Kerala High Court
Medical Council Of India (Mci) vs /Petitioners & on 1 October, 2012
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 29TH DAY OF AUGUST 2014/7TH BHADRA, 1936
WA.No. 1981 of 2012 () IN WP(C).23676/2011
--------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 23676/2011 of HIGH COURT
OF KERALA DATED 01-10-2012
APPELLANT(S)/2ND RESPONDENT:
--------------------------------------------
MEDICAL COUNCIL OF INDIA (MCI),
REP BY ITS SECRETARY, SECTOR 8, POCKET 14,
DWARKA, NEW DELHI - 110 077.
BY ADV. SRI.TITUS MANI VETTOM, SC,
MEDICAL COUNCIL OF INDIA
RESPONDENT(S):/PETITIONERS & RESPONDENT NOS.1 & 3
----------------------------
1. PRAVEEN KUMAR.M., AGED 25 YEARS
S/O.MASILAMANI C,
15/2C-4 GOPALA KRISHNA COLONY
PERIYAR NAGAR, KRISHNAGIRI, TAMILNADU-635 001.
2. GULJIT SINGH, AGED 27 YEARS
S/O. AVATAR SINGH, NO.102, VILLAGE - JANSUHA,
JANSUHI P.O., AMBALA
HARYANA - 361 328.
3. NISHA SURESH, AGED 25 YEARS
D/O.SURESH, SHANIVAS
MANGAD P.O., KOLLAM - 691 015, KERALA.
4. URVASHI DATTATREY GOSWAMI, AGED 24 YEARS
D/O.DATTATREY BALAVANTPURI GOWSAMI
URVASHI DATTATREY GOSWAMI
C/O.DR.D.B GOSWAMI, URVASHI HOSPITAL,
OPP.BUS STATION
VERAVAL -362 265, JUNAGADH , GUJARAT.
WA 1981/12
5. R.VINOD PRAKASH, AGED 25 YEARS
S/O.A.ROSEBIN, 6-1, NEAR R.C.CHURCH
MULAGUMOODU, MULAGUMOODU P.O., KANYAKUMARI,
TAMILNADU - 629 167.
6. BINI P.B, AGED 27 YEARS
D/O.P.P.BALAN, PERUMPULLISSERY HOUSE
BLANGAD P.O., CHAVAKKADU,
THRISSUR - 680 506, KERALA.
7. DEEPIKA VERMA, AGED 27 YEARS
D/O.S.H.SAGAR MAL VERMA, A-173
ASHOK VIHAR (KARAMCHARI COLONY),
ALWAR (RAJ) 301 001.
8. JIGNESH RAJESHBHAI SOJITRA, AGED 25 YEARS
S/O.REJESHBHAI K. SOJITRA
"AMRUT" 4-GEETANAGAR MAIN ROAD
B/H SWAMINARAYAN, GURUKUL, DHEBAR ROAD
RAJKOT -360 002 GUJARAT.
9. PRATIK PRAVINBHAI BUDDHADEV, AGED 27 YEARS
S/O.PRAVINBHAI K.BUDDHADEV
"RAGUVIRA" 2-JALARAM PLOT,
OPP.RUNY-TARANG APARTMENT
UNIVERSITY ROAD, RAJKOT - 360 007, GUJARAT.
10. S.M.SHERIN JOE, AGED 25 YEARS
S/O.S.SATHIYA RAJMONI, 12/51
APATTUVILAI, MULAGUMOODU P.O., KANYAKUMARI
TAMILNADU 629 167.
11. MIRUNALINY MURUGESAN,
D/O.DR.R.S MURUGESAN
YASODHA NURSING HOME, KANNARA STREET,
MUTHUPET - 614 704
THIRUVARUR, TAMILNADU.
12. BIJU BRIGHT, AGED 38 YEARS,
S/O. J.BRIGHT, JIJO HOUSE
AVANKUZHY, NELLIMMOODU P.O.
THIRUVANANTHAPURAM - 695 524.
13. DHARANI, AGED 26 YEARS
D/O.PERAMAIYAN, 12-PILLAIYAR KOIL STREET
MADUKKUR-614 903, THANJAVUR, TAMILNADU.
14. HARIPRIYA ISWARRAM, AGED 25 YEARS
D/O. K.B.ISWARRAM
NO.A-20/2 (OLD NO.A 34/2)
V-STREET, PERIYAR NAGER
CHENNAI 600082, TAMILNADU.
WA 1981/12
15. JAI GANESH, AGED 26 YEARS
S/O.SHANMUGARAJ, 183/461,
KONNUR HIGH ROAD, AYAIYARAM
CHENNAI-600 023, TAMILNADU.
