In respect of those who have already applied for registration to MCI, the same shall be granted or refused within a period of 15 days from today in terms of this order. On grant of such registration, the students shall undergo the internship or the housemanship, if needed. It is made clear that these guidelines approved by us are by way of a one-time measure. Future cases will be governed by the revised regulations framed by MCI as approved by the Government."
The several writ petitions that were decided in the Sanjeev Gupta judgment were broadly divided into two groups: candidates falling under the first group were those who went to prosecute their MD physician course in the year 1994; and candidates in the second group were those who went in the year 1995 and thereafter. The candidates in the batch of 1994 passed out in 2001 and were granted provisional registration by the medical council under interim orders of the Supreme Court but were denied permanent registration. The subsequent batches were refused any kind of registration by the council. Both sets were aggrieved by the denial of permanent registration and invoked Article 32 of the Constitution.
The principal argument was noticed at paragraph 24 of the report. The petitioners before the Supreme Court contended that since they had applied for registration prior to the amendment to Section 13(3) of the Act being notified, the unamended provision would apply. The unamended provision prescribed two conditions for doctors covered thereby to obtain permanent registration: being a citizen of India and having undergone such practical training after obtaining the qualification as required by the rules and regulations in force. The petitioners before the Supreme Court asserted that since they had complied with the two conditions in unamended Section 13(3) of the Act, they were entitled to be registered without the screening test. They insisted that it was for the Central Government to notify the amendment to the Act or the introduction of any Regulations and the notification published by the medical council did not amount to issuance or publication of the notification by the Government of India since the Central Government being the delegatee under the Act could not abdicate or delegate its functions to any other body. The secondary point raised, as noticed at paragraph 25 of the report, was that the requirement of passing the screening test under Sections 13(4A) and 13(4B) of the Act was not applicable to persons with "recognised medical qualifications" covered by Section 13(3) of the Act.
Paragraph 27 of the judgment recorded a question posed at an earlier stage of the proceedings by the Supreme Court, "that if the court forms an opinion that the students who are graduating from foreign universities and specially from the universities of the erstwhile USSR should undergo a screening test and practical training before being held entitled to permanent registration for medical practice in India then what should be the nature, content and methodology of test and who should conduct it?" Suggestions were given by the Union of India and the petitioner students. All suggestions from the petitioners to circumvent the screening test were repelled and a screening test with a mix of pre-clinical and para-clinical subjects forming one-third and clinical subjects forming the rest of the screening test was directed to be conducted.
The Supreme Court observed, at paragraph 48 of the Sanjeev Gupta judgment that the council was an expert body which could lay down the criteria for grant of permanent registration and held at paragraph 49 that the petitioners in that case had to undergo the screening test:
"48. MCI is the expert body which can lay down the criteria for grant of permanent registration to a person to practise medicine and involving himself in the patient care and management. Otherwise also we are not inclined to permit the petitioners to practise medicine overriding the provisions of the Act as the Court has to take into consideration the interest of the public at large as well. A person who is not duly qualified as prescribed by MCI cannot be permitted to involve himself in public health care and play with the lives of human beings. It is not for this Court to decide as to who is duly qualified to practise medicine. MCI being the expert body is the best judge to do so. After a thorough examination of the entire issue MCI has come to the conclusion that after disintegration of USSR due to serious aberrations in the system of recruitment and admission of students in institutions located in Russia there was a decline in the standards of medical education in these countries. In this backdrop MCI keeping in view the interest of the public at large and the students passing from these institutions decided that the students would be required to do internship for one year as well as to qualify the screening test before they could be given a permanent registration involving themselves in the public health care.
"49. The petitioners are not being debarred from starting medical in India but they are merely to undergo screening test as provided in the statutory regulation. The policy decision to subject the students to undergo a screening test has been upheld by this Court in Medical Council of India."
It would do best to look at the relevant provisions of the Act which have a bearing in the present context:
"12. Recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity. - (1) The medical qualifications granted by medical institutions outside India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act.
