Dr. Sanjeev Mittal And Ors. vs Union Of India (Uoi) And Anr. on 22 November, 2002

[Cites 16, Cited by 2]

Punjab-Haryana High Court

Dr. Sanjeev Mittal And Ors. vs Union Of India (Uoi) And Anr. on 22 November, 2002

Equivalent citations: AIR2003P&H213, AIR 2003 PUNJAB AND HARYANA 213, (2003) 1 SERVLR 548 (2003) 1 SCT 401, (2003) 1 SCT 401

Bench: J.S. Narang

ORDER


 

J.S. Narang, J.

1. The petitioners had sought admission in various recognised medical colleges in erstwhile USSR (Now Common Wealth of Independent States i.e. C.I.S. (hereinafter referred to as "USSR"). It is alleged that the institutions are recognised under the Indian Medical Council Act, 1956 (hereinafter referred to as "the Act"). All the petitioners have acquired degree of Doctor of Medicines (Physician) a recognised medical qualification equivalent to MBBS degree (Bachelor of Medicines and Bachelor of Surgery) in India. It is admitted that the petitioners are undergoing internship of one year at the hospitals in the Union Territory of Chandigarh, State of Punjab and State of Haryana respectively.

2. The Act was enacted on December 13, 1956 with a view to provide for the reconsti-tution of Medical Council of India (hereinafter referred to as "the MCI") and the maintenance of a Medical Register for India in respect of the matters connected therewith. The MCI has been conferred with the powers under Section 11 of the Act, to accord recognition to a medical qualification(s) to be granted by all Universities or medical institutions in India. Such medical qualifications have been prescribed under the First Schedule attached to the Act. Such similar, power has been conferred by virtue of Section 12 of the Act for granting recognition to such qualifications granted by medical institutions in the countries other than India, where the rule of reciprocity is being adhered to. In this regard, prescriptions have been provided in the Second Schedule.

3. Apart from the above, such authorisation has been conferred upon the MCI for recognising medical qualification granted by medical institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule which shall be recognised medical qualifications for the purposes of the Act. Like-wise, medical qualifications granted by medical institutions outside India before a date notified by Central Govt. in the Official Gazette, which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of the Act. It is obligatory that such person should be a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulation in force in the country granting the qualification. If such person has not undergone any practical training in that country, he has to undergo such practical training in India as may be prescribed.

4. It is the case of the petitioners that they have acquired the qualifications from the institutions outside India which are included in Part II of the Third Schedule of the Act. The petitioners fulfilled the eligibility conditions and qualifications for admission to such medical institutions as per the requirements envisaged under the Act. The qualifications and the obtainment of medical qualifications from the institution and the year of passing relating to all the petitioners have been spelt out in Annexure P-1.

5. It was on June 27, 1986, a Memorandum of Understanding was arrived at between the MCI and the USSR whereby the then Government of USSR offered to admit 50 students in their medical institutions as may be recommended by the Medical Council/Govt. of India. Resultantly, such students were recommended accordingly in accordance with fulfilment of prescribed and recognised qualifications for admission to medical institutions which stood included in Part II of Third Schedule to the Act. It is alleged that the M. D. (General Physician) Course and (General Medicines) have been considered equivalent to MBBS of Indian Degree, consequently recognised accordingly. The petitioners were also sponsored accordingly and were admitted in the medical institutions in USSR. It may be noticed that certain private agencies had also been permitted to send candidates as above. In both cases, the procedure and the qualifications prescribed were identical.

6. Even after the disintegration of erstwhile USSR in the year 1991, the procedure and the process and the provisions applicable for admission to medical institutions to outside citizens remained the same including India, The MCI published a notice in various newspapers in respect of its decision to allow provisional registration to the candidates who had obtained Doctor of Medicines (Physician) degree in General Medicines from recognised medical institutions of USSR for undergoing Internship in India after completion of medical course. Further to grant permanent registration to such candidates after completion of period of one year Internship training either in those recognised medical institution of USSR or in India, as per provisions of Section 13(3) of the Act. One such insertion appeared in the Hindustan Times. New Delhi, on Friday 22nd December 1995, copy of which has been appended as Annexure P-3. It shall be apposite to refer to the said notice which reads as under :--

THE HINDUSTAN TIMES, NEW DELHI, FRIDAY, DECEMBER 27, 1995 MEDICAL COUNCIL OF INDIA Aiwan-e-Galib Marg, Kotla Road, New Delhi-110002.

This is for information of all concerned that the Medical Council of India has decided to allow provisional registration to the candidates who have obtained M. D. Physician degree in General Medicine from the recognised medical institutions of erstwhile USSR, for undergoing internship in India after completion of the medical course i.e. 1+6 years training. The council has further decided to grant permanent registration to the candidates only after they complete a further period of one year internship training after obtaining the qualification as stated above either in those recognised medical institutions of erstwhile USSR or in India as per the provisions of Section 13(3) of the Indian Medical Council Act, 1956.

The above decision superseding all the previous decisions to this regard of the Council will be applicable from 1st January, 1996.

Sd/-

Secretary."

7. It is averred that all the petitioners have successfully completed the course of seven years including one year Language Course and resultantly, they have been granted the degree of M. D. (Physician). The requisite certificates have been issued to all the petitioners. A sample certificate issued in favour of one of the petitioners i.e. Sanjiv Mittal, has been annexed as Annexure P-4. It has also been alleged that one year Internship which is called "Subordinatorship" has also been completed successfully by the petitioners which included in seven years' course. So far as MBBS course in India is concerned, the academic study comprises of four and half years and one year Internship. It is alleged that no further practical training after obtaining the aforesaid medical qualifications in USSR is required as no rules and regulations in this regard are in force in USSR.

