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J. Saai Prasanna Vs. Medical Council of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWP No. 19238 of 2006
Judge
Reported in2007(2)ALD8
ActsIndian Medical Council Act, 1956 - Sections 10A, 11, 12, 13, 13(1), 13(3), 13(3), 13(4), 13(4A), 13(4B), 25 and 33; Indian Medical Council (Amendment) Act, 2001; Andhra Pradesh Education Act, 1982; Screening Test Regulations, 2002; Foreign Medical Institution Regulations 2002; Indian Medical Council Statutory Regulations
AppellantJ. Saai Prasanna
RespondentMedical Council of India and ors.
Appellant AdvocateP.V.S. Giridhar, Adv. in WP Nos. 19238 and 19239 of 2006 and ;Subba Rao Korrapati, Adv. in WP No. 24645 of 2006
Respondent AdvocateS. Niranjan Reddy, Adv. for Respondent No. 1, ;A. Rajasekhar Reddy, Assistant Solicitor-General for Respondent No. 2 in WP Nos. 19238 and 19239 of 2006, ;K.G. Krishna Murthy, Adv. in WP No. 24645 of 2
DispositionPetition allowed
Excerpt:
.....board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - however, the persons possessing such qualification will not be entitled to enrollment unless the conditions specified under sub-section (3) are satisfied. the relief sought by the petitioners therein was opposed by the state government as well as the medical council of india contending inter alia that prior permission of the central government under section 10-a of the indian medical council act, 1956 is mandatory for establishing medical institutions in india. however, certain observations made by the learned single judge that imtu has to be treated like any other university recognised by the government and it has to be given due status of recognised university of tanzania..........in not granting provisional registration certificate to the petitioners under section 25 of the indian medical council act, 1956. hence, they are heard together and decided by this common order.2. the facts which are not in dispute are as under:the petitioners in w.p. no. 19238 and 19239 of 2006 passed higher secondary school examination with science group at chennai. the petitioner in w.p. no. 24645 of 2006 passed intermediate conducted by the board of intermediate education, a.p., hyderabad with bi.p.c. (biology, physics and chemistry) group. thereafter, they joined the mbbs course in international medical and technological university (for short, 'imtu'), tanzania, established by the vignan educational foundation, bangalore by entering into a memorandum of understanding with the.....
Judgment:
ORDER

G. Rohini, J.

1. The petitioners in these three writ petitions are similarly situated and are aggrieved by the action of the Medical Council of India in not granting Provisional Registration Certificate to the petitioners under Section 25 of the Indian Medical Council Act, 1956. Hence, they are heard together and decided by this common order.

2. The facts which are not in dispute are as under:

The petitioners in W.P. No. 19238 and 19239 of 2006 passed Higher Secondary School Examination with Science group at Chennai. The petitioner in W.P. No. 24645 of 2006 passed Intermediate conducted by the Board of Intermediate Education, A.P., Hyderabad with Bi.P.C. (Biology, Physics and Chemistry) Group. Thereafter, they joined the MBBS Course in International Medical and Technological University (for short, 'IMTU'), Tanzania, established by the Vignan Educational Foundation, Bangalore by entering into a Memorandum of Understanding with the Government of Tanzania. Though IMTU functions at Tanzania, the Pre-Clinical Courses are being conducted at Guntur in Andhra Pradesh. The petitioners herein completed the Pre-Clinical Courses at Guntur and thereafter the rest of the MBBS Course was completed at Tanzania. They appeared and succeeded in the final year MBBS Examinations held in Tanzania. Accordingly, they were awarded degrees by IMTU.

3. Thereafter, the petitioners appeared for the Screening Test conducted by the National Board of Examinations, Ministry of Health and Family Welfare, New Delhi, for Indian National with Foreign Medical Qualification, under the provisions of the Screening Test Regulations, 2002 made by the Medical Council of India. All of them were declared passed. Pursuant thereto, the petitioners made applications before the 1st respondent - Medical Council of India (MCI) seeking provisional registration as per the provisions of the Indian Medical Council Act, 1956 so as to enable them to practice medicine in India. The Medical Council of India, by separate letters dated 27-4-2006 informed the petitioners that they are not eligible for grant of registration since they had studied part of their medical course in India before completing the course from IMTU in Tanzania. Aggrieved by the said action, these three writ petitions are filed.

4. I have heard the learned Counsel for the petitioners and the learned Counsel appearing for the 1st respondent - Medical Council of India in detail and perused the material on record.

