Delhi High Court

Shambhavi Sharma vs National Board Of Examinations& ... on 13 December, 2010

Author: Rajiv Sahai Endlaw

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 13th December, 2010.

+                                  W.P.(C) No.5055/2010

%        SHAMBHAVI SHARMA                                  ..... PETITIONER
                     Through:             Mr. Jayant K. Mehta, Adv.

                                      Versus

         NATIONAL BOARD OF EXAMINATIONS
         & ANR.                             ..... RESPONDENTS
                     Through: Dr. Rakesh Gosain, Adv. for R-1.
                              Mr. Amit Kumar & Mr. Ashish
                              Kumar, Advocates for R-2 MCI.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                            YES

2.       To be referred to the reporter or not?              YES

3.       Whether the judgment should be reported             YES
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the communication dated 1 st December, 2009 of

the respondent no.2 Medical Council of India (MCI) refusing to issue

Eligibility Certificate to the petitioner and seeks direction to the respondent

no.1 to declare the result of the screening test taken by the petitioner.

2. The petitioner studied till Class X in a School in India. The petitioner

thereafter was admitted to Spearfish High School, Spearfish, South Dakota,

USA, an accredited school of the Western Association of Schools and

Colleges, USA and passed 12 years High School Diploma therefrom with

Physics, Chemistry, Biology & English in May, 2003. The petitioner

thereafter obtained admission in St. Petersburg State Medical Academy,

Russia and claims to have obtained therefrom a degree in June, 2009

equivalent to that of MBBS.

3. The Eligibility Requirement for taking admission in an Undergraduate

Medical Course in a Foreign Medical Institution Regulations, 2002 require

Indian Citizens desirous of joining an undergraduate medical course in any

Foreign Medical Institution on or after 15th March, 2002, as the petitioner

had done, to approach the MCI for issuance of an Eligibility Certificate for

the said purpose.

4. The Screening Test Regulations, 2002 require Indian Citizens

possessing primary medical qualification awarded by any Institution out of

India and desirous of getting provisional or permanent registration with MCI

on or after 15th March, 2002, to qualify a screening test for that purpose.

Only those who had obtained Eligibility Certificate aforesaid are permitted

to appear in the screening test.

5. It is the case of the petitioner that the petitioner applied for an

Eligibility Certificate in the year 2003 but did not get any response and was

under the bona fide impression that her application had been accepted. It is

further the case of the petitioner that she learnt in the year 2005 that the MCI

had misplaced her application for Eligibility Certificate; the petitioner

claims to have made another application for Eligibility Certificate in the

year 2005 and then again in the year 2007 but to no avail. The petitioner

upon return to India after having obtained the Bachelor's Medicine (M.D.)

Degree from St. Petersburg State Medical Academy, applied to appear in the

screening test. Provisional admission to screening test was granted to the

petitioner. However when her result of the screening test was not declared,

on making enquiries she was told that her request for Eligibility Certificate

filed in the year 2007 had been declined for the reason that she had passed

her schooling within one year from Spearfish High School and not studied

for two years after class Xth and thus could not be granted Eligibility

Certificate. Since the petitioner was denied Eligibility Certificate and was

thus not eligible for taking the screening test, her result of the screening test

was withheld.

6. The petitioner represented again to the respondent no.2 MCI and

rejecting which representation, the communication dated 1 st December, 2009

impugned in this writ petition was issued. The reason given in the

communication dated 1st December, 2009 for refusing the Eligibility

Certificate was the same i.e. of having obtained the High School Diploma

after only one year's study after class Xth.

7. Notice of this writ petition was issued and the respondents directed to

produce the result of the screening test taken by the petitioner in a sealed

cover before this Court.

8. On the next date though the result of the screening test in a sealed

cover was handed over but the counsel for the respondents informed that the

petitioner had cleared the screening test.

