Kerala High Court
The Travancore Cochin Council Of Modern ... vs Leeba Mary Eapen on 16 March, 2021
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 1667/2020 : 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
TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942
WA.No.1667 OF 2020
AGAINST THE JUDGMENT DATED 30.10.2020 IN WP(C) 2344/2020(P) OF HIGH
COURT OF KERALA
APPELLANT/1ST RESPONDENT:
THE TRAVANCORE COCHIN COUNCIL OF MODERN MEDICINE
REPRESENTED BY ITS REGISTRAR, COMBINED COUNCIL
BUILDINGS, RED CROSS ROAD, THIRUVANANTHAPURAM-695 935.
BY ADV. N. RAGHURAJ
RESPONDENTS/PETITIONER & 2ND RESPONDENT IN W.P.(C):
1 LEEBA MARY EAPEN
AGED 34 YEARS
D/O.EAPEN ABRAHAM, KOCHIKUZHIYIL HOUSE,
KAIYALATHUPARAMBIL, ANICAD P.O., MALLAPPALLY,
PATHANAMTHITTA DISTRICT, PIN-689 585.
2 THE MEDICAL COUNCIL OF INDIA,
PODAT-14, SECTOR-8, DWARAKA, NEW DELHI-14, REPRESENTED
BY ITS REGISTRAR-110 001.
3 ADDL.R3 IMPLEADED
NATIONAL MEDICAL COMMISSION,
(ERSTWHILE MEDICAL COUNCIL OF INDIA,DADA DEV MANDIR
ROAD, DWARAKA,
PHASE-I,POCKET 14,SECTOR-8,
NEW DELHI-110 077,
REPRESENTED BY ITS SECRETARY.
W.A. No. 1667/2020 : 2:
(ADDL. R3 IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER
DATED 21/1/21 IN I.A.1/2021 IN WA 1667/2020.)
R2 BY SHRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA
R1 BY SRI. JOHN JOSEPH(ROY)
R2 & R3 BY SRI.TITUS MANI, SC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1667/2020 : 3:
'CR'
Dated this the 16th day of March, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is filed by the first respondent in W.P.(C) No. 2344 of 2020 challenging the judgment of a learned single Judge dated 30.10.2020, whereby the learned single Judge allowed the writ petition following the judgment of a Division Bench of this Court at Ext.P7 in W.A. No. 1981 of 2012 dated 29.08.2014, by setting aside Ext. P11 order passed by the appellant--Travancore Cochin Council of Modern Medicine declining the provisional registration to the writ petitioner/first respondent in the appeal disabling her to practice medicine in terms of the provisions of the Indian Medical Council Act, 1956 (hereinafter called 'Act, 1956).
2. Material facts for the disposal of the appeal discernible from the writ petition are as follows:
The writ petitioner is a citizen of India whose parents were working abroad and pursuant to which she had her school education in Abu Dhabi in a school affiliated to the Central Board of Secondary W.A. No. 1667/2020 : 4: Education, India. After qualifying for admission in Universities or Medical Institutions, the writ petitioner applied to the Medical Council of India--the second respondent for eligibility certificate on
03.11.2003, and the second respondent issued the eligibility certificate dated 24.11.2003 certifying that the petitioner is eligible for applying for admission in a Graduate Medical Course leading to 'Primary Medical Qualification' in terms of the eligibility requirement for taking admission in an undergraduate Medical course as per the Foreign Medical Institutions Regulations, 2002 framed under Section 13(4B) of the Indian Medical Council Act, 1956 ('Act, 1956' for short), evident from Ext. P2. In fact, the eligibility certificate is an essential requirement for conducting studies in medicine abroad. The writ petitioner secured admission in International University of Health Sciences for Bachelor of Medicine and Bachelor of Surgery, St. Christopher and Nevis, St. Kitts, West Indies. The writ petitioner completed her academic studies and has come out successful in the year 2010, pursuant to which the international University of Health Sciences had awarded Ext. P3 degree certificate on 14.07.2010 and with the hopeful intention of continuing her higher studies in Medicine submitted her certificates or attestation to the University.
3. The contention of the writ petitioner is that the University had W.A. No. 1667/2020 : 5: forwarded the certificates of the students who decided for higher studies to the High Commission of India Georgetown (Guyana) for attestation. The High Commission of India, in turn, forwarded those certificates to the Dean of Academic Affairs, Indian University of Health Sciences stating that St. Kitts and Nevis and India are members of the Apostille Convention of October, 1961 and as such, the documents are acceptable in India without being attested by the said Mission, evident from Ext. P4 communication dated 24-09-2012. The University, in turn, had informed the writ petitioner as per Ext. P5 letter dated 24.10.2012 that no further attestation is required for the degree for use in any country that is a signatory to the Hague convention of 1955, which includes India. The University has also issued Ext. P6 No Objection Certificate to the writ petitioner dated 01.11.2012 in the matter of obtaining further postgraduate education.
4. It was also the case of the writ petitioner that some of the students of the same batch of the petitioner and earlier batch numbering twenty have faced some difficulties in appearing for screening test, and for provisional registration, as well as permanent registration in the State of Kerala with the appellant, also due to the objections from the Medical Council of India, had approached this Court by filing W.P.(C) No. 23676 of 2011. The said writ petition was W.A. No. 1667/2020 : 6: allowed which was taken in appeal by the Medical Council of India and the said appeal was dismissed as per Ext.P7 judgment confirming the judgment of the learned single Judge. Anyhow, the writ petitioner appeared for the screening test and passed the test conducted by the National Board of Examinations, evident from Ext. P8 certificate dated 07.09.2019 of the National Board of Examinations.
5. It was also the case of the writ petitioner that following Ext. P7 judgment, a learned single Judge of this Court rendered a judgment in W.P.(C) No. 27156 of 2013 in regard to yet another student, directing the Medical council of India to provide provisional registration within two months from the date of receipt of the judgment and further directed to consider the permanent registration on completion of the internship of one year, evident from Ext. P9. The writ petitioner apparently with all the documents on record, submitted the application in the standard format seeking provisional registration, copy of which is Ext. P10 dated 16-10-2019. It is evident from Ext. P12 acknowledgement dated 16.09.2019, produced later, that the application was acknowledged on the said date itself, and it is informed that it is under scrutiny.
6. The case of the writ petitioner is that apart from Ext. P10 application submitted on 16.09.2019, the writ petitioner has also W.A. No. 1667/2020 : 7: forwarded the application online, on 04.11.2019. Since the decision in the application for provisional registration was delayed, the appellant filed W.P.(C) No. 30003 of 2019 and as per a judgment dated 22.11.2019, a learned single Judge of this Court directed the appellant to take a decision on the application of the writ petitioner before 15.01.2020. It was, thus, after considering the application that Ext. P11 order was passed declining the provisional registration to the writ petitioner.
7. The appellant had filed a counter affidavit contending that the writ petitioner is not entitled to get the benefit of Exts. P7 and P9 judgments of this Court. It is also submitted that the appellant, in its meetings held on 20.09.2019 and 11.10.2019, considered all the relevant factual and relevant aspects involved in the matter and decided to grant registration only to those foreign medical students, who acquired medical degrees from foreign medical institutions and approved by the second respondent Council through regular studies and further that the Council resolved not to grant registration to those foreign medical graduates who have obtained their medical degrees through off-campus education method and that the order impugned namely Ext. P11 is only a communication to the writ petitioner intimating the above facts.
W.A. No. 1667/2020 : 8:
8. It was also the case of the appellant that the writ petitioner acquired the said qualification through off-campus method of studies in 2010 and for the reasons best known to her, she has chosen to apply for provisional registration with the appellant Council only in 2019. However, it was submitted that on verification of the application submitted by the writ petitioner for provisional registration, though it was found that the eligibility certificate was issued to her for study in International University of Health Sciences, she has not visited, even for a single day, the said University and admittedly she applied her studies in Dubai and Hyderabad, which shows that she has not undergone regular studies. It was also pointed out that the writ petitioner has not chosen to mention the details of the institutions at Dubai and Hyderabad where she had allegedly undergone the said medical course, which would arouse suspicion in any prudent man.
9. It was also contended that the Medical education in India is a regular course conducted by following the standard norms and no distant or off-campus education is permissible in the Medical field as the Medical profession requires more skilled hands having experience than any other profession, as any deficiencies in this regard would adversely affect the public health. Other contentions were also raised, including that the Medical Council of India has clearly stated that the W.A. No. 1667/2020 : 9: State Council shall not make any endeavour to enable any candidate who have obtained qualification through any unconventional or surreptitious method as the lives of Indian citizens shall be at grave risk, evident from Ext. R1(a). It was further contended that the writ petitioner has not attended the studies in the university abroad, but admittedly at Dubai and Hyderabad, and such method of imparting education cannot be approved and encouraged, that before granting registration to a medical graduate the council is bound to ensure that the candidate is eligible and equipped for medical practice, and it was accordingly that the Council had decided to decline registration to the writ petitioner.
10. It was also contended that the facts and circumstances involved in Exts. P7 and P9 judgments are different from the facts and cases put forth by the writ petitioner, and the appellant was not a party to the judgments and therefore, the writ petitioner was not entitled to get any benefit of the said judgments against the appellant.
11. In fact, the writ petitioner has made the Medical Council of India a party mistakenly in the writ petition in question; whereas the Medical Council of India is replaced by the National Medical Commission and since the National Medical Commission was not a party, it was submitted by the learned Standing Counsel that a counter W.A. No. 1667/2020 : 10: affidavit could not be filed in the writ petition.
12. Anyhow, the National Medical Commission is the third additional respondent in the appeal and it has filed a statement refuting the claims and demands raised by the writ petitioner and supporting the contentions advanced by the Travancore Cochin Council of Modern Medicine. Typical contentions as that of the appellant were raised in the statement and adding to the same, it is submitted that the writ petitioner is not entitled to come within the purview of Section 13(4A) of the Act, 1956.
13. The learned single Judge, after considering the entire facts and figures and also making an in depth analysis of the provisions of the Travancore Cochin medical Practitioners Act, 1953,(hereinafter called 'Act 1953') rendered the following findings:
"17. The prime distinguishing factors against granting relief to the petitioner herein based on Ext.P7, pointed out by the respondents are:-
(i) The petitioner has undergone pre-clinical studies at Abudhabi; and clinical training in Hyderabad.
(ii) In the case of petitioner in Ext.P7, this Court was convinced from the documents and pleading available therein that the petitioners underwent regular studies.
It was contended that on these two counts, Ext.P7 judgment is not liable to be followed on the petitioner's case.
18. Ext.P7 judgment would show that the petitioners therein though joined IUHS, West Indies, underwent pre-clinical studies/training in the Universal W.A. No. 1667/2020 : 11: Empire Institution of Medical Sciences Pvt. Ltd. Ext.P13 order dated 26.06.2007 produced by the petitioner would show that the petitioner has also done pre-clinical course in the same Universal Empire Institutions of Medical Sciences Pvt. Ltd. Ext.P15 Academic Record in respect of the petitioner issued by the IUHS would show that the petitioner has attended classes in various subjects for various durations and it was based thereon, that Ext.P3 Degree was conferred on the petitioner. This Court finds no reason to doubt the veracity of these documents.
19. As far as clinical training program is concerned, the Institution in which the petitioner studied posted the petitioner to Care Hospitals, Hyderabad for clinical training for defined durations. This is evident from Ext.P13. Ext.P14 would show that the petitioner has successfully completed her program in Care Hospital, Hyderabad.
20. It is further to be noted that National Board of Examinations found the petitioner qualified to appear in Screening Test Regulations, and after the petitioner passing the Test, the Board issued Ext.P8 Result, requiring the petitioner that as per Public Notice of the MCI dated 21.04.2014, the petitioner has to submit her result to the State Medical Council for registration.
21. Section 23 of the Travancore-Cochin Medical Practitioners Act, 1953 is as follows:-
"23. Eligibility for registration - (1) Subject to the provisions of sub-sections (2) and (5).-
(i) every holder of a recognised qualification and every practitioner holding appointment under the Government at the commencement of this Act, and
(ii) every person who, within the period of one year or such other longer period as maybe fixed by the Government from the date of which this Act come into force, proves to the satisfaction of the appropriate council that he has been in regular practice as a practitioner for a period of not less than five years preceding the first day of April, 1953, shall be eligible for registration under this Act:
Provided however that no practitioner shall be registered W.A. No. 1667/2020 : 12: under clause (ii) after the expiration of one year, or such other longer period as may be fixed by the Government, from the date on which this Act comes into force.
(2) Applicants for registration under clause (ii) of subsection (1) shall produce a certificate in Form I as set forth in the schedule. The certificate shall be from an officer of the Revenue Department not below the rank of a Tahsildar or any other person authorised by the Government in this behalf.
(3) The Government may, after consulting the appropriate council, permit the registration of any person who shall furnish to such council proof that he is possessed of a medical degree, diploma or certificate of any University, medical school or college approved by such council other than those mentioned in the Schedule.
(4) The Government shall have power to direct the registration of any practitioner who, at the time of registration under this section, is employed in a hospital, asylum, infirmary, clinic, surgery, lying-in hospital, sana-torium, nursing home, dispensary, vaidyasala or dharmasala managed by any corporate body: Provided however that no such practitioner shall be registered under this sub-section after the expiration of one year, or such other longer period as may be fixed by the Government, from the date on which this Act comes into force.
(5) No person shall be eligible for registration under sub-
section (1), sub-section (3), or sub-section (4) if he is subject to any of the disqualifications mentioned in clause (a) to (e) of Section 7".
Under Section 23(1) every holder of a recognised qualification shall be eligible for registration under the Act.
22. Section 2 (j) of the Act, 1953 defines 'recognised qualification' as a qualification enumerated in the schedule. Clause A(2) of the Schedule would show that all qualifications recognised under the Indian Medical Council Act, 1956 are recognised qualifications. The Standing Counsel would submit that the schedule to the Act is no more relevant W.A. No. 1667/2020 : 13: due to subsequent amendments made to Indian Medical Council Act. Even if it is so, the respondents have no case that the qualification obtained by the petitioner from IUHS, is not a recognised qualification. The fact that the petitioner was permitted to appear and pass the Screening Test, would only indicate that the Degree concerned issued by the IUHS is treated as acceptable by the National Board of Examinations. This Court also considered the cases of students who have obtained the same Degree from the very same University and granted relief to the petitioners in those cases. A learned Single Judge followed Ext.P7 judgment of the learned Single Judge in Ext.P9 judgment in W.P.(C) No.27156/2013. Therefore, I find no reason to take a different view in the case of the petitioner herein.
23. As regards the arguments of the 1st respondent that the writ petition has been filed impugning a consequential order without challenging the basic order and hence is not maintainable, it is to be noted that the petitioner need not challenge those orders or resolutions because the petitioner's claim has to be considered as per the rules and regulations existed prior to the passing of the resolutions. The resolutions relied on by the 1st respondent-Council were passed on 20.09.2019 and 10.10.2019. The petitioner passed Screening Test for Indian Nationals with Foreign Medical Qualification in June, 2019 and submitted applications for Provisional Foreign Registration, which was received by the 1st respondent-Council on 16.09.2019, as is evident from Ext.P12.
24. The petitioner has obtained her foreign degree undergoing regular studies. She had obtained Ext.P2 eligibility certificate from the Medical Council of India to undergo study in the IUHS. At that time, there was no prohibitions imposed by the respondents against Off-campus study. Therefore, it would be highly arbitrary and discriminatory on the part of the 1st respondent to deny provisional and final registration to the petitioner on the basis of their subsequent resolution against Off-campus studies.
25. For all the above said reasons, this Court is of the considered opinion that the petitioner is entitled to relief prayed for in the writ W.A. No. 1667/2020 : 14: petition. Ext.P11 order of the 1st respondent is therefore set aside. The 1st respondent is directed to issue Provisional Registration to the petitioner forthwith."
It is, thus, challenging the legality and correctness of the said findings in the Judgment, the appeal is preferred.
14. The paramount contention advanced in the appeal is that, the rejection of Ext. P10 application submitted by the first respondent was on the strength of Ext. R1(b) resolution dated 20.09.2019 passed by the appellant Council produced along with I.A No. 2 of 2020 dated 30.06.2020 by which the Council resolved not to encourage off- campus (distance education) Medical Education as it poses threat to the public health sector and further not to grant registration to persons who had obtained degree in the above manner, and Ext. R1(c) resolution dated 11.10.2019 was passed in regard to pending applications of persons who have obtained degree through off-campus method, resolving not to grant off-campus registration, and also to fix 20.09.2019, the date on which Ext R2 (b) resolution was passed, as the cut off date and accordingly, resolved to examine the pending applications of such degree holders and to reject the same.
15. That apart, it is contended that the learned single Judge went wrong in rejecting the contention of the appellant that since no challenge was made to Exts. R1(b) and R1(c) resolutions, the relief W.A. No. 1667/2020 : 15: sought for challenging the rejection of provisional registration alone was not maintainable under law. That apart, it is also contended that by virtue of the judgment rendered by the Apex Court in State of Kerala v. B. Six Holiday Resorts Pvt. Ltd. [(2010) 5 SCC 186], the Apex Court held that the law applicable with respect to the consideration of an application submitted before a statutory authority
--Government-- is the law that was prevailing as on the date of consideration of the application and not the law that was prevailing as on the date of submission of the application.
16. It is further submitted that the reliance placed by the learned single Judge on Ext. P12 acknowledgement dated 16.09.2019 in regard to the submission of the physical copy of the application to hold that the writ petitioner had actually submitted the application on the date on which Ext. R1(b) resolution passed by the Council, is not correct. According to the appellant, the writ petitioner has submitted a valid application only on 04.10.2019. In other words, a proper application for the purpose of registration was submitted by the first respondent after Ext. R1(b) resolution was passed. That apart, it is also contended that the facts and circumstances contained in Exts.P7 and P9 judgments rendered by a Division Bench and a learned single Judge respectively were entirely different from the facts and W.A. No. 1667/2020 : 16: circumstances put forth by the writ petitioner, since the details with respect to the institutions in which the writ petitioner underwent higher studies in Dubai and Hyderabad are not mentioned.
17. We have heard the learned counsel for the appellant Sri. N. Raghuraj, learned counsel for the first respondent/ writ petitioner Sri. John Joseph (Roy) and Sri. Titus Mani Vettom for the National Medical Commission, and perused the pleadings and materials on record.
18. Bearing in mind the undisputed fact that the writ petitioner had secured eligibility certificate in contemplation of Section 13(4B) of the Act, 1956 to get admission in a medical institution in any foreign country, and had passed the screening test in terms of the Screening Test Regulations, 2002 ('Regulations, 2002' for short) enabling to seek provisional registration in a State Medical Register to practice medicine in India, we proceed to scrutinize the provisions of law so as to arrive at a logical conclusion. Section 13 of Act, 1956 deals with 'recognition of medical qualifications granted by certain Medical Institutions whose qualifications are not included in the First or Second schedule of the Act'.
19. Sub-Section (3) thereto specifies that the medical qualifications granted by any medical institutions outside India before W.A. No. 1667/2020 : 17: such date as the Central Government may, by notification in the Official Gazette specify (w.e.f. 03-09-2001), which are included in Part II of the third Schedule shall also be recognised medical qualifications for the purposes of the 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 to undergo such practical training as may be prescribed. Therefore, it can be seen that it is a clear cut rule in respect of medical degrees secured from abroad before the cut off date specified and the consequences to be undertaken to practise medicine in India by any citizen of India.
20. Sub-Section (4B) of Section 13 stipulates that 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, W.A. No. 1667/2020 : 18: he shall not be eligible to appear in the screening test referred to in sub-section (4A). The said provision has also come into force with effect from 03-09- 2001.
21. Sub-Section (4A) consequently stipulates that a person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognized for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under sub-section (3), (w.e.f 03-09-2001) 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 the Act for that person.
22. On a reading of the aforesaid provisions, it is categoric and clear that the Government of India has prescribed definite conditions in order to enable a student to be qualified for undergoing medical education outside India. It is true, merely because an undergraduate degree is secured from a foreign University, such student would not be W.A. No. 1667/2020 : 19: eligible to be enrolled in the Medical Register, unless he qualifies the screening test in India in accordance with the Regulations, 2002.
23. It is important to note that in order to translate the provisions of the Act, 1956, the Medical Council of India has made the Eligibility Requirement for Taking Admission in an Undergraduate Medical Course in a Foreign Medical Institution Regulations, 2002 (hereinafter called 'Foreign Medical Institutions Regulations, 2002'). It is significant that, as per Regulation 4 of the Foreign Medical Institutions Regulations, 2002, on receipt of request for issue of eligibility certificate by the candidate in the proforma prescribed by the Council accompanied by the requisite document specified thereunder, the Council shall be free to investigate on its own into the correctness of information furnished by the candidate in his/her application and/or call for any further information in this regard from the candidate and in the event of any information furnished by the candidate found to be incorrect or false during such investigation or at any subsequent stage the Council may refuse to issue the eligibility certificate or if already issued may cancel the same and he/she shall stand debarred from appearing in the screening test prescribed under sub-Section 4A of Section 13 of Act, 1956 and the decision of the Council in that regard shall be final.
W.A. No. 1667/2020 : 20:
24. The Council is also empowered under Regulation 8 to verify the details as per Regulations of the Council in regard to (i) whether the candidate fulfils the age criterion prescribed by the Council; (ii) whether the candidate fulfils the eligibility criteria for admission to MBBS course in India as prescribed in the Graduate Medical Education Regulations, 1997, i.e., minimum qualifying marks criteria in Physics, Chemistry, Biology and English, including relaxed criteria in case the candidate belongs to a reserved category; and (iii) if the candidate belongs to SC/ST/OBC, whether he/she has produced a caste certificate from a competent authority.
25. Regulation 9 further makes it clear that after verification, if the candidate is found to have fulfilled the eligibility criteria alone, the Council shall issue an eligibility certificate in the prescribed format to the candidate certifying that he/she is eligible to join a medical institution outside India to obtain a primary medical qualification. The certificate shall also indicate that on return after obtaining the foreign primary medical qualification, the candidate shall have to undergo a screening test, subject to fulfilment of the conditions prescribed in the Regulations, 2002 and that passing this test shall only entitle him to provisional/permanent registration by the Medical Council of India or the State Medical Councils.
W.A. No. 1667/2020 : 21:
26. True, it is specified in Regulation 11 that the issue of eligibility certificate to a candidate shall not entitle him to any right, whatsoever, other than to take admission in an undergraduate medical course in a foreign medical institute. When the provisions of the Act, 1956 and the Foreign Medical Institution Regulations, 2002 read together, it is clear that the eligibility certificate issued by the Medical Council of India to study abroad shall not entitle the candidate with any right of whatsoever nature other than to undergo the course of study of medicine as prescribed. However, it is also clear that once the candidate obtained foreign primary medical qualification, it is a requirement that he/she shall have to undergo the screening test, subject to the fulfilment of the conditions prescribed in the screening test, which alone shall entitle him/her to provisional/permanent registration by the Medical Council of India or the State Medical Councils. Therefore, it is clear that once the candidate secures foreign medical qualification and passed the screening test in terms of the Regulations, 2002, he, as of right, is entitled to provisional/permanent registration as prescribed therein.
27. Likewise Regulation 4 of the Screening Test Regulations, 2002 makes it clear that no person shall be allowed to appear in the screening test unless:
W.A. No. 1667/2020 : 22:
(1) he/she is a citizen of India or has been granted Overseas citizenship of India and possesses any primary medical qualification, which is confirmed by the Indian Embassy concerned to be a recognised qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated;
(2) he/she had obtained 'Eligibility Certificate' from the Medical Council of India as per the 'Eligibility Requirement for taking admission in an undergraduate medical course in a Foreign Medical Institution Regulations, 2002'. This requirement shall not be necessary in respect of Indian citizens [or overseas citizens of India] who have acquired the medical qualifications from foreign medical institutions or have obtained admission in foreign medical institution before 15th March, 2002.
(3) he/she has studied for the medical course at the same institute located abroad for the entire duration of the course from where he/she has obtained the degree.
(4) Provided further that a person seeking provisional or permanent registration shall not have to qualify the Screening Test if he/she holds an Undergraduate medical qualification from Australia/Canada/New Zealand/United Kingdom/United States of America and the holder thereof also been awarded a Post Graduate medical qualification in Australia/Canada/New Zealand/United Kingdom/United States of America and has been recognized for enrolment as medical practitioner in that country.
It is relevant and important to note here that Sub Regulation 3 of Regulation 4 was struck down by the High Court of Delhi being unconstitutional. Regulation 5 of the Regulations, 2002 makes it clear that the purpose of conducting the screening test shall be only to determine the eligibility or otherwise of a candidate for his or her W.A. No. 1667/2020 : 23: registration with the Medical Council of India or any State Medical Council and qualifying the same shall not confer any other right, whatsoever, on a candidate.
28. In our considered opinion, when the said provisions of the Regulations, 2002 and the Foreign Medical Institution Regulations, 2002 as discussed above are read together, a candidate who secures an eligibility certificate and acquires a primary foreign medical qualification, and passes the screening test, entitles him to provisional/permanent registration by the Medical Council of India or the State Medical Council, as of right. This we say because, Section 13(4A) clearly specifies that a person who is a citizen of India and obtains medical qualification granted by any medical institution outside India shall not be entitled to be enrolled on any medical register maintained by a State Medical Council etc. unless he qualifies the screening test in India prescribed for such purpose and thereafter such foreign medical qualification shall be deemed to be the recognised medical qualification for the purposes of the Act, 1956 for that person. As we have pointed out earlier, the writ petitioner has satisfied the conditions deliberated above in terms of the Act, 1956 and both the Regulations of 2002. Therefore, it is clear that by virtue of the said provisions, a right is conferred on the writ petitioner who satisfied the W.A. No. 1667/2020 : 24: conditions of law for the purpose of registration in any of the registers maintained by the statutory authorities for the purpose, and post qualification accordingly, the qualification secured by the person from abroad, by virtue of the statutory fiction contained under Section 13 (4A) shall be a recognised qualification under the Act, 1956. That apart, the definition of provisional registration contained under the Regulations of 2002 makes it clear that it is done for the purpose of undergoing practical training in India as prescribed, by those persons who have not undergone such practical training after obtaining the qualification as may be required by the rules or regulations in force in the country granting the qualification, which by itself is a mechanism to regulate and control the practice of medicine. The documents produced by the petitioner and discussed above would make it clear that they are satisfying the requirements of the provisions of law in the Indian context, which were taken note of by the learned single Judge while analysing the situations.
29. Now the sole question emerges for consideration is on the basis of the factual circumstances put forth by the writ petitioner as well as the appellant Council. It is also an admitted fact that Ext. P10 application was submitted by the writ petitioner on 16.09.2009, evident from Ext. P12 acknowledgement issued by the appellant W.A. No. 1667/2020 : 25: Council dated 16.09.2019, which is a date prior to Ext. R1(b) resolution passed by the appellant Council on 20.09.2019. The resolution passed by the appellant Council on 20.09.2019 was a decision not to encourage off-campus (distant education) medical education as it poses threat to the public health sector and further not to grant registration to persons who obtained a degree in the above manner.
30. Therefore, it was a decision taken by the appellant Council to have prospective operation from 20.09.2019. Though it is an admitted fact that the application was received for provisional registration prior to the said resolution of the appellant Council, the contention raised in the appeal was that the writ petitioner has submitted yet another online application on 04.10.2019 i.e., after the cut off date of the resolutions specified above, by which it can be seen that the application was submitted by the writ petitioner after the resolution was passed by the appellant Council and that the application submitted on 16.09.09 was defective. However, the appellant Council was not having such a case in the counter affidavit filed in the writ petition or in the impugned order Ext P11. Further, the contention advanced in the appeal was that since the online application was submitted on 04.10.2019, it could only be presumed that Ext. P10 W.A. No. 1667/2020 : 26: application submitted on 16.09.2019 was a defective one. The appellant Council has also no case that any intimation was sent to the writ petitioner pointing out that the application submitted by the writ petitioner physically was defective.
31. In our considered opinion, such a presumption raised by the Council is not a presumption in law, especially due to the admission of the fact of receipt of the application on 16-09-2009. According to us, it can never be treated as a presumption, but can only be considered as a vague and baseless assumption on the part of the Council that the application was defective, which is not expected to be done by a statutory authority. Therefore, the said contention advanced in regard to the defective application submitted by the writ petitioner on 16.09.2019 prior to the decision of the Council on 20.09.2019 can never be sustained under law. Added to this, it is relevant and important to note that Ext. R1(c) resolution of the Council dated 11.10.2019, in fact, modified the resolution taken on 20.09.2019, by which alone the decision with respect to pending applications was taken, which reads thus:
"Further action on the pending applications of persons who have obtained a degree through off-campus method, since it was resolved not to grant off campus registration--reg.W.A. No. 1667/2020 : 27:
Since it was resolved not to permit off-campus registration, it is further resolved to fix 20.09.2019, the date on which the said resolution was passed, as the cut-off date. Accordingly, it is resolved to examine the pending applications of such degree holders and to reject the same."
32. Therefore, it is clear and evident that when the resolution was passed on 20.09.2019 as per Ext. R1(b), the appellant Council intended to make the resolution prospective in operation. Further, it was by a later thought alone, it has decided to deal with the pending applications also from the cut off date of 20.09.2009 and to reject the same and therefore, even assuming that the application was defective and an online application was submitted by the writ petitioner on 04.10.2019, it was prior to the decision taken by the appellant Council dated 11.10.2019 in regard to the pending applications at Ext R1(c).
33. Learned counsel for the appellant Council in that regard has invited our attention to the judgment of the Apex Court in B. Six Holiday Resorts Pvt. Ltd., wherein it was held that consideration of application of FL-3 licence should be only with reference to the rules/law prevailing or in force on the date of consideration of the application by the excise authorities, and not as on the date of application.
34. In our considered opinion, the subject matter that was W.A. No. 1667/2020 : 28: considered by the Apex Court in the decision supra was in regard to the grant of foreign liquor licence, and it is a well settled position in law that nobody can claim a fundamental right in the matter of securing a foreign liquor licence. Learned counsel has also invited our attention to a Full Bench decision of this Court in State of Kerala v. Raveendran Pillai [2010(2) KLT 25 (F.B)]. In Raveendran Pillai also, the issue was with respect to the consideration of a foreign liquor licence with reference to the law prevailing as on the date of consideration/disposal of the application, and held that the law applicable is the law on the date of consideration of the application.
35. Learned counsel has also invited our attention to the judgment of the Apex Court in Santhosh N.C. v. State of Karnataka and others [AIR 2020 SC 1401], which considered the question of compassionate appointment vis-a-vis the norms prevailing on the date of consideration of the application and it was held that the law as on the date of consideration of the application should be the basis for consideration of claim for compassionate appointment.
36. In our view, in Santhosh N.C., the Apex Court has interpreted the law in order to consider the question of abandonment of the compassionate appointment, which was under special W.A. No. 1667/2020 : 29: circumstances available to a legal heir of the deceased employee. Here, in the case at hand, if the provisional registration is declined by the appellant Council, the writ petitioner would not be entitled to practice in the State of Kerala, or for that matter anywhere else in India also. Going by the pleadings put forth by the writ petitioner, it is clear that she is a native of Kerala and therefore, she is entitled, as of right, to apply for provisional registration in contemplation of and subject to the provisions of the Act, 1956 and the Regulations of 2002 discussed above. Therefore, if provisional registration is not granted to the writ petitioner in spite of her securing the eligibility certificate and the primary medical qualification, and the passing of screening test, in contemplation of the requisite laws, it would be nothing short of interference with the fundamental rights guaranteed, to the petitioner under Article 19(1)(e) & (g) of the Constitution of India enabling her, as of right, to practice any profession or to carry on any occupation, trade or business, subject to the reasonable restrictions in the place of her choice. The reasonable restrictions are the laws discussed above and the petitioner having satisfied the conditions of reasonable restrictions imposed, that by itself generates a right protecting the interests of the petitioner in terms of the guarantee extended under Part III of the Constitution of India, which are inviolable in nature. W.A. No. 1667/2020 : 30: Thinking so, the resolutions made by the appellant creating absolute prohibition for registration even overlooking the provisions of law discussed above cannot stand the test of law and is an inroad into the basic democratic principles which is the hallmark and essential feature of the Constitution of India.
37. That said, clause 6 of Article 19 of the Constitution of India would be relevant, which specifies that nothing in sub-clause (g) of Article 19(1) shall affect the operation of any existing law, insofar as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by sub clause (g) of Article 19(1) and in particular nothing in the sub-clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to,-
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) xxxxxxxxxx
38. Therefore, bearing in mind the said constitutional provision, we have no hesitation to say that it is by now trite and settled that a law enacted under Article 19(6) is not a circular or policy decision in terms of Article 162 of the Constitution of India or otherwise, and such W.A. No. 1667/2020 : 31: a law must be one enacted by the legislature. Therefore, what we intend to say is that a mere decision taken by the appellant Council not to grant registration from a cut off date is not a law in contemplation of 'law' prescribed under Article 19(6) of the Constitution of India and therefore, cannot overlook the constitutional guarantee and the provisions of the Act, 1956 and the Regulations of 2002. In effect, we are in respectful agreement with the findings rendered by the learned single Judge in regard to the power enjoyed by the appellant under the Act, 1953, which findings are not under much serious challenge.
39. So also, we have no doubt in our mind to hold that if the approach made by the appellant Council is allowed to stand, it would seriously interfere with the right enjoyed by the petitioner under Article 21 of the Constitution of India, since such an action would deprive of her life or personal liberty otherwise than by a procedure established by law. That is to say, unlike the law laid down in the judgments referred to supra, if the registration is declined that would deprive her basic rights protected under the Constitution of India for ever, which would be an antithesis to the rule of law prevailing in the country.
W.A. No. 1667/2020 : 32:
40. It is also equally important to note that when the application for provisional registration was not considered by the appellant Council, the writ petitioner has approached this Court and secured an order seeking direction to consider the application within a time frame and it was accordingly that Ext P11 impugned decision dated 10.01.2020 was taken by the Council. True, it was after the cut off date fixed in the resolutions dated 20.09.2019 and 11.10.2019, but for the reasons stated above the decisions so taken are unconstitutional dooming the fundamental rights of a citizen completely and absolutely, which can be taken note of by a writ court to grant reliefs even if such an illegal action was not challenged. Further, we are of the clear opinion that the application received as early as on 16.09.2019 before the cut off date of 20.09.2019 was an application in accordance with the proforma of the appellant Council for reasons assigned and also by the added crucial fact that the appellant has not taken any decision with respect to the pending applications, however taken only on 11.10.2019. Above all, if the appellant Council was satisfied that the writ petitioner had any other disqualifications or other disabilities to get registration in terms of Act, 1956 and the Regulations of 2002, it should have been reflected in the order impugned, since the authority exercised by the appellant is quasi judicial in nature conferred under W.A. No. 1667/2020 : 33: the Act, 1953. It is well settled in law that such a vital requirement, which ought to have been reflected in the impugned order and failed to assign there, cannot be salvaged by stating those reasons in the counter affidavit or appeal filed by the statutory authority. Therefore, what is demonstrated in the conduct of the appellant by doing so is nothing but absolute inconsistency adopted at different stages to non- suit an applicant, who is entitled to get it considered in accordance with law.
41. The learned counsel for the appellant has also submitted that even though the binding nature of Ext.P7 judgment of the Division Bench of this Court was put forth by the appellant, that was not considered, and the contention advanced on that basis is that the appellant was not a party to the said judgment and therefore, the findings rendered in the Division Bench judgment is not binding on the appellant also. But, fact remains, the Division Bench considered the issue with respect to the provisions of the Act, 1956 and the Regulations of 2002 discussed above and in that scenario, we do not think, the appellant Council had any role to play. The power of the appellant Council, as we have pointed out above, is only in respect of the provisional/permanent registration in terms of the provisions of the Act, 1956 and the Regulations of 2002. Moreover, merely because the W.A. No. 1667/2020 : 34: appellant was not a party in the writ petition concerning Ext. P7 judgment, that by itself will not absolve the duty of the appellant to follow the judgment, if a decision was taken by this Court explaining the circumstances of the requisite provisions of the Act, 1956 and the Regulations of 2002. Therefore, we do not find any merit in the contention advanced by the appellant Council that Ext. P7 judgment is not binding on them.
42. Taking into account the aforesaid legal and factual aspects, we are of the considered opinion that the appellant was liable to consider the pending application submitted by the writ petitioner, irrespective of the decision taken on 20.09.2019 and 11.10.2019. Viewed in that circumstances, it is quite explicit that the proposition of law laid down by the Division Bench of this Court in Ext. P7 judgment in W.A No. 1981 of 2012 and connected cases dated 29.08.2014 would squarely apply to the facts and circumstances in the case at hand and therefore, the writ petitioner is entitled to secure the benefit of the said Division Bench judgment, and the judgment of the learned single Judge of this Court, at Ext. P9 in W.P.(C) No. 27156 of 2014, which was rightly held so by the learned Single Judge.
43. Upshot of the above discussion is that the appellant has not W.A. No. 1667/2020 : 35: made out a case justifying interference in the judgment of the learned single Judge, there being no jurisdictional error or other legal infirmities, in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958.
Needless to say, the writ appeal fails and accordingly, it is dismissed.
S. MANIKUMAR, CHIEF JUSTICE.
SHAJI P. CHALY, JUDGE.
Rv W.A. No. 1667/2020 : 36: APPENDIX APPELLANT'S ANNEXURES: NIL RESPONDENTS' ANNEXURES:
ANNEXURE R3(a): TRUE COPY OF THE CHARTER ISSUED BY THE MINISTRY OF EDUCATION, LABOUR AND SOCIAL SECURITY OF THE GOVERNMENT OF ST.
CHRISTOPHER AND NEVIS ON 07.05.1998.
/True Copy/ PS To Judge.
rv