Jammu & Kashmir High Court - Srinagar Bench
Hadiya Chisti vs Union Of India & Ors on 4 December, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.2044/2018
CM NBo.6684/2019
Reserved on: 20.11.2019
Pronounced on: 04.12.2019
Hadiya Chisti ...Petitioner
Through: -Mr. Jahangir Iqbal Ganai, Sr. Advocate
with Ms. Humaira Shafi, Advocate
Vs.
Union of India & Ors.
...Respondents
Through:-Mr. T. M. Shamsi, ASGI-for R1
Mr. Irshad Mohi-ud-din, Advocate-for R3
None for R2 & R4
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1) Petition in hand poses a unique problem calling for a unique resolution by this Court. This petition has arisen out of refusal by the respondent No.3 to permit the petitioner to appear in the Foreign Medical Graduate Examination/Screening Test conducted by the National Board of Examination i.e. respondent No.3, for want of eligibility certificate issued by respondent No.2 in favour of the petitioner. It may be noted that, because of intervention of this Court shown from time to time in this petition, the petitioner has been provisionally allowed to sit in the Screening Test - Session 2019. She is stated to have obtained 156 marks out of 300 and qualified the Screening Test. This has been taken note of by this Court in its interim order dated 11.09.2019. Since the participation of the petitioner in the Screening Test was on provisional basis and pursuant to the interim direction passed by this MOHAMMAD ALTAF BHAT 2019.12.04 16:35 Court, as such, the issues raised in this petition are required to be I attest to the accuracy and integrity of this document 2 OWP No.2044/2018 determined to find out as to whether petitioner is entitled to be enrolled on the Medical Register maintained by the State Medical Council or in the Indian Medical Register, as the case may be. The issues raised in this petition for determination are significant in view of the peculiar position of a part of Indian territory which is under the occupation and administrative control of Islamic Republic of Pakistan and is referred to as Pak Occupied Kashmir "POK".
2) Before this Court proceeds to deal with the issues raised in this petition, it would be necessary to take note of contextual facts leading to the filing of this petition.
3) The petitioner is a permanent resident of State of Jammu and Kashmir (now Union Territory of Jammu and Kashmir) and, therefore, a citizen of India. She qualified her 10+2 examination from J&K State Board of School Education, Srinagar. She being eligible to undergo MBBS degree, applied to Mohtarma Benazir Bhutto Shaheed Medical College, Mirpur (hereinafter referred to as the Medical College), situated in POK. She got admission and pursued her MBBS course in the aforesaid Medical College. It is not disputed before this Court that the Medical College aforesaid is recognized by Pakistan Medical and Dental Council (PM&DC), an equivalent of Medical Council of India. The College is also stated to be listed under Foundation for Advancement of International Medical Education Research (FAIMER). In short, it is not in dispute that the medical college, wherefrom petitioner has obtained her MBBS degree, is a recognized medical college in Islamic Republic of Pakistan. The correspondence between High Commission of MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 3 OWP No.2044/2018 India at Islamabad with the Government of Pakistan bears testimony to the aforesaid facts.
4) It appears that in anticipation of her completing MBBS degree, the petitioner applied to respondent No.2 for issuance of eligibility certificate under Section 13(4B) of the India Medical Council Act, 1956 (hereinafter referred to as the Act of 1956). While the request of the petitioner was pending consideration of respondent No.2, the petitioner qualified MBBS course and was awarded the requisite degree by the Medical College. It further appears that the respondent No.2, with a view to accord consideration to the request of the petitioner for issuance of requisite eligibility certificate, approached Consular, High Commission of India at Islamabad, for verification of MBBS qualification of the petitioner and also to find out as to whether the said qualification awarded by Medical College, Mirpur, was recognized for enrolment as medical practitioner in Pakistan. The matter was, accordingly, taken up by Indian High Commission at Islamabad with the Ministry of Foreign Affairs, Government of Islamic Republic of Pakistan, Islamabad, and the later vide its communication dated 6th July, 2017, intimated to the Indian High Commission at Islamabad that the MBBS degree awarded by Medical College, Mirpur, which is affiliated with University of AJ&K, Muzaffarabad, Pakistan, is a recognized qualification and the petitioner is registered with PM&DC vide registration No.4041-F. It was further clarified that the the graduates from the Medical College, Mirpur, wherefrom petitioner has obtained MBBS degree, are entitled to practice in the specialty concerned in Pakistan.
