Kerala High Court
Aiswarya Pichirikkat vs The Joint Director ( Medical ) on 11 January, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 27145 OF 2021
PETITIONER:
HESTINA HENTRY PEREIRA
AGED 23 YEARS
D/O HENTRY MICHAEL PEREIRA, H.B. BHAVANAM,
TC 90/1098, TITANIUM POST, KOCHUVELI,
THIRUVANANTHAPURAM-695 021.
BY ADV R.SUDHIR
RESPONDENT:
THE JOINT DIRECTOR (MEDICAL)
DEPARTMENT OF FINAL EXAMINATIONS,
NATIONAL BOARD OF EXAMINATIONS,
NAMS BUILDING, ANSARI NAGAR,
RING ROAD, NEW DELHI-110 29.
BY ADV MANU S., ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, ALONG WITH WP(C).27150/2021,
27148/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.27145/2021 & Connected cases
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 27148 OF 2021
PETITIONER:
IVIN THANKAM SAJI,
AGED 23 YEARS
D/O. SAJI MATHEW,
CHARUVILA THEKKETHIL HOUSE,
KARUVATTA ADOOR P.O.,
PATHANAMTHITTA DISTRICT 691 523.
BY ADV R.SUDHIR
RESPONDENT:
THE JOINT DIRECTOR (MEDICAL),
DEPARTMENT OF FINAL EXAMINATIONS
DEPARTMENT OF FINAL EXAMINATIONS,
NATIONAL BOARD OF EXAMINATIONS,
NAMS BUILDING, ANSARI NAGAR
RING ROAD, NEW DELHI 110029.
BY ADV MANU S., ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, ALONG WITH WP(C).27145/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.27145/2021 & Connected cases
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 27150 OF 2021
PETITIONER:
AISWARYA PICHIRIKKAT,
AGED 23 YEARS
D/O. SANTHOSH MENON, KRISHNASREE,
VILLADOM P.O., KUTTUMUKKU,
THRISSUR 680 631.
BY ADVS.
SANTHEEP ANKARATH
R.SUDHIR
RESPONDENT:
THE JOINT DIRECTOR ( MEDICAL ),
DEPARTMENT OF FINAL EXAMINATIONS,
NATIONAL BOARD OF EXAMINATIONS,
NAMS BUILDING, ANSARI NAGAR,
RING ROAD, NEW DELHI 110029.
BY ADV MANU S., ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, ALONG WITH WP(C).27145/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.27145/2021 & Connected cases
:4:
N. NAGARESH, J.
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W.P.(C) Nos.27145, 27148 and 27150 of 2021
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Dated this the 11th day of January, 2022
JUDGMENT
~~~~~~~~~ The petitioners in these three writ petitions underwent "Bachelor of Science Doctor of Medicine" (BSC MD) Course from Our Lady of Fatima University, Valenzuela, Manila. On successful completion of the Course, the petitioners were issued "Doctor of Medicine Degree" by the University. To practice Medicine in India, the petitioners have to clear an examination conducted by the National Board of Examinations for Foreign Medical Graduates.
2. The petitioners submitted applications for appearing in the Examination for Foreign Medical Graduates in the month of October, 2021. Though the petitioners submitted all documents in proof of their successful completion of BSC MD Course from the foreign University, W.P.(C) No.27145/2021 & Connected cases :5: the petitioners were required to produce scanned copy of the Original Medical Qualification Certificate apostilled/attested by the Indian Embassy. The petitioners approached the Indian Embassy in Manila to issue apostilled Certificate before 30.11.2021 so that the same can be produced before the respondent in time.
3. By Ext.P3, the Ministry of Foreign Affairs, Manila informed that the Certification would be made available only on 09.12.2021. Though the petitioners took all efforts to get the Certificate apostilled before the stipulated date, they were informed that due to Covid-19 restrictions, the Ministry of Foreign Affairs will issue the document only on 09.12.2021. The last date for submission of application/documents to the respondent was 30.11.2021.
4. The petitioners therefore approached this Court filing these writ petitions. The petitioners submitted that they will be able to produce the said document on 15.12.2021. Taking into account the afore fact situation, this Court passed interim orders in these writ petitions directing the W.P.(C) No.27145/2021 & Connected cases :6: respondent to issue Admit Card to the petitioners provisionally on condition that the petitioners produce attested copies of Degree Certificate. This Court, in the interim orders, made it clear that the participation of the petitioners in the Examination will be subject to the outcome of these writ petitions.
5. When these writ petitions came up for hearing today, the petitioners submitted that they were permitted to appear in the Examination pursuant to the interim orders of this Court and subsequently, the petitioners produced the requisite original Foreign Medical qualification Certificate apostilled/attested by Indian Embassy before the respondent.
6. The respondent resisted the writ petitions filing counter affidavits. The respondent urged that candidates who fail to submit the documents as prescribed in the Information Bulletin for FMGE will not be allowed to appear in the Examination and would be declared ineligible to appear. The learned Assistant Solicitor General of India, relying on the Information Bulletin of the Foreign Medical Graduate W.P.(C) No.27145/2021 & Connected cases :7: Examination, pointed out that the Foreign Medical Degree should be attested either by the Embassy of India or should be apostilled by the appropriate authority of the foreign country concerned. The provision cannot be watered down.
7. Relying on the judgment of the Hon'ble Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and others v. Paritosh Bhupeshkumar Sheth and others [AIR 1984 SC 1543], the ASGI argued that the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic W.P.(C) No.27145/2021 & Connected cases :8: view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice.
