W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 04.09.2008 % Date of decision: 26.09.2008 + WP (C) No.8056 of 2007 YASH AHUJA & ORS. …PETITIONERS Through: Mr. Jayant Bhushan, Sr. Advocate with Mr. Abhijeet Chatterjee, Mr. Manish Vishnoi & Mr. Shashi Ranjan, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. + WP (C) No.3603 of 2008 VISHNU RAJ …PETITIONER Through: Mr. S. Rajappa, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 2 of 21 + WP (C) No.4451 of 2008 VISHU BHASIN …PETITIONER Through: Mr. Rajat Gaur, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. + WP (C) No.4473 of 2008 NAVPREET SINGH GULATI & ORS. …PETITIONERS Through: Mr. Himanshu Gupta, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. + WP (C) No.4511 of 2008 ASWIN KRISHNAN AJIT …PETITIONER Through: Mr. Rajat Gaur, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 3 of 21 + WP (C) No.4513 of 2008 AISHA SETHI …PETITIONER Through: Mr. Rajat Gaur, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. + WP (C) No.4514 of 2008 SUMIT KUMAR SHUKLA …PETITIONER Through: Mr. Rajat Gaur, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. + WP (C) No.4547 of 2008 ASHIMA SARIN & ORS. …PETITIONERS Through: Mr. Jayant Bhushan, Sr. Advocate with Mr. Abhijeet Chatterjee, Mr. Manish Vishnoi & Mr. Shashi Ranjan, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 4 of 21 + WP (C) No.4558 of 2008 TISHA ASHOK SHARMA & ORS. …PETITIONERS Through: Mr. Jayant Bhushan, Sr. Advocate with Mr. Abhijeet Chatterjee, Mr. Manish Vishnoi & Mr. Shashi Ranjan, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. + WP (C) No.4657 of 2008 M.P. KAVIN KUMAR …PETITIONER Through: Mr. S. Rajappa, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. A.K. Sharma, Advocate for the UOI. Mr. Maninder Singh, Mr. T. Singhdev, Ms. Neha Sabharwal & Mr. J.P. Karunakaran, Advocates for the MCI. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to Reporter or not? YES W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 5 of 21 3. Whether the judgment should be YES reported in the Digest? SANJAY KISHAN KAUL, J. 1. The insistence by the Medical Council of India for a screening test to be registered as a medical practitioner in respect of students who have graduated from the Manipal College of Medical Sciences, Pokhra, Nepal (MCOMS) has given rise to these writ petitions. 2. The Indian Medical Council Act, 1956 (hereinafter referred to as the said Act) was enacted to give a representation to members of the medical profession, provide recognition of medical qualifications including by medical institutions outside the country with or without the scheme of reciprocity and to prescribe standards of medical education. A license to practice as a medical practitioner has a larger public ramification as such a person deals with the life and death of the citizens of the country while treating them for ailments. The nature and quality of education to be provided to such medical practitioners before they were entitled to practice, thus, is part of the scheme of the said Act. Section 10 A of the said Act, thus, restricts the establishment of a medical college except with the previous permission of the Central Government obtained in accordance with the provisions of that Section. Section 11 of the said Act refers to the recognition of medical qualifications granted by the universities or medical institutions in India. The list of such institutions are included in the I schedule to the Act. Section 12 of the said W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 6 of 21 Act deals with another category of medical qualifications, i.e. those granted by medical institutions in countries with which there is a scheme of reciprocity by inclusion of such medical institutions located outside India being included in the II Schedule to the said Act. The recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the I or II Schedule is dealt with in Section 13 of the said Act. The Indian Medical Council (Amendment) Act, 2001, incorporated certain amendments in Section 13 of the said Act whereby a provision was made for a screening test in India in respect of persons who are citizens of India and obtained medical qualifications granted by any medical institution in any country outside India recognized for enrollment as medical practitioner in that country after such date as may be notified by the Central Government. These amendments incorporated by way of Sub-Sections 4A & 4B of Section 13 of the said Act are, however, not applicable to medical qualifications referred to in Section 14 of the said Act in view of the provisions of Sub-Section 4C of Section 13 of the said Act. Section 14 of the said Act stipulates that the Central Government may issue a notification in the Official Gazette after consultation with the MCI in terms whereof the medical qualifications granted by medical institutions in any country outside India in respect of which a scheme of reciprocity of medical qualifications is not in force, shall be W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 7 of 21 recognized medical qualifications for the purposes of the said Act. 3. The demands of a large number of students wanting to undergo medical education has resulted in a mushrooming of private medical educational institutions. Not only that students have travelled even to countries outside India to obtain medical qualifications and one such institution which is in question is the MCOMS. This institution was established in December 1994 as per an agreement between the Government of Nepal and the Manipal Education and Medical Group. The Ministry of Health, Government of Nepal and the Nepal Medical Council wanted a recognition of this Institution under the said Act. The object was clear that there would be a greater value attached to the degree obtained from the said Institution as a consequence of such recognition especially in view of the fact that the same would encourage a large number of students from India as a neighbouring country to enroll themselves with that Institution. In view of the said request an inspection was made by the MCI on 11.8.2000 for the purposes of grant of recognition. It is the case of the MCI that the Institution was seeking recognition for 100 students to be educated each year and the scrutiny of the facilities and the level of education to be provided was accordingly analyzed by the MCI for the said number of students. In terms of a Gazette Notification dated 26.9.2001 issued by the Ministry of Health, Government of W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 8 of 21 India, MCOMS was included as an Institution in the II Schedule of the said Act as per power conferred under Section 12 of the said Act. 4. The Ministry of Health, Government of India on 11/16.1.2007 requested the MCI to cause an inspection to be made of the MCOMS to reassess its facilities as also to assess the present quality of education being imparted. This was necessitated on account of the fact that such an inspection was carried out in April 2000 and doctors coming out of the said college (and one other private college) were eligible to practice medicine in India. In pursuance to the said request, the MCI proposed an inspection to be made which resulted in letters dated 17.1.2007 and 18.1.2007 from the MCOMS. An objection was raised by MCOMS in the letter dated 17.1.2007 on the ground that there was no provision or need for reassessment under Section 12 of the said Act and thus the proposed visit of the team of the MCI should be cancelled. This was followed up with another letter dated 18.1.2007 referring to the proposed inspection on 19th & 20th January 2007 more or less on the same terms and once again requesting for cancellation of the visit. 5. The inspection team of the MCI, however, proceeded to the MCOMS when certain facts came to light. An inspection report was given with a covering letter stating that no inspection of the college was permitted but the inspection team was permitted to visit the college and hospital on 19.1.2007. On such visit it was found that the college was W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 9 of 21 making 150 admissions annually instead of 100 admissions for which the facilities had been inspected earlier and there was no intimation of this fact to the MCI. The infrastructure, teaching and other facilities were found to be deficient even for 100 students. There was shortage of staff and against the stipulation of 80 per cent bed occupancy less than 20 per cent beds were found to be occupied. The undisputed position which has emerged in the present petitions is that such increase in number of admissions to 150 students has been carried out since the year 2003. 6. The aforesaid inspection report was considered by the Executive Committee of the MCI in its meeting held on 5.2.2007 and it was decided to recommend to the Central Government for re-inspection of the college and for non- grant of provisional/final registration pending such re- inspection. This was communicated to the Ministry of Health by the MCI in a detailed letter dated 23.2.2007. 7. The MCI duly informed the MCOMS for a re-inspection by a team of the MCI on 21/22.2.2007 but, once again, a request for deferment of such inspection was made on account of the non-availability of the Dean. The result was, however, no different as the inspection was, once again, obstructed. 8. The Nepal Medical Council intervened in terms of a letter dated 26.2.2007 and subsequent letters seeking recognition of the degree on the basis of reciprocity. The W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 10 of 21 MCOMS complained to the Ministry of Health, Government of India. 9. A meeting of the MCI was held on 3.3.2007 to consider the reports and thereafter it was resolved to recommend to the General Body of the Council for withdrawal of recognition to the MCOMS as well as not to grant provisional/permanent registration under Section 12 (2) of the said Act without passing of screening test. The General Body approved the same on 10.3.2007. 10. The Ministry of Health issued letters notifying all the parties to a meeting for 17.7.2007 but the matter could not be resolved. The deadlock has arisen on account of the fact that MCOMS is insisting that once a recognition is granted under Section 12 of the said Act on the basis of reciprocity, there is no power vested in the MCI to look to the performance of the educational institution nor can any inspection be carried out. This position is not acceptable to the MCI. 11. The proceedings which have been instituted in the form of writ petitions under Article 226 of the Constitution of India are all by students who are affected by the decision of the MCI to hold a screening test. The MCOMS have not filed any legal pleadings though it has been impleaded as a respondent. The controversy is, thus, restricted to the authority of the MCI to provide for any screening test for the students from MCOMS as a pre-condition for registration, which would not be normally required in view W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 11 of 21 of registration of an Institution under Section 12 (2) of the said Act. 12. The MCI seeks to draw its authority for holding such screening test from regulations framed under Section 33 of the said Act on 13.2.2002. These set of regulations inter alia provide for candidates having foreign medical qualifications to also qualify a screening test conducted by the National Board of Examination under the aegis of the Ministry of Health, Government of India. The right to hold such cut off test is stated to have been upheld by this Court in CWP No.2260/2002 titled Ms. Anuradha Saini & Ors. Vs. UOI & Anr. and other connected matters decided on 11.7.2002 and by the Hon’ble Supreme Court in Sanjeev Gupta & Ors. Vs. UOI & Anr. (2005) 1 SCC 45. In Ms. Anuradha Saini & Ors. case (supra) challenge to the screening test regulation on account of the fact that they were ultra vires to the said Act was rejected. 13. There was a spate of decisions which came on account of the degrees obtained by candidates from medical colleges in Russia. There were various categories of candidates including some who did not even fulfill the requirement of admission to a medical college and other who had carried out their education in different institutions including for a certain time period in unrecognized ones. 14. The MCI has, thus, pleaded that a similar approach must be adopted in the present cases as all precautions must be taken to ensure that the registered medical practitioners in W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 12 of 21 India are duly qualified having gone through an educational institution providing minimum level of infrastructural facilities and teaching standards. 15. Learned counsel for the MCI relied upon the observations made in MCI Vs. State of Karnataka & Ors. (1998) 6 SCC 131 in para 29 as under: “29. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human being and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study….” 16. Learned counsel, thus, pleaded that it was open to the MCI to adopt any reasonable methodology for scrutiny and evaluation of teaching and training of petitioners including through screening test conducted by the National Board of Examination. This would also be said to have statutory force in view of regulations. The educational standards in MCOMS were found to be deficient as they did not even cater to the number of students for whom the approval had been granted numbering 100 much less for 150 students. An alternative submission advanced on behalf of the MCI is that the effect of the amendment of 2001 is that the MCI has obliged to stipulate the screening test in cases of candidates who obtained medical qualifications from medical institutions outside India whether falling within the purview of Section 12 or Section 13 of the said Act. It is W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 13 of 21 only foreign medical degrees which fall within the purview of Section 14 of the said Act which have been excluded from the purview of screening test regulations. Learned counsel, thus, submitted that insofar as the continuation of recognition was concerned no exception could be carved out in respect of the institutes covered under Section 12 of the said Act. Such institutes cannot unilaterally increase the number of seats or cause the educational standards to fall. A reference was also made to the effect that medical institutions run by respondent No.3 in India have, in fact, been de-recognized by the Ministry of Health, Government of India in terms a notification dated 25.6.2008 which shows the conduct of the said respondent. 