Jishalakshi Embrandiri vs Medical Council Of India And Ors. on 5 April, 2006

[Cites 14, Cited by 8]

Delhi High Court

Jishalakshi Embrandiri vs Medical Council Of India And Ors. on 5 April, 2006

1. The Petitioners in these Writ Petitions are aggrieved with the Respondents' insistence upon adherence with their Rule mandating that a student should have attained the age of seventeen years prior to embarking on medical studies. The Petitioners have attended and graduated from Medial Colleges recognized by the Medical Council of India (MCI for brevity) viz., they are bona fide regular students of institutions duly mentioned in Part II of IIIrd Schedule of the Indian Medical Council Act, 1956 (IMC Act for short).

2. In exercise of the delegation of power to make Regulations by virtue of Section 33 of the IMC Act, the MCI has inter alia prescribed in Regulation 4 of Graduate Medical Education, 1997, notified on 4th March, 1997:

4. Admission to the Medical Course "Eligibility Criteria: No Candidate shall be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until:

(1) He/she shall complete the age of 17 years on or before 31st December, of the year of admission to the MBBS course;

(2) He/she has passed qualifying examination as under:-

(a) The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of Physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than the core course for English as prescribed by the National Council for Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education;

Page 1372 Note : Where the course content is not as prescribed for 10+2 education structure of the National Committee, the candidates will have to undergo a period of one year pre-professional training before admission to the Medical colleges;

(b) The intermediate examination in Science of an Indian University/Board or other recognised examining body with Physics, Chemistry and Biology which shall include a practical test in these subjects and also English as a compulsory subject;

(c) The pre-professional/pre-medical examination with Physics, Chemistry and Biology, after passing either the higher secondary school examination, or the pre-university or an equivalent examination. The pre-professional/pre-medical examination shall include a practical test in Physics, Chemistry and Biology and also English as a compulsory subject;

(d) The first year of the three years degree course of a recognized university with Physics, Chemistry and Biology including a practical test in three subjects provided the examination is a "University Examination" and candidate has passed 10+2 with English at a level not less than a core course;

(e) B.Sc. examination of an Indian University, provided that he/she has passed the B.Sc. examination with not less than two of the following subjects - Physics, Chemistry, Biology (Botany, Zoology) and further that he/she has passed the earlier qualifying examination with the following subjects " Physics, Chemistry, Biology and English.

(f) Any other examination which, in scope and standard is found to be equivalent to the intermediate science examination of an Indian University/Board, taking Physics, Chemistry and Biology including practical test in each of these subjects and English.

Note :

The pre-medical course may be conducted either at Medical college or a Science College.

Marks obtained in Mathematics are not to be considered for admission to MBBS Course.

After the 10+2 course is introduced, the integrated courses should be abolished.

3. I had the occasion to consider the various hues of this problem in Brijesh Ranjan v. MCI 108 (2003) DLT 752, in which I had inter alia observed that the stark reality is that in India, admission to Medical Colleges is available only to exceptionally and extraordinarily meritorious students as the competition is extremely keen. Even the obtainment of a First Division is usually not enough to secure admissions to Medical Colleges in India. This position does not obtain in Colleges abroad and so far as unrecognised teaching Colleges are concerned, their primary concern may be to increase their student enrollment. It is in the endeavor to maintain professional excellence and standards that the MCI has prescribed a minimum Page 1373 eligibility criteria of 50% for all students aspiring to become Doctors. As already mentioned, empirical scrutiny reveals that only those students who obtain in excess of 80% stand a possible chance of being selected for a career and a future in the medical profession. Human life has neither substitute nor parallel, and the resolve to ensure greatest proficiency in medical practice needs to be lauded and encouraged. It needs to be reiterated that it continues to be common knowledge that the medical profession remains one of the most popular, respected, remunerative and attractive career choices in India, and therefore entry to a Medical College is a much coveted achievement. Aspirants thereto outnumber the available seats by several scores. The students who have not succeeded in gaining admission to Medical Colleges within India look elsewhere on the Globe to pursue their studies. Given that there is a pressing need for more Medical Colleges in India, pursuing studies abroad should not invite a stigma or disadvantage, provided there is no degradation of academic standards. The erstwhile USSR was one of the countries where Indian students flock for admission in large numbers. The Indian Government had entered into an Understanding with the USSR which envisaged this educational participation. Mr. Maninder Singh, the learned Counsel for the MCI, has contended that after the political dismemberment of the USSR, some of the Medical Colleges have not cared to maintain educational standards, a factor that has greatly and continuously troubled the MCI. The degrees of Doctors who had graduated from such foreign Universities therefore, were not recognized, which led to large-scale litigation.

