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CASE NO.: Writ Petition (civil)  604 of 2002

PETITIONER: Sanjeev Gupta & Ors.

RESPONDENT: Union of India & Anr.

DATE OF JUDGMENT: 16/11/2004

BENCH: CJI., ASHOK BHAN & G.P. MATHUR

JUDGMENT: J U D G M E N T

WITH

W. P. (C) No. 616/ 2002, Akannsha Singh & Ors.                                                            Vs.      Union of India & Anr.                                            

W. P. (C) No. 634/2002,  Anoop Nambiar & Ors.                                                             Vs. Union of India & Ors.                                            

W. P. (C) No. 22/2003 Sudharsan Sornam & Ors.                                                  Vs. Union of India & Ors.                                            

W. P. (C) No. 11/2003 Azaj Ahmed Malik                                                                         Vs. Medical Council of India                                                 

W. P. (C) No. 14/2003 Sushim Mathur & Ors.                                                             Vs. Union of India & Anr.                                            

W. P. (C) No. 16/2003 Arun Sreedhar & Ors.                                                             Vs. Union of India & Ors.                                            

W. P. (C) No. 26/2003 Sonia Chadha & Ors.                                                              Vs. Union of India & Ors.                                            

W. P. (C) No.25/2003 Raja Shekhar & Ors.                                                              Vs.      Union of India & Anr.                                            

W. P. (C) No.27/2003 Aman Pal Singh & Ors.                                                            Vs.

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Union of India & Anr.                                            

W. P. (C) No.33/2003 Sachin Grover & Ors.                                                             Vs. Union of India & Anr.                                            

W. P. (C) No.34/2003 Ashik Keereerakath & Anr.                                                                Vs. Union of India & Ors.                                            

W. P. (C) No.391/2003 J. Muthuvel                                                                              Vs. Union of India & Ors.                                            

W. P. (C) No.404/2003, Nimai Chandra Jena                                                               Vs. Union of India & Anr.                                            

W. P. (C) No.488/2003, Anup Ranjan Dey Sarkar & Anr.                                            Vs. Union of India & Anr.                                            

W. P. (C) No.185/2004, Varun Mittal                                                                             Vs. Union of India & Anr.                                            

W. P. (C) No.184/2004 Vipul Mittal                                                                             Vs. Union of India & Anr.                                            

W. P. (C) No.166/2004  Gagan Sethi                                                                      Vs. Union of India & Anr.                                            

W. P. (C) No.190/2004  Manjusha Varghese                                                                Vs. Union of India & Ors.                                            

W. P. (C) No.172/2004 Gaurav Sagar                                                                     Vs. Union of India & Anr.                                            

SLP [C] ..../2004 CC. No.2256-2258 Anand Kumar Singh & Ors.                                                         Vs. Union of India & Ors.                                            

I.A. No.             of 2004 In W.P. ) No. 604 of 2002

BHAN, J.

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       Delay condoned.  Leave granted in SLP(C)......of 2004 CC No.  2256-2258.

       Interlocutory application in WP (C) No. 604 of 2002 is allowed.

       As the points of law involved in all these cases are the same or  similar with little variations which would be indicated in the later part of  the judgment, this judgment shall dispose of all the above-mentioned  cases by a common judgment.  

       Writ Petition (C) No. 604 of 2002, WP(C) No.  25 of 2003 and  WP(C) No. 33 of 2003 pertain to the batch of students who joined the  course in 1994 whereas the WP(C) No. 616 of 2002, WP(C) No. 634  of 2002, WP(C) No. 11 of 2003, WP(C) No. 14 of 2003, WP(C) No. 16  of 2003, WP(C) No. 26 of 2003, WP(C) No. 25 of 2003, WP(C) No. 27  of 2003, WP(C) No. 34 of 2003, WP(C) No. 404 of 2003, C.A. No.               of 2004 (arising out of SLP (C) No. ...... of 2004/CC No. 2256-2258)  and IA ....... of 2004  pertain to the students who joined the course in  the year 1995; WP(C) No. 391 of 2003, WP(C) No. 488 of 2003 and  WP(C) No.  190 of 2004 pertain to the students who joined the course  in 1996; WP(C) No. 185 of 2004 and WP(C) No. 172 of 2004 pertain to  the students who joined the course in 1999, WP(C) No. 166 of 2004  pertains to the students who joined the course in 2000 and WP(C) No.  22 of 2003, year of joining the course was not mentioned.

       Before adverting to the facts of the present cases and the points  involved, it would be necessary to state the background facts leading  to filing of the present petitions.

BACKGROUND FACTS:          In the year 1981 Government of India requested the Medical  Council of India (for short "MCI") for consideration of grant of  recognition for medical courses in medical institutions in the erstwhile  States of USSR.  MCI gathered the information that the graduate  medicine courses in these institutions is of six years after one year of  the language training.  Thereafter, the candidates are required to  undertake mandatory internship of 12 months.  Section 13 (3) of the  Indian Medical Council Act, 1956 (hereinafter, ’the Act’ for short) also  stipulates undergoing one-year internship after obtaining the medical  qualifications.   Section 12 of the Act provides that the MCI can grant  recognition of medical qualifications to the medical institutions in  various countries with which there is a scheme of reciprocity.   After  considering the report received from the MCI Government of India in  1986 recognised certain institutions in the erstwhile States of USSR.    Such institutions were put in the Second Schedule of the Act.  

