MEDICAL COUNCIL OF INDIA

SILAS NELSON AND ORS.

l\'IA Y 14, 1993

[M.N VEN KA TACHALIAH CJ. DR. T.K. THOMMEN ANDS ..

MOHAN, JJ.]

Indian Medical Council Ac/, 1956-Ss. 12, I4-Migra1ion Rules- Regulafion \/( e J-Mig, ration of Medical stud em of unrecognised college in Dar-es-Salam

10 recognised medical college in India-Equivalence of the courses in the two colleges-Held, Medical Council the main a111hority 10 decide on these ques1io11s...,.Co11rse of swdy. and 1101 individual cases, relevam for gram of pennission for 111igrc11ion-On facis, held. 1i1igration rightly reji1sed. ·

In 1989, respondent 1 and his sister applied for_migration from Mumbili Medical College in the Faculty ofMedicinc, atitliatcd to the University of Dar- D cs-Salam to a recognised medical college in India. The Medical Council of India turned down this application. A ~Titpetition was filed in the M.P. High Court at Jabalpur. The High Court directed that the appellant and other authorities consider the case of the petitioners. Thereafter the Executive Committee of the Medical Council reconsidered the case on 20th August,

1991. It found that the grounds for migration were riot sufficient; that it was. E the course of study already undergone vis-a-vis that being taught in the medical college in which migration was sought, and notthe facts ofindividual . case, which 'as relevant. Also the candidate had not furnished enough materials to make the comparison. The Council therefore rejected _the application.

A re\•icw petition and contempt petition filed in the High Court were dismissed.

The1cupon, in a miscellaneous petition filed on the same grounds seeking admission in the second year or the I year professional MBBS Course . G at \'vlcdical College, Jabalpur the High Court directed that the petitioners be

given provisional admission. The petitioners however, did not prnducc the required document<; and the college did not provisionally admit them. In an

interlocutor~· application, the High Court permitted one of the petitiners to withdraw herself' from the petition and directed that the ot.Jicr petitioner H

788 SUPRHfE COURT REPORTS

(1993] 3 ~.C.R.

A (respondent I before this Court) he granted provisional admission on his ,.,.

filing necessary fo1ms and depositing the fees without insisting on the production of an~' qther certificate or testimonials or syllabus of Dar-cs- Salaln University .

. On fear of contempt, the Dean had to compl~· with this order. On an application befor~.it, this Court stayed the interim order and requested the High Court to dispose of the main petition expeditiously.

The High Comt allowed the writ petition and quashed the resolution

dad 20th August, 1991. refusing migration, holding that there was no application of mind.by the Council.

On appeal before tliis Court, it was contended that the High Court erred in directing admission of respondent in a recognised medical college from an unrecognised medical college by way of migration; that Regulation V had been misread and that not hal'ing under-gone stud~· in a recognised medical college no.r having passed the firt profcS5iorial examination, he could not be admitted to the second year; thathe had failed in anatomy and had not sat for his supp1cmentary examination and had therefore ceased to he a student of Dar-es-Salam Universit~·; and that the first year course at Dar-cs-Salam University and in India were not cquh•alent. Equivalence in any case, it was urged, is to be decided .by an expert body and is notin the domain of the Court.

For respondent 1, it \\•as argued that the self-contradictory stand of the . Council on equivalence had ied to the High Court deciding the issue; that

cquit~· was in his favour; that he had in any event passed his pre-medical test in 1991; and that he belongs to a scheduled tribe.

Allowing ihc apcal, this Court,

HELD: 1. The Medical Council has come to the ~OITect conclusion that there C".ariot be migration from unrecognised institution to a recognised ·

medic~I college. (799-G)

Dar-cs-Sal.am University has not been recognised as provided in the : Indian Medical Council Act, 1956. (796-A)

2. The High Court docs not ha, c the necessary expertise to determine H

1 cquivalcnl.'C. The Medical Council is the main authority in this respect. (799-C)

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\ff':DICAL COl_'.NCJL "SILAS NELSON [\101/AN .. 1.) 7~9

3. \\'h:Jt is material for grant of permission for migration is the course A of stud~· which a student has undergone 1-is-a-1-is the courses being taught in the medical college in which the migration is sought, and not the individual case. (799-D)

The material_ placed before the Council was not sufticient to decide equhalence.

