Yash Ahuja Vs Medical Council of India .

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2009 (Arising out of S.L.P. (CIVIL) No. 26777 OF 2008)

Yash Ahuja and others ... Appellants

Versus

Medical Council of India & Ors. ...Respondents

With

CIVIL APPEAL Nos. OF 2009 (Arising out of SLP (C) Nos. 28228 & 28487 of 2008)

With

Writ Petititon (C) No. 154 of 2009

J U D G M E N T

J.M. PANCHAL, J.

Leave granted in all the Special Leave

Petitions.

2. The appellants in appeal arising out Special Leave

Petition (C) No. 26777 of 2008 have challenged

validity of common Judgment dated September 26,

2008 rendered by the High Court of Delhi in W.P.(C)

No. 8056 of 2007 and other cognate petitions by

which the prayer made by them to direct the Medical

Council of India to grant forthwith the provisional as

well as permanent registration to them, as they have

acquired medical qualifications granted by the

Manipal College of Medical Science, Pokhara, Nepal

which are recognized by Medical Council of India,

without insisting that they should qualify the

screening test, is rejected.

3. In order to appreciate the controversy raised before

this Court, it would be advantageous to notice certain

facts, which are as under:-

Earlier the medical education in India was

governed by the provisions of Indian Medical Council

Act, 1933. Thereunder also the Medical Council of India

(‘MCI’ for short) was constituted on which certain

2

powers were conferred and duties were imposed.

However, with the passage of time, it was noticed that

there was no representation to licentiate members of the

medical profession nor there was provision:-

a) to provide for registration of the names of citizens

of India who had obtained foreign medical

qualifications which were not recognized by the Indian

Medical Council Act, 1933;

b) to provide for temporary recognition of medical

qualifications granted by medical institutions in

countries outside India with which scheme of

reciprocity exists;

c) to provide for the formation of a committee of post-

graduate medical education for the purpose of

assisting the MCI to prescribe standards of post-

graduate medical education for the guidance of

Universities and;

d) to provide for the maintenance of an All-India

register by the MCI.

3

Thus it became necessary to bring a legislation to

provide for the reconstitution of MCI and the

maintenance of a medical register for India and for

matters connected therewith. That is how, the Indian

Medical Council Act, 1956 (‘the Act’ for short) came to

be enacted by Parliament repealing the Act of 1933.

4. Section 12 of the Act deals with recognition of

medical qualifications granted by medical institutions in

countries with which there is a scheme of reciprocity.

The MCI is empowered to enter into negotiations with

the authority in any country outside India which by law

of such country is entrusted with the maintenance of a

register of medical practitioners, for settling a scheme of

reciprocity for the recognition of medical qualifications.

Once such a scheme is settled, the Central Government

is authorized to amend the second schedule so as to

include therein the medical qualification which the

council has decided should be recognised. The medical

qualifications granted by medical institutions outside

India which are included in the second schedule are

recognized medical qualifications.

4

5. The Nepal authority had forwarded a scheme for

grant of recognition of MBBS qualifications conferred by

Kathmandu University, in respect of students of

Manipal College of Medical Sciences, Pokhara, Nepal.

The MCI entered into negotiation with the Nepal

Authority for settling a scheme of reciprocity for

recognition of medical qualifications. One of the

conditions of recognition was that the college would not

admit more than 100 students annually. On the

request of Ministry of health, Government of India, the

MCI inspected the said college in the year 2000. The

college was assessed and evaluated in the light of

minimum standards prescribed by the MCI relating to

infrastructure, teaching facilities, etc. After inspection,

a report was submitted to Government of India. On the

basis of the said report, scheme of reciprocity was

settled after which the Government of India, Ministry of

Health and Family Welfare (Department of health)

issued notification dated September 26, 2001, amending

Second Schedule to the Act by inserting an entry to the

effect that the qualification of MBBS granted by

5

Kathmandu University shall be recognized as medical

qualification when granted in or after July, 1999, in

respect of students of Manipal College of Medical

Sciences, Pokhara.

6. Over a period of time, it was noticed that a large

number of private agencies sponsored Indian students

for medical studies in institutions outside India for

commercial considerations. Such students also

included the students who failed to fulfill the minimum

eligibility requirements for admission to medical courses

in India. Serious aberrations were noticed in the

standards of medical education available in some of the

foreign countries which were not at par with the

standards of medical education available in India. Due

to lack of uniformity in the standards of medical

education in various foreign countries, it was decided to

make a provision in the Act to enable the MCI to

conduct a screening test in order to satisfy itself with

regard to the adequacy of knowledge and skills acquired

by citizens of India who obtain medical qualifications

6

from universities or medical institutions outside India

before they are granted registration to practice medicine

in India. Accordingly the Act was amended by the

Indian Medical Council (Amendment) Act, 2001 and new

Section 13(4A) was inserted, which requires that a

person who is citizen of India and obtains medical

qualification granted by any medical institution in any

country outside India recognized for enrolment as

medical practitioner in that country after such date as

may be specified by the Central Government under sub-

Section (3) shall not be entitled to enrolled on any

medical register maintained by a State Medical Council

or to have his name entered in the Indian Medical

Register, unless he qualifies the screening test in India

prescribed for such purpose and such foreign medical

qualification after such person qualifies the said

screening test shall be deemed to be the recognized

medical qualification for the purpose of this Act for that

person.

7. The Ministry of Health, Government of India, by

letter dated January 11-16, 2007, asked the MCI to

7

conduct an inspection of Universal College of Medical

Sciences, Bhairahwa, Nepal and other institutions in

Nepal recognised for granting MBBS degree under the

Act to re-assess the facilities available there as doctors

coming out of those colleges were eligible to practice

medicine in India. Accordingly the inspection team of

MCI went to Pokhara to inspect the college on January

19-20, 2007 to re-assess the infrastructural, teaching

and other facilities available at the said college for grant

of qualifications recognized and included in the Second

Schedule to the Act.

The Dean of the college did not permit the

inspection of the college despite repeated requests.