4. The Supreme Court settled these questions in Medical Council of India v. Indian Doctors From Russia Welfare Association (2002) 3 SCC 696, the relevant paragraphs of which read thus :-

6. In order to regulate the grant of registration to such persons who have completed their degree abroad prior to 15-3-2001, the following guidelines are placed before this Court by the Government of India:

(A) The case of all persons who applied for registration to MCI prior to 15-3-2001 shall be dealt with according to the provisions of the Act as existing prior to the commencement of the IMC (Amendment) Act, 2001 subject to the following:

(i) Those students who obtained degrees where the total duration of study in recognised institutions is less than six years (i.e. where a part of the study has been in unrecognised institutions, or the total length of study in a recognised institution is short of six years), shall be granted registration by MCI provided that the period of shortfall is covered by them by way of additional internship over and above the regular internship of one year. In other words, for such categories of students, the total duration of study in a recognised institution plus the internship, would be seven years, which is the requirement even otherwise.

Page 1374

(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 and 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 fulfill all the conditions laid down in the IMC (Amendment) Act, 2001. In other words, the qualification obtained by them must be a qualification recognised for enrolment as medical practitioner in the country in which the institution awarding the same is situated and they must be fulfillling the minimum eligibility qualification laid down by MCIU 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.

Page 1375

8. The orders of the High Courts shall stand displaced by this order and these appeals shall stand disposed of accordingly. Any proceeding pending in any High Court relating to these matters shall stand withdrawn to this Court and disposed of in the same terms as aforesaid.

5. Reliance has understandably been placed by Mr. Sandeep Sethi, learned Senior Counsel for one of the Petitioners, on the below quoted view expressed earlier by the Division Bench of this Court in Medical Council of India v. Tarun Goel - "There is an over all invigilation by the Medical Council to the standards for entrance for medical courses. But the provisions in the Act confer power and jurisdiction on the Medical Council of India as an expert body to lay down standards for the purpose of imparting medical education and for maintaining uniform standards within the territorial jurisdiction of India only and not with respect to medical institutions outside the country.... The Act nowhere empowers the appellant Council to lay down eligibility criteria for admission to medical institutions outside the country" It is on the strength of those observations that Mr. Sethi has predicated his argument that Regulation 4, which mandates that a student must attain the age of seventeen years in order to be eligible to commence medical studies, applies only to students seeking admissions to Medical Colleges in India. The views of the Division Bench in this decision, however, stand displaced by the last paragraph of Indian Doctors From Russia.

6. Several Contempt Petitions predicated on this decision of the Apex Court in the Indian Doctors From Russia case have been dismissed. In Contempt Petition No. 335/2002 titled Dr. Sanjeev Kumar Bansal v. Dr. M. Sachdeva the Petitioner had obtained only 44.7% marks and had been declined registration. Contempt Case No. 26/2003 titled Jharna Roy v. K.K. Arora in which the Petitioners had not passed the 12th Class and Contempt Petition No. 309/2003 titled Dr. Rahul Kumar Singla v. Dr. P.C. Kesvan Kutty Nair and Contempt Petition No. 310/2003 titled Dr. Rajeev Kumar Gupta v. Dr. M. Sachdeva where the Petitioner did not possess 50 per cent marks in Physics, Chemistry and Biology, had been visited with the same result. It needs to be remembered that the dismissal of a Contempt Petition does not invariably and inexorably indicate that the legal propositions on which such actions were predicated were incorrect. The only inference that can legitimately be drawn is that the Court did not view the alleged contemnors' decision or action as contemptuous, possibly because two understandings were permissible in the circumstances of the case. However, an application had been filed in Indian Doctors From Russia by a person named Sanjay Kumar (IA 9-10/2002) asserting that he would be eligible to the exemption carved out therein even though he fell in both paragraphs 6 A (i) and (ii); the application was dismissed without granting relief. In these circumstances the conclusion appears to be that the Apex Court did not favor any condensation or relaxation Page 1376 in such cases. I had the occasion to consider the maintainability of a writ petition in the wake of the dismissal of a petition under Article 32 of the Constitution in Namit Bhargava (Dr.) v. Medical Council of India 2004 (77) DRJ 376. The conclusion was that the second petition should not be entertained.

7. In Brijesh Ranjan it had been held that those Doctors who had not attended Institutions/Colleges recognized by the MCI would be ineligible to appear in the Screening Tests held under the aegis of the MCI. The dispute was carried to the Division Bench by way of a Letters Patent Appeal, which came to be rejected on the rationale that the citizens "of this country cannot be asked to get treatment from persons who are not duly qualified" Courts have consistently held this view, inter alia in opining that where specialities are concerned, reservations for SC & ST candidates would have no role to play. Courts have been steadfast in recommending that special monetary benefits should be extended to SC, ST and OBC students together with age relaxation, rather than lower minimum standards.

8. The challenge to the legality of the 17 year criteria has been rejected by the Division Bench in CWP No. 4353 of 2003 titled Mohit Kumar Arora v. University of Delhi by a detailed Judgment on 11th July, 2003. After discussing numerous precedents of the Apex Court as well as other High Courts the Division Bench had opined that the "requirement of age, both minimum and maximum, is mandatory and not directory. In professional courses the authorities thought it proper to have proper maturity and understanding of the course by the candidate and have the requirement to prescribe the age and it is based on intelligible differentia. There is an objective to be achieved. The classification of 17 years is based on rational aspect." A Full Bench presided over by Chief Justice J.S. Verma (as the Learned Chief Justice of India then was) has, in similar vein, observed in Gautam Kapoor v. State of Rajasthan that the "minimum age of 17 years for entry into a Medical College cannot be called unreasonable or arbitrary"

9. Anxiety over possible stumbling-blocks to the future of students aspiring to practice as Doctors in India after pursuing medical studies in foreign Universities has been assuaged in large measure by the requirement of obtaining an Eligibility Certificate prior to the commencement of studies abroad post 15.3.2002. The MCI would now be expected and empowered to issue these Certificates only if the applicant has (a) attained the age of seventeen years, (b) has passed 10+2 in the prescribed subjects with the required minimum percentage (50 per cent) and (c) intends to pursue studies in a foreign University which has been duly mentioned and recognized in the IMC Act. I am unable to accept the contention of learned counsel appearing for the Petitioners that the prescription of 17 years had been introduced only in 1997 and is, therefore, not binding on persons who had commenced their studies prior thereto. Learned counsel for the MCI has filed Recommendations adopted by the MCI in February, 1971 onwards, and Regulations from October,Page 1377 1978 onwards explicitly requiring that a candidate should have completed the age of 17 years at the time of admission or should have completed that age on or before 31st December of the year of his admission.

10. A second salvo was sought to be fired on the endeavor of the MCI to maintain academic standards by assailing the legality of the Screening Test Regulations, 2002, formulated in exercise of the powers conferred by Section 33 of the IMC Act, in Sanjeev Gupta v. Union of India . In the course of repelling this assault, the Supreme Court had taken note of the Resolution of the General Body of the Medical Council of India which met on 31.3.2000. By means of interim Orders dated 17.4.2000 the Apex Court had approved this Resolution whilst carrying out modifications to Clause (vii). Clause (i) and (vi) of the Resolution dated 31.1.2000 inter alia prescribes that students should have obtained not less than 50 per cent marks in Physics, Chemistry and Biology in the 10+2 School Leaving Examination. The Apex Court observed, inter alia, as follows --

48. MCI is the expert body which can lay down the criteria for grant of permanent registration to a person to practise medicine and involving himself in the patient care and management. Otherwise also we are not inclined to permit the petitioners to practise medicine overriding the provisions of the Act as the Court has to take into consideration the interest of the public at large as well. A person who is not duly qualified as prescribed by MCI cannot be permitted to involve himself in public health care and play with the lives of human beings. It is not for this Court to decide as to who is duly qualified to practise medicine. MCI being the expert body is the best judge to do so....

11. Mr. Maninder Singh, Learned Counsel for the MCI has conceded, very fairly and quite correctly, that whilst repelling the assault on the Screening Test the Hon'ble Supreme Court had not, in any manner, diluted paragraph 6 of their previous Judgment in Indian Doctors From Russia. It is in this backdrop that the Court has to consider the pleas of the Petitioners.

