Delhi High Court - Orders
Likhitha Yanmandala vs National Medical Commission & Anr on 20 July, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~9, 10, 11 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 87/2022 & CM APPLs. 161/2022, 19267/2022
LIKHITHA YANMANDALA ..... Petitioner
Through: Mr. Viraj Kadam, Advocate.
versus
NATIONAL MEDICAL COMMISSION & ANR ...... Respondents
Through: Mr. T. Singdev, Ms. Bhanu Gulati,
Mr. Abhijit Chakravarty, Ms.
Michelle Biathansangi Das and Ms.
Sumangla Swami, Advs. for R-
1/NMC.
Ms. Monika Arora, CGSC with Mr.
Yogesh Panwar, Advocate for UOI.
+ W.P.(C) 4247/2022 & CM APPL. 12644/2022
PARENTS ASSOCIATION OF KERALA MEDICAL STUDENTS
IN EMILIO AGUINALDO COLLEGE, MANILA, PHILIPPINES
(PAKMS-EAC-MP) THROUGH ITS VICE-PRESIDENT, SHIJU K.
..... Petitioner
Through: Mr. Viraj Kadam, Advocate.
versus
NATIONAL MEDICAL COMMISSION AND ANR .... Respondents
Through: Mr. T. Singdev, Ms. Bhanu Gulati,
Mr. Abhijit Chakravarty, Ms.
Michelle Biathansangi Das and Ms.
Sumangla Swami, Advs. for R-
1/NMC.
Mr. Vineet Dhanda, CGSC with Mr.
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 87/2022 etc. Page 1 of 12
Signing Date:22.07.2022
10:47:10
Sarvan Kumar, Advocate for UOI.
Mr. Sanam Siddiqui, GP, UOI.
+ W.P.(C) 4253/2022 & CM APPL. 12656/2022
BOGGAVARAPU HARSHAVARDHAN ..... Petitioner
Through: Mr. Viraj Kadam, Advocate.
versus
NATIONAL MEDICAL COMMISSION AND ANR .... Respondents
Through: Mr. T. Singdev, Ms. Bhanu Gulati,
Mr. Abhijit Chakravarty, Ms.
Michelle Biathansangi Das and Ms.
Sumangla Swami, Advs. for R-
1/NMC.
Ms. Monika Arora, CGSC with Mr.
Yogesh Panwar, Advocate for UOI.
+ W.P.(C) 6107/2022
HARSH VIPULBHAI DOMADIYA AND ORS ...... Petitioners
Through: Mr. Amit Kumar, Sr. Advocate with
Mr. Avijit Mani Tripathi and Mr.
Shikhar Ranjan, Advocates.
versus
UNION OF INDIA AND ORS ...... Respondents
Through: Mr. Harish Vaidhayanathan Shankar,
CGSC with Mr. Srish Kumar Mishra,
Mr. Sagar Mehlawat and Mr.
Alexander Mathai Paikaday,
Advocates for UOI.
Mr. T. Singdev, Ms. Bhanu Gulati,
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 87/2022 etc. Page 2 of 12
Signing Date:22.07.2022
10:47:10
Mr. Abhijit Chakravarty, Ms.
Michelle Biathansangi Das and Ms.
Sumangla Swami, Advs. for R-
2/NMC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 20.07.2022
1. The instant writ petitions have been filed challenging the constitutional validity of National Medical Commission (Foreign Medical Graduate Licentiate) Regulations, 2021, which came into force with effect from 18th November, 2021 vide Gazette Notification, UGMEB/NMC/Rules & Regulations/2021.
2. The Petitioners in the instant petitions are undergoing graduation course, i.e. Bachelor of Science (B.S.) in the Philippines. It is stated that B.S. course is a requirement in the Philippines to secure admission in the Doctor of Medicine (M.D.) course which is equivalent to the MBBS course in India. The B.S. course in the Philippines is like a Senior Secondary School Certificate Examination (10+2), which is a qualifying examination that enables candidates to appear for NEET UG Examination in India. The BS course is certainly not an integral part of the MD course which is a graduation level course in the Philippines.
3. The matter that has been brought before this Court by way of the instant petitions is whether the impugned Regulations, which mandates for a foreign medical course to be of the duration of 54 months, should be retrospectively applicable to these students who are pursuing medicine in the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 3 of 12 Signing Date:22.07.2022 10:47:10 Philippines on account of the fact that the MD course lasts for a duration of 48 months. Therefore, the short question that arises before this Court is whether the B.S. + M.D. course in the Philippines is pari materia to the MBBS course in India and the students after completion of their course can register themselves in India for the purpose of practicing Medicine.
4. A similar challenge before the Madras High Court was made against the said Regulations, and writ petitions were dismissed by the Madras High Court. Thereafter, an SLP bearing SLP (C) Nos.5989-5990/2022 was preferred before the Hon'ble Supreme Court. The Hon'ble Supreme Court in Aravinth R.A. vs. The Secretary to the Government of India Ministry of Health and Family Welfare & Others passed in Civil Appeal No(s).3585- 3586/2022 (SLP (C) Nos.5989-5990/2022), has held as under:
"41. The NMC Act provided for the constitution of a National Medical Commission and the constitution of four autonomous boards, each with a different mandate. The Act provided for the recognition of medical qualifications granted by universities and institutions in India under Section 35 and recognition of medical qualifications granted by medical institutions outside India, under Section 36. Section 36 of the Act reads as follows:-
36. Recognition of medical qualifications granted by medical institutions outside India.-
(1) Where an authority in any country outside India, which by the law of that country is entrusted with the recognition of medical qualifications in that country, makes an application to the Commission for granting recognition to such medical qualification in India, the Commission may, subject to such verification as it may deem necessary, either grant or refuse to grant recognition to that medical qualification:Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 4 of 12 Signing Date:22.07.2022 10:47:10
Provided that the Commission shall give a reasonable opportunity of being heard to such authority before refusing to grant such recognition.
(2) A medical qualification which is granted recognition by the Commission under sub-section (1) shall be a recognised medical qualification for the purposes of this Act, and such qualification shall be listed and maintained by the Commission in such manner as may be specified by the regulations.
(3) Where the Commission refuses to grant recognition to the medical qualification under subsection (1), the authority concerned may prefer an appeal to the Central Government against such decision within thirty days of communication thereof.
(4) All medical qualifications which have been recognised before the date of commencement of this Act and are included in the Second Schedule and Part II of the Third Schedule to the Indian Medical Council Act, 1956 (102 of 1956), shall also be recognized medical qualifications for the purposes of this Act, and shall be listed and maintained by the Commission in such manner as may be specified by the regulations.
42. Similarly, the Act also provided for withdrawal of recognition granted to a medical qualification, granted by medical institutions in India under Section 38 and the de- recognition of medical qualifications granted by medical institutions outside India. There was also a special provision in Section 40 for the grant of recognition to any medical qualification granted by a medical institution in a country outside India, provided that medical practice by a person possessing such qualification would Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 5 of 12 Signing Date:22.07.2022 10:47:10 depend upon his qualifying in the National Exit Test.
43 While Section 56 of the Act confers powers upon the Central Government to make rules, Section 57 confers power upon the National Medical Commission to make regulations. In order to ensure that the power of the Commission to frame regulations is very wide, sub-section (2) of Section 57 lists out about 46 matters, in respect of which NMC may make regulations.
44. It is in exercise of the power conferred by Section 57 read with sub-section (4) of Section 15 that the Licentiate Regulations 2021 were issued. Section 15 provided for the conduct of the National Exit Test. Sub-section (4) of Section 15 mandated that any person with a foreign medical qualification shall have to qualify National Exit Test for the purpose of obtaining licence to practice Medicine. Section 15(4) reads as follows:-
"15. National Exit Test.- xxx xxxxxx (4) Any person with a foreign medical qualification shall have to qualify National Exit Test for the purpose of obtaining licence to practice medicine as medical practitioner and for enrolment in the State Register or the National Register, as the case may be, in such manner as may be specified by regulations.
xxx xxx xxx"
45. Clause (k) of sub-section (2) of Section 57 indicates that the Regulations framed by NMC may deal with "the manner in which a person with foreign medical qualification shall qualify National Exit Test under sub-section (4) of Section 15".
46. At this stage we may take a small detour to point out that the Kerala State Medical Council, without waiting for the Central Government to clean up the MCI, took the lead and Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 6 of 12 Signing Date:22.07.2022 10:47:10 passed a Resolution dated 20.10.2017, making it compulsory for all foreign medical graduates to complete one year internship in any institution within India approved by MCI, for the grant of permanent registration in the State of Kerala under the Travancore-Cochin Medical Practitioners Act, 1953. On the basis of the said Resolution, the application for permanent registration of some foreign medical graduates were rejected and the rejection became the subject matter of challenge in Dr. Amala Girijan and Ors. vs. The Registrar, Travancore-Cochin Medical Council and Ors6. The challenge was on the ground that the Resolution of the State Medical Council was in violation of Section 37 of the State Act. However, the challenge was rejected by a learned Judge of the Kerala High Court.
47. But subsequently, the same Resolution came to be challenged by another foreign medical graduate in Sadhiya Siyad vs. State of Kerala and Ors7. Another learned Judge of the Kerala High Court before whom the writ petitions came up, framed the following four questions as arising for consideration:-
"(i) Whether a person who has not undergone internship as part of the medical course undertaken by him/her abroad is eligible to appear in the Screening Test provided for under Section 13(4A) of the IMC Act?
(ii) Whether a person who obtains Eligibility Certificate in terms of Section 13(4B) of the IMC Act after taking admission in a medical institution abroad, be denied enrolment on a State Medical Register, if he/she satisfies all other eligibility criteria for the same?
(iii) Whether a person who obtains a medical qualification from a medical institution abroad and undertakes one year internship thereafter in the country of education and satisfies all other eligibility Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 7 of 12 Signing Date:22.07.2022 10:47:10 criteria for enrolment on a State Medical Register be insisted to undergo CRRI for the said purpose?
(iv) Whether the State Medical Council functioning under the TCMP Act is empowered to take decisions in the nature of Ext. P21?"
48. The Kerala High Court held, (i) that the stand of the State Medical Council that only students who have completed internship as part of the medical course undertaken by them in the medical institutions abroad, are entitled to appear for the Screening Test, is unsustainable; (ii) that if a candidate satisfied all the requirements for enrolling as a medical practitioner on a State Medical Register in accordance with the provisions of the 1956 Act and the Regulations made there under, he cannot be denied registration by a State Medical Council; (iii) that if a candidate satisfied all the requirements for enrolling as a medical practitioner on a State Medical Register in accordance with the provisions of the 1956 Act and the regulations made there under, the State Medical Council cannot deny enrolment on the ground that the candidate had obtained Eligibility Certificate after taking admission to the medical institution abroad and was consequently not eligible to appear for Screening Test; (iv) the requirement stipulated by the Kerala State Medical Council that such foreign medical graduates should undergo CRRI for claiming permanent registration, is inconsistent with the requirements of the 1956 Act and the Regulations; and (v) that since the 1956 Act is relatable to Entry 66 of List-I of the Seventh Schedule of the Constitution, it would prevail over the Kerala enactment relatable to Entry 25/26 of List-III.
49. Though the High Court of Kerala allowed the writ petition filed by Sadhiya Siyad, it was made clear in the said Judgment that the same would not preclude the State Medical Council from bringing to the notice of the NMC, the requirement if any, for the foreign medical graduates to undergo internship afresh to get acclimatized with the diseases Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 8 of 12 Signing Date:22.07.2022 10:47:10 and requirements of treatment peculiar to the State in order to bring in force, the appropriate statutory amendments.
50. Thus, a stage was set for the NMC to issue appropriate regulations in exercise of the power conferred by Section 57 of the Act. Accordingly, the Licentiate Regulations were issued in exercise of the power conferred by Section 15(4) read with Section 57 and the CRMI Regulations were issued in exercise of the power conferred by Section 24(1) read with Section 57 of the Act. Keeping these developments in mind, let us now test the validity of the grounds of challenge to these Regulations.
51. As we have seen earlier, the appellant challenged the validity of Regulation 4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of the Licentiate Regulations on several grounds, one of which is the lack of power under the Act. But the provisions extracted above would show that NMC had the power to frame the above Regulations.
52. Prescription of minimum standards would certainly include the prescription of the minimum duration for a course. It may be open to the medical institutions of other countries to prescribe a duration of less than 54 months for the students of their country. But it is not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration, if the incumbent wants to have permanent registration in India.
53. The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. The purpose of internship is to test the ability of the students to apply their academic knowledge on their subjects, namely the patients. Medical institutions of other countries may not insist on rigorous internship for students who may not put to test their skills on the population of their country. But it is not necessary for us to follow suit.
Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 9 of 12 Signing Date:22.07.2022 10:47:1054. Similarly, the requirement under Regulation 4(b) has been necessitated to ensure that the students who were imparted medical education in a foreign country demonstrate their skills first on the population of the country where they studied. The necessity for a Master Chef to taste the food prepared by him, before it is served on the guests, cannot be said to be arbitrary. Therefore, the challenge to the Licentiate Regulations, are wholly without basis.
55. The contention that Section 36(4) recognises M.B.B.S. courses of a duration of less than 54 months and that therefore the Licentiate Regulations being a subordinate legislation is ultra vires, is wholly unsustainable. All that sub-section (4) of Section 36 saves, are the qualifications already recognised before the date of commencement of the Act and included in the Second Schedule and Part-II of the Third Schedule to the 1956 Act. The fact that past sins are sought to be washed away, is no ground to hold that there cannot be a course correction. As a matter of fact, Section 60 which deals with repeal and saving, also saves under clause (b) of subsection (2), any right, privilege or obligation already acquired. This cannot be stated to be in conflict with what is prescribed for the students of the future. In any case, Section 36 deals only with recognition of the foreign medical courses and not registration as medical practitioner. Registration is covered by Section 33. Therefore, Section 36(4) cannot help the appellant.
56. The contention that the country needs more doctors and that by restricting the registration of foreign medical graduates, the fundamental right of the professionals under Article 19(l)(g) and the fundamental right of the citizens under Article 21 are impaired, is to be stated only to be rejected. It is true that the country needs more doctors, but it needs really qualified doctors and not persons trained by institutions abroad, to test their skills only in their mother land.
57. The argument that these Regulations constitute an extraterritorial law is misconceived. These Regulations do not Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 10 of 12 Signing Date:22.07.2022 10:47:10 encroach into the sovereignty of the countries where those institutions are located, by stipulating minimum standards for the students who want to practise there. These Regulations merely prescribe the minimum standards to be fulfilled by those who study in those institutions but who want to practise here in India.
58. Insofar as the challenge to the CRMI Regulations are concerned, the same is without any substance. If there are institutions in some countries which offer primary medical qualification without mandatory internship, the students are supposed not to seek admissions in those institutions. The mad rush to become qualified medical professionals, cannot drive them to countries where short-cuts to success are offered. The requirement under Para 2(a) of Schedule-II of these Regulations for foreign medical graduates to undergo internships at pair with Indian medical graduates is to ensure that only those who have acquired similar skills are allowed to practice Medicine.
59. The prescription in para 2(c)(1) of Schedule-II of these Regulations that such foreign medical graduates may be posted first in colleges which have been newly opened and have yet to be recognised, is a prescription of necessity. All medical institutions of the country are equipped to provide internships only to as many students as their permitted intake may allow. Therefore, this Regulation is intended to ensure that an undue burden is not cast upon the already recognised institutions.
60. Therefore, we find that the dismissal of the writ petitions filed by the appellant before the Madras High Court was fully justified. We could have dismissed the SLPs in limine, but we thought fit to take pains to bring on record the historical facts so that the challenge to these Regulations are nipped in the bud and they do not surface in a different form or avatar.
61. In view of the above, the appeals are dismissed. However, the costs imposed by the High Court of Madras upon Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 11 of 12 Signing Date:22.07.2022 10:47:10 the appellant is waived off, taking into account of the fact that he is a student and also for the purpose of showing the only extent to which, a court can show sympathy in such matters."
5. The aforesaid judgment makes it categorically clear that the Apex Court has upheld the constitutional validity of the National Medical Commission (Foreign Medical Graduate Licentiate) Regulations, 2021, by dismissing the SLP.
6. In light of the aforesaid, this Court does not find any reason to interfere with the said Regulations and is not inclined to grant any relief to the Petitioners.
7. The petitions are dismissed, along with pending application(s), if any.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 20, 2022 S. Zakir Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 87/2022 etc. Page 12 of 12 Signing Date:22.07.2022 10:47:10