Delhi High Court
Sushil Kumar vs Medical Council Of India And Anr on 13 September, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13.09.2013
+ W.P.(C) 6126/2012
SUSHIL KUMAR ..... Petitioner
Through: Mr. Abdhesh Chaudhary,
Mr. Nilendu Vatsyayan &
Mr. Akshat Gupta, Advs.
versus
MEDICAL COUNCIL OF INDIA AND ANR ..... Respondents
Through: Mr. Ashish Kumar & Mr. Rituraj Kumar,
Advs. for R-1.
Dr. Rakesh Gosain, Adv. for R-2.
+ W.P.(C) 6133/2012
MILIND BABANRAO ZADE ..... Petitioner
Through: Mr. Abdhesh Chaudhary,
Mr. Nilendu Vatsyayan &
Mr. Akshat Gupta, Advs.
versus
MEDICAL COUNCIL OF INDIA AND ANR ..... Respondents
Through: Mr. Ashish Kumar & Mr. Rituraj Kumar,
Advs. for R-1.
Dr. Rakesh Gosain, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
JUDGEMENT
V.K. JAIN, J. (Oral)
Section 13 (4A) of the Indian Medical Council Act, 1956
(hereinafter referred to as the „said Act‟), which came to be inserted w.e.f.
3.9.2001 to the extent it is relevant provides that an Indian citizen who
obtains medical qualification from an institute in any other country
recognised for enrolment as medical practitioner in that country shall not
be entitled to be enrolled with any State Medical Council unless he
qualifies the screening test prescribed in India for this purpose and the
foreign medical qualification shall be deemed to be recognised medical
qualification for the purposes of the said Act only after he qualifies the
said screening test. Sub-section (4B) of Section 13 of the said Act, to the
extent it is relevant, provides that an Indian citizen shall not be eligible to
take admission to obtain medical qualification from any medical
institution in any foreign country, without obtaining an eligibility
certificate from the Medical Council of India (for short „MCI‟). It further
provides that in case the qualification is obtained without such eligibility
certificate he shall not be eligible to appear in the screening test referred
to in sub-section (4A) of Section 13 of the said Act.
2. Regulation 8 of the Eligibility Certificate Regulations, 2002
(hereinafter referred to as the „said Regulations‟) framed by the MCI in
exercise of the powers conferred upon it by Section 33 of the said Act,
reads as under:
"8. The Council shall consider the application for eligibility
Certificate and verify the following details as per the
Regulations of the Council -
i. Whether the candidate fulfils the age criterion
prescribed by the Council?
ii. Whether the candidate fulfils the eligibility criteria
for admission to MBBS course in India as prescribed in the
Graduate Medical Education Regulations, 1997, i.e., minimum
qualifying marks criteria in Physics, Chemistry, Biology and
English, including relaxed criteria in case the candidate belongs
to a reserved category?
ii. If the candidate belongs to SC/ST/OBC, whether
he/she has produced a caste certificate from a Competent
Authority?"
Regulation 4 of the said Regulations reads as under:
"4. The request for issue of Eligibility Certificate shall
be made by the candidate in the proforma prescribed by the
Council and shall be accompanied by the original
certificate/mark-sheet (along with Photostat copy) of the
qualifying examination. The original certificate shall be
returned to the candidate after verifying the same with the
photostat copy which shall be retained by the Council. Request
shall also be accompanied by a Demand Draft for the specified
sum in favour of Secretary, Medical Council of India, New
Delhi. The fee shall be fixed by the Council."
3. The petitioner in WP (C) No.6126/2012 took admission in Jiang Xi
University of China some time in July-August, 2005. He, however, did
not obtain the eligibility certificate from the MCI in terms of the
requirement of Regulation 8 of the said Regulations before the aforesaid
admission was taken.
The petitioner in WP (C) No.6133/2012 took admission in Institute
of Medical Science, Anhui University of China some time in April, 2006,
and even he did not obtain the eligibility certificate from the MCI.
4. On completion of their course in the above Universities/Institutes
of China the petitioners applied to the MCI for grant of the eligibility
certificate in terms of the said Regulations.
Vide communication dated 29.8.2012, the petitioner in WP (C)
No.6126/2012 was informed as under:
"It is to inform you that Council Office has received a
communication from Embassy of India, Beijing, enclosing
therewith a list of 30 (thirty) Medical Education Institutions
approved to enrol foreign students by the Ministry of Education,
China. It is further mentioned in the said communication that
no eligibility certificate should be issued by the concerned
authorities in India for studying in the institution other than in
the said list."
A similar communication was sent to the petitioner in WP (C)
No.6133/2012 in respect of Anhui University of China.
5. Being aggrieved from refusal of the Eligibility Certificates to them,
the petitioners are before this Court seeking the following reliefs:
"i. Issue a writ, order or direction or writ in the nature of
mandamus quashing the letter dated 29/08/2012 issued by the
MCI and direct them to accept the Application for issuance of
eligibility certificate of the petitioner;
ii. Issue a writ, order or direction or writ in the nature of
mandamus directing/commanding the respondent No.1 to issue
eligibility certificate to the petitioner in accordance with the
Eligibility Certificate Regulations, 2002;
iii. Pass such other order(s) or further orders as this Hon‟ble
Court deems fit and proper in the facts and circumstances of the
case, for which act of kindness the petitioner as in duty bound
shall ever pray."
6. Vide interim order dated 21.3.2013, the petitioners were permitted
to sit in the screening test conduct for the purpose of registration of
candidates who obtained their medical qualification from a foreign
country. The result of the petitioners has bas been kept in a sealed cover
and is yet to be declared.
7. The writ petitions have been contested by respondent No.1-MCI
primarily on the grounds that (i) in view of the provisions contained in
Section 13 (4B) of the said Act and the Regulations framed by the MCI in
exercise of the powers conferred upon it by Section 33 of the said Act,
the petitioners were required to obtain the Eligibility Certificate before
taking admission in the foreign university/institute concerned; and (ii) the
names of the institute/university from which the petitioners obtained their
medical qualification does not appear in the list of thirty (30) Universities
which have been recognised by the Government of China for the purpose
or registration of medical practitioners in that country sent to them by the
Indian Embassy in China,. The said list was stated to have been obtained
by the Indian Embassy from the Ministry of Education, China.
8. As regards the first objection taken by the respondent-MCI is
concerned, a reference may be made to a decision of this Court in WP (C)
No.11082/2009 & connected matters titled Pawan Kumar Gupta & Ors.
Vs. Medical Council of India & Ors. decided on 10.2.2012, where,
dealing with a similar contention this Court inter alia held as under:
"12. The contention of the learned counsel for the respondent
No.1/MCI that the petitioners were obliged to have applied to
the MCI for issuance of eligibility certificates before joining the
Jinggangshan University and having failed to do so, they cannot
approach this Court for such directions, has been considered and
dealt with in a decision of a coordinate Bench of this Court
dated 13.12.2010 in W.P.(C) No.5055/2010 entitled
„Shambhavi Sharma Vs. National Board of Examinations &
Anr."
xxxx xxxx xxxx xxxx xxxx
"19. ....In any case, even if it is assumed that none of the
petitioners in W.P.(C) No.6211/2011, except for petitioners
No.4 and 5, had applied to respondent No.1/MCI for grant of
eligibility certificates, the said certificate gains significance only
when a candidate proposes to appear in the Screening Test after
completion of the MBBS course from a foreign medical
institution. In such circumstances, the petitioners herein would
be well within their right to apply to respondent No.1/MCI for
grant of eligibility certificates upon completion of their medical
course in April, 2012 or for that matter, at any point in time
prior to their appearing in
the Screening Test."
9. Admittedly no appeal against the above referred decision has been
filed by the MCI. In the face of the aforesaid decision, it is not open to
the MCI to insist upon the very same contention, which was expressly
rejected by this court in the above-referred case. Even otherwise, the
purpose of Regulation 8 of the said Regulations is to ensure that the
person taking admission in a foreign University/Institute is duly qualified
for taking admission in MBBS course in India so that the persons who
come from non-science fields, i.e., those who have not studied Physics,
Chemistry and Biology are not able to obtain medical qualification from
other countries who do not insist upon such a requirement and then
practice in India. If a candidate who otherwise fulfils the eligibility
criteria prescribed for admission to MBBS Course in India, under
Graduate Medical Regulations, 1997 commits a mistake and does not
seek the eligibility certificate from MCI before taking admission in a
foreign university, it would be too harsh to penalise him for such an
inadvertent error on his part which, since refusal of the certificate would
result in spoiling the whole career of such a student who has studied in a
foreign University at considerable cost and expenses.
10. The learned counsel for the respondent-MCI points out that under
Regulation 9 of the said Regulations the MCI is required to issue
Eligibility Certificate to a candidate certifying that he/she was eligible to
join a medical institution outside India to obtain a primary medical
qualification and the expression primary medical qualification has been
defined in Regulation 2(d) of the said Regulations to mean a medical
qualification awarded by any medical institution outside India which is a
recognized qualification for enrolment as medical practitioner in the
country in which the institution awarding the said qualification is situated
and which is equivalent to MBBs in India.
The applications of the petitioners for grant of an Eligibility
Certificate have been rejected on the sole ground that the names of the
Institutes/Universities form which they obtained their medical
qualifications, do not appear in the list of thirty (30) Universities
downloaded by the Indian Embassy from the website of the concerned
Ministry in China, which have been approved to enrol foreign students in
China. In terms of Regulation 8 of the said Regulations the MCI is
required to verify only as to whether the petitioners fulfilled the eligibility
criteria prescribed by it for admission to MBBS Course in India. On the
other hand, in terms of the requirement of Regulation 9 read with
Regulation 2(d) of the aforesaid Regulation, the MCI is also required to
verify, before it issues Eligibility Certificate to a person, as to whether the
course in which admission is taken outside India, would qualify as a
primary medical qualification within the meaning of Regulation 2 (d)
meaning thereby that he would be able to obtain such qualification which
is recognised for enrolment as medical practitioners in the country in
which the institution awarding the qualification is situated and that
qualification is equivalent to MBBS course in India. Unfortunately,
before rejecting the applications of the petitioners no attempt was made
by the MCI to verify independently as to whether the qualifications
obtained by the petitioners before this Court were such which were
recognised as qualification for enrolment as medical practitioners in
China and whether that qualification is equivalent to MBBS Course in
India or not. Such an exercise would necessarily have to be undertaken
by MCI. Such verification could also have been made by the MCI
through the Indian Embassy in China but even that attempt was not made
and the applications were rejected summarily on the ground that the
names of the Institutes/Universities from which qualification was
obtained by the petitioners did not find mention in the list of thirty (30)
Institutes downloaded from the website of the concerned Ministry in
China.
11. For the reasons stated hereinabove, the writ petitions are disposed
of with the following directions:
The applications submitted by the petitioners to MCI for issue of
Eligibility Certificate shall be considered afresh in the light of the
provisions contained in the Eligibility Certificate Regulations, 2002 and if
it is found that the petitioners were eligible in terms of Regulation 8 &
Regulation 9 read with Regulation 2 (d) of the Regulations for Grant of
Eligibility Certificate, such certificate shall be issued to them within three
(3) months from today. It is made clear that the applications for grant of
Eligibility Certificates shall not be rejected on the ground that the
petitioners did not seek such certificate before taking admission in foreign
Institute/University.
At this stage, the learned counsel for the petitioners has pointed out
that initially the petitioners had taken admission in the
Institute/University different from the University/Institute from which the
medical qualification was ultimately obtained by them. If that be so, the
MCI before issuing the Eligibility Certificate shall verify and confirm that
both such Universities/Institutions were eligible in terms of the Eligibility
Certificate Regulations, 2002.
12. In case the Eligibility Certificates in terms of this direction are
issued to the petitioners, the result in the screening test shall also be
declared and notified to them within two (2) weeks of issue of such
certificates.
The writ petitions stand disposed of.
SEPTEMBER 13, 2013 V.K. JAIN, J.
b'nesh
