Kerala High Court
Dr.Sanoj Shahul vs Travancore Cochin Council Of Modern ... on 18 December, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No. 1093/2020 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
WA.No.1093 OF 2020
JUDGMENT DATED 05.08.2020 IN WP(C) 32614/2019(B) OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN W.P.(C):
DR.SANOJ SHAHUL,
AGED 40 YEARS
S/O. SHAHUL HAMEED, 95, HOCKANUM, BLVD, UNIT 6811, VERNON,
CT 06066, UNITED STATES OF AMERICA, REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER, MR. ABDUL NAZAR N.I, S/O. IBRAHIM KUTTY
M.K, TC 27/1998 (1), CRRA 85A, CHERAKKULAM ROAD, STATUE,
THIRUVANANTHAPURAM- 695 001.
BY ADVS.
SRI.P.CHANDRASEKHAR
SRI.K.K.MOHAMED RAVUF
SMT.S.JASMINE
SMT.K.VIDYA
SHRI.SATHEESH V.T.
RESPONDENTS/RESPONDENTS IN W.P.(C):
1 TRAVANCORE COCHIN COUNCIL OF MODERN MEDICINE,
REPRESENTED BY ITS REGISTRAR, COMBINED COUNCIL BUILDING, RED
CROSS ROAD, THIRUVANANTHAPURAM, KERALA, 695 035.
2 THE REGISTRAR,
TRAVANCORE COCHIN COUNCIL OF MODERN MEDICINE, COMBINED
COUNCIL BUILDING, RED CROSS ROAD,
THIRUVANANTHAPURAM, KERALA, 695 035
3 THE MEDICAL COUNCIL OF INDIA,
REPRESENTED BY ITS SECRETARY, POCKET 14, SECTOR 8, DWARAKA
PHASE 1, NEW DELHI- 110 075.
W.A.No. 1093/2020 : 2:
4 THE NATIONAL MEDICAL COMMISSION, FORMERLY MEDICAL COUNCIL
OF INDIA, REPRESENTED BY ITS SECRETARY, POCKET 14, SECTOR 8,
DWARKA PHASE I, NEW DELHI-110075.
(ADDL. 4TH RESPONDENT IS ADDED AS PER ORDER DATED 20/10/2020
IN IA 1/2020 IN WA 1093/2020).
R1 and R2 BY SRI.N.RAGHURAJ, SC
R3 BY SRI.TITUS MANI VETTOM, SC
SRI.N.RAGHURAJ, SC FOR R1 AND R2,
SRI.TITUS MANI VETTOM, SC FOR R3,
SRI.M.A.ASIF, SPL. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 1093/2020 : 3:
Dated this the 18th day of December, 2020.
JUDGMENT
SHAJI P. CHALY, J.
The appellant, who is the writ petitioner in W.P.(C) No.32614 of 2019, challenges the judgment of the learned single Judge dated 05.08.2020 dismissing the writ petition holding that the Apex Court have made it clear that the guidelines are approved as a one time measure in the matter of granting registration to the students secured medical degree from abroad in the Indian Medical Register and that the future cases will be governed by the Screening Test Regulations, 2002 ('Regulations, 2002' for short) and the amended Regulation 4(3), constituted under the Indian Medical Council Act, 1956 ('Act, 1956' for short), and therefore, the appellant being not entitled to the benefit of the judgment in Medical Council of India v. Indian Doctors from Russia Welfare Associations [(2002) 3 SCC 696], it would disqualify him from appearing for the screening test so as to secure any registration in the Indian Medical Register. It is, thus, challenging the legality and correctness of the said judgment, the appeal is preferred.
2. Brief material facts for the disposal of the appeal are as follows:
The appellant is a US citizen having Overseas citizenship of India and according to the appellant, he is, therefore, entitled to all the benefits under W.A.No. 1093/2020 : 4: law as if he is an Indian Citizen as per Section 7A of Citizenship Act, 1955 and the notification dated 05.01.2001 issued by the Government of India granting rights to Overseas citizens of India, including the right to pursue profession of a doctor.