8. It is in the year 2001, the Act has been amended which is known as "Indian Medical Council (Amendment) Act, 2001" (hereinafter referred to as "the Amending Act") which has been published in Gazette of India Extraordinary dated September 3, 2001. By virtue of amendment inter alia Sub-sections (4A) and (4B) in Section 13 have been inserted which read as under :--

"13. Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule:-- (1) XXXXXX XXX XXX (4A) 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), 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 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 as 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 admissions 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 recognised 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."

9. The cumulative effect of the aforesaid insertions is that a person who obtained medical qualifications granted by the medical institutions in any country outside India, but recognised for medical practice in that country, shall not be entitled to be enrolled in any manner in any Medical Register of India and would not be entitled for admission to any medical course (higher than MBBS) recognised medical qualification in any medical institution in India unless he or she qualifies "the screening test in India prescribed for such purpose". The amendment so provided was to become applicable after such date as may be "specified" by the Central Government under Sub-section (3). The MCI has issued a press note according to which all Indian citizens possessing a primary medical qualification awarded by any medical institution outside India, who are desirous to seek provisional or permanent registration with the Council or any State Medical Council on or after March 15, 2002, shall have to qualify a screening test which will be conducted by the National Board of Examination as per the provisions of the Act and the Screening Test Regulations, 2002. A copy of the press note has been appended as Annexure P-7 and the notification notifying the Screening Test Regulations have been appended as Annexure P-8.

10. The petitioners with the medical qualifications acquired by them approached the respondents for provisional or permanent registration. Upon the requisite requests the petitioners have been granted the provisional registration by the Medical Council of India. One such sample registration issued in favour of one of the petitioners Dr. Sanjiv Mittal has been appended as Annexure P-9, all such applicants have been granted such similar registrations.

11. A notice dated July 6, 2002, has been published in the English Tribune for holding screening test for Indian Nationals with foreign medical education for the purpose of getting registration with the MCI. The last date for filling up the application forms for taking the screening test stood defined as July 31. 2002 and that the said test stood notified to be held on September 28/29. 2002 at Delhi. It has been informed now that the examination is perhaps scheduled to be held on November 29, 2002. The petitioners have already obtained provisional registration from the MCI which has been given to the petitioners subject to completion of successful 12 months of the internship. The petitioners have questioned the legality and validity of the notice and the right of the MCI in subjecting the petitioners to a screening test before they can be given the permanent registration despite the fact, even if they have completed the additional internship for a period of 12 months. The amendment as promulgated by way of incorporation of Sub-section (4A) and (4B) to Section 13 of the Act and that subjecting the petitioners to screening test has been challenged inter alia on the following grounds:--

(i) The medical qualifications acquired by the petitioners from an institution outside India having been duly recognised medical qualification by the MCI as envisaged under Section 13(3) of the Act and having been included in Part II to the Third Schedule to the Act, the said qualification having been treated equivalent to MBBS in India for all intents and purposes, the petitioners cannot be subjected to screening test much less the additional internship;

(ii) by subjecting the petitioners to a screening test would amount to derecognition of the medical qualifications acquired by the petitioners outside India, which stood recognised and accepted by application of rule of equivalence;

(iii) the screening test as provided if held intra vires, can be made applicable prospectively and not retrospectively, as such, the qualification is being sought to be amended after the petitioners have acquired the medical qualifications equivalent to MBBS and that too after undergoing the internship as provided in the course outside India. The petitioners having been given the provisional registration and being entitled to award of permanent registration upon completion of internship though not required to be undergone by the petitioners, the provision of screening test would not be applicable as condition precedent for obtainment of permanent registration;

(iv) subjecting the petitioners to screening test, who have acquired equivalent qualifications to the qualification of MBBS in India and that a person acquiring such qualification in India not being subjected to such test, would be violative of Article 14 of the Constitution of India;

(v) the cut off date as prescribed by MCI i.e. March 15, 2002, for granting of permanent registration, only upon qualifying screening test would not be applicable to the petitioners as they had joined one year Internship of India, though not strictly applicable to the cases of the petitioners, thus, the taking of screening test cannot be made applicable to the petitioners; and

(vi) the petitioners having been provisionally registered as envisaged under Section 25 of the Act, are entitled to permanent registration upon completion of internship, the requirement of passing of screening test by the petitioners only would not be sustainable it is the settled law that a condition or a qualification prescribed after the joining and commencement of a course would not be applicable to a person who has already joined such courses. The condition envisaged under Section 25 for obtainment of permanent registration produced to the extent of completion of internship and no other condition has been made applicable under Section 25. The MCI or the State Medical Council shall not be entitled to deny the permanent registration to the petitioners.

12. The petition has been contested by Union of India and Medical Council of India. Separate written statements have been filed. The stand of Government of India is that the Council, after observing the decline in the standard of medical education imparted in these Institutions and taking into account the problems arising due to commercial exploitation of medical education by private agencies, decided to recommend to the Government of India to derecognise all 29 institutions which came into existence in the erstwhile USSR and which have been included in Part II of the Third Schedule to the Indian Medical Council Act, 1956, The withdrawal of recognition was recommended for being made operative after December 31, 1997, because some of the students had already been sponsored by the MCI and therefore, to enable them to complete their studies the withdrawal was made applicable accordingly. The private agencies involved in selecting the students for getting admission, in under-graduate and post-graduate medical courses in Russia and other countries were derecognised and a notice in pursuant thereto stood published by Government of India in March 1995. One such private agency filed civil writ petition before the Delhi High Court and the same was dismissed vide order dated December 1, 1997. The LPA was also dismissed and that the Central Government filed two affidavit dated 1-4-1999 and 26-4-2000 before the Delhi High Court wherein a categoric averment has been made that instead of derecognition of the medical institutions in the erstwhile USSR, the system of pre-screening of the students, desirous of taking admission in the medical institutes in foreign countries along with a system of post-screening of the students who are coming back to India after obtaining a decree from abroad, would be introduced. The broad-line policy disclosed is, that it is not possible for MCI to conduct periodical inspection of the institute recognised by them abroad for ensuring the maintenance of standard of medical institution. It has been considered appropriate that a screening test should be held by a competent authority as is being done in most of the countries like UK and USA before any person with foreign medical institution can be registered in the country.