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5) Before final decision on the request of the petitioner could be taken by the respondent No.2, the respondent 2 and 3 issued a press note, bringing it to the notice of all Indian citizens possessing a primary medical qualification awarded by any medical institution outside India, who are desirous of getting provisional or permanent registration with Medical Council of India or State Medical Council on or after 15th March, 2002, that they were to mandatorily qualify a Screening Test to be conducted by respondent No.3 as per the provisions of the Act of 1956 read with Screening Test Regulations, 2002. In the press note, it was also mentioned that the screening test would be conducted twice a year as per the Schedule or Examinations to be announced by respondent No.3. With regard to eligibility of the candidates to participate in the screening test, it was indicated in the following manner:
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 Organization or which is confirmed by the Indian Embassy concerned to be a recognized qualification for enrolment as medical practitioner in the country in which 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 who have acquired the medical qualification from foreign medical institutions or have obtained admission in foreign medical institution before 15th March, 2002.MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 5 OWP No.2044/2018
6) The petitioner, as is claimed by her, was meeting the first eligibility requirement as the Medical College, Mirpur, was included in the World Directory of Medical Schools published by World Health Organization and also it had been confirmed by Indian High Commission at Islamabad that the qualification of MBBS obtained by the petitioner was a recognized qualification for enrolment as Medical Practitioner in Pakistan. She, however, was not fulfilling the second eligibility requirement, i.e. she had not obtained eligibility certificate from respondent No.2 in terms of Foreign Medical Institution Regulations, 2002. She had obtained her qualification post 15 th of March, 2002.
7) Apprehending that she would not be permitted to sit in Foreign Medical Graduate Examination FMGE)/Screening Test to be conducted by respondent No.3 on 14th of December, 2018 because of her above noted ineligibility, the petitioner approached this Court by way of instant petition on 26th of October, 2018. The writ petition has been contested by the respondents and the separate objections have been filed by respondent No.1 and 3. The respondent No.2 and 4, however, have not filed their objections. During the course of arguments, Mr. T. M. Shamsi, ASGI, appearing for respondent No.1 and Mr. Irshad Mohi-ud-din, appearing for respondent No.3, have stated at bar that the stand of respondent No.2 would not be different from the stand which the respondent No.1 and 3 have taken in their objections.
8) Ordinarily, this Court could have given further opportunity to respondent No.2 also to place on record its stand but keeping in view the nature of controversy involved, which essentially pertains to the career of a MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 6 OWP No.2044/2018 girl, this Court has, with the consent of appearing counsel for the parties, taken up this matter for final disposal at this stage.
9) I have heard learned counsel for the parties and also perused the record.
10) The facts, as noted above, are not in dispute. Petitioner is a citizen of India and has obtained MBBS degree from a Medical College, which is situated within the territory of India. There could be no dispute that the area known as 'POK' is an integral part of India, though the same is under the occupation and administrative control of Islamic Republic of Pakistan. At this juncture, it would be worthwhile to note few Constitutional provisions affirming the status of 'POK' as integral part of India. Article 1 contained in Part I of the Constitution of India defines the territory of the Union known as 'Bharat' and reads thus:
1. Name and territory of the Union. - (1) India, that is Bharat, shall be a Union of State.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise--
(a) The territories of the State;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.