After the disintegration of USSR, serious aberrations in the  system of recruitment and admission of students in institutions located  in Russia and CIS countries were reported by the Indian Embassies at  Moscow & Almaty in the early part of the year 1994. Various private  agencies with dubious antecedents mushroomed and sponsored  medical candidates for commercial gains. A perceptible decline in the  standards of medical education in these countries was also noticed.  In  the backdrop of communications received from the Indian Embassies,  the Government of India was concerned that if the situation is allowed  to continue, a large number of Indian students would end up in medical  institutions with doubtful standards.  Government of India sought the  comments of MCI as to whether the recognition of these institutions  could be continued in view of the communications received from the  Indian Embassies at Moscow & Almaty.   MCI sent its comments to the  Central Government on 1.11.1994 recommending de-recognition of all  medical degrees of the erstwhile USSR included in the Second  Schedule of the Act.

       In these circumstances,  Government of India in March 1995

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issued an advertisement in the newspapers informing the general  public that no private agency had been authorised by the Government  of India  to select students for admission in  under graduate and  post  graduate medical courses in Russia and other CIS countries and  informing the students taking admission in medical courses through  such private agencies that they would be doing so at their own risk and  Government of India would not be responsible for any consequences  in respect of the students joining such medical courses in those  countries.   

       In the year 1996, the Counsellor (Education) in the Embassy of  India at Moscow brought to the notice of MCI and the Ministry of  Human Resource Development that the Russian Ministry of Health  had continued to give admission to students sponsored through private  agencies in India.   He also reported that there was a decline in the  academic standards of Russian educational institutions and manifest  erosion of ethics which made it impossible to be sure that undeserving  students would not complete their medical education from these  institutions.  The calibre of the Indian students studying there had also  sharply deteriorated.  The Counsellor further informed that though  earlier, Indian students were known for their high academic  performance, unfortunately that was not the case any more.

       MCI also gathered information that many Indian students who  were not eligible for admission to medical degree courses had secured  admission in Russian medical institutes.  Some of these students had  secured less than 50% marks in the 10+2 examination and many had  not studied Biology as a subject in school.   Besides, there were  number of students who initially took admission in institutes not  recognised by the MCI and after doing part of their studies in such  institutes, subsequently migrated to recognised institutes.  There was  another category of students who came back to India with medical  degrees after undergoing the course with less than the prescribed six  years of studies in medicine.    

       In August 1997 the MCI issued an advertisement in the  newspapers warning the students against taking admission in medical  courses in the countries of former USSR through private agencies and  informing them that they shall be doing so entirely on their own risk.  It  was further informed that the matter of recognition of degrees granted  by the 29 medical institutions in the countries of the former USSR was  currently under review and that the MCI would not be granting  recognition to students who obtained admission in these institutes on  their own without awaiting the decision with regard to the recognition  status of these institutes.  It was also informed that such students  would not be eligible to practice medicine in India.  The Executive  Committee of MCI in discharge of its statutory duty on 17.9.1997 took  the decisions mentioned in the following paragraph in respect of the  students coming back from various medical institutions from the  erstwhile States of USSR and seeking registration under the  provisions of the Act, when such students either did not have 50%  marks in 10+2 or did not have biology as one of the subjects or got  admitted in unrecognised medical institutions or were getting the  degrees in medicine without undergoing the complete duration of the  medicine course and had got admission through private agencies:-   

"a)     The students who complete their medical degree  course of less than 6 years duration from  institutions in erstwhile USSR shall not be eligible  for registration because of the fact that the  duration of M.D. (Physician) course is 6 years,  after one year  preparatory/language course.

(b)     The students completing successfully total six  years clinical M.D. (Physician) course in an MCI

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recognised institute i.e., obtaining recognised  M.D. (Physician) degree on or after 1/7/97 shall  have to undergo one year internship after  obtaining the qualification. Such candidates only  shall be eligible for permanent registration u/s  13(3) of the M.C.I. Act, 1956 provided they meet  the other criteria of the Council laid down with  regard to admission for undergraduate medical  course.

(c)     The students who were initially admitted in an  institution not recognised by the MCI and later on  migrated and obtained the degree from  recognised medical institutions in erstwhile USSR  will not be eligible for any kind of registration in  India."

       The decision of the Executive Committee of the MCI was  approved by the General Body of the MCI.

       After carefully considering all the relevant factors, in a meeting  held on 6.11.1998 presided over by the Principal Secretary to the  Prime Minister of India and attended by the Foreign Secretary, Health  secretary, Secretary, MCI and other senior officers of Ministry of  external Affairs and the Prime Minister’s Office, the following decisions  were arrived at:

"1.     There will be no change in the status of the  two institutions namely Daghestan State  Medical Institute, Russia and Azerbaijan  Medical Institute in Azerbaijan which were  already de-recognised in March, 1998.

2.      Instead of going in for de-recognition of the  other medical institutions in the erstwhile  USSR, a system of post-screening of the  students who are coming back to India after  obtaining the degree from these institutions  can be introduced straightway. This can be  made applicable to all the students who return  to India after obtaining medical degrees from  any foreign medical institution.

3.      A system of pre-screening of the students  desirous of taking admission in the medical  institutions in these countries shall also be  worked out by MCI.  This can be introduced  from the forthcoming academic year.

4.      The MCI and the Department of Health will  work out technical details for introducing the  pre-screening and post-screening processes  suggested above."

