Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 824 (JK)

Mashooq Ali Sofi v. State of J&K

2017-09-08

M.K.HANJURA

body2017
JUDGMENT M.K. Hanjura, J. 1. By the medium of this writ petition, the petitioner has craved the indulgence of this Court in quashing the communication No. MCI-203 (gen) 2015-Regn/129352, dated 25-08-2015 issued by respondent No. 3-Medical Council of India (MCI), holding that no registration can be granted in favour of the petitioner and no recommendation can be made in this behalf as, on verification by the J & K State Board of School Education, the 10+2 marks card of the petitioner has been found to be fake and forged. Learned counsel for the petitioner has submitted that the petitioner got admitted in Dagestan State Medical Academy (Russian Federation) and completed the degree of MBBS in the year 2000. It is further submitted that after the completion of the said degree, the petitioner applied for the requisite registration before the respondent No. 3-Medical Council of India, who, on screening the degree, marks card and other allied documents, accorded a provisional registration in his favour on 12-2-2001 for a period of 12 months. Learned counsel has proceeded to state that after successfully completing his Internship training of one year from Govt. Medical College, Srinagar, the petitioner became eligible for the grant of permanent registration by the respondent-MCI in terms of Section 23 of the Indian Medical Council Act, 1956. It is contended that when the petitioner approached the said respondent for the grant of the permanent registration, he was informed, much to his dismay, that the provisional registration certificate, issued in his favour earlier, has been cancelled on account of his (petitioner's) having allegedly furnished a forged marks card of 10+2 examination. Learned counsel has further submitted that the petitioner was also informed that an FIR bearing No. 173 for offences u/s. 420, 468, 471 IPC, has been registered against him at police Station IP Estates Delhi. It has been pleaded further that the petitioner had no actual role in securing the admission in the aforesaid College of Dagestan, Russia, which was arranged and offered by the Consultant Agency, run and operated at Chadura, Badgam. Learned counsel has contended that after facing the trial, although the petitioner was discharged of the allegation by the Ld. Metropolitan Magistrate, Tees Hazari, Delhi vide order dated 03-10-2007, yet the said Court referred the matter back to the Investigating Officer for further investigation. Learned counsel has contended that after facing the trial, although the petitioner was discharged of the allegation by the Ld. Metropolitan Magistrate, Tees Hazari, Delhi vide order dated 03-10-2007, yet the said Court referred the matter back to the Investigating Officer for further investigation. After his discharge in the aforesaid case, the petitioner, on 4-03-2008, applied to the respondent-MCI, for the grant of permanent registration but he was informed that it is still pending for the reason that the criminal case filed against him has not attained finality as yet. He was further informed that under the circumstances, he has no option but to wait till such time that the investigation of the case is complete. Learned counsel has further submitted that finally on 31-01-2014 the Court of learned Metropolitan Magistrate, Delhi, held that since there is no breakthrough in the case, therefore, the same is closed as "untraced". Learned counsel has proceeded to state that by dint of communication dated 25-08-2015, the claim of the petitioner for the grant of permanent registration was again turned down by the respondent-MCI, on the ground that the J & K State Board of School Education has reported, on verification, that the 10+2 marks sheet furnished by him has been found to be fake and forged. Learned counsel further submitted that the petitioner, besides applying for the issuance of permanent registration before the respondent MCI, also applied to respondent No. 2-the State Medical Council, as the power of granting the registration vests with the State Medical Council. In this behalf, the representation filed by the petitioner before the said respondent was acknowledged but the same was not decided and instead it was verbally conveyed to him that the registration is to be accorded by the MCI, after proper verification. 2. At the end, the learned counsel has stated that the petitioner, having been declined permanent registration in terms of the impugned communication dated 25-08-2015 on the premise that the provisional registration was granted to him by the respondent-MCI, after submitting a fake and forged 10+2 marks card, which allegation has been found to be baseless by the competent Court of jurisdiction, after the petitioner was subjected to trial, the impugned communication is misconceived and is, therefore, liable to be quashed. 3. 3. Learned counsel for the respondents has submitted that the State Board of School Education has declared the 10+2 marks certificate of the petitioner as fake/forged. The petitioner has played fraud with the respondents at the very threshold of his career by trying to mislead the authorities in obtaining the registration. Learned counsel has further stated that the complete structure of the career of the petitioner as a medical practitioner is based on a forged document and this, by itself, clearly disentitles him from getting a permanent registration of the MBBS degree. Learned counsel has further submitted that an aspirant, who is trying to enter into the noble profession of scientific medicine on the basis of fake/forged credentials, should be subjected to exemplary punishment by the concerned authorities. 4. Heard and considered. 