Nusrat Jahan Bukhari vs Medical Council Of India
2009 Latest Caselaw 1881 Del

27
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 8160/2008


      NUSRAT JAHAN BUKHARI           ..... Petitioner
                    Through Mr.Sandeep Sethi, Sr.Advocate with
                    Mr.Pramod Gupta, Mr.Manish Kumar,
                    advocates.

                   versus

      MEDICAL COUNCIL OF INDIA     ..... Respondent
                   Through Mr.Maninder Singh, Mr.P.Singhdev,
                   advocates.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                      ORDER

% 05.05.2009

1. The admitted factual matrix is that the petitioner Ms. Nusrat

Jahan Bukhari had passed matriculation examination (Class Xth) from

Pune in March 1999 having secured 72.66% marks and more than

80% marks in Science stream. In the same year, the petitioner took

admission in the Dagestan State Medical Academy, Makhachkala

(Russia) to pursue degree of M.D.(Physician) course vide registration

no. 182/1999. She successfully completed the said medical course

and was awarded doctorate degree in Medicine on 24th June, 2006.

The petitioner, in fact was awarded a red diploma (equivalent to gold WPC NO.8160-2008 Page 1 medalist) in Doctor of Medicine (equivalent to M.B.B.S.) by the said

University.

2. The petitioner after returning back to India appeared in Foreign

Medical Graduate Examination (F.M.G.E.) Screening Test in

September, 2007 but did not pass the said examination in the first

attempt. The petitioner again appeared in the said examination

conducted by National Board of Examination in March 2008 and has

cleared the same as per communication dated 23rd April, 2008.

Thereupon, the petitioner applied for provisional registration with the

Medical Council of India (MCI) which stands rejected vide their letter

dated 25th June, 2008. The reason given by MCI for rejection of the

registration reads as under:

"(1) You have joined the M.D. „Physician‟ course in Daghestan State Medical Academy in September, 2000 whereas you have qualified your 10+2 in 2007, i.e. after obtaining the M.D. „Physician‟ degree, which is against the regulations of Graduate Medical Education Regulation, 1997; (2) You have not compelted the age of 17 years at the time of admission in MBBS/M.D. „Physician‟ Course."

3. The petitioner had taken admission in Dagestan State Medical Academy, Makhachkala (Russia) immediately after she had passed matriculation or Xth class examination from Maharashtra State Board of Secondary and Higher Secondary Education, Pune and she was not 17 years of age when she took admission in the aforesaid college in WPC NO.8160-2008 Page 2 Russia in 1999.

4. Students who had undergone medical courses and obtained

degree in Medicine from medical colleges abroad including colleges in

erstwhile USSR was examined by the Supreme Court in the case of

Medical Council of India versus Indian Doctors from Russia

Welfare Association and another, (2002) 3 SCC 696. MCI had

refused to grant recognition and register the said students. Orders

passed by the High Courts on writ petitions filed by the said students

were made subject matter of appeals before the Supreme Court.

After hearing the matter, the Supreme Court asked Government of

India to formulate a policy keeping in mind the need to maintain

standards and the humane problem of students who had undergone

studies abroad and spending years to obtain a recognized degree in

Medicine in the country of education. The Supreme Court noticed

that Section 13 of the Indian Medical Council Act, 1956 had been

amended by Indian Medical Council (Amendment) Act, 2001 to deal

with the situation and w.e.f. 18th February, 2002 new regulations had

been published and enforced. The new regulations for the first time

has fixed eligibility norms/conditions and requirement to obtain

eligibility certificate from MCI before taking admission in a medical

WPC NO.8160-2008 Page 3 college abroad. At the same time, to ensure that proper standards

are maintained and the students possessed adequate and good

knowledge are required to pass the Screening Test for the purpose of

registration. Thus eligibility norms for taking admission abroad are

fixed and at the same time students after obtaining degrees are

required to pass the Screening Test.

5. Supreme Court was conscious of the problem relating to the

students who had obtained degrees or taken admissions before the

new Regulations were notified on 15th March, 2002. Government of

India was also aware of the said problem. In these circumstances,

guidelines were framed by the Government of India and placed

before the Supreme Court. The Supreme Court exercising its powers

under Article 142 of the Constitution of India held that these

guidelines will be applicable to all students who are similarly situated

whether they were parties before the Supreme Court or not. Para 6

of the guidelines and the directions given by the Supreme Court in

Indian Doctors from Russia Welfare association (Supra) read

as under:

"6. In order to regulate the grant of registration to such persons who have completed their degree abroad prior to 15-3-2001, the following guidelines are placed before this Court by the Government of India:

WPC NO.8160-2008 Page 4 ( A ) The case of all persons who applied for registration to MCI prior to 15-3-2001 shall be dealt with according to the provisions of the Act as existing prior to the commencement of the IMC (Amendment) Act, 2001 subject to the following:

( i ) Those students who obtained degrees where the total duration of study in recognized institutions is less than six years (i.e. where a part of the study has been in unrecognized institutions, or the total length of study in a recognised institution is short of six years), shall be granted registration by MCI provided that the period of shortfall is covered by them by way of additional internship over and above the regular internship of one year. In other words, for such categories of students, the total duration of study in a recognized institution plus the internship, would be seven years, which is the requirement even otherwise.

( ii ) Where students who did not meet the minimum admission norms of MCI for joining undergraduate medical course, were admitted to foreign institutes recognised by MCI, this irregularity be condoned. In other words, the degrees of such students be treated as eligible for registration with MCI.

( B ) All students who have taken admission abroad prior to 15-3-2002 and are required to qualify the screening test for their registration as per the provisions of the Screening Test Regulations, 2002 shall be allowed to appear in the screening test even if they also come in the categories of circumstances contained in (A )( ii ) above, as the relaxation contained therein would also be applicable in their case.

In other words, any person at present undergoing medical education abroad, who did not conform to the minimum eligibility WPC NO.8160-2008 Page 5 requirements for joining an undergraduate medical course in India laid down by MCI, seeking provisional or permanent registration on or after 15-3-2002 shall be permitted to appear in the screening test in relaxation of this requirement provided he had taken admission in an institute recognised by MCI. This relaxation shall be available to only those students who had taken admission abroad prior to 15-3-2002. From 15-3-2002 and onwards all students are required to first obtain an Eligibility Certificate from MCI before proceeding abroad for studies in Medicine.

( C ) The categories of students not covered in ( A )( i ) and ( ii ) above and whose entire period of study has been in a medical college not recognised by MCI, will be allowed to appear in the screening test for the purpose of their registration provided they fulfil all the conditions laid down in the IMC (Amendment) Act, 2001. In other words, the qualification obtained by them must be a qualification recognised for enrolment as medical practitioner in the country in which the institution awarding the same is situated and they must be fulfilling the minimum eligibility qualification laid down by MCI for taking admission in an undergraduate medical course in India. They shall not be entitled to any relaxation."

6. The aforesaid Guidelines consist of two parts. The first part i.e.

para 6(A) relates to students who had obtained degrees prior to 15th

March, 2001 and had applied for registration with MCI prior to 15 th

March, 2001 and second part para 6 (B) relates to students who had

taken admission in medical colleges abroad prior to 15th March, 2002.

WPC NO.8160-2008 Page 6 In the present caser, admittedly the petitioner had taken admission

in the medical academy in Rusia prior to 15th March, 2002 i.e. in the

year 1999. Accordingly, she is covered by para 6(B) of the aforesaid

judgment. Division Bench of this Court in LPA No.1092/2006 titled

Navin Sharma versus Medical Council of India and another

has held that para 6(B) applies to all students who had taken

admission prior to 15th March, 2002 and also covers cases of multiple

disabilities. The said decision is based upon the language used in

para 6(B) of the said judgment which is "plural". In the aforesaid

judgment, contention of MCI to the contrary relying upon various

non-speaking orders passed by the Supreme Court in contempt

matters and other cases was considered and it was held that the said

non-speaking orders do not in any way have the effect of modifying

or clarifying the earlier directions issued in para 6(B) in the case of

Indian Doctors from Russia (supra). Doctrine of precedent and

the observations of the Supreme Court in Government of India

versus Workmen, State Trading Corporation reported in (1997)

11 SCC 641 and Krishna Kumar versus Union of India reported

in (1990) 4 SCC 207 were quoted. Reference was also made to the

judgment of the Single Judge of this Court in Jishalakshi

Embrandiri and others versus Medical Council of India WPC NO.8160-2008 Page 7 reported in 2006 (8) SLR 746 wherein it has been observed as under:

"It needs to be remembered that the dismissal of a Contempt Petition does not invariably and inexorably indicate that the legal propositions on which such actions were predicated were incorrect. The only inference that can legitimately be drawn is that the Court did not view the alleged contemnors‟ decision or action as contemptuous, possibly because two understandings were permissible in the circumstances of the case."

