Kerala High Court
Leeba Mary Eapen vs The Tranvancore-Cochin Council Of on 30 October, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY,THE 30TH DAY OF OCTOBER 2020/8TH KARTHIKA,1942
WP(C).No.2344 OF 2020(P)
PETITIONER:
LEEBA MARY EAPEN,AGED 34 YEARS,
D/O. EAPEN ABRAHAM, KOCHIKUZHIYIL
HOUSE, KAIYALATHUPARAMBIL,
ANICAD P.O.,MALLAPPALLY,
PATHANAMTHITTA DISTRICT,PIN-689 585.
BY ADV. SRI.JOHN JOSEPH(ROY)
RESPONDENTS:
1 THE TRANVANCORE-COCHIN COUNCIL OF
MODERN MEDICINE REPRESENTED BY
ITS REGISTRAR, COMBINED COUNCIL BUILDINGS,
RED CROSS ROAD, THIRUVANANTHAPURAM-695 935.
2 THE MEDICAL COUNCIL OF INDIA,
PODAT-14, SECTOR-8, DWARAKA, NEW DELHI-14,
REPRESENTED BY ITS REGISTRAR-110 001
R1 BY SRI.N.RAGHURAJ, SC, TCMC & KNMC
R2 BY SRI.TITUS MANI VETTOM, SC, MCI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 30-10-2020, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC No.2344/2020
:2:
N. NAGARESH, J.
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W.P.(C) No.2344 of 2020
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Dated this the 30th day of October, 2020
JUDGMENT
~~~~~~~~~ The petitioner is before this Court seeking to quash Ext.P11 and to direct the 1 st respondent to issue Provisional Registration on Ext.P10 application forthwith to enable her to have her internal in a recognised medical institution in Kerala and also to apply for Permanent Registration on completion of the internals.
2. The petitioner states that she is an Indian Citizen now residing at Mallappally. As petitioner's parents were working abroad, she had her studies in Abudhabi, in a school affiliated to CBSE. The petitioner applied to the 2 nd respondent-Medical Council of India (MCI) for eligibility WPC No.2344/2020 :3: certificate for admission in a Graduate Medical Course in a Foreign Medical Institution. The 2 nd respondent-MCI in exercise of its powers under "the Eligibility Requirement for taking admission in an undergraduate Medical Course in a Foreign Medical Institution Regulations, 2002" framed under Section 13(4B) of the Indian Medical Council Act, 1956, issued Ext.P2 certifying that the petitioner is eligible to apply for admission in a Graduate Medical Course leading to Primary Medical Qualification equivalent to MBBS in India.
3. The petitioner joined the course 'Bachelor of Medicine and Bachelor of Science' in the International University of the Health Sciences (IUHC), St. Christopher and Nevis, St. Kitts, West Indies. The petitioner completed her academic studies and practical training in well reputed institutions and came out successful in the year 2010. The IUHC awarded the petitioner Ext.P3 certificate of Degree of Bachelor of Medicine and Bachelor of Surgery.
4. The petitioner states that her batchmates in the Institution faced difficulties in appearing on Screening Test WPC No.2344/2020 :4: and for obtaining Provisional and Permanent Registration in Kerala. They filed W.P.(C) No.23676/2011 and a learned Single Judge allowed the writ petition. The MCI filed W.A. No.1981 of 2012. The said Writ Appeal was considered along with certain other writ petitions with similar reliefs. The Division Bench dismissed the Writ Appeal filed by the MCI and allowed the writ petitions filed by the students similarly placed like the petitioner, as per Ext.P7 judgment dated 29.08.2014.
5. The petitioner thereafter appeared for Screening Test for Indian Nationals with Foreign Medical Qualification- June 2019 conducted by the National Board of Examinations (NBE) and came out successful. The petitioner thereafter applied to the Travancore Cochin Medical Council for enrollment under Section 13(3) of the Indian Medical Council Act for provisional registration to enable her to undergo One year Internship in an approved Institutions and also for further Permanent Registration. The application was not promptly considered. In W.P.(C) No.30003 of 2019 filed by WPC No.2344/2020 :5: the petitioner, this Hon'ble Court directed the Council to take a decision on application before 15.01.2020. The respondents simply rejected the application as per Ext.P11.
