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2012 DIGILAW 36 (JK)

Medical Council of India v. Shanaz Dar

2012-02-04

HASNAIN MASSODI, MANSOOR AHMAD MIR

body2012
Per Mansoor, J.;— 1. Learned Writ court vide judgment and order dated 16th of September, 2009 decided two writ petitions bearing OWP No. 836/2007 titled Dr. Shanaz v. State and others. 2. Feeling aggrieved, appellants have questioned the same by virtue of two appeals. 3. Being the produce of single judgment and order, we prefer to dispose of both the appeals by a common judgment. 4. To appreciate the controversy to be just or otherwise, the history of the case needs to be unfolded. Writ petitioner after qualifying Higher Secondary Part 2nd examination in 1993 got admission to pursue MBBS course in Russia and completed it successfully in the year 2002-Annexure B. Thereafter he applied to the writ respondents for accord of registration in terms of Section 225 (2) of the Indian Medical Council of India Act, for obtaining provisional registration certificate so that he is able to undergo compulsory internship course, was issued vide No. SS/115-32/MC dated 9th of March, 2006 and successfully completed the internship in Shri Mahraja Hari Singh Hospital, hereinafter fort short a,s SMHS. In the year 2007 he received a communication bearing No. 203(1581)(2192)/ST-2005-Regn/880 dated 26th of July, 2007 to the effect that his provisional admission has been cancelled. The inaction of the respondents constrained the petitioner-appellant to question the same by the medium of writ petition OWP 836/2007. Respondents filed reply. Respondent No. 4 J&K Board of School Education has stated in the reply that Medical Council of India has sent a communication for verification of the marks certificate. And after perusal of the record it was found to be fake and accordingly information was given to the appellant. It was further stated that matter was referred to Crime Branch but who refused to register FIR and advised the BOSE to ask Medical Council of India to lodge FIR before the concerned Police Station. However, the Board clarified that writ petitioner has passed Hr. Secondary Part 2nd examination under Roll No. 810302 securing 282/600 and not 337/600. Appellant also filed reply and stated that provisional certificate was issued in favour of the petitioner on the basis of 10+2 certificate, but was cancelled after receiving verification report from the Board. However, the Board clarified that writ petitioner has passed Hr. Secondary Part 2nd examination under Roll No. 810302 securing 282/600 and not 337/600. Appellant also filed reply and stated that provisional certificate was issued in favour of the petitioner on the basis of 10+2 certificate, but was cancelled after receiving verification report from the Board. During the pendency of the writ petition, petitioner filed another writ petition OWP No. 172/2008 with the prayer that writ respondents be commanded to accord permanent registration to the petitioner under Section 13 (3) of Indian Medical Council Act. It was also prayed that respondent No. 3 and 4 be also directed to accord registration to the petitioner and State as well. The writ petition was resisted by the respondents on the same set of grounds as were urged in opposition to earlier writ petition. The learned Writ Court after hearing the case allowed the writ petitions and directed the respondents to consider the claim of the petitioner for grant of permanent registration in terms of Section 13(3) of the Indian Medical Council Act. 5. Heard. Considered. 6. Admittedly petitioner had qualified Hr. Secondary Part 2 examination in 1993 and completed the MBBS course in 2002, was granted provisional registration certificate and thereafter had applied for grant of permanent registration in terms of Section 13 (3) of the Indian Medical Council Act. He has also completed internship successfully. 7. It is also admitted that the provisional registration came to be cancelled at the back of the writ petitioner on the basis of verification report submitted by BOSE. In this behalf the petitioner was neither heard by BOSE nor by the Medical Council of India. 8. It has also gone undisputed that the certificate was not fake but the factum of having secured 337 marks as was projected by the petitioner instead of 280 is something that was disputed. 9. Now what is required to be seen is whether this can be a ground for cancelling the registration certificate and whether the petitioner was eligible, for securing admission in Russia to pursue MBBS course, even when the marks actually obtained by him in Hr. Sec. Part 2nd examination viz. 280 is taken to be exact? 10. Mr. Mushtaq frankly conceded that he has produced the fake certificate but he was eligible otherwise also. 11. Sec. Part 2nd examination viz. 280 is taken to be exact? 10. Mr. Mushtaq frankly conceded that he has produced the fake certificate but he was eligible otherwise also. 11. While making communications neither the Board Authorities nor the appellant had taken these factors into consideration. Had they heard the petitioner, may be the conclusion would also have been dissimilar. 12. We believe that after having completed one and a half year of MBBS course, cancelling the registration itself would be too harsh. The learned writ court after having taken into consideration all these factors, the ratio laid down by the judgment passed by the Apex Court in case titled Medical Council of India v. Indian Doctors From Russia Welfare Associations and others reported as 2002 (3) SCC 696 , allowed the writ petition, quashed the communications and also directed to consider the case of the petitioner. It is apt to reproduce the operative part of the judgment herein:- "Communication/ order impugned in OWP No. 836/07 is quashed. Respondent No. 1 is directed to consider the claim of the petitioner for grant of permanent registration in terms of Section 13 (32) of Govt. Medical Council. The respondent No. 1 before passing any order in this behalf should afford opportunity of hearing to the petitioner and thereafter pass appropriate orders in accordance with the law. It is made clear that issuance of direction for consideration would not mean that respondent no.l has to issue permanent registration certificate. Respondent No. 1 is required to satisfy itself about the statutory requirements and the eligibility of the petitioner and thereafter should pass the appropriate order " 13. In the given circumstances, we are of the considered view that learned writ court has not fallen in error while passing the judgment. 14. Accordingly the appeals are dismissed and impugned judgment is upheld.