13. Consequently, with the approval of parliament. Section 13 of the Act was amended for achievement of this object and purpose. The amendment was notified in the Gazette of India on 3rd September 2001, copy of the Gazette has been appended as Annexure R-3. In pursuant to the provision of the Indian Medical (Amendment) Act 2001. Screening Test Regulations, 2002 and also the Eligibility Requirement for taking admission for an Under-graduate Medical Course in institutions Abroad Regulations, 2002, were framed with the approval of the Central Government and notified by the MCI in the aforesaid Gazette on February 18, 2002, while exercising powers under Section 33 of the Indian Medical Council Act. It is averred that the date, from which the provisions of the amended Act would come into effect will be specified by the Central Government, Thus, while approving the draft regulations sought to be promulgated while exercising powers under Section 33 of the Indian Medical Council Act, the Central Government specified that the provisions of the regulations would come into effect from March 15, 2002. The relevant provisions referred to read as under :--

(i) An Indian citizen possessing a primary medical qualification awarded by any medical institutions outside India who is desirous of getting provisional or permanent registration with the Medical Council of India or any State Medical Council on or after 15-3-2002 shall have to qualify a screening test conducted by the prescribed authority for the purpose of their registration in India. A person seeking permanent registration shall not have to qualify the screening test if he or she had already qualified the same be-fore getting his or her provisional registration.

(ii) The primary medical qualification possessed by the Indian citizen should be a recognised medical qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated.

(iii) Any Indian citizen who is desirous of taking admission in an under-graduate medical course abroad on or after 15th March, 2002 shall have to obtain an Eligibility Certificate from the MCI stating that he or she fulfils the minimum eligibility criteria laid down by the MCI for admission in MBBS course in India. He shall also have to produce the same at the time of appearing in the screening test, after completion of his degree abroad, for the purpose of obtaining registration in India."

14. Thus, in view of the amendment and the regulations promulgated by invocation of power under Section 33, the concept of recognition of foreign medical institution has been done away with. Prior to the amendment and the regulations promulgated as above, a decree in medical science obtained by a person from a recognised institute outside India could enable him to get automatic registration with MCI entitling him/her to practice medicine in India subject to fulfilment of certain conditions laid down by MCI. The concept of recognising medical institutions abroad went under a sea change, meaning thereby that obtainment of foreign medical degree from a recognised institute would not ipso facto enable a person for seeking the registration but he would be required to qualify screening test and if a person qualifies the screening test the foreign medical education would be automatically deemed to be recognised for the purpose of the Act. It is averred that the regulations promulgated by invocation of powers under Section 33 of the Act that the provision of "Screening Test Regulations, 2002" has been upheld by the Apex Court while rendering the decision in Civil Appeal No. 2779 of 2002 in re: Medical Council of India v. Indian Doctors from Russia Welfare Association, 2000 (1) SCT 473. It is further averred that only those students possessing the degrees issued by the medical institutions in the erstwhile USSR, who have put in six years for medical education and have successfully completed the course and thereafter have completed one year of internship, would be considered eligible for provisional/permanent registration as the case may be. This requirement has been upheld by the Apex Court while rendering judgment in MCI's case supra. It is further averred that the petitioners after completion of their studies in medicine for six years in the foreign institutes recognised by MCI having applied to MCI for provisional registration for doing one year internship in India, which was granted to them would not give them automatic claim for grant of permanent registration. By enforcement of the Screening Test Regulations, 2002 with effect from March 15. 2002, the petitioners would be required to appear for the screening test as they would complete internship period after March 15, 2002. The promulgation of "Screening Test Regulations" 2002, does not create any impediment in the way of the petitioners from obtainment of permanent registration so as to enable them to practice medicine in India. It has been emphatically denied that the petitioners after having completed six years course are not entitled to take the stand that they are not required to undergo compulsory one year rotatory internship. The acquisition of a primary medical qualification would obviously include the internship of one year and if that practical training has not been undergone the primary qualification is not complete and, therefore, they are not entitled to permanent registration. It is further averred that the guidelines for grant of registration in relaxation of the criteria laid down by the Medical Council of India to the persons having acquired of the medical qualifications from the foreign institutions, who were denied registration by the MCI, were placed before the Hon'ble Supreme Court and that the said guidelines have been upheld by the Hon'ble Supreme Court vide order dated 8-3-2002. Thus, while exercising power under Article 142 of the Constitution of India, the Hon'ble Supreme Court by accepting the draft guidelines has held that provisional registration prior to March 15, 2001 and the permanent registration before March 14, 2002, would be entertainable and the registration would be granted accordingly.

15. So far as the case of the petitioners is concerned, they have not completed the internship before March 15, 2002 and upon completion of internship after the, said cut off date they shall have to qualify the screening test. The petitioners had not even applied for provisional registration prior to March 15, 2001, therefore, do not fall within the mischief of the guidelines which stands approved by the Hon'ble Supreme Court of India in exercise of their power under Article 142 of the Constitution of India. This relaxation has been provided to be one time measure and that all future cases would be covered by Screening Test Regulations, 2002. Thus, all those candidates who had come prior to March 15, 2002 and made, their applications for grant of permanent registration, are a separate class as compared to those candidates who have made, their applications to MCI for provisional/ permanent registration after March 15, 2002. It is further averred that a medical student who has successfully undergone the medical education for a period of six years and has completed internship in India for a period of one year, should not have any hesitation in appearing in the screening test which is held only for the purpose of achievement of the object that a person who has acquired medical qualifications in a foreign institute is fit enough to practice medicine in India which would be considered compulsorily to be the qualifications laid down in India. It is further averred that all such qualifications have been upheld by way of amending Act and providing the regulations by invocation of powers under Section 33 of the Act, which have been upheld by a Bench of Delhi High Court while rendering judgment in CWP No. 2260 of 2002 in re: Miss Anuradha Saini v. Union of India.

