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2023 DIGILAW 129 (JK)

Abdul Rouf Bhat v. State of J&K

2023-04-04

M.A.CHOWDHARY

body2023
JUDGMENT : 1. The petitioners, aggrieved of inaction on the part of the respondents in not enrolling and registering them as Medical Practitioners/Doctors, filed the above titled Writ Petitions, seeking inter-alia writs of mandamus directing the respondents to declare the result of the petitioners of the FMGE Screening Test and writs of mandamus directing respondent-Medical Council of India to issue Eligibility Certificate and enroll the petitioners as Medical Practitioners/Doctors and grant registration as Medical Practitioners/Doctors as same shall be in the interest of justice. 2. During the course of pendency of the above titled petitions, this Court directed the respondents to produce the result of the Screening Test of the petitioners. In compliance thereto the result was produced in a sealed cover, which on opening was found that both the petitioners have made the grade. With this, the grievance of the petitioners that the respondents are not declaring their result of the Screening Test, is redressed. Now, the only relief of the petitioners required to be addressed is seeking directions, to issue Eligibility Certificates in favour of the petitioners and to enroll and register them as Medical Practitioners/Doctors and grant registration as Medical Practitioner/Doctor. 3. Petitioners after passing of 12th Class Examination in order to proceed to Kazakhstan for further studies in the year 2002, applied for Immigration seal on Passports for undergoing MBBS Course in Kazakhstan. The concerned department was allowing the students to go for MBBS Course to outside countries up to March 2003, but after March 2003 the Immigration Department stopped to give clearance to such students when they were asked to do so by the Medical Council of India in terms of a notification issued in March 2002, vide which a candidate was required to obtain Eligibility Certificate from MCI for admission to MBBS course outside country and after returning therefrom, such candidate was to appear and qualify in a Screening Test for getting registered as a Medical Practitioner in India. 4. The Petitioners after getting permission from Immigration Department for undergoing MBBS Course in Kazakhstan applied in the Kazakh National Medical University for grant of admission in MBBS in September 2002. The said University which is recognized by Medical Council of India had not received any information from the Government of India for imposing restrictions on admissions in MBBS Course so far as Indian citizens were concerned. The said University which is recognized by Medical Council of India had not received any information from the Government of India for imposing restrictions on admissions in MBBS Course so far as Indian citizens were concerned. The said University admitted the petitioners after conducting the examination and under the Rules of the said University the petitioners were required to pass Preparatory Course which they did and passed the same successfully. It is submitted that the candidates in Kazakhstan are being allowed to get admitted in MBBS after passing 10th Class Examination only and they are required to pass such Preparatory Course before seeking admission in MBBS course. Therefore, the said course is practically equal to the 12th Class Examination of Indian Education System. After passing the said course the petitioners were admitted to MBBS Course in the said University. The petitioners completed the said course in the year 2009 by doing specialization in General Medicine. It is further submitted and clarified that petitioners were admitted in Preparatory course in 2002 and were admitted to MBBS 1st year in 2003 and completed the same in 2009. The petitioners successfully passed all the examinations in first attempt without giving any supplementary examination, which is evident from the certificates, enclosed with the petitions. 5. The Certificates of admission show that the petitioners were admitted to preparatory course on 26.09.2002, which is being undergone in continuation for doing MBBS Course. Therefore, the Immigration Department gave clearance to the petitioners before September 2002, and they had before that qualified 12th Class examination with 49.33% and 49% marks respectively less by 1% a fraction to 50%. 6. The Medical Council of India had issued a notification where-under the students interested to undergo MBBS Course in any foreign country were required to obtain eligibility certificate from Medical Council of India which was required to be produced before the University concerned, where admission was to be obtained. The said notification though enforced in March 2002 was not acted upon and implemented by the Immigration Department and the Foreign Universities recognized by Medical Council of India in March 2003 onwards untill 2008, as same is evident from the press note issued by the MCI on 8th Oct. The said notification though enforced in March 2002 was not acted upon and implemented by the Immigration Department and the Foreign Universities recognized by Medical Council of India in March 2003 onwards untill 2008, as same is evident from the press note issued by the MCI on 8th Oct. 2008 which clearly shows and affirms the contention of the petitioners that the said notification was not implemented till 2008 and henceforth from 2008 the said notification is implemented in letter and spirit. After March 2003 onwards neither Immigration Department used to grant