Medical Council Of India vs Prashant Kumar Gupta & Anr
2014 Latest Caselaw 469 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of decision: 24th January, 2014
+      LPA 70/2014, CM No.1451/2014 (for stay), CM No.1452/2014 (for
       exemption), CM No.1453/2014 (permission to file lengthy
       synopsis), CM No.1454/2014 (for condonation of 24 days delay in
       filing the appeal) and CM No.1455/2014 (for condonation of 18
       days delay in refiling).

       MEDICAL COUNCIL OF INDIA                   ..... Appellant
                   Through: Mr. Maninder Singh, Sr. Adv. with
                            Mr. T. Singhdev, Adv.
                                  versus

    PRASHANT KUMAR GUPTA & ANR                 ..... Respondents

Through: Mr. Sunil Kumar &Mr. Rajiv Ranjan Mishra, Advs. for R-2/UOI.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This intra court appeal impugns the judgment dated 30th September, 2013

of the learned Single Judge of this Court in W.P.(C) No.6452/2012 preferred by

the respondent no.1 (respondent no.2 is the Union of India) directing the

appellant to grant provisional registration under Section 25(1) of the Indian

Medical Council Act, 1956 to the respondent no.1 in case he had passed the

Screening Test held on 25th March, 2012.

2. The counsel for the respondent no.2 Union of India appears on advance

notice. We have heard the senior counsel for the appellant at length.

3. The respondent no.1, after obtaining Eligibility Certificate from the

appellant under The Eligibility Requirement For Taking Admission In An

Undergraduate Medical Course In A Foreign Medical Institution Regulations

2002, acquired doctor of medicine (MD Degree) from Khazar University,

Baku, Azerbaijan, equivalent to the MBBS degree in India and underwent the

Screening Test conducted by the National Board of Examinations, Ministry of

Health & Family Welfare under The Screening Test Regulations, 2002 and

successfully passed the same. However the appellant still refused to grant

provisional registration to the respondent no.1 under Section 25(1) of the Act to

enable the respondent no.1 to undergo practical training and whereafter the

respondent no.1 would be entitled to practice medicine, on the ground that the

foreign University from which the respondent no.1 had acquired the foreign

medical qualification was, earlier, without obtaining any approval under

Section 10A of the Act was having its off campus in India in the name and style

of Sidhant Institute of Medical Services and Research and the respondent no.1

had been admitted for first year of his medical course in such off campus of the

foreign University at India.

4. The learned Single Judge has found the denial by the appellant of

provisional registration to the respondent no.1on the aforesaid ground to be

contrary to the law laid down in Medical Council of India Vs. J. Saai

Prasanna (2011) 11 SCC 748 and hence has allowed the writ petition. The

Supreme Court in the said judgment, in paras 10 to 14, has held as under:-

"10. MCI contends that where student of a foreign University undergo a part of his training in an Institution in India which has not obtained the permission from the Central Government/MCI, as required under section 10A of the Act, such students are not eligible for registration as medical practitioners in India. The requirements for recognition of a medical qualification granted by a medical institution outside India are different from requirements for recognition of medical qualification granted by Universities or medical institutions in India. It is no doubt true that if a student in India, does a course of study in medicine in a medical college in India which does not have the permission of the Central Government under Section 10A of the Act, the medical qualification granted to any student of that college will not be a recognized medical qualification for the purposes of the Act and consequently such student will not be entitled to be enrolled in the India Medical Register or State Medical Register.

11. But medical qualifications granted by medical institutions outside India are dealt within a special provision, that is, Section 13(4A) of the Act. Necessarily, for examining the validity of the medical qualification granted by a medical institution in any country outside India, the norms and tests of the country where the medical institution is situated, will have to be fulfilled for recognition of the degree in that country and the norms that are prescribed by the Indian Medical Council Act, 1956 in regard to Indian medical institutions will have no relevance. So long as the medical institutions in a country outside India has granted a medial qualification and that medical qualification is recognized for enrolment as medical practitioner in that country, all that is required for the purpose of enrolment in the medical register in India is qualifying in the screening test in India.

12. In the case of persons who obtained a medical qualification in a medical institution outside India, the question as to where the course of study was undergone is not relevant. The course of study could be in that country or if the norms of the Medical Council of that country so permitted, the course of study could be partly in that country and partly in another country including India. Once that country recognizes a medical qualification granted by the institution in that country for the purpose of enrolment as a medical practitioner in that country, and such medical degree holder passes the screening test in India, the Medical Council of India cannot refuse to recognize such degree on the ground that the student did a part of his study in an Institution in India as a part of his medical study programme for the foreign institution.

13. As stated above, as far as the provisions of the Act at the relevant point of time, all that was required for an Indian

citizen holding a medical qualification from a foreign country for being enrolled in the medical register was that he should qualify in the screening test in India. Therefore, the fact that such a medical graduate underwent a part of the medical course of a foreign university, in an Indian college which was not recognized in India, will not be relevant.

