WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.1 * IN THE HIGH COURT OF DELHI AT NEW DELHI WRIT PETITION (CIVIL) NOS. 12792-97 OF 2006 AND LPA NOS. 1622-29 OF 2006 % Date of Decision : March 5, 2009. ISHAN KAUL & OTHERS .... Petitioners in WP(C) No.12792-97/2006. ABHISHEK KR. DWIVEDI & OTHERS …..Appellants in LPA No.1622-29/2006. Through Ms. Pinky Anand, Sr. advocate with Ms.Reava Gujral, advocate. VERSUS MEDICAL COUNCIL OF INDIA & ANOTHER .... Respondents. Through Mr. Maninder Singh, Mr.T.Singh Dev, Ms.Neha Sabharwal, advocates for respondent-Medical Council of India. CORAM: HON’BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA, J: 1. This common judgment will dispose of Writ Petition (Civil) Nos. 12792-97/2006 titled Ishaan Kaul and others versus Medical Council of India and another and LPA Nos. 1622-29/2006 titled Abhishek Kr. Dwivedi and others versus Medical Council of India and another. WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.2 2. The common issue involved pertains to interpretation of Indian Medical Council Act, 1956 (hereinafter referred to as Act, for short) and in particular Sections 13(4A) and (4B). The issue also pertains to the scope and power of the Medical Council of India (hereinafter referred to as MCI, for short) in issuing eligibility certificate to a student who wants to study medicine outside India. 3. To control and regulate medical education and practice in modern scientific system of medicine, Parliament has enacted the Act. No person can practice as a Doctor in modern scientific system of medicine without being registered with MCI. Registration is granted by MCI to any person, who has studied and obtained degree in medicine from a recognized medical institution in India which grants degrees/diplomas and licenses in medicine. Sections 10A, 10B, 10C and 11 of the Act deal with permission to establish a medical college, new course of study etc. in medicine in India. They also deal with existing medical colleges and recognition of medical qualification granted by universities or medical institutions in India. The list of medical colleges/institutions in India, which can grant degrees or diplomas, is mentioned in First Schedule to the Act. In the present case, we are concerned with the said Sections and we have not, therefore, referred to said Sections in detail. Section 12 of the Act deals with qualifications granted by medical institutions outside India, WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.3 which are included in the Second Schedule. Institutions are included in the Second Schedule by the Central government on the basis of scheme of reciprocity, which is settled after negotiations by the MCI with the authorities of the third country. We are also not concerned with medical institutions/qualifications outside India mentioned in the Second Schedule in the present case. Section 13 of the Act deals with Third Schedule, which has two parts; Part I and Part II. Part I of the Third Schedule deals with medical qualifications granted to a citizen of India before 1st Day of August, 1947 by a medical institution in the territory now forming part of Pakistan and before the 1st Day of April, 1937 by a medical institution in territories now forming part of Burma/Myanmar. We are not concerned with the Part I of the Third Schedule. Medical qualifications granted by medical institutes outside India are included in Part II of the Third Schedule. The distinction between Section 12 and foreign institutions mentioned in the Second Schedule and Section 13 of the Act is noticed in the later part of this judgment. 4. Section 13, sub-sections 3 and 4 of the Act, read as under:- “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 WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.4 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.” 5. Sub-Section 3 to Section 13 stipulates that a medical qualification granted before the stipulated date by a medical institute outside India mentioned in Part II of the Third Schedule shall be a WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.5 recognized qualification for the purpose of the Act but no one will be entitled to practice or be registered under the Act unless he is a citizen of India and has undergone such practical training as may be required by rules and regulations in force in the foreign country or when no such practical training has been undertaken, such practical training as may be prescribed. 6. Section 13(4) stipulates that the Central Government has power to amend Part II of the Third Schedule but no such amendment shall be made after commencement of Indian Medical Council (Amendment) Act, 2001. Thus, after passing of the aforesaid amendment Act, Part II of the Third Schedule stands frozen and cannot be amended to include name of any medical institute outside India granting primary medical qualification, which as per the explanation means the minimum qualification sufficient for enrolment. Freezing of Part II of the third Schedule by the Indian Medical Council (Amendment) Act,2001 is directly associated and connected with the introduction and enactment of sub-sections 4A and 4B to Section 13 of the Act by the same amending Act. 7. The reasons why Indian Medical Council (Amendment) Act, 2001 was enacted are well known. A large number of Indian students were