Delhi High Court
Yash Ahuja & Ors. vs Union Of India & Ors. on 26 September, 2008
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 04.09.2008
% Date of decision: 26.09.2008
+ WP (C) No.8056 of 2007
YASH AHUJA & ORS. ...PETITIONERS
Through: Mr. Jayant Bhushan, Sr. Advocate
with Mr. Abhijeet Chatterjee,
Mr. Manish Vishnoi &
Mr. Shashi Ranjan, Advocates.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
+ WP (C) No.3603 of 2008
VISHNU RAJ ...PETITIONER
Through: Mr. S. Rajappa, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
W.P (C) 4657/2008 Page 1 of 21
+ WP (C) No.4451 of 2008
VISHU BHASIN ...PETITIONER
Through: Mr. Rajat Gaur, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
+ WP (C) No.4473 of 2008
NAVPREET SINGH GULATI & ORS. ...PETITIONERS
Through: Mr. Himanshu Gupta, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
+ WP (C) No.4511 of 2008
ASWIN KRISHNAN AJIT ...PETITIONER
Through: Mr. Rajat Gaur, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
W.P (C) 4657/2008 Page 2 of 21
+ WP (C) No.4513 of 2008
AISHA SETHI ...PETITIONER
Through: Mr. Rajat Gaur, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
+ WP (C) No.4514 of 2008
SUMIT KUMAR SHUKLA ...PETITIONER
Through: Mr. Rajat Gaur, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
+ WP (C) No.4547 of 2008
ASHIMA SARIN & ORS. ...PETITIONERS
Through: Mr. Jayant Bhushan, Sr. Advocate
with Mr. Abhijeet Chatterjee,
Mr. Manish Vishnoi &
Mr. Shashi Ranjan, Advocates.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
W.P (C) 4657/2008 Page 3 of 21
+ WP (C) No.4558 of 2008
TISHA ASHOK SHARMA & ORS. ...PETITIONERS
Through: Mr. Jayant Bhushan, Sr. Advocate
with Mr. Abhijeet Chatterjee,
Mr. Manish Vishnoi &
Mr. Shashi Ranjan, Advocates.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
+ WP (C) No.4657 of 2008
M.P. KAVIN KUMAR ...PETITIONER
Through: Mr. S. Rajappa, Advocate.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. A.K. Sharma, Advocate
for the UOI.
Mr. Maninder Singh,
Mr. T. Singhdev,
Ms. Neha Sabharwal &
Mr. J.P. Karunakaran, Advocates
for the MCI.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? YES
2. To be referred to Reporter or not? YES
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
W.P (C) 4657/2008 Page 4 of 21
3. Whether the judgment should be YES
reported in the Digest?
SANJAY KISHAN KAUL, J.
1. The insistence by the Medical Council of India for a
screening test to be registered as a medical practitioner in
respect of students who have graduated from the Manipal
College of Medical Sciences, Pokhra, Nepal (MCOMS) has
given rise to these writ petitions.
2. The Indian Medical Council Act, 1956 (hereinafter referred
to as the said Act) was enacted to give a representation to
members of the medical profession, provide recognition of
medical qualifications including by medical institutions
outside the country with or without the scheme of
reciprocity and to prescribe standards of medical education.