       As pointed out earlier, after disintegration of USSR admissions of  students ran into difficulties for either not having studied in recognised  colleges or partly in recognised and partly in non-recognised colleges  or they had not completed their courses in full.   MCI entertained  serious doubts as to the genuineness of some of the courses  undergone by various students, thus leading to difficulties on the  question of recognising their degrees and their registration as medical  practitioners. Writ petitions were filed in different High Courts by  persons [mostly by 1997-98 batch pass-outs] who had undergone  courses in medicine in medical colleges in the erstwhile USSR.        MCI took the stand that when initial admission of the students in the

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non-recognised institution could not be accepted, their transfer to  recognised colleges subsequently could not be of any benefit to them.   MCI also passed various types of orders either during the pendency of  the proceedings before the courts or otherwise in relation to  recognition of the degrees or registration of such persons as  practitioners.  Delhi High Court allowed the writ petitions and granted  relief to the doctors concerned.  Allahabad High Court also granted  interim order.   Aggrieved against the orders passed by the High  Courts, MCI filed appeals in this Court.  During the course of hearing  of the appeals certain suggestions were made and the Solicitor  General of India who was appearing for the MCI  was requested to  seek instructions from MCI with a view to mitigate the hardship being  faced by the graduates of medical schools/colleges, Russia.  In  response to the aforesaid the General Body of the MCI met on  31.3.2000 and resolved as follows:

"The Executive Committee in order to remedy the  various problems which have arisen on account of the  break-up of Soviet Union, as a one time measure  decided to place the following possible solutions for  consideration by the Hon’ble Supreme Court :-

i)      In the view of the Medical Council any student  who has obtained less than 50% marks in  Physics, Chemistry & Biology in the 10+2  examination would not at all be eligible for  registration.  This in the considered view of the  Council is an absolute imperative in the larger  interest of public health.

ii)     MCI recognised institutions which impart 6 years  of medical education with one year’s of internship.   Therefore, degrees issued by such recognised  institutions to students who have put in 6 years of  medical education and have successfully  completed the course and obtained the degree  and thereafter have completed one year of  internship (both in recognised institutions) would  be recognised by MCI and will be considered  eligible for provisional/permanent registration as  the case may be.

iii)    In relation to students who have completed 6  years of medical education, out of which initial  period of not more than 4 months was in an  unrecognised institution, and the rest in a  recognised institution the MCI will accept their  request for registration upon their completing 16  months of internship.

iv)     The students who have completed 6 years of  medical education but have studied more than 4  months but not more than 6 months in an  unrecognised institution (and the rest in a  recognised institution) should be required to  undergo an additional internship of 12 months  over and above the usual internship of 12 months  i.e. total internship of 24 months.

v)      In case of the students who have studied 5 =  years of medical education (although in a  recognised institution) would appear in an  examination and upon being successful (in not

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more than 3 attempts) will be required to undergo  regular 12 months of internship after which they  would be considered for registration.

vi)     In all other cases, where the candidate is  otherwise qualified (i.e.) he has obtained more  than 50% marks in Physics, Chemistry and  Biology in the 10+2 examination but has put in  less than 5 = years in a recognised institution  (whether on account of a compressed course or  on account of putting in more than 6 months in an  unrecognised institution), the candidate may be  required to surrender his degree to his recognised  institution, complete the deficient period so as to  have completed 6 years of medical education in  the same recognised institution and thereafter  obtain a fresh degree from the said recognised  institution.  It may be clarified that this deficient  period can be covered only by going back to the  same institution from where he has earlier  obtained the degree which has now been  surrendered.

vii)    The screening test required to be undergone by  the candidates will be the same as conducted by  the All India Institute of Medical Sciences, New  Delhi for the candidates desirous of admission in  the post-graduate courses in the institute. The  

Council was of the view that this test would be  most appropriate to test the provisional  knowledge of medical graduates of institution in  Russian Federation & other CIS countries."  

       This Court passed an interim order dated 17.4.2000 in the  pending appeals accepting the resolution, reproduced above, passed  by the General Body of the MCI with the modification that screening  test required to be undergone by the candidates covered by the clause  (vii) should be of the standard of MBBS and not of post-graduate  course of All India Institute of Medical Sciences as suggested in the  resolution. Resolution of the MCI was accepted as an interim  arrangement.  It was directed that those of the students who are  covered by any of the categories mentioned in clauses (i) to (vii) of the  resolution (supra) and are agreeable to the suggestions contained  therein shall get the benefit of the resolution to the extent applicable to  each one of them.  The candidates who get benefit under the aforesaid  resolution of the MCI and are entitled to registration shall be registered  provisionally within four weeks from the date they applied for such  registration.  It was clarified that the benefit being taken by any of the  candidates is without prejudice to any submissions which may be  made in the pending appeals at the time of final hearing.

       In pursuance of the above decisions, the Central Government  proceeded with the procedural formalities for amending Section 13 of  the Act to give effect to these executive decisions.  After completion of  the procedural formalities a Bill further to amend the Act was  introduced in the Rajya Sabha on 12.3.2001 with the following  Statement of Objects and Reasons thereof:

"1.     The Indian Medical Council Act, 1956 contains  provisions in Sections 12, 13 and 14 with a view  to recognizing medical qualifications granted by  medical institutions in foreign countries.

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2.      Over a period of time it has come to notice that a  large number of private agencies sponsor  students for medical studies in institutions outside  India for commercial considerations. Such  students also include the students who did not  fulfil the minimum eligibility requirements for  admission to medical courses in India.  Serious  aberrations have been noticed in the standards of  medical education in some of the foreign  countries which are 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 has been  decided that a provision should be made in the  Indian Medical Council Act, 1956 to enable the  Medical Council of India 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  from universities or medical institutions outside  India before they are granted registration to  practice medicine in India.

3.      Further, issue of prior eligibility certificate by the  Medical Council of India would ensure that only  those candidates who conform to the Council  norms of admission to the medical college in India  would go for undergraduate medical education  outside India.

4.      The Bill seeks to achieve the above objects.

C.P.THAKUR NEW DELHI THE 2ND MARCH, 2001."

       The Bill being after passed by both the Houses of the  Parliament, the Section 13 of the Act was amended.  It was to come  into force from the date it was notified in the Gazette of India.

       On 28.9.2001 in accordance with the provisions of the Indian  Medical Council (Amendment) Act, 2001 (for short "amending Act of  2001") MCI submitted to the Central Government the drafts of the  "Screening Test Regulations", 2002 and "Eligibility Requirement for  taking admission for an Undergraduate Medical Course in Institutions  Abroad Regulations, 2002" for obtaining the previous approval of the  Central Government before its notification in the Official Gazette by the  MCI under Section 33 of the Act.  While forwarding the draft  regulations the MCI indicated in its communication dated 28.9.2001  that in accordance with the amending Act of 2001 the power to specify  the date from which the provisions of the Act were to take effect vested  with the Central Government, such date may be specified by the  Central Government while according its approval to the draft  regulation.  Accordingly, while returning the draft regulations to the  MCI after its approval through its communication dated 13.2.2002 the  Central Government specified 15.3.2002 as the date from which the  provisions of the Regulations would take effect.  The said Regulations  were notified by the MCI in the Official Gazette on 18.2.2002.  Further,  in accordance with the amending Act of 2001 it is the Central  Government which has specified 15.3.2002 as the date from which no  Indian citizen with a foreign primary medical qualification shall be  granted registration, whether provisional or permanent, to practice  medicine in India.

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       Appeals filed by the MCI were finally decided by this Court  by  passing a common judgment dated 8.3.2002 in CA No. 2779 of 2000 \026  Medical Council of India Vs. Indian Doctors from Russia Welfare  Associations & Ors.,  with connected matters reported in 2002 (3)  SCC 696.   It was noticed by the Government of India that there were  number of persons who applied to MCI for grant of provisional  registration after completion of their degrees abroad prior to 15.3.2001  but were not granted provisional registration by MCI for various  reasons including that they have not undergone complete duration of  six years of the medicine course  from institutes recognised by the MCI  and those who did not fulfil the minimum eligibility criteria for joining  medical course laid down by the MCI at the time of their admission in  the medical institutions abroad and came back with medical degrees  which were not recognised by the MCI.  In order to regulate the  registration to such persons who had completed their degrees abroad  prior to 15.3.2001, the Government framed guidelines dated 15.3.2001  which were placed before the Court.  The Court took note of the  provisions of amended Section 13 of the Act and the fact that the  same had been published in the Gazette dated 18.2.2002 by the MCI  after obtaining the approval from the Government of India.  The  guidelines dated 15.3.2001 were approved by this Court in exercise of  the power under Article 142 of the Constitution.  The guidelines were  approved  by  way  of  one  time  measure  and  it  was  observed  that   future cases will be governed by the revised  guidelines framed by the  MCI as approved by the Government.

FACTS IN THE PRESENT CASE:

       Broadly speaking writ petitions can be divided into two groups.   In the first group would fall the writ petitioners who went  to prosecute  their M.D. Physician course in the year 1994 (hereinafter referred to as  "the 1994 batch") and the second group which went in the year 1995  and afterwards (hereinafter referred to as "the second group").

       Writ petitioners went to various countries forming part of  erstwhile USSR for studying M.D. Physician course which is equivalent  to MBBS in India.   As per averments made in the writ petitions all the  writ petitioners were eligible as per eligibility criteria prescribed by MCI  for admission to MBBS course.  They undertook one year preparatory  course which comprises of Biology, Physics, Chemistry and Russian  language.  At the end of the said preparatory course, a written  examination was conducted by a committee appointed and selected by  the Ministry of Health care of the State in which the said institute and  university was situated.  An oral test for proficiency and understanding  in Russian language was conducted by the committee.  The students  in order to be eligible for M.D. Physician course were required to pass  the merit based examination with minimum of 60% marks in  aggregate.   Admission to the M.D. Physician course was based on the  marks obtained by students in the admission test.  Students who failed  to secure 60% marks in the preparatory course were returned back to  India without getting admission in the medical course.  Some medical  institutions conducted their own admission tests and only those who  qualify on merit were offered the M.D. Physician course.

       After successful completion of the preparatory course and  selection for the M.D. Physician course the petitioners undertook the 6  years medical course.  The medical course comprises of 12 semesters  of six months duration each.  Semester examinations were conducted  at the end of each semester which the candidate was mandatorily  required to pass in order to advance further.  In the sixth year the  petitioners underwent internship as per the Rules and Regulations  prevailing in the respective countries. The batch of 1994 after  undergoing full length of their medical education completed their M.D.

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Physician course in June 2001 and the petitioners who prosecuted  their M.D. Physician course between 1995 \026 2002 completed the same  in June 2002.  The petitioners who joined the course in the year 1996  completed their course in 2003. The petitioners who joined in the years  1999 and 2000 are yet to complete their courses.

