Dr. Sanoj Shahul v. Travancore Cochin Council of Modern Medicine and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **WP(C).No.32614 OF 2019(B)** ## **PETITIONER/S:** **DR.SANOJ SHAHUL AGED 39 YEARS S/O.SHAHUL HAMEED, 95, HOCKANUM, BLVD, UNIT 6811, VERNON, CT06066, UNITED STATES OF AMERICA, REPRESENTED BY HIS POER OF ATTORNEY HOLDER, MR.ABDUL NAZAR N.I, S/O.IBRAHIM KUTTY M.K., T C27/1998(1), CRRA 85-1 CHERAKKULAM ROAD, STATUE, THIRUVANANTHAPURAM-695001** **BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF JASMINE ASHARAF SRI.D.SREEKANTH ANOOP KRISHNA** ## **RESPONDENT/S:** - **1 TRAVANCORE COCHIN COUNCIL OF MODERN MEDICINE, REPRESENTED BY ITS REGISTRAR, COMBINED COUNCIL BUILDING, RED CROSS ROAD, THIRUVANANTHAPURAM, KERALA695035** **2 THE REGISTRAR TRAVANCORE COCHIN COUNCIL OF MODERN MEDICINE COMBINED COUNCIL BUILDING, RED CROSS ROAD, THIRUVANANTHAPURAM, KERALA-695035** - **3 THE MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, POCKET 14, SECTOR 8, DWARAKA PHASE 1, NEW DELHI,110075** **R1-2 BY ADV. SRI.N.RAGHURAJ** ## **OTHER PRESENT:** **SC FOR R3 ADV. TITUS MANI VETTOM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-072020, THE COURT ON 05-08-2020 DELIVERED THE FOLLOWING:** _**WP(C).32614/19**_ 2 ## **V.G.ARUN, J.** ## **----------------------------------------------W.P(C).No.32614 of 2019 ----------------------------------------------Dated this the 5[th] day of August, 2020** ## **JUDGMENT** The petitioner, a native of Trivandrum, did his schooling at the United Arab Emirates and thereafter joined for MBBS course at the OVIDIUS University Constantania, Romania. Midway into the course, petitioner shifted his studies to the Gulf Medical College in Ajman, UAE in the year 1999, and acquired his MBBS degree in the year 2004. The petitioner completed his one year internship on 16.1.2005 and moved to the United States of America to do research in the field of medicine and acquired American citizenship and is an Overseas Citizen of India Card holder. 2. The petitioner had, in the meanwhile, secured admission to Postgraduate course in M.S (Orthopaedics) at the JSS University, Mysore on the strength of Exhibit P3 temporary registration granted by the MCI. The petitioner did his M.S successfully and being desirous of practising medicine in India, applied for permanent registration with the MCI. By Exhibit P5, the petitioner's application was rejected for want of Screening Test Pass Certificate of the National Board of Examinations and he was directed to obtain the requisite certificates and thereafter apply in proper form. Accordingly, the petitioner _**WP(C).32614/19**_ 3 appeared and passed the Screening Test and applied for provisional registration again. Alleging delay in consideration of the application, petitioner approached this Court in W.P(C).No.22553 of 2019. That writ petition was disposed of under Exhibit P9 judgment directing the respondents to take a final decision on the application preferred by the petitioner within three weeks. In terms of the direction, 1st respondent considered the application and rejected it. The decision was communicated under Exhibit P10. Hence, this writ petition. 3. The challenge to Exhibit P10 is primarily on the ground that the Honourable Supreme Court has, in _**Medical Council of India v. Indian Doctors from Russia Welfare Association and Others [(2002) 3 SCC 696],**_ upheld the right to registration of similarly placed doctors. Reliance is also placed on Exhibit P11 judgment of this Court in W.P(C).No.8500 of 2008 . 4. The Travancore-Cochin Medical Council (1st respondent), which is delegated with the power to consider and decide applications for registration submitted by Foreign Medical Graduates, raises stiff opposition against the prayer for grant of provisional registration on the premise that the reasons for rejection of petitioner's application stated in Exhibit P10 are well-founded and do not warrant interference in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. _**WP(C).32614/19**_ 4 5. The contention of the 1st respondent Council is supported by the Medical Council of India (3rd respondent). 6. Heard Sri.P.Chandrasekharan, learned counsel for the petitioner, Sri.N.Reghuraj, learned Standing Counsel for respondents 1 and 2 and Sri.Titus Mani learned Standing Counsel for the 3rd respondent. 7. The learned counsel for the petitioner contended that the issue has been answered in the petitioner’s favor in _**Indian Doctors from Russia Welfare Association case (supra)**_ . The dispute in that case arose when the Medical Council of India refused to grant registration to Indian citizens who had acquired medical degrees from countries which were part of USSR earlier. Disintegration of the USSR forced many medical students to continue their studies in medical colleges situated elsewhere. Many such students did not have the minimum educational qualification or the age prescribed by the MCI for being admitted to the MBBS course. The MCI refused to grant registration to such persons, resulting in number of writ petitions being filed before various High Courts and the Supreme Court. The Apex Court called for all the writ petitions and decided the matter. During the course of