8. I have noted the objection and the disabilities referred to by

the respondents-MCI in the counter affidavit. The said disabilities are

covered by para 6A(ii), which are covered by umbrella protection in

para 6(B). Counter affidavit does not refer to disability under para

6A(i). Accordingly, the present case is covered by the judgment of

the Division Bench in the case of Naveen Sharma (Dr.) (supra).

Learned counsel for MCI admits that the said judgment has been

accepted and no Special Leave Petition has been preferred against

the said decision. MCI should be consistent and act uniformly. It

cannot pick and choose and act in an arbitrary manner.

9. Learned counsel for respondent-MCI however submitted that

the said judgment should not be applied to the present case as the

petitioner herein had not studied in XIth and XIIth class and in the

case of Naveen Sharma (Dr.) (supra) the student had undertaken WPC NO.8160-2008 Page 8 XIth and XIIth class but had not secured 50% marks. This distinction

is inconsequential and irrelevant for the purpose of para 6(A)(ii) read

with para 6(B). No such distinction is made in Indian Doctors from

Russia Association(Supra) which refers to minimum admission

norms without any exclusion. Moreover, I may note that the

petitioner in the present case, after returning to India with degree in

Medicine from USSR has appeared in XIIth examination and has

cleared the same.

10. Learned counsel for MCI has relied upon of order the Supreme

Court in Writ Petition (Civil) No. 11/2005 titled George Jobin

Maveli versus Union of India vide Order dated 11th December,

2006. The said Order reads :

"Writ Petition is dismissed."

11. Copy of the Writ Petition has not been placed on record though

it is stated in the counter affidavit that the facts were identical to the

present case. It is not possible to decipher and state with certainty

the reasons and grounds for dismissing the said writ petition. In

these circumstances, it cannot be said that the writ petition was

dismissed by the Supreme Court for the reason that the students had

passed Class Xth examination in India and had thereafter studied

medicine abroad and obtained degree in Medicine cannot be granted WPC NO.8160-2008 Page 9 registration inspite of specific direction in the case of Indian

Doctors from Russia Association(Supra). I may note here that

the petitioner in the present case had taken admission in the Medical

Academy in Russia in the year 1999 and had continued to study there

till 2006, for a period of about 7 years. In India also in some States,

+2 education level is in colleges and not in school. For the same

reasons, the contention of the respondent-MCI relying upon the case

of Dr. Namit Bhargava versus Medical Council of India, 108

(2004) DLT 404 is liable to be rejected. Petitioner has already passed

the FMGE Screening Test in year 2008 conducted by National Board

of Examinations, Ministry of Health & Family Welfare, Government of

India. Therefore, to this extent it cannot be denied that the appellant

has been able to obtain and perfect his knowledge in medicine and

has been able to achieve proficiency in medicine.

11. In view of the above, the Writ Petition is allowed. Mandamus is

issued to the respondent-MCI to grant provisional registration to the

petitioner as she is entitled to the benefit of para 6(B) in Indian

Doctors from Russia Association (Supra). No costs.

SANJIV KHANNA, J.

MAY 05, 2009.

P/am
WPC NO.8160-2008                                                Page 10

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             Page 68         "It is respectfully submitted that

another candidate-George Jobin Maveli had contended that in 1996, after completing 10th standard secondary education in an examination conducted at Emirates National School (U.A.E.) by CBSE, he got admission in the medical course in Romania. According to the candidate, he had completed his medical course in October 2002 and thereafter he had undergone one year internship till October 2003.

It is respectfully submitted that the candidate-George Jobin Maveli was born on 04.03.19081. He had never passed the 10+2 examination. Since the candidate had never passed his 10+2 exam, there was no occasion of his undergoing the 2 years teaching of the requisite subjects prescribed for science students with Biology in the 11th and 12th standard of the schooling of Sr. Secondary Examination in India. This candidate had also not completed the minimum age requirement of 17 years as on 31st December of the given year and was only 15 years, 9 months and 27 days at the time of admission in the medicine course. The case of the candidate, therefore, suffered from 2 disabilities, i.e.:-

   (i)       He was not 17 years of age at the time of
             admission.
   (ii)      He did not at all undertake 11th & 12th class

teaching in the prescribed science subjects with Biology."

WPC NO.8160-2008                                                  Page 12

                       SANJIV KHANNA, J.


      MAY 05, 2009.




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