16. MILI SINHA,, AGED 25 YEARS
D/O. ARUN KUMAR SINHA, M-183, SECTOR -12,
PRATAP VIHAR, GHAZHIABAD -201 009,
UTHARPRADESH.
17. ANITHA THOMAS, AGED 27 YEARS
D/O.THADTHIL AUGUSTINE, THOMAS
THADATHIL HOUSE, KANAKAPALAM P.O., ERUMELY,
KOTTAYAM - 686 531.
18. ANJU KRISHNADAS NAIR, AGED 26 YEARS
D/O. KANNATH KRISHNADAS NAIR
FLAT 7 D, SKYLINE OCEANIC,
NEAR BEACH ROAD, SILK STREET,
KOZHIKODE, KERALA, PIN - 673 117.
19. NIRMAL RAJ SELVARAJ NANUACHARY, AGED 28 YEARS
S/O.NANUACHARY SELVARAJ
SREE RAGAM, THRUKKOVIL VATTOM P.O. MUKHATHALA,
KOLLAM, KERALA - 691 577.
20. KARL ASTAD MEHTA, AGED 25 YEARS
S/O. ASTAD JAMSHED, METHA
VATCHA GANDHI BUILDING,
FLAT NO.4, 2ND FLOOR,
BANARJI FIRE TEMPLE COMPOUND, THAKURDWAR
MUMBAI - 400 002.
21. UNION OF INDIA
REP.BY ITS SECRETARY
MINISTRY OF HEALTH & FAMILY WELFARE
NEW DELHI - 110 001.
22. UNIVERSAL EMPIRE INSTITUTE OF MEDICAL
SCIENCES PVT.LTD.
"POOJA" MOSQUE LANE, SRM ROAD,
KOCHI -682 018.
*Addl.R23. INTERNATIONAL UNIVERSITY OF THE
HEALTH SCIENCES,
ST.KITTS CAMPUS, BRANNIGAN HOUSE,
P.O.BOX 1267,
WIGLEY AVE. & WILKIN ST.BASSETERRE,
ST.KITTS, WEST INDIES.
WA 1981/12
**Addl.24. BOMBAY HOSPITAL
12 NEW MARINE LINES,
MUMBAI - 400 020.
*ADDL. R23 IS IMPLEADED SUO MOTU AS PER ORDER DATED 07/01/2013
IN WA 1981/2012.
**ADDL. R24 IS IMPLEADED SUO MOTU AS PER ORDER DATED
02/04/2013 IN WA 1981/2012.
R1 TO 20 BY ADV. SRI.G.SHRIKUMAR (SR.)
R1 TO 20 BY ADV. SRI.SHAJI P.CHALY
R1 TO 20 BY ADV. SRI.S.GOPAKUMAR
R21 BY ADV. SRI.N.NAGARESH,ASG OF INDIA
R22 BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)
R22 BY ADV. SRI.T.A.SHAJI (SR.)
R24 BY ADV. SRI.SREEKANTH S.NAIR
R24 BY ADV. SMT.N.G.SINDHU
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2014,
ALONG WITH W.P.(C) NOS.435, 637 OF 2009 AND 6152 OF 2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA 1981/12
APPENDIX
APPELLANT(S)' ANNEXURES
ANNEXURE A-1 : COPY OF APEX COURT JUDGMENT DATED 22.02.2012
IN C.A.2454/12 (VINAYAKA UNIVERSITY'S CASE)
ANNEXIRE A-2 : COPY OF MCI LETTER NO.203/T-10-
103971/2012/REGN/138821/138823 DATED 17.10.12 ISSUED TO INDIAN
CONSULATE GENERAL.
ANNEXURE A-2(a) : COPY OF MCI LETTER NO.203/T-11-
100083/2010/REGN./138824/138826 DATED 17.10.2012 ISSUED TO
INDIAN CONSULATE GENERAL.
ANNEXURE A-3 : COPY OF JUDGMENT DATED 20.02.2007 OF DIVISION
BENCH OF THE HON'BLE MADRAS HIGH COURT IN WP 8029/06.
ANNEXURE A-4 : COPY OF MCI NORMS ON REQUIREMENTS TO BE
FULFILLED BY APPLICANT COLLEGES FOR OBTAINING LOI & LOP FOR
ESTABLISHMENT OF NEW MEDICAL COLLEGES AND YEARLY RENEWALS
UNDER SEC.10A OF THE IMC ACT, 1956, APPROVED BY CENTRAL GOVT.
VIDE LETTER DATED 04.05.2000.
ANNEXURE A-5 : COPY OF THE WRITTEN SUBMISSIONS OF R-23.