(2) The Council may enter into negotiations with the Authority in any country outside India which by the law of such country is entrusted with the maintenance of a register of medical practitioners, for the settling of a scheme of reciprocity for the recognition of medical qualifications, and in pursuance of any such scheme, the Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to include therein the medical qualification which the Council has decided should be recognised, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification declaring that it shall be a recognised medical, qualification only when granted after a specified date.
(3) The Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Second Schedule by direction that an entry be made therein in respect of any medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date.
(4) Where the Council has refused to recommend any medical qualification which has been proposed for recognition by any Authority referred to in sub-section (2) and that Authority applies to the Central Government in this behalf, the Central Government, after considering such application and after obtaining from the Council a report, if any, as to the reasons for any such refusal, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein and the provisions of sub-section (2) shall apply to such notification."
"13. Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule. - (1) The medical qualifications granted by medical institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act.
(2) The medical qualifications granted to a citizen of India -
(a) before the 15th day of August, 1947, by medical institutions in the territories now forming part of Pakistan, and
(b) before the 1st day of April, 1937, by medical institutions in the territories now forming part of Burma, which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act.
(3) The medical qualifications granted by medical institutions outside India before such date as the Central Government may, by notification in the Official Gazette, specify which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country he has undergone such practical training as may be prescribed.
(4) The Central Government, after consulting the Council, may by notification in the Official Gazette, amend Part II of the Third Schedule so as to include therein any qualification granted by a medical institution outside India which is not included in the Second Schedule:
Provided that after the commencement of the Indian Medical Council (Amendment) Act, 2001, no such amendment shall be made in Part II of the Third Schedule to include any primary medical qualification granted by any medical institution outside India:
Provided further that nothing contained in the first proviso shall apply to inclusion in Part II of the Third Schedule any primary medical qualification granted by any medical institution outside India to any person whose name is entered in the Indian Medical Register.
Explanation. -For the purposes of this sub-section, "primary medical qualification" means any minimum qualification sufficient for enrolment on any State Medical Register or for entering the name in the Indian Medical Register.
(4A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under sub-section (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies the said screening test shall be deemed to be the recognised medical qualification for the purposes of this Act for that person.
(4B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in sub-section (4A):
Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before the commencement of the Indian Medical Council (Amendment) Act, 2001 shall not be required to obtain eligibility certificate under this sub-section but, if he is qualified for admission to any medical course for recognised medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register.
(4C) Noting contained in sub-sections (4A) and (4B) shall apply to the medical qualifications referred to in section 14 for the purposes of that section.
(5) Any medical institution in India which is desirous of getting a medical qualification granted by it included in Part I of the Third Schedule may apply to the Central Government to have such qualification recognised and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend Part I of the Third Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of Part I of the Third Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date."
"15. Right of persons possessing qualifications in the Schedules to be enrolled. - (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
..."
The council has also referred to an unreported Division Bench judgment of the Delhi High Court in WP (C) No. 8056 of 2007 (Yash Ahuja & ors v. Union of India & ors) and has relied on the following passages from paragraphs 20, 22, 24 and 25 of the report:
"20. There is really no dispute that in case of institutes covered under Section 13 of the said Act provision of screening test is an issue which is no more res integra. The exception is, thus, sought to be carved out only account of the fact that MCOMS is an institute registered under Section 12 of the said Act and thus reciprocity itself is sufficient and there can be no provision for further scrutiny by the MCI. ..."
"22. In our considered view, there is no doubt that there is a certain distinction between recognition of medical qualifications under Section 12 of the said Act and in Section 13 of the said Act. The medical institutions covered under Section 12 of the said Act are based on a scheme of reciprocity by their inclusion in the II Schedule. It is, however, preceded by a proper verification of the facilities in the institute and the kind of education being imparted. This is also obvious from the fact that the MCI had carried out an inspection before such recognition was granted. Section 13 of the said Act deals with recognition of medical qualifications of institutes who are not included in the I or II Schedule. The screening test has been made mandatory under Sub-Section 4A of Section 13 of the said Act."
