IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2010 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.No.716 OF 2010 & M.P.Nos.1 and 3 of 2010 National Board of Examinations Ministry of Health and Family Welfare Government of India, Ansari Nagar New Delhi-110 029 rep. by its Assistant Director ..Appellant/1st Respondent Vs. 1. Vinayaka Mission University (Declared under section 3 of the U.G.C. Act) N.H. 47, Sankari Main Road Ariyanoor Salem-636 308 rep. by its Pro Chancellor Dr.A.S.Ganesan 2. Medical Council of India rep.by its Member Secretary Aiwan E Galib Marg, Kola Road New Delhi. 3. The Union of India rep.by its Secretary to Government Ministry of Human Resources Development Department of Higher Education New Delhi. 4. Gayathri Prasad 5. Vinit Kumar Jain 6. Saswati Hazarika 7. Vijay Kumar Kolluri Respondents 4 to 7 are impleaded as per order dated 19.4.2010 in M.P.No.2 of 2010 ..Respondents Prayer: Writ appeal against the order dated 23.3.2010 passed by this court in W.P.No.19658 of 2009. This writ petition presented to this Court under Article 226 of the Constitution of India to issue https://hcservices.ecourts.gov.in/hcservices/ a writ of mandamus directing the 1st respondent to consider and grant necessary permission for the 21 Indian Students who have obtained MBBS Degree through the Off-shore Campus-Bangkok Thailand of the petitioner to undertake Foreign Medical Graduates Examination (Screening Test) September 2009 to enable them to undergo Internship / C.R.R.I. in India as part of the MBBS Program to be held on 27.09.2009 and to get themselves enrolled as Medical Practitioner in India after the completion of the Internship of one year as requested in the letter of the Petitioner dated 14.9.2009. For Appellant : Mr.Dhruva for M/s. Anand, Samy and Dhruva For Respondents : Mr.R. Yashod Varadhan Senior Counsel for Mr.C.V.Subramanian for R1 Mr.V.P.Raman for R2 Mr.Haja Mohideen Gishthi for R3 Mr.Vijay Narayan Senior Counsel for Mr.B.K.W.Singh for RR 4 to 7 J U D G M E N T ELIPE DHARMA RAO, J A novel method adopted by a Deemed University located in the State of Tamil Nadu to open their overseas campus at Thailand on the basis of a memorandum of understanding with an overseas private University, without the No Objection Certificate from the Government of Thailand or recognition from their Medical Council and their attempt to project as if the degree granted from their foreign campus would enable the students to register their names before the Medical Council of Thailand and to practise medicine in the said country and their claim that their students satisfies the eligibility criteria to appear for the Screening Test and to practise medicine in India, knowing very well that the Deemed University has no recognition in Thailand which is a mandatory condition for appearing in the Screening Test, is the subject matter of this writ appeal. 2. The first respondent filed a writ petition in W.P.No.19658 of 2009 with the following prayer. "To issue a writ of Mandamus or any other appropriate Writ, order or direction in the nature of a Writ of Mandamus directing the first respondent to consider and grant https://hcservices.ecourts.gov.in/hcservices/ necessary permission for the twenty one Indian students, who have obtained MBBS Degree through the Off-shore Campus, Bangkok, Thailand of the petitioner to undertake Foreign Medical Graduates Examination (Screening Test) September, 2009 to enable them to undergo Internship/C.R.R.I in India as part of the MBBS program to be held on 27.9.2009 and to get themselves enrolled as Medical Practitioner in India after the completion of the Internship of one year as requested in the letter of the petitioner dated 14.9.2009." 3. In the affidavit filed in support of the writ petition, the first respondent contended thus: (a) M/s. Vinayaka Mission University (hereinafter referred to as "the Deemed University) is a University declared under Section 3 of the University Grants Commission Act by notification dated 1 March, 2001 issued by the Central Government. The University has Constituent Colleges in the field of Medicine, Dental, Engineering and Management Program. The Deemed University applied to the Central Government for starting an Off-shore Campus to offer Medical Programs at Bangkok, Thailand. The said application was processed by the Government of India and a notification was issued on 10 October, 2006 granting approval with an intake of 100 under-graduate Medical students per annum as per the terms and conditions of the Memorandum of Understanding signed between the Deemed University and Rangsit University, Bangkok. (b) As per the norms of the Medical Council of India, the MBBS program comprises of four and half years study followed by one year satisfactory completion of Compulsory Rotatory Resident Internship. Based on the approval granted by the Central Government for starting the Off-shore Campus Medical Program at Bankok, the Deemed University