Dr. D.Y. Chandrachud, J.@mdashRule, by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
2. The two Petitioners seek a direction to the First Respondent, the Medical Council of India (MCI), to issue a provisional certificate of registration u/s 25(1) of the Indian Medical Council Act, 1956. The second relief sought is a direction to the Respondents the MCI, - National Board of Examination and the Union of India in the Ministry of Health and Family Welfare "to preclude themselves from making any discrimination" against the Petitioners in granting a provisional certificate of registration. The second relief is essentially consequential to the first.
3. The Petitioners completed their HSC in February 2003. In October 2003, they secured admission to a course called the Bachelor of Science and Doctor of Medicine (B.S.M.D.) with the Fourth Respondent. The Fourth Respondent is a company registered under the Companies Act, 1956 and is called Transworld Education Academy Pvt. Ltd. The Petitioners states that the B.S.M.D. Course comprises of a total duration of 5 1/2 years comprising of 4 years for academic 1/2 studies and one year for internship. The Petitioners completed their initial two academic years in India in October 2007 from a college of the Fourth Respondent and thereafter proceeded to the Angeles University Foundation in Philippines to complete the remaining two academic years with what the Petitioners describe as a counter part of the Fourth Respondent situated in Philippines. The Petitioners state that they completed their graduation on 1 June 2009 and that graduation certificates have been issued to them by the Angeles University Foundation in Philippines. On 17 September 2009, the Fourth Respondent issued an eligibility certificate to the First Petitioner stating that he could appear for a screening test conducted by the Second Respondent for determining eligibility for grant of registration in India to pursue a career as a Doctor. A similar certificate of eligibility was issued to the Second Petitioner on 29 June 2005.
4. On 26 September 2010 the Petitioners appeared for a screening test conducted by the Second Respondent. The result of the screening test was declared on 29 September 2010. The first Petitioner secured 210 marks while the second Petitioner secured 189 marks out of 300. The minimum required for passing is 150 marks out of 300. According to the Petitioners, in October 2010 when they visited the office of the first Respondent to apply for registration, the first Respondent declined to accept the applications on the ground that a Committee had been formed to consider the issue of the grant of registration certificates to students who had completed their studies at institutions outside India. On 22 October 2010, the Second Petitioner made an application for provisional registration u/s 25(1) to the first Respondent. The application was rejected by a communication dated 8 January 2011. The ground on which the application has been rejected is that a similar matter pertaining to the grant of registration to candidates who had undergone an initial part of their training in India and were awarded a medical qualification in Tanzania was considered by the Executive Committee of the Council on 10 February 2006. The Committee took a decision not to grant registration to such students who had undertaken part of their training in an institution in India without obtaining permission of the Central Government/MCI as required u/s 10A. The Petitioners have been held not to be eligible for the grant of provisional registration since they had undergone a part of their studies for the medical degree in Pune between 2005 and 2007.
5. In support of the petition, learned Counsel appearing on behalf of the Petitioners relied upon a decision of a Division Bench of the Andhra Pradesh High Court in J. Sai Prasanna, vs. The Medical Council of India, (Writ Petition No. 19238 of 2006 and companion petitions decided on 2 May 2008.). Learned Counsel has also placed reliance on the judgment of the Supreme Court dated 9 May 2011 in appeal against the judgment of the Andhra Pradesh High Court. Learned Counsel submitted that the Petitioners were permitted to appear for the screening test and having passed the test, it is not open to the Medical Council to deny them provisional registration.
6. On the other hand, on behalf of the first Respondent learned Counsel has relied on the contents of an affidavit in reply filed in these proceedings. The affidavit in reply adverts to the provisions of subsections (3), (4) and (4A) and Section 13 of the Act and upon the relevant provisions of the Screening Test Regulations, 2002. The first Respondent, as is stated in the affidavit, primarily has two objections to the enrolment of the Petitioners. The first objection is that the Petitioners were not eligible to appear in the screening test unless it is confirmed by the Indian Embassy in Philippines that they possess a primary medical qualification which is a recognised qualification for enrolment as medical practitioner in the country in which the institution awarding the qualification is situated. The Petitioners, it is submitted, have not produced any document to show that the medical qualification obtained by them makes them eligible for enrolment as medical practitioners in Philippines. In certain countries, it is stated, a person is required to qualify at a licentiate examination. The Petitioners have not, it is urged, placed material on record to show that the medical qualification which they possess is sufficient for enrolment as a medical practitioner in Philippines. Secondly, it has been submitted that the Petitioners have undergone a substantial part of their education in India in an institution which has not been granted permission u/s 10A of the Medical Council of India Act, 1956. The Petitioners, it is urged, cannot be permitted to defeat the object of the statutory provisions by obtaining a medical qualification from a country outside India and seeking registration here, whereas, they have undertaken a major part of their studies in India from an institution which is not established under the Indian Medical Council Act, 1956.
7. Section 13 of the Indian Medical Council Act, 1956 deals with the recognition of medical qualifications granted by medical institutions whose qualifications are not included in the First or the Second Schedule to the Act. Subsection (3) of Section 13 provides as follows :
3. The medical qualifications " granted by medical institutions outside India, before such date as the Central Government may, by notification in the Official Gazette, specify which are included in Part IInd of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country he has undergone such practical training as may be prescribed.
Under Subsection (4) of Section 13, the Central Government is empowered after consulting the Council to amend Part II of the Third Schedule so as to include therein any qualification granted by a medical institution outside India, which is not included in the Second Schedule. By the first proviso to sub section (4), after the commencement of the Indian Medical Council (Amendment) Act, 2001, no such amendment shall be made in Part II of the Third Schedule to include any primary medical qualification granted by any medical institution outside India. A primary medical qualification " " is defined by the Explanation as any minimum qualification sufficient for enrolment on any State Medical Register or for entering the name in the Indian Medical Register.
8. SubSection (4A) of Section 13 is relevant for the purpose of the present proceedings and provides as follows :
(4A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under subsection (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualified the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies that said screening test shall be deemed to be the recognised medical qualification for the purposes of this Act for that person.
SubSection (4B) is as follows :
(4B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under subsection (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in subsection (4A);
Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before the commencement of the Indian Medical Council (Amendment) Act, 2001 shall not be required to obtain eligibility certificate under this subsection but, if he is qualified for admission to any medical course for recognised medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register.
9. Sub-section (4A) of Section 13 applies to citizens of India who have obtained medical qualifications which are granted by a medical institution in a foreign country. If the medical qualification is recognised for enrolment as a medical practitioner in that country after such date as is specified by the Central Government under subsection (3), the person would not be entitled to be enrolled on a medical register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies at a screening test in India prescribed for such purpose. The foreign medical qualification is deemed to be a recognised medical qualification for the purpose of the Act for that person after the person qualifies at a screening test. In order that subsection (4A) of Section 13 applies, it is necessary that a citizen of India must have obtained a medical qualification granted by a medical institution in a foreign country and the qualification must be recognised for enrolment as a medical practitioner in that country. Before such a qualification can be deemed to be a recognised medical qualification in relation to that person, the person must pass the screening test prescribed for the purpose. In other words, three requirements must be fulfilled under subsection (4A) of Section 13. Firstly, the medical qualification must be granted by a medical institution in a country outside India; Secondly, the qualification must be recognised for enrolment as a medical practitioner in the country in which the medical institution is situated; and Thirdly, the person must qualify at a screening test prescribed for that purpose in India.
10. The Central Government in exercise of the power conferred by Section 33 has framed the Screening Test Regulations, 2002. Regulation 3 stipulates that an Indian citizen possessing a primary medical qualification awarded by any medical institution outside India who is desirous of getting provisional or permanent registration with the Medical Council of India or any State Medical Council on or after 15 March 2002 shall have to qualify at a screening test conducted by the prescribed authority for that purpose u/s 13 of the Act. The eligibility criteria are specified in Regulation 4. Regulation 4 (1) was substituted on 25th September 2009 and reads as follows :
No person shall be allowed " to appear in the screening test unless: he/she is a Citizen of India or has been granted Overseas Citizenship of India and possess any primary medical qualification, which is confirmed by the Indian Embassy concerned, to be a recognized qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated.