However, he permitted the members of the Inspection

Team to visit the college and the hospital on January

19, 2007, asserting that the colleges recognized by the

MCI and included in the Second Schedule to the Act

were not subject to re-assessment by the MCI. Though

the inspection team was not permitted to re-inspect the

college, the said team visited the college on January 19,

2007 and prepared a report indicating the deficiencies

8

noticed during the visit. The report prepared was

considered by the Executive Committee of the MCI in its

meeting held on February 5, 2007, wherein the

members of the ad-hoc committee appointed by the

Supreme Court were also present. Having regard to the

deficiencies pointed out in the report, it was resolved by

the Executive Committee, to carry out an inspection to

re-assess the under graduate teaching and training

facilities available at the said college. Accordingly a fax

message dated February 19, 2007 was dispatched to the

Principal of the college that an inspection would be

carried out by the Council Inspectors on 21st and 22nd

February, 2007. The Principal was also instructed to fill

a set of standard inspection forms A and B and

declaration contained in Forms C and D and handover

the same to the Council Inspectors. The acting Dean of

the college faxed a letter dated February 19, 2007 to the

Secretary, MCI protesting attempt by the MCI to re-

inspect the college and stated that the Dean was abroad

on a study visit and, therefore, the visit by the team

should be deferred till his return. In continuation of

9

faxed letter dated February 19, 2007, the acting

Principal of the College addressed another letter dated

February 21, 2007 mentioning that the inspection was

not feasible in view of the earlier stand that the College

was not subject to re-assessment. Thereupon, the

Executive Committee of the MCI wrote a letter dated

February 23, 2007 to the Secretary to the Government

of India, Ministry of Health and forwarded the report

dated January 19, 2007, wherein certain deficiencies

noticed were mentioned. By the said letter the

Executive Committee informed the Government of India

that a decision was taken to re-inspect the College and

not to grant provisional/final registration under Section

12(2) of the Act, till the matter was finally decided.

However, the record shows that in spite of protest

lodged by the acting Principal of the said College, the

Inspectors of Council went to Pokhara and carried out

inspection on February 21 & 22, 2007. The Inspectors

submitted their inspection report which was considered

by the Executive Committee of the MCI in its meeting

held on March 3, 2007. The Committee took into

10

consideration the stand of the College that it was not

subject to another inspection as well as reports

indicating several deficiencies which were noticed by the

Inspecting Team of MCI during the visit of the College.

The Executive Committee of the MCI took a decision to

recommend to the general body of the MCI to withdraw

the recognition granted to Manipal College of Medical

Sciences, Pokhara, Nepal, for the award of MBBS degree

granted by Kathmandu University under Section 12(3)

of the Act and not to grant provisional/final registration

under Section 12(2) of the Act, to any student passing

from the said Institute who has not passed the

screening test. The meeting of the General Body of MCI

was convened on March 10, 2007, to consider the

recommendation made by the Executive Committee.

The General Body approved the recommendation made

by the Executive Committee. The decision taken by the

General Body of MCI was communicated to the

Government of India vide letter dated May 29, 2007.

The case of Manipal College of Medical Sciences,

Pokhara, is that the recognition granted to the College

11

under Section 12(2) of the Act is on reciprocal basis

between the concerned authorities in India and Nepal

and, therefore, it is its understanding that the

College/University is not subject to re-assessment and

in any event without informing or obtaining approval of

Nepal Government/Nepal Medical Council/Kathmandu

University, such re-assessment of College by MCI is not

proper.

8. The appellants who were the students of the

Manipal College of Medical Sciences, Pokhara and had

obtained MBBS qualification from Kathmandu

University were issued provisional registration

certificates by MCI and had started their internship

from the Medical Colleges recognized by the MCI.

However, on completion of internship, they were denied

permanent registration on the ground that they had not

cleared the prescribed screening test.

9. In Civil Appeal arising out of Special Leave Petition

(C) No. 28228 of 2008 the appellants were students,

who had graduated from the Manipal College of

12

Medical Sciences, Pokhara, Nepal. They applied to

the Medical Council of India to grant provisional

registration to enable them to start internship.

Sometime in April, 2007 some of the appellants, who

were already granted temporary registration by the

Medical Council of India, approached the Medical

Council of India for permanent registration. The

appellants from both the categories were denied

registration by the Medical Council of India. The

denial was communicated through a letter in which

the students were informed that Council Inspectors,

who had visited the Manipal College of Medical

Sciences on 19th and 20th January, 2007, had found

certain infrastructural deficiencies in the College and,

therefore, it was decided to deny registration on the

ground that the recommendation was made to the

Central Government that Manipal College of Medical

Sciences be derecognized. Therefore, the students

invoked extra ordinary jurisdiction of Delhi High

Court under Article 226 of the Constitution of India

by filing Writ Petition (C) No. 8056 of 2007 and

13

prayed to direct the Medical Council of India to grant

registration of the MBBS degrees awarded to them

without insistence to clear the screening test

prescribed. The Division Bench of the High Court

heard the said petition along with batch of other

petitions and dismissed the same by judgment dated

September 26, 2008 giving rise to the Special Leave

Petition (C) No. 28228 of 2008.

10. In appeal arising out of Special Leave Petition (C) No.

28487 of 2008 the appellants were the students of

Manipal College of Medical Sciences, Pokhara, Nepal.

Some of the students had applied for provisional

registration as well as permanent registration.

However, the registration claimed by the students

was denied to them. Therefore, they had filed writ

petitions before the Delhi High Court praying the

Court to direct the Medical Council of India to grant

provisional registration and/or permanent

registration without insisting for clearance of

screening test. In those petitions interim orders were

passed and Medical Council of India was directed to

14

grant provisional registration to those petitioners.

The interim orders passed by the learned single

Judge of Delhi High Court were challenged in Letters

Patent Appeal No. 327 of 2008 on the ground that the

interim orders passed virtually granted the main

relief claimed in the petitions. The Letters Patent

Appeal was disposed of by order dated July 7, 2008

by giving direction to dispose of the writ petitions

expeditiously. The Division Bench of the High Court

dismissed the petitions by judgment dated September

26, 2008 by directing that the students should

undergo a screening test as prescribed by law. The

appellants herein were not parties to the writ

petitions, but they were aggrieved by judgment dated

September 26, 2008 and, therefore, they filed the

Special Leave Petition No. 28487 of 2008 seeking

permission to file the special leave petition.

11. In Writ Petition (C) No. 154 of 2009 the petitioners

were students of Institute of Medicine Tribhuvan

University. They completed the MBBS degree course

successfully. Therefore, the Tribhuvan University

15

had given some of the petitioners provisional

certificates dated April 15, 2008. The Medical

Council of India released a press note dated October

8, 2008 withdrawing the recognition granted to

Manipal College of Medical Sciences, Pokhara and

Universal College of Medical Sciences, Bhaiarahwa,

Nepal, as there were certain complaints against both

the institutions. While dealing with the complaints

against the aforesaid two institutions the Medical

Council of India also mentioned in the last paragraph

of the press note that earlier a press note on the

website of MCI stating that the provisions of

Eligibility Certificate Regulations, 2002 and the

Screening Test Regulations, 2002 would not be

applicable to the foreign medical institutions

recognised under Section 12 of the Indian Medical

Council Act, 1956, was withdrawn with immediate

effect. The effect of withdrawal of earlier press note is

that the provisions of Eligibility Certificate

Regulations 2002 and the Screening Test Regulation

2002 would be applicable to the students of foreign

16

medical institutions recognised under Section 12 of

the Act and all students, who have obtained medical

qualifications from foreign medical institutions, will

have to qualify the screening test. Thus the grievance

of the petitioners was that they have been informed

that the MBBS degrees would not be recognized

without screening test nor permanent registration

certificates would be given to such students, who

have already taken provisional registration

certificates. Therefore, the petitioners have invoked

jurisdiction of this Court under Article 32 of the

Constitution by filing above numbered writ petition

and prayed to quash the last paragraph of press note

dated October 8, 2008, which, according to them,

affects them/students, who have been trained at the

Institute of Medicine, Tribhuvan University,

Kathmandu, Nepal. It may be mentioned that the

writ petition was placed for admission hearing on

April 20, 2009 and after hearing the learned counsel

for the petitioners notice was ordered to be issued to

the respondents and the petition was directed to be

17

listed with Special Leave Petition (C) No. 26777 of

2008 entitled Yash Ahuja and others vs. Medical

Council of India and others.