3. The appellant, after completing his Secondary School Education in CBSE stream in Science subjects, passed the Secondary School Leaving Examination conducted by CBSE. Thereafter, he joined the MBBS course in Ovidius University, Constanta, Romania. While pursuing his studies there, he secured a transfer to Gulf Medical College, Ajman in 1999. After passing the MBBS course, he did his one year internship in Mafraq Hospital, Abu Dhabi. Thereafter, the appellant applied for temporary registration before the Medical Council of India, the then authority for granting registration and presently the National Medical Commission for doing MS post graduate degree in Orthopaedics in JSS University, Mysore. The appellant completed a 3 year MS course in JSS University, Mysore and was awarded MS degree in Orthopaedics on 18.10.2014. Thereafter, the appellant applied for permanent registration to practice modern medicine before the Travancore Cochin Council of Modern Medicine, the first respondent.
4. The case of the appellant is that the first respondent informed the appellant that he can be granted permanent registration only if he submitted a screening test pass certificate issued by the National Board of Examination W.A.No. 1093/2020 : 5: and eligibility certificate of the Medical Council of India. The appellant, accordingly, applied for the screening test and passed the same. Thereafter, the appellant applied for registration with the Travancore Cochin Medical Council of Modern Medicine to practice modern medicine, in the prescribed form along with the screening pass certificate. Since the application was not considered, the appellant has filed W.P.(C) No. 22553 of 2019 before this Court and secured a judgment. This Court, in view of the statement filed by the Travancore Cochin Council of Modern Medicine that the appellant's application for permanent registration will be considered after ascertaining the genuineness of the certificate of temporary registration granted by the Medical Council of India and the veracity of the certificate of MS Orthopaedics granted to him by the JSS University, Mysore, directed to get necessary clarification from MCI and JSS University and to consider the application of the appellant for permanent registration within a period of three weeks from the date of receipt of a copy of the judgment. The Travancore Cochin Council of Modern Medicine, accordingly, considered the application and rejected it as per Ext. P10. It is, thus, challenging Ext. P10, the writ petition was filed.
5. The paramount contention advanced by the appellant in the writ petition was that in similar cases where the students have got admission to MBBS course abroad prior to 15.03.2002 and who passed the screening test conducted by the National Board of Examinations and underwent internship W.A.No. 1093/2020 : 6: for acquired Postgraduate Medical Degree in India from a recognized University, the Travancore Cochin Council of Modern Medicine as well as the Medical Council of India have granted permanent registration to practice modern medicine. Challenge was made to Ext. P10 primarily on the ground that the Apex Court in Indian Doctors from Russia Welfare Associations (supra) upheld the right to registration of similarly placed doctors. Reliance is also placed on Ext.P11 judgment passed by this Court in W.P.(C) No. 8500 of 2008 dated 29.06.2010.
6. The learned single Judge, after taking into account the rival submissions made across the Bar and perusing the provisions of Act, 1956 as well as the Screening Test Regulations, found that as per the decision of the Apex Court in Sanjeev Gupta and others v. Union of India and another [(2005) 1 SCC 45], 15.03.2002 was notified as the cut of date by the Central Government in terms of Section 13 of Act, 1956 and having understood the law in that manner, sub-Section 3 of Section 13 of Act, 1956 can be seen to be made applicable to persons who had secured their qualification prior to 15.03.2002 and whose qualification is included in part II of the third Schedule. It was also held that going by the first proviso to sub- Section 4 of Section 13, qualifications granted by the Medical Institutions outside India could be included in Part II of the third Schedule only upto 15.03.2002. That apart, sub-Section 4A of Section 13 provides for registration of persons acquiring foreign medical degree after 15.03.2002 W.A.No. 1093/2020 : 7: and other persons will not be entitled for enrolment in any Medical Register maintained by a State Medical Council or to have their names entered in the Indian Medical Register, unless they qualified the screening test prescribed for the purpose.
7. So also, it was held that Section 13 (4B) stipulates that persons securing admission in any foreign Medical Institution after 15.03.2002 should obtain an eligibility certificate issued by the MCI, failing which such person shall not be eligible to appear for the screening test referred to in sub-Section 4A of Section 13. Proviso to Section 13(4B) exempts a person who had secured admission in foreign Medical Institution prior to the commencement of the Amendment Act from the necessity of obtaining the eligibility certificate, if such a person is qualified for admission in any Medical Institution in India.
