THE NATIONAL MEDICAL COMMISSION VS POOJA THANDU NARESH & ORS

THE NATIONAL MEDICAL COMMISSION VS POOJA THANDU NARESH & ORS - Supreme Court Case Decision 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2950-2951 OF 2022

(ARISING OUT OF SLP (CIVIL) NOS. 2536-2537 OF 2022)

THE NATIONAL MEDICAL COMMISSION .....APPELLANT(S)

VERSUS

POOJA THANDU NARESH & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The present appeals are directed against orders dated 29.7.2021 and

20.9.2021 passed by the High Court of Judicature at Madras in the writ

petitions filed for quashing the circulars issued by the Tamil Nadu

Medical Council on 12.11.2020 and 24.12.2020 and consequential

orders of directing respondent No. 1/writ petitioner1

 to undergo two

months of Compulsory Rotatory Residential Internship,2

 followed by

one year of internship before granting permanent registration under

the Indian Medical Council Act, 19563

 (now repealed by the National

Medical Commission Act, 2019).

1 For short, the ‘student’

2 For short, the ‘CRRI’

3 For short, the ‘Act’

1

2. The brief facts leading to the present appeals are that the student and

other similarly situated students after qualifying the eligibility test i.e.

as per “The Eligibility Requirement for Taking Admission in an

Undergraduate Medical Course in a Foreign Medical Institution

Regulations, 20024

 joined medical colleges in the People’s Republic of

China, such as Qingdao University Faculty of Medicine5

. It is the stand

of the students that they have undergone nine semesters of their

academic course including clinical training on the campus. However,

due to the outbreak of COVID-19 pandemic, the clinical training for the

subjects of Ophthalmology, Otorhinolaryngology and Nuclear Medicine

in the 10th Semester was done online and that they have been granted

degree of Bachelor of Medicine & Bachelor of Surgery (MBBS) after

qualifying in all the subjects as per the teaching plan till May, 2020 by

the Foreign Institute. According to the student, some of her fellow

students have been granted provisional registration by the Tamil Nadu

Medical Council but she has been declined such provisional registration

which led to filing of number of writ petitions before the High Court.

The argument is that since she has been declared qualified by the

Foreign Institute, the only requirement before provisional registration is

qualifying in the Screening Test in terms of the Screening Test

Regulations, 20026

. As she has qualified such Screening Test,

4 For short, the ‘Eligibility Regulations’

5 For short, the ‘Foreign Institute’

6 For short, the ‘Screening Regulations’

2

therefore, the condition in the statute read with the Screening

Regulations stands satisfied. Hence, the decision of the Medical Council

not to grant provisional registration is not justified in law.

3. The High Court in its order dated 29.7.2021 passed the following

directions:

“i) The impugned circulars dated 12.11.2020 and 24.12.2020

passed by the third respondent, rejecting the claim of the

petitioners are quashed, as far as the petitioners are concerned.

ii) The petitioners shall make their individual application to the

third respondent for provisional registration for doing their CRRl

along with the documents, as required by the second

respondent, within a period of one week from the date of receipt

of a copy of this order.

iii) On such application being made by the petitioners, the third

respondent shall verify the original documents and consider their

application for issuing certificate of provisional registration.

iv) The above said exercise shall be completed within two weeks

from the date of receipt of the application from the petitioners.”

4. Subsequently, writ petitions were listed under the caption “for

clarification” and thereafter an order was passed by the High Court

with the following directions:

“(a) the petitioners who submit their applications to the Tamil

Nadu Medical Council shall be provisionally registered and they

shall be permitted to undergo the internship (CRRI);

(b) Taking into consideration the fact that the petitioners had not

undergone the practical and clinical training during the MBBS

Course in physical form in the medical university where they had

undergone the course, there shall be a direction to the effect

that the petitioners will undergo the internship for a period of 14

months and the additional 2 months shall be utilized for

providing practical and clinical training in the initial phase of

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their internship and thereafter, the regular internship shall follow

for a period of 12 months (1 year). This Court is aware of the fact

that this requirement goes beyond what is provided under clause

11 of the screening test regulations 2002. However, instead of

making the students go back to the respective universities and

complete the practical and clinical training which may be

impossible in the prevailing situation, it will be a better viamedia to make them undergo the same in the initial phase of the

internship for a period of 2 months. This will sufficiently satisfy

the requirements for maintaining better quality in medical

education and at the same time safeguarding the interest of the

students;

(c) It is made clear that all these directions issued by this Court

are peculiar to the given situation and this can never be taken as

a precedent in future. The Tamil Nadu Medical Council shall

ensure that the students who apply for provisional registration

are possessing screening test passing certificate issued by the

concerned authority and only thereafter register them

provisionally, and:

(d) This Court expects that this order will be made applicable to

all the students who are similarly placed and they are not made

to knock the doors of this Court.”