RESPONDENT(S)' ANNEXURES
ANNEXURE-R23(a) : PLEADINGS OF RESPONDENT NO.23 -
INTERNATIONAL UNIVERSITY OF THE HEALTH SCIENCES.
ANNEXURE-R23(b) : COPY OF CERTIFICATE ATTESTING THAT THE
TERMS AND CONDITIONS OF CHARTER GRANTED TO R23 ARE IN FULL
EFFECT.
ANNEXURE-R23(c) : COPY OF CHARTER ISSUED BY THE MINISTRY OF
EDUCATION, LABOUR AND SOCIAL SECURITY OF THE GOVERNMENT OF
ST.CHRISTOPHER AND NEVIS TO R23 ON 07.05.1998.
//TRUE COPY//
PA TO JUDGE.
jg
THOTTATHIL B.RADHAKRISHNAN &
P.B.SURESH KUMAR, JJ.
....................................................................
W.A.No.1981 of 2012
and
WP(C) Nos.435, 637 of 2009 & 6152 of 2012
....................................................................
Dated this the 29th day of August, 2014.
J U D G M E N T
Thottathil B.Radhakrishnan, J.
1.The captioned writ appeal is by the Medical Council of India, 'MCI', for short. The writ petitions linked up with that writ appeal also relate to issues which are intricately arising for decision in the writ appeal. Heard the respective counsel appearing for all the parties.
2.Private respondents in the writ appeal hold degree of Bachelor of Medicine and Bachelor of Surgery awarded by the International University of the Health Sciences, which is an authority authorised to establish a University (School of Medicine) in St.Christopher and Nevis, West Indies for teaching of medicine with the right to confer Degrees of Doctors of Medicine after successful WA 1981/12, WP(C) 435, 637/09 & 6152/12 -2- completion of required number of years of study. Such authority was granted by the Government of St.Christopher and Nevis, West Indies. Such authorisation, going by the materials on record, carried with it the stipulation that the Degrees, which that University confers on its students, shall be and are recognized by the Government of St.Christopher and Nevis, West Indies, and shall entitle such graduates to practise in St.Christopher and Nevis, West Indies, subject to any local laws relating to immigration, work permits and admission to practise. They are shown to have acquired instructions, including in theory, clinicals, etc., through an Institution by name 'Universal Empire Institution of Medical Sciences Private Limited'. At the relevant time, that private limited company had some facilities in Ernakaulm, and it is shown that for further clinicals, etc., the students had facility at Bombay Hospital Trust, Mumbai. Issues arose as to whether such students, on obtaining the degree from the aforenoted International University of the Health Sciences, were eligible to appear for screening test, in terms of the Screening Test WA 1981/12, WP(C) 435, 637/09 & 6152/12 -3- Regulations, 2002, "STR 2002", for short, framed by the MCI in exercise of powers conferred under Section 33 of the Indian Medical Council Act, 1956, 'the Act', for short. The learned single Judge allowed the writ petition filed by them and directed that they be granted provisional registration, and procedure has to be extended in terms of STR, 2002.
3.Taking the writ appeal of the MCI on board and admitting it, we noted that the Division Bench had issued orders impleading the International University of the Health Sciences, St.Kitts, West Indies and requiring that Institution to place its views. Thereafter, by a different order, the Bench had impleaded Bombay Hospital, 12 New Marine Lines, Mumbai - 400 020, where the students had practical classes, going by the pleadings. With passage of time, affidavit is placed on behalf of the Bombay Hospital and a detailed write up is placed by the Dean of Academic Affairs, School of Medicine, International University of the Health Sciences, St.Kitts, West Indies, as addressed to the Registrar General of the High WA 1981/12, WP(C) 435, 637/09 & 6152/12 -4- Court of Kerala. We treat all those materials as pleadings on behalf of the respective respondents as duly authorised and authenticated. Such pleadings of the International University of the Health Sciences, St.Kitts are accompanied by two certificates; one attesting that the terms and conditions of charter granted to the International University of the Health Sciences School of Medicine by the Government of St.Christopher and Nevis, are still in full effect, and the other a 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 authorising and empowering the International University of the Health Sciences as noted above and declaring the eligibility of graduates from that Institution to practise in St.Christopher and Nevis, West Indies. For the purpose of convenience, we note the pleadings of the International University of the Health Sciences as Annexure-R23(a) and the other two documents as Annexure- R23(b) and Annexure-R23(c), respectively, to the paper book in the writ appeal. They will be numbered and incorporated, WA 1981/12, WP(C) 435, 637/09 & 6152/12 -5- appropriately, by the court officer, in terms of this judgment.