has admitted twenty one students to undergo the undergraduate Medical Program at Bangkok and those students have completed four and half years of study and they were issued with a Provisional Certificate as per the guidelines and instructions issued by the Central Government. The students have expressed their desire to do Internship/Compulsory Rotatory Resident Internship in India. Accordingly, they made an application before the appellant to appear for the Foreign Medical Graduates Examination (Screening Test), September, 2009, so as to enable them to complete the Internship in India and enroll themselves as Medical Practitioners in India. (c) The appellant considered the application submitted by the students and as per their letter dated 24 August, 2009, students were directed to furnish photo copy of Foreign Medical Qualification Certificate Apostilled/Attested by Indian Embassy with a further https://hcservices.ecourts.gov.in/hcservices/ attestation by a Gazetted Officer in India. This was the only requirement imposed by the appellant. Accordingly, the Deemed University as per their letter dated 14 September, 2009 addressed to the appellant, enclosed the photo copies of the Foreign Medical Qualification from its Off-Shore Campus at Bangkok duly attested by a Gazetted Officer in India, in respect of those twenty one candidates and requested the appellant to allow the candidates to appear for 2009 examination. The Deemed University also produced a copy of the Government of India notification dated 10 October, 2006 granting approval for Off-Shore Campus Programme at Bangkok and it was also pointed out that clause No.9(v) of the Notification regarding Screening Test requirement is specific and without any ambiguity and therefore requested the appellant to issue necessary documents to the candidates, to write the Screening Test scheduled to be held in the month of September, 2009. However there was no response from the appellant. In such circumstances, the Deemed University filed the writ petition for issuance of a writ of Mandamus, so as to enable those twenty one students to appear for the Screening Test. 4. The appellant filed a counter affidavit in answer to the contentions raised in the affidavit filed in support of the writ petition. The material averments in the counter affidavit reads thus:- (a) The appellant/National Board of Examinations (hereinafter referred to as "the National Board") was established by the Ministry of Health and Family Welfare in the year 1975. Subsequently the appellant was granted independent autonomous status in the year 1982. The status was granted under the provisions of the Medical Council Act, 1956. The National Board was set up to evolve uniform standards of post-graduate and post-doctoral examinations in Medical Sciences on par with international standards. The Ex-officio members of the National Board consist of Director General of Health Services, Government of India; Chairman, University Grants Commission; Director General Armed Forces Medical Services; Secretary-Higher Education, Ministry of Human Resources Development, Additional Secretary and Financial Advisor, Ministry of Health and Family Welfare, President, Medical Council of India; President, Dental Council of India; President, National Academy of Medical Sciences, Ministry of Health and Family Welfare, Government of India; President, Indian Medical Association; Chairman, Post Graduate Committee, Medical Council of India and Executive Director, National Board of Examinations. (b) The National Board conducts Diplomat of National Board and other examinations on all India basis. The DNB qualification is internationally recognized. Besides DNB examination, the National Board conducts Centralized Entrance Test; Fellowship Entrance Examination; Fellowship Exit Examination and Screening Test. https://hcservices.ecourts.gov.in/hcservices/ (c) The purpose of conducting Screening Test is to enable those Indian Nationals with Foreign Medical Qualifications to apply for registration with the Medical Council of India/State Medical Councils. (d) The Screening Test Regulations, 2002 and "Eligibility Requirement for taking admission in an undergraduate medical course in Foreign Medical Institution Regulations, 2002", provides that only those students, who have undergone undergraduate medical course in a Foreign Country can appear for the screening test, provided such certificates are recognized in the Country where they had their education and which would enable them to practise profession in the said Country. The notification further provides that the name of the institution awarding the degree should be included in the World Directory of Medical Schools, published by the World Health Organization or it should be 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. (e) The name of the first respondent University does not figure in the World Directory of Medical Schools as maintained by the World Health