6. The petitioner contends that the reasons for rejection is that the petitioner has acquired Foreign Medical Degree from different Institutions and that the petitioner has not undergone regular studies. The petitioner has, in fact, undergone regular studies. The reasons for rejection contained in Ext.P11 were considered by the Division Bench of this Court in Ext.P7 judgment and this Court negatived the stand of the respondents. The petitioner is similarly situated like the petitioners in those writ petitions. Ext.P11 is therefore highly arbitrary and unsustainable.
7. The 1st respondent, the Travancore Cochin Council of Modern Medicine controverted the contentions of the petitioner by filing counter affidavit . The 1 st respondent stated that the Council of Modern Medicine, in its meetings held on 20.09.2019 and 10.10.2019, decided to grant registration only to those foreign medical graduates who WPC No.2344/2020 :6: acquire medical degrees from foreign medical institutions approved by the 2nd respondent-MCI through regular studies. It was further decided not to grant registration to those medical graduates who have obtained degrees through Off-campus method.
8. According to the respondents, the petitioner obtained medical degree from IUHS, West Indies through Off-campus study in 2010. She chose to apply for registration only in 2019. The petitioner has not visited the University even for a single day. The petitioner completed her studies in Dubai and Hyderabad, which shows that her study was through Off-campus. The petitioner has not disclosed the names of the Institutions where she had undergone the medical course.
9. It has been further contended that Ext.P11 impugned in the writ petitions, is only a communication. The communication was based on resolutions of the Council, which are not under challenge. Hence, the writ petition is not maintainable. The 1st respondent-Council is of the opinion WPC No.2344/2020 :7: that granting registration to ill-equipped medical degree holders will not be conducive in public interest. The Hon'ble Supreme Court also has ordered ban on distant education in Technical Education sector.
10. Counsel for the petitioner, Advocate John Joseph, argued that the 2nd respondent-MCI has issued Ext.P1 Eligibility Certificate certifying that the petitioner is eligible for taking admission in Undergraduate Medical Course. Thereupon, the petitioner joined IUHS, West Indies. The said University has conferred on the petitioner the Degree of Bachelor of Medicine and Bachelor of Surgery. As evidenced by Ext.P4, the High Commission of India, Georgetown has made it clear that all the degrees and transcripts are apostilled under Hague Convention of 5 October, 1961 by the Government of St. Kitts and Nevis. Both India and St. Kitts & Nevis are members of Apostill Convention of October, 1961. Therefore, the documents produced by the petitioner are acceptable in India without any attestation.
WPC No.2344/2020:8:
11. The learned counsel for the petitioner pointed out that Ext.P13 would show that the petitioner has undergone regular pre-clinical course and Ext.P14 would show that the petitioner has underwent post clinical training in Care Institute of Medical Science. The respondents cannot take a stand that the petitioner cannot be given registration, even though she has passed the Screening Test for Foreign Medical Graduates, conducted by the National Board of Examination. Above all, a Division Bench of this Court has held in Ext.P7 judgment that the batchmates of the petitioner, who have undertaken Medical Course in the same University in West Indies, during the same period are eligible for provisional registration and hence denying the same rights and benefits to the petitioner would be grossly arbitrary and illegal.
12. Standing Counsel for the 1st respondent-TCCMM argued that what is under challenge in the writ petition is a consequential communication and without challenging the basic orders/resolutions, the writ petition is not maintainable. WPC No.2344/2020 :9: As far as Ext.P7 judgment of this Court is concerned, the 1 st respondent is not party to the said judgment and hence is not bound by Ext.P7. As far as petitioners in Ext.P7 judgment are concerned, they underwent pre-clinical studies in Kerala.