"24. If the matter is looked upon from the point of view of interests of the students it is not as if the MCI has disqualified the students who obtained the degrees from MCOMS to practice in India. In view of statutory regulations providing for a screening test which would certainly cover cases of registration of institutes under Section 13 of the said Act, the MCI has taken the interest of the students in mind by providing for such a screening test even for the MCOMS which is an institute registered under Section 12 of the said Act. If the students who have gone through their education from MCOMS plead that they had quality education and that they are taking examinations for enrollment as doctors, and successfully at that, in England and US one can see no reason why they should shy away from such a screening test in India to ensure that the quality of doctors is maintained. If the standards in MCOMS had been found up to the mark there would have been no occasion to provide for a screening test but this innovation became necessary because of the obdurate stand of the institute in failing to give an inspection and the large number of deficiencies found on the visit of the inspection team. The student strength had been increased by 50 per cent with no upgradation of facilities and it can hardly be expected that a college meant for 100 students could provide education to 150 students without enhancement and upgradation of the infrastructural facilities.
"25. We especially draw strength from the observations made in Sanjeev Gupta & Ors. case (supra) referred to aforesaid that a larger public interest must be kept in mind as a person who does not have proper medical education cannot be permitted to involve himself in public healthcare and play with the lives of human beings. The MCI is the expert body and is the best judge to do so and to prevent any injustice to the students the screening test provided for institutes under Section 13 of the said Act has been extended to the students who have passed out from MCOMS being the institute registered under Section 12 of the said Act."
The issue before the Delhi High Court was the same as in the present case and the medical council commends such opinion to be followed. The Division Bench observed, despite noticing Sanjeev Gupta, that there was a distinction between the Second and Third Schedules but did not consider it necessary to address the argument noted in the second sentence of paragraph 20 of the judgment. It was, however, expressly held that Section 13 did not apply to the First or the Second Schedules.
The West Bengal state medical council has also been impleaded, though it is unclear as to the basis therefor. The petitioner had not applied for registration to the state council and only an advocate's letter was issued to the state council. The state council cites a judgment reported at (2007) 10 SCC 306 (Udai Singh Dagar v. Union of India) for the proposition that a mere degree does not entail registration and if there are conditions imposed they need to be complied with. Paragraph 81 of the report has been placed:
"81. We cannot also accept the submission of Mr Nariman that, as for certain reasons with which we are not at present concerned, a large number of certificate-holders could not file application for getting themselves registered, they have derived an accrued right to have their names entered in the register. For the purpose of registration, the conditions laid down under Regulation 3 were to be fulfilled. A person, thus, is not entitled to be registered by the State Council or the Central Council only because he holds an educational qualification. Several other factors are required to be taken into consideration therefor. The right to or right to be in service or right to obtain an appointment in government or semi-government organisation would, thus, be dependant upon a person's name being registered therefor in the State or Central register, as the case may be. So long as their names are not on the register, the question of their acquiring any vested or accrued right does not arise. In a case of this nature, the court cannot confer a right to practise on the certificate-holders despite the fact that their names do not find place in the register maintained by the State Council or the Central Council."
Such decision is inapposite in the context as it dealt with the Indian Veterinary Practitioners' Regulations, 1992, framed under the Indian Veterinary Council Act, 1984. Even the principle enunciated therein has no bearing in the facts of the present case. It was held, on appreciation of the relevant statute and the regulations framed thereunder, that merely because a person possessed the required educational qualifications he would not be entitled to registration without complying with the conditions laid down in the regulations. The questions that have arisen in the present case are whether any condition can be imposed by the medical council to dilute the grant under Section 12 of the 1956 Act and whether anything in Section 13 of the Act applies to medical degrees obtained from institutions included in the Second Schedule to the Act.
For the purpose of the assessment in this matter, the key expression appears to be "recognised medical qualification" which is defined in Section 2(h) of the said Act to mean any of the medical qualifications included in the Schedules. Section 11 of the Act contains the expression "recognised medical qualifications", as do Section 12, Section 13 and Section 14 of the Act. Section 11(1) governs the First Schedule to the Act and provides that the medical qualifications granted by universities and medical institutions in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of the Act. Section 12(1) provides that the medical qualifications granted by medical institutions outside India which are included in the Second Schedule to the Act shall be recognised medical qualifications for the purposes of the Act.