5. At the outset, it may be noted that the Indian Medical Council Act, 1956 (for short 'the Act') contains various provisions for the purpose of recognizing medical qualifications granted by medical institutions in foreign countries. Section 11 of the Act deals with recognition of medical qualifications granted by Universities or Medical Institutions in India which are included in the First Schedule to the Act. Section 12 of the Act provides for recognition of medical qualifications granted by Medical Institutions outside India with which there is a scheme of reciprocity which are included in the Second Schedule. The list of medical qualifications included in both the First and Second Schedules shall be recognised medical qualifications for the purposes of the Act. That apart, medical qualifications granted by medical institutions in India which are not included in the first schedule and which are included in Part-I of the Third Schedule shall also be recognised medical qualifications for the purposes of the Act as provided under Section 13(1) of the Act. Part-II of the Third Schedule contains the medical qualifications granted by medical institutions outside India prior to the date specified by the State Government and as per Sub-section (3) of Section 13 the same shall also be recognised medical qualifications for the purposes of the Act. However, the persons possessing such qualification will not be entitled to enrollment unless the conditions specified under Sub-section (3) are satisfied.

6. Sub-section (4A) of Section 13 of the Act which is relevant for the purpose of the present case, specifically deals with the citizens of India who obtain medical qualification granted by any medical institution in any country outside India recognised for enrollment as medical practitioner in that country after the date specified by the Central Government under Sub-section (3) of Section 13 of the Act. It is provided that such persons for the purpose of enrolling himself on any medical register maintained by the Medical Council has to qualify himself in the Screening Test in India prescribed for such purpose.

7. Section 13 of the Act as amended by Act 34 of 2001, to the extent it is relevant for the present case may be extracted hereunder:

13. Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule:- (1) The medical qualifications granted by medical institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognized medical qualifications for the purposes of this Act.

(2) The medical qualifications granted to a citizen of India-

(a) before the 15th of August, 1947, by medical institutions in the territories now forming part of Pakistan, and

(b) before the 1st day of April, 1937, by medical institutions in the territories now forming part of Burma, which are included in Part I of the Third Schedule shall also be recognized medical qualifications for the purposes of this Act.

(3) The medical qualifications granted by medial institutions outside India before such date as the Central Government may, by notification in the Official Gazette, specify which are included in Part II of the Third Schedule shall also be recognized 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.

(4) The Central Government, after consulting the Council, may by notification in the Official Gazette, 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. Provided that 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:

Provided further that nothing contained in the first proviso shall apply to inclusion in Part II of the Third Schedule any primary medical qualification granted by any medical institution outside India to any person whose name is entered in the Indian Medical Register.

Explanation:- For the purposes of this sub-section, 'primary medical qualification' means any minimum qualification sufficient for enrolment on any State Medical Register or for entering the name in the Indian Medical Register.

(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 Sub-section (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 qualifies the Screening Test in India prescribed for such purpose and such foreign medical qualification after such person qualifies the said Screening Test shall be deemed to be the recognized medical qualification for the purposes of this Act for that person.

(4B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under Sub-section (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 Sub-section (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 sub-section but, if he is qualified for admission to any medical course for recognized 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.

(4C)...

(5)...

8. It is not in dispute that in accordance with Sub-section (3) of Section 13 as amended by Act 34 of 2001, the Central Government has notified the date as 15th March, 2002 for the purpose of Sub-sections (3), (4A) and (4B) of Section 13 of the Act. That apart, the Medical Council of India in exercise of powers conferred by Section 33 of the Act, made two sets of regulations viz., Eligibility Requirement for taking admission in an Undergraduate Medical Course in a Foreign Medical Institution Regulations 2002 and Screening Test Regulations 2002. The said Regulations were notified in the Official Gazette on 18-2-2002.

9. The petitioners in these two writ petitions though joined the medical course in the foreign institution i.e. IMTU in the year 1998, much prior to the Amendment Act 34 of 2001, they obtained the medical qualifications granted by IMTU after the date specified by the Central Government under Section 13(3) of the Act i.e., 15-3-2002. It is not in dispute that the medical qualifications granted by the said foreign institution i.e., IMTU are not included in any of the schedules to the Act. However, admittedly the medical qualifications granted by IMTU has been recognised by Government of Tanzania for enrollment as medical practitioner in that country. Hence, the cases of the petitioners are governed by Sub-section (4A) of Section 13 of the Act.

10. Accordingly, the petitioners after obtaining the medical degree from IMTU appeared for the Screening Test conducted under the Screening Test Regulations, 2002 by the 3rd respondent and were declared passed. In spite of the same, the Medical Council of India refused to enroll the petitioners in the Indian Medical Register on the ground that the petitioners had studied part of their medical course in India before completing the same from IMTUa foreign institution.

11. A perusal of the impugned proceedings of the Medical Council of India shows that the Executive Committee of the Medical Council of India in its meeting held on 10-2-2006 decided not to grant registration to the students who have undergone part of their training in an institution in India without obtaining the permission from the Central Government-Medical Council of India, as required under Section 10-A of the Act.

12. In the counter-affidavit filed on behalf of the Medical Council of India, it is explained that as per the records of the Medical Council of India, the Central Government has not granted any permission under Section 10A of the Act to any medical college which is being run by the IMTU at Guntur. Hence, the petitioners who underwent pre-clinical and para-clinical courses at Guntur for a period of four years, which was not granted permission under Section 10A of the Act cannot be recognised under law. It is pleaded that the petitioners had actually undergone the clinical courses at IMTU, Tanzania for a very short period from April, 2002 to November, 2003. Though the fact that the petitioners had appeared for the Screening Test conducted in terms of the Screening Test Regulations 2002 and were declared passed has not been disputed, it is contended that the medical course studied by the petitioners partly at IMTU, Guntur and partly at IMTU, Tanzania is not in consonance with the statutory provisions and Regulation by the Medical Council of India. It is also contended that there is no provision either under the Act or under the Screening Test Regulations or any other Statutory Regulations of the Medical Council of India to grant permission for those candidates who had partly undertaken the course in a medical institution in India and partly in a medical institution abroad. It is contended that IMTU, Tanzania is not amongst the medical institutions recognized by the Medical Council of India and it is only not an institution included in any of the schedules to the Act. It was also not granted any permission under Section 10A by the Government of India to impart medicine course at Guntur. Hence, the Executive Committee of the Medical Council of India had rightly decided not to grant registration to any candidate, who has undergone part of the training in a medical institution in India, which does not have the requisite permission under Section 10A of the Act. Accordingly, in terms of the decision of the Executive Committee of the Medical Council of India, the petitioners were intimated that they are not eligible for grant of registration.

13. Section 10-A of the Act may be extracted hereunder:

10A. Permission for establishment of new medical college, new course of study:- (1) Notwithstanding anything contained in this Act or any other law for the time being in force,-

(a) no person shall establish a medical college; or

(b) no medical college shall-

(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training),

except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

14. A bare perusal of Section 10-A of the Act makes it clear that no medical college can be established or no new or higher course of study or training which would enable a student to qualify himself for the award of any recognized medical qualification can be opened without obtaining the previous permission of the Central Government.

15. In the light of the above mandatory provision, the learned Counsel appearing for the Medical Council of India contended that since admittedly training course being conducted by MTU at Guntur has not been accorded permission by the Central Government under Section 10-A of the Act, the petitioners who underwent a part of training at Guntur are not qualified for registration.

16. However, the learned Counsel for the petitioner while placing reliance upon the order of this Court dated 14-7-2000 in W.P. Nos. 25123 of 1999 and 25564 of 1998 submitted that the Pre-Clinical Courses being conducted by IMTU at Guntur cannot be construed as opening a medical college or a new course of study attracting Section 10-A of the Act and therefore the permission of the Central Government is not required.

17. It is to be noted that the said writ petitions i.e., W.P. Nos. 25123/1999 and 25564/1998 were filed earlier by M/s. Vignan Educational Foundation and IMTU together aggrieved by the action of the Government of A.P. and the Medical Council of India in interfering with their activity of conducting foundation training and orientation at Guntur in MBBS and MCA Courses. It was pleaded in the said writ petitions that IMTU established by Vignan Educational Foundation, Bangalore at Tanzania is not at all connected with the Universities established in India and the provisions of either The A.P. Education Act, 1982 or The Indian Medical Council Act, 1956 are not applicable to the courses offered by IMTU. It was also pleaded that no institution as such was established at Guntur but the students who are admitted in MBBS Course in IMTU are offered two years foundation course at Guntur for the sake of convenience. The relief sought by the petitioners therein was opposed by the State Government as well as the Medical Council of India contending inter alia that prior permission of the Central Government under Section 10-A of the Indian Medical Council Act, 1956 is mandatory for establishing medical institutions in India. Having referred to all the statutory provisions and having heard both the parties in detail, the said writ petitions were disposed of by order dated 14-7-2000 holding that no medical college can be held to be established in Andhra Pradesh by IMTU and neither the A.P. Education Act, 1982 nor the Indian Medical Council Act, 1956 are applicable to MTU. It was also held that mere conducting of the transit courses in Andhra Pradesh cannot be construed as establishing a college. It was thus concluded that IMTU is not subjected to the jurisdiction of the local Acts and therefore the respondents cannot interfere with the functioning of courses at Guntur.

18. Questioning the said order, the State Government preferred appeals being W.A. Nos. 1402 and 1451 of 2000. The Division Bench of this Court dismissed the writ appeals upholding the conclusion of the learned Single Judge that either the Government or the Health University cannot interfere in the conduct of classes by IMTU in Andhra Pradesh. However, certain observations made by the learned Single Judge that IMTU has to be treated like any other University recognised by the Government and it has to be given due status of recognised University of Tanzania Government were deleted.