13. The Standing Council pointed out that the eligibility of the petitioner for registration in this case, is to be considered under Section 23 of the Travancore-Cochin Medical Practitioners Act, 1953. The law applicable to the petitioner would be the law as existing as on the date of consideration of the petitioner's application and not the date of application. Ext.P10 application was received by the Council after the cut-off date 20.09.2019, the date of the resolution of the 1st respondent. Hence the petitioner shall be governed by the said resolution.
14. Distinguishing the facts related to cases in Ext. P7 judgment, the Standing Counsel contended that this Court evaluated the details of the study of the petitioner, perusing affidavits and only after convincing of the bonafides of the petitioners therein, the judgment was delivered. In the WPC No.2344/2020 : 10 : petitioner's case, there are no materials to ascertain the same. The learned Standing Counsel for the 2 nd respondent- MCI supported the stand taken by the 1 st respondent.
15. Heard the learned counsel for the petitioner and learned Standing Counsel appearing for the 1 st respondent- TCCMM and the 2nd respondent-MCI .
16. While considering the case of the petitioner it is necessary to appreciate the Ext.P7 judgment of this Court, which also dealt with the same questions in respect of student who underwent Medical Degree Course from the same University in West Indies. In Ext.P7, this Court held that the IUHS is a University authorized by the Government of St. Kitts & Nevis and entitle the graduates therefrom to practice in West Indies. The petitioners therein have acquired instructions through 'Universal Empire Institutions of Medical Sciences Pvt. Ltd.'. The students took clinical training in Bombay Trust Hospital, Mumbai. This Court found that when students who have obtained medical qualifications outside India recognized for enrollment as WPC No.2344/2020 : 11 : medical practitioners in that country, they will still be prohibited from registration in India unless they qualify a Screening Test in India. This Court found that those petitioners who obtained primary medical qualification as defined by the Screening Test Regulations 2002 are eligible to apply for Screening Test. The petitioner herein also took Degree from the same University IUHS during the same time and if all other parameters are the same, the petitioners should be held entitled to similar reliefs.
17. The prime distinguishing factors against granting relief to the petitioner herein based on Ext.P7, pointed out by the respondents are:-
(i) The petitioner has undergone pre-clinical studies at Abudhabi; and clinical training in Hyderabad.
(ii) In the case of petitioner in Ext.P7, this Court was convinced from the documents and pleading available therein that the petitioners underwent regular studies.
It was contended that on these two counts, Ext.P7 judgment is not liable to be followed on the petitioner's case. WPC No.2344/2020 : 12 :
18. Ext.P7 judgment would show that the petitioners therein though joined IUHS, West Indies, underwent pre-clinical studies/training in the Universal Empire Institution of Medical Sciences Pvt. Ltd. Ext.P13 order dated 26.06.2007 produced by the petitioner would show that the petitioner has also done pre-clinical course in the same Universal Empire Institutions of Medical Sciences Pvt. Ltd. Ext.P15 Academic Record in respect of the petitioner issued by the IUHS would show that the petitioner has attended classes in various subjects for various durations and it was based thereon, that Ext.P3 Degree was conferred on the petitioner. This Court finds no reason to doubt the veracity of these documents.
19. As far as clinical training program is concerned, the Institution in which the petitioner studied posted the petitioner to Care Hospitals, Hyderabad for clinical training for defined durations. This is evident from Ext.P13. Ext.P14 would show that the petitioner has successfully completed her program in Care Hosptial, Hyderabad.
WPC No.2344/2020: 13 :
20. It is further to be noted that National Board of Examinations found the petitioner qualified to appears in Screening Test Regulations, and after the petitioner passing the Test, the Board issued Ext.P8 Result, requiring the petitioner that as per Public Notice of the MCI dated 21.04.2014, the petitioner has to submit her result to the State Medical Council for registration.
21. Section 23 of the Travancore-Cochin Medical Practitioners Act, 1953 is as follows:-
"23. Eligibility for registration -
(1) Subject to the provisions of sub-sections (2) and (5).-
(i) every holder of a recognised qualification and every practitioner holding appointment under the Government at the commencement of this Act, and
(ii) every person who, within the period of one year or such other longer period as maybe fixed by the Government from the date of which this Act come into force, proves to the satisfaction of the appropriate council that he has been in regular practice as a practitioner for a period of not less than five years preceding the first day of April, 1953, shall be eligible for registration under this Act:
Provided however that no practitioner shall be registered under clause (ii) after the expiration of one year, or such other longer period as may be fixed by the Government, from the date on which WPC No.2344/2020 : 14 : this Act comes into force.
(2) Applicants for registration under clause (ii) of sub-
section (1) shall produce a certificate in Form I as set forth in the schedule. The certificate shall be from an officer of the Revenue Department not below the rank of a Tahsildar or any other person authorised by the Government in this behalf.
(3) The Government may, after consulting the appropriate council, permit the registration of any person who shall furnish to such council proof that he is possessed of a medical degree, diploma or certificate of any University, medical school or college approved by such council other than those mentioned in the Schedule.
(4) The Government shall have power to direct the registration of any practitioner who, at the time of registration under this section, is employed in a hospital, asylum, infirmary, clinic, surgery, lying-in- hospital, sana-torium, nursing home, dispensary, vaidyasala or dharmasala managed by any corporate body:
Provided however that no such practitioner shall be registered under this sub-section after the expiration of one year, or such other longer period as may be fixed by the Government, from the date on which this Act comes into force.
(5) No person shall be eligible for registration under sub-section (1), sub-section (3), or sub-section (4) if he is subject to any of the disqualifications mentioned in clause (a) to (e) of Section 7".
Under Section 23(1) every holders of a recognised qualification shall be eligible for registration under the Act.
22. Section 2 (j) of the Act, 1953 defines 'recognised WPC No.2344/2020 : 15 : qualification' as a qualification enumerated in the schedule. Clause A(2) of the Schedule would show that all qualifications recognised under the Indian Medical Council Act, 1956 are recognised qualifications. The Standing Counsel would submit that the schedule to the Act is no more relevant due to subsequent amendments made to Indian Medical Council Act. Even if it is so, the respondents have no case that the qualification obtained by the petitioner from IUHS, is not a recognised qualification. The fact that the petitioner was permitted to appear and pass the Screening Test, would only indicate that the Degree concerned issued by the IUHS is treated as acceptable by the National Board of Examinations. This Court also considered the cases of students who have obtained the same Degree from the very same University and granted relief to the petitioners in those cases. A learned Single Judge followed Ext.P7 judgment of the learned Single Judge in Ext.P9 judgment in W.P.(C) No.27156/2013. Therefore, I find no reason to take a different view in the case of the petitioner herein. WPC No.2344/2020 : 16 :
23. As regards the arguments of the 1 st respondent that the writ petition has been filed impugning a consequential order without challenging the basic order and hence is not maintainable, it is to be noted that the petitioner need not challenge those orders or resolutions because the petitioner's claim has to be considered as per the rules and regulations existed prior to the passing of the resolutions. The resolutions relied on by the 1st respondent-Council were passed on 20.09.2019 and 10.10.2019. The petitioner passed Screening Test for Indian Nationals with Foreign Medical Qualification in June, 2019 and submitted applications for Provisional Foreign Registration, which was received by the 1st respondent-Council on 16.09.2019, as is evident from Ext.P12.
24. The petitioner has obtained her foreign degree undergoing regular studies. She had obtained Ext.P2 eligibility certificate from the Medical Council of India to undergo study in the IUHS. At that time, there was no prohibitions imposed by the respondents against Off-campus WPC No.2344/2020 : 17 : study. Therefore, it would be highly arbitrary and discriminatory on the part of the 1st respondent to deny provisional and final registration to the petitioner on the basis of their subsequent resolution against Off-campus studies.