16. The stand of MCI is that the provisions of Section 13 Sub-section (4) and the regulations provided for holding the screening test for all those who have not been granted registration in respect of Indian Nationals who possess foreign medical qualifications, the cut-off date is March 15, 2002. In view of the amendment provided to Section 13 by adding Sub-sections (4A) and (4B), the question of recognition of medical qualifications earned from abroad has got no meaning after the amending provision having been incorporated with effect from 15-3-2001. Thus the contention that the petitioners possessed the recognised qualification from abroad would not ipso facto enable them to ask for provisional/permanent registration. It has been categorically provided that when a person is, granted provisional registration, the candidate has to undergo internship for a period of 12 months before he becomes eligible for permanent registration. Since internship was to be accomplished by the petitioners after March 15, 2002, before asking for permanent registration they have to take screening test as promulgated by the regulations issued by invocation of powers under Section 33 of the Act. The draft guidelines having been upheld by the Hon'ble Court of India nothing remains to any doubt. The case of the petitioners is fairly and squarely covered by the judgment of the Supreme Court, the resultant effect is that they have to appear in the screening test incorporated by way of the amending Act. It is also averred that a person with M. D. Physician qualification in Russia is required to undergo three years apprenticeship to be eligible to practice medicine independently in that country. Thus, the contention that the petitioners have undergone one year subordinatorship does not per se entitle them to practice medicine independently in that country. Thus, the petitioners are not even qualified to practice medicine in that country as well what to say of being eligible to practice in India.

17. Learned counsel for the petitioners has argued that the petitioners took admission in respective medical institutes in USSR on the premises that the qualifications to be acquired from the said institutions is equivalent to the qualification in India i.e. MBBS, in view of the rule of equivalence having been applied and reflected in pursuant to Section 13(3) of the Act and the said institutions having been included in Part-II of the Third Schedule provided to the Act. Thus, the acquisition of medical qualification from the said institutions is to be treated equivalent to the medical qualification acquired in India i.e. MBBS. The degree in medical education which has been acquired by the petitioners also includes the internship required to be completed for acquisition of the said degree. Similarly, for acquisition of MBBS qualification in India, internship is necessarily required to be undergone. No doubt, acquisition of such academic medical qualifications does not entitled a person to practice medicine unless the internship is completed. Thus, to practice as a medical practitioner, two essential qualifications are required to be acquired; (i) academic qualification; and (ii) practical qualifications in the shape of internship. In the case of the petitioners, they have acquired the academic qualification and have also undergone internship as required to be fulfilled in that country. The duration of the course of acquisition of such qualifications is six years and that for studying in those institutions, it is absolutely necessary for a candidate to learn the Russian language and for that purpose one year course is to be undergone separately. Resultantly, the total course which had to be undergone by the petitioners is seven years. Thus, subjecting the petitioners upon acquisition of such qualifications for undergoing additional internship for one year (12 months) is not necessarily required and that the petitioners are also not required to appear for the screening test promulgated statuterily. Such imposition would be directly hit by the principle enunciated under Article 14 of the Constitution of India and that the amendment incorporated deserves to be struck down accordingly because a person who has acquired the qualification of MBBS in India (inclusive of internship) is not subjected to such conditions. In both situations, the qualifications being accepted to be equivalent upon application of principle of equivalence, subjecting the petitioners to different treatment is not sustainable.

18. It is further argued that provision of screening test by way of amendment in the statute is nothing but de-recognition of the medical qualification acquired from the institutions which have been recognised statutorily. The provisions are not at all compatible and in fact they run counter to each other. The MCI in one step is required to bring the institution in Part-II of Third Schedule of the act while applying the rule of equivalence. Once such institution has been described in the third schedule, by virtue of another amendment, the same institution cannot be considered any lower or less than the institutions which offer the qualification of MBBS in India. Since the provision of screening test by virtue of the amendment dilutes the rigour of the Act to be committed by MCI while including the institution in the third Schedule, such amendment should not be permitted to be brought in the statute.

19. It is also argued that no such condition of undergoing screening test was in existence at the time when the petitioners had proceeded to join the institution in USSR and upon completion /acquisition of such qualifications, the petitioners would be entitled to permanent registration with the Medical Council of India and also the requisite State Councils in India. Provision of such test would amount to change in the conditions after the petitioners have joined the course. However, in the present case, the condition has been changed after they have acquired the qualification. Thus, the situation is much worse vis-a-vis the petitioners. It is the settled law that the conditions cannot be changed and if changed and held to be intra vires cannot be applied to a person who has joined the course or much less has acquired the said qualification before the promulgation of the amendment". Thus, the situations in which the petitioners have been placed, the amendment promulgated, even if held to be intra vires, would not be applicable and that the petitioners would be justified and entitled to permanent registration by the MCI or the State Council as the case may be.

