Punjab-Haryana High Court
Dr. Satish Sharma And Ors. vs The Union Of India (Uoi) And Anr. on 19 November, 1999
Equivalent citations: (2000)125PLR224
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT G.S. Singhvi, J.
1. Whether the decision of the Medical Council of India (for short, the Council) to deny registration to the petitioners under the India Medical Council Act, 1956 (hereinafter referred to as 'the Act') is legally correct and justified is the question which arises for determination in these petitions filed under Article 226 of the Constitution of India.
2. For the sake of brevity, we deem it proper to refer to the facts of C.W.P. No. 12011 of 1998.
3. After passing 10+2 examination in Medical stream, the petitioners joined one year language course at Tashkent (Uzbekistan) during the academic session 1991-92 because the passing of that course was a condition precedent for admission to the medical course in any of the Universities of the erstwhile U.S.S.R. After passing the language course, the petitioners joined M.D. (General Medicine) in the Section Tashkent State Medical Institute. Tashkent (for short, 'the Institute') in the year 1992. The duration of that course was 6 years. However, the duration of the course was reduced by the Institute from 6 years to 5-1/2 years for the batch to which the petitioners belonged and the course was completed by curtailing the vacations. This had been done in order to enable the local candidates of Uzbekistan to under go six months further training in Military medicine Course which was necessary for compulsory two years service in the Army. At the end of the course, the petitioners were awarded degrees of M.D. by the Institute. Thereafter, they applied for registration under the provisions of the Act but their applications have been rejected in view of the resolution dated 17.9.1997 passed by the Executive Committee of the Council which was approved by its General Body on 23.10.1997.
4. The petitioners have challenged the legality of the decision taken by the council and have prayed for quashing of the letters like Annexure P.1 which is addressed to petitioner no. 1. In the writ petition. It has been averred that the degree of M.D. (Physician) in General Medicine awarded by the Institute is recognised by the Council and as the Central Government has not issued any notification de-recognising the degrees awarded by the Universities/ Institutes of the erstwhile U.S.S.R. they are entitled to be registered under the Act as of right. They have further averred that four candidates from the batch of 1989-1995 and 25 candidates from the batch of 1990-1996 who were awarded degrees after undergoing the course of 5-1/2 years duration have been granted registration by the Council and, therefore, there is no rhyme or reason to deny registration to them. In support of their case, the petitioners have relied on the letter Annexure P.3 dated 13.3.1998 written by Professor K.Y. Karimov. Chancellor. Second Tashkent State Medical Institute. Tashkent. Uzbekstan (C.I.S.) and the letter Annexure P.7 dated 24.6.1997 written by the Council to the father of petitioner no. 1. They have also relied on the order dated 13.5.1998 passed by the learned Single Judge of Rajasthan High Court in C.W.P. No. 1430 of 1998. Dr. Sanju Singh v. Union of India and Ors. (Annexure P.8)
5. The salient features of the written statement filed on behalf of the council in the form of the affidavit of its Deputy Secretary-Shri A.S. Rahi are:
(i) that the duration of medical courses in medical Institutions of the erstwhile U.S.S.R (now Russia and C.I.S. countries) is six years and after completion of six years course, one has to undergo practical training i.e. internship for one year and, therefore, the mere completion of six years course does not entitle the student to practice independently:
(ii) that vide resolutions dated 18.7.1995 the Executive Committee of the Council decided not to grant provisional registration to the students studying in Russia for doing internship in India unless the candidate has obtained the requisite degree from Russia at the end of medical course as per the provisions of Section 13(3) of the Act:
(iii) that the Executive Committee further decided that permanent registration will be granted to the candidate only after completion of one year's internship training in India/Russia as per the provisions of the Act:
(iv) that decision was reviewed in the meeting of the Executive Committee held on 10.5.1996 and it was decided to maintain status quo regarding the students who were already undergoing M.D. (General Physician) Course in the recognised institutions of the erstwhile U.S.S.R. In that meeting, it was also decided that the decision contained in the resolution dated 18.7.1995 would be made applicable to the students who have taken admission after 1.1.1995. The latter decision was approved by the general body of the Council: and
(v) that the matter was again considered in the meeting of the Executive Committee held on 17.9.1997 and it was decided to reiterate the decision taken by it in its meeting held on 18.7.1995.
