Hon'ble Virendra Kumar Dixit,J.
Order (Oral) We have heard learned counsel for parties and perused the pleadings of special appeal.
It appears from Annexure 6 to the special appeal that the appellant was not found eligible to appear at the screening test as prescribed under the Screening Test Regulations, 2002(for short, 'the 2002 Regulations'). The aforesaid letter as communicated by the Medical Council of India contains the following mention:
Vide Regulation 3 of the 2002 Regulations, an Indian citizen possessing a primary medical qualification awarded by any medical institution outside India who is desirous of getting provisional or permanent registration with the Medical Council of India or any State Medical Council on or after 15.03.2002 shall have to qualify a screening test conducted by the prescribed authority for that purpose as per the provisions of Section 13 of the Indian Medical Council Act, 1956 (for short, 'the 1956 Act').
The appellant having passed ISC examination from La Martiniere College, Lucknow, with 44.66% marks in Physics, Chemistry and Biology (total 52% in Physics, Chemistry, Biology and English) got himself admitted in B.P. Koirala Institute of Health Sciences, Dharan, Nepal, on the basis of college prospectus. The said course run by the college was recognized by Nepal Medical Council, Medical Council of India and Sri Lanka Medical Council. The prospectus inter alia provided that the candidates who had passed ISC examination with Biology, Physics, Chemistry and English as their major subjects with at least 50% marks in the aggregate in these subjects were eligible to apply for admission in the MBBS course. Accordingly, the appellant was admitted in MBBS course which he completed in 2010. However, when he applied for eligibility certificate to appear at screening test under the 2002 Regulations, he was found not eligible vide the aforesaid communication received from the Medical Council of India. The appellant therefore questioned the rejection of his application in Writ Petition No.7849 (MS) of 2011 which was dismissed by learned Single Judge vide the impugned judgment dated 13.02.2012 while discussing the judgment of Hon'ble the Apex Court passed in the case of Yash Ahuja and others vs. Medical Council of India and others reported in (2009) 10 SCC 313. That is how the appellant is before us in this intra-court appeal.
Learned counsel for appellant inter-alia submitted that vide a press note dated 08.10.2008 it was made clear by the Medical Council of India that so far as the private medical colleges like Manipal College of Medical Sciences, Pokhra, Nepal and Universal College of Medical Sciences, Bhiarahwa, Nepal, were concerned, the candidates passing out with MBBS from these two colleges would become entitled for registration under the provisions of the 1956 Act only upon qualifying in the screening test. It was also mentioned in the press note that all those Indian students who were desirous of seeking admission in any foreign medical institution, thereafter, were required to obtain eligibility certificates from the Medical Council of India under the Eligibility Certificate Regulations, 2002, before they were admitted in any foreign medical institution whether recognized under Section 12 or under Section 13 of the 1956 Act.
Thus, learned counsel for appellant submitted that after the date of issuance of press note namely 08.10.2008, only for fresh admission in medical college the requirement of eligibility certificate was made compulsory and not for appearance at the screening test after the student had already acquired the primary medical qualification of MBBS.
Learned counsel also referred to some information received under Right to Information Act vide Annexure 20 to show that the Medical Council of India categorically replied that at the time of admission of the students in B.P. Koirala Institute of Health Sciences, Dharan, Nepal in 2002 no eligibility certificate was issued to the candidates by the Medical Council of India. It was also mentioned that as per the Executive Committee's decision dated 10.11.2008, the students who have got admission in the medical college recognized u/s 12(2) of the 1956 Act after 24.09.2008 are required to possess eligibility certificate from the Medical Council. Learned counsel, thus, submitted that as per the judgment of Hon'ble the Apex Court rendered in the case of Yash Ahuja (supra) there is only one requirement, namely the requirement of appearance at screening test and there is no such requirement that the students who had already been admitted in 2002 in the private medical college should possess and produce the eligibility certificate of Medical Council of India in order to post facto justify his admission in MBBS/primary medical qualification before being allowed to appear at the screening test. Learned counsel also took us to a judgment of a Division Bench at Allahabad in Writ Petition (Civil) No.26051 of 2010 (Dr. Abhipray Gahlowt vs. Union of India and others) in support of his contention. In the said judgment, it was directed that if similarly situated candidates were given provisional registration, the petitioners therein also became entitled to be issued such registration certificates. Learned counsel informed the Court that this order of Division Bench passed after the judgment of Hon'ble the Apex Court in Yash Ahuja's Case (supra) has been complied with by the Medical Council of India without a challenge before Hon'ble the Apex Court. It is also a submission of learned counsel for appellant that in an earlier three Judge Bench judgment of Hon'ble the Apex Court reported in (2000) 9 SCC 391 (State of U.P. and others vs. Reena Singhal), the Hon'ble Court has passed the following directions:
"The High Court has found on the basis of entries on record and the admitted position of the parties before it, that Diploma in Gynaecology Course being conducted in Maharani Laxmi Bai Medical Council of India and that at the time of counselling when a seat in Diploma in Gynaecology in the said College was offered to the respondent, who opted for it, she was not made aware of the position that the course was a recognized course. It is also admitted that neither in the brochure nor in the prospectus was it disclosed by the appellants that the diploma in Gynaecology in that college was not a course recognized by the Medical Council of India. The respondent was apparently misled. It did not behove the appellants to have kept back such vital information from the students seeking admission to the diploma course in the medical college. It was not only concealment of such a material fact in the brochure and the prospectus but, even at the time of counselling, admittedly information was not imparted to the candidates. The High Court under the circumstances was justified in allowing the writ petition in the following terms:(emphasis supplied) "The writ petition is allowed and the opposite parties, particularly opposite party no. 2, is directed by a writ of mandamus to offer a course of specialty in either of the medical colleges as courses as disclosed by her in her representation dated 20.6.1994 and 10.9.1994, contained in Annexures 6 and 8 respectively, to the writ petition within a period of one month from the date of service of a copy of this order".
2- In view of the admitted fact-situation, we see no reason to interfere. This appeal, therefore, fails and is dismissed with costs."
Thus, in terms of above ratio if the appellant applied for and got admission pursuant to the prospectus of college which did not require production of eligibility certificate of Medical Council of India in advance, he cannot be put to a disadvantageous position because of subsequent events which were not within his knowledge and control.
On the other hand, Shri S.M.K. Chaudhary, learned senior counsel, while placing heavy reliance on the judgment of Hon'ble the Apex Court in Yash Ahuja's case (supra), in particular, referred to paragraphs 76 and 77 which are reproduced as:
"76. 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 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.
77. 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 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."
On due consideration of rival submissions we are of the view that the appellant-student took admission only on the basis of prospectus after fulfilling all the requisite eligibility qualifications, as mentioned therein, in B.P. Koirala Institute of Health Sciences, Dharan, Nepal. It is also an admitted fact that for admission in 2002 no eligibility certificate was required to be obtained from the Medical Council of India as is admitted by the Medical Council of India in its reply submitted to the inquiry under Right to Information Act. There is also no dispute that the question of appearance at screening test and requirement of eligibility certificate for admission in undergraduate course were consciously enforced only after the press note of Medical Council was issued in 2008.
Thus, prayer for interim relief is allowed and the respondents as well as prescribed authority are directed to allow the appellant to appear at screening test scheduled to be held on 30.09.2012.
Parties shall complete the pleadings within four weeks.
List the matter for hearing thereafter on 19.11.2012.
Order Date :- 25.9.2012 A. Katiyar