hearing, the Apex Court expressed the opinion that the Government of India should formulate an appropriate policy, bearing in mind the human problem faced by the doctors. This prompted the Government _**WP(C).32614/19**_ 5 to amend Section 13 of the Indian Medical Council Act, 1956 (for short, ‘the Act’) by Act 34 of 2001, providing an opportunity for registration to Indian citizens with foreign medical degrees. In terms of the amendment, the Screening Test Regulations, 2002 was published by the Medical Council of India. Further, the Government of India submitted a set of guidelines, formulated for regulating the grant of registration to those foreign medical graduates who had acquired their medical degree before 15.3.2001, the date on which the amendment to Section 13 came into effect. The Honourable Supreme Court disposed of the cases in terms of the guidelines and made it applicable to all similarly situated persons, whether parties to the litigation or not. It was made clear that the guidelines were approved by the Honourable Supreme Court as a one time measure and future cases will be governed by the revised regulations framed by the MCI and approved by the Government. 8. The learned counsel for the petitioner contends that the guidelines are squarely applicable to the petitioner, which position stands clarified by Exhibit P11 judgment. It is submitted that the Gulf Medical College Ajman, from where the petitioner had acquired his MBBS degree, is a recognized institution. It is further contended that having permitted the petitioner to acquire a Postgraduate degree from a medical institution in India, the 1st respondent cannot refuse the request for provisional registration. According to the learned counsel, _**WP(C).32614/19**_ 6 the reasons for rejection stated in Exhibit P10 are matters covered by the guidelines approved by the Honourable Supreme Court. 9. The learned Standing Counsel for respondents 1 and 2 challenge the very maintainability of the writ petition in view of the efficacious remedy of appeal provided under Section 35 of the Travancore-Cochin Medical Practitioners Act, 1953. It is contended that Exhibit P10 is only a consequential order issued on the basis of Exhibit R1(a) decision of the 1st respondent Council and therefore, without challenging Exhibit R1(a) decision, the challenge against Exhibit P10 cannot survive independently. The learned counsel justifies the reasons stated in Exhibit P10 and contends that the decision in _**Indian Doctors from Russia Welfare Association case (supra)**_ was a one time measure, the benefit of which will not be available to the petitioner, since the petitioner had obtained his MBBS degree in the year 2004 and had applied for registration only in 2018. It is contended that even going by the guidelines of the Government of India, the relaxation from meeting the minimum admission norms of the MCI would be applicable only to those students who had taken admission to an institute recognised by MCI prior to 15.3.2002. 10. The learned Counsel for the MCI submits that stringent conditions with respect to registration is insisted upon to ensure that only qualified and experienced medical professionals are allowed to _**WP(C).32614/19**_ 7 practise medicine in our country, lest the health of the citizens will be at risk. It is contended that the provisions of the Indian Medical Council Act, 1956 (the Act, for short) should hence be interpreted strictly. 11. As regards the question of maintainability of the writ petition, I find that the writ petition was admitted on 2.12.2019 and has been pending since then and as such, it would be urgent to non-suit the petitioner on the ground of maintainability at this stage. The other objection of there being no challenge against Exhibit R1(a) cannot also be countenanced since Exhibit P10 alone was communicated to the petitioner and the petitioner cannot be expected to challenge a decision which was never communicated. 12. In order to resolve the dispute it is necessary to have a look at the relevant provisions of the Act. As per Section 2(h) of the Act, “recognized medical qualification” means any of the medical qualifications included in the schedules. The Act has three schedules.. The first schedule contains the recognised medical qualifications granted by Universities or medical institutions in India. The second schedule pertains to recognized medical qualifications granted by medical institutions in countries with which India is having a scheme of reciprocity. The third schedule deals with recognized medical qualifications granted by medical institutions not included in the first schedule. Part-I of the third schedule contains recognized medical _**WP(C).32614/19**_ 8 qualifications granted by medical institutions not included in the first schedule and part-II is with respect to recognized medical qualifications granted by medical institutions not included in the second schedule. 13. Another important provision is Section 13, the contextually relevant portion of which reads as under; _“13._ _**Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule.**_ - _(1) xxxxxxxxxxx_ - _(2) xxxxxxxxx_ _(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 II 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._ _(4) The Central Government, after consulting the Council, may by notification in the Official Gazette, amend Part II of the Third Schedule_ _**WP(C).32614/19**_ 9 _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.]_ _[(4-A) 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 recognised medical qualification for the purposes of this Act for that person._ _(4-B) 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_ _**WP(C).32614/19**_ 10 _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 (4-A):_ _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 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._ _(4-C) xxxx_ _(5) xxxxxx”_ ## 14. As per the decision in _**Sanjeev Gupta and others v Union**_ _**of India and others**_ [(2005) 1 SCC 45], 15.3.2002 was declared to be the date notified by the Central Government in terms of Section 13 of the Act Understood in that manner, Sub-section (3) of Section 13 can be seen to be applicable to persons who had acquired their qualification prior to 15.3.2002 and whose qualification is included in Part II of the Third Schedule. Going by the first proviso to Sub-section (4) of section 13, qualifications granted by medical institutions outside India could be included in Part II of the Third Schedule only up to 15.3 _**WP(C).32614/19**_ 11 2002. Sub-section (4A) provides for registration of persons acquiring foreign medical degree after 15.3.2002. Such persons will not be entitled for enrolment in any Medical Register maintained by a State Medical Council or to have their names entered in the Indian Medical Register unless they qualify the screening prescribed for the purpose. Section 13(4B) stipulates that persons securing admission in any foreign medical institution after 15.3.2002 should obtain an eligibility certificate issued by the MCI, failing which such person shall not be eligible to appear for the screening test referred to in Sub section 4A. The proviso to Section 13(4B) exempt a person, who had secured admission in a foriegn medical institution prior to the commencement of the Amendment Act, from the necessity of obtaining eligibility certificate, if such person is qualified for admission in any medical institution in India. ## 15. In _**Indian Doctors from Russia Welfare Association case**_ _**(supra)**_ , the Honourable Supreme Court took note of the amendment brought about to Section 13 on 15.3.2001 and the that, while framing the guidelines, the Government had classified persons who had applied to MCI for grant of provisional registration after completion of their degree abroad prior to 15-3-2001 and were denied provisional registration, into the following categories: ( _a_ ) those who did not undergo the complete duration of six years of the medicine course from institutes recognised by MCI; _**WP(C).32614/19**_ 12 ( _b_ ) those who did not fulfil the minimum eligibility criteria for joining medical course laid down by MCI at the time of their admission in the medical institutions abroad, particularly in the erstwhile States of USSR; and ( _c_ ) those who came back with medical degrees which are not recognised by MCI. Attention was thereafter bestowed upon the following guidelines placed before the Court by the Government of India: ( _A_ ) The case of all persons who applied for registration to MCI prior to 15-3-2001 shall be dealt with according to the provisions of the Act as existing prior to the commencement of the IMC (Amendment) Act, 2001 subject to the following: ( _i_ ) Those students who obtained degrees where the total duration of study in recognised institutions is less than six years (i.e. where a part of the study has been in unrecognised institutions, or the total length of study in a recognised institution is short of six years), shall be granted registration by MCI provided that the period of shortfall is covered by them by way of additional internship over and above the regular internship of one year. In other words, for such categories of students, the total duration of study in a recognised institution plus the internship, would be seven years, which is the requirement even otherwise. ( _ii_ ) Where students who did not meet the minimum admission _**WP(C).32614/19**_ 13 norms of MCI for joining undergraduate medical course, were admitted to foreign institutes recognised by MCI, this irregularity be condoned. In other words, the degrees of such students be treated as eligible for registration with MCI. ( _B_ ) All students who have taken admission abroad prior to 15-32002 and are required to qualify the screening test for their registration as per the provisions of the Screening Test Regulations, 2002 shall be allowed to appear in the screening test even if they also come in the categories of circumstances contained in ( _A_ )( _ii_ ) above, as the relaxation contained therein would also be applicable in their case. In other words, any person at present undergoing medical education abroad, who did not conform to the minimum eligibility requirements for joining an undergraduate medical course in India laid down by MCI, seeking provisional or permanent registration on or after 15-3-2002 shall be permitted to