Regulation 4 (2) requires an ''Eligibility Certificate'' to be obtained from the Medical Council of India under the ''Eligibility Requirement for Taking Admission in an Undergraduate Medical Course in a Foreign Medical Institution Regulations, 2002. This requirement, however, is not '' to apply to those Indian citizens who have acquired a medical qualification from a foreign medical institution or obtained admission in a foreign medical institution before 15 March 2002. On and after 16 April 2010 a further condition of eligibility has been prescribed which is that the student must have studied for the medical course at the same institute located abroad for the entire duration of the course from where he or she has obtained the degree. That requirement would undoubtedly not apply to the case of the Petitioners since it has come into force on 16 April 2010.
11. The expression "primary medical qualification" is defined by Regulation 2 (f) as follows :
(f) Primary Medical qualification" means 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;
Now, it is in this background that the objections which have been raised by the first Respondent would have to be considered. Under Regulation 2 (f) a primary medical qualification is a medical qualification awarded by a medical institution outside India which is recognised for enrolment as a medical practitioner in the country in which the institution awarding the qualification is situated and which is equivalent to the MBBS in India. In order to be a primary medical qualification, the qualification must fulfil four criteria : (i) The medical qualification must be awarded by a medical institution; (ii) The medical institution must be situated outside India; (iii) The medical qualification must be recognised for enrolment as a medical practitioner in the country in which the institution awarding the qualification is situated; and (iv) The medical qualification must be equivalent to the MBBS in India.
12. Under Regulation 4(1) in order to be eligible to appear for the screening test, a person who is either a citizen or a overseas citizen of India must possess a primary medical qualification as defined in Regulation 2(f) and this must be confirmed by the Indian Embassy concerned to be a recognized qualification for enrolment as a medical practitioner in the country in which the institution awarding the qualification is situated.
13. In J. Sai Prasanna which went up in appeal to the Supreme Court from the judgment of the Andhra Pradesh High Court the Indian High Commission in Tanzania had confirmed that the qualification was a recognised qualification for enrolment as a medical practitioner in Tanzania. This was noted in the judgment of the Supreme Court in the following observation:
It is true that if the primary medical " qualification of the candidate was not a recognized qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated, such candidates will not entitled to take part in the screening test examination in India. In this case the High Commission of India in Tanzania has confirmed the following: (i) that Tanzania Medical Council has recognized the curriculum and medical degree of MBBS of International Medical & Technological, University Dar es Salaam, Tanzania as equivalent to MD degree in Tanzania; and (ii) that the medical degrees offered to the said International Medical & Technological University, Tanzania are recognized by Medical Council of Tanzania and the MBBS graduates of the said university are eligible for registration as Medical practitioners by the Medical Council of Tanzania under the provisions of the Medical Practitioners & Dentists Act, Cap 152 of the Laws of Tanzania. Therefore, the question of such primary degree not being recognized in India for the purpose of sitting in the screening test examination does not arise.
The Supreme Court emphasised that if the qualification was not recognised for enrolment as a medical practitioner in Tanzania where the institution awarding the qualification was situated, such candidates would not be entitled to take part in the screening test in India.
14. In the present case, the Petitioners have not annexed any material in these proceedings to establish that the qualification which they have obtained is a recognized qualification for enrolment as a medical practitioner in Philippines. Regulation 4 stipulates that the Indian Embassy must confirm that the qualification is a recognized qualification for enrolment as a medical practitioner. Prior to 25 September 2009 the requirement, as it then stood, provided that the institution which awards the qualification must be included in the World Directory of Medical Schools, published by the World Health Organization or that the qualification must be confirmed by the Indian Embassy to be a recognized qualification for enrolment in that country. After the amendment of the Regulation on 25 September 2009, the regulation has now been made more stringent by mandating that Indian Embassy must issue a confirmation in that regard; the first part of the earlier regulation has now been deleted. Hence, before the Petitioners can seek provisional or permanent registration in a State Medical Register or on the Indian Medical Register, it must be duly verified and established that the medical qualification which they possess is recognized in Philippines for enrolment of a medical practitioner. The Petitioners cannot claim registration merely on the basis that they have passed the screening test. The statutory conditions of eligibility are (i) Possession of a primary medical qualification; and (ii) confirmation by the Indian Embassy that the qualification is recognised for enrolment as a medical practitioner in the country where the institution which awarded the qualification is situated. Unless the Petitioners fulfil the conditions of eligibility, the mere passing of the screening test will not entitle them to seek registration. The documentary material on the record at this stage does not establish that the Petitioners have have fulfilled the conditions of eligibility. But that said, we are of the view that the Petitioners should have an opportunity of establishing to the satisfaction of the MCI that they do fulfil the conditions of eligibility laid down in the Regulations, read with Section 13(4A) of the Act. A similar issue has arisen before the Delhi High Court in a petition pertaining to forty persons who claim to have undertaken a primary degree course from the Fourth Respondent. In an order of 5 September 2011 the Delhi High Court noted that the Petitioners sought time to produce documentary evidence to establish that their qualification is recognized in Philippines to practice as medical practitioner. The Medical Council of India was also directed to verify whether the qualification which the Petitioners there claimed to possess is recognized in Philippines for practicing medicine. The Medical Council of India has addressed a communication to the Indian Embassy in Philippines. The Court is informed by learned Counsel that a response to the communication is awaited. Learned Counsel appearing on behalf of the Medical Council of India states that upon receipt of a response from the Indian Embassy, the Medical Council shall take an appropriate decision in accordance with law in relation to the application made by the Petitioners. We also leave it open to the Petitioners to independently move the Indian Embassy in Philippines, if they are so advised, to seek a clarification in that regard.
15. The Second objection raised by the Medical Council of India is that the Petitioners had pursued a part of their medical degree course at Pune and a part in Philippines and that consequently this would not enable them to seek provisional registration. In the present case, it must be noted, that the Petitioners claim to have completed their degree course by December 2009 which was prior to the amendment of Regulation 4 by the insertion of clause 3. This aspect of the case is governed by the judgment of the Supreme Court in Medical Council of India vs. J. Saai Prasanna rendered on 9 May 2011 in the appeal which arose out of the decision of the Andhra Pradesh High Court. The Supreme Court held as follows :
MCIcontends that " where student of a foreign University undergoes a part of his training in an Institution in India which has not obtained the permission from the Central Government / MCI, as required u/s 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 u/s 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. 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 county 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 institution in a country outside India has granted a medical 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. 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. 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.
16. For the reasons aforesaid, we are of the view that on the basis of the material as it stands in the record before the Court, it is not possible to accede to the prayer made by the Petitioners for a direction to the first Respondent to issue a provisional certificate of registration. Before the Petitioners can assert an entitlement to do so, they must satisfactorily establish, in terms of Regulation 4 (1) of the Screening Test Regulations, 2002 read with Section 13(4A) that the qualification which they possess is a recognized qualification for enrolment as medical practitioner in Philippines. The first Respondent has addressed a communication dated 20 September 2011 to the Indian Embassy in Philippines seeking a clarification and we record the statement which is made by Counsel for the MCI that on receipt of a response the First Respondent will take a decision in accordance with law. We leave it open to the Petitioners to independently pursue the Indian Embassy in Philippines, if they are so advised. We also hold that the ground on which the application filed by the Petitioners was rejected by the first Respondent on 8 January 2011 namely that the Petitioners had completed a part of their studies for the medical course in Pune and the remaining part in Philippines is untenable in view of the judgment of the Supreme Court in J. Sai Prasanna. The communication dated 8 January 2011 shall accordingly stand set aside. The application filed by the Petitioners for provisional registration is accordingly restored and shall be dealt with by the first Respondent in accordance with law and in terms of the directions issued earlier.
17. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