12. This Court has heard the learned counsel for the

parties at length and in great detail. This Court has

also considered the documents brought on record of

the appeals and the petition.

13. What is argued by the learned counsel for the

appellants is that the Second Schedule and Part II of

the Third Schedule exhaust the medical qualifications

granted by medical institutions outside India, which

are recognized as medical qualifications for the

purpose of the Act, whereas sub-Sections (4A), (4B)

and (4C) of Section 13 deal with the residual subject

of individual recognition of medical qualifications

obtained by Indian citizens from the institutions

outside India, which are not specified in any of the

three Schedules and, therefore, the appellants cannot

be subjected to a screening test postulated by sub-

Section (4A) of Section 13 of the Act as the appellants

18

possess the medical qualification mentioned in the

Second Schedule. According to the learned counsel,

the provisions of sub-Section (4A) requiring a person

who obtains medical qualification granted by any

medical institution in any country outside India, to

qualify the screening test and the provisions of sub-

Section (4B) requiring a citizen of India to obtain an

eligibility certificate to be eligible to get admission in

any medical institution in any foreign country and

debarring him from appearing in the screening test if

he obtains such medical qualification without

obtaining eligibility certificate, are residual provisions

as well as exceptions to Section 14 of the Act

providing a special provision in certain cases for

recognition of medical qualifications granted by

medical institutions in countries with which there is

no scheme of reciprocity and, therefore, the

appellants would not be liable to qualify the screening

test when they have obtained medical qualifications

included in the Second Schedule of the Act, which are

medical qualifications for the purposes of the Act. It

19

was asserted that Sections 13(4A) and (4B) cannot be

read together with Section 12 of the Act because

Section 12 is a self contained code whereas Part II of

the Third Schedule includes those institutions which

are not subject to reciprocity scheme on which

Second Schedule is based and, therefore, the MCI

cannot insist that the appellants must qualify

screening test mentioned in Section 13(4A) of the Act.

What was asserted was that the intention of the

Parliament in providing screening test under Section

13(4A) and requiring to obtain eligibility certificate for

admission and, thereafter passing screening test

contemplated under Section 13(4B) is that they

should be regarded as additional requirements

restricted to the institutions mentioned in Part II of

the Third Schedule and, therefore, the impugned

judgment should be reversed. According to the

learned counsel for the appellants, the words in

Section 13(4A), to the effect “obtains medical

qualification granted by any medical institution in

any country outside India” cannot be given an

20

expanded meaning because Section 13 itself excludes

Scheduled One and Schedule Two and as Section 13

is ambiguous, the language of the heading should be

referred to for adopting interpretation that Section

13(4A) would not apply to those Indian citizens who

have obtained medical qualifications included in

Second Schedule. The learned counsel for the

appellants emphasized that if the provisions of the

Screening Test Regulations 2002 are made applicable

to the Indian citizens who have obtained medical

qualifications included in the Second Schedule to the

Act, a serious anomaly would arise in as much as all

those students who are similarly placed as the

appellants but who are not Indian citizens would be

entitled to be enrolled on any Medical Register

maintained by a State Medical Council or to have

their names entered in the Indian Medical Register

without undergoing the screening test whereas the

appellants and other students who are Indian citizens

would not be entitled to such a privilege without

qualifying screening test which would be

21

discriminatory and as such classification cannot be

sustained in view of Article 14 of the Constitution.

The stand of the MCI that the appellants and other

similarly placed students, who have obtained medical

qualifications included in the Second Schedule, must

qualify the screening test, should not be upheld by

the Court. According to the learned counsel for the

appellants the MCI itself had held out and clarified

for the information of the general public that the

eligibility requirements for taking admission in an

undergraduate medical course in Foreign Medical

Institution, the Regulations of 2002 and the

Screening Test Regulations, 2002, would not apply to

the students who join an undergraduate medical

course in foreign countries recognized and included

in the Second Schedule under Section 12 of the Act

and, therefore, also it should be held that the MCI is

not justified in asking the appellants to qualify the

screening test. In the alternative, it was argued that

the provisions of sub-Sections 13 (4A) and (4B) are

prospective in nature and, therefore, the appellants

22

cannot be asked to clear the screening test before

getting their names enrolled on the Medical Register

maintained by a State Medical Council or to have

their names entered in the Indian Medical Register.

It was contended that the screening test stipulation is

not being applied to the students who obtain medical

qualifications granted by medical institutions

mentioned in the Second Schedule to the Act and,

therefore, reliefs prayed for should be granted by the

Court. It may be mentioned that the Union of India

has supported the claim of the appellants.

14. The learned counsel for the MCI contended that even

de hors the provisions of Amendment Act of 2001, the

Council is empowered and obliged under the

statutory scheme of the Act in going behind the

degree for scrutinizing and evaluating the foreign

medical qualification secured by a candidate seeking

registration from the Council under the Act and,

therefore, the appellants are not entitled to seek

direction from this Court that the MCI should grant

provisional/ permanent registration to them.

23

According to the learned counsel, screening test is

required to be undergone in several countries like

U.K., U.S.A., etc. where doctors from abroad with a

foreign degree intend to start medical practice and,

therefore, adoption of a similar system in India

cannot be regarded as unreasonable. It was pointed

out that closer and careful reading of the provisions

of the Amending Act of 2001 read with the Eligibility

Requirement Regulations and Screening Test

Regulations of 2002 makes it sufficiently clear that

the Council is under a statutory obligation to

prescribe the screening test for all those candidates

who obtained/obtain medical qualifications from

institutions outside India falling within the purview of

Sections 12 and 13 of the Act and, therefore, the

appellants are rightly non-suited by Delhi High

Court. Placing reliance on the decisions in Ms.