19. In the light of the said order in W.P. Nos. 25123/1999 and 25564/1998 the learned Counsel for the petitioners contended that it is not open to the Medical Council of India to contend that the institution at Guntur, wherein the petitioners had undergone part of training, requires permission under Section 10-A of the Indian Medical Council Act, 1956.

20. Having gone through the order dated 14-7-2000 in W.P. Nos. 25123 of 1999 and 25564 of 1998 as well as the judgment of the Division Bench in W.A. Nos. 1402 and 1451 of 2000, I find force in the submission of the learned Counsel for the petitioners. In the above decision, it was declared by this Court that the foundation course (Pre-Clinical Courses) being conducted by IMTU at Guntur cannot be construed as establishing or opening an institution and the same is not governed by local laws. Since the said order is binding between the parties, the respondents cannot reagitate the said question at this stage and on that ground grant of registration to the petitioners cannot be rejected.

21. However, it is made clear that this Court shall not be understood to have expressed any opinion on the larger issue whether the foreign institution is entitled to conduct a part of course of study or training in India without obtaining the permission of the Central Government as required under Section 10-A of the Act. The order in the present writ petitions which is passed in the light of a finding already recorded in W.P. Nos. 25123 of 1999 and 25564 of 1998, which has become final, shall be confined only to the petitioners herein who obtained medical degrees from IMTU, Tanzania.

22. The learned Counsel for the 1st respondent - Medical Council of India while relying upon the provisos to Sub-section (4) of Section 13 of the Act as amended by Act No. 34 of 2001, with effect from 3-9-2001, further contended that it is not permissible to recognize any primary medical qualification granted by a foreign institution after the commencement of Amendment Act. According to the learned Counsel, since admittedly IMTU is not included in any of the Schedules to the Act, notwithstanding the fact that the petitioners had passed the Screening Test, the qualification granted by MTU cannot be recognised for the purpose of enrollment in India.

23. On a combined reading of Sub-sections (3) and (4) of Section 13 of the Act, it is clear that the prohibition contained in the provisos to Sub-section (4) shall be referable only to the medical qualifications granted by foreign institutions before the cutoff date i.e., 15-3-2002. Sub-section (4-A) and Sub-section (4-B) deal with the candidates who obtain medical qualification granted by a foreign institution after the cutoff date. It is apparent that under Sub-section (4-A) and Sub-section (4-B) there is no reference to any of the Schedules to the Act, but what is required is that such candidate shall be qualified in the Screening Test in India to enable them to get themselves registered with the MCI. As a matter of fact, under Sub-section (4A) of Section 13 of the Act, it is expressly provided that once the candidate qualifies the Screening Test, the foreign medical qualification obtained by him shall be deemed to be the recognised medical qualification for the purposes of the Act for that person. Hence, the distinction sought to be drawn by the learned Counsel for the 1st respondent is unfounded and cannot be accepted.

24. Even the decision of the Supreme Court in Medical Council of India v. Indian Doctors from Russia Welfare Associations : AIR2002SC1565 , cited by the learned Counsel for the Medical Council of India is not relevant for the purpose of the present case. In the said decision, the apex Court was dealing with the candidates who returned from the medial institutions from the erstwhile States of Union of Soviet Socialist Republic seeking registration who did not possess 50% marks in Higher Secondary Examination and who did not have Biology as one of the subjects prior to the admission to the medical institution.

25. In the case on hand, there is no dispute that all the petitioners had satisfied the conditions stipulated by the Regulations of the Medical Council of India with regard to the age and other eligibility criteria for admission into MBBS Course in India. There is no allegation by the respondents that the petitioners are ineligible for registration on any other ground whatsoever. Except the fact that the college at Guntur being run by IMTU is not granted permission under Section 10-A of the Act, no other objection has been raised for registration.

26. As expressed above, the college at Guntur does not require permission under Section 10-A of the Act and consequently the fact that the petitioners underwent a part of MBBS Course at Guntur is not a valid ground to deny registration under the Medical Council of India Act provided they passed Screening Test prescribed under Section 13(4A) of the Act.

27. As a matter of fact, some of the candidates who are similarly situated and had obtained MBBS decree along with the petitioners were granted registration by the Medical Council of India after authenticity verification from High Commission of India at Tanzania. The said fact has not been disputed by the respondents. It is also not disputed that the petitioners were successful in the Screening Test. Nothing has been placed before this Court to show that there is any objection with regard to authenticity verification from High Commission of India at Tanzania. In the circumstances, the objection raised by the 1st respondent in the impugned orders cannot be accepted. Since the petitioners are qualified in the Screening Test, the Medical degrees awarded by IMTU shall be deemed to be the recognized medical qualification and consequently they are entitled for registration.

28. Accordingly, the impugned orders are set aside and the writ petitions are allowed with a direction to the respondents to grant provisional registration to the petitioners within two weeks from the date of receipt of this order in accordance with law. No costs.


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