Organization till 2007. Therefore the National Board took up the matter with the Indian embassy and the Indian Embassy as per their confidential report dated 25 September, 2009 informed the National Board that Vinayaka Mission University is not a recognized medical institution in Thailand. Therefore the students were not permitted to appear for the screening test. Those students have not filed writ petitions. It was only the University filed the writ petition, even though they have nothing to do with the Screening Test. (f) The High Court at Madras has no jurisdiction to take up this writ petition. The National Board has no office within the jurisdiction of the High Court of Madras. The entire cause of action has arisen within the jurisdiction of the High Court of Delhi and as such the very writ petition filed before this Court is not maintainable. 5. The Medical Council of India/second respondent herein filed a counter detailing the various notifications issued by the Medical Council in the matter of medical education including the notification regarding conduct of Screening Test by the National Board. In paragraph 38 of the counter they have stated that all the twenty one students have to qualify the screening test before applying to the Council for registration in accordance with the "Screening Test Regulations, 2002" and "Eligibility Certificate Regulations, 2002." In paragraph 39 of the counter, the second respondent has dealt with the contention taken by the Deemed University regarding the initial return of the application on the ground of attestation by the Indian Embassy of Thailand. However no opinion was given by the medical Council with respect to the said contention, though at first blush it https://hcservices.ecourts.gov.in/hcservices/ would appear as if the Medical council supported the case of the Deemed University. 6. The writ petition was filed on 23 September, 2009. The Deemed University has also filed an interlocutory application in M.P.No.1 of 2009 to direct the appellant to allow the twenty one candidates to appear for the Screening Test scheduled to be held on 27 September, 2009 by issuing hall ticket. The learned Single Judge as per order dated 24 September, 2009 granted the interim prayer. However it was made clear that the interim direction would be subject to the final orders to be passed in the main writ petition. Subsequently, the University filed another miscellaneous petition in M.P.No.2 of 2009 praying for an order to declare the results of the examination of those twenty one students. When the application was taken up, the learned counsel representing the appellant submitted before the learned Judge that the appellant has no objection to declare the results. Therefore the learned Judge was pleased to pass an order on 9 November, 2009 directing the appellant to declare the results. When the said order was brought to the notice of the appellant, they have filed an application in M.P.No.3 of 2009 to recall the order dated 9 November, 2009 on the ground that they have not entrusted the matter with the said counsel. However the application was dismissed on 19 November, 2009. The order of dismissal dated 19 November, 2009 was challenged by the National Board in Writ Appeal. Before the Division Bench, the National Board maintained that they have not engaged the Counsel to submit their Non-objections before the Learned Single Judge for declaration of results. The writ appeal was allowed by the Division Bench and the order of the learned Single Judge directing declaration of results was set aside. The matter was subsequently heard by the learned Single Judge. 7. The learned Judge was of the view that the name of the University was found in the Regional Directory of Training Institutions published by the World Health Organization and as such the Deemed University fulfills the conditions stipulated in the notification issued by the Medical Council of India. The learned Judge was of the further opinion that the initial requirement was only to produce the attested copy of certificates and it was duly complied with and as such it was not open to the Board to reject the applications submitted by the candidates for their appearance for Screening Test. Accordingly, the writ petition was allowed. It is the said order which is challenged in this writ appeal. 