       So far as the batch 2001 pass outs are concerned, they were  granted provisional registration by the MCI under the interim orders of  this Court but were denied permanent registration.  2002 batch pass  outs were refused provisional/permanent registration by the MCI.   Aggrieved against the denial of permanent registration petitioners filed  the writ petitions in this Court invoking writ jurisdiction under Article 32  of the Constitution, inter alia, alleging that:

       The Indian Medical Council Act, 1956 was amended by the  Indian Medical Council (Amendment) Act, 2001 and the said  Amendment Act was published in the Official Gazette on 3.9.2001  after receiving the assent of the President of India. The unamended  Section 13 (3) of the Act, medical qualifications granted by medical  institutions included in Part II of Third Schedule of the Act are  recognised medical qualifications and persons possessing medical  qualifications are entitled for registration in India.  However, by the said  amendment Section 13 (3) of the Act was amended and it was  provided that such medical qualifications shall henceforth be  recognised medical qualifications only "before such date as the Central  Government may, by notification in the Official Gazette, specify".  In  the Amending Act, it has been left to the Central Government to apply  its mind as to the date from which the amendment was to be given  effect to.  While considering such date the Central Government had to  take into account the rights of the students/doctors who had already  left for studies of MBBS or equivalent courses in other countries  including the newly created States out of the erstwhile USSR.  After  consideration, the Central Government, in its discretion, was to decide  the date from which the amendment was to come into force by  publishing it in a Gazette notification.

       According to the petitioners no notification by the Central  Government has been published in the "Official Gazette" for bringing  into operation the amended Section 13 (3) of the Act and as such the  un-amended Section 13 (3) would apply in their cases.  Section 13 (3)  only prescribes two conditions for doctors to be given permanent  registration, namely,  that he is a citizen of India and has undergone  such practical training after obtaining that qualification as required by  rules and regulations in force.   That the petitioners fulfilled these two  conditions laid down in Section 13 (3) and therefore are entitled to be  registered without the screening test.   Insistence of MCI that the  petitioners should first clear the screening test and only then they can  be granted provisional/permanent registration was ultra vires of the Act  and therefore void.  According to them, the notification published by  the MCI did not amount to issuance/publication of the notification by  the Government of India.  That the Central Government being a  delegatee under the Act to notify the date could not abdicate/delegate  its functions and entrust to any other autonomous body including the  MCI.  That if the power is conferred to do official acts in a certain way  they have to be done in the manner prescribed or not at all.  Their  case is that since Central Government has not notified the date by  publication in the Official Gazette the amended Section 13 (3) has not  taken effect in law and the unamended Section 13 (3) of the Act shall  apply as if the amendment has not come into force.

       Another point raised by the petitioners is that the requirement of  passing the screening test under Section 13 (4) (a) and (b)  are not  applicable to the persons with "recognised medical qualifications"  covered by Section 13 (3) of the Act.  That the screening test provided  is wide-ranging test covering the entire five year course to be tested

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through multiple choice examinations in two days would result into  large scale failures and is as such unreasonable.  Instead of being  subjected to a test the students can be asked to do extra internship.   That the screening test is disproportionate and unreasonable response  in the light of the fact that till 2000, and even thereafter, extra  internship was found to be an adequate protection of the educational  and public interest.  Even if the screening test  is to apply it should be  applied prospectively from 2006-2007 so that students who had joined  the course earlier than 2000-2001 are protected from screening test  but required to do extra internship.

       MCI in its counter-affidavit after tracing out the entire background  of facts narrated in the foregoing paragraphs contended that the writ  petitions were misconceived and deserved to be dismissed.  According  to them any candidate who was seeking provisional or permanent  registration from the MCI under the provisions of the Act after  15.3.2002 is mandatorily required to qualify the screening test.  That  each candidate after completing 6 years of teaching and training in the  medicine course is required to undergo compulsory internship of 1  year after obtaining the qualification.   The contention of the petitioners  that they cannot be subjected to the screening test because the  Central Government has not issued any notification in the official  Gazette specifying the date is incorrect and unsustainable in law.  That  it is the Central Government which has specified the date of 15.3.2002  to bring the regulations in force.  This date so specified by the Central  Government was published in the official Gazette as a part of the  regulation and therefore all the contentions to the contrary in the writ  petition were misconceived, incorrect and therefore denied.  That  issues raised in the present petition were subject matter of Medical  Council of India (supra), in which this Court after hearing the parties  and perusing the documents placed on the record conclusively  decided that all the candidates who applied to MCI for provisional  registration after 15.3.2001 would become eligible to seek permanent  registration only after doing one year internship and passing the  screening test.  In terms of the orders of the Court they all fall under  the provisions of Screening Test Provisions of 2002 and are required  to qualify the screening test before they are granted registration to  practice medicine in India.  That it is an admitted case that the  petitioners obtained their medicine qualifications after 15.3.2001.  They  obtained their provisional registration enabling them to do mandatory  internship of one year around September, 2001.  They are seeking  grant of permanent registration after 15.3.2002 and therefore are  clearly under the statutory regulation to qualify in the screening test.   Similarly, the other contentions raised by the petitioners in the writ  petitions were also denied.

       Counsel for the parties were heard at length on the points raised  in the writ petitions on 28 and 29th April, 2002.  When the hearing of  the case was nearing the conclusion the Bench put it across to the  counsel for the parties that if the Court forms an opinion that the  students who are graduating from foreign universities and specially  from the universities of erstwhile USSR should undergo a screening  test and practical training before being held entitled to permanent  registration for medical practice in India than what should be the  nature, content and methodology of test and who should conduct it?    Learned counsels for the respondents agreed to hold high level  consultation and come back with their suggestions.  Counsel for the  petitioners stated that they would hand over to the counsel of Union of  India and the MCI their suggestions within a week.  Respondents were  put at liberty to consult the National Board of Examinations and such  other expert bodies as they deemed fit.  The petitioners were permitted  to nominate any two representatives of theirs who should be present at  the time of hearing in the process of finalising the nature, screening  and methodology of the test proposed.   The matter was adjourned to  12th July, 2004.