5. Some of the statutory provisions of the Act relevant for the purpose of

the present appeals read thus:

“13. (4-A) A person who is a citizen of India and obtains medical

qualification granted by any medical institution in any country

outside India recognised 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 recognised medical qualification for the purposes of this

Act for that person.

(4-B) A person who is a citizen of India shall not, after such date

4

as may be specified by the Central Government under subsection (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 subsection (4-A):

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 recognised 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.”

6. The Eligibility Regulations and the Screening Regulations were

published in the Government of India Gazette on the same date i.e.,

18.2.2002. It is not disputed that the student has qualified the

eligibility test which made her eligible to undergo the medical course in

the Foreign Institute. The relevant provisions of the Eligibility

Regulations read as under:

“9. After verification, as required, if the candidate is found to

fulfil the eligibility criteria, the Council shall issue an Eligibility

Certificate in the prescribed format to the candidate certifying

that he/she is eligible to join a medical institution outside India to

obtain a primary medical qualification. The certificate shall

indicate that on return after obtaining the foreign primary

medical qualification, the candidate shall have to undergo a

screening test, subject to fulfilment of the conditions prescribed

in the Screening Test Regulations, 2002, and that passing this

test shall only entitle him to provisional/permanent registration

by the Medical Council of India or the State Medical Councils.

5

Provided that he/she has studied for the medical course at

the same institute located abroad for the entire duration of the

course from where he/she has obtained the degree.

10. In case the candidate does not fulfil any of the qualifying

criteria the Council may reject his application for issue of

Eligibility Certificate giving the reasons therefore.

11. The issue of a eligibility certificate to a candidate shall not

entitle him to any right, whatsoever, other than to take

admission in an undergraduate medical course in a foreign

medical institute.”

7. Some of the relevant conditions of the Screening Regulations read as

thus:

“2. (c) “Permanent Registration” means registration for the

purpose of enrolment on any State Medical Register or Indian

Medical Register after obtaining the Primary Medical qualification

followed by completion of such practical training as prescribed

either in India or abroad as per the provisions of the Act;

xx xx xx

(f) “Primary Medical qualification” means a medical qualification

awarded by any medical institution outside India which is a

recognized qualification for enrolment as medical practitioner in

the country in which the institution awarding the said

qualification is situated and which is equivalent to MBBS in India;

xx xx xx

(g) “Provisional Registration” means provisional registration in a

State Medical Register or Indian Medical Register for the purpose

of undergoing practical training in India as prescribed and for no

other purpose by an Indian citizen possessing any primary

medical qualification but has not 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;

6

xx xx xx

4. Eligibility criteria. – No person shall be allowed to appear in

the screening test unless –

xx xx xx

(3) he/she has studied for the medical course at the same

institute located abroad for the entire duration of the course

from where he/she has obtained the degree:

Provided in cases where Central Government is informed

of condition of war, civil unrest, rebellion, internal war or any

such situation wherein life of Indian citizen is in distress and such

information has been received through the Indian Embassy in

that country then the Council shall relax the requirement of

obtaining medical education from the same institute located

abroad in respect of which communication has been received

from the Indian Embassy in that country.

xx xx xx

5. The purpose.—The purpose of conducting the screening test

shall be only to determine the eligibility or otherwise of a

candidate for his or her registration with the Medical Council of

India or any State Medical Council and qualifying the same shall

not confer any other right, whatsoever, on a candidate.

xx xx xx

11. The Prescribed Authority shall intimate the result of the

Screening Test to the candidates as well as to the Secretary,

Medical Council of India and the State Medical Councils. The

unsuccessful candidates shall also be appropriately informed.

The candidates who qualify the Screening Test may apply to the

Secretary, Medical Council of India, New Delhi or to any State

Medical Council for provisional registration/permanent

registration along with the requisite registration fee in favour of

Secretary, Medical Council of India or the State Medical Council.

