Shakkir Mohammed Kunhi vs Medical Council Of India And ...
2009 Latest Caselaw 2771 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No.10290/2009

%                        Date of Decision: 22.07.2009

Shakkir Mohammed Kunhi                            .... Petitioner
                  Through Ms.Megha Grewal, Advocate

                                  Versus

Medical Council of India and another                .... Respondents
                      Through Mr.T.Singhdev,    Advocate  for  the
                               respondent No.1.
                               Mr.Arvind Sharma, Advocate for the
                               respondent No.2.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be             YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?               YES
3.     Whether the judgment should be reported in           YES
       the Digest?


ANIL KUMAR, J. (ORAL)

*

1. The petitioner has challenged Screening Test Regulations, 2002

contemplating compulsory screening test for practical training for the

students studying in foreign universities and programme to undergo

practical training in India.

2. The petitioner pleaded that he is undergoing MBBS Degree

Certificate Course at China Three Gorges University. The said

institution is an approved institution by World Health Organisation

(WHO).

3. The petitioner asserted that he left India after obtaining eligibility

certificate as per Eligibility Certificate Regulation, 2002 framed by

Medical Council of India. The petitioner wants to undergo practical

training in India and he seeks a provisional registration for practical

training after completing 4½ years of theory studies from the Medical

Institution in China.

4. In order to obtain a Degree of MBBS, petitioner is required to

undergo a compulsory practical training for one year. The medical

institution in China has issued a no objection certificate to the

petitioner to undergo practical training in India.

5. Under the Regulations of Medical Council of India, if a candidate

who has undergone theoretical studies in a foreign university wants to

undergo practical training for provisional registration he has to qualify a

screening test. The petitioner has challenged the regulations for

screening test for undergoing practical training on the ground that the

students in India who undergo theoretical studies in different medical

institutions are at par with the students who undergo theoretical

studies in foreign universities and they are not required to undergo any

screening test. In the circumstances, it is contended that the petitioner

has been denied a valuable right and discriminated against by having to

undergo a screening test for provisional registration for undergoing

practical training.

6. The regulation contemplating a screening test for undergoing

practical training in India after undergoing theory courses in a foreign

university is also challenged by the petitioner on the ground that

screening test is conducted in September and March of every year and

in case for some reasons the petitioner is not able to undergo screening

test in September, his one-and-a-half year will be lost as the Degree is

awarded once in a year in July by the medical institution in China.

7. Clause 3 of the Screening Test Regulation, 2002 issued by

notification No.MCI-203(9)/2001-Regn- dated 13th February, 2002 is as

under:-

"3. An Indian citizen possessing a primary medical qualification awarded by any medical institution outside India who is desirous of getting provisional or permanent registration with the Medical Council of India or any State Medical Council on or after 15.03.2002 shall have to qualify a screening test conducted by the prescribed authority for that purpose as per the provisions of Section 13 of the Act:

Provided that a person seeking permanent registration shall not have to qualify the screening test if he/she had already qualified the same before getting his/her provisional registration."

8. The petitioner has challenged the Regulation on the ground that

he is not seeking any right to practice and the prayer is only limited to

permit the petition for provisional registration for undergoing training

and in the circumstances screening test for provisional registration is

not required and it is discriminatory. The petitioner has relied on

Sanjeev Gupta and others v. Union of India and another, (2005) 1 SCC

45 and Medical Council of India v. Indian Doctors From Russia Welfare

Associations and Others, (2002) 3 SCC 696. The petitioner has

contended that he legitimately expected that he will not be put to any

further condition after the eligibility certificate was issued by the

Medical Council of India for studying abroad in a medical institution

approved by World Health Organisation.

9. Para 2E and 2G of the Eligibility Test Regulation, 2002 are as

under:-

"2(e) "Provisional Registration" means provisional registration in a State Medical Register or Indian Medical Register for the purpose of undergoing practical training in India as prescribed and for no other purpose by an Indian Citizen possessing any primary medical qualification but has not 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;

2(g) "Provisional Registration" means provisional registration in a State Medical Register or Indian Register for the purpose of undergoing practical training in India as prescribed and for no other purpose by an Indian citizen possession any primary medical qualification but has not 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;"

10. In Medical Council of India (supra), the Supreme Court had

approved the guidelines framed by Medical Council of India and were

made applicable to all persons who were not even party to the said case.