4. The concerned authorit~· is to verify the disputed factual position concerning his performance in the 1991 pre-Medical test and decide on considering him for admission for the academi~ )"ear 1993-94. (800-E-G)

CIVIL APPELLATE JURISDICTION : Ci\"il Appeal No. 2221 of 1993.

From the Judgment and Order dated 5.5. 1993 of the Madhya Pradesh High Court in M.P. No. 4420 of 1991.

Harish N. Salve and L.R. Singh for the Appellant.

Anoop Choudhary, A.K. Sanghi, S. V. Deshpande and S.K. Agnillotri for the Respondei:its.

The Judgment of the Court was delivered by

1\1 OHAN ,.J. Leave granted in SLP filed by Indian Medical Council, J abalpur.

All these appeals are dealt with under a conunon judgment since they arise

out of the same judgment passed in Misc. Petition No. 4420 of 1991 by the Madhya F Pradesh High Court. Jabalpur Bench.

One Dr. S.K. Nelson, father of respondent I was serving in Madhya Pradesh State Public HeaHh in the Department of Surgery in the Medical College at Jabalpur. His wife. Dr. (Mrs.) Shobha Nelson was also working as a Lecturer in the Department of Obstetrics and Gynecol1)gy in Medical College. in a purely G !emporary capacity.

De Nelson applied for foreign assignment. He was se_lccted for the same.

Therefore. a request was made by the Government of India (Department of

\\ersonnel and Administrati\"e Reforms) vi de its letter dated 2nd of January. I 975 H

71)() Sl.'PRE,\1E COl.m.T REPORTS

[ 19'!3] 3 S.C.R.

requesting the Stat\! Gn\'ernml.!nt ll1 spare the services of Dr. S.K. Nclsl"in for iorl.!ign assignment with Zanzihar (.iO\'l.!rnment. The Under Secretary to the Guvernmcnt of Madhya Pradesh, Department or Public Health and Family

Planning replied on 15.4.1975 that it was not possible for the State Government tll spare his scr\'ices. Huwcver, Dr. Nelson proceeded on two months vacation with etll.!ct ti\1111 l .':i.75. He Wf\)te a letter Ill thcDean ofl\.foclical College. Jabalpur that he was prncl.!eding un long leave owing to unavoidable family circumstances.

E\'en alkr the expiry ur the period uf leave he did not rejoin the pust. His request for further extensillll of leave was rejected. Notwithstancting the same Dr. Nelson and his wife pruceedl!d tu Tanzania and the first respondent. Silas Nelson, also accompanied them.

[t alsu rl!quirl!s to be menti11t1ed in passing that a request was made to the' Gn\'ernment ofMauhya Pradesh to spare the services of Dr. Shobha Nelson. It was pninted out hy the State Go\'ernment that she being a temporary sl!rvant she had

1111 lien and she \Viii have to resign the State service before joining her duties in './, anzihar. She also ahsentell unauthnrisedlyand proceeded to Tanzania along with D her husband. The first resp@dent claimed to have passed G.C.E. ff level as well as A lcvd examinations from the University of London conducted by the Ec!ucation Council of the Government at Dar-es-Salam in Tanzania. He also

claimed that he had obtained crl!dits in A level in tllfee subject:> i.e. Biology, Physics and Chemistry and ff level in six subjects i.e. Biology, Chemistry, English Language. English Literature. Mathematics and Physics. On this basis he claimeJ that he was entitled to admission in .any Medical College in India.

According to him these examinations are considered to be equivalent qualifying examinations and pre-requisite for admission to any Medical College. It was also stated that Rani Durgawati University of .lahalpur had gi\'en an equivalence certificate. He obtained admission in Muhmhili Medical College in the Faculty of l\1edicine. which is affiliated to the Uni\'ersity of Dar-escSalarn, in the year 1989.