going abroad to study medicine and obtain a medical degree to WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.6 practice as a doctor in India. MCI had themselves sponsored students for under graduate and post graduate studies in medical institutions in abroad during the period 1987-90. However, there were complaints of fall or lack of standards, medical colleges with dubious antecedents and teaching capabilities and how private agencies had sponsored students to study in foreign medical colleges for commercial gains. Government of India had consultations with the MCI and in 1995 advertisements were issued giving a general warning to students taking admissions in some countries. It was noticed that some of the students who were taking admission had not passed 10+2 examination or had secured less than 60% marks in 10+2 examination. Students who had not studied biology in school were admitted in some of the medical colleges. In August, 1997, MCI had issued advertisements in newspapers warning students taking admission in medical colleges/institutes in some countries and had stated that recognition of 29 medical institutions was under review and MCI might not recognize degrees granted by these institutes in case of de-recognition. 8. On 17th September, 1997, Executive Committee of MCI took certain decisions and imposed/fixed eligibility criteria for students returning with degrees from different medical institutions from erstwhile USSR/CIS countries and seeking registration to practice in WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.7 India. The decision of the Executive Council was approved by the General Body. This issue was also examined by the Prime Minister‟s Office, Ministry of External Affairs and the Ministry of Health in consultation with MCI and on 16th November, 1998, decision was taken that a system of pre-screening before admission and post- screening test after degree is obtained should be introduced, rather than opting for de-recognition of medical institutions. This required amendment to the Act. Accordingly, on 12th March, 2001, the Indian Medical Council (Amendment) Act, 2001 was introduced in the Parliament to provide for eligibility requirements and post-degree test as a precondition for registration with MCI. As per the statement of object and reasons, fixing of eligibility requirements to exclude students who did not fulfill the minimum eligibility criteria and post- screening test was required to ensure adequacy of knowledge and skills acquired by citizens of India who obtain medical qualification from universities and medical institutions outside India. 9. On 3rd September, 2001, the amendments were notified and became part of the Act. As a result of the amendment, Sections 13(4A) and (4B) were enacted. These sections read: “(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 WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.8 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 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. (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 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.” WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.9 10. The amendments introduced statutory basis and requirement that an Indian citizen who has obtained medical qualification from outside India will be granted registration by MCI to practice modern scientific medicine in India provided (a) he had obtained eligibility certificate from MCI that he was eligible to take admission in any foreign country to study medicine and (b) he has cleared the post degree screen test prescribed. 11. Section 33 of the Act relating to power of the MCI to make regulations was amended and consequently sub-section (ma) was introduced. Section 33(ma) reads as under:- “33. Power to make regulations.- The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for— (a) x x x x (b) x x x x (c) x x x x (d) x x x x (e) x x x x (f) x x x x (g) x x x x (h) x x x x (i) x x x x (j) x x x x (k) x x x x (l) x x x x (m) x x x x (ma) the modalities for conducting screening tests under sub-section (4A), and under the proviso to sub- WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.10 section (4B), and for issuing eligibility certificate under sub-section (4B) of section 13;]” 12. MCI formulated Screening Test Regulation, 2002 (hereinafter referred to as the Screening Test Regulation, for short) and Eligibility Requirements for taking admissions for Under Graduate Medical Course in a Foreign Medical Institution Regulations, 2002 (hereinafter referred to as Eligibility Regulation, for short), which were published in the Official Gazette. These Regulations became subject matter of challenge before Courts but were upheld by the Supreme Court in Sanjeev Gupta and others versus Union of India and others reported in (2005) 1 SCC 45. Some other contentions with regard to internship, etc. for the persons who had completed their degrees prior to 15th March, 2001 were earlier considered by the Supreme Court and decided by judgment dated 8th March, 2002 in Medical Council of India versus Indian Doctors from Russia Welfare Association and others reported in (2002) 3 SCC 696. 