20. It is further argued that the condition provided for undergoing internship additionally in for a period of one year though not justified or sustainable under law, has been joined by the petitioners before March 15, 2002 and that even if the Internship has not been completed prior to March 15, 2002, shall not make any difference and that the right of the petitioners for grant of permanent registration cannot be jeopardised. The petitioners have been granted provisional registration at the time of joining the additional internship which has been made condition precedent for granting permanent registration. Thus, the imposition of a condition to pass screening test during this period is not sustainable and applicable to the petitioners. It is envisaged under Section 25 of the Act as to how and when the permanent registration is to be granted. It is categorically provided under Sub-section (4) of the aforesaid section that a person who is registered provisionally and has completed practical training or he has been engaged in the prescribed period in employment in a resident medical capacity in any approved institution or the medical service of the Armed Forces of the Union, as the case' may be, shall, be entitled to registration in the State Medical Register under Section 15 of the Act. Thus, the moment a candidate has been provided provisional registration under Sub-section (2) of Section 25, becomes entitled to permanent registration upon completion of practical training or rendering service as envisaged under Sub-section (4). Thus, the question of imposition of passing of screening test despite the right having accrued to the petitioners in pursuant to Section 25 would not be sustainable and that would be violative of Section 25 itself.

21. Learned counsel for the petitioners has further argued that the perusal of the amendments incorporated by virtue of amending Section 13 by way of additions made under Sub-section (4A) and (4-B) have not come into force till today. It is envisaged in the said provision that the Central Government shall notify the date from which a candidate with foreign medical qualification 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. Since the date has not been notified by the Central Government, the question of subjecting the petitioners to screening test would not arise. Learned counsel has contended that this ground has not been taken by the petitioners in the petition, however, during the course of arguments the point has been formulated and arguments addressed. The learned counsel has sought the permission of this court to address arguments on this aspect. In all fairness the permission is granted as the argument advanced goes to the root for examining the applicability of the amendment to the statute in the shape of incorporation of Sub-section (4-A) and (4-B) to Section 13 of the Act.

22. Learned counsel for the petitioners has placed reliance upon a Division Bench judgment of Delhi High Court rendered in re : Medical Council of India v. Dr. Tarun Goel, 2000(3) SLR 247 : (AIR 2000 Delhi 128). The single Bench of Delhi High Court while allowing the petition held that the decision of the Medical Council dated 17-10-1996 and 23-10-1996, insofar as it requires the candidate to further undergo training in India after successful completion of degree course as condition precedent for enrolment in the register for grant of permanent registration is illegal and contrary to the provisions of the Act. The LPA against the said judgments rendered in other petitions also have been dismissed. It is apposite to notice the observation of the Division Bench which reads as under at Page 141 of AIR:--

"42. As regards duration of the course for the period prior to the Memorandum of Understanding with U. S. S. R. a Division Bench of Bombay High Court in Dr. Arun H. Bakle v. Union of India, AIR 1986 Bombay 230, it was held that a person holding qualification from a foreign institution as laid down in Schedule 3 of Part II and who has undergone practical training there is entitled to be enrolled and Regulation requiring such person to undergo further training in India is invalid. The decision rendered by division Bench of Bombay High Court would suggest that the Council was fully aware about the duration of medical course imparted by medical institutions in U.S.S.R. and for that reason alone 174 Indian students were sponsored by the Council for the said course. Dagestan State Medical Institute was recognised on 20-3-1990 and the prospectus of the said institute confirmed that the duration of medical course in U. S. S. R. was for 7 years, namely, one year Orientation course plus five years regular course and one year training. The appellant had accepted the recommendations of its Executive Committee dated 26-7-1994 and also decided to permit internship training in India, namely, 9 months of "subordinatura" in recognised Hospitals in India in part fulfilment of the requirement of Russian Medical Institutions awarding degree after provisional registration with the appellant for doing internship training. The decision of the appellant was rightly held to be arbitrary for insisting upon the respondents to undergo further period of one year training on having completed 1+6 years duration of medical course in U. S. S. R. There being nothing wrong in the decisions under challenge in the appeals filed by the appellant, no interference is called for by us and the appeals of the appellant are liable to be dismissed.

43. It may be noticed that admission to any Post Graduation Medical course in India, is only through competitive entrance examination and a mere medical degree is not enough. Similarly any appointment in Government or other Hospital at the junior most level is also on the basis of selection. Thus, even after a candidate possesses a medical degree still he has to undergo the process of merit evaluation at all levels for any progression in the profession. Even if he chooses to be in the private practice then also he is bound to be under a constant discipline of the Medical Council of India. Under the circumstances, to deny registration to the persons who have obtained degrees and certificates from recognised medical institutions outside India and have spent requisite period in studying the medical course abroad, would be too harsh, particularly when almost three years have already elapsed."

23. Thus, it has been held that the medical course in USSR was for seven years, namely; one year orientation Course plus five years regular course and one year training. The requirement of internship training in India namely nine months of "Subordinatura" in recognised hospitals in India in post fulfilment of Russian medical institutions after registration with the respective Medical Council for doing internship training would not be sustainable, the same has been held to be arbitrary. Further reliance has been placed upon a judgment of the Apex Court rendered in re : Secretary, MCI v. Arun H. Bakle, 1987 (Supp) SCC 140. It has been held that no person possessing any such qualification which has been held and accepted to be equivalent to MBBS in India, shall be required to undergo such practical training unless he has not undergone such training in the foreign institution.

24. It shall be apposite to notice that a number of writ petitions had been filed in different High Courts in the country by such persons who had undergone medical courses in the erstwhile USSR, however, after integration of USSR their admissions ran into difficulties on various institutions in which such students stood placed. MCI also fell into certain predicaments and was also not clear about the genuineness of some of the courses undergone by various students. Resultantly, the MCI passed various types of orders during the pendency of the proceedings before the courts or prior thereto in relation to recognisation of the said degrees and the procedure to be adopted or the status to be granted to such students regarding permanent registration to be granted by the MCI and the State Council. The judgment rendered by Delhi High Court which has been affirmed by the Letters Patent Bench was also made subject-matter of challenge before the Apex Court. Upon the observations of the Apex Court, the Government of India was required to formulate an appropriate draft guidelines in this regard bearing in mind the human problems arising in relation to Doctors in question.

Resultantly, the regulations for conduct of screening test and for issuance of an eligibility certificate by the MCI to the students studying abroad in medicines are stated to have been approved by the Government and sent to the MCI. The MCI sent the same on February 18, 2002 to the Government of India press for publication in the Gazette and those regulations were also produced before the Apex Court. The first requirement/condition imposed is that an Indian citizen possessing a primary medical qualification awarded by any of the medical institutions outside India and that the said citizen desirous of getting permanent/provisional registration with the MCI or State Medical Council on or after March 15, 2002, shall have to qualify the screening test conducted by the prescribed authority for the purpose of their registration in India. If such similarly situated persons have already qualified the screening test he/she shall not be required to qualify the same once over again.

25. The other requirement is that the primary medical qualification possessed by an Indian citizen from abroad should be a recognised medical qualification for enrolment as medical practitioner in the country in which the institution offering the said qualification is situated.

26. The third condition is that an Indian citizen who is desirous to take admission in an under-graduate medical course abroad on or after March 15, 2002, shall have to obtain eligibility certificate from the MCI stating that he/she fulfils the minimum eligibility criteria laid down by the MCI for admission in MBBS course in India. The certificate shall have to be produced at the time of appearing in the screening test after completion of his degree abroad and also for the purpose of obtaining registration in India.

27. However, it has been noticed by the Hon'ble Apex Court that under the provisions of the Act, a person has to success fully complete compulsory internship of one year after getting provisional registration and all persons who applied for provisional registration and have to do the internship on or after March 15, 2002, will be required to qualify the screening test as per the provisions of Screening Test Regulations, 2002, as they would become eligible for permanent registration on or after March 15, 2002 i.e. after successful completion of one year internship. It has also been noticed that some of the persons after completion of their degree abroad prior to March 15, 2001, have applied for grant of provisional registration but they have not been granted provisional registration by the MCI for various reasons and that the reasons spelt out are as under:--

(a) Those who did not undergo complete duration of six years of the medicine course from the institution recognised by MCI;

(b) those who did not fulfil the minimum eligibility criteria, for joining medical course, laid down by MCI at the time of their admission in the medical institutions abroad particularly in the erstwhile States of USSR; and

(c) Those who came back with medical degree which are not recognised by MCI.

28. It may be noticed that in the present case the claim of the petitioners before this Court is that they were fully eligible for admission to medical institutions as per requirements of the Act and resultantly they took admission in the medical institutions in USSR and that they have qualified the requisite degree accepted to be equivalent to MBBS in India. The detail of each of the petitioners has been appended as Annexure P1, which reads as under :--

S.No. Name of the petitioner Qualifications possessed at the time of taking admission to Med. Instts. in USSR Name of the Institution Degree obtained Year of passing

1.

Dr. Sanjeev Mittal 10 + 2 (Medical) Kuban State Medical Academy Krasnodar, Russia M.D. Physician 2001

2. Dr. Nitin Sood

-do-

Crimea State Medical University, Simferpol Ukraine

-do-

3. Dr. Ishpinder Singh

-do-

Sain Petersburg Pavlog State Medical University Petersburg, Russia

-do-

4. Dr. Varinder Pal Singh

-do-

Odessa State Medical University, Ukraine

-do-

5. Dr. Amanpreet Singla

-do-

O. O. Bogomlets National Medical University, Ukraine

-do-

6. Dr. Nitin Kaushik

-do-

Vinnitsa, State Medical University, Vinnitsa

-do-

7. Dr. Dinesh Joshi

-do-

Saint Petersburg State Medical Academy

-do-

8. Dr. Devinder Singh

-do-

Crimea State Medical University, Simferopol, Ukraine

-do-

9. Dr. Rahul Parnami

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

10. Dr. Harvivek Gautam

-do-

O. O. Bogomplets National Medical University. KIEV Ukraine

-do-

11. Dr. Shallu Khatter

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

12. Dr. Raminder Kaur

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia.

-do-

13. Dr. Rupinder Kaur Mann

-do-

Kuban State Medical Academy, Krasnodar Russia

-do-

14. Dr. Swaranjit Singh

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

15. Dr. Amreek Singh Dhillon

-do-

Odeesa State Medical University. Ukraine

-do-

16. Dr. Rishu Garg

-do-

Saint Petersburg State Medical Academy, Russia -

-do-

17. Dr. Kanwalpreet Singh

-do-

Tver State Medical Academy. Tver, Russia

-do-

18. Dr. Gurjap Singh Goel

-do-

Tver State Medical Academy, Tver, Russia

-do-

19. Dr. Gagandeep Singh

-do-

Saint Petersburg State Medical Academy. Saint Petersburg, Russia

-do-

20. Dr. Amandeep Singh

-do-

Crimea State Medical University, Simferopol, Ukraine

-do-

21. Dr. Ramandeep Singh

-do-

Crimea State Medical University, Simferopol, Ukraine.

-do-

22. Dr. Kuleet Singh Walia

-do-

The Crimea State Medical University, Simferopol, Ukraine.