5. The main plank of the argument of the learned counsel for the respondents revolves on the plea that the petitioner submitted an application seeking the provisional registration on the basis of a fake and forged 10+2 marks card, declared as such, by the concerned State Board of School Education. The petitioner has, therefore, at the very inception of his career employed deceit and played fraud with the respondent-MCI, which disqualifies him from claiming registration to function as a registered medical practitioner and that the respondent-MCI, was within its jurisdiction to refuse the registration. A case, as stated herein before, was also registered against the petitioner by the respondent-MCI. It was investigated into by the police authorities. They laid a report before the Metropolitan Magistrate, Delhi, who, vide his order dated 31-10-2007, passed in it, held as follows: "From all these case laws, it is very much clear that the court has to find sufficient material/evidence to proceed with the trial. In the present case prosecution has not produced any evidence to connect the accused with the act of filing application before MCI with forged mark sheet. It has not bothered to collect other evidence after receipt of CFSL report to see whether the application was actually filled up by the accused or was submitted by the accused in MCI. Mere on the ground of presumptions that accused was the only beneficiary, criminal liability cannot be imputed upon the accused. Therefore, I am of the considered opinion that accused is entitled for discharge. Matter is referred back to SHO for further investigation. Mere on the ground of presumptions that accused was the only beneficiary, criminal liability cannot be imputed upon the accused. Therefore, I am of the considered opinion that accused is entitled for discharge. Matter is referred back to SHO for further investigation. File be consigned to record room." 6. By a subsequent order dated 31-01-2014, the MM/06/C/Delhi, directed as under: "Vide order dated 3-10-2007, passed by Ld. Predecessor of this Court. Mashooq Ali Sofi has been discharged. Further investigation conducted does not reveal any material against him. The two suspects Ashwini and Raj Kumar have been subjected to polygraph test and their handwritings were sent for examination with questioned one but nothing incriminating is opined by expert. Hence, the material is insufficient to summon any of two suspects. Information of offence was received in PS in 2002. Till time there is no breakthrough in the case. Accordingly, the report is accepted as untraced with the direction to SHO/IQ concerned to further investigate in the case as soon as any clue as to the offender is found. File be sent back to the PS against the acknowledgement. Ahlmad is directed to retain order sheets and the copy of chargesheet along with statements of witnesses recorded u/s. 161 Cr. PC for Court record. Thereafter file be consigned to record room. Copy of this order be sent to SHO." 7. What comes to the fore from perusal of the above two orders is that the case was closed as untraced because the material, gathered during the investigation of the case, did not, prima facie, convince the Court that the accused/petitioner should be put to trial and, accordingly, ordered his discharge. The two orders above are also a sequel to the fact that the case was finally closed as untraced. The respondent-MCI, has built its case on the edifice that it was the petitioner, who forged the certificate, which, in turn, is belied by the orders cited above. 8. The respondent-MCI, has stated that the 10+2 marks card, submitted by the petitioner revealed that he had secured 307 marks out of 600 marks, although, as a matter of fact, he had obtained only 298 marks. 8. The respondent-MCI, has stated that the 10+2 marks card, submitted by the petitioner revealed that he had secured 307 marks out of 600 marks, although, as a matter of fact, he had obtained only 298 marks. It has been stated further that a candidate, aspiring for getting admission to a primary medical course, is obliged not only to qualify his/her Senior Secondary (10+2) examination with Physics, Chemistry, Biology & English subjects but he/she should also obtain a minimum of 50% marks in Physics, Chemistry & Biology subjects taken together and having passed the English as one of the compulsory subjects as per the provisions of the Regulations on the Graduate Medical Education 1997. It is also stated that the petitioner forged the 10+2 marks card so that the respondent-MCI, labors under the belief that he has obtained 50% marks in the aforesaid subjects, although, he had secured only 298 marks in 10+2 examination. This argument of the learned counsel for the respondents appears to be a spurious one when tested on the touchstone of Regulation (5), running under the Head-Procedure for Selection to MBBS Course, buttressed with the fact that the petitioner is a resident of the backward area as is evident from the perusal of annexure-J attached to his petition. The Regulation (5) supra reads as under: "i. In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in physics, Chemistry and biology taken together in qualifying examination be 40% instead of 50% as above. ii. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in physics, Chemistry and biology taken together in qualifying examination be 40% instead of 50% as above. ii. In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry & Biology at the qualifying examination as mentioned in clause (2) of Regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry & Biology taken together in the competitive examination in respect of candidates belonging to Schedule Castes, Schedule Tribes or Other Backward Classes the marks obtained in Physics, Chemistry & Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above. Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course he shall not be admitted to that course until he fulfills the eligibility criteria under regulation 4." 