Mohammed Musthafa Thottungal v Medical Council of India & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932** **WP(C).No. 8500 of 2008(J)** **-------------------------------------** **PETITIONER:** - **-------------------** **MOHAMMED MUSTHAFA THOTTUNGAL, MAS MAHAL, KARINGANAD, P.O VILAYUR, PATTAMBI, PALAKKAD DISTRICT, PIN- 679 309.** **BY ADV. SRI.P.CHANDRASEKHAR.** ## **RESPONDENTS:** **------------------------** **1. THE MEDICAL COUNCIL OF INDIA, POCKET 14, SECTOR 8, DWARKA PHASE I, NEW DELHI- 110 075, REPRESENTED BY ITS SECRETARY.** **2. THE TRAVANCORE COCHIN MEDICAL COUNCIL, RED CROSS ROAD,THIRUVANANTHAPURAM-35, REPRESENTED BY ITS REGISTRAR.** **3. THE UNION OF INDIA, REPRESENTED BY SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI.** **R1 BY SRI.ALEXANDER THOMAS,SC, ADV. SRI.BABU KARUKAPADATH, R2 BY SRI.N.RAGHURAJ, SC, R3 BY SRI.TPM.IBRAHIM KHAN,A.S.G(NO MEMO).** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.8500/2008-J:** **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPIES OF THE RELEVANT PAGE OF SSLC CERTIFICATE OF THE PETITIONER.** **EXT.P.2: COPY OF THE CERTIFICATE NO. 059-9697 ISSUED BY THE SAINT PETERSBURG STATE MEDICAL UNIVERSITY CERTIFYING THAT THE PETITIONER HAS COMPLETED THE PREPARATORY TRAINING SUCCESSFULLY.** ## **EXT.P.3: COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2 CERTIFICATE.** **EXT.P.4: COPY OF THE CERTIFICATE AWARDING QUALIFICATION OF MEDICAL DOCTOR IN THE SPECIALITY OF “GENERAL MEDICINE” B ST. PETERSBURG STATE MEDICAL UNIVERSITY TO THE PETITIONER.** ## **EXT.P.5: COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P4 CERTIFICATE.** ## **EXT.P.6: COPY OF THE CERTIFICATE DTD. 26/10/2005 ISSUED BY THE ASSISTANT CONTROLLER OF EXAMINATIONS, NATIONAL BOARD OF EXAMINATIONS, NEW DELHI.** **EXT.P.7: COPY OF THE APPLICATION DTD. 28/02/2005 SUBMITTED BY THE PETITIONER TO THE R.2.** **EXT.P.8: COPY OF THE CERTIFICATE DTD. 01/03/2006 FROM THE SAINT PETERSBURG STATE MEDICAL UNIVERSITY CERTIFYING THAT THE PETITIONER WAS A BONA FIDE STUDENT OF THE SAID UNIVERSITY.** **EXT.P.9: COPY OF THE LETTER MCI.NO.203 (485) 641)/S.T – REGN. - MARCH 2006/21310 DTD. 04/12/2006 OF THE R.1.** ## **RESPONDENTS' EXHIBITS:** ## **EXT.R1.A: COPY OF THE JUDGEMENT DT. 04/08/99 PASSED BY THE HON'BLE RAJASTHAN HIGH COURT.** **EXT.R1.B: COPY OF THE INTERIM ORDER DT. 17/04/2000 PASSED BY THE HON'BLE SUPREME COURT.** **EXT.R1.C: COPY OF THE LIST OF CANDIDATES WHO FILED FALSE AFFIDAVIT BEFORE THE HON'BLE SUPREME COURT.** **EXT.R1.D: COPY OF THE JUDGEMENT DTD. 08/03/2002 – MCI VS. INDIAN DOCTORS FROM RUSSIA WELFARE ASSNS. (2002) 3 SCC 696.** ## **EXT.R1.E: COPY OF THE REPLY AFFIDAVIT OF THE MCI DT. 29/08/03 FILED IN JHARNA ROY'S CASE BEFORE THE HON'BLE SUPREME COURT.** **EXT.R1.F: COPY OF THE ORDER 21/11/2003 PASSED BY THE HON'BLE SUPREME COURT.** **EXT.R1.G: COPY OF THE CONTEMPT PETITION FILED BY RAHUL KR. SINGLA BEFORE THE HON'BLE SUPREME COURT.** **EXT.R1.H: COPY OF THE CERTIFICATE DTD. MARCH 2003 ISSUED BY NATIONAL BOARD OF EXAMINATION IN RESPECT OF RAHUL KR. SINGLA.** **EXT.R1.I: COPY OF THE AFFIDAVIT FILED BY MCI IN CONTEMPT PETITION FILED BY RAHUL KR. SINGLA.** **W.P.(C). NO.8500/2008-J:** **EXT.R1.J: COPY OF THE REJOINDER AFFIDAVIT DTD. 29/01/04 FILED BY RAHU KR. SINGLA.** **EXT.R1.K: COPY OF THE ORDER DT. 16/02/2004 PASSED BY THE HON'BLE SUPREME COURT.** **EXT.R1.L: COPY OF THE RELEVANT PORTION OF MCI'S REGULATION OF 1979.** **EXT.R1.M: COPY OF THE ORDER DTD. 11/12/2006 PASSED BY THE HON'BLE SUPREME COURT IN W.P.(C).NO.11/2005- GEORGE JOBIN MAVELI VS. UOI & ANR.** **EXT.R1.N: COPY OF THE OF 10+ 2 MARKS- SHEET OF AMERTHESH MANUEL.** **EXT.R1.O: COPY OF THE REPLY AFFIDAVIT OF MCI IN W.P. 34082/2005 BEFORE THIS HON'BLE COURT.** **EXT.R1.P: COPY OF THE ORDER DT. 09/06/06 PASSED BY THIS HON'BLE COURT IN W.P. 34082/2005.** **EXT.R1.Q: COPY OF THE WRIT APPEAL NO. 1538/2006 – MCI VS. AMERTHESH MANUEL BEFORE THIS HON'BLE COURT.** **EXT.R1.R: COPY OF THE ORDER DT. 25/08/06 PASSED BY THIS HON'BLE COURT IN W.A. 1538/06-MCI VS. AMERTHESH MANUEL.** **EXT.R1.S: COPY OF THE INTERIM ORDER DT. 13/11/06 PASSED BY THE HON'BLE SUPREME COURT IN SLP (C) 17962/2006-MCI VS. AMERTHESH MANUEL.