13. Relevant portions of the two regulations read as under:- “Eligibility Requirement for taking Admission in an Under-Graduate Medical Course in a Foreign Medical Institution Regulations, 2002: 1. x x x x x 2. x x x x x 3. An Indian citizen, who has passed the qualifying examination either from India or an WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.11 equivalent examination from abroad and is desirous of joining an undergraduate medical course in any foreign medical institution on or after 15th March, 2002 shall approach the Council for issue of an Eligibility Certificate for that purpose. 4. x x x x x 5. The Council shall be free to investigate on its own into the correctness of information furnished by the candidate in his/her application and/or call for any further information in this regard from the candidate and in the event of any information furnished by the candidate being found to be incorrect or false during such investigation or at any subsequent stage, the Council may refuse to issue the eligibility certificate or if already issued may cancel the same and he/she shall stand debarred from appearing in the screening test prescribed in sub-section (4A) of section 13 of the Indian Medical Council Act, 1956 without any notice. The decision of the Council in this regard shall be final. 6. x x x x x 7. x x x x x 8. The Council shall consider the application for Eligibility Certificate and verify the following details as per the Regulations of the Council— (i) Whether the candidate fulfills the age criterion prescribed by the Council? (ii) Whether the candidate fulfills the eligibility criteria for admission to MBBS course in India as prescribed in the Graduate Medical Education Regulations, 1997, i.e. minimum qualifying marks criteria in Physics, Chemistry, Biology and English, including relaxed criteria in case the candidate belongs to a reserved category? WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.12 (iii) If the candidate belongs to SC/ST/OBC, whether he/she has produced a caster certificate from a Competent category? 9. After verification, as required, if the candidate is found to fulfill the eligibility criteria, the Council shall issue an Eligibility Certificate in the prescribed format to the candidate certifying that he/she is eligible to join a medical institution outside India to obtain a primary medical qualification. The certificate shall indicate that on return after obtaining the foreign primary medical qualification, the candidate shall have to undergo a screening test, subject to fulfillment of the conditions prescribed in the Screening Test Regulations, 2002, and that passing this test shall only entitled him to provisional/permanent registration by the Medical Council of India or the State Medical Councils. 10. In case the candidate does not fulfill any of the qualifying criteria, the Council may reject his application for issue of Eligibility Certificate giving the reasons therefore. 11. The issue of a eligibility certificate to a candidate shall not entitle him to any right, whatsoever, other than to take admission in an undergraduate medical course in a foreign medical institute.” “ SCREENING TEST REGULATIONS, 2002 1. x x x x 2. x x x x 3. 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 16.03.2002 shall have to qualify a screening test conducted by the WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.13 prescribed authority for that purpose as per the provisions of section 13 of the Act. Provided that a person seeking permanent registration shall not have to qualify the screening test if he/she had already qualified the same before getting his/her provisional registration. 4. Eligibility Criteria No person shall be allowed to appear in the screening test unless— (1) he/she is a citizen of India and possesses any primary medical qualification, either whose name and the institution awarding it are included in the World Directory of Medical Schools, published by the World Health Organisation; or 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. (2) he/she had obtained „Eligibility Certificate‟ from the Medical Council of India as per the „Eligibility Requirement for taking admission in an undergraduate medical course in a Foreign Medical Institution Regulations 2002‟. This requirement shall not be necessary in respect of Indian citizens who have acquired the medical qualifications from foreign medical institutions or have obtained admission in foreign medical institution before 15th March, 2002. 5. The purpose of conducting the screening test shall be only to determine the eligibility or otherwise of a candidate for his or her registration with the Medical Council of India or any State Medical Council and qualifying the same shall not confer any other right, whatsoever, on a candidate.” 