9. On the analogy of the Regulation cited above, the petitioner was not to be scaled in the category of the persons, who were obliged to secure 50% marks in the qualifying examination but his case had to be tested on other parameters. He was obliged to secure 40% marks only instead of 50% for being a resident of the Backward Area. Therefore, the argument that the petitioner forged the document in order to make the respondent-MCI, believe that he secured 50% marks in the 10+2 examination, pales into insignificance. He would, in no way, get benefited by the act of forgery. Therefore, there is an innate defect in the hypothesis that the petitioner committed forgery for securing undue gains and to cap it all, there is no evidence to suggest that he was the one who had forged the marks card, as the Court of Metropolitan Magistrate, Delhi, has given him a clean chit. 10. Therefore, there is an innate defect in the hypothesis that the petitioner committed forgery for securing undue gains and to cap it all, there is no evidence to suggest that he was the one who had forged the marks card, as the Court of Metropolitan Magistrate, Delhi, has given him a clean chit. 10. Another aspect of the case, which cannot be lost sight of is whether the 10+2 marks card had any bearing or nexus in the matter of the registration of the petitioner as a medical practitioner. The answer to this question is provided in the law laid down in AIR 1996 SC 2073 , paragraph (4) of which assumes significance in the context of the decision of this petition. It is reproduced below verbatim et literatim: "4. It would thus be clear that the basis qualification of M.B.B.S. as primary qualification is pre-condition for a candidate for being registered in the State Medical Register maintained by the State Board. The second respondent does not have the basic qualification, his M. Sc (Bio-Chemistry) cannot be considered to be basic qualification for practicing as a Medical Practitioner. The High Court has thus committed obvious error in allowing the writ petition and directing the appellant to register him as a Medical Practitioner." 11. Applying the ration of the law laid down above to the facts of the instant, the condition precedent for the registration of a medical practitioner is that he/she should be holding the basic qualification of M.B.B.S., which is a prime requisite. The case set up by the respondent-MCI, is that the petitioner produced a fake/forged 10+2 marks card before it and it is nowhere stated that he was not holding the basic qualification of M.B.B.S., which is a primary qualification for the registration of a medical practitioner. 12. Looking at the case of the petitioner from another perspective, the authorities of the J & K Board of School Education did not issue any notice to the petitioner before sending the Verification Report to the respondent-MCI. The respondent No. 3-MCI, also followed the suit and did not issue any Show Cause Notice to the petitioner before putting explicit reliance on the verification report of the J & K Board of School Education before cancelling the provisional registration certificate of the petitioner. The respondent-MCI, has thus, violated the principles of natural justice with impunity. 13. The respondent No. 3-MCI, also followed the suit and did not issue any Show Cause Notice to the petitioner before putting explicit reliance on the verification report of the J & K Board of School Education before cancelling the provisional registration certificate of the petitioner. The respondent-MCI, has thus, violated the principles of natural justice with impunity. 13. The work of the Courts is, primarily, to administer law and dispense justice. We must, however, not forget that justice is above law and any law, which is to be administered, has to be administered on the basic principles of natural justice. Says Voltaire "The sentiment of justice is so natural and so universally acquired by all mankind, that it seems to be independent of all law, all party, all religion." What Jeremy Taylor added to that is that "No obligation to justice does coerce a man to be cruel or to use the sharpest sentence. A just man does justice to every man and to everything and he also knows that there is a debt of mercy and compassion that has to be paid. Justice should be manifest in conduct and justice is fairness in the way that people are treated." 14. The principles of natural justice is embedded in Article 14 of the Constitution of India. It is quite opposite to arbitrariness. In violating the principles of natural justice, the respondents have observed the constitutional rights guaranteed to a citizen, under Article 14 of the Constitution of India, in breach. The law is that the requirement of natural justice is applicable not only to the judicial or quasi judicial orders but also to the administrative orders, affecting, prejudicially, the party in question, unless it is expressly excluded by a law, which is otherwise valid. Had the respondent-MCI, followed the principles of natural justice and asked the petitioner to file his reply, may be that he (respondent-MCI), a statutory authority, after applying its mind to the facts and circumstances of the case, might have arrived at a different conclusion. The impugned action of the respondent No. 3-MCI, under the facts and circumstance of the case is not in tranquility with law but is an arbitrary one. The fate of a budding youth, made to run from the pillar to the post, has been kept hanging like that of a Trishunka'. The impugned action of the respondent No. 3-MCI, under the facts and circumstance of the case is not in tranquility with law but is an arbitrary one. The fate of a budding youth, made to run from the pillar to the post, has been kept hanging like that of a Trishunka'. Failure to observe the principles of natural justice goes to the root of the case. A semblance of fairness cannot, therefore, be attached to the impugned action of the respondent No. 3-Medical Council of India, which is, accordingly, declared to be illegal and arbitrary. 15. Viewed in the context of what has been said and done above, the communication/order, bearing No. MCI-203 (Gen) 2015-Regn/129352, dated 25-08-2015, issued by respondent No. 3-Medical Council of India, (annexure-H), impugned in this petition, is quashed. The respondent No. 3 is directed to consider the claim of the petitioner for grant of Permanent Registration Certificate in terms of Section 23 of the Indian Medical council Act, 1956. Before passing any order, the respondents No. 3 shall afford an opportunity of being heard to the petitioner. It is made clear that the issuance of the direction for the consideration of the case of the petitioner should not be construed to be that the respondent No. 3 is obliged to issue the Permanent Registration Certificate to the petitioner. The respondent No. 3 shall satisfy itself about the statutory requirements and the eligibility of the petitioner, whereafter it shall pass appropriate orders in accordance with the law. Writ petition is, accordingly, disposed of along with connected IAs.