A license to practice as a medical practitioner has a larger
public ramification as such a person deals with the life and
death of the citizens of the country while treating them for
ailments. The nature and quality of education to be
provided to such medical practitioners before they were
entitled to practice, thus, is part of the scheme of the said
Act. Section 10 A of the said Act, thus, restricts the
establishment of a medical college except with the previous
permission of the Central Government obtained in
accordance with the provisions of that Section. Section 11
of the said Act refers to the recognition of medical
qualifications granted by the universities or medical
institutions in India. The list of such institutions are
included in the I schedule to the Act. Section 12 of the said
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
Act deals with another category of medical qualifications,
i.e. those granted by medical institutions in countries with
which there is a scheme of reciprocity by inclusion of such
medical institutions located outside India being included in
the II Schedule to the said Act. The recognition of medical
qualifications granted by certain medical institutions whose
qualifications are not included in the I or II Schedule is dealt
with in Section 13 of the said Act. The Indian Medical
Council (Amendment) Act, 2001, incorporated certain
amendments in Section 13 of the said Act whereby a
provision was made for a screening test in India in respect
of persons who are citizens of India and obtained medical
qualifications granted by any medical institution in any
country outside India recognized for enrollment as medical
practitioner in that country after such date as may be
notified by the Central Government. These amendments
incorporated by way of Sub-Sections 4A & 4B of Section 13
of the said Act are, however, not applicable to medical
qualifications referred to in Section 14 of the said Act in
view of the provisions of Sub-Section 4C of Section 13 of
the said Act. Section 14 of the said Act stipulates that the
Central Government may issue a notification in the Official
Gazette after consultation with the MCI in terms whereof
the medical qualifications granted by medical institutions in
any country outside India in respect of which a scheme of
reciprocity of medical qualifications is not in force, shall be
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
recognized medical qualifications for the purposes of the
said Act.
3. The demands of a large number of students wanting to
undergo medical education has resulted in a mushrooming
of private medical educational institutions. Not only that
students have travelled even to countries outside India to
obtain medical qualifications and one such institution which
is in question is the MCOMS. This institution was
established in December 1994 as per an agreement
between the Government of Nepal and the Manipal
Education and Medical Group. The Ministry of Health,
Government of Nepal and the Nepal Medical Council wanted
a recognition of this Institution under the said Act. The
object was clear that there would be a greater value
attached to the degree obtained from the said Institution as
a consequence of such recognition especially in view of the
fact that the same would encourage a large number of
students from India as a neighbouring country to enroll
themselves with that Institution. In view of the said request
an inspection was made by the MCI on 11.8.2000 for the
purposes of grant of recognition. It is the case of the MCI
that the Institution was seeking recognition for 100
students to be educated each year and the scrutiny of the
facilities and the level of education to be provided was
accordingly analyzed by the MCI for the said number of
students. In terms of a Gazette Notification dated
26.9.2001 issued by the Ministry of Health, Government of
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
India, MCOMS was included as an Institution in the II
Schedule of the said Act as per power conferred under
Section 12 of the said Act.
4. The Ministry of Health, Government of India on
11/16.1.2007 requested the MCI to cause an inspection to
be made of the MCOMS to reassess its facilities as also to
assess the present quality of education being imparted.
This was necessitated on account of the fact that such an
inspection was carried out in April 2000 and doctors coming
out of the said college (and one other private college) were
eligible to practice medicine in India. In pursuance to the
said request, the MCI proposed an inspection to be made
which resulted in letters dated 17.1.2007 and 18.1.2007
from the MCOMS. An objection was raised by MCOMS in the
letter dated 17.1.2007 on the ground that there was no
provision or need for reassessment under Section 12 of the
said Act and thus the proposed visit of the team of the MCI
should be cancelled. This was followed up with another
letter dated 18.1.2007 referring to the proposed inspection
on 19th & 20th January 2007 more or less on the same terms
and once again requesting for cancellation of the visit.
5. The inspection team of the MCI, however, proceeded to the
MCOMS when certain facts came to light. An inspection
report was given with a covering letter stating that no
inspection of the college was permitted but the inspection
team was permitted to visit the college and hospital on
19.1.2007. On such visit it was found that the college was
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
making 150 admissions annually instead of 100 admissions
for which the facilities had been inspected earlier and there
was no intimation of this fact to the MCI. The
infrastructure, teaching and other facilities were found to
be deficient even for 100 students. There was shortage of
staff and against the stipulation of 80 per cent bed
occupancy less than 20 per cent beds were found to be
occupied. The undisputed position which has emerged in
the present petitions is that such increase in number of
admissions to 150 students has been carried out since the
year 2003.
6. The aforesaid inspection report was considered by the
Executive Committee of the MCI in its meeting held on
5.2.2007 and it was decided to recommend to the Central
Government for re-inspection of the college and for non-
grant of provisional/final registration pending such re-
inspection. This was communicated to the Ministry of
Health by the MCI in a detailed letter dated 23.2.2007.
