Medical Council Of India vs Nityanand Ghosh
1999 Latest Caselaw 463 Del

ORDER

Dalveer Bhandari, J.

1. This review petition has been filed by the Medical Council of India, respondent in the writ petition, against the Judgment of this court dated 22.4.1998. The review petition has been filed on the ground that the following errors had crept into the Judgment:-

(1) The writ petitioner had joined the medical course on the basis of an entrance test.

(2) The writ petitioner completed a full six year medical course.

(3) After completing the six years course, the writ petitioner has done the requisite internship.

(4) The writ petitioner is entitled to permanent registration since he has done the requisite internship.

2. To properly comprehend all the three objections on which the review tition has been filed, it is necessary to refer to relevant previsions of the Indian Medical Council Act, 1956. Section 13(3) of the said Act reads as under:-

Section 13(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 enrolment on any State Medical egister 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, of if he has not undergone any pracical training in that country, he has undergone such practical training as may be prescribed.

3. According to this sub-clause the medical qualifications granted by the medical institutions outside India have been included in Part II of the Third Schedule. According to this section the qualifications granted by such institutions fall 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 enrolment on any State Medical Register unless he is a citizen of India and has undergone such medical training as may be required by the rules or regulations in force in that country. The clear requirement of Section 13(3) is that all those foreign medical institutions which fall in the category of Part II of the Third Schedule, the qualifications granted by them shall be recognised by the Indian Medical Council.

4. Admittedly, the writ petitioner was admitted to a recognised medical institute which is included in Part II of the Third Schedule of the Indian Medical Council Act, 1956. It is also not in dispute that the Writ Petition has acquired a medical qualification from that recognised institution. The question whether at the time of admission the writ petitioner had taken, the admission or premedical examination is really not of any consequence. The writ petitioner has stated that he has taken the admission test and in support of this submission the learned counsel for the writ petitioner has relied on a reply to the letter which has been sent to the Indian Medical Council in response to their letter dated 1.8.1997 in which they sought information from various Medical Institutes of Russia. The relevant portion of the letter from the second Tashkent State Medical Institute reads as under:-

"Admission of foreign students inclusive of those from India is carried out in accordance with the requirements worked out by the Ministry of Higher and Secondary Vocational Education of the republic of Uzbekistan and provides for a centralised one year preliminary course for foreign applicants in Russian language, biology, chemistry and other subjects. On completion of the course students take exam. Graduats of the preliminary course with good exam results are interviewed, take exams in the compulsory subjects, after which they are admitted to the Second Tashkent State Medical Institute."

5. Once a student obtains medical qualifications from a recognised medical institute after completing the course, it is of no consequence whether he had undergone a premedical test, or admission test. This is not the requirement of clause 13(3) of the Act. All what is envisaged is obtaining of medical qualification granted by those institutions which are included in Part II of the Third Schedule.

6. The second grievance is, that in fact the petitioner has taken 5-1/2 years medical course whereas he had mentioned in the writ petition as 6 years. Admittedly, the petitioner joined the said recognised medical institute in the year 1989. Admittedly, when the petitioner joined the said recognised medical institute, the medical student were required to undergo one year preliminary course in Russian language, biology, chemistry and other subjects and after completion of the said course they were required to undergo 6 years of medical education.

7. In response to the letter of the Indian Medical Council a clarification was given by the Second Tashkent Medical Institute in which it was mentioned that according to the new programme the course of MD General Medicine in the Tashkent State Medical Institute comprises of a duration of 5-1/2 years instead of 6 years, as per the old programme. It is also mentioned that the number of hours, routine and the subjects completed by the students is equivalent to that of the 6 years course. It is mentioned that on successfully completing the 5-1/2 years course the students will get the degree of M.D. General Medicine. It is also stated that there have been 4 batches of the students since 1995. The letter sent to the General Secretary, Medical Council of India is reproduced as under:-

"This is to clarify that according to the new programme, the course of MD General Medicine in Tashkent State Medical Institute-2nd comprises of a duration of 5-1/2 years instead of 6 years as per the old programme. The number of hours, routine and the subjects completed by the students is equivalent to that of he 6 years course. On successfully completing the 5-1/2 years course we have awarded the students with the degree of M.D. General Medicine since the year 1995. There have been four batches of students since 1995 (batches 95, 96, 97, 98) who have finished their studies under the 5-1/2 years programme in the Tashkent State Medical Institute-2nd."