permission to the students nor the foreign recognized Universities admitted the students in absence of eligibility certificate from Medical Council of India. But up-to March 2003 neither the Immigration Department nor the foreign Universities sought presentation of the eligibility certificate of Medical Council of India from any student. Hence a number of students went outside the country for undergoing MBBS Course without obtaining Eligibility Certificates from Medical Council of India. The petitioners are similarly situated and they also went to Kazakhstan in September 2002 and the University concerned admitted them for the MBBS Course without producing eligibility certificate from Medical Council of India. Though petitioners filed applications to the Medical Council of India for issuing Eligibility Certificates in their favour but the Medical Council of India kept the said application pending without deciding the same. The notification dated 13th Feb. 2002 issued by the Medical Council of India under Section 33 of Indian Medical Council Act commonly known as Undergraduate Medical course in foreign Medical Institution Regulations 2002 was, in-fact, a regulation which was not mandatory in nature as same even up to 2008 was not implemented in letter and spirit by the MCI which is evident from the press note issued by the MCI in the year 2008. 7. As per the said notification it is provided that all students intending to undergo MBBS Course in foreign Medical Institutions after 15.03.2002 shall approach the Council for issuance of eligibility certificate by filing application in the proforma prescribed by the Council. 7. As per the said notification it is provided that all students intending to undergo MBBS Course in foreign Medical Institutions after 15.03.2002 shall approach the Council for issuance of eligibility certificate by filing application in the proforma prescribed by the Council. The Council after receiving application had to consider the same by verifying age, eligibility criteria for admission to MBBS course in India in terms of Graduate Medical Education Regulations 1997, i.e. minimum qualifying marks criteria and thereafter issue the certificate to the candidate concerned in the prescribed format while verifying the eligibility if the candidates to have passed any examination which in scope and standard is found to be equivalent to the intermediate Science Examination of an Indian University, the Medical Council of India was required to issue eligibility certificate. Under Clause-5 of the said notification the selection of students has to be made solely on the merit of the candidate after qualifying examination conducted by examining body. Under the said notification in case of admission on the basis of competitive entrance examination a candidate must have passed 12th class exam with 50% marks but in case of candidates belonging to reserve categories the requirement is 40% marks instead of 50% marks. It is provided under the said notification that candidate shall not be selected for admission to MBBS Course until he/she fulfills the eligibility criteria. Hence in short the candidates who have got admission in foreign Universities after March 2002 without obtaining eligibility certificate from Medical Council of India are not being permitted to sit in the Screening Test which is conducted by the Medical Council of India for registering such students for practice. 8. I have heard learned counsel for the parties and considered the arguments and the material available on file. 9. It is the submission of learned counsel for the petitioners that the respondents are under legal obligation to register and enroll the petitioners as Medical Practitioners in UT of J&K irrespective of having eligibility certificate or having 50% marks in 10+2. Further, it is argued that after completing the studies, a person cannot be deprived of such studies on the basis of a mere technicality of having 1% or its fraction less mark in the middle of such studies. Further, it is argued that after completing the studies, a person cannot be deprived of such studies on the basis of a mere technicality of having 1% or its fraction less mark in the middle of such studies. In fact the object of Medical Council of India Act and the allied Acts is to allow competent and qualified doctors to practice as registered Medical Practitioners. 10. Learned counsel for the petitioners, during the course of arguments, referred to the judgment of the Hon’ble Supreme Court rendered in a case titled Medical Council of India Vs. Indian Doctors From Russia Welfare Association & Ors. reported as AIR 2002 SC 1565 , where-under certain guidelines were framed for the students who had undergone the MBBS course in the Universities of any foreign countries and the learned counsel seeks disposal of the instant petitions in tune with the said judgment. 