7. The MCI duly informed the MCOMS for a re-inspection by a
team of the MCI on 21/22.2.2007 but, once again, a request
for deferment of such inspection was made on account of
the non-availability of the Dean. The result was, however,
no different as the inspection was, once again, obstructed.
8. The Nepal Medical Council intervened in terms of a letter
dated 26.2.2007 and subsequent letters seeking
recognition of the degree on the basis of reciprocity. The
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
MCOMS complained to the Ministry of Health, Government
of India.
9. A meeting of the MCI was held on 3.3.2007 to consider the
reports and thereafter it was resolved to recommend to the
General Body of the Council for withdrawal of recognition to
the MCOMS as well as not to grant provisional/permanent
registration under Section 12 (2) of the said Act without
passing of screening test. The General Body approved the
same on 10.3.2007.
10. The Ministry of Health issued letters notifying all the parties
to a meeting for 17.7.2007 but the matter could not be
resolved. The deadlock has arisen on account of the fact
that MCOMS is insisting that once a recognition is granted
under Section 12 of the said Act on the basis of reciprocity,
there is no power vested in the MCI to look to the
performance of the educational institution nor can any
inspection be carried out. This position is not acceptable to
the MCI.
11. The proceedings which have been instituted in the form of
writ petitions under Article 226 of the Constitution of India
are all by students who are affected by the decision of the
MCI to hold a screening test. The MCOMS have not filed
any legal pleadings though it has been impleaded as a
respondent. The controversy is, thus, restricted to the
authority of the MCI to provide for any screening test for
the students from MCOMS as a pre-condition for
registration, which would not be normally required in view
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
of registration of an Institution under Section 12 (2) of the
said Act.
12. The MCI seeks to draw its authority for holding such
screening test from regulations framed under Section 33 of
the said Act on 13.2.2002. These set of regulations inter
alia provide for candidates having foreign medical
qualifications to also qualify a screening test conducted by
the National Board of Examination under the aegis of the
Ministry of Health, Government of India. The right to hold
such cut off test is stated to have been upheld by this Court
in CWP No.2260/2002 titled Ms. Anuradha Saini & Ors. Vs.
UOI & Anr. and other connected matters decided on
11.7.2002 and by the Hon'ble Supreme Court in Sanjeev
Gupta & Ors. Vs. UOI & Anr. (2005) 1 SCC 45. In Ms.
Anuradha Saini & Ors. case (supra) challenge to the
screening test regulation on account of the fact that they
were ultra vires to the said Act was rejected.
13. There was a spate of decisions which came on account of
the degrees obtained by candidates from medical colleges
in Russia. There were various categories of candidates
including some who did not even fulfill the requirement of
admission to a medical college and other who had carried
out their education in different institutions including for a
certain time period in unrecognized ones.
14. The MCI has, thus, pleaded that a similar approach must be
adopted in the present cases as all precautions must be
taken to ensure that the registered medical practitioners in
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
India are duly qualified having gone through an educational
institution providing minimum level of infrastructural
facilities and teaching standards.
15. Learned counsel for the MCI relied upon the observations
made in MCI Vs. State of Karnataka & Ors. (1998) 6 SCC
131 in para 29 as under:
"29. A medical student requires gruelling study and
that can be done only if proper facilities are available
in a medical college and hospital attached to it has
to be well equipped and teaching faculty and doctors
have to be competent enough that when a medical
student comes out he is perfect in the science of
treatment of human being and is not found wanting
in any way. Country does not want half-baked
medical professionals coming out of medical
colleges when they did not have full facilities of
teaching and were not exposed to the patients and
their ailments during the course of their study...."
16. Learned counsel, thus, pleaded that it was open to the MCI
to adopt any reasonable methodology for scrutiny and
evaluation of teaching and training of petitioners including
through screening test conducted by the National Board of
Examination. This would also be said to have statutory
force in view of regulations. The educational standards in
MCOMS were found to be deficient as they did not even
cater to the number of students for whom the approval had
been granted numbering 100 much less for 150 students.
