Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1802 (RAJ)

THAKRA RAM v. MEDICAL COUNCIL OF INDIA

2017-08-10

NIRMALJIT KAUR

body2017
ORDER : NIRMALJIT KAUR, J. 1. The present writ petition has been filed by the petitioner against the action of the respondent - Medical Council of India which has refused to grant the eligibility certificate required for the purpose of registration as a Medical Practitioner and for pursuing further studies on the ground that the petitioner had not attained the age of 17 years on the date of admission in the Lugansk State Medical University, Ukraine. 2. The petitioner graduated from the Lugansk State Medical University, Ukraine (hereinafter referred as "L.S.M.U.") after completing six years course commencing from 2008 to 2014. Admittedly, the Higher Education in speciality General Medicine Course undertaken by the petitioner is equivalent to the M.B.B.S. Course in India. It is also not disputed that the same is recognized by the Medical Council of India (hereinafter referred as "M.C.I."). However, on return to India after completing his course, the petitioner applied for the examination conducted by the National Board of Examination and participated in the Foreign Medical Screening Test conducted on 29.06.2015. The petitioner was declared successful in the said screening test. Thereafter, the petitioner approached the authorities of the National Board of Examination for issuance of the passing certificate of the FMG Screening Test but vide Letter dated 10.08.2015, he was informed by the authorities of the National Board of Examination that he is first required to get the eligibility certificate issued by the M.C.I. The M.C.I., however, vide their Letter dated 24.09.2009 refused to grant the eligibility certificate for the reason that his age was below 17 years at the time when he joined the course in the L.S.M.U. in the year 2008. Aggrieved, the petitioner has filed the present writ petition challenging the action of the respondents in not granting the eligibility certificate for the purpose of registration as a medical practitioner and for pursuing further studies. 3. Reply has been filed. As per the reply and the contention of Mr. R.S. Saluja, learned counsel for the respondent-M.C.I., the regulations have been framed under the Indian Medical Council Act, 1956 for the candidates who wish to join the foreign medical institutes for the purpose of obtaining the primary medical qualifications. 3. Reply has been filed. As per the reply and the contention of Mr. R.S. Saluja, learned counsel for the respondent-M.C.I., the regulations have been framed under the Indian Medical Council Act, 1956 for the candidates who wish to join the foreign medical institutes for the purpose of obtaining the primary medical qualifications. As per the Regulation 4 of the Eligibility Requirement for Taking Admission in an Undergraduate Medical Course in a Foreign Medical Institution Regulations, 2002 (hereinafter referred as "the Regulations of 2002"), a candidate is required to obtain the eligibility certificate before proceeding to undertake the studies in a foreign country. As per the Regulation 8 of the Regulations of 2002, the Council shall consider the application for eligibility certificate and issue the same only in case, the said eligibility criteria laid down by the Council is fulfilled. Regulation 8 reads as under :- "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 ? (iii) If the candidate belongs to SC/ST/OBC, whether he/she has produced a caste certificate from a Competent Authority ?" 4. As per the Council, the age criteria laid down for a candidate for seeking admission in the medical course is minimum 17 years of age as on 31st December of the year of admission. As per Regulation 4.1 of the Regulations on Graduate Medical Education, 1997, a candidate is required to complete the age of 17 years on or before 31st December of the year of admission to the M.B.B.S. Course. Regulation 4.1 read as under :- "4. Admission to the Medical Course - Eligibility Criteria : No Candidate shall be allowed to be admitted to the Medical Curriculum proper of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until :- (1) He/she shall complete the age of 17 years on or before 31st December of the year of admission to the MBBS Course." 5. Admission to the Medical Course - Eligibility Criteria : No Candidate shall be allowed to be admitted to the Medical Curriculum proper of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until :- (1) He/she shall complete the age of 17 years on or before 31st December of the year of admission to the MBBS Course." 5. Further, the petitioner was required to apply for eligibility certificate before seeking admission in the foreign university, whereas, he had applied for the eligibility certificate after taking admission in the said course. Accordingly, the application of the petitioner was rejected vide Letter dated 24.09.2009 on account of being less than 17 years of age as on 31.12.2008 which was the year of his admission. 