11) As is apparent from plain reading of Article 1 (supra), the Constitution describes 'Bharat' as Union of States and thus implying the indestructible nature of its unity. The States and the territories of India shall be as specified in the First Schedule. Article 1(3) provides that the territory of India shall comprise--
(a) The territories of the States;
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(b) The Union territories specified in the First Schedule; and
(c) Such other territories as may be acquired
12) The erstwhile State of Jammu and Kashmir figured at serial No.15 of Schedule-I of the Constitution and comprised of the territory, which, immediately before the commencement of the Constitution of India was comprised in the Indian State of Jammu and Kashmir. The entry pertaining to the State of Jammu and Kashmir, as it existed in Schedule-I, reads as under:
15. Jammu and Kashmir The territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir.
13) Now the question is what was territory of erstwhile State of Jammu and Kashmir which became part of Indian Union. Section 4 of the Constitution of Jammu and Kashmir, 1957, defines this territory to comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State. Section 4 of the Constitution of Jammu and Kashmir, 1957, also deserves to be reproduced hereunder:
4. Territory of the State.--The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.
14) From the historical documents available, the territory of the State which was under the sovereignty and suzerainty of the Ruler of the State, Maharaja Hari Singh, on 15th day of August, 1947, was comprising of 14 districts :
Kathua, Jammu, Udhampur, Anantnag, Baramulla, Poonch, Mirpur, Muzaffarabad, Leh & Ladakh, Gilgit, Gilgit Wazarat, Chillas and tribal territories. It is not in dispute that the districts of Mirpur, Muzaffarbad, Gilgit MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 8 OWP No.2044/2018 and Gilgit Wazarat etc. now constitute the area which is under the unauthorized occupation and administrative control of Islamic Republic of Pakistan and is known as 'POK'. That being the Constitutional position with regard to the territory which is now known as 'POK' and which includes the district of Mirpur, where Mohtarma Benazir Bhutto Shaheed Medical College is situated, it is a foregone conclusion that the petitioner has acquired the qualification of MBBS from within the State of India and not outside India.
This position continues even after the enactment of The Jammu and Kashmir Reorganization Act, 2019 ('The Act' hereinafter), which came into force with effect from 31st of October, 2019. The Act has bifurcated the erstwhile State of Jammu and Kashmir into Union Territory of Jammu and Kashmir and Union Territory of Ladakh. This is apparent from Section 3 of the Act. In terms of Section 6 of the Act, entry 15 of First Schedule to the Constitution, under the heading-"I. THE STATES" has been deleted and the Union Territory of Jammu and Kashmir and Union Territory of Ladakh have been inserted in the said Scheduled at serial No.8 and 9 under the heading -"II.
UNION TERRITORIES". The Union Territory of Jammu and Kashmir comprises of the territories other than the territory which now forms the Union Territory of Ladakh. Section 4 of The Jammu and Kashmir Reorganization Act, 2019, is relevant in this context and is also reproduced here-under:
"4. Formation of Union territory of Jammu and Kashmir with Legislature.
On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3."MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 9 OWP No.2044/2018
15) There should thus be no dispute that the area known as 'POK', where the Medical College in question is situated is part of India though it is on the other side of the Line of Actual Control. If that be the admitted position, a medical institution operating in the aforesaid area, cannot be expected to seek any recognition from Medical Council of India. The Medical Council of India does not exercise de-facto control and powers over the territory known as POK, though it may claim to have territorial jurisdiction extending to that area de-jure. There is no mechanism in place and in the given circumstances, there could not be such mechanism which would provide for recognition of the medical institutions located in POK by the Medical Council of India. The Islamic Republic of Pakistan has defacto control over the area and it is because of this, the Medical College in question has been recognized by and is registered with Pakistan Medical & Dental Council. The Act of 1956 and the rules and regulations framed thereunder do not lay down any specific provision to deal with such a peculiar situation. Admittedly, Medical College in Mirpur cannot be said to be a Medical Institution outside India nor the same is included in the Second Schedule. That being the position, Section 12 of the Act of 1956 would have no applicability. Even sub-section (4A) and (4B) of Section 13 of the Act of 1956 would not be attracted in the instant case. For facility of reference, sub-section (4A) and (4B) of Section 13 of the Act of 1956, may be reproduced here-under:
"(4A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under sub-section(3), shall not be entitled to be enrolled on any Medical Registrar maintained by a State Medical MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 10 OWP No.2044/2018 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 recognized medical qualification for the purpose of this Act for that person.