8. Before the writ court, the students were not parties. Even in the appeal they were not made parties. It was only when the matter was posted "for orders" the students have filed the application to implead them as parties to the writ appeal. Since the issue relates to education, we have allowed the interlocutory application for impleading the students and they were also heard. https://hcservices.ecourts.gov.in/hcservices/ 9. Learned counsel for the appellant would submit that: (i) The writ petition before this Court was not maintainable as this Court has no territorial jurisdiction to entertain the writ petition. The appellant/National Board is functioning at New Delhi and the entire cause of action has arisen at New Delhi. The students have paid their fees at New Delhi. Therefore no part of the cause of action has arisen within the jurisdiction of the High Court at Madras and as such, the writ petition should have been dismissed on the ground of jurisdiction. (ii) The Deemed University has no locus standi to file the writ petition on behalf of students. The applicants before the appellant were only individual students and it was not an application at the instance of the Deemed University. The students have not filed writ petition. Therefore the writ petition at the instance of the University was not maintainable. (iii) The Deemed University was granted permission by the Central Government for starting an Off-shore Campus at Bangkok. However, in the notification there was a clear indication that the Deemed University has to abide by the norms prescribed by the Medical Council of India. The notification contains a further condition that the students studying in and passing out from the proposed Off-shore campus at Bangkok must qualify for the Screening Test as per the provisions of the Indian Medical Council Act, 1956 and Screening Test Regulations, 2002 framed by Medical Council of India. The University was also given a direction to notify condition No.9(v) to the prospective students. The Screening Test Regulations contains a specific clause that the Indian citizens holding a foreign degree should satisfy that with the said degree it would enable them to practise medicine in the concerned Country by registering their names before their Medical Council. However there was nothing produced by the Deemed University to demonstrate that the MBBS degree issued by them was valid in Thailand, so as to enable the students to register before the Medical Council of Thailand or practise medicine in the said Country. (iv) The Memorandum of Agreement entered into by the University with Rangsit University was a private arrangement without the knowledge of Government of Thailand. Merely because the Deemed University was permitted to establish their Off-shore campus in the campus of Rangsit University, it cannot be said that the degree awarded by the Deemed University to those students who have undergone their training in the Off-shore campus, would be recognized by the Government of Thailand for the purpose of registration before the Medical Council of Thailand or to practise medicine in Thailand. Therefore the students, who made applications before the appellant does not satisfy the essential condition of "primary medical https://hcservices.ecourts.gov.in/hcservices/ education". (v) The Deemed University has no legal right to approach this court for the issuance of a writ of Mandamus, since the students does not satisfy the eligibility criteria as per the notification issued by the Medical Council of India. Therefore the learned Single Judge was not justified in allowing the writ petition. 10. The learned Senior Counsel for the Deemed University would submit: (i) The Deemed University was given permission by the Government of India as per notification dated 10 October, 2006 to start an Off- shore campus offering Medical Programs at Bangkok. As per the said notification, the University was permitted to commence under-graduate Medical Course with an intake capacity of hundred students on the terms and conditions mentioned in the Memorandum of Understanding signed by the Deemed University with Rangsit University at Bangkok. Therefore, the students did satisfy the eligibility criteria and as such the appellant was not justified in rejecting the request for participation in the Screening Test. (ii) The name of the Deemed University was found mentioned in the Regional Directory of World Health Organization dated 23 October, 2009 and therefore there was substantial compliance of the eligibility norms issued by the Medical Council of India. 11. Learned Senior Counsel appearing for the students would submit that: (i) The students have verified the notification dated 10 October, 2006 issued by the Central Government and only on satisfying that the Deemed University has obtained permission for starting an Off-shore campus at Bangkok that they have joined the institution. Therefore in the face of the notification dated 10 October, 2006, the appellant was not justified in rejecting the application to write the Screening Test. (ii) The Rangsit University is a University approved by the Government of Thailand and as such, the Memorandum of Understanding entered into by the said University with the Deemed University permitted them to start an off-shore Campus and as such the degree issued by the said University would qualify for writing the Screening Test. (iii) The notification issued by the Government of India dated 10 October, 2006 has been marked to the Medical Council of India as well as to the embassy of Bangkok at Thailand and