An alternative submission advanced on behalf of the MCI is
that the effect of the amendment of 2001 is that the MCI
has obliged to stipulate the screening test in cases of
candidates who obtained medical qualifications from
medical institutions outside India whether falling within the
purview of Section 12 or Section 13 of the said Act. It is
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
only foreign medical degrees which fall within the purview
of Section 14 of the said Act which have been excluded
from the purview of screening test regulations. Learned
counsel, thus, submitted that insofar as the continuation of
recognition was concerned no exception could be carved
out in respect of the institutes covered under Section 12 of
the said Act. Such institutes cannot unilaterally increase
the number of seats or cause the educational standards to
fall. A reference was also made to the effect that medical
institutions run by respondent No.3 in India have, in fact,
been de-recognized by the Ministry of Health, Government
of India in terms a notification dated 25.6.2008 which
shows the conduct of the said respondent.
17. We have examined the pleas of the parties and the
judgements cited at the Bar. At the threshold itself we are
firmly of the view that it cannot be lost sight of that the
standards of medical education must be maintained at all
costs. The registered medical practitioners who practice in
India cannot be unleashed on the public without ensuring
that they have the requisite level of education as the
consequences would otherwise be disastrous. It is this
salutary motive which persuaded the Supreme Court in MCI
Vs. Indian Doctors from Russia Welfare Associations & Ors.
(2002) 3 SCC 696 to issue directions. The guidelines
incorporated in the order were approved by exercising
powers under Article 142 of the Constitution of India and
were made applicable to persons whether they were before
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
the Court or not. No doubt the Court was at that time
seized with educational institutions under Section 13 of the
said Act. It is in the same direction that in Ms. Anuradha
Saini & Ors. case (supra) a Division Bench of this Court
repelled the contention raised that Sub-Section 4A of
Section 13 of the said Act and all amendments carried out
in Section 13 (3) of the said Act could not be given
retrospective effect on account of alleged vested or
accrued rights of the petitioners and the Screening Test
Regulations 2002 be declared ultra vires under Article 14 of
the Constitution of India. The said judgement also records
the statement of objections and reasons with which the
amendment was carried out in the following terms:
"The Indian Medical Council Act, 1958 contains
provisions in section 12, 13 and 14 with a view to
recognizing medical qualifications granted by
medical institutions in foreign countries.
2. Over a period of time it has come to the notice
that a large number of private agencies sponsor
students for medical studies in institutions outside
India for commercial considerations. Such students
also include the students who did not fulfill the
minimum eligibility requirements for admission to
medical courses in India. Serious aberrations have
been noticed in the standards of medical education
in some of the foreign countries which are not at par
with the standards of medical education available in
India. Due to lack of uniformity in the standards of
medical education in various foreign countries, it has
been decided that a provision should be made in the
Indian Medical Council Act, 1956 to enable the
Medical Council of India to conduct a screening test
in order to satisfy itself with regard to the adequacy
of knowledge and skills acquired by citizens of India
who obtain medical qualifications from universities or
medical institutions outside India before they are
granted registration to practice medicine in India.
3. Further, issue of prior eligibility certificate by
the Medical Council of India would ensure that only
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
those candidates who conform to the Council norms
of admission to the medical college in India would go
for under-graduate medical education outside India."