He had completed one year at the same College ancl University. Thereafter he was pursuing his study in the second year. Having regard to the fact that he had studied the subjects in Anawmy. Physiology, Biochemistry. Pre\'cnti\'e and Social Medicine including Beha\ioural Science and Biostatistics. Medical Psychology and

De, elopmcntal Studies and Medical Surgery, he had undergone a wider course.

G Therefore, according to him, he possesses the eligibility criteria tor admission to the MBBS Degree Course at Jabalpur.

A request was made by the father of the 11rst respondent to nominate the first respondent to MRBS Cnurse directly under Central (iovernment quota. This request related not only to the tirst respnndent but also his sister. However, the H Central Govl.!rnment ad\'ised Dr. Nelson to approach the Medical Council of India

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'I/ ' ~. ;..._,'-"":"~·, /.\')

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I :. • , , '-IEl>ICAL COL.INCIL v. SILAS :\"El-'\O~ l~10llA'."\. J.l ' . 791

anJ th!! coni:i:rned l!1li\crsily in Jabalpur sc'eking their concurrence to the A n1igr.1ti'-'ll \\f hi'.'!> (\\'ll childrcO frlnl the lJniversity ,, f [lar-f.s-Salanl. 1anzania to

~1CJical (ollce in Jabalpur. \ .

On 20th Dcccmocr. 1989. Dr. Nelson approached th< appellant. Medical

Counil of lndiat hereinfter referred to as the touncil) for gn1nt of no ohjection to the tronsl~Cr~ .. Thiz" re4uest \\'as turned th1\\ri on 12.1.911 as migratiori \vas not pennissihlc u11...Vi.; r t_he Rules. l"hc.! (1\)Sition \\.as funhlir 1n::tlh:_c1Car hY t~C' h:ttcr ~>f tho appellant dated :?8.12.90. _

,\ggric\ed hy this. the first respondent and hiS sistCr Kumari I>ivya Nelson

. fileJ \Vrit Pctilil'll hearing ti.lic. l'etitinn o. 2535 ufl 99<f hl.!fl1re .the .tadhya cc -

Pr.iJesh lih ("ourt at Jahalpur. The pr<.iycr \va.;; fllr a \vrit ~1f manda~1us to dirC"ct the rcspondCnt~ to grant 3dn1issi~Ht to the1n to the 2nd yar of f\tBBS Degree

c,, urc at tedii.:al College.!'. )abalpur. ll \\as Cl'Uterltid-ih-at the ll1u111:il had not authL1rity 1~1 ,, fijl.!i.:t tJr n::fuse the issue f thl objl.!li0n c.erfif!catc since its primary function is to pfesrihc ffiinimlim standardS l>f" medical cJucation. It is -the

tJni\ersily alofk! \\'hih should be cUnccmcd about the adn1ission.

"lhc lligh court hy its judgmtJnt dated 12.7. 91 <.illo\\-'Cd the \\rii petition. It directed the appcl !ant and cthcrauthoritic~ to consider the case , if respondent l and his sistcr\\ithin a period oft\Vtl monU1s fo( their Udmission in the l\1edical College.

Jahalpur in the light of cl<iuse lE' of th~ inandatory recomn1endations appro\'cd under Seclion 3.3 "f tho Indian MediC'11 Giuncil Act. I %6. It ias also held that thoughthc Council had consider~~ th!! case ofthC can-dictates yet it h<id not looked inh l the inJiviJual ntCrits regarding thir eligibility for transfi.:rto l\tcdical College.

J abalpur which is affiliated to Rani Durgawati Vishwa Victyalay:i. Jabalpur ..

BcsiJcs. thc iinpugncJ lcth:ruf thC cUuncil docs nlH shoV.· 3riy application of mfnd as it is lllll a speaking ordf.