(4B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in sub-section (4A):
Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before the commencement of the Indian Medical Council (Amendment) Act, 2001 shall not be required to obtain eligibility certificate under this sub-section but, if he is qualified for admission to any medical course for recognized medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register.
16) From a plain reading of sub-section (4A) and (4B) of Section 13 (supra), it clearly transpires that these sections are applicable to the medical qualifications granted by any Medical Institution in any country outside India.
Sub-section (4B) provides that no person shall be eligible to get admission to obtain a medical qualification granted by any medical institution in a foreign country without obtaining an eligibility certificate issued to him/her by Medical Council of India and in case, such person obtains such qualification MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 11 OWP No.2044/2018 without obtaining such eligibility certificate, he/she would not be eligible to appear in the screening test referred to in sub-section (4A).
17) Sections (4A) and (4B) came to be inserted by the Act 34 of 2001 w.e.f. 03.09.2001. As noted above, POK, where the Medical College in question is situated, cannot be regarded as a foreign country and, therefore, applicability of sub-section (4A) and (4B) of Section 13 of the Act of 1956 is completely ruled out. If that be the position as it is, the petitioner was not obliged to obtain an eligibility certificate in terms of sub-section (4B) nor was she required to qualify the screening test conducted by Medical Council of India in terms of sub-section (4A).
18) Having regard to the provisions of the Act of 1956 and the rules and regulations framed thereunder, this Court is in agreement with the stand of respondent No.1 that any medical qualification obtained from the medical institutions in India, which does not have the recognition by the Medical Council of India, is not a valid qualification and the person possessing such qualification is not entitled to be registered as Medical Practitioner with Medical Council of India or the State Medical Council, as the case may be. Section 10B and 11 of the Act of 1956 make this position abundantly clear. Any medical college established, except with the previous permission of the Central Government in accordance with Section 10A, shall not be a recognized medical college for grant of medical qualification and such medical qualification granted to any student of such medical college shall not be recognized for the purposes of this Act. The petitioner, admittedly, has obtained a medical qualification from a medical college which has not been established in accordance with the provisions of Section 10A though the said MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 12 OWP No.2044/2018 college is located in the territory of India. If that be the position, whether or not the petitioner qualifies a screening test, the qualification obtained by her cannot be said to be a recognized medical qualification for the purposes of provisions of the Act of 1956.
19) From the given facts of the instant case and the clear and categoric provisions of the Act of 1956 and the rules and regulations framed thereunder, it is a foregone conclusion that the qualification possessed by the petitioner from a medical institution situated on the territories of India and not established under the provisions of the Act of 1956, cannot be regarded as a recognized qualification for the purposes of the Act of 1956. Since the petitioner has not obtained her MBBS qualification from any medical institution in a foreign country, she is not entitled to sit in Foreign Medical Graduate Examination/Screening Test which is conducted twice by National Board of Examination for the candidates who have obtained their primary medical qualification from the institutions outside India meeting certain pre- requisite eligibility requirements.