9. The counsels were heard at length on 18th October, 2010. Since the

Regulations on Graduate Medical Education, 1997 provide that no

candidate shall be allowed to be admitted to the MBBS course until he/she

has inter alia passed the Higher Secondary Examination or the Indian

School Certificate Examination which is equivalent to 10+2 Higher

Secondary Examination after a period of 12 years study with the last two

years of study comprising of Physics, Chemistry, Biology and Mathematics

or any other elective subjects with English at a level not less than the core

course of English, OR any other examination which in scope and standard is

equivalent to the intermediate science examination of an Indian

University/Board taking Physics, Chemistry and Biology including practical

test in each of these subjects and English, it was enquired from the

counsels as to who determines whether "any other examination which is in

equivalent to intermediate science examination of an Indian University /

Board". All counsels informed that the same is to be determined by the

Association of Indian Universities (AIU).

10. This Court was thus of the view that if the High School Diploma

taken by the petitioner from the Spearfish High School is equivalent to the

10+2 Higher Secondary Certificate Examination, the petitioner shall satisfy

the eligibility under the Eligibility Certificate Regulations.

11. Though the petitioner had produced before this Court a Certificate

dated 30th October, 2009 issued by the AIU certifying that the 12 years High

School Diploma done by the petitioner from the Spearfish High School is

equivalent to the 12 years Senior School Certificate of CBSE, it was

enquired from the counsel for MCI as to why in the face of the said

certificate of AIU, the petitioner was held to be not eligible. The counsel for

the petitioner in this regard had also relied upon Jishalakshi Embrandiri Vs.

Medical Council of India 2006 V AD (Delhi) 51, in paras 12 and 13

whereof it has been held that the number of years of education is not

relevant after the examination is otherwise found equivalent.

12. The matter was as such adjourned for the counsel for MCI to take

instructions.

13. On the next date, the counsel for the respondent no.2 MCI contended

that the petitioner was to apply for Eligibility Certificate prior to

commencing medical education in the Foreign Medical Institution and

having not done so, is not entitled to apply for the Eligibility Certificate after

having completed the course from the Foreign Medical Institution.

However this Court observed that under the Regulations, it did not make any

difference as to whether the Eligibility Certificate is applied for and

obtained before commencing education or even thereafter. It was also

observed that the application of the petitioner for Eligibility Certificate made

after completing the course from Foreign Medical Institution was

entertained and was rejected on merits and not on the ground of having been

made subsequently.

14. The counsel for respondent no.2 MCI on that date stated that MCI had

in December, 2009 written to the Spearfish High School to satisfy itself as to

the genuineness of the claim of the petitioner. It was further stated that in

the documents earlier produced by the petitioner, the petitioner was not

found to have studied the subject of Physics and had produced a corrected

mark sheet only upon it being so pointed out. It was thus pointed out that a

doubt had been cast with respect to the said Certificate. In the

circumstances yet another opportunity was given to the respondent no.2

MCI for making enquiries from the Spearfish High School and the matter

was adjourned to today.

15. The counsel for the respondent no.2 MCI has today stated that an e-

mail was sent to the Spearfish High School at the address furnished by the

petitioner; that a response in favour of the petitioner followed by a hardcopy

favourable to the petitioner had been received but the said response was

without any signatures or stamp. The counsel for the respondent no.2 MCI

has handed over a bunch of documents relating to the enquiries made in this

regard. From the said documents I am satisfied that the Spearfish High

School has responded faulty. Thus, in view of the Certificate of AIU, it is

held that the High School Diploma obtained by petitioner is equivalent to

the Intermediate Science Examination of an Indian Board. The petitioner

was thus eligible for admission to MBBS and consequently also eligible for

admission to the Foreign Medical Course/Institution.

16. However the counsel for the respondent no.2 MCI has today again

urged that the petitioner was required to apply for Eligibility Certificate

before joining the St. Petersburg State Medical Academy and did not do so

and hence is not entitled to succeed in this writ petition. With reference to

Section 13(4B) of the Indian Medical Council Act, 1956 and the Eligibility

Certificate Regulations, it is argued that the requirement is of applying

before joining the course.

17. Though this aspect was considered and decided against the

respondents in the order dated 25th October, 2010 but since the writ petition

was not disposed of on that date for complete adjudication, the said

argument is again considered today.

18. Undoubtedly, literal reading of the Act and the Regulations shows

that the application for Eligibility Certificate has to be made prior to joining

the Foreign Medical Institution. The Division Bench of this Court also in

Yash Ahuja Vs. UOI MANU/DE/1399/2008 suggests that the application

has to be prior to admission in Foreign Medical Institution. Though the

petitioner has pleaded to have applied prior to joining the St. Petersburg

State Medical Academy but there is no document in that regard. The

counsel for the petitioner states that no copy of the application was

maintained and there is no practice of giving a acknowledgement. The

petitioner also relies on the replies received from the respondent no.2 MCI

to the RTI query to the effect that there is no system in the MCI of

maintaining records of the applications received or rejected.

19. The Foreign Medical Institutions are not governed by the Act and the

Regulations aforesaid. Thus even though the Act and the Regulations

suggest obtaining Eligibility Certificate prior to joining the Foreign Medical

Institution but since the production of the said Certificate is not necessary

for admission in a Foreign Medical Institution governed by their own Rules,

admission is granted even without the Eligibility Certificate.

20. The only relevance of the Eligibility Certificate thus is for the purpose

of appearing in the screening test. The question of appearing in the

screening test would arise only when the course from the Foreign Medical

Institution is completed. Seen in this light, I do not see any reason for

insisting upon applying for the Eligibility Certificate prior to joining the

Foreign Medical Institution. The enquiry which is to be done and the

satisfaction which is to be reached qua the eligibility can be reached even

after gaining such admission and till just before appearing in the screening

test. If an Indian Citizen, chooses to pursue Medical Education in a Foreign

Medical Institution without the Eligibility Certificate, he would do so at the

risk of notwithstanding having completed the education, being denied the

Eligibility Certificate and consequently registration with MCI and right to

practice Medicine in India.

21. Thus the language of the Act and the Regulations appearing to

suggest that the application for Eligibility Certificate has to be made before

getting admission in a Foreign Medical Institution, has to be interpreted in

the context and purposely and not in a pedantic fashion. The Supreme

Court in Yash Ahuja Vs. MCI (2009) 10 SCC 313 an appeal from the

judgment aforesaid of the Division Bench traced the history of the medical

education in India and the factors resulting in introduction of Section 13(4A)

and (4B) to the Act and for formulation of the Regulations and in

interpretation of Section 13(4A) held that even if the material words are

capable of bearing two constructions, the most firmly established rule for

construction of such works in the rule of purposive construction or mischief

rule i.e (1) what was the law before the making of the Act, (2) what was the

mischief or defect for which the law did not provide, (3) what is remedy that

the Act has provided and (4) what is the reason of the remedy. Adopting the

said rule, it has to be held that it is immaterial whether the Eligibility

Certificate is applied for and issued before admission into Foreign Medical

Institution or thereafter. Reference in this regard may also be made to:-

(a) Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. (2003)

2 SCC 111.

(b) National Insurance Co. Ltd. Vs. Laxmi Narain Dhut (2007) 3

SCC 700.

         (c)       Surjit Singh Vs. MTNL (2009) 16 SCC 722.

         (d)       Swarn Darshan Impex (P) Ltd. Vs. Commissioner, Value

         Added Tax MANU/DE/1802/2010.

Laying down that the words of a statute are to be understood in the

sense they best harmonize with the subject of the enactment and the object

which the legislature has in view--where there is a conflict between the

purpose and the material, the purpose is to prevail for the material is

subordinate to purpose. It was further held that where a statute requires that

a thing shall be done in the prescribed manner or form but does not set out

the consequences of non-compliance, the question whether the provision

was mandatory or directory has to be adjudged in the light of the intention of

the legislature as disclosed by the object, purpose and scope of the statute.

22. I am therefore not inclined to accept the plea of the respondent no.2

MCI at this belated stage that the petitioner is not entitled to the Eligibility

Certificate for the reason of having applied for the same after joining the St.

Petersburg State Medical Academy.

23. The counsel for the respondent no.1 has also drawn attention to

another recent judgment dated 20th December, 2007 in LPA No.1092/2006

titled Dr. Naveen Sharma Vs. Medical Council of India but the same is not

found opposite.

24. Else, I am satisfied that the petitioner fulfilled the criteria for issuance

of the Eligibility Certificate and the reasons given by MCI for denying the

same to the petitioner being erroneous.

25. The writ petition is therefore allowed. The petitioner is found entitled