The rest of Section 11, apart from sub-section (1) thereof, is irrelevant in the present context. The three sub-sections in Section 12 that follow the first do not detract from the contents of the first sub-section and refer to other matters governing the contents of the Second Schedule and the power of the Central Government to amend the Second Schedule, in most cases upon consultation with the medical council. Section 13, in its heading, excludes the First and Second Schedules. Sub-sections (1), (2) and (5) of Section 13 cover medical qualifications that are included in Part I of the Third Schedule. Part I of the Third Schedule contains certain medical qualifications granted by medical institutions in India which are not included in the First Schedule. Sub-sections (3) and (4) of Section 13 deal with Part II of the Third Schedule. Part II of the Third Schedule is entitled, "Recognised medical qualifications granted by medical institutions outside India not included in the Second Schedule." Sub-sections (4A), (4B) and (4C) have been introduced into the Act, along with the two provisos and the explanation to sub-section (4) by the amending Act of 2001 with effect from September 3, 2001. Such amending Act was necessitated primarily due to the problems faced by candidates who had obtained qualifications from the erstwhile Soviet Union that are referred to in the judgments of Indian Doctors from Russia Welfare Assns and Sanjeev Gupta.
The original Act was substantially altered by amending Acts of 1964, 1993 and 2001. The mushrooming of questionable medical institutions in the country prompted the introduction of several provisions, including Sections 10A, 10B and 10C by the amending Act of 1993. The essence of the Act of 1956 is to ensure a standard of quality for medical practitioners in the country. The Act was brought in to replace the 1933 statute and was enacted for the purpose of maintenance of a medical register for India and matters connected therewith. The initial sections relate to the constitution of the medical council. Section 10A to Section 20 relate to recognition of medical institutions and the degrees conferred by medical institutions in India and abroad. Section 21 requires an Indian Medical Register to be maintained "which shall contain the names of all persons who are for the time being enrolled on any State Medical Register and who possess any of the recognised medical qualifications." Section 25 as it stands today was brought in by the amending Act of 1964 to replace the original provision and provides for provisional registration. Section 27 of the Act confers the privilege of engaging in medical practice to persons possessing certain recognised medical qualifications, subject to the conditions and restrictions laid down in the Act. The section stipulates that every person whose name is borne on the Indian Medical Register shall be entitled, according to his qualifications, to practise as a medical practitioner in any part of India.
The entries in the three schedules are qualitatively distinct. It is not the medical council's argument that persons who obtain degrees from medical institutions covered by the First Schedule are required to undergo any screening test to be entitled to be registered. It is not the medical council's argument either that every candidate with a foreign degree from an institution included in the Second Schedule is obliged to take the screening test before progressing to registration. Section 11 and Section 12 which govern the First and Second Schedules, respectively, give unreserved and absolute recognition to the specified degrees conferred by the institutions included in the two schedules. The Third Schedule is completely different from the two previous schedules. Part I of the Third Schedule includes certain degrees from medical institutions in India which are not covered in the First Schedule and Part II includes certain degrees from medical institutions abroad which are not covered in the Second Schedule. In a sense, the entries in the Third Schedule stand on a lower footing than those in the first two schedules. However, there cannot be any comparison between the First Schedule and the Second since the medical council can exercise direct control over medical courses and institutions included in the First Schedule and only indirect control over the courses and institutions included in the Second Schedule. Even in its original form and before the first amending Act of 1964, Section 13(3) required certain other conditions to be fulfilled after a candidate obtained a medical qualification from an institution included in Part II of the Third Schedule before such candidate could claim registration under the Act. The 1964 amending Act dropped the surplus words "or State" at the two places that they appeared in Section 13(3) of the Act; it made no further change to the section. The amending Act of 1993 left the section untouched. The amending Act of 2001 substantially altered all that was previously there in that section in relation to Part II of the Third Schedule to the Act. For a start, it limited the operation of sub-section (3) upto a date that was to be specified by the Central Government. Next, it introduced the provisos and the explanation to sub-section (4) that prohibited any amendments being made by the Central Government to include any primary medical qualification granted by any medical institution outside India in Part II of the Third Schedule. Finally, the amending Act of 2001 brought in sub-sections (4A), (4B) and (4C) to Section 13, in effect, to establish more stringent conditions than imposed theretobefore by sub-section (3).
