Kerala High Court
Aiswarya Pichirikkat vs The Joint Director ( Medical ) on 11 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 27145 OF 2021
PETITIONER:
HESTINA HENTRY PEREIRA
AGED 23 YEARS
D/O HENTRY MICHAEL PEREIRA, H.B. BHAVANAM,
TC 90/1098, TITANIUM POST, KOCHUVELI,
THIRUVANANTHAPURAM-695 021.
BY ADV R.SUDHIR
RESPONDENT:
THE JOINT DIRECTOR (MEDICAL)
DEPARTMENT OF FINAL EXAMINATIONS,
NATIONAL BOARD OF EXAMINATIONS,
NAMS BUILDING, ANSARI NAGAR,
RING ROAD, NEW DELHI-110 29.
BY ADV MANU S., ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, ALONG WITH WP(C).27150/2021,
27148/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.27145/2021 & Connected cases
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 27148 OF 2021
PETITIONER:
IVIN THANKAM SAJI,
AGED 23 YEARS
D/O. SAJI MATHEW,
CHARUVILA THEKKETHIL HOUSE,
KARUVATTA ADOOR P.O.,
PATHANAMTHITTA DISTRICT 691 523.
BY ADV R.SUDHIR
RESPONDENT:
THE JOINT DIRECTOR (MEDICAL),
DEPARTMENT OF FINAL EXAMINATIONS
DEPARTMENT OF FINAL EXAMINATIONS,
NATIONAL BOARD OF EXAMINATIONS,
NAMS BUILDING, ANSARI NAGAR
RING ROAD, NEW DELHI 110029.
BY ADV MANU S., ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, ALONG WITH WP(C).27145/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.27145/2021 & Connected cases
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 27150 OF 2021
PETITIONER:
AISWARYA PICHIRIKKAT,
AGED 23 YEARS
D/O. SANTHOSH MENON, KRISHNASREE,
VILLADOM P.O., KUTTUMUKKU,
THRISSUR 680 631.
BY ADVS.
SANTHEEP ANKARATH
R.SUDHIR
RESPONDENT:
THE JOINT DIRECTOR ( MEDICAL ),
DEPARTMENT OF FINAL EXAMINATIONS,
NATIONAL BOARD OF EXAMINATIONS,
NAMS BUILDING, ANSARI NAGAR,
RING ROAD, NEW DELHI 110029.
BY ADV MANU S., ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, ALONG WITH WP(C).27145/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.27145/2021 & Connected cases
:4:
N. NAGARESH, J.
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W.P.(C) Nos.27145, 27148 and 27150 of 2021
`````````````````````````````````````````````````````````````
Dated this the 11th day of January, 2022
JUDGMENT
~~~~~~~~~
The petitioners in these three writ petitions
underwent "Bachelor of Science Doctor of Medicine" (BSC
MD) Course from Our Lady of Fatima University, Valenzuela,
Manila. On successful completion of the Course, the
petitioners were issued "Doctor of Medicine Degree" by the
University. To practice Medicine in India, the petitioners
have to clear an examination conducted by the National
Board of Examinations for Foreign Medical Graduates.
2. The petitioners submitted applications for
appearing in the Examination for Foreign Medical Graduates
in the month of October, 2021. Though the petitioners
submitted all documents in proof of their successful
completion of BSC MD Course from the foreign University,
W.P.(C) No.27145/2021 & Connected cases
the petitioners were required to produce scanned copy of the
Original Medical Qualification Certificate apostilled/attested
by the Indian Embassy. The petitioners approached the
Indian Embassy in Manila to issue apostilled Certificate
before 30.11.2021 so that the same can be produced before
the respondent in time.
3. By Ext.P3, the Ministry of Foreign Affairs, Manila
informed that the Certification would be made available only
on 09.12.2021. Though the petitioners took all efforts to get
the Certificate apostilled before the stipulated date, they were
informed that due to Covid-19 restrictions, the Ministry of
Foreign Affairs will issue the document only on 09.12.2021.
The last date for submission of application/documents to the
respondent was 30.11.2021.