17. We have examined the pleas of the parties and the judgements cited at the Bar. At the threshold itself we are firmly of the view that it cannot be lost sight of that the standards of medical education must be maintained at all costs. The registered medical practitioners who practice in India cannot be unleashed on the public without ensuring that they have the requisite level of education as the consequences would otherwise be disastrous. It is this salutary motive which persuaded the Supreme Court in MCI Vs. Indian Doctors from Russia Welfare Associations & Ors. (2002) 3 SCC 696 to issue directions. The guidelines incorporated in the order were approved by exercising powers under Article 142 of the Constitution of India and were made applicable to persons whether they were before W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 14 of 21 the Court or not. No doubt the Court was at that time seized with educational institutions under Section 13 of the said Act. It is in the same direction that in Ms. Anuradha Saini & Ors. case (supra) a Division Bench of this Court repelled the contention raised that Sub-Section 4A of Section 13 of the said Act and all amendments carried out in Section 13 (3) of the said Act could not be given retrospective effect on account of alleged vested or accrued rights of the petitioners and the Screening Test Regulations 2002 be declared ultra vires under Article 14 of the Constitution of India. The said judgement also records the statement of objections and reasons with which the amendment was carried out in the following terms: “The Indian Medical Council Act, 1958 contains provisions in section 12, 13 and 14 with a view to recognizing medical qualifications granted by medical institutions in foreign countries. 2. Over a period of time it has come to the notice that a large number of private agencies sponsor students for medical studies in institutions outside India for commercial considerations. Such students also include the students who did not fulfill the minimum eligibility requirements for admission to medical courses in India. Serious aberrations have been noticed in the standards of medical education in some of the foreign countries which are not at par with the standards of medical education available in India. Due to lack of uniformity in the standards of medical education in various foreign countries, it has been decided that a provision should be made in the Indian Medical Council Act, 1956 to enable the Medical Council of India to conduct a screening test in order to satisfy itself with regard to the adequacy of knowledge and skills acquired by citizens of India who obtain medical qualifications from universities or medical institutions outside India before they are granted registration to practice medicine in India. 3. Further, issue of prior eligibility certificate by the Medical Council of India would ensure that only W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008 Page 15 of 21 those candidates who conform to the Council norms of admission to the medical college in India would go for under-graduate medical education outside India.” 18. In Sanjeev Gupta & Ors. case (supra) the Supreme Court made reference to both Section 12 & Section 13 of the said Act by recognizing the concept of reciprocity contained in Section 12 of the said Act. The thrust of the arguments advanced on behalf of the petitioners is noted in para 35 of the said judgement, which reads as under: “35. Main thrust of the submissions made on behalf of the petitioners is that all the petitioners have studied full length of the course from medical institutes/Universities which are recognised by the MCI. They did not suffer from any disqualification or ineligibility and therefore they cannot be subjected to any condition of screening test. That the judgment of this Court in Medical Council of India (supra), was in respect of those Indian students from Russia who had suffered one or the other kind of disqualification or ineligibility. There was not a single case as of the petitioners herein who do not suffer from any disqualification and/or ineligibility. The petitioners w ho did not suffer from any disqualification or ineligibility and have studied their entire course of M.D. Physician (which is equivalent to MBBS in India) from Medical Institute or University recognised by the MCI under the Act could not be subjected to qualifying screening test. That the law laid down by this Court in Medical Council of India (supra), is not applicable to the petitioners. Another submission made on their behalf is that the amended Act was to come into force from the date to be notified by the Central Government and since the Central Government has not notified the date by publishing it in the official Gazette the same has not come into force. That the Central Government did not have any jurisdiction to further delegate the power to publish the notification in the official Gazette to the MCI. A delegatee of the power under the Act could not further delegate its functions unless so authorised under the Act.” 19. The aforesaid plea did not find favour with the Supreme Court and the following observations would show the thought process of the Supreme Court: W.P.(C) 8056/2007; W.P.(C) 3603/2008; W.P.(C) 4451/2008; W.P.(C) 4473/2008; W.P.(C) 4511/2008; W.P.(C) 4513/2008; W.P.(C) 4514/2008; W.P.(C) 4547/2008; W.P.(C) 4558/2008 & W.P (C) 4657/2008