The Second Schedule is exclusively governed by Section 12. Section 13, undoubtedly, governs the Third Schedule exclusively; but the question is as to whether Section 13 travels beyond the Third Schedule and affects the entries in either of the other two schedules or, more appropriately in the present context, whether Section 13 covers the entries in the Second Schedule. Apparently, and according to the medical council, Sanjeev Gupta pronounces the law for all candidates with foreign medical degrees recognised by the Act who aspire to clamber on to the medical register in this country. But the ratio decidendi needs to be discovered. The doctrine of precedent, or the discipline that makes a previous decision of a superior forum in the judicial hierarchy binding, is limited to the decision itself and as to what was necessarily involved in it. It does not imply that the later forum is bound by every sentence or word used in the previous judgment in support of the decision, especially as, read out of context, such sentences or words may contain "propositions wider than the case itself required." (Caledonian Railway Co. v. Walker's Trustees, (1887) 2 App Cas 259). Sir Frederick Pollock encapsulated the tenet in a solitary sentence: "Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision." In Krishena Kumar v. Union of India [(1990) 4 SCC 207], a Constitution Bench approved such apt summary of the rule and elaborated, "20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573) "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."
The Indian Doctors from Russia Welfare Assns judgment made it clear, at paragraph 7 of the report, that the rival contentions raised had not been considered and the guidelines presented before the Supreme Court were approved in exercise of the power under Article 142 of the Constitution and were extended to others who were similarly placed but were not before the Court. Though Sanjeev Gupta dealt with candidates who apparently had degrees from institutions covered by the Second Schedule - the last sentence of paragraph 6 of the report gives such impression - the judgment proceeded on the basis that the petitioners therein should take the screening test introduced by the amended provision of Section 13 and did not advert to the question as to whether the provisions of Section 13, amended or otherwise, applied to the Second Schedule. The judgment did not record any argument to such effect nor rendered any decision thereon, even in passing. The contentions put forth on behalf of the petitioners therein were recorded at paragraphs 24 and 25 of the report which imply that the petitioners before the Supreme Court were candidates who obtained qualifications from foreign institutions included in Part II of the Third Schedule.
"24. According to the petitioners no notification by the Central Government has been published in the "Official Gazette" for bringing into operation the amended Section 13(3) of the Act and as such the unamended Section 13(3) would apply in their cases. Section 13(3) only prescribes two conditions for doctors to be given permanent registration, namely, that he is a citizen of India and has undergone such practical training after obtaining that qualification as required by rules and regulations in force. That the petitioners fulfilled these two conditions laid down in Section 13(3) and therefore are entitled to be registered without the screening test. Insistence of MCI that the petitioners should first clear the screening test and only then they can be granted provisional/ permanent registration was ultra vires the Act and therefore void. According to them, the notification published by MCI did not amount to issuance/publication of the notification by the Government of India. That the Central Government being a delegatee under the Act to notify the date could not abdicate/delegate its functions and entrust to any other autonomous body including MCI. That if the power is conferred to do official acts in a certain way they have to be done in the manner prescribed or not at all. Their case is that since the Central Government has not notified the date by publication in the Official Gazette the amended Section 13(3) has not taken effect in law and the unamended Section 13(3) of the Act shall apply as if the amendment has not come into force.
"25. Another point raised by the petitioners is that the requirement of passing the screening test under Sections 13(4-A) and 13(4-B) are not applicable to the persons with "recognised medical qualifications" covered by Section 13(3) of the Act. That the screening test provided is wide- ranging test covering the entire five-year course to be tested through multiple-choice examinations in two days would result in large-scale failures and is as such unreasonable. Instead of being subjected to a test the students can be asked to do extra internship. That the screening test is disproportionate and unreasonable response in the light of the fact that till 2000, and even thereafter, extra internship was found to be an adequate protection of the educational and public interest. Even if the screening test is to apply it should be applied prospectively from 2006- 2007 so that students who had joined the course earlier than 2000-2001 are protected from screening test but required to do extra internship."
