ASTHA MIDHA Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) The petitioner completed her MBBS degree from Hebei University, China in 2009. Based on the degree qualification, the petitioner appeared at the screening test conducted by the National Board of Examination in India on 9 October 2009. After clearing the screening test, the petitioner was enrolled on the State Medical Register maintained by the State Medical Council of Uttar Pradesh and has also been registered with the Medical Council of India MCI on the Indian Medical Register. The petitioner then pursued postgraduate studies at the Universal College of Medical Sciences, Ranigaon, Bhairahwa, Nepal where she obtained a master's degree in General Surgery. On the basis of the master's degree certificate, the petitioner seeks to pursue a super specialization in M.Ch from the Institute of Medical Sciences, Banaras Hindu University, the fifth respondent. The petitioner applied for the registration of her postgraduate qualification under Section 26 of the Indian Medical Council Act, 1956(ACT). The application was rejected by the MCI on 18 March 2015 on the ground that the qualification was not included in the Schedules to the Act. The petitioner thereafter moved an application for acceptance of her postgraduate qualification through a screening test under Section 13(4A) on 9 May 2015. In the meantime, the entrance examination was to be conducted on 14 June 2015 for admission to the M.Ch course with the fifth respondent. At that stage, the petitioner moved a writ petition before this Court (Writ-C No. 29094 of 2015) in which a Division Bench on 20 May 2015 issued the following interim directions:

(2.) The petitioner appeared for the entrance examination on a provisional basis. The application submitted by the petitioner for the registration of her postgraduate qualification of MS (General Surgery) obtained from the Universal College of Medical Sciences, Nepal as an additional qualification on the Indian Medical Register and the request for conducting a screening test were considered in a communication dated 8 June 2015 issued to the petitioner by the Secretary, MCI. The petitioner has been informed that in order to obtain a registration of the postgraduate qualification as an additional qualification under Section 26, the qualification requires to be included in accordance with the provisions of Section 12 in the Second Schedule to the Act on the basis of reciprocity or in accordance with the provisions of Section 13 in Part II of the Third Schedule. This exercise, it has been stated, is made by the MCI on the request of the institution after satisfying itself in regard to the requirements of faculty, infrastructure and clinical materials in the foreign medical institution. No such exercise, it has been stated, had been carried out in respect of the MS (General Surgery) course of the Universal College of Medical Sciences, Nepal. Accordingly, the said postgraduate qualification has been regarded as not being a recognized medical qualification under the Act. Moreover, the petitioner has been informed that the screening test as contemplated in Section 13(4A) is held only for primary medical qualifications and not for postgraduate qualifications. On this basis, the petitioner was informed that she is not eligible to appear at the M.Ch entrance examination. That has given rise to the filing of the present proceedings under Article 226 of the Constitution.

(3.) The petitioner has basically sought four reliefs. The first is to question the legality of the order dated 8 June 2015 issued by the MCI. The second is for declaring the Screening Test Regulations as ultra vires the Constitution and Section 13 of the Act. The third is for a mandamus directing the MCI to hold a screening test to evaluate the postgraduate qualification of the petitioner as a recognized medical qualification under Section 13(4A). The fourth is to direct the fourth respondent to admit the petitioner for the M.Ch course for 2015-16.