The Medical Council of India or the State Medical Councils shall

issue provisional registration to such successful candidates, who

are yet to undergo one year internship in an approved institution

and issue permanent registration to such eligible candidates who

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have already undergone one year internship, as the case may

be.”

8. A notification notifying the National Medical Commission (Foreign

Medical Graduate Licentiate) Regulations, 20217

 dated 18.11.2021 has

been published. Relevant provisions of the said Regulations read thus:

“5. Applicability of these regulations. – (1) Notwithstanding

anything contained in regulation 4, these regulations shall not be

applicable –

(a) To foreign medical graduates who have acquired a foreign

medical degree or primary qualification, as the case may be,

prior to the coming into force of these regulations;

(b) to candidates who are pursuing their education in foreign

institutions prior to the coming into force of these regulations;

and

(c) to such foreign medical graduates who are specifically

exempted by the Commission or the Central Government, as the

case may be, by notification.

(2) The foreign medical graduates who have acquired a foreign

medical degree or primary qualification, as the case may be, and

the candidates who are pursuing their education in foreign

institutions, prior to the coming into force of these regulations,

shall be governed by the erstwhile applicable regulations.

xx xx xx

SCHEDULE-I

(See regulation 4)

CRITERIA TO RECOGNISE FOREIGN MEDICAL GRADUATES

APPLYING FOR LICENCE OR PERMANENT REGISTRATION TO

PRACTICE IN INDIA

1. The guiding principle for licensing a foreign medical graduate

to practice in India is to ensure that the Foreign Medical

7 For short, the ‘2021 Regulations’

8

Graduate fulfils the requirements of education and training

equivalent or commensurate with that of an Indian medical

graduate.

2. Eligibility for primary medical qualification in a country

outside India:

(i) Duration of course and training in subjects leading to primary

medical qualification:

(a) Any person who pursue the foreign medical degree should

have undergone a course of theory, practical and clinical training

equivalent to Bachelor of Medicine and Bachelor of Surgery

(MBBS) of India; and

(b) Should have been completed internship of twelve months in

addition to such course referred to in clause (a), in the same

foreign institution where the primary medical qualification has

been obtained, along with hands-on training in clinical subjects

including but not limited to Community Medicine, General

Medicine, Psychiatry, Paediatrics, General Surgery, Anaesthesia,

Obstetrics and Gynaecology, Orthopaedics, Otorhinolaryngology,

Ophthalmology, Dermatology, Emergency or Casualty services,

lab services and their sub-specialties.”

9. The appellant had issued a clarification on 4.3.2022 that the 2021

Regulations are not applicable to foreign medical graduates who have

acquired a foreign medical degree or primary qualification, as the case

may be, prior to 18.11.2021. However, it further prescribes as under:

“6. Taking into the consideration all the relevant provisions of

NMC’s Regulations and circumstances, the Commission decided

to issue the detailed guidelines/process which is required to be

followed by State Medical Councils for grant of registration of

FMGs till further instructions from the Commission or

implementation of NExT Exam, whichever occurs earlier. State

Medical Councils should ensure the following conditions/criteria

while processing the case for grant of registration of FMGs:

(i) The medical qualification/degree must be registerable to

practice medicine in their respective jurisdiction of the country in

9

which the medical degree is awarded and at par with the license

to practice medicine given to citizen of that country.

(ii) Documentary evidence certifying successful completion of

physical training or internship during the medical qualification

equivalent to MBBS, if conducted in foreign institute.

(iii) Copy of passport with VISA and immigration details.

(iv) Foreign medical Graduate Examination (FMGE) conducted by

National Board of Examination (NBE) should be cleared by the

candidates seeking registration in India.

xx xx xx”

10. It is admitted by the student that she has not undergone the practical

and clinical training in the physical form, though she has undergone

the course through online mode for the entire duration, therefore, she

satisfies the requirement under Regulation 4(3) of the Screening

Regulations.

11. The argument of Mr. Vikas Singh, learned senior counsel for the

appellant, is that in terms of the statutory Regulations, the student has

to study the medical course in the same institute located abroad for

the “entire duration”. It has been argued that as per the dates of the

semester and the date of departure of student from China, it shows

that the student has not completed the ninth semester in part and

tenth semester completely, therefore, the student is not eligible for

provisional registration to undergo one year internship so as to be

eligible for registration as a professional under the Act. The argument

10

is that clinical training cannot be imparted through online mode as it is

the actual training involving diagnosis and interactions with the

patients. There cannot be any online clinical training which will satisfy

the requisite condition of the Screening Regulations.