6. In his affidavit Shri Rahi has further deposed that the petitioners who have undergone the course of 5-1/2 years duration on the basis of admission granted to them in 1992 are not eligible to be granted permanent registration and therefore, the council has rightly declined their request. Shri Rahi has stated that the Council had prescribed a higher eligibility criteria for taking a written and oral competitive test for admission to the medical Institutions in the erstwhile U.S.S.R. and the students sponsored through the council had to pass those tests but private agencies have been recruiting Indian students on behalf of the medical Institutions of erstwhile U.S.S.R. purely on commercial and monetary considerations and, therefore, the petitioners who belong to the latter category have been rightly denied registration.
7. After the filing of written statement, respondent No. 2 filed CM. No. 24016 of 1999 for placing on record copy of the order dated 4.8.1999 passed by a Single Judge of the Rajasthan High Court in C.W.P No. 3105 of 1998 Ojpal Sharma v. Union of India and others and four connected petitions and the stay order dated 13.7.1999 passed by a Division Bench of the Jammu & Kashmir High Court in L.P.A. (SW) No. 239 of 1999 - Medical Council of India and Anr. v. Dr. Jaspreet Singh and Ors.
8. We have heard S/Shri G.S. Bal, Arun Palli, T.P. Singh and B.S. Bhasaur, counsel for the petitioners and Shri Amarjit Singh, counsel for the Council.
9. First of all we may notice the relevant provisions of the Act. Section 11 of the Act speaks of recognition of degrees or medical institutions in India. Section 12 deals with recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity. Section 13 contains provisions for recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule. Section 14 contains special provision for recognition of medical qualifications granted by medical institutions in countries with which there is no scheme of reciprocity. Section 15 enumerates the right of persons possessing qualifications included in the Schedules. Section 16 empowers the Council to call for information from every University of medical institution in India which grants a recognised medical qualification. Sections 17 and 18 deal with inspection of examinations and visitors at examinations. Section 19 pertains to withdrawal of recognition. Section 13 (1) to (4), 15 and 19 of the Act which have bearing on the claim of the petitioners 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) The medical qualifications 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 shall also be recognised medical qualifications for the purposes of this Act.
(2) The medical qualifications granted to a citizen of India:-
(a) before the 15th day of August, 1947 by medical institution in the territories now forming part of Pakistan, and
(b) before the 1st day of April, 1937, by medical institutions in the territories now forming part of Burma.
Which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act.
(3) The medical qualifications granted by medical institutions outside India which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrollment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country, he has undergone such practical training as may be prescribed.
(4) The Central Government, after consulting the Council, may be notification in the Official Gazette, amend Part II of the Third Schedule so as to include therein any qualification granted by a medical institution outside India which is not included in the Second Scheduled.
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15. Right of persons possessing qualifications in the Schedules to be enrolled- (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrollment on any State Medical Register.
(2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a state medical Register,-
(a) Shall hold office as physician or surgeon or any other office (by whatever designation called ) in Government or in any institution maintained by a local or other authority :
(b) Shall practise medicine in any state:
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner:
(d) shall be entitled to give evidence at any inquest or in any Court of law as an expert under Section 45 of the Indian Evidence Act, 1972 on any matter relating to medicine.
(3) Any person who acts in contravention of any provision of Sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
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19. Withdrawal of recognition.- (1) When upon report by the Committee or the visitor, it appears to the Council -
(a) that the courses of study and examination to be undergone in or the proficiency required from candidates at any examination held by, any university or medical institution, or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University or medical institution or in any college or other institution affiliated to that University, do not conform to the standards prescribed by the Council, the Council shall make a representation to that effect to the Central Government.
(2) After considering such representation, the Central Government may send to the State Government of the State in which the University or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University or medical institution, with an intimation of the period within which the University of medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or, where no explanation is submitted within the period fixed, then on the expiry of that period, the State Government shall make its recommendations to the Central Government.
(4) The Central Government, after making such further inquiry, if any, as it may think fit, may, by notification in the official Gazette direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date or that the said medical qualification if granted to students of a specified college or institution affiliated to any University shall be a recognised medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be recognised medical qualification in relation to a specified college or institution affiliated to any University only when granted after a specified date."
10. An analysis of the above quoted provisions shows that the medical qualifications granted by medical institutions outside India which are included in part II of the Schedule are also recognised medical qualifications for the purposes of the Act but a person possessing such qualification is entitled to enrollment on any State Medical Register only if he is citizen of India and has undergone such practical training after obtaining the qualification as may be required by the rules or regulations in force in the country, By virtue of Section 15, medical qualifications included in the Schedules have been treated as sufficient qualifications for enrollment on any State Medical Register. Section 19 contains the procedure which is required to be followed for withdrawal of recognition. It provides for submission of report by the Committee or the visitor about the course of study and examination to be conducted by the concerned institution, the staff, equipment, accommodation and other facilities for instruction and training and also casts an obligation on the State Government to give its own remarks on the status of a particular institution. Thereafter, the Central Government can, by notification in the Official Gazette, direct the making of entry in the appropriate Schedule against the concerned medical qualification.