20) Having said and held as above, this Court cannot lose sight of the peculiar facts and circumstances of the instant case. As noted above, the Act of 1956 and the rules and regulations framed thereunder, do not provide any statutory mechanism to deal with the medical institutions located in the territories of India where the Indian Government and its institutions do not exercise any control nor the Government of India has informed its citizens with regard to status of such medical institutions which are operating on its soil but are under the administrative control of a foreign country. Recognizing that the territory known as POK is an integral part of India but is under the MOHAMMAD ALTAF BHAT 2019.12.04 16:35 I attest to the accuracy and integrity of this document 13 OWP No.2044/2018 occupation and administrative control of Islamic Republic of Pakistan, it cannot be expected of any medical institution located therein to comply with the provisions of Act of 1956 and the rules and regulations framed thereunder. The medical institution in question has the requisite recognition from the Medical and Dental Council of Pakistan and the qualification awarded by it is a recognized qualification to practice as a medical practitioner in Pakistan. Had the petitioner obtained this qualification from any medical institution in Pakistan having recognition from Medical and Dental Council of Pakistan, she would have been entitled both to the eligibility certificate to be issued to her under sub-section (4B) as also to sit in the Screening Test to be conducted by the National Board of Examinations in terms of sub-section (4A) of Section 13 of the Act of 1956. The petitioner has suffered and is suffering because of the fact that she has obtained MBBS degree from a medical institution which though is in India but is under the effective administrative control of Pakistan. It is not in dispute that the qualification possessed by the petitioner is a recognized qualification in Pakistan. It is also a fact and at least not disputed before me by the respondents that the Government of India has not issued any advisory or instructions against taking admission by Indian citizens in the educational institutions including medical institutions located in the territory of India under the occupation and administrative control of Pakistan, also known as POK. In absence of specific advisory having been issued by the Ministry of External Affairs or some other competent authority, the citizens of India, more particularly those residing in the Union Territories of Jammu and Kashmir and Ladakh, are most likely to fall prey to such conundrum created by peculiar fact situation.
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21) Having regard to the fact that the petitioner is a citizen of India and has genuinely pursued her MBBS qualification from a medical institution which is a recognized institution for grant of primary medical degree in Islamic Republic of Pakistan, I am of the view that the case of the petitioner deserves to be considered by the respondent No.1 as a special case, more so when she has qualified Foreign Medical Graduate Examination/Screening Test conducted by the National Board of Examinations. This Court would have thrown out the case of the petitioner at the threshold provided the Government of India had issued any advisory or instruction for the benefit of citizens of India against obtaining any qualification from the institutions located in POK. The correspondence between Government of India through its High Commission and the Foreign Ministry of Pakistan clearly indicates that, but for the technicalities of law, respondent No.1 was never averse to allow the petitioner to sit in the Screening Test and obtain recognition of her qualification from Medical Council of India.
22) In view of foregoing discussion, though I am not inclined to accept the writ petition of the petitioner in view of clear and categoric provisions of the Act of 1956 and the rules and regulations frames thereunder, yet in the given facts and circumstances as narrated above, I deem it appropriate to call upon respondent No.1 to consider the case of the petitioner for recognition of her qualification of MBBS and also for registering her as a Medical Practitioner on the rolls of Indian Medical Register or the State Medical Registry, as the case may be, purely on equitable considerations. Let a decision in this regard be taken by the respondents within four weeks from the date a certified copy of this judgment is served.
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23) Before parting, it is made clear that the case of the petitioner has been decided in view of its peculiar facts and circumstances and therefore, same shall not be treated as a precedent to be followed in future. But for the permission granted by respondent No.1 and the Visa by Pakistan, the petitioner would not have pursued the course of MBBS. This is also a factor, which has weighed heavily with this Court to grant relief to the petitioner. For the future, respondents shall do well to issue requisite advisory in the matter informing the citizens of India about the status of educational institutions including medical institutions operating in the territories of India under the occupation and administrative control of Islamic Republic of Pakistan so that the citizens, particularly the students, are properly informed of the consequences of obtaining qualifications from such institutions.
24) With the above observations, this petition is disposed of along with connected CMs.
(Sanjeev Kumar) Judge Srinagar 04.12.2019 "Bhat Altaf, PS,"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2019.12.04 16:35
I attest to the accuracy and
integrity of this document