-do-

23. Dr. Ravneet Pal Kaur

-do-

People's Friendship University of Russia. Moscow

-do-

24. Dr. Sarabjit. Singh Gill

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

25. Dr. Barinder Singh Aurora

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

26. Dr. Kirandeep Kaushal

-do-

TVER State Medical Academy, TVER, .Russia

-do-

27. Dr. Vikas Gupta

-do-

Saint Petersburg State Medical Academy; Saint Petersburg, Russia

-do-

28. Dr. Shivani

-do-

Saint Petersburg State Medical Academy. Saint Petersburg, Russia

-do-

29. Dr. Vartika

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

30. Dr. Sukhjinder Kaur Sidhu

-do-

Odessa State Medical University, Odessa, Ukraine

-do-

31. Dr. Mandeep Kang

-do-

Odessa. State Medical University, Odessa, Ukraine

-do-

32. Dr. Kulpreet Kaur

-do-

Odessa State Medical University, Odessa, Ukraine

-do-

33. Dr. Yadwinder Singh Dhillon

-do-

TVER, State Medical Academy, TVER, Russia

-do-

34. Dr. Jatinder Preet Singh Grewal

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

35. Dr. Varinder Singh

-do-

TVER, State Medical Academy, TVER, Russia

-do-

36. Dr. Kanwaljit Singh Bajwa

-do-

Saint Petersburg Pavlov State Medical University, Russia

-do-

37. Dr. Harsharan Kaur

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

38. Dr. Yadwinder Singh

-do-

Lugansk State Medical University, Lugansk

-do-

39. Dr. Ajay Attri

-do-

Kharkov State Medical University, Kharkov (Ukraine)

-do-

40. Dr. Vivek Arora

-do-

Kharkov State Medical University, Kharkov (Ukraine)

-do-

41. Dr. Rajesh Kumar Sharma

-do-

Kuban State Medical Academy, Khansodar, Russia

-do-

42. Dr. Jaya Gupta Rang

-do-

Kuban State Medical Academy, Krasnodar, Russia

-do-

43. Dr. Lavleen Kaur

-do-

Saint Petersburg State Medical Academy, Saint Petersburg, Russia

-do-

29. The Union of India has not questioned this claim of the petitioners as the claim made by the petitioners in para 4 has not been denied, while submitting parawise reply, it has been stated as under :--

"That paras 1 to 8 needs no reply as these are matters of record."

Similarly, the MCI has also not denied the aforesaid averments of the petitioners.

30. The petitioners before this Court have also categorically averred in para 13 of the petition that after obtaining the medical qualifications from USSR, they approached the respondents for registration and the petitioners have been granted provisional registration by the counsel. One such certificate issued by the MCI (as sample) has been appended as Annexure P9 dated September 19, 2001. The provisional certificate issued under Section 25 of the Act is subject to the terms which read as under :--

(i) Verification of authenticity by the concerned authorities of the documents submitted by the candidate; and

(ii) issue of notification by the Central Government Ministry of Health and Family Welfare, New Delhi, with regard to change of name of the institution/University granting the medical qualification,

31. It is further averred in para 14 of the petition that despite holding the recognised medical qualifications /obtained from the foreign medical institution, they have still been asked to undergo one year internship which they are undergoing though not accepted.

32. The Central Government while submitting reply to paras No. 13 and 14 has clearly conceded that as per Section 25 of the Act, provisional registration can be granted for the purpose of undergoing the practical training. However, it is further averred that the said provisional registration is granted for no other purposes. The date of joining the internship by the petitioners has not been denied. It has been further averred that a person after acquiring foreign medical education from medical institution included in para-II of the third schedule to the Act, would be entitled to enrollment on any State Medical Register only after the said person has undergone the requisite practical training after the obtainment of the primary medical qualification and that the said practical training shall not be required to be undergone in India if he /she has already undergone such training abroad as may be required by the rules and regulations in force in the country granting the qualifications. It is further averred that after the commencement of Screening Test Regulations 2002 with effect from March 15, 2002, an Indian citizen with a foreign, primary medical qualification shall have to qualify the screening test for his enrolment on any State Medical Register or the Indian Medical Register. It is also averred that primary medical qualification for such enrolment stands qualified by virtue of Indian Medical Council (Amendment) Act, 2001, which has been incorporated by way of issuance of the gazette notification on September 3, 2001. Since the petitioners chose to do the internship in India, the provisional registration was granted for completion of the internship /undergoing the practical training and for no other purpose. Resultantly, they do not have automatic claim for grant of permanent registration, for obtainment of permanent registration they shall have to fulfil the prescribed requirement, i.e. passing the screening teat promulgated by Screening Test Regulation 2002 with effect from March 15, 2002.

33. The perusal of the amendment carried out in Sub-sections (4A) and 4(B), wherein it is required that the Central Government shall specify the date under Sub-section (3) of Section 13 of the Act, from which, the person with medical qualifications obtained from abroad, shall not be entitled to be enrolled on any medical register unless he qualifies screening test in India prescribed for such purpose. The Central Government while submitting reply to paras 13 and 14 or elsewhere in the written statement has not disclosed as to whether any date has been notified in pursuant to Sub-section (3) of the Act. A pointed question was asked from the counsel representing the Union of India as to whether any such date has been notified, the counsel has not been able to disclose any date nor has been able to produce any notification in this regard having been gazetted. Resultantly, the imposition of passing of screening test by the candidate with foreign qualifications has not come into force as yet. However, it has been contended by the counsel for Union of India and also counsel for MCI that the regulations having been issued by MCI under Section 33 of the Act and the same having been notified on February 18, 2002, and that for qualifying screening test having been made compulsory after March 15, 2002, leaves no manner of doubt that the person who acquires medical qualifications from abroad shall be required to appear for the screening test. Thus, the petitioners have no option but to appear in the said test.

34. The Apex Court while rendering judgment in Medical Council of India's case (supra), while exercising powers under Article 142 of the Constitution of India, has held that the guidelines issued by the Government of India are approved by way of one time measure and that the future cases will be governed by the revised regulations framed and promulgated by MCI as approved by the Government. It may be noticed that the judgment has been rendered by the Apex Court on March 8, 2002 and that the present petition has been filed on April 23, 2002. Resultantly, in pursuant to the said judgment, the present writ petition cannot be taken to be disposed of by the said judgment. In any case, the pleas and arguments addressed by the learned counsel for the parties are quite distinct and points for consideration are entirely different.