In con1pliance \vilh the_ abll\·~ dircctil1ns the Exccuthc Conm1iltec tlf the

appi.:lant (l"ounil} ri.:consiJ1.:n:d the case on.20.8.9 i. 'fhc qucstil1n \\'as \\'hcer

lhc migration tlf the first resp1.Jndent on indi\idual mcril to Medical College~ Jabalpur under clauSe ·., re' of the ; vti"gration Rules \\'~~ permiSsiblc .. It \as concluded that the n1igratioit could n\11 he illl\\'Cd since the gniuhds \vcre not G. sufli-..:il.'.'nt fr)r such mignition. It \\'_a.; also of the view that the facts state\i for

C\n:-.iJcring thc inJi\'idual casi: on mi.:rits \Vere not relevant. \'{hat iS impoant to 1ic C'l1nsidl.'rcJ i:i the coilrsc of study the student had iilready undergone riJ--d~1i.~

the course !icing taught in the fl.1cdical lollegc in \vhich the rrJgration is sought.

The canddate had TI\\! also furnished cn,1ugh materials to nlakc cOrnp<irison \Viti~ II

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792 SI "1-'RE\IE COl"RT REPORTS

 A the course or study conducted in l'vkdical C\11lege at Jahalpur. For these reas,111s the request for migration was rejecteJ. The same was reitcratcJ hy a letter dated 4.1. n.

After this. a review petition was 111ed td recall the' 1rder JateJ 12. 7. 91 l1f 1hc High Cnurt. Hl)Wever. the re\'iew petitinn was dismissed by the lligh Court. An application fnr comerrtpt was alsti dismissed. Thercuplln. Mics. l'ctiti; m N,1 . .W20 or 1991 came to be tiled seeking admissi, in in the 2nd year 11r the Is~ Professional M.B.B.S. Course at Medical Ci11legc . .labalpur on the same gmunds as were alleged pn:\'iously. A directi;>n was issued 011. 23.12.91 tl) gi\'e prn\'isional admission. After admission of the writ petition the same order was continued.

Though an applicatiurrwas preferred hv the n:sp1mdents 2 tll 4 to have the order \'acated nn the ground that migrafion frum an unrec11gniscd Medical <.\1llcgc to a recognised Medical College was not permissible. the same was dismissed.

Si>m~ interesting ilen:lopmem tn, ik place during this $tage. The candidates did niJt produce the required dlJcuments. I lcncc, prn\'isional admission was nut granted to them by the responJents 2 w 4. That led to the tiling of lnterh)cutory Applil.:ation No. 2805 of 1992 for further direction. Responderits 2 tll 4 also 111ed an application for direction on 26.3. 92 imer alia pointing out that before grant of provisional admission, the writ petitioners were required to submit pmof of their ha\'i.ng passed .1st year c:ourse at Tanz.ania. In the absence of such proof the admission was_ imp1)Ssible. Further. in which year of the MBBS course the first respondent was to be admited, was not free from difliculty. It was averred that even without passing the first year from the University of Dar-cs-Salam the claim

is made for admissitm to the second year. This is nothing but fraud. The High Court strangely permitted the writ petitioner. Kumari Divya Nels1m, to withdraw herself from the petition and it directed rcsp1mJent I alone cuuld prosecute his studies.

The authi)rities were directed to grant pnH'isiunal admission his filing necessary forms and cp1)siting admissi1m fcL'S without insisting on the prncluction of any other certificate or testimonials or syllabus of Dar-es-Salam University ..

. For non-compliance with this direction, a contempt application was i.aken out _by the first respondent. On peril uf rnntcmpt. the Dean (Resp,1ndent 4) had n1)t G other llption but to comply with the order of provisiOnal <tdmisshrn.

Against this order directing pn1\'isiunal admission withuut insisting on Ille produ1:tion. oi any other d11.:uments SU' ((') No. !0498 of I 992. was prcfem•d . . I .cave was granted on 7 .9. lJ2 hy this C\mrt staying the uperatiun llf the urder dated H J 8.5.92 <lf the \igh Court. This (\1urt directed that the interim order will subsist

\H:DICAL COU!'\CIL 1. SILAS NELSON f\'IOJIA1". J.) 793

till the Jispllsaf or the writ petition bl'forc the High Court ancl requesteJ the High A Court to displlse ,1f the writ petition or the respondent I expeditiously.