6. Learned counsel for the respondent - M.C.I. relied on the judgment rendered by the Apex Court in the case of Sanjeev Gupta & ors. v. U.O.I. & ors. reported in (2005) 1 SCC 45 as well as Yash Ahuja & ors. v. Medical Council of India & ors. reported in (2009) 10 SCC 313 to contend that the Regulations of the Medical Council of India have been duly upheld. Reliance has also been placed on the judgment rendered by the Apex Court in the case of State of Kerala v. T.P. Roshna reported in (1979) SCC 580; M.C.I. v. State of Karnataka reported in (1998) 6 SCC 131 and Dr. Preeti Srivastava v. State of M.P. & ors. reported in (1999) 7 SCC 120 to further drive home the point that the said regulations have been laid down to ensure that when a medical student comes out of a medical college, he is perfect in the science of treatment of human beings and half baked medical professionals coming out of medical colleges cannot be encouraged and also to control the quality of the education received by a medical student from a foreign university. 7. Heard. 8. 7. Heard. 8. Before proceeding, this Court may notice that the petitioner herein has undertaken the medical course of six years commencing from 2008 to 2014 from the L.S.M.U. Ukraine and the said institute as well as course both are duly recognized by the M.C.I. The admission rules of the said University of Ukraine as placed on record by the learned counsel for the petitioner after having been received by him through post lays down the age limitation only to the extent that a candidate seeking admission should be below 20 years of age. The petitioner being eligible in all respect was granted admission in the said University. No doubt, it is admitted that the petitioner erred in not applying for the eligibility certificate in terms of the Regulations of 2002 laid down by the M.C.I. before proceeding to take admission in a foreign university, it was however submitted that as and when the petitioner came to know that he is required to obtain the said eligibility certificate before seeking admission in a foreign university, he immediately applied for the same in the year 2009. Although, the respondents have specifically stated in their reply that the said application seeking eligibility certificate was rejected, the petitioner, however, has filed his additional affidavit stating that the said communication was never received by him. The possibility of the communication not having been received appears to be correct as at that point of time, the petitioner was in Ukraine and there is no rebuttal that the said rejection letter was sent to the petitioner at the place where he was studying i.e. in the Ukraine. This Court may also notice that there is no other objection to the eligibility of the petitioner except the criteria of age. The petitioners' date of birth is 01.06.1992. He was 16 years and 07 months as on 31.12.2008. Hence, he was short by 05 months only. 9. There is no dispute with the judgment rendered by the Division Bench of this Court in the case of Akshanjali Morya v. Union of India & ors. (D.B. Civil Writ Petition No. 57/2013) decided on 09.05.2013 wherein age limit of 17 years was upheld. However, in the present case, as observed above, this Court is dealing with the situation where the petitioner has already successfully completed the course of six years and also cleared the screening test. (D.B. Civil Writ Petition No. 57/2013) decided on 09.05.2013 wherein age limit of 17 years was upheld. However, in the present case, as observed above, this Court is dealing with the situation where the petitioner has already successfully completed the course of six years and also cleared the screening test. The very fact that the petitioner was allowed to undertake the screening test shows that the respondents themselves overlooked the requirement of having the minimum age of 17 years. This Court may refer to the Regulation 9 of the Regulations of 2002 which read as under :- "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 entitle him to provisional/permanent registration by the Medical Council of India or the State Medical Councils." 10. A perusal of the same shows that a candidate is required to undergo the screening test. He can undergo a screening test only in case, he fulfills the conditions prescribed by the Screening Test Regulation 2002 and the permanent registration is granted only in case, he clears the said screening test. The petitioner was duly allowed to undergo the screening test. It is admitted that the petitioner cleared the said screening test. This shows that the respondent themselves overlooked the requirement of 17 years of age as on 31.12.2008. Moreover, the clearing of the screening test also satisfies the very object of issuance of the eligibility certificate before a candidate undertakes to seek admission in a foreign university. As per the judgment rendered in the case of Yash Ahuja & ors. (supra), the regulations were upheld taking into account that the M.C.I. was obliged to stipulate the screening test in the case of all those candidates, who obtained medical qualification from medical institutions outside India in order to ensure that the standard of medical education in some of the countries were at par with the standard of the medical education available in India. The petitioner having successfully cleared the screening test, he has nevertheless cleared the hurdle and proof of the fact that there has been no loss in gain of the knowledge on account of his being less in age. 11. Similarly, the judgment rendered by the Apex Court in the case of Sanjeev Gupta & ors. (supra) too upheld the regulations laid down by the M.C.I. keeping in mind the screening test which was held to be necessary in order to ensure the quality of education received by a candidate from the foreign university. There was no specific discussion with respect to the age. 12. Learned Single Bench of the High Court of Delhi in the case of Jishalakshi Embrandiri v. Medical Council of India and ors. (W.P. (C) No. 18600/2005) & another connected petition decided on 05.04.2006 ordered to the respondent-M.C.I. to grant registration to the petitioner to practice as a doctor even though, the petitioner had not completed 17 years of age and did not fulfill the eligibility criteria for registration by directing the respondents to allow her to be registered subject to her clearing the screening test. While passing the said order, it was observed that "the whole purpose behind the Screening Test is to assess the knowledge and aptitude of the student. To deny such a person the labours of his study in a recognised Medical Institution even if it is outside India, and the fruits of his having cleared the Screening Test, is judicially unpalatable." The petitioner in that case had not yet cleared the screening test. The case of the present petitioner is better. He was allowed to participate in the Screening Test. He has even cleared the same. 13. In yet another case of Sushil Kumar v. Medical Council of India and anr. (W.P. (C) No. 6126/2012) decided on 13.09.2013, learned Single Bench of the High Court of Delhi while directing the authorities to declare the result of the Screening Test observed that it would be too harsh to penalise a candidate for such an inadvertent error on his part of not having obtained the eligibility certificate before taking admission and held in Para 8 of the judgment as under :- "Admittedly no appeal against the above referred decision has been filed by the MCI. In the face of the aforesaid decision, it is not open to the MCI to insist upon the very same contention, which was expressly rejected by this court in the above referred case. Even otherwise, the purpose of Regulation 8 of the said Regulations is to ensure that the person taking admission in a foreign University/Institute is duly qualified for taking admission in MBBS course in India so that the persons who come from non-science fields, i.e., those who have not studied Physics, Chemistry and Biology are not able to obtain medical qualification from other countries who do not insist upon such a requirement and then practice in India. If a candidate who otherwise fulfils the eligibility criteria prescribed for admission to MBBS Course in India, under Graduate Medical Regulations, 1997 commits a mistake and does not seek the eligibility certificate from MCI before taking admission in a foreign university, it would be too harsh to penalise him for such an inadvertent error on his part which, since refusal of the certificate would result in spoiling the whole career of such a student who has studied in a foreign University at considerable cost and expenses." 14. In the present case, the petitioner does not lack the basic requisite qualification for seeking admission in L.S.M.U. The petitioner has successfully completed the course and was not only allowed to undertake the screening test but has also passed the same. Thus, in these circumstances, refusal by the National Board of Examination to issue the passing certificate of the Screening Test or refusing the registration with the Medical Council of India on the ground that he did not obtain eligibility certificate before seeking admission in the foreign university would be highly unjust, unfair and harsh. The petitioner has spent huge amount of money and almost six years of the important part of his life to undertake the said course which he has completed successfully. Accordingly, the case of the petitioner for issuance of the passing certificate of the screening test cannot be rejected on the ground that he had not attained the age of 17 years in the year of admission or that he did not obtain the eligibility certificate before seeking admission in the foreign university. 15. In view of the above, the present writ petition is allowed. 15. In view of the above, the present writ petition is allowed. The respondent No. 2-National Board of Examination is directed to issue passing certificate of FMG Screening Test, 2015 to the petitioner without insisting upon the eligibility certificate to enable him further to seek registration as a medical practitioner. The Registering Authority too shall not deny the registration on the ground that he did not acquire the eligibility Certificate before seeking admission in a foreign university. The entire exercise be completed within one month.