14. Eligibility Regulations relate to the eligibility requirements of the candidate i.e. the student who wants to undertake and study Medicine abroad. The said student/candidate is required to fill up the form WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.14 prescribed under the Eligibility Regulation and the MCI is free to investigate into the correctness of the information furnished by the candidate and ask for details. Regulation 8 specifies various aspects which MCI is to verify to determine whether the candidate/student is eligible i.e. whether he fulfills the age criteria, eligibility criteria for admission to MBBS course in India including minimum qualifying marks and lastly whether he belongs to Scheduled Caste/Schedule Tribe/Other Backward Classes category. The Eligibility Regulations are not “institute specific” but rather “student/candidate specific”. They do not recognize a foreign institute or a college or degree granted by a foreign institute or college. Under the Eligibility Regulation or even under Section 13 (4A) and (4B) the Act, MCI does not have power to decide whether or not to accept or recognize a foreign institution/college degree in Medicine, which is recognized under the laws of the said country. The said power exists under Section 12 of the Act but only for foreign institutions mentioned or to be included in the second schedule or under Sections 13(3) and 13(4) of the Act in respect of foreign institutions mentioned in Part II of the third schedule. Section 13(4A) and (4B) of the Act and the two regulations framed thereunder do not relate to foreign institutions mentioned in the Second schedule but foreign institutions not mentioned and included in the Second Schedule. WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.15 15. The Screening Test Regulations provide for examination or a screening test of Indian students possessing primary medical qualification awarded by a medical institute outside India and who are desirous of getting provisional or permanent registration with MCI to practice Medicine in India. The eligibility criteria with regard to the foreign medical college/institution prescribed in Regulation 4 of the Screening Test Regulations is two-fold : firstly, the name of the foreign college/institution should be included in the World Directory of Medical Schools published by the World Health Organisation or secondly, the foreign institute/college should be a recognized institute in the country where the institute is situated and entitles the degree holder to be enrolled as a medical practitioner in the said country. In the second case, the recognition should be confirmed by the Indian Embassy. Sub-clause 2 of Regulation 4 pertains to eligibility requirement certificate issued under the Eligibility Regulations. Reading of Regulation 4 of the Screening Test Regulations along with eligibility Regulations makes it clear that the Eligibility Regulations do not deal with and authorize MCI to go into and decide whether or not to “recognize” the foreign institute where a candidate/student wants to take admission. The Eligibility Regulations are “student/candidate specific” and prescribe the minimum eligibility requirements for a student/candidate who is citizen of India but wants to study Medicine WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.16 abroad. The Screening Test Regulations recognize all colleges and institutes included in the World Directory of Medical Schools published by the World Health Organisation or medical colleges or institutes recognized in the foreign countries, where they are located, entitling the degree-holder to enroll and practice as a Medical Practitioner in the said country. MCI under the said Regulations cannot determine and decide whether a degree issued by a foreign institute/college should be recognized or not. All foreign degrees awarded by institutes/colleges mentioned in the World Directory of Medical Schools or recognized in the countries where they are located are accepted. The Screening Test Regulations, however, provide that an Indian citizen possessing a primary medical qualification from a medical institute outside India has to undergo a Screening Test. It is only on clearing the screening test that a person holding a foreign degree in medicine can be registered and enrolled with MCI to practice modern medicine in India. Clearing of Screening Test is the criteria and basis of verifying the competence, skill, knowledge and ability of an Indian citizen who has obtained a degree from a foreign institute. 16. The issue and question involved in the Writ Petition (Civil) No.18600/2005 titled Jishalakshmi Embrandiri versus Medical Council of India and others and other cases, related to insistence by MCI on adherence with the requirement pertaining to minimum age WP(C) No.12792-97/2006 LPA No.1622-29/2006 Page No.17 of 17 years for a student to embark on medical studies. The writ petitioners in the said case were students of institutes mentioned in Part II of the Third Schedule to the Act. The question, therefore, was limited to insistence of the MCI to adherence with their Rule mandating that a student should have attained age of 17 years before embarking on medical studies. It is in this limited context that the learned single Judge had gone into the question whether prescription of minimum age, minimum percentage of marks, etc was justified. The question of recognition of medical institute/colleges situated abroad was not an issue. Learned counsel for MCI does not dispute the interpretation given to the two Regulations read with Section 13(4A) and (4B). He has also drawn our attention to the original form prescribed under the Eligibility Regulations. He, however, submitted that in the impugned Judgment dated 5th April, 2006, learned single Judge has held that under the Eligibility Regulations, MCI is expected and empowered to issue certificates to students/candidates only when they intend to pursue studies in a foreign university, which has been duly