By the impugned judgment dated 5th March, 19113 the writ petitilm was allllwcd. The rcsoluti11n dated 20th Au.gust, 199 I rdusing to accede to the request or the writ pctitillner (respondent I) ti1r migration was quashed holding thai there was nu applkatil in of mind by the Cuuncil. It is under these circumstances these appeals hy special lemc to appeal have cnme to be preferred.

Mr. Harish N. Sahe. learned i:ounsel for the appellant would. submit the fnllnwing grnunds attacking the impugned judgment:

The High court erred in directing admissi1rn to respondent I in recognised medical collc.gi: in India from an unrecognised college by way of migration/ transfer. all tile more so, when such impcrrnissibility has been recognised by this < 'ourt in Meilica/ Co1111cil of India, New Delhi v. Rajendra S. Sankpa1 and Ors. err..

(C. A Nos. 3-4 of 1991 dated 21.10. 92) and on.ler dated Ci.12.19.90 of this Court passed in Metlical C:01mcil of India '"Ms. S1111iw A11a111 Clwvan & Ors. (I.A .Nos. 2-7 in Transfer Petition (Civil) Nos. 230-235 of 1989).

 The High Court misread Regulation Y. Under that Regulation migration.is allowed fwm a recognised medical college to another r.:xog1iised college and that too within three months after passing of the first professional examination. In so far as lht' first respondent has neither undergone study in a medical college recognised by tile Council nor has he passed the first professional examination, he could rot be admitted to the second year.

The first respondent failed in the subject of Anatomy which is one of the p<; ilcrs taught in the first year at Dar-cs-Salam University. Under the Examination Regulation of the said University he was required to sit in the supplementary examination in the failed subject before the beginning of the next aademic year.

111us he was required to clear the said paper within six weeks. Should he fails in the supplementary examination he ceases to be a student of the College/University. In so far as the first respondent did not take the supplementary examination he ceased to be a student of Dar-es-Salam University. Therefore, the question of migration could not arise at all.

The first year course of Dar-es-Salam University is not equivalent to the first phase of MBBS Examination in India.

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SUPREME COURT REPORTS p99~J 3 S.C.R.

A Equivalence has to be decided by only an expert body, that too, on technical

<tnd academic mauers. It is not in the domain of assessment or evaluation by the Court: The High Court should not have embarked on the determination of . equivalence on the basis of sketchy materials placed before it.

The High Court erred in relying on Minakshi Malik v. University of Del/1(.

AIR 1989 SC 1568. There, the candidate was not, in any matter, ineligible while here, the tirst respondent is incl!gible. The High Court erred overlooking that an administrative authority like the appellant is not required to pass reasoned orders. \ . .

The degree awarded by Dar-cs-Salam University is not recognised and is not included under any of the Schedules of the Medical Coundl of India Act, 1956.

Therefore, there was no occasion for the appellant to decide the equivalence.

Should the first respondent he anxious he should have placed all the materials.

In opposition to this, learned couni; el for the respondents, argues that the Council has taken a self-contradictory stand. In one breath, it will contend that there are no materials to decide the equivalence and in the other breath it would say D it is not equivalence.

Under these circumstances, in view of the cryptic order passed, the High Court it5elf µecided finding that the Council had not applied its mind. The High Court was satisfied on the basis of documents there is equivalence. The High Court is well entitled to do so. More so. having regard to the ruling of Minakshi Malik's case (supra) Equity also must weigh in favour of the first respondent. b'I' any event, the first respondent had passed his pre-Medical test successfully in the year 1991.

He also belongs to scheduled tribe. Therefore, on the basis of these two documents his candidature could be considered for admission to first year MBBS Course for the ensuing academic year of 1993-94 as otherwise. the career of a young man would be completely ruined.