8. Admittedly, when the writ petitioner was admitted to the said recognised Medical Institute the requirement of the medical education was of 6 years study. Old programme was changed sometime in 1995 and a new programme was introduced. According to the new programme the six years course was compressed to 5-1/2 years course, but the number of hours, routine and subjects completed by the students was kept equivalent to that of 6 years. In this view of the matter, it is stated by the writ petitioner that the he had mentioned 6 years under these circumstances. The old programme was changed when the writ petitioner was obtaining medical qualification at the said institute. It is clearly stated that by compressing the programme from 6 years to 5-1/2 years, the number of hours, routine and subjects completed by the students is equivalent to that of 6 years course. It has made no difference in any manner and apart from that the writ petitioner had no control over that. I do not find any merit in this objection also taken by the Indian Medical Council.

9. It may be relevant to point out that the Indian Medical Council before 1st January, 1997 was recognised the 5-1/2 years of medical education after 1 year initial language and other subjects course, but suddenly without any basis the Indian Medical Council has started raising objections regarding 5-1/2 years after 1 year initial course. There seems to be no logical basis of the objection taken by the Indian Medical Council.

10. Yet another ground on which review has been sought is that the writ petitioner has not completed internship. The learned counsel for the writ petitioner submits that he has mentioned in the writ petition that the petitioner has undergone the practical training prescribed in the USSR as is apparent from the perusal of the qualification record. In the qualification record it is mentioned that the practical training is of 3 weeks after 3 years and 6 weeks after 5 years, and according to him, since the petitioner has undergone the practical training in Russia, therefore, no internship in India was necessary and the petitioner is entitled to the enrolment in the Medical Register under Section 13(3) of the Indian Medical Council Act, 1956. This is disputed by the learned counsel for the Indian Medical Council. According to him the writ petitioner has not taken the practical training.

11. The particular objection raised by the learned counsel for the Indian Medical Council is of only an academic value now only because the writ petitioner on the insistence of the Indian Medical Council has started taking internship in India from 1st September, 1998. He would be completing 1 year of internship on 31.8.1999. I do not deem it necessary to give my finding on this objection because the writ petitioner is undertaking the internship as required by the Indian Medical Council.

12. Learned council for the writ petitioner has also made a reference to the Division Bench Judgment of the Bombay High Court in Dr. Arun H. Bakle Vs. Union of India and others dealing with some what similar issue. The relevant para 8 of the said judgment is reproduced below:-

"8. Even assuming that it is a regulation, in our view, it cannot override the provisions of the Act especially sub-Sec. (3) of Sec.12 and Sec.15 which entitle a person possessing a degree referred to in Part II of the Third Schedule, and who has undergone practical training in the country which awarded him the qualification as required under the rules governing grant of such medical qualification without being required to undergo further training in India. Sub-Sec.(1) of Sec.15 which declares such medical graduate's right to be enrolled is subject only to the other provisions of the Act. There is no other provision of the Act, so far as such medical graduates, as the petitioner, who have undergone a training as part of their course of study are concerned to undergo further training in India. That being a right conferred by the Act, no subordinate legislation like a regulation envisaged by Sec.33 can take away that right by impos ing a further condition, for Sec.15(1) is only subject to the provisions of the Act and no to any rule or regulation made thereunder. Any rule or regulation for such a medical graduate to be enrolled can only prescribe the form or the fee payable for registration and not prescribe any additional qualification thereby taking away his right to be enrolled. The Medical Council of India, in communicating the aforesaid letter, purports to prescribe as additional qualification or condition to be acquired r fulfillled by the petitioner to entitle him to be enrolled on the State Medical Register. Any such regulation cannot override or modify the provisions of the Act so as to take away the right vested in a citizen under the Act. However, bona fide such power may be exercised, no subordinate legislation can override the provisions of the Act."

13. It is pertinent to mention that in the aforesaid matter an appeal was filed by the Medical Council of India and their Lordships of the Supreme Court dismissed the appeal with costs. The order passed by their Lordships in Secretary, Medical Council of India Vs. Arun H. Bakla & Ors. [1987 (supp) SCC 140] is reproduced below:-

"The High Court has recorded: "It is not in dispute that the petitioner is a citizen of India and that he has undergone prac tical training after obtaining the qualification as prescribed by Rules and the Regulations in force in the country granting the qualification that is in USSR". The respondent is, therefore, fully covered by Section 13(3) of the Indian Medical Council Act, 1956 which provides that a person possessing the medical qualifi cations granted by medical institutions outside India, which are included in part II of the third schedule shall be recognised medical qualification for the purposes of the Act. but that no person possessing such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that (sic such) qualification as may be required by the Rules or Regulations in force in the country granting the qualification. It is only where he has no undergone any such training that he has to undergone any such training that he has to undergo such practical training as may be prescribed in India. There is, therefore, no merit in the appeal which is accordingly dismissed with costs quantified at Rs. 2 550/-."

14. On consideration of totality of facts and circumstances of this case, I find no merit in the review petition which is accordingly dismissed. There shall be no orders as to costs.