11. Learned counsel for respondents, on the other hand resisted the instant petitions, reiterating their stand that in order to be eligible for undertaking undergraduate medical course, a candidate must have 10+2 degree in Physics, Chemistry and Biology with 50% aggregate marks. They further submit that as the minimum admission norms fixed by Medical Council of India are admittedly not fulfilled by the petitioners so they are not entitled to grant of registration under law. Learned counsel also stated that MCI is a statutory authority created and constituted under an Act of Parliament namely the India Medical Council Act, 1956 with the objective, inter alia, to regulate medical education in the country and to formulate regulations and guidelines with regard to standard and conduct of medical education in India. It is stated that as per the provisions of the Eligibility Certificate Regulations 2002, primary medical qualification means a medical qualification awarded by any medical institution outside India which is recognized qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated and which is equivalent to MBBS in India. It is stated that as per the provisions of the Eligibility Certificate Regulations 2002, primary medical qualification means a medical qualification awarded by any medical institution outside India which is recognized qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated and which is equivalent to MBBS in India. Furthermore, the Eligibility Certificate Regulations 2002, inter-alia, provides that the Council shall be free to investigate on its own into the correctness of information furnished by a candidate and in the event of any information furnished by a candidate being incorrect or false during such investigation or at any subsequent state, the Council may refuse to issue the eligibility certificate or if already issued may cancel the same and the candidates shall stand debarred from appearing in the screening test prescribed in Sub Section 4A of Section 13 of the Indian Medical Council Act 1956 without any notice. 12. Learned counsel for the petitioners, in rebuttal submitted that since now, in terms of the amendment on 09.07.2013 in Rules , there is no requirement of having 50% marks in 10+2 for granting eligibility certificate, therefore, this objection raised by the respondents, is also unsustainable. 13. In a judgment rendered in Dr. Prashanta Padmanbha Amin Vs. R.N. Sheetal Wad reported as 130(2006) DLT 410, Delhi High Court had directed the MCI to register the petitioner therein as Medical Practitioner despite having less than 50% marks in 10+2 class. Similar view was taken by the same High Court, in the judgment titled Naveen Sharma (Dr.) Vs. Medical Council of India & Anr. decided on 20.12.2007. 14. Our own High Court has also dealt with a similar issue and has passed a judgment in a case titled Syed Bilal Ahmad Rizvi Vs. Union of India & Ors. reported as 2011 0 Supreme (J&K) 545, wherein a co-ordinate Bench, while directing the MCI to consider the claim of the petitioner therein for grant of provisional registration, made the following observations:- “Denial of provisional registration to the petitioner on the ground that he lacked minimum admission norms as fixed by the MCI is illegal and also in violation of the judgment of the Hon’ble Supreme Court. The law laid down by the Apex Court binds all in terms of Article 141 of the Constitution of India.” 15. The law laid down by the Apex Court binds all in terms of Article 141 of the Constitution of India.” 15. In the case on hand, the petitioners in the year 2002 have proceeded to Kazakhstan for undergoing MBBS course in the Kazak National University. No-doubt from March 2002, candidates were required to obtain eligibility certificate from Medical Council of India for undergoing MBBS course in any foreign country, however till the year 2008, the said notification was not implemented as is evident from the press note issued by MCI on 09.10.2008. The petitioners herein have also undergone preparatory course of one year in Kazakhstan and have qualified the same successfully, which course is equivalent to 10+2 standard of the Indian Education System. On their return to homeland after completing the MBBS course in the year 2009, the petitioners had undergone the Screening Test conducted by the Medical Board of India and qualified the same successfully. 16. This Court, after going through the case file, considering the arguments of learned counsel for the parties and the material available on record, comes to the conclusion that after successfully completing the MBBS course and making the grade in the Screening test by the petitioners, it is now immaterial and irrelevant to say that the petitioners have got marks less by 1% or fraction thereof, as required in 10+2 examination. 17. Hon’ble Apex Court in a case titled Shri Krishan v. Kurukshetra University, Kurukshetra reported as AIR 1976 SC 376 , held that:- “Once the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear and when the University authorities acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the Examination, then by force of the University Statute, the University had no power to withdraw the candidature of the candidate.” 18. In the case of Motital Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh reported as AIR 1879 SC 621, the Apex Court held: “Moreover, it must be remembered that there is no presumption that every person knows the law. In the case of Motital Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh reported as AIR 1879 SC 621, the Apex Court held: “Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that every one is presumed to know the law, but that is not a correct statement; there is no such maxim known to the law. Over a hundred and thirty years ago, Maule J., pointed out in Martindale v. Falkner (1946) 2 CB 706. "There is no presumption in this country that every person knows the law; it would be contry common sense and reason if it were so." Scrutton, L.J., also once said. "It is impossible to know all the statutory law, and not very possible to know all the common law." But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans v. Bartlam 1973 SC 473" ...the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse a maxim of very different scope and application.” 