12. Ms. Jishalakshmi [WP(C) No. 18660/2005] is an Indian citizen born in December, 1980 to Indian parents domiciled and teaching in Nigeria. She has received her education in that country all throughout. In 1995 she successfully appeared in the Central Board Examination of Nigeria which, it is stated, corresponds to the 10+2 Board Examination in India. In that very year she appeared for the qualifying Examination JAMB (Joint Admission and Matriculation Board) and got admission to the MBBS Course which is stated to require six years regular studies in the College of Medicine, University of Lagos, Nigeria. It has been asseverated in the Petition that the said Institution is a universally recognized and reputed Medical College which finds inclusion in the World Directory of Medical Schools published by the World Health Organisation (WHO) and finds mention in the Certificates/Diplomas approved under the IMC Act. She was awarded thePage 1378 MBBS Degree in 2002 and has thereafter completed her compulsory one year housesurgency, in conformity with the Nigerian system. In other words, her academic studies in medicine have spanned over seven years, which is more than the requirement in India. In March, 2005 she applied for appearing in the Screening Test but was found ineligible as she did not meet the age criteria of 17 years. She had entered medical studies at the age of 15 years which is permissible according to the Regulations applicable in Nigeria. Interim Orders had been passed on 23.9.2005 permitting her to appear in the Screening Test and the Results thereof have been kept in a Sealed Cover. In my opinion her predicament cannot justly be placed on the same platform of those students who, having failed to meet the minimum academic criteria, have elected to pursue studies abroad. Ms. Jishalakshmi was domiciled in Nigeria and, in the ordinary course of events, commenced and completed her studies in that country. It would be unacceptably chauvinistic for the Respondent to presume that the standards laid down by them must be adhered to by one and all across the Globe. This is, in my understanding, exactly what the Hon'ble Supreme Court had in mind when, in paragraph 6(c) of Indian Doctors From Russia their Lordships had permitted those persons not falling within the beneficial parameters of paragraph 6 A(i) and (ii) to appear in the Screening Test for the purpose of registration provided they fulfillled the conditions laid down in the IMC (Amendment Act) 2001, so long as they possessed a qualification recognised for enrollment as a medical practitioner in the country in which the Institution awarding the same is situate. It is one thing to say that the MCI cannot go behind a foreign degree; but quite another to hold that if a person who was regularly residing in a foreign country, and who fulfillled all criteria established in the country of his/her domicile, he/she would nevertheless not be entitled to enjoy the benefits of the academic/professional qualifications on return to his/her own country. It is indeed significant that the only objection taken by the Respondent pertaining to the Petitioner is that she was less than 17 years when she commenced medical studies, and not that she had cleared her schooling at the age of fifteen years only which would not be possible if the curriculum in Nigeria was exactly equatable with the 10+2 system. This is rightly so because there is no embargo in Nigeria so far as the age factor and number of years of formal study at the School leaving stage. The observations of the Supreme Court in paragraph C of the Indian Doctors From Russia also appear to come to the assistance of the Petitioner. Since the educational institution which the Petitioner has attended is duly recognized by the MCI, and since she has an undisputable right to practice as a Doctor in Nigeria, and since her right to practice as a Doctor is dependent on her success in the Screening Test, she must be held to be eligible to be registered as a Medical Practitioner conditional on her clearing the Screening Test.

13. It should also be clarified that while holding so, I am fully mindful of the observations of the Apex Court in Krishna Priya Ganguly v. University of Lucknow , A.P. Christian Medical Society v. Government of A.P. Page 1379 and C.B.S.E. v. P. Sunil Kumar .

14. Shri Sunil Kumar [WP(C) No. 29/2006] had gained admission to a Russian Medical College duly recognized by the MCI in 1996. He qualified the MBBS in 2002; appeared and qualified the Screening Test on 8.4.2005 and applied to the MCI for registration as a Medical Practitioner on 15.4.2005. Sunil Kumar's contention is that the only obstacle in his path as conveyed to him by the Respondents is that he had not attained the age of 17 years by December, 1996. The Petitioner has been allowed by the Respondent to appear in the Screening Test and has also passed it. The whole purpose behind the Screening Test is to assess the knowledge and aptitude of the student. To deny such a person the labours of his study in a recognised Medical Institution even if it is outside India, and the fruits of his having cleared the Screening Test, is judicially unpalatable. In my view, the Petitioner is entitled to relief in respect of his perceived disqualification on the only ground of having embarked on his studies before he had reached the age of 17 years, in terms of paragraph 6 of Indian Doctors From Russia. The MCI is directed to grant him registration to practice as a Doctor in India.

15. In Sudesh Kumar Singh [WP(C) No. 4488/2006] the Petitioner had already been allowed to appear in the Screening Test in October, 2003 and thereafter in September, 2005. Unfortunately for him, he has not succeeded in clearing the Test. On his applying for the third time in March, 2006 he has been informed by the National Board of Examination that since he had not completed the 17 years of age on 1.9.1995 he did not fulfill the eligibility criteria for registration as a Medical Practitioner in India. There is no controversy that the College which he had attended, namely, Saint Petersburg State Medical Academy stands duly recognised by the MCI. After hearing Counsel for the parties, Interim Orders had been passed on 24.3.2006 permitting him to appear in the Screening Test scheduled for 26.3.2006. In the course of those hearing the only objection which had been articulated was that the Petitioner had not attained the age of 17 years at the relevant time. This Petitioner therefore finds himself in the same position as the foregoing Sunil Kumar and is entitled to the same treatment. The MCI is accordingly directed to grant registration to the Petitioner to practice as a Doctor in India on his clearing the Screening Test.

16. Parties to bear their respective costs.

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