appear in the screening test in relaxation of this requirement **provided he had taken admission in an institute recognised by MCI** . This relaxation shall be available to only those students who had taken admission abroad prior to 15-3-2002. From 15-3-2002 and onwards all students are required to first obtain an Eligibility Certificate from MCI before proceeding abroad for studies in Medicine. ( _C_ ) The categories of students not covered in ( _A_ )( _i_ ) and ( _ii_ ) above and whose entire period of study has been in a medical college not _**WP(C).32614/19**_ 14 recognised by MCI, will be allowed to appear in the screening test for the purpose of their registration provided they fulfil all the conditions laid down in the IMC (Amendment) Act, 2001. **In other words, the qualification obtained by them must be a qualification recognised for enrolment as a medical practitioner in the country in which the institution awarding the same is situated and they must be fulfilling the minimum eligibility qualification laid down by MCI for taking admission in an undergraduate medical course in India. They shall not be entitled to any relaxation.** 16. The specific case of the respondents is that the foreign medical institutions in which the petitioner had studied are not recognised by the MCI, the qualification acquired from those institutions not being included in Part II of the Third Schedule prior to 15.3.2002. The Temporary Registration Certificate (Ext.P3) would show that the petitioner had joined for postgraduate course as a foreign national holding non-scheduled medical qualification. As such, even though the petitioner had taken admission prior to 15.3.2002, he would not fall under category B of the guidelines. As rightly pointed out by the learned Counsel for respondents 1 and 2, the petitioner would fall only under category (C) of the guidelines, since his entire period of study has been in a Medical College not recognised by MCI. He should therefore fulfil the minimum eligibility qualification laid _**WP(C).32614/19**_ 15 down by the MCI for taking admission in an undergraduate medical course in India. The specific finding in Exhibit P10 that the petitioner did not have the minimum age or qualification prescribed by the MCI at the time of his admission is therefore well founded. 17. The learned counsel for the petitioner contended that, going by Section 13(4A) read along with the Medical Council of India Screening Test Regulations, 2002 (the Regulations, for short), the requirement is only that the foreign medical institution should be included in the World Directory of Medical Schools published by the World Health Organisation. Relevant pages of the World Directory are made available to contend that both OVIDIUS University, Romania and the Gulf Medical College, Ajman find a place therein. In this context, it is pertinent to note that, vide notification dated 16.4.2010, Clause (3) is incorporated to Regulation 4 of the Screening Test Regulations, 2002. Regulation 4(3) reads as follows; _“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._ _xxx”_ 18. The Apex Court having made it clear that the guidelines are approved as a one time measure and future cases will be governed by the revised regulations, amended Regulation 4(3) would disqualify the petitioner from appearing for the screening test. The fact that the _**WP(C).32614/19**_ 16 petitioner has cleared the screening test will also not support his claim for registration in any manner, since Clause 5 of the Regulations, makes it clear that qualifying the screening test will not confer any right, whatsoever, on a candidate. For the reasons mentioned above, the challenge against Exhibit P10 fails and consequently, the writ petition is dismissed. No order as to costs. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**WP(C).32614/19**_ 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MBBS CERTIFICATE ISSUED TO THE PETITIONER BY GULF MEDICAL COLLEGE, AJMAN. EXHIBIT P2 TRUE COPY OF CERTIFICATE OF INTERNSHIP TRAINING ISSUED BY GENERAL AUTHORITY FOR HEALTH SERVICES FOR THE EMIRATE OF ABU DHABI MAFRAQ HOSPITAL.** - **EXHIBIT P3 TRUE COPY OF THE TEMPORARY REGISTRATION CERTIFICATE ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER ON 18/10/2014 BY JSS UNIVERSITY, MYSORE.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 05/10/2015 OF THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE RESULT OF THE SCREENING TEST-JUNE 2018 DATED 26/07/2018 ISSUED BY THE DEPUTY DIRECTOR, NATIONAL BOARD OF EXAMINATIONS TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 13/09/2018 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE STATEMENT OF THE 1ST RESPONDENT DATED 27/09/2019 IN WP(C) NO.22553 OF 2019.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 18/10/2019 IN WP(C) NO.22553 OF 2019 OF THIS HONOURABLE COURT.** - **EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS DATED 11/11/2019 OF THE REGISTRAR, TRAVANCORE COCHIN MEDICAL COUNCIL.** - **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 29/06/2010 IN WP(C) NO.8500 OF 2008 OF THIS HONOURABLE COURT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) A TRUE PHOTOCOPY OF THE RESOLUTION BEARING NO.1 DATED 10.11.2019.**