35. After hearing the learned counsel for the parties, two crucial questions have arisen and which need consideration and that after the decision of the said two questions, the rest of the pleas raised may not be required to be answered.

36. The first question which arises is that the amendment which has been promulgated by virtue of addition of Sub-section (4A) and (4B), can the same be applied against the petitioners. Admittedly, the perusal of Sub-section (4A) shows that it is only after "a date" has been specified by the Central government under Sub-section (3) whereafter a person with foreign medical qualifications would not be entitled to be enrolled on any medical register maintained by the State Medical Council or his name may be entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purpose. It is further provided that the foreign medical qualification shall be recognised only after the said person has qualified the screening test. The perusal of written statement filed by Union of India and by MCI, it has nowhere been disclosed as to whether any such date has been notified by the Government or not. The answer to the pointed enquiry by this court from the counsel for Union of India has been in the negative. He has not been able to produce in Court any document or record to establish the factum of the notification having been issued by the Government of India. Since the date has not been notified by the Central Government, the provision of Screening Test Regulation by the MCI while invoking powers under Section 33 would be ineffective. It is further admitted case that the aforesaid amendment was notified on September 3, 2001. Thus, in all probability, the cut off date as required to be notified by the Government would have to be thereafter. In the case at hand, the petitioners have joined the practical training (internship in India) in the month of September 2001, and as per the information given by the counsel for the petitioner, they have completed internship, though the same was not required to be undergone as they have already undergone such similar practical training in USSR while completing their qualifications. Admittedly, the course is of seven years out of which one year is required for the purpose of completion of orientation Course (learning Russian language), five years is a theoretical course plus one year practical training. As per the petitioners, after completion of the aforesaid practical training, no other practical training is further required to make them eligible to practice medicine in that country, which fact has not been categorically denied by the respondents. However, it has been argued that the persons with such medical qualifications in USSR is riot entitled to practice medicine, individually unless he completes the apprenticeship of another period of three years. But in this regard neither any rule or regulation applicable tn USSR has been placed on record nor has been reproduced in the respective written statements filed by both the respondents.

37. In view of the above, the date essentially required to be notified by the Central Government, having not been notified, the condition to qualify the screening test in India to enable the foreign medical qualification to be deemed to be recognised medical qualification for the purpose of this Act, has not come into force. Resultantly, foreign medical qualification is recognised to be equivalent to MBBS qualification in India, would have to be accepted. By virtue of the rule of equivalence applied and accepted and the foreign medical qualification having been included in Part-II in the Third Schedule of the Act remains uneffected by the amendment promulgated under Sub-section (4A). Thus, the Screening Test Regulation by virtue of promulgation of the Regulation under Section 33 of the Act, would be neither here nor there so far as the petitioners are concerned.

38. Second point which deserves consideration is that admittedly the petitioners have been granted provisional registration in pursuant to Section 25 of the Act. The perusal of the said provisions shows that a person would be entitled to provisional registration if he has acquired qualification granted by medical institution outside India which has been recognised and included in the third schedule and that if proper evidence has been produced that such person has already undergone practical training in an approved institution, he shall be entitled to be registered provisionally in a State Medical Register and shall be entitled to practice in the approved institution for the purpose, of such training. The factum of granting provisional registration has been very fairly admitted by the Central Government and that the only condition which has been imposed is that the authenticity and verification of such qualification and/or the change of the institution shall have to be verified. Apart from this, no other condition has been imposed. However, the petitioners as an abundant caution joined the practical training/internship for 12 months at the time of granting of the provisional registration. It is envisaged under Sub-section (4) of Section 25 that a person registered provisionally and if he has completed practical training referred to in Sub-section (1) or such person is in the employment in a resident medical capacity in any approved institution or in the medical service of the Armed Forces of the Union, as the case may, be shall be entitled to registration in the State Medical Register under Section 15 of the Act. Since the qualification acquired by the petitioners does not get diluted by way of promulgation of the amendment provided by way of Sub-section (4A) to Section 13 and that the rule of equivalence having been applied and the medical qualification earned from abroad having been accepted under Part II of the Third Schedule of the Act, upon completion of the practical training/internship which may not be necessarily required to be undergone as the petitioners have already undergone practical training while completing six years course in USSR, they would be entitled to grant of permanent registration. 39. The judgment of the Apex Court rendered in MCI's case (supra) is distinguishable as the Apex Court dealt with the regulation promulgated by MCI under Section 33 of the Act i.e. providing screening test after March 15, 2002 but the factum of enforcement of the cut off date required to be notified under Sub-section (4A) of Section 13 having not been raised before the Apex Court, the date remains undefined. Resultantly, the amendment providing the condition to qualify screening test is not applicable against the petitioners. Thus, the petitioners would be entitled to the grant of permanent registration.

40. In the case at hand, the qualification acquired by the petitioners admittedly is equivalent to the qualification in India i.e. MBBS and that the distinction of practical training being not contested so effectively. I refrain myself from expressing any opinion in this regard. Since the practical training/ internship has been completed by the petitioners and by application of rule of equivalence, the foreign medical qualification being equivalent to the medical qualification in India the petitioners are, therefore, entitled to permanent registration. It is made clear that the petitioners shall not be required to appear in the screening test.

41. The Medical Council of India, is therefore, directed to decide the cases of the petitioners upon the production of form of completion of practical training/internship accordingly within one month from the date of receipt of a certified copy of this order from this Court or a certified copy thereof from the petitioners whichever is earlier. The petition is disposed of in the above terms. No order as to costs.

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