25. For all the above said reasons, this Court is of the considered opinion that the petitioner is entitled to relief prayed for in the writ petition. Ext.P11 order of the 1 st respondent is therefore set aside. The 1 st respondent is directed to issue Provisional Registration to the petitioner forthwith.
The writ petition is allowed as above.
Sd/-
N. NAGARESH, JUDGE aks/27/10/2020 WPC No.2344/2020 : 18 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AADHAR CARD OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE LETTER DATED 24.11.2003 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WITH ELIGIBILITY CERTIFICATE DATED 24.11.2003 EXHIBIT P3 TRUE COPY OF THE MBBS DEGREE CERTIFICATE ISSUED TO THE PETITIONER DATED 14.07.2010 EXHIBIT P4 TRUE COPY OF THE LETTER DATED 14.09.2012 ISSUED BY THE HIGH COMMISSIONER OF INDIA TO DEAN OF ACADEMIC AFFAIRS EXHIBIT P5 TRUE COPY OF THE LETTER DATED 24.10.2012 ISSUED FROM THE INTERNATIONAL UNIVERSITY OF THE HEALTH SCIENCE EXHIBIT P6 TRUE COPY OF NO OBJECTION CERTIFICATE DATED 1.11.2012 ISSUED FROM THE INTERNATIONAL UNIVERSITY OF THE HEALTH SCIENCE BY THE REGIONAL PROVIDENT FUND COMMISSIONER WITH ATTACHMENTS EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO 1981 OF 2012 DATED 29.08.2014 EXHIBIT P8 TRUE COPY OF THE CERTIFICATE FROM NATIONAL BOARD OF EXAMINATIONS DATED 07.09.2019 ISSUED TO THE PETITIONER EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C) NO.27156 OF 2013 DATED 27.10.2014 EXHIBIT P10 TRUE COPY OF THE APPLICATION FOR PROVISIONAL REGISTRATION SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT WPC No.2344/2020 : 19 : EXHIBIT P11 TRUE COPY OF THE ORDER DATED 10.01.2020 ISSUED TO THE PETITIONER FROM 1ST RESPONDENTS OFFICE EXHIBIT P12 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 16.09.2019 OF THE APPLICATION OF THE PETITIONER BY THE 1ST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE ORDER NO.UEIMS-DXB/07 DATED 26.06.2007 ISSUED FROM UNIVERSAL EMPIRE INSTITUTE OF MEDICAL SCIENCE, DUBAI.
EXHIBIT P14 TRUE COPY OF THE CERTIFICATE ISSUED FROM THE CARE HOSPITAL HYDRABAD TO THE PETITIONER FOR CLINICAL TRAINING.
EXHIBIT P15 TRUE COPY OF THE ACADEMIC RECORDS ISSUED TO THE PETITIONER FROM THE INTERNATIONAL UNIVERSITY OF THE HEALTH SCIENCES, CHRISTOPHER AND NEVIS ON PASSING MBBS.
EXHIBIT P16 TRUE COPY OF THE GRADING SYSTEM OF THE INTERNATIONAL UNIVERSITY OF THE HEALTH SCIENCES, CHRISTOPHER AND NEVIS.
EXHIBIT P17 TRUE COPY OF THE PASSPORT OF THE
PETITIONER ISSUED FROM ABU-DHABI WITH
ENDORSEMENT OF ONE VISA.
RESPONDENTS' EXHIBITS
EXHIBIT R1(a) A TRUE PHOTOCOPY OF THE LETTER DATED 28.11.2019 ISSUED BY THE 2ND RESPONDENT COUNCIL TO THE UTTER PRADESH MEDICAL COUNCIL.
EXHIBIT R1(b) A TRUE PHOTOCOPY OF THE RESOLUTION DATED 20.09.2019.
EXHIBIT R1(c) A TRUE PHOTOCOPY OF THE RESOLUTION DATED 11.10.2019.