** **EXT.R1.T: COPY OF THE ORDER DT. 04/01/08 PASSED BY THE HON'BLE SUPREME COURT IN SLP(C) 17962/2006-MCI VS. AMERTHESH MANUEL.** **EXT.R1.U: COPY OF THE 10TH PASS CERTIFICATE OF PETITIONER HEREIN.** **EXT.R1.V: COPY OF THE APPLICATION OF PETITIONER HEREIN FOR GRANT OF PROVISIONAL REGISTRATION.** **EXT.R1.W: COPY OF THE MCI'S LETTER DTD.02/03/06.** **EXT.R1.X: COPY OF THE PETITIONER'S LETTER DTD. NIL.** **EXT.R1.Y: COPY OF THE MCI'S LETTER DTD. 01/06/06.** **EXT.R1.Z: COPY OF THE MCI'S LETTER DTD. 04/12/06.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 8500 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2010** ## **J U D G M E N T** The petitioner passed M.D. in Medicine from Saint Petersburg State Medical University in Russia. According to the petitioner, the Saint Petersburg State Medical University is recognized by the Medical Council of India (for short “MCI”) and the medical degree qualification obtained from there is also recognized as a qualification for registration as Medical Practitioner, subject to passing a screening test prescribed. The petitioner passed the prescribed screening test as per rules. Therefore according to the petitioner, he is entitled to provisional registration for the purpose of undergoing internship in Kerala which is also compulsory for getting permanent registration. For the same, the petitioner has to first get provisional registration from the MCI and then provisional registration from the Travancore Cochin Medical Council. The petitioner applied ## W.P.(C)No. 8500 of 2008 **-2-** for provisional registration before the MCI, which was rejected by Ext.P9 order on the ground that the petitioner has not passed the 10 + 2 or equivalent school examination after studying the subjects of Physics, Chemistry and Biology, before obtaining admission to the medical course at Saint Petersburg Pavlov State Medical University, Russia. The petitioner's contention is that, as per the guidelines framed by the Government of India, which has been approved by the Supreme Court of India, students who have got admission to medical degree courses abroad prior to 15.03.2002 are exempted from the minimum admission norms prescribed by the Medical Council of India for joining undergraduate medical course abroad and therefore the Indian Medical Council could not have rejected the petitioner's application for provisional registration on the ground that he did not have the minimum admission norms prescribed by the MCI. According to the petitioner, the petitioner got admission abroad in the year 1997 and passed the medical degree course in 2003 and he passed W.P.(C)No. 8500 of 2008 **-3-** the screening test also in 2005. Petitioner also relies on the decision of the Supreme Court reported in **Medical Council of India v. Indian Doctors From Russia Welfare Associations And Ors. [(2002) 3 SCC 696** in support of his contention. The petitioner also points out that identical question has been considered by a Division Bench of this court in W.A. No.1538/2006 based on the very same decision, which also is in favour of the petitioner. Petitioner therefore seeks the following reliefs: - (a) call for the records leading to Exhibit P9 and quash the same by issuing a writ of certiorari; - (b) Issue a writ of mandamus or any other writ, order or direction directing the Respondents 1 and 2 to reconsider the application for provisional registration submitted by the petitioner and grant to him provisional registration under Section 25 of the Indian Medical Council Act, forthwith; 2. The MCI would raise two contentions in answer to the same. The first is that the writ petition is not maintainable in so far as this court has no territorial jurisdiction to decide the matter, in so far as the MCI is based in New Delhi and no part of the cause of action has ## W.P.(C)No. 8500 of 2008 **-4-** arisen in Kerala. In support of this contention, the counsel for the MCI relies on Ext.R1(a) judgment of the High Court of Judicature for Rajasthan at Jodhpur in S.B. Civil Writ Petition No. 3105/1998, wherein jurisdiction was declined in a similar case. The second is that, the exemption contemplated by the guidelines approved by the Supreme Court of India is not in respect of the basic qualification of +2 with Science subjects in the higher secondary level, but only regarding the stipulation regarding minimum 50% marks in the +2 examination. On these grounds the MCI would seek to support the impugned order, namely Ext.P9. 