19. Hon’ble Patna High Court in the case Punam Kumari v. Lalit Narain Mithila University and Ors. reported as 1993 (1) PUR, 609 had taken a similar view and held that if the student acts on the representation of the authorities of the College, then unless the violation is of a nature which cannot be ignored, the career of the innocent student should not be put in hazard. 20. Hon’ble Patna High Court again in a case titled Manju umari @ Manju Devi @ Smt. Manju Vs. State of Bihar & Ors. (2002 Legal Eagle (PAT) 33, while relying upon the afore-stated law laid down by the Apex Court held that it is fallacious to presume that every person knows the law. 21. The Madras High Court in a case bearing W.P. No. 27709/2018 and WMP No. 3224/2018 titled D. Sasirekha Vs. The Assistant Secretary Medical Council of India, decided on 13.03.2020, involving a similar question with regard to eligibility required by the Medical Council of India, while directing the respondents therein to issue eligibility certificate to the petitioner therein held that :- “14. The Assistant Secretary Medical Council of India, decided on 13.03.2020, involving a similar question with regard to eligibility required by the Medical Council of India, while directing the respondents therein to issue eligibility certificate to the petitioner therein held that :- “14. In the result, the impugned letter of the respondent dated 06.04.2016 is hereby quashed and there shall be a direction to the respondent to issue the eligibility certificate to the petitioner within a period of three(3) weeks from the date of receipt of copy of this order to enable the petitioner to register herself with the Medical Council of India. 15. It is also brought to the notice of this Court that the petitioner had also written the Screening Test conducted by the National Board of Examination and the result has been withheld due to the non production of the eligibility certificate. It is open to the petitioner to produce the eligibility certificate as and when the certificate is issued by the Medical Council of India and thereafter, the result shall be published.” 22. The admitted fact is that the petitioners have spent their valuable time of their youth, money and energy in pursuing the MBBS course and in preparation and appearing in the examination but the delay on the part of the concerned authorities to take decision has led to a situation which has put them to immense disadvantage and would ruin their future career in life, if their successful courses of MBBS are allowed to be wasted. 23. To take cognizance of the entire facts and circumstances of the case and to pass appropriate orders for complete and substantial justice, the High Court can exercise its jurisdiction under the Constitution of India and this jurisdiction of High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. In this regard Division Bench of Hon’ble Patna High Court in a case titled Mukesh Kumar Singh and Ors. Vs. State of Bihar and Ors, reported as 1999 Legal Eagle (PAT) 201, has observed as under:- “10. It is well settled that High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders for complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. It is well settled that High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders for complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. The appellants spent valuable time, money and energy in prosecuting the study and in preparation and appearing at the examination. The delay on the part of the concerned authorities to take decision as discussed above has led to a situation which has put the appellants to immense disadvantage and by now they have lost some valuable years of their academic career and their future prospect in life would be ruined if the belated order of cancellation of their admission is allowed to stand. In the back ground of the facts and circumstances stated above, equity demands that the order of cancellation of admission of the appellants passed by respondent No.3 (office order dated 28.7.1995/Annexure 6) after lapse of about three years be quashed. Hence, for the ends of justice, it is accordingly quashed.” 24. Having regard to the petitioners getting admission in MBBS course at Kazakh University in Kazakhastan on being permitted by the Government of India in the year 2002, in which year Eligibility Rules also were issued by respondent- Medical Council of India (MCI) which were not enforced strictly till the year 2008, when the petitioners were in advanced years of their completion of course, which they qualified in the year 2009, and the petitioners also having qualified the Screening Test conducted by the National Board of Examination for registration as Medical Practitioners, on the basis of the afore-stated law laid down by the courts and particularly on the basis of equity, succeed in their petitions. 25. For the foregoing reasons and the law laid down on the subject, both the petitions are allowed with a direction to the respondents more particularly, the Medical Council of India, now ‘National Medical Commission’ (NMC) to issue Eligibility Certificates in favour of the petitioners and resultantly enroll them and grant them registration as Medical Practitioners/Doctors, in terms of the rules governing the field, preferably within a period of four weeks, from the date copy of this order is served upon the respondents. 26. 26. Both the petitions are disposed of accordingly, along-with all pending application(s) if any. Copies of the judgment be placed across both the files.