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 (now repealed by the National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
3
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
7
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
14
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.
17
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.
18

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