3. I have considered the rival contentions in detail. In so far as the first contention of the MCI is concerned, I respectfully disagree with Ext.R1 (a) decision of the High Court of Judicature for Rajasthan at Jodhpur in S.B. Civil Writ Petition No. 3105/1998. If that decision is accepted as the correct law, then to challenge orders of MCI every Indian will have to go to Delhi High Court. MCI is an institution established under a Central Act, which is ## W.P.(C)No. 8500 of 2008 **-5-** controlling the entire medical education in the country, including Kerala. The petitioner belongs to Kerala and he intends to practice in Kerala, he has to apply for provisional registration before the Travancore Cochin Medical Council, for which purpose he has filed application for provisional registration before the MCI. Since the MCI has all India jurisdiction, I am of opinion that entertaining of a challenge of an order of the MCI in the Kerala High Court is perfectly within the territorial jurisdiction of this court. Therefore, I hold that this court has territorial jurisdiction to entertain this writ petition. 4. The 2[nd] contention has been specifically dealt with by the Supreme Court of India in the decision of **Medical Council of India v. Indian Doctors From Russia Welfare Association's** case cited supra. By that decision, the Supreme Court of India approved the guidelines placed before it by the Government of India for regulating registration of holders of Medical Degree from abroad which regulations are quoted in paragraph 6 of the W.P.(C)No. 8500 of 2008 **-6-** ## judgment as follows: “6. In order to regulate the grant of registration to such persons who have completed their degree abroad prior to 15-3-2001, the following guidelines are placed before this 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 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 15-3-2002 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 W.P.(C)No. 8500 of 2008 **-7-** 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 recognised by MCI, will be allowed to appear in the screening test for the purpose of their registration provided they fulfill 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 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.” Those guidelines have been approved by the Supreme Court of India. As is clear from the same, the students who have taken admission abroad prior to 15.03.2002 are eligible for the benefit conferred by Clause (A) (ii) read with Clause (B). Clause (A) (ii) refers to minimum admission norms of MCI. Minimum admission norms of MCI are contained in Ext.R1 (l) which read as follows: W.P.(C)No. 8500 of 2008 **-8-** ## **“I. Admission to the Medical Course** No candidate shall be allowed to be admitted to the Medical curriculum proper until:- - (i) he has completed the age of 17 years at the time of admission or will complete the age on or before 31[st] December of the year of his admission to the 1[st] M.B.B.S. Course. Provided that the Candidates who are admitted directly to the 5 ½ years integrated M.B.B.S. course should have completed the age of 16 years at the time of admission or will complete this age on 31[st] December of the year of admission to the pre-medical course. - (ii) he has passed: - (a) the Intermediate examination in science of an Indian University/Board of other recognised examining body with Physics, Chemistry and Biology, which shall include a practical test in these subjects: ## OR - (b) the pre-professional/pre-medical examination with physics, chemistry and biology, after passing either the higher secondary school examination, or the pre-university or an equivalent examination.The Pre-professional/ Premedical examination shall include a practical test in these subjects; ## OR - (c ) the first year of the three years degree course of a recognised university, with physics, chemistry and biology, including a practical test in these subjects provided the examination is a “University Examination”, ## OR - (d) “B.Sc. examination of an Indian University. Provided that he has passed the B.Sc examination with not less than two of the following subjects - Physics, Chemistry, W.P.