18. In Sanjeev Gupta & Ors. case (supra) the Supreme Court
made reference to both Section 12 & Section 13 of the said
Act by recognizing the concept of reciprocity contained in
Section 12 of the said Act. The thrust of the arguments
advanced on behalf of the petitioners is noted in para 35 of
the said judgement, which reads as under:
"35. Main thrust of the submissions made on behalf
of the petitioners is that all the petitioners have
studied full length of the course from medical
institutes/Universities which are recognised by the
MCI. They did not suffer from any disqualification or
ineligibility and therefore they cannot be subjected
to any condition of screening test. That the
judgment of this Court in Medical Council of India
(supra), was in respect of those Indian students from
Russia who had suffered one or the other kind of
disqualification or ineligibility. There was not a single
case as of the petitioners herein who do not suffer
from any disqualification and/or ineligibility. The
petitioners w ho did not suffer from any
disqualification or ineligibility and have studied their
entire course of M.D. Physician (which is equivalent
to MBBS in India) from Medical Institute or University
recognised by the MCI under the Act could not be
subjected to qualifying screening test. That the law
laid down by this Court in Medical Council of India
(supra), is not applicable to the petitioners. Another
submission made on their behalf is that the amended
Act was to come into force from the date to be
notified by the Central Government and since the
Central Government has not notified the date by
publishing it in the official Gazette the same has not
come into force. That the Central Government did
not have any jurisdiction to further delegate the
power to publish the notification in the official
Gazette to the MCI. A delegatee of the power under
the Act could not further delegate its functions
unless so authorised under the Act."
19. The aforesaid plea did not find favour with the Supreme
Court and the following observations would show the
thought process of the Supreme Court:
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
"46. Suggestion of the petitioners that they should
be allowed to join the internship by grant of
provisional registration without qualifying the
screening test whereby they can involve themselves
in the patient care and management cannot be
permitted in the larger public interest. Besides the
above this suggestion is contrary to the Regulation 3
of the Screening Test Regulations, 2002 and to the
observations in para 4 of the judgment in Medical
Council of India (supra).
47. Regulation 3 of the Screening Test Regulations,
2002 provides that provisional registration can be
granted to the candidate enabling him to start
internship for practical training involving patient care
and management only after qualifying the screening
test. It is not permissible to grant provisional
registration to a candidate who has not undertaken
internship at the recognised medical institution
abroad after completion of six years of medicine
course without qualifying the screening test.
48. MCI is the expert body which can lay down the
criteria for grant of the permanent registration to a
person to practice medicine and involving himself in
the patient care and management. Otherwise also
we are not inclined to permit the petitioners to
practice medicine overriding the provisions of the Act
as the Court has to take into consideration the
interest of the public at large as well. A person who
is not duly qualified as prescribed by the MCI cannot
be permitted to involve himself in public health care
and play with the lives of human beings. It is not for
this Court to decide as to who is duly qualified to
practice medicine. MCI being the expert body is the
best judge to do so. After a thorough examination of
the entire issue the MCI has come to the conclusion
that after disintegration of USSR serious aberrations
in the system of recruitment and admission of
students in institutions located in Russia, there was a
decline in the standards of medical education in
these countries. In this backdrop the MCI keeping in
view the interest of the public at large and the
students passing from these institutions decided that
the students would be required to do internship for
one year as well as to qualify the screening test
before they could be given a permanent registration
involving themselves in the public health care.
49. Petitioners are not being debarred from
starting medical practice in India but they are merely
to undergo screening test as provided in the
statutory regulation. The policy decision to subject
the students to undergo a screening test has been
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
upheld by this Court in Medical Council of India
(supra)."
20. There is really no dispute that in case of institutes covered
under Section 13 of the said Act provision of screening test
is an issue which is no more res integra. The exception is,
thus, sought to be carved out only account of the fact that
MCOMS is an institute registered under Section 12 of the
said Act and thus reciprocity itself is sufficient and there
can be no provision for further scrutiny by the MCI. This
plea is further supported by reference to the affidavits of
the Ministry of Health & Family Welfare in which it is stated
that notification issued by the said Ministry on 26.9.2001
recognizing the MBBS degree is still in force and thus,
Indian citizens who obtained qualifications from MCOMS are
eligible for registration under the said Act. The issue of the
de-recognition of the MBBS degree is stated to be a
separate matter receiving consideration and that no
qualifying screening test is necessary to be conducted.
21. We may also notice that there are certain candidates who
had already appeared in the examination and qualified the
same while others have sought permission to appear for the
said examination.
22. In our considered view, there is no doubt that there is a
certain distinction between recognition of medical
qualifications under Section 12 of the said Act and in
Section 13 of the said Act. The medical institutions covered
under Section 12 of the said Act are based on a scheme of
reciprocity by their inclusion in the II Schedule. It is,
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
however, preceded by a proper verification of the facilities
in the institute and the kind of education being imparted.