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       Union of India in compliance with the order dated 29th April, 2004  filed an affidavit stating therein that the suggestions received by the  petitioners were initially considered in a joint meeting called by the  Union of India on 23.6.2004 under the Chairmanship of the Joint  Secretary (Medical Education) in the Ministry of Health and Family  Welfare and attended by the members of the Sub-Committee  constituted by the MCI for this purpose and a representative from the  National Board of Examinations, Delhi.  In this meeting it was decided  to afford personal hearing to two of the representatives of the  petitioners in its next meeting scheduled for 30.6.2004 to finalise the  nature, content and methodology of the screening test.  In the meeting  held on 30.6.2004 in addition to the representatives from MCI, National  Board of Examinations, two representatives from the Directorate  General of Health Services were also associated to obtain their expert  opinion in the matter.  Representatives of the petitioners were heard  by the Committee.   

Suggestions made by the students-petitioners for permitting  extra period of internship over and above the normal one year of  internship in lieu of screening test was not found to be acceptable, the  same being contrary to the IMC (Amendment) Act, 2001.  Similarly,  suggestion for grant of provisional registration to do one year  internship in India without having to pass the screening test was also  found not to be acceptable being contrary to the IMC (Amendment)  Act, 2001.  Suggestion put forth by the petitioners for exclusion of the  pre-clinical and para-clinical entirely from the screening test was also  not found to be acceptable.  It was reiterated that adequate knowledge  in these subjects was essential to undertake clinical practice.   However, taking into consideration the difficulty level expressed by the  petitioners it was recommended that question of the screening test  may be put in the ratio of 1/3rd from pre-clinical and para-clinical  subjects together and the remaining 2/3rd from clinical subjects.   

In the meeting held on 23.6.2004 while considering the written  submissions made by the petitioners, for exempting them from  appearing again in papers qualified by them in previous attempts, the  members had agreed to the said suggestion.  It was agreed that the  number of papers in the test could be three, one paper consisting of 50  questions each on pre-clinical and para-clinical subjects; second paper  consisting of 100 questions on medicine and allied subjects and the  third paper consisting of 100 questions on surgery and allied subjects  including Obstetrics and Gynaecology.  The students were to obtain a  minimum 50% marks in each paper which they could clear in one or  more attempts having not to reappear in papers qualified in the  previous attempts.  Wherever they qualified two of the three papers  with the minimum of 50% marks while attempting the last paper they  could be given grace marks upto 5 so as to declare them pass in the  screening test.  This was done on the pattern of the University  examination for MBBS in India.   

However, during the oral submissions in the meeting held on  30.6.2004 the representatives of the petitioners were unanimous in  their view that the number of papers in the screening test be  reduced  to just one, either on the clinical subjects only or if need be with very  minor percentage of questions on pre-clinical and para-clinical  subjects.    For the sake of convenience in conducting the test, the  paper can be divided into two parts, the questions on pre-clinical and  para-clinical subjects forming part I and the questions on clinical  subjects forming part II.  A student could be declared as pass if he  secured a minimum of 50% marks in both the papers combined.  In  this scheme the test was to be conducted on the basis of single paper  without any facility of grace marks.  In case of failure the student is  required to attempt the paper again in both the parts of the papers, i.e.,  in Part I and II.  Suggestion from the students that pass percentage be

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reduced below 50% was not found to be feasible and acceptable  as  the same had to be in tune with the minimum pass percentage fixed  for MBBS examination.  National Board of Examinations was to  conduct the test and the level of questions put in the examination was  to be at the level of final year MBBS only and not at the level of Post  Graduate Entrance Examination.  

       The minutes of the meeting held on 30.6.2004 were approved by  the Government and forwarded to the MCI and the National Board of  Examinations for further appropriate action.  MCI has also approved  the minutes of the meeting held on 30.6.2004.   

In response to the affidavit filed by the Union of India petitioners  filed their rejoinder.  They reiterated that it would be difficult for the  students to clear the screening test at this belated stage.

       Counsel for the parties had been heard at length.

       Main thrust of the submissions made on behalf of the petitioners  is that all the petitioners have studied full length of the course from  medical institutes/Universities which are recognised by the MCI.  They  did not suffer from any disqualification or ineligibility and therefore they  cannot be subjected to any condition of screening test.  That the  judgment of this Court in Medical Council of India (supra), was in  respect of those Indian students from Russia who had suffered one or  the other kind of disqualification or ineligibility.  There was not a single  case as of the petitioners herein who do not suffer from any  disqualification and/or ineligibility.  The petitioners w ho did not suffer  from any disqualification or ineligibility and have studied their entire  course of M.D. Physician (which is equivalent to MBBS in India) from  Medical Institute or University recognised by the MCI under the Act  could not be subjected to qualifying screening test.  That the law laid  down by this Court in Medical Council of India (supra), is not  applicable to the petitioners.  Another submission made on their behalf  is that the amended Act was to come into force from the date to be  notified by the Central Government and since the Central Government  has not notified the date by publishing it in the official Gazette the  same has not come into force.  That the Central Government did not  have any jurisdiction to further delegate the power to publish the  notification in the official Gazette to the MCI.  A delegatee of the power  under the Act could not further delegate its functions unless so  authorised under the Act.   

As against this the case of the respondents is that standard of  medical education cannot be permitted to be lowered in the larger  public interest.  A person who is not duly or adequately qualified  cannot be permitted to administer public health care to the public at  large to their detriment.  That the cut off date was fixed and approved  by the Central Government which has been published in the official  Gazette which is sufficient compliance and the amended provision has  come into force.  That the issues raised in these writ petitions are not  res integra and they stand concluded by the three-Bench judgment of  this Court in Medical Council of India (supra).

       The decision of this Court in Medical Council of India (supra),  is required to be analysed in depth.  Students mainly being of 1997- 1998 pass outs who were affected by the action of the MCI refusing  the grant of registration  approached various High Courts agitating  their grievances against the MCI and praying for grant of  provisional/permanent registration.  Initially the High Courts granted  the reliefs prayed for by such affected students and directed the MCI  to grant them provisional/permanent registration.  The MCI being  aggrieved filed appeals against the judgments of the High Courts in  which leave was granted.  During the course of the hearing of the  appeals on different occasions the Court made certain observations

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keeping in view the interest of all concerned, i.e., standards of medical  education, students and the public health in general.  The Court asked  the Government of India to formulate an appropriate policy bearing in  mind the human problem arising in relation to the doctors in question.   Section 13 of the Act was thereafter amended by the Act of 34 of 2001  providing for to cover situation as arising in the cases before the Court.   

       The Court noted that the questions for conduct of the screening  test and for issue of eligibility certificate by the MCI to the students  proceeding abroad for studies in medicine were approved by the  Government of India and sent to MCI.  The MCI sent the same on  18.2.2002 to the Government of India press for publication in the  Gazette, which was published in the official Gazette on 15.3.2002.  After noting the provisions of amended Section 13 of the Act and the  fact that the same have been published in the Gazette dated  18.2.2002 by the MCI after obtaining the approval from the  Government of India, it was observed:

"5.     Under the provisions of the Act a person has to  successfully complete compulsory internship of one  year after getting provisional registration and all persons  who applied for provisional registration and have to do  the internship on or after 15.3.2001 will be required to  qualify the screening test as per the provisions of the  Screening Test Regulations, 2002, as they would  become eligible for permanent registration on or after  15.3.2002, that is, after successful completion of one  year internship.  However, the Government noticed that  there are a number of persons who have applied to MCI  for grant of provisional registration after completion of  their degree abroad prior to 15.3.2001 and have not  been granted provisional registration by MCI for various  reasons, such persons fall into the following categories:

(a)             those who did not undergo the complete  duration of six years of the medicine course  from institutes recognised by MCI;

(b)             those who did not fulfil the minimum  eligibility criteria for joining medical course  laid down by MCI at the time of their  admission in the medical institutions  abroad, particularly in the erstwhile States  of USSR; and

(c)     those who came back with medical degrees  which are not recognised by MCI."

       Under the provisions of Amended Act a student was required to  successfully complete compulsory internship of one year after getting  provisional registration.  The students who applied for provisional  registration after 15.3.2001 were required to do one year of internship  and to qualify the screening test as per the Screening Test  Regulations, 2002.  The Government noticed that there are number of  persons who applied to MCI for grant of provisional registration after  completion of their degree abroad prior to 15.3.2001 but were not  granted provisional registration by MCI for various reasons including  that they have not undergone complete duration of six years of the  medicine course  from institutes recognised by the MCI; and those  who did not fulfil the minimum eligibility criteria for joining medical  course laid down by the MCI at the time of their admission in the  medical institutions abroad and those who came back with medical  degrees which were not recognised by the MCI.  In order to regulate  the registration to such persons who had completed their degree

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abroad prior to 15.3.2001, the Government framed the following  guidelines which were placed before the Court.

"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 guidelines are 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  test 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.

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(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."

The Court approved the guidelines placed before the Court in  exercise of powers under Article 142 of the Constitution and made  them  applicable to all such persons who were similarly situated  whether they were before the Court or not.  The Court pointedly held  that in respect of those who have already applied for registration to  MCI, the same shall be granted or refused within a period of 15 days in  terms of the order passed and on the grant of such registration the  students shall undergo internship or the housemanship, if needed.  It  was made clear that guidelines approved by the Court was by way of  one time measure.  But for future cases it was observed that they shall  be governed by the revised regulations framed by the MCI as  approved by the Government.  It was observed: "7.     In the special features and circumstances arising  in these cases, it is unnecessary to consider the  various contentions urged on behalf of the parties  but we propose to dispose of these matters by  approving the guidelines set forth above in  exercise of powers under Article 142 of the  Constitution and these guidelines will be  applicable to all such persons who are similarly  situate, whether they are parties before this Court  or not.  In respect of those who have already  applied for registration to MCI, the same shall be  granted or refused within a period of 15 days from  today in terms of this order.  On grant of such  registration, the students shall undergo the  internship or the housemanship, if needed.  It is  made clear that these guidelines approved by us  are by way of a one-time measure.  Future cases  will be governed by the revised Regulations  framed by MCI as approved by the Government.      