4. The petitioners therefore approached this Court
filing these writ petitions. The petitioners submitted that they
will be able to produce the said document on 15.12.2021.
Taking into account the afore fact situation, this Court
passed interim orders in these writ petitions directing the
W.P.(C) No.27145/2021 & Connected cases
respondent to issue Admit Card to the petitioners
provisionally on condition that the petitioners produce
attested copies of Degree Certificate. This Court, in the
interim orders, made it clear that the participation of the
petitioners in the Examination will be subject to the outcome
of these writ petitions.
5. When these writ petitions came up for hearing
today, the petitioners submitted that they were permitted to
appear in the Examination pursuant to the interim orders of
this Court and subsequently, the petitioners produced the
requisite original Foreign Medical qualification Certificate
apostilled/attested by Indian Embassy before the respondent.
6. The respondent resisted the writ petitions filing
counter affidavits. The respondent urged that candidates
who fail to submit the documents as prescribed in the
Information Bulletin for FMGE will not be allowed to appear in
the Examination and would be declared ineligible to appear.
The learned Assistant Solicitor General of India, relying on
the Information Bulletin of the Foreign Medical Graduate
W.P.(C) No.27145/2021 & Connected cases
Examination, pointed out that the Foreign Medical Degree
should be attested either by the Embassy of India or should
be apostilled by the appropriate authority of the foreign
country concerned. The provision cannot be watered down.
7. Relying on the judgment of the Hon'ble Apex
Court in Maharashtra State Board of Secondary and
Higher Secondary Education and others v. Paritosh
Bhupeshkumar Sheth and others [AIR 1984 SC 1543], the
ASGI argued that the Court should be extremely reluctant to
substitute its own views as to what is wise, prudent and
proper in relation to academic matters in preference to those
formulated by professional men possessing technical
expertise and rich experience of actual day-to-day working of
educational institutions and the departments controlling
them. It will be wholly wrong for the court to make a pedantic
and purely idealistic approach to the problems of this nature,
isolated from the actual realities and grass root problems
involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic
W.P.(C) No.27145/2021 & Connected cases
view as opposed to a pragmatic one were to be propounded.
It is equally important that the Court should also, as far as
possible, avoid any decision or interpretation of a statutory
provision, rule or bye-law which would bring about the result
of rendering the system unworkable in practice.
8. Heard the learned counsel for the petitioner and
the learned ASGI representing the respondent.
9. In these writ petitions, the fact that the petitioners
have passed and obtained a Foreign Medical Degree, is not
in dispute. The fact that the petitioners are eligible to appear
in the Foreign Medical Graduate Examination is also
admitted. The objection raised by the respondent is that to
appear in the examination, the candidates should submit all
requisite documents including the apostilled/ attested copy of
the Foreign Degree before the last date for submission of
application. As the petitioners have not produced the
document in time, they are not eligible to appear in the
examination.
W.P.(C) No.27145/2021 & Connected cases
10. The argument of the respondent that the
academic requirements cannot be watered down especially
in view of the law laid down by the Apex Court and High
Courts, is true. But, in these cases, it has to be noted that
the petitioners were eligible to apply for appearing in the
Foreign Medical Degree Examination subject to production of
documents. The petitioners produced all requisite
documents along with the application. They could not
produce apostilled copy of the Foreign Degree in time, not
because of their fault, but due to the delay in issuing original
Degree Certificate by the Foreign University. It is not
disputed that such delay is resultant of Covid-19 pandemic.
11. In the afore circumstances, this Court passed
interim orders permitting the petitioners to appear in the
examination subject to further orders from this Court. The
petitioners appeared in the examination and they have also
produced the requisite documents before the respondent
subsequently. The situation peculiar to these writ petitions,
has arisen due to Covid-19 pandemic. As long as the
W.P.(C) No.27145/2021 & Connected cases
petitioners' eligibility to appear in the FMGE is not under
dispute, it would not only be harsh but would also be
arbitrary, to deny them the opportunity to appear in the
Examination in view of the fact that their failure to produce
the apostilled copy of Foreign Degree is solely due to the
Covid-19 pandemic subsisting across the world.