4. Going by the materials noted above, the fact of the matter remains that the International University of the Health Sciences is an Institution, which is authorised by the Government of St. Christopher and Nevis, West Indies, to establish and act with authority to teach subjects leading to the conferment of degrees of MBBS, which would entitle persons possessing such degrees to practise within the territory of the Government of St.Christopher and Nevis, West Indies, subject to the local laws. That being so, the private respondents in the writ appeal have shown that they have obtained medical qualification granted by a medical institution in a country outside India recognised for enrolment as medical practitioner in that country. Their eligibility for being enrolled as a medical practitioner in the medical register maintained under the provisions of the Act stands governed by Section 13(4A) of the Act. There is a prohibition for registration of such persons, unless they qualify in the screening test in India. WA 1981/12, WP(C) 435, 637/09 & 6152/12 -6- The screening test is to be conducted in terms of STR, 2002.
5. Before proceeding further, we may note that sub Section (4A) of the Act was introduced in Section 13 as per Act 34 of 2001 with effect from 03.09.2001. Clause (ma) was introduced in Section 33 of the Act as per that amending Act. That gave power to the MCI to frame rules as to the modalities for conducting screening tests for the purpose of, among other things, sub Section (4A) of Section 13 of the Act. It is in exercise of this power that STR 2002 were made by the MCI vide notification published on 18.02.2002. Clause "(f)" of Regulation 2 of STR 2002 defines "primarily medical qualification", which reads as follows:-
"(f) Primary Medical qualification" means a medical qualification awarded by any medical institution outside India which is a recognized qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated and which is equivalent to MBBS in India."
WA 1981/12, WP(C) 435, 637/09 & 6152/12 -7-
6.Regulation 4 of STR 2002 provides eligibility criteria and the requirement in consonance with the said regulations.
7.The situation obtained is that the private respondents in the writ appeal, who were the writ petitioners, were entitled to apply in terms of STR 2002.
8.By notification dated 25.09.2009, the eligibility criteria got modified. It again got modified by yet another notification dated 16.04.2010, whereby clause (3) was added to Regulation 4. The relevant provision that governs the case in hand, is that which applied from 2002 to 25.09.2009. That reads as follows:-
"(1) he/she is a citizen of India and possesses any primary medical qualification, either whose name and the institution awarding it are included in the World Directory of Medical Schools, published by the World Health Organisation; or which is confirmed by the WA 1981/12, WP(C) 435, 637/09 & 6152/12 -8- 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."
It is also worthwhile to note that the aforenoted amendment of 2010 came into operation only after the writ petitioners had obtained the degrees, that too, in terms of the rules, which governed the situation as of then.
9.In the light of the aforenoted provisions, a person, who is a citizen of India, possessing any primary medical qualification as defined in the definition clause of STR, 2002, is eligible to apply for the screening test, if he/she satisfies the conditions read above. This is, shortly, the conclusion arrived at by the learned single Judge. We see no legal infirmity in this.
10.Be that as it may, we note that anticipating reference being made to the decision of the Apex Court in Medical Council of India v. WA 1981/12, WP(C) 435, 637/09 & 6152/12 -9- J.Saai Prasanna and Others [(2011) 11 SCC 748], the learned standing counsel for the MCI argued that the said decision was passed per incuriam or even sub-silentio, insofar as interpretation and application of relevant statutory provisions are concerned. He dilated on the law relating to precedents and the doctrines of per incuriam, and, sub-silentio, making reference to certain passages from the classic work of Salmond on Interpretation of Statutes. We think that such an exercise is unnecessary for us to decide the case in hand. Primarily, Saai Presanna (supra) was decided by the Honourable Supreme Court dealing with two sets of students. One set had completed the course and had obtained the degrees by availing instructions, exclusively, outside India. The other group had a stint of an year or so in Guntur in Andhra Pradesh and the remaining portion of their instruction outside India. That precedent may be relevant only to the extent it says that the regulations at that point of time never insisted that any part of the instructions or the whole of the instructions has to be carried on outside India. We do not have to rely on that decision WA 1981/12, WP(C) 435, 637/09 & 6152/12 -10- to support the judgment of the learned single Judge, on other counts, as stated by us hereinabove.
For the aforesaid reasons, the writ appeal fails and it is, accordingly, dismissed. As a necessary consequence, the petitioners in the captioned writ petitions are entitled to the reliefs prayed for, at par with what has been granted by the learned single Judge in WP(C) No.23676 of 2011 from which W.A.No.1981 of 2012 arises. Those writ petitions are allowed to the aforesaid extent. The judgment of the learned single Judge and the directions herein shall be complied with. MCI will do the needful in terms of the administrative requirements.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (P.B.SURESH KUMAR, JUDGE) jg