8. Heard the learned counsel for the petitioner and the learned ASGI representing the respondent.
9. In these writ petitions, the fact that the petitioners have passed and obtained a Foreign Medical Degree, is not in dispute. The fact that the petitioners are eligible to appear in the Foreign Medical Graduate Examination is also admitted. The objection raised by the respondent is that to appear in the examination, the candidates should submit all requisite documents including the apostilled/ attested copy of the Foreign Degree before the last date for submission of application. As the petitioners have not produced the document in time, they are not eligible to appear in the examination.
W.P.(C) No.27145/2021 & Connected cases :9:
10. The argument of the respondent that the academic requirements cannot be watered down especially in view of the law laid down by the Apex Court and High Courts, is true. But, in these cases, it has to be noted that the petitioners were eligible to apply for appearing in the Foreign Medical Degree Examination subject to production of documents. The petitioners produced all requisite documents along with the application. They could not produce apostilled copy of the Foreign Degree in time, not because of their fault, but due to the delay in issuing original Degree Certificate by the Foreign University. It is not disputed that such delay is resultant of Covid-19 pandemic.
11. In the afore circumstances, this Court passed interim orders permitting the petitioners to appear in the examination subject to further orders from this Court. The petitioners appeared in the examination and they have also produced the requisite documents before the respondent subsequently. The situation peculiar to these writ petitions, has arisen due to Covid-19 pandemic. As long as the W.P.(C) No.27145/2021 & Connected cases : 10 : petitioners' eligibility to appear in the FMGE is not under dispute, it would not only be harsh but would also be arbitrary, to deny them the opportunity to appear in the Examination in view of the fact that their failure to produce the apostilled copy of Foreign Degree is solely due to the Covid-19 pandemic subsisting across the world.
In the circumstances of these cases, the writ petitions are disposed of confirming the interim orders passed in the writ petitions and declaring that the petitioners should be treated as having duly appeared in the Foreign Medical Graduate Examination, December-2021 conducted by the respondent.
Sd/-
N. NAGARESH, JUDGE aks/12.01.2022 W.P.(C) No.27145/2021 & Connected cases : 11 : APPENDIX OF WP(C) 27145/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPIES OF CERTIFICATE ISSUED BY THE UNIVERSITY EVIDENCING COMPLETION OF THE COURSE BY THE PETITIONER Exhibit P2 TRUE COPY OF THE DOCUMENT EVIDENCING THE APPLICATION SUBMITTED BY THE PETITIONER AND DATED 29.10.2021 Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED TO OUR LADY OF FATIMA UNIVERSITY WHICH WAS FORWARDED TO THE PETITIONER DATED 118TH NOVEMBER 2021 Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY OUR LADY OF FATIMA UNIVERSITY TO THE OFFICE OF THE CONSULAR DATED 21.11.2021 Exhibit P5 TRUE COPY OF EMAIL ISSUED BY THE RESPONDENT TO THE PETITIONER DIRECTING TO FORWARD SCANNED COPY OF THE APOSTILLED CERTIFICATE Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT RESPONDENTS' EXTS R1(a) COPY OF THE LETTER DT 9.3.2021 ISSUED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE. W.P.(C) No.27145/2021 & Connected cases : 12 : APPENDIX OF WP(C) 27148/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF CERTIFICATE ISSUED BY THE UNIVERSITY EVIDENCING COMPLETION OF THE COURSE BY THE PETITIONER.
Exhibit P2 TRUE COPY OF THE DOCUMENT EVIDENCING
THE APPLICATION SUBMITTED BY THE
PETITIONER AND DATED 2.11.2021.
Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED
TO OUR LADY OF FATIMA UNIVERSITY WHICH WAS FORWARDED TO THE PETITIONER DATED 18TH NOVEMBER 2021.
Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY OUR
LADY OF FATIMA UNIVERSITY TO THE
OFFICE OF THE CONSULAR DATED
21.11.2021.
Exhibit P5 TRUE COPY OF EMAIL ISSUED BY THE
RESPONDENT TO THE PETITIONER DIRECTING TO FORWARDED SCANNED COPY OF THE APOSTILLED CERTIFICATE.
Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.
RESPONDENTS' EXTS R1(a) COPY OF THE LETTER DT 9.3.2021 ISSUED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE. W.P.(C) No.27145/2021 & Connected cases : 13 : APPENDIX OF WP(C) 27150/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPIES OF CERTIFICATE ISSUED BY THE UNIVERSITY EVIDENCING COMPLETION OF THE COURSE.
Exhibit P2 TRUE COPY OF THE DOCUMENT EVIDENCING THE APPLICATION SUBMITTED BY THE PETITIONER AND DATED 3.11.2021.
Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED TO UNIVERSITY WHICH WAS FORWARDED TO THE PETITIONER DATED 18TH NOVEMBER 2021.
Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY THE UNIVERSITY TO THE OFFICE OF THE COUNSULAR DATED 21.11.2021.
Exhibit P5 TRUE COPY OF EMALI DATED 27.11.2021 FROM THE RESPONDENT TO THE PETITIONER. Exhibit P6 TRUE COPY OF THE REPRESENTATION BY EMAIL DATED 26.11.2021 SUBMITTED BY THE PETITIONER.
Exhibit P7 TRUE COPY OF THE REPRESENTATION BY EMAIL DATED 28.11.2021 SUBMITTED BY PETITIONERS FATHER.
RESPONDENTS' EXTS R1(a) COPY OF THE LETTER DT 9.3.2021 ISSUED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE.