* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 133/2009 and WP(C) No.7768/2009
& CM No. 4431/2009
SARAT CHANDRA BOSE PATSAMATLA ..... Appellant
Through: Mr. Vikram Singh, Advocate.
Versus
NATIONAL BOARD OF EXAMINATION ..... Respondent
Through: Mr. Rakesh Gosain, Advocate for
Respondent No.1.
Mr. T. Singhdev for
Mr. Maninder Singh, Advocate
for Respondent No.2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
ORDER
% 13.05.2009
1. The Letters Patent Appeal has been filed by the original writ
petitioner against the order of the learned single Judge dated 25th
March, 2009 refusing to permit him to appear in the FMGE-
Screening Test conducted by the respondent No. 1 on 29th March,
2009 and at later stages. Pursuant to the interim order of the
Division Bench, the appellant was provisionally allowed to appear in
the FMGE-Screening Test conduced by the Board on 29th March,
2009 and he failed in the examination. Next examination is
scheduled to be held in September, 2009.
2. Learned counsel appearing for the parties agreed that the writ
petition be also taken up for hearing along with the present appeal.
Accordingly, we have heard submissions of the parties on the appeal
LPA No.133/2009 Page 1 of 10
as well as on the writ petition.
3. The appellant after completing 10+2 examination joined
Zaporozhye State Medical University, Ukraine to study medicine.
This University falls in the WHO Directory of recognized medical
colleges as also it falls under the list of medical colleges recognized by
respondent No. 2, Medical Council of India (in short „MCI‟). The
appellant took admission in the said University in the year 1997 and
he was awarded Diploma of Specialist in Medicine in the year 2003.
The appellant when came back to India after obtaining the Diploma,
as per the MCI Regulations wanted to appear in the Screening Test
conducted by respondent No. 1, however, he was denied permission
on the premise that he was not having Biology as a subject in
Intermediate Examination. He, therefore, invoked writ jurisdiction of
this Court seeking that the respondent No.1 be directed to allow him
to appear in the Screening Test going to be held on 29th March, 2009
and in the subsequent tests.
4. The writ petition has been opposed on behalf of the
respondents who had taken an objection in their counter affidavit
that the petitioner was not eligible to undertake the Screening Test
inasmuch as he had passed his 10+2 examination without Biology.
The respondents had placed reliance on the “Regulations on
Graduate Medical Examination, 1997” and have urged that the
petitioner was not entitled to pursue the graduate medical course
either in India or abroad and as such, has no enforceable right in the
LPA No.133/2009 Page 2 of 10
present writ petition. According to the respondents, the Regulation
2(h) of the “Screening Test Regulations 2002” and Regulation 2(f) of
the “Eligibility Requirement For Taking Admission in an
Undergraduate Medical Course in a Foreign Medical Institution
Regulations 2002”, mandates that the qualifying examination for
seeking admission to the graduate medical course has to be in
accordance with “Regulations on Graduate Medical Examination,
1997”. Based thereon, it has been argued that the petitioner does not
have the requisite qualification as prescribed by the regulations.
5. Learned counsel for the petitioner has contended that the issue
raised in this petition is clearly covered by a decision of the Supreme
Court in Medical Council of India vs. Indian Doctors from Russia
Welfare Associations & Ors., reported in (2002) 3 SCC 696. The
said case dealt with the problem of students who have undergone
courses in medicine in medical colleges in the erstwhile USSR. The
MCI had registered these students who had obtained degrees from
the said colleges/universities. Without registration the said
graduates who have degree in Medicine from abroad cannot practice
as a medical practitioner in India. The MCI had filed a Special Leave
Petition against the orders passed by the Allahabad High Court and
Delhi High Court. The Supreme Court while hearing the matter
made certain observations in the interest of all concerned that
Government of India should formulate an appropriate policy
considering the history of the problem and need to maintain
standards and also bearing in mind the human problem of students
LPA No.133/2009 Page 3 of 10
who had undergone training/studies and had spent years to obtain
degrees. The Supreme Court also noticed that Section 13 of the
Indian Medical Council Act, 1956 had been amended to deal with the
situation that had arisen w.e.f. 18th February, 2002, new regulations
had been sent for being published in the Gazatte. The new
regulations dealt with a situation where a student has proceeded
outside India for study of Medicine and has successfully completed
and obtained degree in Medicine which entitled him to be enrolled
and practice as a medical practitioner. It prescribes requirement to
qualify and pass a screening test for the purpose of registration and
that a person will not be entitled to appear in the screening test if : (i)
Medical College situated abroad is not recognized by the country in
which an institution awarding the said qualification is situated and
(ii) Indian Citizen who is desirous of taking admission in an
undergraduate medical course abroad on or after 15th March, 2002,
should have obtained eligibility certificate from MCI for admission to
MBBS Course in India. The Supreme Court, however, was conscious
of the problem relating to students who have obtained degrees or had
taken admission before the publication of the Notification or prior to
15th March, 2002. The Government was also aware of the said
problem and in these circumstances placed guidelines before the
Supreme Court, which have been reproduced in para 6 of the
judgment and the Supreme Court exercising its power under Article
142 of the Constitution of India held that these guidelines will be
applicable to all such students who are similarly situated whether
they are parties before the Supreme Court or not. The guidelines
LPA No.133/2009 Page 4 of 10
read as under:-
“6. In order to regulate the grant of registration
to such persons who have completed their
degree abroad prior to 15-3-2001, the following
guidelinesare placed before this Court by the
Government of India:
( A ) The case of all persons who
applied for registration to MCI prior to
15-3-2001 shall be dealt with
according to the provisions of the Act
as existing prior to the commencement
of the IMC (Amendment) Act, 2001
subject to the following:
(i) Those students who obtained
degrees where the total duration of
study in recognised institutions is less
than six years (i.e. where a part of the
study has been in unrecognised
institutions, or the total length of
study in a recognised institution is
short of six years), shall be granted
registration by MCI provided that the
period of shortfall is covered by them
by way of additional internship over
and above the regular internship of
one year. In other words, for such
categories of students, the total
duration of study in a recognised
institution plus the internship, would
be seven years, which is the
requirement even otherwise.
(ii) Where students who did not meet
the minimum admission norms of MCI
for joining undergraduate medical
course, were admitted to foreign
institutes recognised by MCI, this
irregularity be condoned. In other
words, the degrees of such students be
treated as eligible for registration with
MCI.
(B) All students who have taken
admission abroad prior to 15-3-2002
and are required to qualify the
screening test for their registration as
per the provisions of the Screening
Test Regulations, 2002 shall be
allowed to appear in the screening testLPA No.133/2009 Page 5 of 10
even if they also come in the categories
of circumstances contained in ( A )( ii )
above, as the relaxation contained
therein would also be applicable in
their case. In other words, any person
at present undergoing medical
education abroad, who did not
conform to the minimum eligibility
requirements for joining an
undergraduate medical course in India
laid down by MCI, seeking provisional
or permanent registration on or after
15-3-2002 shall be permitted to
appear in the screening test in
relaxation of this requirement provided
he had taken admission in an institute
recognised by MCI. This relaxation
shall be available to only those
students who had taken admission
abroad prior to 15-3-2002. From 15-3-
2002 and onwards all students are
required to first obtain an Eligibility
Certificate from MCI before proceeding
abroad for studies in Medicine.
(C) The categories of students not
covered in (A) (i) and (ii) above and
whose entire period of study has been
in a medical college not recognised by
MCI, will be allowed to appear in the
screening test for the purpose of their
registration provided they fulfil all the
conditions laid down in the IMC
(Amendment) Act, 2001. In other
words, the qualification obtained by
them must be a qualification
recognised for enrolment as medical
practitioner in the country in which
the institution awarding the same is
situated and they must be fulfilling the
minimum eligibility qualification laid
down by MCI for taking admission in
an undergraduate medical course in
India. They shall not be entitled to any
relaxation.”
6. In the instant petition, the petitioner had taken admission in
the Ukraine University in the year 1997 and had successfully
obtained Diploma in 2003. The said University is recognized by the
LPA No.133/2009 Page 6 of 10
MCI. He will, therefore, be covered by paragraph 6(B) of the aforesaid
directions quoted above. On a bare reading of paragraph 6(B), it is
clear that all students who had taken admission abroad prior to 15th
March, 2002 are allowed to appear in the screening test, if they can
be granted exemption in terms of paragraph 6(A)(ii). The clauses
clearly provide that such students who do not meet „minimum
admission norms‟ of MCI for joining undergraduate course in India,
shall be permitted to appear in the screening test by relaxation of the
requirement of „minimum admission norms‟. The reason for issuing
this direction was that with effect from 15th March, 2002 onwards all
students going abroad for medical studies have to first obtain
eligibility certificate from MCI, but before the said date there was no
such requirement. Students who had gone abroad before 15th March,
2002 were admitted in Medical Colleges abroad as per their eligibility
criteria which were different from those prescribed in India.
7. Our attention was also drawn to a judgment of the Division
Bench of this Court in Naveen Sharma (Dr.) vs. Medical Council of
India & Anr., (RPA No.1092 of 1092 of 2006 decided on 20th
December, 2007) wherein the appellant had suffered from two
disabilities, first that the appellant was 17 years of age, on the date
when he took admission in the foreign University and the second
objection was that the aggregate marks obtained by the appellant in
Physics, Chemistry and Biology were less than the minimum
prescribed marks i.e. 50%. The Division Bench held that the case is
covered by the judgment of the Supreme Court in Medical Council
LPA No.133/2009 Page 7 of 10
of India vs. Indian Doctors from Russia Welfare Associations &
Ors. (supra):-
“10. We may state here that the stand of the
respondent-Medical Council of India is
somewhat inequitable and unjustified as the
appellant was permitted and allowed to sit in
the screening test conducted by the National
Board of Examination, Ministry of Health and
Family Welfare, Government of India in 2005
and has qualified the same.
11. The Supreme Court in the case of Indian
Doctors from Russia Welfare Associations
(supra) has granted exemption to students who
do not meet „minimum admission norms‟.
Supreme Court has not stated in the said
directions that students who do not meet one
minimum eligibility norm prescribed by the
Medical Council of India, will be granted
exemption and students who do not meet more
than one eligibility norm, will not be granted
exemption. A perusal of the guidelines shows
that as far as eligibility criteria is concerned,
under Clause 6(A)(ii) the expression used is
„minimum admission norms‟ in plural.
Similarly, in Clause 6(B) the expression used is
„minimum eligibility requirements‟ in plural.
The Government of India while framing the
guidelines was aware that a student may not
meet a single eligibility requirement or multiple
eligibility requirements and therefore had
expressly used the terms „norms‟ and
„requirements‟ in plural. Nothing prevented the
Government to state in the guidelines that
exemption from eligibility norms shall be
granted only in cases where a student does not
meet a single or one eligibility requirement and
students who do not meet two or more eligibility
requirements shall be barred and are not
entitled to appear in the screening test. The
intention of the Government and the guidelines
is clear, when it uses the two expressions in
plural sense. It is well settled that intention of
the legislator and the meaning at the first
instance has to be gathered from the words
used. When words used are clear, un-
ambiguous and bear only one meaning, the
courts give effect to that meaning. Plain wordsLPA No.133/2009 Page 8 of 10
explicitly used in the guidelines supports the
stand of the appellants and goes against the
interpretation put forward by the respondent
Medical Council of India.
12. Learned counsel for the Medical Council of
India has also not been able to point out any
specific order passed by the Supreme Court in
which any direction or observation has been
made holding that failure to meet two or more
eligibility requirements will not entitle a student
to benefit of Clause 6(B) read with clause 6(A)(ii)
of the guidelines.”8. Learned counsel appearing on behalf of the respondents sought
to rely upon an order passed by the Supreme Court dismissing a writ
petition and certain other applications. It is argued that in that writ
petition the point involved was the same and the relief claimed was
also identical. We may mention that the order is non-speaking order
and it merely says that writ petition is dismissed. No reasons or
grounds for dismissal are recorded in the order. It is not possible for
this Court to hold and read into this non-speaking order dismissing a
writ petition under Article 32 words or directions that has the effect
of modifying or clarifying its earlier directions in Medical Council of
India viz. Indian Doctors from Russia Welfare Associations &
Ors. (supra). We are bound by the decision and directions given in
the aforesaid case by the Three Judge Bench. Therefore, in our
opinion, the respondents are obliged to follow the judgment of the
Supreme Court in Medical Council of India vs. Indian Doctors
from Russia Welfare Associations & Ors. (supra) as well as the
judgment of the Division Bench of this Court in Naveen Sharma
(Dr.) vs. Medical Council of India & Anr. (supra). It is rather
unfortunate that the respondents have denied the permission to the
LPA No.133/2009 Page 9 of 10
petitioner to appear in the examination in spite of the judgment of theSupreme Court and the Division Bench of this Court and they had
chosen to agitate the same issues which stand settled by the
aforesaid judgment.
9. In the circumstances, the petition is allowed. The respondents
are directed to permit the petitioner to appear in the Screening Test
which is going to be held in September, 2009 and the subsequent
tests, if necessary. Respondents shall pay the costs of the petitioner
quantified as Rs.10,000/-. The writ petition and the present appeal
are accordingly disposed of. The pending applications also stand
disposed of.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J.
MAY 13, 2009
Sb/RSLPA No.133/2009 Page 10 of 10