(C)No. 8500 of 2008 **-9-** Biology (Botany, Zoology) and further that he has passed the earlier qualifying examination with the following subjects, Physics, Chemistry, Biology & English. - (e) “The Higher Secondary Examination or the Indian School certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of Physics, Chemistry, Biology and Mathematics or any other elective subject with English at a level not less than the Core Course for English as prescribed by the National Council for Education Research and Training, after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on Education. Note: Where the course content is not as prescribed for 10+2 education structure of the National committee, the candidates will have to undergo a period of one year preprofessional training before admission to the medical colleges. ## OR - (f) any other examination which, in scope and standard, is found to be equivalent to the intermediate science examination of an Indian University/Board, taking physics, chemistry and biology, including a practical test in each of these subjects. - Note:(a) The pre-medical course may be conducted either at Medical College or a Science College. - (b) After the 10+2 course is introduced, the integrated courses should be abolished. ## **II. Selection of students** The selection of students to a medical college should be W.P.(C)No. 8500 of 2008 **-10-** based solely on merit of the candidate and for determination of merit, the following criteria be adopted uniformly throughout the country- - (a) In States, having only one Medical College and One University/Board/Examining Body conducting the qualifying examination, the marks obtained at such qualifying examination be taken into consideration. - (b) In States, having more than one University/ Board/Examining Body conducting the qualifying examination (or where there are more than one medical college under the administrative control of one authority), a competitive entrance examinations should be held so as to achieve a uniform evaluation due to the variation on the standard of qualifying examinations conducted by different agencies. - (c ) Where there are more than one college in a State and only one university/board conducting the qualifying examination then a joint selection board be constituted for all the colleges. - (d) A competitive entrance examination is absolutely necessary in the case of Institutions of All India Character. - (e) To be eligible for competitive entrance examination, candidate must have passed any of the qualifying examination as enumerated under the head-note “Admission to Medical Course”. Provided that a candidate who has appeared in a qualifying examination the result of which has not been declared, may be provisionally allowed to take up the competitive entrance examination and in case of his selection for admission to a medical college, he shall not be admitted there to unless in the meanwhile he has passed the qualifying examination. Provided also that a candidate for admission to the Medical Course must have obtained not less than 50% of the W.P.(C)No. 8500 of 2008 **-11-** total marks in English and Science subjects taken together (i) at the qualifying examination (or at a higher examination) in the case of medical colleges where the admission are made on the basis of marks obtained at these examinations or (ii) 50% of the total marks in English and Science subjects taken together at the competitive entrance examination where such examinations are held for selection. Provided further that in respect of candidates belonging to Scheduled Castes/Scheduled Tribes the minimum marks required for admission shall be 40% in lieu of 50% for general candidates. Where the seats reserved for Scheduled Castes and Scheduled Tribes students in any State cannot be filled for want of requisite number of candidates fulfilling the