Anuradha Saini vs. Union of India decided on 11-

07-2002 by the Delhi High Court and Sanjeev Gupta

Vs. Union of India (2005) 1 SCC 45 it was pleaded

that it is permissible to the MCI to adopt any

24

reasonable methodology for scrutiny and evaluation

of the teaching and training imparted to the

candidates holding qualifications mentioned in the

Second Schedule to the Act and since the procedure

and methodology of the conduct of screening test is

approved by this Court, the MCI is justified in asking

the appellants and other similarly placed candidates

to qualify the screening test. According to the

learned counsel for the MCI, all colleges seeking

recognition or continuation of recognition under

Section 12 of the Act have to fulfill the minimum

requirements laid down by the MCI for medical

institution in India because under the provisions of

Section 12 the citizens of foreign countries are also

entitled to practice medicine in India and therefore

the provisions of Section 10 B(3) laying down that if

any medical college increases its admission capacity

without obtaining the prior permission of the

Government of India, the medical qualification

obtained from such college becomes unrecognized,

have been enacted. What is stressed is that the true

25

intent and scope of Section 13(4A) is quite clear and

as the said sub-section covers all medical

qualifications mentioned in Sections 12 and 13 of the

Act, the plea that Section 13(4A) should be treated as

a proviso should not be accepted. It was argued that

by a resolution, the General Body of MCI has

corrected its understanding of the matter by

declaring that the screening test would be necessary

for candidates holding medical qualifications falling

within the purview of Sections 12 and 13 of the Act

and the registration of the candidates for research,

training, charity etc. mentioned in Section 14 of the

Act is not subject to qualifying the screening test by

virtue of Section 13(4C) but not because Section 14 is

an exception to Sections 13(4A) and 13(4B), as has

been contended by the appellants. It was pointed out

that the so called clarification made by MCI was with

reference to the provisions of Section 13(4B) and even

otherwise, the MCI on a reconsideration of the

proposition of law can comprehend a different

construction and as the construction and/or

26

interpretation of statutory provisions cannot rest

entirely on the stand adopted by any party in the lis,

the attempt to bind down the MCI to the clarification

made is of little assistance to the appellants.

Answering the contention raised on behalf of the

appellants that the screening test is not being applied

to all the foreign medical institutions mentioned in

Section 12 of the Act, it was pointed out that the

General Body of the Council in its Meeting held on

March 1, 2009 resolved that each of the Indian

citizens who secures a medical qualification from a

foreign medical institution falling within the purview

of Section 12 or Section 13, shall be obliged to qualify

the screening test and therefore it is not correct to

say that only students of Manipal College of Medical

Sciences, Pokhara are subjected to the screening test.

It was pleaded that specification of the cut off date of

March 15, 2002 by the Ministry of Health,

Government of India for the applicability of the

regulations relating to the screening test, does not

affect any vested right of the appellants as it is always

27

open to the authority to create and impose

stipulations which are applicable from a particular

cut off date and as such there is no question of

vested rights being taken away with retrospective

operation. What was emphasized was that over a

period of time it had come to the notice of the

legislature that a large number of private agencies

had sponsored students for medical studies in the

institutions outside India for commercial

consideration who had even not fulfilled the

minimum eligibility requirements and therefore the

Act was amended pursuant to which regulations have

been framed and the appellants who have acquired

M.B.B.S. qualification from Kathmandu University

mentioned in second schedule to the Act are asked to

qualify the prescribed screening test in larger interest

of public but are not debarred from starting any

medical practice in India in accordance with law and,

therefore, the appeals and the petitions filed under

Article 32 should be dismissed.

28

15. As far as the issue of inspection of Manipal College of

Medical Sciences, Pokhara by team of the MCI is

concerned, this Court finds that by a communication

dated January 11, 2007 the Central Government had

requested the MCI to inspect Universal College of

Medical Sciences, Bhairahwa, Nepal to reassess the

facilities etc. made available to the students as the

said college was last inspected by the MCI in April,

2000. It was also mentioned in the said letter that

medical institutions in Nepal, recognized for granting

MBBS degree under the Act also be inspected by MCI

to assess the present quality of medical education

being imparted there, as the doctors coming out of

these colleges are eligible to practice medicine in

India. By the said letter, the MCI was asked to

intimate Government of India, Ministry of Health and

Family Welfare about the action taken by it. The

Manipal College of Medical Sciences, Pokhara is

situated in Nepal. The medical qualification of MBBS

granted by Kathmandu University in respect of the

students of the said college is recognized under the

29

Act. Therefore, there is no manner of doubt that the

MCI was authorized by the Central Government to

inspect the said college to assess the facilities offered

by the said college. The MCI has asserted that the

said college was inspected by its inspectors on

January 19-20, 2007 and it was found that the

college is/was admitting 150 students annually

though its intake capacity recognized by Government

of India as well as by the MCI is only 100 students

per year. According to the MCI it had addressed a

communication dated February 23, 2007 to the

Government of India and recommended re-inspection

of the college to ascertain whether deficiencies found

were removed by the College. It had also

recommended Central Government not to grant

provisional/permanent registration under Section

12(2) of the Act. The record does not indicate that

the Government of India had opposed the

recommendation made by the MCI and probably

could not have opposed the recommendation of MCI

to re-inspect the college in view of its letter dated

30

January 11, 2007. The case of MCI is that the re-

inspection of the college was attempted to be carried

out on February 22, 2007 but the acting Principal of

the college had not allowed the inspection to be

carried out and appropriate report was submitted.

According to the MCI, its General Body vide

communication dated May 29, 2007 had

recommended to the Government of India to

withdraw the recognition granted to the college. The

appellants have asserted that since the college is

recognized under Section 12 of the Act no

reassessment can be done by the MCI without the

consent of the Nepal Government and the Nepal

Medical Council. It may be mentioned that in the

present proceedings, the question to be decided is

whether the MCI is justified in asking the appellants

and others who have obtained MBBS qualification

from Kathmandu University to qualify the screening

test prescribed by the Regulations. Though the MCI

has recommended the Central Government to

withdraw the recognition granted to the college, the

31

Central Government has not initiated any action

against the college. The Central Government has

made it clear in its affidavit that Manipal College of

Medical Sciences continues to be recognized under

the Act. The determination of question posed for

consideration of the Court as to whether those

candidates who have obtained MBBS qualification

from Kathmandu University can be subjected to the

screening test or not does not depend upon the fact

as to whether the said college was properly inspected

by the MCI nor the said question can be decided with

reference to the effect of recommendation made by

the General Body of MCI to the Central Government

to de-recognise the college but solely depends on the

interpretation of different provisions of the Act.

Therefore, this Court refrains from expressing any

view on the question whether the college was properly

inspected by the MCI or what is the effect of the

recommendation made by the MCI to the Central

Government to de-recognise the college.