The amended Section 13(3) retains the class of persons covered thereby from the unamended provision. From the inception of the Act of 1956, Section 13(3) has always referred to and only covered medical qualifications granted by medical institutions outside India which are included in Part II of the Third Schedule. Though it would be presumptuous to suggest that the reference to the Second Schedule in the last sentence of paragraph 6 of the Sanjeev Gupta report was irrelevant, the argument recorded at paragraphs 24 and 25 of the report demonstrates that the petitioners in that case were all covered by Part II of the Third Schedule.
A true reading of the reasoning in Sanjeev Gupta and the basis for such decision would raise three possibilities: the rationale may have been upon recognising the earlier approval of the relevant guidelines in Indian Doctors from Russia Welfare Assns under Article 142 of the Constitution and the extension of the guidelines to others who were similarly situated; or, upon assessing the impact of sub-section (4A) of Section 13 to medical qualifications from institutions outside India included in Part II of the Third Schedule; or, upon applying the stringent requirement of sub-section (4A) to medical qualifications from all institutions outside India whether included in Part II of the Third Schedule or in the Second Schedule. If the judgment is founded on the first two or either of them, it does not have any impact on the foremost matter in issue in the present proceedings, as to whether Section 13(4A) impacts anything included in the Second Schedule. If the judgment implies that the screening test under Section 13(4A) would apply to any medical qualification from an institution outside India included in the Second Schedule, then in all humility and with utmost reverence, the decision appears to have passed sub silentio as the relevant issue was neither raised nor considered.
The meaning of a judgment sub silentio has been explained in Municipal Corporation of Delhi v. Gurnam Kaur [(1989) 1 SCC 101] at paragraphs 11 and 12 of the report:
"11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words :
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not .an authority on point B. Point B is said to pass sub silentio.
"12. In Gerard v. Worth of Paris Ltd. [(1936) 2 All ER 905], the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. [(1941) 1 KB 675], the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did;
nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority."
The principle of sub silentio has been referred to and discussed by the Supreme Court in several recent cases including in State of U.P. v. Synthetics & Chemicals Ltd. [(1991) 4 SCC 139], Arnit Das v. State of Bihar [(2000) 5 SCC 488], A-One Granites v. State of U.P. [(2001) 3 SCC 537], Divisional Controller, KSRTC v. Mahadeva Shetty [(2003) 7 SCC 197] and State of Punjab v. Devans Modern Breweries Ltd. [(2004) 11 SCC 26]. In Municipal Committee, Amritsar v. Hazara Singh [(1975) 1 SCC 794] the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh [(1999) 6 SCC 172] it was held that everything in a decision is not a precedent. In Delhi Admn. v. Manohar Lal [(2002) 7 SCC 222] it was observed that a mere direction without laying down any principle of law is not a precedent. In Mahadeva Shetty, it was enunciated at paragraph 23 as follows:
"The decision ordinarily is a decision on the case before the court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. ... The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided."
In Mittal Engg. Works (P) Ltd. v. CCE [(1997) 1 SCC 203] it was laid down at paragraph 8 that, "a decision cannot be relied upon in support of a proposition that it did not decide." In Arnit Das the principle is seen thus:
"When a particular point of law is not consciously determined by the court, that does not form part of ratio decidendi and is not binding."