8. The judgment of the Apex Court in Indian Doctors from Russia Welfare Association (supra) was considered by the learned single Judge in-depth and held that the appellant is not entitled to get any benefit of the said judgment due to the specific conditions contained in the judgment in respect of the cut off date prescribed for professional registration after completion of their degree abroad, prior to 15.03.2001.
9. The paramount contentions advanced by the appellant in the appeal is that the learned single Judge failed to note that the Apex Court had W.A.No. 1093/2020 : 8: rendered the judgment in Indian Doctors from Russia Welfare Association taking note of the amendment to Act, 1956 incorporating sub- Sections 4A to 4C of Section 13 and that the learned single Judge failed to note that the second Schedule to Act, 1956 was put on hold by the amended provisions, and the medical qualifications obtained from the foreign institutions are recognized, if the said qualifications are recognized in the country where the said Institutions are located.
10. It is also contended that as per the amended provisions, in order to make a foreign qualification in Medicine and surgery a recognized qualification for making a candidate who has taken admission in the said institution prior to 15.03.2001, it is not necessary that the said qualification should be a scheduled qualification or from a scheduled institution. Therefore, according to the appellant, the learned single Judge failed to note that there is no indication in the judgment of the Apex Court in Indian Doctors from Russia Welfare Association (supra) that the benefit of one time measure provided in the said judgment shall be applicable only to candidates who have taken admission in foreign Medical Institution included in the second schedule of the Act.
11. That apart, it is submitted that regulation 4(3) of the Regulations, 2002 has been struck down by the Delhi High Court in W.P.(C) No. 1655 of 2013 as per judgment dated 17.09.2013, which has been confirmed by the W.A.No. 1093/2020 : 9: Apex Court in Civil Appeal No. 11321 of 2013. It is also contended that persons who have obtained medical qualifications from institutions included in the World Directory of Medical schools are persons with recognized qualifications for enrolment as Medical Practitioners. However, the learned single Judge failed to note that Regulation 4 of Regulations, 2002 enables the appellant to enrol as a Medical Practitioner.
12. The sum and substance of the contentions, accordingly, advanced is that similarly situated persons as that of the appellant were enrolled as Medical Practitioners and they are registered in the Indian Medical Register and therefore, interference to the judgment of the learned single Judge is required.
13. Learned counsel for the Travancore Cochin Council of Modern Medicine and Medical Council of India have addressed their arguments supporting the judgment rendered by the learned single Judge with specific reference to the relevant provisions of Act, 1956, Regulations, 2002 as amended and the judgments of the Apex Court indicated above.
14. We have heard the learned counsel for the appellant, Sri. P. Chandrasekhar, Sri. N. Raghuraj for the Travancore Cochin Council of Modern Medicine and Sri. Titus Mani Vettom for the National Medical Commission.
15. The paramount contention advanced by the learned counsel for the appellant is that reasons for the rejection of application as per the W.A.No. 1093/2020 : 10: directions contained in Ext. P9 judgment in W.P.(C) No. 22553 of 2019 dated 18.10.2019 cannot be legally sustained. In fact, the order impugned was passed by the Travancore Cochin Council of Modern Medicine rejecting the application stating that (1) appellant was only 16 years, one month and 14 days of age at the time of joining in Ovidius University, Constanta and it is against the minimum age norms of the Medical Council of India Regulations on Graduate Medical Education Regulation, 1997 ('Regulations, 1997' for short); (2) the appellant completed his medical degree only after 2005 and therefore, he would not come under the one time relaxation on the basis of the judgment of the Apex Court in Indian Doctors from Russia Welfare Association(supra); (3) the graduation of the appellant is not beyond doubt, since he acquired the same from more than one University abroad without having a valid proof of such age; (4) the internship undergone by the appellant was not as per the norms of the Medical Council of India; and (5) the degree secured by the appellant from a University which is not included in the Schedule of the Act, 1956 cannot be accepted.