14. The learned counsel for MCI submitted that unscrupulous operators in India may commence and conduct courses in unauthorized institutions in India and make the students take their examination in a foreign country to secure a decree outside India and thereafter flood India with inadequately and improperly educated medical graduates, by appearing and passing in the screening test. This apprehension is without any basis as the Screening Regulations have now been amended by the Screening Test Regulations (Amendment), 2010 whereby clause (3) has been added in Regulation 4 to the following effect:

"4. (3) He/she has studied for the medical course at the same institute located abroad for the entire duration of the course from where he/she has obtained the degree."

5. The senior counsel for the appellant has contended that the aforesaid

dicta of the Supreme Court would not apply to the respondent No.1 / writ

petitioner owing to two distinct facts. Firstly it is contended that the

Supreme Court in the judgment aforesaid was concerned with the students

who had joined foreign medical colleges prior to the coming into force of the

2002 Regulations while the respondent no.1 / writ petitioner joined the

foreign medical institution after the coming into force of the 2002

Regulations and under the purview thereof. The second contention is, that

the appellant, immediately upon learning of the said foreign University

having set-up an off campus in India in the name and style of Sidhant

Institute of Medical Services and Research, had informed it that its

operations in India were illegal and directed it to close the said college; the

said college had filed a writ petition in the Bombay High Court being Writ

Petition (Civil) No.8497/2006 and vide interim order in the writ petition the

said college was ordered to be inspected and after receiving the report of the

same being totally deficient, the writ petition was dismissed with costs of

Rs.50,000/-. It is argued that in the case aforesaid before the Supreme Court,

there was no inspection of the off campus in India of the foreign University

where the students in that case had received education.

6. We are unable to find either of the aforesaid two reasons to be of any

relevance to make the dicta of the Supreme Court inapplicable to the facts of

the present case.

7. The 2002 Regulations, under aegis of which the respondent no.1/writ

petitioner was granted the Eligibility Certificate, did not till the 2010

amendment supra thereto, contain any requirement that the student should

study the medical course at the same institute located abroad for the entire

duration of the course. The 2010 amendment, introducing the said

requirement/condition, came into force after the year 2006 in which the

respondent no.1/writ petitioner obtained Eligibility Certificate and took

admission to the off campus in India of the foreign medical institution,

though before the respondent no.1/writ petitioner took the screening test on

25.03.2012. However there is nothing to show that the 2010 amendment is

retrospective. The said amendment thus cannot be allowed to affect

students, who, prior to the coming into force thereof, joined off campus in

India of foreign medical institutions. The senior counsel for the appellant of

course has argued that the 2010 amendment supra is only clarificatory, but

we are unable to, in the absence of anything to support such contention, hold

so. We are thus, unable to accept that the dicta of the Supreme Court in J.

Saai Prasanna supra, in the context of students taking admissions to foreign

medical colleges before the coming into force of 2002 Regulations, would

not apply to the respondent no.1/writ petitioner, because notwithstanding the

2002 Regulations having come into force, they, till the respondent no.1/ writ

petitioner took admission in foreign medical institution in the year 2006, did

not contain any such condition/requirement that the student should study at

the same institution abroad for the entire duration of the course.

8. As far as the second reason is concerned, the Supreme Court in J.

Saai Prasanna was also concerned with students who had undergone the

first two terms of 18 months of the medical course at an unrecognized

medical college in India. In our view, it will make no difference whether the

said unrecognized medical college is issued a notice of closure by the

appellant or not or whether such unrecognized medical college is inspected

by a team of doctors or not. Rather we have enquired from the senior

counsel for the appellant whether the appellant would recognize a medical

degree obtained by a student from an unrecognized medical college which

had not been issued any notice of closure or which had not been inspected

and which had continued to thrive unnoticed. The senior counsel for the

appellant fairly admitted that the same cannot be the criteria.

9. It is thus clear that the Supreme Court in J. Saai Prasanna also was

concerned with the same facts as are before this Court and we are thus

bound by the judgment of the Supreme Court and unable to take a different

view for the reasons which have no bearing to the reasoning of the Supreme

Court.

10. The senior counsel for the appellant has lastly contended that the

learned Single Judge has erred in para 12 of the impugned judgment

observing that the appellant cannot regulate the faculty and other

infrastructural requirements in a foreign University including an off campus

centre of foreign University even if the said offshore campus is situated in

India. He has contended that vide Section10-A of the Act no medical college

can be established without permission of the Central Government.

11. We are in agreement with the aforesaid contention of the senior

counsel for the appellant and clarify that no observation in the judgment of

the learned Single Judge be construed as in laying down that a foreign

University can have an offshore campus in India without seeking permission

under Section 10A.

12. The senior counsel for the appellant at the fag-end of the hearing

informs that Regulation 4(3) of the Screening Test Regulations, 2002

brought into force vide the 2010 amendment has been held by the judgment

dated 27th September, 2013 of the Division Bench of this Court in W.P.(C)

No.1655/2013 titled Rohit Naresh Agarwal Vs. Union of India to be ultra

vires the Act and has been quashed and an SLP (C) No.36956/2013

preferred by the appellant thereagainst has been granted and vide interim

order therein the said Regulation 4(3) has been permitted to be enforced by

the appellant.

13. Save for the aforesaid, there is no merit in the appeal which is

dismissed in limine.

No costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J

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