Since sub-sections (3), (4A), (4B) and (4C) clearly refer to medical qualifications granted by medical institutions outside India, they obviously do not concern the First Schedule or Part I of the Third Schedule; the only possible overlapping may be with the Second Schedule. The answer to this has to be discovered upon dispassionate legal deduction where neither motive nor conduct has any role to play. It is here that the heading of Section 13 may also throw some light as it expressly excludes the First and Second Schedules from the purview of the section. Though the heading or caption of a section may not always be conclusive in assessing the meaning of the provision, headings have now come to be recognised as reasonable internal aids for interpreting the provisions of the relevant section. In a decision reported at AIR 1959 SC 960 (Bhinka v. Charan Singh) a question arose as to whether a person having no title but retaining possession by virtue of an order passed under Section 145 of the Criminal Procedure Code could be ejected under Section 180 of the Uttar Pradesh Tenancy Act, 1939. The three-judge Bench of the Supreme Court held that such a person could be ejected and drew support from the heading of the section which read, "Ejectment of person occupying land without title." The judgment quoted with approval the following passage from Maxwell on Statutes (11th ed.) pages 48-49:
"The heading prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words."
Recent judgments of the Supreme Court in Mathai v. State of Kerala [(2005) 3 SCC 260], Prakash Nath Khanna v. CIT [(2004) 9 SCC 686], N.C. Dhoundial v. Union of India [(2004) 2 SCC 579] and Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala [(2001) 5 SCC 175] all support the view that the heading of a section provides some insight into the factors to be considered and may be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern legislative intent. The heading cannot be used to control the operation of the clear words of a section, but at the same time the heading being part of the statute it furnishes some clue as to the scope and purpose of the section.
The legal principle is captured in the following words by the Supreme Court in Uttam Das Chela Sunder Das v. Shiromani Gurdwara Parbandhak Committee [(1996) 5 SCC 71]:
"18. We have strong reservations to such unpurposive view of the High Court for more than one reason. The marginal note/caption to Section 16 is the foremost pointer that the issue whether the institution in question is a Sikh Gurdwara or not, has to be decided first and other questions later. The marginal notes or captions are, undoubtedly, part and parcel of legislative exercise and the language employed therein provides the key to the legislative intent. The words so employed are not mere surplusage."
Section 13(4A) refers to "medical qualifications granted by any medical institution in any country outside India recognised for enrollment as medical practitioner in that country." Such clause has to be understood to have not referred to medical qualifications granted by medical institutions in any country which are recognised medical qualifications in India. There is no indication in sub-sections (4A) or (4B) or (4C) to suggest that their operation would be beyond Part II of the Third Schedule. The facts leading up to the amending Act of 2001 as evident from Indian Doctors from Russia Welfare Assns reveal that it was the situation arising out of the breaking up of the Soviet Union and its impact on devalued medical qualifications from certain institutions included in Part II of the Third Schedule that was the guiding force behind such amending Act. A casual reference to Section 12 in the statement of objects and reasons of the amending Act of 2001 would not enlarge the scope of its clear provisions, particularly those incorporated in Section 13 as such section deals exclusively and only with the Third Schedule.
The medical council is a body that is constituted by the Central Government under the said Act. It is subservient to the Central Government and answerable to it. The medical council cannot usurp the authority of the Central Government and if it professes to discharge any function of the Central Government under the said Act, it would need the ratification of the Central Government. In any view of the matter, the medical council cannot supplant its view for that of the Parliament. The rule-making authority of the Central Government under Section 32 of the Act and the power of the medical council to make regulations under Section 33 of the Act cannot permit either to evade or override any provision of the Act. It is trite law that the rules or regulations made under an Act cannot, like the river, rise above the source.
Apart from the major introduction of several provisions in Section 13 of the Act, the amending Act of 2003 introduced a clause in Section 33 of the Act. Section 33 generally confers authority on the medical council to make regulations, in consultation with the Central Government, for carrying out the purposes of the Act. New clause (ma) in Section 33 empowers the medical council to provide for the modalities for conducting the screening tests under Section 13(4A) and for issuing eligibility certificates under Section 13(4B). That would imply that the medical council has not been left with any authority to extend the screening tests to cases other than those covered under Section 13(4A). The power to conduct screening tests is not left uncovered in the statute for the medical council to apply the same wherever necessary. The screening test is provided for by the statute and restricted to medical qualifications obtained from institutions abroad which are included in Part II of the Third Schedule.