12. Mr. S. Nagamuthu, learned senior counsel for the respondent-student

relied upon a judgment of this Court reported as Medical Council of

India v. J. Saai Prasanna & Ors.

8

 to contend that the student is

eligible for provisional registration. It was contended that the action of

the Tamil Nadu Medical Council is completely arbitrary and

discriminatory as some students have been granted provisional

registration not only by the Tamil Nadu Medical Council but also by the

Medical Council of different States. Therefore, declining of provisional

registration to the student leads to heartburn amongst the student who

has not been granted provisional registration. Mr. Nagamuthu referred

to a note filed on behalf of the appellant before the High Court to

contend that the stand of the appellant was that acquiring primary

medical qualification from the Foreign Medical Institute was acceptable

for grant of registration. It was also contended that as per Note V(2),

the Screening Regulations grant an opportunity to the candidate to

either complete his practical training/internship in the country from

where he has acquired the Foreign Medical Qualification or in India.

Relevant part of the Note reads thus:

“V. (1) xxx xxx

8 (2011) 11 SCC 748

11

(2) Further Regulation 2{c) read with 2(e) of the Eligibility

Requirement For Taking Admission in an Undergraduate Medical

Course in a Foreign Medical Institution Regulations, 2002 and

similarly, Regulation 2(c) read with 2(g) of the Screening Test

Regulation, 2002, further grants an opportunity to the candidate

to either complete his practical training I internship in the

Country 'from where he has acquired the Foreign Medical

Qualification or in India. This is further clarified by Regulation 11

of the Screening Test Regulation, 2002.

xx xx xx

VIII. xx xx xx

The National Medical Commission vide its notice dated

30.09.2020. allowed Indian Medical Graduates to undergo only

online classes of theory subjects which shall be supplemented by

practical and Clinical training in physical form as per the MBBS

Curriculum as and when the Medical Colleges gets re-opened. In

order to bring Foreign medical Graduates at par with Indian

Medical Graduates, the Candidates are required to reproduce

Certificate of successful completion of theory as well as practical

and Clinical training during the course of MBBS having being

done in physical form in the Medica~ University and its affiliated

Hospital.”

13. We have heard learned counsel for the parties and find that the

reliance on the judgment of this Court in Medical Council of India is

not applicable to the facts of the present case as after the judgment of

the Andhra Pradesh High Court delivered on 2.5.2008, Regulation 4(3)

of the Screening Regulations was inserted to make it mandatory that a

candidate should have studied for the medical course at the same

institute located abroad for the entire duration of the course. Though,

this Court has delivered judgment after the amendment but the

12

student had obtained the degree prior to the amendment of the

Regulations. Therefore, such judgment would not be relevant in the

present matter.

14. The fact is that the student has admittedly not completed clinical

training which was part of the curriculum in the tenth semester, may

be she has not completed part of clinical training in the ninth semester

as well as per the curriculum.

15. The Eligibility Regulations are to ensure that a student meets the

minimum eligibility condition as per the Graduate Medical Education

Regulations, 1997, but after completing the curriculum, a candidate

has to qualify the Screening Test, provided the entire duration of the

course has been completed at the same institute located abroad. The

question to be examined is as to whether the degree granted by the

Foreign Institute even in respect of clinical training is binding on the

appellant and the student has to be provisionally registered. We find

that the appellant is not bound to grant provisional registration to the

student who has not completed the entire duration of the course from

the Foreign Institute including the clinical training.

16. No doubt, the pandemic has thrown new challenges to the entire world

including the students but granting provisional registration to complete

internship to a student who has not undergone clinical training would

be compromising with the health of the citizens of any country and the

health infrastructure at large.

13

17. The students had taken admission in medical colleges outside India for

the reason that they could not get admission in the medical colleges in

India. China alone has a number of Institutes offering medical courses

conducted in English language. The Act and the Screening Regulations

are framed in such a way that the course completed by the students is

treated to be valid in India provided that the medical qualification is

recognised for enrolment of the medical practitioner in that country.

Obviously, none of the Indian students are going to practice medicine

in the foreign country, therefore, the grant of degree to the Indian

students has no corresponding obligation that such students actually

practice medicine in that country. In other words, the medical course is

permitted to be completed abroad to practice in India only on the basis

of an endorsement that the completion of such medical course entitles

them to practice in the said foreign country. The courses are designed

in such a way to attract students to undertake admission in the Foreign

Institutes so that such students, become eligible to practice medicine

in India. The very framework of the Regulations was compromising the

interests of the Indian nationals and the health infrastructure in India.

However, the malice has been corrected by the 2021 Regulations but

such Regulations are not applicable to the students who have taken

admission in the Foreign Institutes prior to 18.11.2021.

18. The students claim to have completed clinical training through online

mode. The online mode for practical training has come up for

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consideration before this Court in a judgment reported as Orissa Lift

Irrigation Corporation Limited v. Rabi Sankar Patro & Ors.

9

wherein the degree in the discipline of engineering was being

conferred by online method as part of distance education course.

Earlier, it was Engineering Degree by online mode and now Degree in

Medicine and Surgery by online mode. This Court held that the

practicals form the backbone of such education which is hands-on

approach involving actual application of principles taught in theory. It

was held as under:

“48. Technical education leading to the award of degrees in

Engineering consists of imparting of lessons in theory as well as

practicals. The practicals form the backbone of such education

which is hands-on approach involving actual application of

principles taught in theory under the watchful eyes of

Demonstrators or Lecturers. Face to face imparting of knowledge

in theory classes is to be reinforced in practical classes. The

practicals, thus, constitute an integral part of the technical

education system. If this established concept of imparting

technical education as a qualitative norm is to be modified or

altered and in a given case to be substituted by distance

education learning, then as a concept the AICTE ought to have

accepted it in clear terms. What parameters ought to be satisfied

if the regular course of imparting technical education is in any

way to be modified or altered, is for AICTE alone to decide. The

decision must be specific and unequivocal and cannot be

inferred merely because of absence of any Guidelines in the

matter. No such decision was ever expressed by AICTE. ......”

19. Therefore, without practical training, there cannot be any Doctor who is

expected to take care of the citizens of the country. Hence, the

decision of the appellant not to grant provisional registration cannot be

9 (2018) 1 SCC 468

15

said to be arbitrary.

20. The argument that certain students have been granted provisional

registration will not confer any right with the student to claim

provisional registration so as to undergo the internship. There cannot

be any equality in illegality. Reference may be made to a judgment of

this Court reported as Chandigarh Administration v. Jagjit Singh

10

.

21. The argument that if a student has a right, then such right can be

enforced independent of the order passed by the courts is not tenable.

Qualifying in the Screening Regulations is no proof of the clinical

experience, if any, gained by the students. The Screening examination

is based upon Optical Mark Reader (OMR) answers and has no

correlation with any practical training. We do not find that in terms of

the Screening Regulations, the students are entitled to the provisional

registration.

22. However, the fact remains that the students were permitted to

undergo medical course abroad and that they have completed their

curriculum according to the certificate granted by such Foreign

Institute. Therefore, such national resource cannot be permitted to be

wasted which will affect the life of young students, who had taken

admission in the foreign Institutes as part of their career prospects.

Therefore, the services of the students should be used to augment

health infrastructure in the country. Thus, it would be necessary that

the students undergo actual clinical training of such duration and at

10 (1995) 1 SCC 745

16

such institutes which are identified by the appellant and on such terms

and conditions, including the charges for imparting such training, as

may be notified by the appellant.

23. We are unable to agree with the High Court that instead of three

months of clinical training in China, two months training would be

sufficient for provisional registration apart from the 12 months of

internship. The Courts are not expert in deciding an academic

curriculum or the requirement of the clinical training which may be

required to be satisfied by the students.

24. Mr. Vikas Singh submitted that the pandemic and the crisis in the

Ukraine has thrown new challenges for the appellant and that the

appellant shall take a holistic view as to how to safeguard the interests

of the Indian students who were studying abroad and at the same time,

not compromising with the quality of medical education expected from

them in India.

25. Therefore, we direct the appellant

i) to frame a scheme as a one time measure within two months to

allow the student and such similarly situated students who have

not actually completed clinical training to undergo clinical

training in India in the medical colleges which may be identified

by the appellant for a limited duration as may be specified by the

appellant, on such charges which the appellant determines.

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ii) It shall be open to the appellant to test the candidates in the

scheme so framed in the manner within next one month, which it

considers appropriate as to satisfy that such students are

sufficiently trained to be provisionally registered to complete

internship for 12 months.

26. With the aforesaid directions, the appeals stand disposed of.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

APRIL 29, 2022.

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