32

16.The submission that the Second Schedule and Part II

of the Third Schedule, exhaust the qualifications

granted by the medical institutions outside India

which are recognized as medical qualifications for the

purposes of the Act whereas Sub-Section (4A), (4B)

and 4(C) of Section 13 deal with the residual subject

of individual recognition of medical qualifications

obtained by Indian citizens from the institutions

outside India which are not specified in any of the

three Schedules and therefore the appellants cannot

be subjected to a screening test contemplated by

Section 13(4A) cannot be accepted.

17. In order to resolve the controversy raised before this

Court, it would be necessary to examine the Scheme

envisaged by the Act.

18. The Preamble to the Act suggests that the Act is

enacted to provide for the reconstitution of the

Medical Council of India and the maintenance of a

medical register for India and for matters connected

therewith. Section 2 defines certain terms and states

33

that “Council” means the Medical Council of India

constituted under the Act. Medical institution is

defined to mean any institution, within or without

India, which grants degrees, diplomas or licences of

medicine, whereas the term “recognized medical

qualification” means any of the medical qualifications

included in the Schedules. Section 3 provides for

constitution and composition of the Council whereas

Section 7 deals with term of office of President, Vice-

President and members of the Council and Section 9

provides for officers, Committees and servants of the

Council.

19. Section 10A, brought on the Statute Book by Act 31

of 1993 with effect from August 27, 1992, deals with

permission for establishment of new medical college,

new course of study. Sub-Section (1) of Section 10A

begins with non-obstante clause and provides that

notwithstanding anything contained in this Act or

any other law for the time being in force, no person

shall establish a medical college nor any medical

college shall open a new or higher course of study or

34

training or increase its admission capacity in any

course of study or training, except with the previous

permission of the Central Government obtained in

accordance with the provisions of the said Section.

Explanation 1 to Section 10A(1) explains as to what is

meant by the word ‘person’ whereas Explanation 2

mentions as to what is meant by the words

‘admission capacity’. Sub-Section 2 inter alia

stipulates that in order to obtain permission of the

Central Government, the person desirous of

establishing a medical college or a medical college

desirous of opening a new or higher course of study

or training or increasing its admission capacity has to

submit a scheme to the Central Government and the

Central Government has to forward the scheme to the

Council for its recommendations. Sub-Section (3),

amongst other things, provides for manner in which

the scheme forwarded to it has to be evaluated by the

Council and Clause (b) mandates that the Council

has to consider the scheme having regard to the

factors referred to in sub-Section (7) of Section 10A.

35

A glance at sub-Section (7) of Section 10A makes it

clear that the intention of the legislature in providing

the factors is to see that a medical student acquires

proficiency in the science of treatment of human

beings and is not found wanting in any way. Section

10B of the Act provides the consequences that would

follow in case a medical college is established without

previous permission of the Central Government or

when any medical college opens a new or higher

course of study or training and inter alia provides

that when any medical college increases its

admission capacity in any course or training without

previous permission of the Central Government, no

medical qualification granted to any student of such

medical college on the basis of the increase in its

admission capacity shall be a recognized medical

qualification for the purposes of the Act.

20. Recognition of medical qualification by Universities or

medical institutions in India is provided by Section

11. It is mentioned in sub-section 1 of the said

Section that the medical qualifications granted by any

36

university or medical institution in India which are

included in the First Schedule shall be recognized

medical qualifications for the purposes of the Act.

Sub-Section (2) empowers the Central Government to

amend the First Schedule, when an application is

made either by the University or medical institution

in India so as to include the medical qualification not

included in the First Schedule but is granted either

by the University or the medical institution. Thus the

First Schedule is not exhaustive and can be amended

by the Central Government subject to the conditions

mentioned in sub-section (2) of Section 11 of the Act.

Even if the amendment is made in the First Schedule,

Section 11 does not exhaust the scheme of

recognition of medical qualifications granted by the

Universities or medical institutions in India. It was

noticed that no provision was made in Section 11 of

the Act regarding recognition of medical qualifications

granted by several medical institutions which are not

included in the First Schedule. Further it was also

necessary to recognize the medical qualifications

37

granted to a citizen of India before August 15, 1947

by medical institutions in the territories now forming

part of Pakistan and before April 1, 1937, by medical

institutions in the territories now forming part of

Burma. Therefore, the Legislature has enacted

Section 13(1) and provided in the said sub-Section

that the medical qualifications granted by medical

institutions in India which are not included in the

First Schedule and which are included in Part I of the

Third Schedule shall also be recognized qualifications

for the purposes of the Act. Sub-Section (2) of

Section 13 lays down that the medical qualifications

granted to a citizen of India (a) before August 15,

1947 by the medical institutions in the territories

now forming part of Pakistan and (b) before April 1,

1937 by medical institutions in the territories now

forming part of Burma which are included in Part I of

the Third Schedule shall also be recognized medical

qualifications for the purposes of the Act. The

scheme envisaged for recognition of medical

qualifications granted by Universities or medical

38

institutions in India is such that Section 11 of the Act

cannot be read in isolation, because the said Section

does not offer a complete scheme relating to

recognition of medical qualifications granted in India.

In order to make the scheme complete, one has got to

read the provisions of Section 11 with the provisions

of sub-Sections (1), (2) and (5) of Section 13 of the

Act. Section 11, First Schedule, sub-Sections (1), (2)

and (5) of Section 13 and Part I of the Third Schedule

constitute a complete code relating to the scheme of

recognition of medical qualifications granted by

Universities or medical institutions in India.

21. Similarly, recognition of medical qualifications

granted by medical institutions in countries with which

there is a scheme of reciprocity is dealt with by Section

12 of the Act. Sub-Section (1) of Section 12 of the Act

provides that the medical qualifications granted by

medical institutions outside India which are not

included in the Second Schedule will be recognized

medical qualifications for the purposes of the Act. Sub-

Section (2) of the said Section inter alia lays down that

39

the Council may enter into negotiation with the

Competent Authority in any country outside India to

settle a scheme of reciprocity and on the basis of such a

scheme, the Central Government may amend the

Second Schedule so as to include therein the medical

qualifications which the Council has decided, should be

recognized and it may also direct that an entry shall be

made in the last column of the Second Schedule against

such medical qualification, declaring that it shall be a

recognized medical qualification only when granted after

a specified date. Sub-Section (3) of Section 12 deals

with the powers of the Central Government to amend

the Second Schedule and give direction that an entry be

made therein in respect of any medical qualification

declaring that it shall be a recognized medical

qualification only when granted before a specified date.

Sub-Section (4) deals with a situation where the Council

has refused to recommend any medical qualification

which has been proposed for recognition by any

Authority referred to in sub-Section (2) of Section 12 of

the Act and provides that in such a situation the

40

Authority would be entitled to apply to the Central

Government and the Central Government may, after

considering the application of the Authority and

obtaining a report, if any, from the Council as to the

reasons for any such refusal, by notification, amend the

Second Schedule so as to include such qualification

therein and the provisions of sub-Section (2), shall apply

to such notification. As noticed earlier, Section 13 also

makes provisions for recognition of medical

qualifications granted by certain medical institutions

outside India whose qualifications are not included in

the Second Schedule. While examining the scope of

Section 11 of the Act, the Court has already taken into

account the sweep and ambit of sub-Sections (1) and (2)

of Section 13 of the Act. Therefore, it would be relevant

to examine the scope of sub-Section (3) of Section 13 of

the Act. The said sub-Section lays down that the

medical qualifications granted by medical institutions

outside India (before such date as the Central

Government may, by notification in the Official Gazette

specify) which are included in Part II of the Third

41

Schedule shall also be recognized medical qualifications

for the purposes of the Act. However, the said sub-

Section itself carves out an exception that no person

possessing any such qualification shall be entitled to

enrolment on any State Medical Register unless he is a

citizen of India and has undergone such practical

training after obtaining that qualification as may be

required by the rules or regulations in force in the

country granting the qualification or if he has not

undergone any practical training in that country, he has

undergone such practical training as may be prescribed.

It is an admitted position that the date specified by the

Central Government under Section 13(3) in the Official

Gazette is March 15, 2002. It means that the medical

qualifications granted by medical institutions outside

India before March 15, 2002, which are included in Part

II of the Third Schedule, shall be recognized medical

qualifications but no person possessing any such

qualification shall be entitled to enrolment on any State

Medical Register if he is not a citizen of India and has

not undergone practical training after obtaining that

42

qualification as may be required by the rules or

regulations in force in that country or if has not

undergone practical training prescribed under the Act or

rules or regulations. Sub-Section (4) inter alia states

that the Central Government may amend Part II of the

Third Schedule so as to include therein any qualification

granted by a medical institution outside India which is

not included in the Second Schedule subject to the

limitations and exceptions made in the two provisos to

the said sub-section. The first proviso which is brought

into force with effect from September 3, 2001, stipulates

that after September 3, 2001 no such amendment shall

be made in Part II of the Third Schedule to include any

primary medical qualification granted by any medical

institution outside India. The second proviso further

lays down that nothing contained in the first proviso

shall apply to inclusion in Part II of the Third Schedule

any “primary medical qualification” which expression is

explained to be any minimum qualification sufficient for

enrolment on any State Medical Register or for entering

the name in the Indian Medical Register, granted by any

43

medical institution outside India, to any person whose

name is entered in the Indian medical Register.

22. A fair reading of the provisions of Section 12 with

those of Section 13, makes it evident that the

scheme of recognition of medical qualifications

granted by medical institutions outside India as

envisaged by Section 12 is not complete. In order to

make the scheme complete, exhaustive and

workable, one has to take into account the

provisions of sub-Sections (3) and (4) of Section 13 of

the Act. The scheme relating to recognition of

medical qualifications granted by medical

institutions outside India becomes workable only if

the provisions of Section 12 of the Act and the

contents of Second Schedule are considered with the

provisions of sub-Sections (3) and (4) of Section 13

and Part II of the Third Schedule.

23. Then comes the provisions of sub-Sections (4A),

(4B) and (4C) of Section 13 which fall for consideration

of this Court. It may be mentioned that sub-Sections

44

(4A), (4B) and (4C) have been brought on the statute

book by Act 34 of 2001 which has come into force with

effect from September 3, 2001. Those provisions read

as under: -

“(4A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognized for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under sub-Section (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies the said screening test shall be deemed to be the recognized medical qualification for the purposes of this Act for that person.

(4B) A person who is a citizen of India shall not, after such date as may be specified by the Central Government under sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in sub-section (4A):

45

Provided that an Indian citizen who has acquired the medical qualification from foreign medical institution or has obtained admission in foreign medical institution before the commencement of the Indian Medical Council (Amendment) Act, 2001 shall not be required to obtain eligibility certificate under this sub-section but, if he is qualified for admission to any medical course for recognized medical qualification in any medical institution in India, he shall be required to qualify only the screening test prescribed for enrolment on any State Medical Register or for entering his name in the Indian Medical Register.

(4C) Nothing contained in sub-sections (4A) and (4B) shall apply to the medical qualifications referred to in section 14 for the purposes of that section.”

Sub-Section (4A) provides that a person who is a citizen

of India and obtains medical qualification granted by

any medical institution in any country outside India

recognized for enrolment as medical practitioner in that

country after the date to be specified by the Central

Government, shall not be entitled to be enrolled on any

Medical Register maintained by a State Medical Council

or to have his name entered in the Indian Medical

Council, unless he qualifies the screening test in India,

prescribed for the purpose and such foreign medical

46

qualification shall be deemed to be recognized medical

qualification for the purposes of the Act for that person

only after such person qualifies the said screening test.

Sub-Section (4B) mentions that a person, who is citizen

of India, shall not, after the date to be specified by the

Central Government, be eligible to get admission to

obtain medical qualification granted by any medical

institution in any foreign country unless he obtains an

eligibility certificate to be issued by the Council. It

further provides that in case such person obtains such

qualification without obtaining such eligibility

certificate, he will not be eligible to appear in the

screening test referred to in sub-Section (4A). The

proviso to sub-Section (4B) enacts a rule that an Indian

citizen, who has acquired the medical qualification from

foreign medical institution or has obtained admission in

a foreign medical institution before the commencement

of the Indian Medical Council (Amendment) Act, 2001,

will not be required to obtain eligibility certificate but if

he is qualified to any medical course for recognized

medical qualification in any medical institution in India,

47

he will have to qualify the screening test for enrolment

on any State Medical Register or for entering his name

in the Indian Medical Register. Sub-Section (4C)

provides that nothing contained in sub-Sections (4A)

and (4B) shall apply to the medical qualifications

referred to in Section 14 for the purposes of that

Section. Sub-Section (5) of Section 13 mentions that

any medical institution in India, which is desirous of

getting a medical qualification granted by it, included in

Part I of the Third Schedule, may apply to the Central

Government to have such qualification recognized. It

further provides that the Central Government, after

consulting the Council, may, by notification, amend Part

I of the Third Schedule so as to include such

qualification therein. It also provides that the

notification may direct that an entry shall be made in

the last column of Part I of the Third Schedule against

such medical qualification declaring that it shall be

recognized medical qualification only when granted after

a specified date.