The factual position with regard to study of the first respondent in Dar-es- Salam University requires to be carefully analysec1. The claim of the first respondent is that he has passed G .C. E. 'O" level as well as 'A' level examinations from the University of London conducted by the Education Council of the G Government at Dar-es-Salam in Tanzania. He claims to have obtained credits in 'A' level in the following three subjects:

(i) Biology,

(ti) Physics; and

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MEDICAL COUl'\CIL 1. SILAS NELSON [MOHAN, J.I 795.

(iii) Chemistry

In olevel he claims to have obtained credits in the following six subjects

(i) Biology,

(ii) Chemistry,

(iii) English Language,

(iv) English Literature,

(v) Mathematics; and

(vi) Physics

On this basis, he claims admission to any Medical College in India as these are considered to be equivalent qualifying examinations and pre-requisite for admission to any Medical College. It is claimed on behalf of first respondent that Rani Durgawati University of Jabalpur has given an equivalence certificate. That

is extracted below : D

"With reference to your above cited letter, it is t.o inform you tat students have passed in five subjects at least at the G.C.E. (Ordinary Level) and two subjects at the (Advanced Level) from University of London, are treated as having successfully completed the 12 year Pre-University/Higher Secondary in India.

Hence, if your son Shri Silas Supragya Neison has passed above examination then he may appear in Pre Medical test examination as desired by you:·

According to first respondent, h~ was admitted in Muhmbili Medical F College in the Faculty of Medicine which is affiliated to the Uni\'crsity of Dar-es- Salam in the year 1989 and has completed one year at the same Cnllege and University. In the First year he had studied subjects in Anatomy, Physiology, ·-,. .. ,.

Biochemistry, Preventive and Social Medicine which includes Behavioural Science and Biostatistics, Medical. Psychology and Development Studies & Medical Surgery whereas at Rani Durgawati University, the subjects taught in the G first year are Anatomy, Physiology, and Biochemistry. Thus the courses followed at Dar-es-Salam University are much wider. It was further claimed that his course in the said Medical College is equivalent to first year course of MBBS Degree awarded by Rani Durgawati University, Jabalpur and, therefore, he possesses thr eligibility criteria for admission to the MBBS Degree Course at Jabalpur.

796 Sl.il'RE\11' ( oun R!:l'OIHS

I! 9931 3 S.C.R.

A On tlie said hasis migr, llion is s1iught. Dar-cs-Salam Unhersity is 11111 rec11gniscd hy the Medical Council of India. Therefore, from an unrecognised institutiun cldq1issinn is snught to a recognised institution.

With the ohject of maintaining <ind regulating standards of medical educac tinn in the c1>untry. the Parliament enacted "the Indian Medical C1Juncil Act, B 195<1". Under Section <• uf the Act. the Medical Council of India has heen incorporated, which is ;1 h11dy corpurate having a perpetual swxession and a cumm1m seal. Sectinn 12 t'f the Act makes pro\'isions for recognition of medical qualifications granted by medical institutions in countries with whieh there is a scheme 1}f reciprocity. Uncler this section, the schedules are given provicling list

. <.;

ufrewgniscd medical institutions & qualificatinns. The first schedule gives list llf rec11g11ised medical qualitications granted by uni\'ersitics/mcdical institutions in

India; whereas schedule sec1md giwfthe list l)f recognised medical qualifications granted by mei.li\.:al institutions outside India. University of Dar-cs-Salam & its

mcdil'.al institution is not inClm1ed in the sewnd schedule and therefore the qualitications imparted by that institution are not recngnised. That apart, section

I.:! llf the Act makes provisions for recognition of medkal qualifications granted hy countries in which there is not scheme ofreciprodty. The Central Government has nnt wnsidered Dar-cs-Salam University for such recognition.

It was in this context the follnwing ordercae to be passed by the appellant :

The Director, Medical Education.

Madhya Pradesh, Bhopal

Subject:- Migratilrn 11f Silas Nelson and Divya Nelson from Dar-es-Salam Medical C\11Jege, Tanzania to Mcclical Collage. Jabalpur.

Sir .