Subordinate legislation is made by a person or body by virtue of the powers conferred by a statute. Rules and regulations made under statutory powers amount to delegated legislation. One need for delegated legislation is that statutory regulations are framed with care and meticulousness when the statutory authority framing the regulations is, after the coming into force of the Act, in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Subordinate legislation has, if validly made, the full force and effect of a statute. The authority of a statutory body ordinarily includes the power to make or adopt regulations with respect to matters within the province of such body provided such regulations are not inconsistent with the relevant law. The following passages from the majority view in the judgment reported at (1975) 1 SCC 421 (Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi) afford authoritative guidance:
"The rules and regulations comprise those actions of the statutory or public bodies in which the legislative element predominates. These statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred on the statute to make rules and regulations establish the pattern of conduct to be followed. Rules are duly made relative to the subject-matter on which the statutory bodies act subordinate to the terms of the statute under which they are promulgated. Regulations are in aid of the enforcement of the provisions of the statute." (Paragraph 18) "The justification for delegated legislation is three-fold. First, there is pressure on parliamentary time. Second, the technicality of subject-matter necessitates prior consultation and expert advice on interests concerned. Third, the need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate. Delegated legislation fills those needs." (Paragraph 20) If the legislature has given unfettered recognition to degrees conferred by medical institutions covered by the Second Schedule to the Act, neither the Central Government nor the medical council set up by the Central Government may provide for any regulations that would derogate from the grant contained in Section 12 of the Act. This has to be so since it is open to the Central Government to correct the malaise that the medical council attempts to address here by requiring a screening test to be taken by this petitioner. Section 12 gives complete authority to the Central Government to amend the Second Schedule. Accordingly, if the medical council is of the opinion that a foreign institution referred to in the Second Schedule has failed to adhere to any standard that the medical council deems mandatory, the medical council may move the Central Government for the name of such foreign institution to be deleted from the Second Schedule or for other appropriate measures to be taken. The legislature has not fixed the entries in the Second Schedule; the legislature only has spelt out in Section 12 the consequence of obtaining a degree from a medical institution outside India which is included in the Second Schedule. It also appears from the Second Schedule that a number of entries therein have conditions specified in regard thereto in the schedule itself. Thus, if it is within the domain of the Central Government to control and qualify the entries in the Second or any of the Schedules, the medical council is barking up the wrong tree to address an issue of obvious concern.
The anxiety on the part of the medical council is laudable. It seeks to ensure that only properly qualified doctors are allowed to practise in India, and, in such sense, the medical council is seeking to act in the best interests of society. But the public interest involved has to be assessed from another perspective which may be of greater significance.
The Division Bench of the Delhi High Court felt that no prejudice would be suffered by the petitioners before it if they underwent the screening test, for such test would establish as to whether they were worthy of being permitted to practise. There cannot be any quarrel with such consideration. But the other aspect which was not noticed is equally a matter of public interest. The medical council's view, as has been submitted in course of the final hearing here, is that despite the petitioner not meeting the eligibility criteria set for admission to medical institutions in India, she should undergo a screening test and, if successful, she would be entitled to registration. This would amount to a condition being introduced into Section 12 which the legislature did not contemplate. Whatever may be the pious intention of the medical council, it would be opposed to public policy and against public interest to confer a jurisdiction on a body constituted by statute to override the provisions of the statute that created it.
The expression "subject to the conditions and restrictions laid down in this Act" appearing in Section 27 of the Act would be redundant in the case of a candidate who has obtained a degree from a medical institution outside India included in the Second Schedule since Section 12(1) says that the medical qualifications granted by medical institutions outside India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of the Act.
As much as the medical council's effort to maintain high standards must be appreciated, the greater public importance of ensuring discipline in the functioning of a statutory body cannot be lost sight of.
WP No. 3141 (W) of 2009 succeeds. A writ of mandamus do issue commanding the Medical Council of India to consider the petitioner's application for registration without imposing any condition under the 1997 or the 2002 Regulations. The medical council's decision should be rendered on the matter within a period of six weeks from date.
In the facts of the case, there will be no order as to costs. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.)