as such all these authorities were aware of the permission granted to the Deemed University to open their Off-shore campus at Bangkok. Therefore it https://hcservices.ecourts.gov.in/hcservices/ was too late on the part of the statutory authorities to come up with a contention that the Deemed University has no recognition in Thailand and as such the students are not entitled to undergo the Screening Test. 12. The learned counsel for the Medical Council of India, the second respondent in the writ appeal justified the action taken by the appellant Board declining permission to the students to appear for the test. According to the learned Standing Counsel the eligibility certificate issued by the Medical Council of India contains a clear stipulation that it was only a provisional one and mere possession of the eligibility certificate will not enable the students to appear for the Screening Test, unless they were eligible as per the relevant notification. According to the learned counsel, the Deemed University has not produced the order of recognition issued by the Government of Thailand or any other statutory authority similar to that of the Medical Council of India and as such the students were rightly denied permission to appear for the Screening Test. The learned counsel would further contend that Rangsit University is only a private University like any other Deemed University in India and they are not empowered to grant permission for establishment of a medical institution in the Country of Thailand and as such, the certificate issued by the Deemed University has no value in Thailand so as to enable the students to register in the said Country as a medical practitioner. The learned counsel explained the counter affidavit filed by the Medical Council and more particularly paragraph 39. According to the learned counsel, in paragraph 39 the Medical Council has only denied the averments as contained in the affidavit filed in support of the writ petition. Though it would appear as if the Council endorsed the contention raised by the writ petitioner, the fact remains that the Medical Council of India has not supported the contention. 13. The Medical Council of India has been constituted as an expert body under the provisions of the Medical Council of India Act. The Council has been given the responsibility to discharge the maintenance of highest standard of medical education. Therefore, the Medical Council was given the powers to prescribe the minimum standards of medical education, including eligibility standards. Section 13 of the Indian Medical Council Act, 1956 provides for recognition of medical qualifications granted to the citizens of India by certain medical institutions, whose qualifications are not included in the First or Second Schedule to the Act. Section 4A was inserted as per Act 34 of 2001 with effect from 3 September, 2001. Section 13(4A) reads thus:- "A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognized for enrolment as medical https://hcservices.ecourts.gov.in/hcservices/ 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." 14. The Medical Council of India in exercise of the powers conferred under Section 33 of the Indian Medical Council Act issued regulations in the name and style of "Screening Test Regulations, 2002". The entire issue in this writ appeal relates to the eligibility of the students to write the Screening Test. The regulation reads thus:- "1. Short title and commencement - (1) These regulations may be called the Screening Test Regulations, 2002. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Definitions :- In these Regulations, unless the context otherwise requires :- a. "Act" means the Indian Medical Council Act, 1956 (102 of 1956); b. "Council" means the Medical Council of India constituted under Section 3 of the Act; c. "Permanent Registration" means registration for the purpose of enrolment on any State Medical Register or Indian Medical Register after obtaining the Primary Medical Qualification followed by completion of such practical training as prescribed either in India or abroad as per the provisions of the Act; d. "Prescribed" means prescribed by regulations made under this Act; e. "Prescribed Authority" means a medical https://hcservices.ecourts.gov.in/hcservices/ institution or any other examining body authorized by the Central Government/Medical Council of India to conduct Screening Test. f. "Primary Medical Qualification" means a medical qualification awarded by any medical institution outside India which is a recognized qualification for enrolement as medical practitioner in the country in which the institution awarding the said qualification is situated and which is equivalent to MBBS in India; (emphasis supplied) g. "Provisional Registration" means provisional registration in a State Medical Register or Indian Medical Register for the purpose of undergoing practical training in India as prescribed and for no other purpose by an