In the circumstances of these cases, the writ
petitions are disposed of confirming the interim orders
passed in the writ petitions and declaring that the petitioners
should be treated as having duly appeared in the Foreign
Medical Graduate Examination, December-2021 conducted
by the respondent.
Sd/-
N. NAGARESH, JUDGE
aks/12.01.2022
W.P.(C) No.27145/2021 & Connected cases
APPENDIX OF WP(C) 27145/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPIES OF CERTIFICATE ISSUED BY
THE UNIVERSITY EVIDENCING COMPLETION
OF THE COURSE BY THE PETITIONER
Exhibit P2 TRUE COPY OF THE DOCUMENT EVIDENCING
THE APPLICATION SUBMITTED BY THE
PETITIONER AND DATED 29.10.2021
Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED
TO OUR LADY OF FATIMA UNIVERSITY WHICH
WAS FORWARDED TO THE PETITIONER DATED
118TH NOVEMBER 2021
Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY OUR
LADY OF FATIMA UNIVERSITY TO THE
OFFICE OF THE CONSULAR DATED
21.11.2021
Exhibit P5 TRUE COPY OF EMAIL ISSUED BY THE
RESPONDENT TO THE PETITIONER DIRECTING
TO FORWARD SCANNED COPY OF THE
APOSTILLED CERTIFICATE
Exhibit P6 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
RESPONDENT
RESPONDENTS' EXTS
R1(a) COPY OF THE LETTER DT 9.3.2021 ISSUED BY THE
MINISTRY OF HEALTH AND FAMILY WELFARE.
W.P.(C) No.27145/2021 & Connected cases
APPENDIX OF WP(C) 27148/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF CERTIFICATE ISSUED BY THE
UNIVERSITY EVIDENCING COMPLETION OF
THE COURSE BY THE PETITIONER.
Exhibit P2 TRUE COPY OF THE DOCUMENT EVIDENCING
THE APPLICATION SUBMITTED BY THE
PETITIONER AND DATED 2.11.2021.
Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED
TO OUR LADY OF FATIMA UNIVERSITY WHICH
WAS FORWARDED TO THE PETITIONER DATED
18TH NOVEMBER 2021.
Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY OUR
LADY OF FATIMA UNIVERSITY TO THE
OFFICE OF THE CONSULAR DATED
21.11.2021.
Exhibit P5 TRUE COPY OF EMAIL ISSUED BY THE
RESPONDENT TO THE PETITIONER DIRECTING
TO FORWARDED SCANNED COPY OF THE
APOSTILLED CERTIFICATE.
Exhibit P6 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
RESPONDENT.
RESPONDENTS' EXTS
R1(a) COPY OF THE LETTER DT 9.3.2021 ISSUED BY THE
MINISTRY OF HEALTH AND FAMILY WELFARE.
W.P.(C) No.27145/2021 & Connected cases
APPENDIX OF WP(C) 27150/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPIES OF CERTIFICATE ISSUED BY
THE UNIVERSITY EVIDENCING COMPLETION
OF THE COURSE.
Exhibit P2 TRUE COPY OF THE DOCUMENT EVIDENCING
THE APPLICATION SUBMITTED BY THE
PETITIONER AND DATED 3.11.2021.
Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED
TO UNIVERSITY WHICH WAS FORWARDED TO
THE PETITIONER DATED 18TH NOVEMBER
2021.
Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY THE
UNIVERSITY TO THE OFFICE OF THE
COUNSULAR DATED 21.11.2021.
Exhibit P5 TRUE COPY OF EMALI DATED 27.11.2021
FROM THE RESPONDENT TO THE PETITIONER.
Exhibit P6 TRUE COPY OF THE REPRESENTATION BY
EMAIL DATED 26.11.2021 SUBMITTED BY
THE PETITIONER.
Exhibit P7 TRUE COPY OF THE REPRESENTATION BY
EMAIL DATED 28.11.2021 SUBMITTED BY
PETITIONERS FATHER.
RESPONDENTS' EXTS
R1(a) COPY OF THE LETTER DT 9.3.2021 ISSUED BY THE
MINISTRY OF HEALTH AND FAMILY WELFARE.