minimum requirements prescribed from that State, then such vacant seats may be filled up on all India basis with Scheduled Castes and Scheduled Tribes candidates getting not less than the minimum prescribed pass percentage. The authorities (State Government and Universities) should arrange special coaching classes for Scheduled Castes/Scheduled Tribes candidates before the qualifying/competitive examination to enable them to come up to the appropriate standard for admission to the Medical course. (f) Weightage on a graded scale may be given for N.C.C. training and for participation in Sport/athletics during the course of training for the qualifying examination. Note: A total of upto 5% weightage can be given for category above to candidates who are otherwise eligible for admission to the medical course on the basis of marks secured in the qualifying examination.” 5. Going by the same, the minimum admission norms are those given in Clause I of Ext.R1 (l) read with the second proviso to the Clause II. The contention of the MCI ## W.P.(C)No. 8500 of 2008 **-12-** that the guidelines speaks of exemption only in respect of the second proviso to Clause II of Ext.R1 (l) cannot be countenanced in the face of the guidelines approved by the Supreme Court, which specifically stipulate exemption in respect of minimum admission norms. In so far as minimum admission norms include +2 examination with Physics, Chemistry and Biology. Going by the guidelines approved by the Supreme Court, persons who have obtained admission to medical courses abroad prior to 15.03.2002 are exempted from the entire admission norms both in Clause I and II of Ext.R 1(l). I do not find anything in the guidelines to show otherwise as tried to be interpreted by the MCI. As such, I have no hesitation to hold that as per the guidelines, the students who have taken admission abroad prior to 15.03.2002 to medical degree courses are eligible for exemption from the requirement of +2 with Physics, Chemistry and Biology also. Petitioner has got admission abroad in 1997 much before the cut off date prescribed in the guidelines. That being so, the petitioner ## W.P.(C)No. 8500 of 2008 **-13-** could not have been denied provisional registration only on the ground that the petitioner did not have the minimum qualification of +2 with Physics, Chemistry and Biology. 6. Accordingly Ext.P9 order is quashed. The Medical Council is directed to reconsider the application of the petitioner for provisional registration in accordance with law in the light of the above finding, if the petitioner is otherwise entitled to such registration without reference to the stipulation in Ext.P9 he shall be given such registration. The petitioner has been waiting too long for getting provisional registration for starting his internship in Kerala. The learned counsel for the MCI would submit that since the enquiry involves correspondence with the foreign University the MCI would take at least 6 months' time. Therefore, I am inclined to give the petitioner opportunity to undergo internship pending consideration of his application afresh, especially in view of the submission made by the counsel for the MCI that it will take quiet sometime to pass final orders on his application afresh. W.P.(C)No. 8500 of 2008 **-14-** Accordingly the 2[nd] respondent Travancore Cochin Medical Council is directed to give the petitioner provisional registration pending grant of provisional registration by the MCI, so that the petitioner can start internship subject to final orders by the MCI on his application for provisional registration, immediately. Consequently the 2[nd] respondent shall permit the petitioner to undergo internship based on the provisional registration to be so granted. However, I make it clear that, if, for any other valid reason the MCI ultimately rejects his application for provisional registration, the petitioner would not be entitled to the benefit of provisional registration granted by the 2[nd] respondent and the internship undergone by him consequent thereof subject, of course, to his right to challenge such decision of the MCI. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/