16. The contention advanced by the appellant is that in the judgment in Indian Doctors from Russia Welfare Association (supra), the Apex Court has categorically held that persons who applied for registration prior to 15.03.2001 shall be entitled to registration in accordance with the provisions of the Act, 1956, which as it stood prior to the amendment of the Act, 2001. Thus, according to the learned counsel for the appellant, those students who W.A.No. 1093/2020 : 11: obtained degrees by the total duration of study in recognized institutions is less than 6 years, shall be granted registration by the Medical Council of India, provided that the period of short term is covered by them by way of additional internship over and above the regular internship of one year.
17. It was also contended that those students who do not meet the minimum admission norms of Medical Council of India for joining undergraduate medical courses, were admitted to foreign institutes recognized by MCI and the Apex Court in the said judgment directed the Medical Council of India to condone such an irregularity. It was further contended that as per the said judgment, those students who have taken admission abroad prior to 15.03.2002 and are required to be qualified the screening test for their registration as per the provisions of the the Regulations, 2002 shall be allowed to appear in the screening test, even if they also come under the category of the institutes recognized by Medical Council of India, as the relaxation contained therein would also be applicable in their case.
18. In sum and substance, the submission made by the learned counsel for the appellant was that any person undergoing medical education as on the date of the judgment of the Apex Court in Indian Doctors from Russia Welfare Association (supra) dated 08.03.2002 and who do not conform to the minimum eligibility requirements for joining an W.A.No. 1093/2020 : 12: undergraduate medical course in India as laid down by the Medical Council of India, seeking provisional or permanent registration on or after 15.03.2002 shall be permitted to appear in the screening test in relaxation of the requirement, provided he had taken admission in an institute recognized by the Medical Council of India. It is also the case of the appellant that prior to the Amendment Act, 2001, there was no provision for recognition of any foreign institution or MBBS degree of any foreign institution by the Medical Council of India. That apart, it is stated that the only provision was that the foreign institution or the foreign MBBS equivalent qualification should find a place in the Schedule to Act, 1956. Therefore, it was submitted that the recognition by the Medical Council of India was first introduced in the guidelines framed by the Medical Council of India, which was approved by the Government of India based on the decision of the Apex Court in Indian Doctors from Russia Welfare Association (supra) .
19. It is also the contention of the learned counsel that the Apex Court in the said case did not stipulate that the foreign degree should be a degree scheduled to the Act, 1956. But, on the other hand, the Apex Court has only stated that the institution from which the medical degree was obtained should be one recognised by the Medical Council of India. Therefore, it was submitted that the Medical Council of India has recognised the medical degrees of Gulf Medical University and it was published on the website of Medical Council of India. It was also submitted that the name of Ovidius W.A.No. 1093/2020 : 13: University of Constanta was published in the website of MCI and therefore, there is no disqualification for the appellant to get himself registered. Therefore, relying upon Section 13 (4A) of the Act, 1956 as amended from 03.09.2001, it was submitted that a person who obtains qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date i.e., 15.03.2002 shall be entitled to be enrolled on any medical register maintained by the State Medical Council or to have his name entered in Indian Medical Register, if he qualifies the screening test in India. The point raised by the appellant was that the medical qualification from the Gulf Medical College is recognised as on 15.03.2002 by virtue of Section 13 (4A) of Medical Council of India Act as amended, since the said qualification is recognised by the country i.e., UAE where the said institution is located.
19. That apart it was contended that 17 persons who passed MBBS from Gulf Medical College along with the appellant had been granted permanent registration by the Medical Council of India. So also, it was contended that 9 similarly situated students who passed MBBS from Gulf Medical College along with the appellant have been granted registration by the Travancore Cochin Council of Modern Medicine and five others have been granted permanent registration by other State Medical Councils. The thrust of the contention advanced in that regard was that even though such a specific averment was made in the writ petition, it is not denied by the W.A.No. 1093/2020 : 14: respondents. Other contentions are also raised to secure the reliefs sought for.