This is also obvious from the fact that the MCI had carried
out an inspection before such recognition was granted.
Section 13 of the said Act deals with recognition of medical
qualifications of institutes who are not included in the I or II
Schedule. The screening test has been made mandatory
under Sub-Section 4A of Section 13 of the said Act.
23. The peculiar problem faced in the present cases by the MCI,
which is responsible for maintaining the standards of
medical education, is that despite the instructions received
from the Government of India by the MCI and the repeated
requests of the MCI for inspection of the college, the
MCOMS, refused to oblige. The inspection has been not
fully possible on account of excuses extended by MCOMS
on one pretext or the other. The inspection team of the MCI
was, however, permitted to visit the MCOMS when a
number of deficiencies were found. The most fundamental
aspect is that the institution was recognized keeping in
mind the facilities for 100 students to be educated which
figure jumped up to 150 students in the year 2003 without
any intimation to the MCI. The infrastructure and facilities
which are good for 100 students may not be necessarily
good for 150 students. Not only that a decline in the
infrastructure facilities was found by the team even for 100
students. It cannot be expected that once recognition is
granted under Section 12 of the said Act, the MCI is
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
denuded of all authority to even verify whether the
educational institution is maintaining its standards. It may
not be mandatory for the MCI to inspect such an institute
but it would certainly be desirable and in larger public
interest that a feedback is obtained of the maintenance of
standards by such an educational institution. It is this fact
which possibly persuaded the Central Government to issue
a letter to the MCI to cause inspection. The stand of the
Central Government, thus, in the present context, to say
the least appears very peculiar. The Central Government
having asked the MCI to carry out the inspection and the
MCI being denied inspection but on visit finding a number of
deficiencies apart from increase in number of student
strength, the Central Government cannot be permitted to
plead that it is not concerned with any of these aspects.
The Central Government was bound to have taken
appropriate action in view of the report given by the visiting
team of the MCI.
24. If the matter is looked upon from the point of view of
interests of the students it is not as if the MCI has
disqualified the students who obtained the degrees from
MCOMS to practice in India. In view of statutory regulations
providing for a screening test which would certainly cover
cases of registration of institutes under Section 13 of the
said Act, the MCI has taken the interest of the students in
mind by providing for such a screening test even for the
MCOMS which is an institute registered under Section 12 of
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
the said Act. If the students who have gone through their
education from MCOMS plead that they had quality
education and that they are taking examinations for
enrollment as doctors, and successfully at that, in England
and US one can see no reason why they should shy away
from such a screening test in India to ensure that the
quality of doctors is maintained. If the standards in MCOMS
had been found up to the mark there would have been no
occasion to provide for a screening test but this innovation
became necessary because of the obdurate stand of the
institute in failing to give an inspection and the large
number of deficiencies found on the visit of the inspection
team. The student strength had been increased by 50 per
cent with no upgradation of facilities and it can hardly be
expected that a college meant for 100 students could
provide education to 150 students without enhancement
and upgradation of the infrastructural facilities.
25. We especially draw strength from the observations made in
Sanjeev Gupta & Ors. case (supra) referred to aforesaid
that a larger public interest must be kept in mind as a
person who does not have proper medical education cannot
be permitted to involve himself in public healthcare and
play with the lives of human beings. The MCI is the expert
body and is the best judge to do so and to prevent any
injustice to the students the screening test provided for
institutes under Section 13 of the said Act has been
extended to the students who have passed out from
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
MCOMS being the institute registered under Section 12 of
the said Act.
26. We are, thus, of the view that there is no reason why this
Court should exercise extraordinary jurisdiction under
Article 226 of the Constitution of India to interfere with the
decision of the MCI to provide for such a screening test for
the petitioners.
27. The writ petitions are dismissed leaving the parties to bear
their own costs.
SANJAY KISHAN KAUL, J.
SEPTEMBER 26, 2008 MOOL CHAND GARG, J.
b'nesh
W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008;
W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008;
W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 &