With reference to your letter No. 6151/DME/IV dated 12.5.1990 I am to state that the matter regarding Migration of Silas Nelson and Divya Nelson from Dar-es-Salam Medical College. Tanzania to Medical College, Jabalpur was duly placed before the Executive Committee of this Council at its meeting held on 20th August, 1991 for consideration. The Committer H decided as under :

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MEDICAL COUNCIL v. SILAS NELSON [MOHAN. J.] 797

The Executive Committee considered the matter with regard to the migration A of the above candidates on individual merit to Medical College Jabalpur under Clause V ( e) of the migration rules and did not allow these migration since the grounds are not sufficient for migration and the facts stated in the individual cases are not very relevant for grant of permission for migration.

For considering any such cause of migratioq, it is important to consider the cause of study the student has already undergone vis-a-vis the course being B taught in the Medical Colleges in which the migration is sought. Further it is observed that the candidates seeking their migration have also brought no records to show the course of study being conducted at their medical college for making comparison with the study being conducted in Medical College, Jabalpur. Hence the applications for migration of the above candidates are rejected.

Your faithfully, (Mrs. M. Sachdeva)

Off. Secretary."

Concerning migration the rule also is to the effect that the same can be allowed by the University concerned within three months after the passing of the first professional examination.

Then, the question of equivalence aries. The equivalence came to be decided in the following manner :

"Referen~~~Letter dated 28.12.1991' of Dy. Registrar (General) R.D. University, Jabalpur.

Regarding letter ofku. Divya Nelson and 2/ Silas Nelson to the University.

I have gone through prospectus of University of Dar-es-Salam ( 1990-90)

For M.D. degree which is equivalent to M.B.B.S. of Universities abroad (as per letter No. H/Qtq:N/17862 dated 2nd May, 1990 of Director of Training and Occupational Health Service, attached in the file).

For examination at the end of first year in Dar-es-Salam University the subjects are:-

798 SI "Plff\11'. COi "RT RI I'< lfHS

'\nato111,·/Hish ilogy .kha\'h•ural sicnn,

Biochemistry Physiology Development studies

Onh ·Ill'

Year studv.

[1993) 3 S.C.R.

Where in Indian Universities the First MBBS Course which is of 18 months the subjects examined are (As per Medical Council of India).

Anatomy Physiology Biochemistry

- one and half

- Year study

C As the detailed syllabus of the 5 subjects taught in one year at Dar-es-Salam University is not given in the Prospectus, it is difficult to know whether the course is equal as only three subjects are taught in Indian University for one and half years indicating that these subjects are taught in more detail here in our University.

However, in general the subjects taught there in first year included Anatomy, Physiology and Biochemistry (along with other two subjects) which are also the D subjects of first M.B; B.S. (one and half years course) here also. For more clarification, the Medical Council of India may be consulted because they are the

 main authority in India in this respect. Dean, Faculty of Medicine of our University was also consulted in this maucr.

d/- l'nllcssor ~\:I kad; Dept!. of Bi1•cl1c111istry f\kdical (\illege & Chairman Board of Studies fur Anatomy, Physiology & Biochemistry . .

This may hc pu1 up hclorc the Standing ( 'ummittcc tur rnnfinnation ...

We cannot understaQd when this was the position with reference to equivalence how the High Court had donned the role of an expert body and would say as rone; ws:

"The petitioner has filed documents showing that Dr. R.K. Gupta, Reader in Pharmacology of the Medical College, Jabalpur was sent on deputation for teaching in the medical college affiliated to Dar-es-Salam University. The petitioner, by filing the documents, wants to show that persons having requisite qualifications for teaching in the Medical Co I leg e, J abalpur were posted or appointed at the medical college affiliated to Dar-es- Salam University. The documents filed by the petitioner show that the subjects taught in the first year M.B.B.S. at Muhibili Medical

MEDICAL COUNCIL v. SILAS NELSON [MOHAN. J.] 799

College, Dar-es-Salam University and the subjects taught at the Medical College, Jabalpur are the same. to us the material consideration is the qualifications necessary for admission to the first year M.B.B.S. course.