20. On the other hand, the Travancore Cochin Council of Modern Medicine primarily contended that the appellant was born on 17.11.1980 and therefore, he was only 16 years, one month and 14 days of age at the time of joining for the medical education in Ovidius University, Constanta, Romania, which is clearly against Regulation 4 of the Regulations, 1997. It is further submitted that the said Regulation is the qualification of the minimum eligibility norms prescribed by the Medical Council of India for joining medical courses. It is also the case of the first respondent that the appellant did not possess the minimum educational qualification of plus two or equivalent at the time of joining the Ovidius University in 1996, which is against the provisions of Regulation 4 of Regulations, 1997. That apart, it is submitted that as evident from Ext. P3, temporary registration certificate issued by the Medical Council of India dated 21.04.2011, the medical degree secured by the appellant is a non-scheduled medical qualification for the duration of the postgraduate studies in India, which would clearly establish that the medical degree obtained by the appellant was not a degree recognised by Medical Council of India.
20. It was also predominantly contended that the reliance placed by the appellant in the judgment of the Apex Court in Indian Doctors from W.A.No. 1093/2020 : 15: Russia Welfare Association (supra) is misconceived, since the aforementioned judgment considered the case of medical graduates from erstwhile USSR. It was also contended that the relaxation provided by the Apex Court in the said judgment shall be available only to those students who had taken admission abroad prior to 15.03.2002, and from 15.03.2002 onwards, all the students are required to first obtain an eligibility certificate from Medical Council of India before proceeding abroad for studies in medicine. Therefore, according to the State Medical Council, the findings rendered by the learned single Judge taking note of the aforesaid aspects have no legal infirmity justifiable to be interfered in the appeal.
21. Learned counsel for the National Medical Commission (formerly Medical Council of India), the 4 th respondent, submitted that drastic changes were made to Section 13 of the Act from 03.09.2001, and before the amendment all the foreign Medical Institutions enlisted in the second part of Schedule III and Schedule II were recognised by the Medical Council of India. However, after the amendment, there is no question of recognised foreign Medical Institutions by the Medical Council of India and instead, recognition is 'person specific'. Therefore, according to the learned counsel, three conditions are to be filled by a person i.e., (1) Medical qualification granted by the Medical Institution shall be one recognised for enrolment as a medical practitioner in that country where the institution situates; (2) candidate shall qualify the screening test; and (3) the candidate should have W.A.No. 1093/2020 : 16: obtained an eligibility certificate issued by the Council.
22. Therefore, the sum and substance the contention advanced by the learned counsel for the National Medical Commission of India was that the appellant took umbrage under the Supreme Court decision, because if he chooses the pre amendment law, he is to establish that he is qualified for admission to any medical course for a recognised medical qualification in any Medical Institution in India as provided under Section 13(4B) of the Act, 1956; Likewise, if he chooses the post amendment law, he is bound to obtain an eligibility certificate for which he is not qualified. So also, it was submitted that the appellant is not entitled to get the benefit of the judgment of the Apex court in Indian Doctors from Russia Welfare Association (supra) which has categorised the medical graduates from Russia in three groups and the appellant falls in group C and the Apex Court has clearly laid down that those who are in group C shall not be entitled for any relaxation.
23. We have evaluated the rival submissions made across the bar. In order to understand the issues raised by the appellant, an evaluation of the relevant provisions of Act, 1956 is requisite.
24. Section 2(h) of the Act defines 'recognised medical qualifications' to mean any of the medical qualifications included in the schedules. There are three schedules in the Act: (1) the first Schedule is dealing with W.A.No. 1093/2020 : 17: recognised medical qualifications granted by Universities or Medical Institutions in India (2) the second Schedule pertains to recognised medical qualifications in countries with whom India is having reciprocal arrangements and (3) the third Schedule deals with recognised medical qualifications granted by medical institutions not included in the first schedule. Part I of the third Schedule contains recognised medical qualifications granted by Medical Institutions not included in the first Schedule and part II is in regard to the recognised medical qualifications granted by Medical Institutions not included in the second Schedule.
25. Section 13 deals with recognition of medical qualifications granted by certain Medical Institutions, whose qualifications are not included in the First or Second Schedule and sub-Sections (4A) and, (4B) and the provisos thereto are relevant to the context and they read thus:
"[(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 W.A.No. 1093/2020 : 18: 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."