8.      The orders of the High Courts shall stand  displaced by this order and these appeals shall  stand disposed of accordingly.  Any proceeding  pending in any High court relating to these  matters shall stand withdrawn to this Court and  disposed of in the same terms as aforesaid."                                                [Emphasis supplied]

       In Medical Council of India (supra), this Court was seized of  the issues which have been raised in these petitions.  The Court noted  that it is the Central Government which had fixed the cut off date and  had asked the MCI to get it published in the official Gazette which was  duly done on 15.3.2002.  The Court after reproducing the regulations  came to the conclusion that persons who applied for provisional  registration and have to do the internship on or after 15.3.2001 will be  required to qualify the screening test as per the provisions of the  Screening Test Regulations, 2002, as they would become eligible for

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permanent registration on or after 15.3.2002, i.e. after successful  completion of one year internship.    Government taking notice of the  fact that there are number of persons who had applied to MCI for grant  of provisional registration after completion of their degrees prior to  15.3.2001 formulated guidelines to grant registration to the such  persons who had completed their degrees abroad prior to 15.3.2001.   These guidelines were approved by the Court as one time measure  but it was held that in future all cases will be governed by the revised  regulation.  This observation of the Court forecloses the contentions  which have been raised by the petitioners in these petitions regarding  the coming into force of the amended Act as well as the applicability of  the amended provisions to the students who have applied for  registration after 15.3.2001.

       Students who passed the medicine course in 2001 must have  joined the language course in the year 1994 and the medicine course  in the year 1995.  Students who passed the medicine course in 2002  must have joined the language course in the year 1995 and the  medicine course in the year 1996. Similarly, students who joined the  medicine course in 1997, 1998, 1999, 2000 and 2001 and prior to  15.3.2002 shall also be governed by the screening test regulation even  though they have joined the medicine course prior to the coming into  force of the screening test regulation on 15.3.2002.  Thus the students  who passed the medicine course in 2001, 2002 are not different from  the students who have passed or will pass medicine course in 2003,  2004, 2005 and 2006 and thereafter respectively.

       Candidates who applied to MCI for provisional registration after  15.3.2001 would complete their one year internship after the cut of  date of 15.3.2002.  They would become eligible to seek permanent  registration after the commencement of the provisions of the  Screening Test Regulations, 2002.  In terms of the orders of this Court  in Medical Council of India (supra), they all fall under the provisions  of the Screening Test Regulations, 2002 and were required to qualify  the screening test before they are granted registration to practice  medicine in India.  The grant of provisional registration to them by MCI  under Section 25 of the Act to do the one year internship did not  provide them with any automatic right for grant of permanent  registration thereafter since Section 25 of the Act makes it clear that  provisional registration could be granted for the purpose of undergoing  the practical training and for no other purpose.

       Under the Amendment Act 34 of 2001 the cut off date was to be  specified by the Central Government.  It is not in dispute that the cut  off date was specified by the Central Government.  The executive  policy which was prevalent before 2001 has been given the shape of  legislative policy.  Such legislative policy having regard to the  purposes and objects the MCI seeks to achieve can neither be said to  be unreasonable nor arbitrary in terms whereof the student obtaining a  degree from a foreign university is subject to a screening test.

       There is sufficient and substantial compliance with the provisions  of Section 13 (4A) of the Act by the Government of India.  It is the  Government of India which had fixed 15.3.2002 has the date for  bringing into force the screening test regulations.  Government of India  in its affidavit filed in January 2002 as specifically stated that it is the  Government of India which had fixed 15.3.2002 as the date for  bringing the screening test regulation.

       Suggestion of the petitioners that they should be allowed to join  the internship by grant of provisional registration without qualifying the  screening test whereby they can involve themselves in the patient care  and management cannot be permitted in the larger public interest.   Besides the above this suggestion is contrary to the Regulation 3 of  the Screening Test Regulations, 2002 and to the observations in    

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para 4 of the judgment in Medical Council of India (supra).

Regulation 3 of the Screening Test Regulations, 2002 provides  that provisional registration can be granted to the candidate enabling  him to start internship for practical training involving patient care and  management only after qualifying the screening test.  It is not  permissible to grant provisional registration to a candidate who has not  undertaken internship at the recognised medical institution abroad  after completion of six years of medicine course without qualifying the  screening test.   

       MCI is the expert body which can lay down the criteria for grant  of the permanent registration to a person to practice medicine and  involving himself in the patient care and management.  Otherwise also  we are not inclined to permit the petitioners to practice medicine  overriding the provisions of the Act as the Court has to take into  consideration the interest of the public at large as well.  A person who  is not duly qualified as prescribed by the MCI cannot be permitted to  involve himself in public health care and play with the lives of human  beings.   It is not for this Court to decide as to who is duly qualified to  practice medicine.  MCI being the expert body is the best judge to do  so.  After a thorough examination of the entire issue the MCI has come  to the conclusion that after disintegration of USSR serious aberrations  in the system of recruitment and admission of students in institutions  located in Russia, there was a decline in the standards of medical  education in these countries.  In this backdrop the MCI keeping in view  the interest of the public at large and the students passing from these  institutions decided that the students would be required to do  internship for one year as well as to qualify the screening test before  they could be given a permanent registration involving themselves in  the public health care.

       Petitioners are not being debarred from starting medical practice  in India but they are merely to undergo screening test as provided in  the statutory regulation.  The policy decision to subject the students to  undergo a screening test has been upheld by this Court in Medical  Council of India (supra).  

       The suggestion on behalf of the petitioners that only one paper  instead of three with less weightage in the screening test be given to  the pre-clinical and para-clinical subjects taught in the initial years of  the medicine course has been accepted.  The suggestion that the  extra internship be provided in lieu of the screening test and that the  candidates be permitted to join the internship straightaway without  qualifying the screening test cannot be accepted being contrary to the  statutory regulations and against the public interest.

       Minutes of the meeting held on 30.6.2004 which have been  approved by the Government of India and the MCI are approved.  In  future the screening test would be conducted as per the guidelines laid  down in the meeting held on 30.6.2004.

       For the reasons stated above, we do not find any merit in these  writ petitions and Civil Appeal and dismiss the same with no order as  to costs.