48

24. Section 14 of the Act lays down special provisions

in certain cases for recognition of medical qualification

granted by medical institutions in countries with which

there is no scheme of reciprocity. Sub-Section (1) of

Section 14 inter alia provides that after consultation

with the Council, the Central Government may, by

notification, direct that medical qualification granted by

medical institutions in any country outside India in

respect of which a scheme of reciprocity for the

recognition of medical qualifications is not in force, shall

be recognized medical qualifications for the purposes of

the Act or shall be so only when granted after a specified

date. However, the proviso makes it very clear that

medical practice by the persons who possess such

qualifications shall be permitted only if such persons

are enrolled as medical practitioners for the time being

in force in that country and would be limited to the

institution which they are attached for the time being in

force for the purposes of teaching, research or

charitable work and would also be limited to the period

specified to in this behalf by the Central Government, by

49

general or special order. Sub-Section (2) of Section 14

stipulates that in respect of any such medical

qualification, the Central Government, after consulting

the Council, may, by notification, direct that it shall be

recognized medical qualification only when granted

before a specified date.

25. A conjoint and purposeful reading of the different

provisions of the Act makes it sufficiently clear that

Section 14 is an exception to Section 12, which deals

with recognition of medical qualifications granted by

medical institutions in countries with which there is a

scheme of reciprocity.

26. Section 15 of the Act refers to the right of a person

possessing qualifications in the Schedules to be

enrolled. Sub-Section (1) mentions that subject to the

other provisions contained in the Act, the medical

qualifications included in the Schedules shall be

sufficient qualification for enrolment on any State

Medical Register. Sub-Section (2) further provides that,

save as provided in Section 25, no person other than a

50

medical practitioner enrolled on a State Medical

Register, shall practice medicine in any State or hold

office as physician or surgeon etc., whereas sub-Section

(3) provides for punishment for contravention of any of

the provisions of sub-Section (2) of Section 15 of the

Act.

27. The contention that sub-Sections (4A) and (4B) of

Section 13 are residual provisions to which Section

14 of the Act, making a special provision in Certain

cases for recognition of medical qualifications

granted by medical institutions in countries with

which there is no scheme of reciprocity, is an

exception or the plea that Sections 13(4A) and 13(4B)

cannot be applied to Section 12 of the Act, which is a

self contained code but may apply to Part II of the

Third Schedule, which includes those institutions

with which there is no scheme of reciprocity, cannot

be accepted.

28. It is relevant to notice that sub-Sections (4A), (4B)

and (4C) of Section 13 of the Act were brought on the

51

Statute book by Act 34 of 2001, with effect from

September 3, 2001. On analysis of sub-Section (4A)

it becomes sufficiently clear that it would apply when

three conditions are satisfied, namely, (i) when a

citizen of India obtains medical qualification granted

by any medical institution in any country outside

India, (ii) the medical qualification obtained must

have been recognized for enrolment as medical

practitioner in that country and (iii) the medical

qualification must have been obtained after the date

to be specified by the Central Government. The

phrase “medical qualification granted by any medical

institution in any country outside India” employed in

sub-Section (4A) of Section 13 of the Act is not

restrictive in its application at all and takes within

its sweep the medical qualifications granted by any

medical institution in any country outside India with

which a scheme of reciprocity for the purpose of

recognition of medical qualification is in force as well

as the cases covered by sub-Sections (3) and (4) of

Section 13 of the Act. What is relevant to notice is

52

that Section 11 of the Act refers to the First Schedule

whereas Section 12 refers to the Second Schedule

and Sections 13(1) and 13(2) refer to Part I of the

Third Schedule and Sections 13(3) and 13(4) refer to

Part II of the Third Schedule. However, sub-Sections

(4A) and (4B) of Section 13 do not refer to any

Schedule at all because by those sub-Sections

general provisions are enacted which apply to all the

cases where a citizen of India has obtained or is

desirous of obtaining medical qualification granted

by any medical institution in any country outside

India. The provisions of sub-Sections (4A) and (4B)

would have applied to the cases covered by Section

14 of the Act also but for sub-Section (4C) of Section

13. Sub-Section (4C) of Section 13 specifically

provides that nothing contained in sub-Sections (4A)

and (4B) shall apply to the medical qualifications

referred to in Section 14 for the purposes of that

Section. If the Legislature was so minded, nothing

prevented it from laying down in Section 13(4C) that

the provisions of sub-Sections (4A) and (4B) would

53

also not apply to the cases covered by Section 12 of

the Act. If the arguments of the learned counsel for

the appellants are accepted, the Court will have to

re-write sub-Section (4C) by laying down that the

provisions of sub-Sections (4A) and (4B) would also

not apply to the cases covered by Section 12 of the

Act. Such a course is neither permissible nor

warranted by the facts of the case.

29. Even if the material words of Section 13(4A) are

capable of bearing two constructions, the most firmly

established rule for construction of such words is the

rule of “purposive construction or mischief rule”.

This rule enables consideration of four matters in

construing an Act – (1) what was the law before the

making of the Act, (2) what was the mischief or

defect for which the law did not provide, (3) what is

remedy that the Act has provided and (4) what is the

reason of the remedy. The rule then directs that the

courts must adopt that construction which

suppresses the mischief and advances the remedy.

Applying this principle of construction to sub-Section

54

(4A) of Section 13 of the Act, this Court finds that the

law before the enactment of the said sub-Section was

that medical qualifications granted by medical

institutions in countries with which there was a

scheme of reciprocity included in the Second

Schedule, were recognized qualifications for the

purposes of the Act. This law continues to be in

force even after the enactment of sub-Section (4A).

However, over a period of time, it had come to the

notice of the Legislature that a large number of

private agencies sponsored students for medical

studies in institutions outside India for commercial

consideration. It was noticed that such students

also included those students, who did not fulfill the

minimum eligibility requirements for admission to

medical courses in India. Serious aberrations were

noticed in the standard of medical education in some

of the foreign countries, which were not on par with

the standards of medical education available in

India. These were the defects and/or mischiefs

noticed for which no provision was made either in

55

Section 12 or sub-Sections (3) and (4) of Section 13

of the Act. In the year 1956, when the Indian

Medical Council Act was enacted, it must not have

been contemplated by any one that a large number

of private agencies would sponsor students for

medical studies in institutions outside India for

commercial considerations including those students

who were not fulfilling the minimum eligibility

requirements for admission to medical courses in

India, etc. It was, therefore, felt necessary by

Parliament to make a provision to enable the Council

to conduct a screening test. This is the remedy that

sub-Section (4A) has provided. This remedy is

prescribed to satisfy the MCI with regard to the

adequacy of knowledge and skills acquired by

citizens of India, who obtain medical qualifications

from Universities or medical institutions outside

India and to ensure that those students have

secured the standards of medical education in the

foreign countries, which are at par with standards of

medical education in India. The remedies mentioned

56

in Sections 13(4A) and 13(4B) are prescribed because

citizens of India, who have obtained medical

qualifications from Universities or medical

institutions outside India, would be entitled to

practice medicine in India and they cannot be

permitted to treat other citizens of India with their

half-baked knowledge and jeopardize their precious

lives. Thus by adopting rule of purposive

construction or mischief rule, it will have to be held

that the provisions of sub-Section (4A) of Section 13

of the Act would also apply to the cases covered by

Section 12 of the Act.

30. The argument that MCI has admittedly understood

and applied the provisions of the Act by releasing

press note to mean that the screening test would not

be necessary for students who have obtained degree

from foreign medical institutions recognised under

Section 12 of the Act and, therefore, MCI is

precluded in insisting that the students, who have

obtained degrees from foreign medical institutions, is

devoid of merit. It is true that at one stage the MCI

57

had released a press note clarifying for the

information of general public that eligibility

requirements for taking admission in an

undergraduate medical course mentioned in Foreign

Medical Institutions Regulations, 2002 and the

Screening Test Regulation, 2002 would not be

applicable to the students joining an undergraduate

medical course in foreign countries, recognised and

included in the Second Schedule under Section 12 of

the Act. However, this was the understanding of

MCI, which is one of the parties before the Court.

The scope of Section 13(4A) is quite clear and covers

all foreign medical institutions falling within the

ambit of Sections 12 and 13 of the Act. On a close

and careful reading, provisions of the Amending Act

of 2001 with the Eligibility Requirement Regulations

and Screening Test Regulation, both of 2002, it

becomes at once clear that the MCI is obliged to

stipulate the screening test in the case of all those

candidates, who obtained medical qualification from

medical institutions outside India filling within the

58

purview of Sections 12 and 13 of the Act in view of

the statutory provisions of Section 13(4A) of the Act.

The press release cannot be interpreted as

precluding MCI from canvassing correct import of the

provisions of the Act. In any view of the matter, the

Court is of the firm opinion that press release by MCI

cannot preclude the court from placing correct

interpretation of the Act. Therefore, the said plea

has no substance and is hereby rejected.

31. The contention that if the provisions of the Screening

Test Regulations, 2002 are made applicable to the

citizens of India, who have obtained medical

qualifications granted by Universities or medical

institutions outside India, a serious anomaly would

arise as all those students who are similarly placed

as the appellants, but who are not Indian citizens,

would be entitled to be enrolled on Medical Register

maintained by the State Medical Council or to have

their names entered in the Indian Medical Register

without undergoing the screening test whereas the

appellants and other students, who are citizens of

59

India, would not be so entitled without qualifying the

screening test, which would be discriminatory, is

merely stated to be rejected. It must be remembered

that the appellants are students, who have obtained

MBBS degree granted by Kathmandu University in

respect of Manipal College of Medical Sciences,

Pokhara, Nepal. They have not laid any factual data

to indicate that in Nepal education system of 10+2 is

prevalent and that a student becomes entitled to get

admission to medical course only after he clears

Central Admission Test in order of merits. The

Indian Parliament never found that either large

number of students of Nepal or other students

belonging to other countries but studying in Manipal

College of Medical Sciences, Pokhara, who are

desirous of practicing medicine in India, were

sponsored by private agencies of those countries for

medical studies in the said institute for commercial

consideration. It is not the case of the appellants

that students of Nepal or students of other countries

prosecuting medical studies in Manipal College of

60

Medical Sciences were/are not fulfilling the

minimum eligibility requirements for admission to

medical courses prescribed in their respective

countries. The appellants failed to bring on record

the facts, which would prima facie show that the

standards of medical education prescribed either by

the Government of Nepal or by Nepal Medical

Council are at par with the standards of medical

education available in India. Under such

circumstances, there was no scope for Parliament of

India to prescribe that students of Nepal or students

of other countries prosecuting medical studies in

Manipal College of Medical Sciences should also

qualify the screening test prescribed before they are

enrolled on Medical Register maintained by the State

Medical Council or get their names entered in Indian

Medical Register. The plea based on so called

discrimination has no substance and is, therefore,

rejected.

32. The alternative plea that the provisions of sub-

Sections (4A) and (4B) of Section 13 of the Act are

61

prospective in nature and as the appellants have not

incurred any disqualification after obtaining medical

qualification of MBBS degree from Kathmandu

University, which is included in the Second Schedule

and, therefore, they cannot be asked to qualify the

screening test, is devoid of merits. It is an admitted

fact that the date specified by the Central

Government under sub-Section (3) of Section 13 is

March 15, 2002. Therefore, in view of the

stipulations contained in sub-Section (4A) of Section

13 of the Act, the provisions of said sub-Sections

would be applicable with effect from March 15, 2002.

The effect of specification of the date of March 15,

2002 is that a person who is citizen of India and

obtains medical qualification granted by any medical

institution in any country outside India, recognized

for enrolment as medical practitioner in that

country, shall not be entitled to be enrolled on

Medical Register maintained by a State Medical

Council or to have his name entered in the Indian

Medical Register after March 15, 2002, unless he

62

qualifies the screening test prescribed. As made

clear by the MCI, the provisions of sub-Section (4A)

of Section 13 of the Act are applicable to all the

medical qualifications included in the Second

Schedule. It is an admitted position that the

appellants and others have applied for provisional

registration/ permanent registration after March 15,

2002. Therefore, the appellants have to appear in

the screening test conducted by the National Board

of Examination in terms of the Screening Test

Regulations made by the MCI. In Sanjeev Gupta

and others vs. Union of India [(2005) 1 SCC 45],

challenge was made to the stipulations for conduct of

the screening test, by the students who had been

admitted in undergraduate medical courses in the

institutions outside India between 1994 and 2000.

Most of the students had qualified in the

undergraduate course but some of them, who had

joined such courses during 1999-2000, were still

pursuing the course. After considering the

provisions of the Act a Three Judge Bench of this

63

Court uniformly applied the screening test provisions

to all the candidates from the cut-off date of March

15, 2002. Therefore, there is no doubt that the

provisions of sub-Section (4A) of Section 13 of the

Act are not being applied retrospectively but from the

date specified by the Central Government. Under the

circumstances the plea based on retrospective

application of sub-Section (4A) of Section 13 of the

Act cannot be accepted and is hereby rejected.

33.For the reasons stated in the judgment, this Court

does not find any substance in the appeals and the

petition. Therefore, they are dismissed. There shall

be no order as to costs.

34.In view of the dismissal of the appeals, pending

applications also stand dismissed.

...................................CJI (K.G. Balakrishnan)

......................................J. (P. Sathasivam)

64

......................................J. (J.M. Panchal)

New Delhi; September 17, 2009

65

YASH AHUJA Vs MEDICAL COUNCIL OF INDIA .

YASH AHUJA Vs MEDICAL COUNCIL OF INDIA .