The documents on record show that the educational qualifications for admission to the Medical College, Jabalpur and the Muhbili Medical College of Dar-es-Salam University are the same and there is equivalence of courses. As there is equivalence of courses required foradmission to the first B year M.B.B.S. courses in Muhibili Medical College and the Medical . College, Jabalpur, the petitioner is entitled to be transferred to the first year M.B.B.S. course of the Medical College, Jabalpur and should be permitted to appear in the examination conducted by the .Rani Durgawati University, Jabalpur."

This is totally unwarranted because the High Court does not have the necessary expertise in this regard. As to the equivalence we have already extracted the opinion of the Chairman of Board of Studies for Anatomy, Physiology and Biochemistry. From the above extract it is clearly seen that the Council is the main . authority in this respect.

Then again, the High Court had gone wrong in concluding that the individual cases are relevant for the grant of permission for migration. In our considered view, as rightly concluded by the Council, what is material is the course of study which a student has undergone vis-a-vis the courses being taught in the Medical College in which the migration is sought. What the Council was endeavouring to point out was the materials placed before it by the present first respondent were not sufficient to decide the equivalence. The criticism of the Council, by the High Court, is also not warranted. First of all, no certificate was produced by the first respondent that he had completed the first year course in Dar-es-Salam. Unless and until that is done the question of admission to the second year MBBS could not arise. The first respondent had not appeared in the supplementary examination. If that is so, according to the Regulations of Dar-es-Salam University, he is deemed to have discontinued from that Course. In such a case the question of giving admission to Medical College at J abalpur could never arise. Therefore, looked at from any point of view, the Medical Council , of India which is the authority to decide the equivalence, has come to the correct conclusion, in that, there cannot be a migration from unrecognised institution to arecognisedMedical College. The judgment of the High Court is wholly unsupportable.

Once we have arrived at this conclusion the question arises whetherthe case of the first respondent could be considered for the academic year 1993-94 based

on his performance in the pre-Medical test for the year 1991. The statement of H

SUPREME COURT REPORTS.

(1993) 3 S.C.R.

A marks obtained in pre-Medical Test, 1991 is as !!nder :

"Subjects Max.

Marks Marks Obtained

B Physics 300 127

Chemistry 300 220

Botany 300 160

. Zoology 300 214 c English 300 217

1200 721"

He also claims that he belongs to Scheduled Tribe. We do not have material to show as to whether he was granted admission to any Medical College on the D basis of his performance in the pre-Medical test forthe year 1991. However, in the petition for special leave to appeal the appellant has made the following averments

"In the said Count er-affidavit, on oath the respondent no. I deliberately, knowingly and wilfully made a false statement that he had never appeared in the Pre-Medical Test held in the year 1991 and failed. It was further stated that in fact it was his younger brother Sushrut who had appeared in the T.M.T Examination of 1992. The petitioner herein has made an inquiry and has come to know that the respondent no.I appeared in the Pre-Medical Test, 1991 vide application No. 27811 and was allotted Roll No. 624227 but failed to qualify and complete in the said test... ..

Since the writ-petitioner respondent no. I appeared iq the Pre-Medical Test, 199 vide application no. 27811 and was allotted Roll No. 624227 but failed . to qualify and complete, he was not at all eligible for admission to the undergraduate medical course in India."

If this be the correct position, he would not be entitled to be considered for admission for the academic year 1993-94 on the basis of his performance in the

Pre-Medical test held in the year 1991. It is for the concerned authority to verify H the factual situation and decide the matter.

---=

MEDICAL COUNCIL v. SILAS NELSON [MOHAN, J.] 801

We make it clear that if his case has already been considered for admission A on the basis of performance in the Pre-Medical test 1991 and rejected there is no need to consider his case once again for the year 1993-94. Otherwise, it may be considered on the basis of performance in the pre-Medical test for the year 1991 as against the quota intended for Scheduled Tribe, if his status as belonging to Scheduled Tribe is established provided there is no legal impediment in doing so.

Subject to the above directions, civil appeals will stand allowed. However, there shall be no order as to costs.

I.A. No. l of 1993 in SLP (C) .6161..of 1993 is-also allowed.

U.R.

Appeal allowed .