26. On a reading of the aforesaid provisions, it is unequivocal that the issues raised by the appellant are clearly guided by appropriate statutory provisions. Therefore, the appellant is not entitled to seek any relief in violation of the provisions of Act, 1956. it is an admitted fact that the appellant is not qualified even to undergo a Medical Education abroad consequent to the stipulation contained under the Regulations, 1997, which was discussed above and the minimum requirement of the age in accordance with the Regulations, 1997 is 17 years on or before the 31 st day of December of the year of admission. Admittedly, the appellant has not attained the age of 17. The argument advanced by the appellant was that 2 years' of study in Ovidius University by the appellant was treated by the Gulf Medical College as equivalent to plus one and plus two studies, which is a mandatory requirement under Regulations, 1997 to have a minimum qualification. The W.A.No. 1093/2020 : 19: said argument of the appellant that out of the 7 years of study, two years of study is to be treated as equivalent to plus two, can never be sustained, because there is no provision under the Act, 1956 or the Regulations, 1997 guiding the field in that manner. When a specific eligibility criteria is provided under Regulation, 1997, that alone can be treated as the minimum qualification required as per the educational system prevailing in India, and not the one undergone abroad.
27. That apart, as per Regulations, 1997, change of University during the course of study without a valid reason is virtually deprecated as per Regulations, 1997. It is also evident that the compulsory residential internship was not done by the appellant in accordance with the norms of the Medical Council of India. Above all these things, a degree course of a foreign University, which is not scheduled as per the Schedules discussed above cannot be accepted for the purpose of registration in India. The appellant has a case that when Section 13(4A) read in juxtaposition with the Regulations, 2002, the requirement is only that the foreign Medical Institution is included in the World Directory of Medical Schools published by the World Health Organization (WHO). The appellant has also produced the World Directory and of course, the names of the Ovidius University and the Gulf Medical College, Ajman find a place therein. But, that alone would not suffice the situation in view of the provisions discussed above. W.A.No. 1093/2020 : 20:
28. So understood, even if the appellant has participated in the screening test conducted by the testing agency and has passed the same, it would not enable the appellant to secure the registration as per the provisions of Act, 1956 and the Rules and Regulations thereto. Be that as it may, the appellant has a case that he is entitled to get the benefits of the judgment of Apex Court in Indian Doctors from Russia Welfare Associations (supra). A reading of paras 4 to 7 would make the situation very clear and they read thus:
4. Now, Section 13 of the Indian Medical Council Act, 1956 (hereinafter referred to as "the Act") has been amended by Act 34 of 2001 which would cover situations as arising in the present cases. The Regulations for conduct of the screening test and for issue of Eligibility Certificate by MCI to the students proceeding abroad for studies in Medicine have been approved by the Government of India and sent to MCI. MCI has sent the same on 18-2-2002 to the Government of India Press for publication in the Gazette and those Regulations, in brief, provide as follows:
(i) An Indian citizen possessing a primary medical qualification awarded by any of the medical institutions outside India and desirous of getting provisional or permanent registration with the Medical Council of India or any State Medical Council on or after 15-3-2002 shall have to qualify a screening test conducted by the prescribed authority for the purpose of their registration in India. A person seeking permanent registration shall not have to qualify the screening test if he or she had already qualified the same before getting his or her provisional registration.
(ii) The primary medical qualification possessed by the Indian citizen should be a recognised medical qualification for enrolment as a medical practitioner in the country in which the institution awarding the said qualification is situated.W.A.No. 1093/2020 : 21:
(iii) Any Indian citizen who is desirous of taking admission in an undergraduate medical course abroad on or after 15-3-2002 shall have to obtain an Eligibility Certificate from MCI stating that he or she fulfils the minimum eligibility criteria laid down by MCI for admission in MBBS course in India. He shall also have to produce the same at the time of appearing in the screening test, after completion of his degree abroad, for the purpose of obtaining registration in India.