Similarly, in Sanjeev Gupta and others (supra), the Supreme Court had

upheld its decision in Medical Council of India decided in 2002. It was

held that MCI is an expert body which can lay down the criteria for

grant of permanent registration to a person to practice Medicine and

involve himself in the patient care and management. It was further

held that a person who is not duly qualified as prescribed by MCI,

cannot be permitted to involve himself in public health care and play

with the lives of human beings and it is not for the court to decide as to

who is duly qualified to practice Medicines. Medical Council of India

was held to be an expert body and the best judge to do so.

11. If the Regulation for practicing in India contemplate screening

test and even undergoing training in some case which has been upheld

by the Supreme Court, a similar regulation for undergoing screening

tests before undergoing practical training, cannot be faulted on the

ground that the students who complete their theoretical studies in India

in the institution recognised by the Medical Council of India and

affiliated to different universities are not liable to undergo screening test

and they are at par with the students of the foreign universities and

medical institution which are approved by Medical Council of India.

12. The plea of the petitioner has a basic fallacy and assume that the

approval by WHO is equivalent to recognition by Medical Council of

India and the affiliation of the medical institutions to various

universities. Merely because the eligibility certificate is issued to a

candidate who wants to undergo the course of Medicine in foreign

university, it does not entitle him to obtain a degree from foreign

university and get himself registered for practising in India without

undergoing screening test and training in some cases, if required, in

accordance with the regulations of MCI. A fortiori if a candidate who

has completed theoretical studies from a foreign university wants to

undergo a practical training in India he must also undergo the

screening test. The objective of screening test is to ascertain/judge the

theoretical knowledge of a candidate in relation to syllabus and the

course of studies in colleges and institutions recognized by Medical

Council of India. Merely because an eligibility certificate had been

issued does not lead to an inference that after undergoing theoretical

studies in an institution approved by World Health Organisation, the

preparedness of such a student is in consonance with the theoretical

medical studies required in India according to the syllabus and the

course of studies of the recognised and affiliated medical institutions in

this country. Consequently, the rationale of conducting a screening test

for candidates from foreign universities for the purpose of undergoing

practical training in India cannot be faulted.

13. This cannot be disputed by the petitioner that unless a policy

decision is absolutely capricious, unreasonable, arbitrary and based on

ipse dixit of the executive authority or is in violation of any

constitutional or statutory mandate, the court inference is not called

for. The policy decision is in the domain of the executive authority of

the State and the courts do not embark on the adequacy of the policy.

The petitioner has contended that the petitioner has been discriminated

being a student who has competed theoretical course from an

institution in a foreign country vis-a-vis a students who complete the

theoretical course in India.

14. This is well established that while Article 14 forbids class

legislation, it does not forbid reasonable classification. Permissible

classification must fulfil two conditions, namely, (i) that the

classification must be found on an intelligible differentia which

distinguishes persons or things grouped together from others left out of

the group, and (ii) that the differentia must have a rationale relation to

the object sought to be achieved by the statute in question. The

classification can be found or based on different basis, namely,

geographical, or according to objects or occupations of the like but there

must be nexus between the basis of classification and the act under

consideration.

15. The petitioner who has completed theoretical studies from foreign

institutions, even from institutions approved by WHO, cannot be

equated with the students of institutions in India. Approval by WHO of

foreign universities and institutions cannot be equated with the

recognition granted by the concerned authorities in India and affiliation

of such institutions to appropriate universities of bodies. Classification

between these two types of students cannot be termed irrational or

illogical nor it can be inferred that the classification does not have any

rational to the objective sought to be achieved in the facts and

circumstances.

16. Consequently the petitioner cannot claim that he cannot be

directed to appear in screening test for the purpose of appearing for

practical training. The petitioner is also not entitled to avoid screening

test on the ground that if he is not able to appear in September, 2009

then he will waste his one year as has been contended on his behalf.

The petitioner is liable to appear in screening test subject to his

eligibility for the same in accordance with rules and regulations.

17. Writ petition is, therefore, without any merit and it is dismissed.

No order to cost.

July 22nd , 2009                                         ANIL KUMAR, J.
'Dev'