11. If the grievance of the petitioners is examined in the light of the material placed on the record and what we have said above with regard to the scope of the relevant provisions of the Act, we do not have the slightest hesitation to record a conclusion that the decision taken by the Executive Committee of the Council not to recognise the degrees possessed by the petitioners for the purpose of their registration under the Act is ultra vires to the provisions of the Act. Admittedly, the Central Government has not issued any notification under Section 19(4) of the Act for de-recognition of the degrees awarded by the Institute and there is no provision in the Act under which the Council is empowered to take a final decision on the issue of de-recognition of the degrees awarded by a particular institution. Therefore, the resolutions dated 18.7.1995 and 17.10.1996 passed by the Executive Committee of the Council could not have been made basis for declining the petitioners prayer for registration. This is how the council has also interpreted the provisions of the Act, as is clearly borne out from the letter Annexure P.7 dated 24.6.1997 written by it to the father of petitioner No. 1. We therefore. hold that the decision of the Council not to accept the petitioners prayer for registration under the Act is illegal and ultra vires to the provisions of the Act.
12. We also find considerable merit in the argument of the learned counsel for the petitioners that the impugned decision is vitiated by arbitrariness and violation of Article 14 of the Constitution of India. In paragraph 21 of C.W.P. No. 12011 of 1998, it has been categorically averred that the students of the batches of 1989-1995 and 1990-19% who were awarded medical degrees by the Institute have been granted registration under the Act. The respondents have not controverted their statement. Therefore, we are left with no option but to record a finding that the impugned decision of the Council is totally irrational and arbitrary and its decision to decline the petitioners prayer for registration has resulted in violation of their fundamental right to equality guaranteed under Article 14 of the Constitution of India.
13. Before concluding, we consider it appropriate to deal with the objection raised by the Council to the maintainability of these petitions. Shri Amarjit Singh argued that this Court does not have the territorial jurisdiction to entertain the grievance of the petitioners because no cause of action has accrued to the petitioners within the States of Punjab, Haryana or Union Territory, Chandigarh. He pointed out that the resolutions dated 18.7.1995 and 17.10.19%, which constitute the foundation of the impugned decision were passed by the Executive Committee of the Council at New Delhi and, therefore, the writ petition, if any, should have been filed in the High Court of Delhi. In our opinion, the argument of the learned counsel is misconceived and deserves to be rejected. A careful reading of the averments made in the petitions shows that the petitioners have not challenged the resolutions dated 18.7.1995 and 17.10.1996 passed by the Executive Committee of the Council. In fact, the only prayer made by them is to quash the communication like Annexure P.1 with a consequential direction to the Council to grant them registration under the provisions of the Act. These communications were sent to the petitioners in response to the applications submitted by them for grant of registration under the Act. Each of the petitioners has received the impugned communications at their respective residences which are within the territorial jurisdiction of this Court. Therefore, part of the cause of action has accrued to them within the jurisdiction of this Court. Hence the objection raised on behalf of the Council is rejected.
14. We have gone through the two orders passed by the Rajasthan High Court and the interim order passed by a Division Bench of the Jammu & Kashmir High Court on which reliance has been placed by the counsel for the parties. The order dated 13.5.1998 passed by the learned Single Judge of Rajasthan High Court in C.W.P. No. 1430 of 1998-Dr Sanju Singh v. Union of India and Ors. supports the claims of the petitioners. As against this, order dated 4.8.1999 passed by another learned Single Judge of that Court in C.W.P. No. 3105 of 1998-Ojpal Sharma v. Union of India and Ors. and connected petitions support the objection raised by the Council to the maintainability of the writ petitions. With great respect to the learned Single Judge, we are unable to agree with the view taken by him on the issue of territorial jurisdiction of the High Court to entertain the writ petition. The interlocutory order passed by the Division Bench of Jammu & Kashmir High Court staying the implementation of the order passed by the learned Single Judge of that Court has no bearing on the decision of these petitions.
15. For the reasons mentioned above, the writ petitions are allowed. The decision of the council not to grant registration to the petitioners under the provisions of the Act is declared illegal. Annexure P-1 and other similar notices which have been impugned in the writ petitions are quashed with a direction to the council to pass fresh order granting registration to the petitioners under the provisions of the Act. This shall be done within 2 months of the submission of certified copy of this order. It is, however, made clear that this shall be subject to the petitioners fulfilling other conditions of eligibility prescribed under the Act for registration of the Candidates.