5. Under the provisions of the Act a person has to successfully complete compulsory internship of one year after getting provisional registration and all persons who applied for provisional registration and have to do the internship on or after 15-3-2001 will be required to qualify the screening test as per the provisions of the Screening Test Regulations, 2002, as they would become eligible for permanent registration on or after 15-3- 2002, that is, after successful completion of one year internship. However, the Government noticed that there are a number of persons who have applied to MCI for grant of provisional registration after completion of their degree abroad prior to 15-3-2001 and have not been granted provisional registration by MCI for various reasons, such persons fall into the following categories:
(a) those who did not undergo the complete duration of six years of the medicine course from institutes recognised by MCI;
(b) 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, particularly in the erstwhile States of USSR; and
(c) those who came back with medical degrees which are not recognised by MCI.
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:W.A.No. 1093/2020 : 22:
(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 a medical practitioner in W.A.No. 1093/2020 : 23: 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.
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."
29. The claim of the appellant is that he would come under the paragraph 6(B) of the said judgment. But, in our view, as evident from Ext. P3, temporary registration certificate issued by the Medical Council of India for the purpose of securing admission for postgraduate course, dated 21.04.2011, it would be clear that the degree obtained by the appellant is a non scheduled medical qualification as per the Schedules of Act, 1956 and which is a mandatory requirement in terms of Sections 11 dealing with 'recognition of medical qualifications granted by Universities or Medical Institutions in India', Section 12 dealing with 'recognition of medical qualifications granted by Medical Institutions in countries with which there is a scheme of reciprocity' and Section 13 dealing with 'recognition of medical W.A.No. 1093/2020 : 24: qualifications granted by certain Medical Institutions whose qualifications are not included in the First or Second Schedule'. Neither the Ovidius University nor the Gulf Medical College were recognized by the Medical Council of India at the time of the appellant's admission to those institutions which is a mandatory requirement as per the aforesaid provisions. Therefore, merely because those institutions were included in the World Directory of Medical School would not confer any such recognition to the degree secured by the appellant with retrospective operation. More over, the Apex Court had made it abundantly clear that the benefit as per the judgment was a only a one time measure for the similarly situated persons and in accordance with the scheme framed thereunder. Going by the facts, it can never be said that the appellant is a similarly situated person entitled to get any benefit of the said judgment of the Apex Court .
30. In such circumstances, the contention that the benefit of paragraph 6(B) of the judgment of the Apex Court as above would be extended to the appellant cannot be sustained. The learned single Judge had elaborately considered the said issue and has held that the appellant would fall under paragraph 6(C) of the judgment. We are in respectful agreement with the said finding of the learned single Judge. In fact, the appellant has produced before this Court certain additional documents to show that some persons who have secured medical degree from the Universities outside India after the cut off period and also from the institutions from where the W.A.No. 1093/2020 : 25: appellant has secured MBBS degree were granted registration. We are of the considered opinion that when the National Medical Commission and the State Medical Council are functioning in accordance with the mandatory requirements of law, it can only be legally presumed that such registrations were given in accordance with law. To put it otherwise, the appellant has failed to establish before this Court that such persons are similarly situated as that of the appellant, and moreover going by the facts of the case, if they are similarly situated, such negative equality cannot be pressed into service to secure any benefits out of the same, which is a well settled legal position.
31. Thinking so, the said aspect also would not help the appellant to secure any orders. We are also of the view that the learned single Judge has considered the entire aspects put forth by the appellant applying the provisions of law and the applicability of the judgment of the Apex Court in Indian Doctors from Russia Welfare Associations (supra). That apart, the issues raised by the appellant was considered in terms of the judgment of the Apex Court in Sanjeev Gupta and others (supra) and held that 15.03.2002 was declared to be the date notified by the Central Government in terms of Section 13 of Act, 1956 and when understood in that manner, sub-Section 3 of Section 13 can be seen to be applicable to persons who had acquired their qualification prior to 15.03.2002 and whose qualification is included in part II of the third Schedule.
W.A.No. 1093/2020 : 26:
32. That apart, on an analysis of the Section 13(4) of Act, 1956, qualifications granted by the Medical Institutions outside India could be included in Part II of the third Schedule only upto 15.03.2002. To put it short, the discussion made above would make it clear that the appellant was not entitled to get the registration as is sought for in the writ petition. In that view of the matter, we are of the considered opinion that the appellant has not made out any case justifying interference in the judgment of the learned single Judge, there being no jurisdictional error or legal infirmity.
Needless to say, Writ Appeal fails and accordingly, it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv