THE NATIONAL MEDICAL COMMISSION versus POOJA THANDU NARESH & ORS. on 29 April 2022

1. The present appeals are directed against orders dated 29.7.2021and 20.9.2021 passed by the High Court of Judicature at Madras in thewrit petitions filed for quashing the circulars issued by the Tamil NaduFMedical Council on 12.11.2020 and 24.12.2020 and consequential ordersof directing respondent No. 1/writ petitioner[1] to undergo two months ofCompulsory Rotatory Residential Internship,[2] followed by one year ofinternship before granting permanent registration under the Indian MedicalCouncil Act, 1956[3] (now repealed by the National Medical CommissionGAct, 2019).

2. The brief facts leading to the present appeals are that the studentand other similarly situated students after qualifying the eligibility test 1 For short, the ‘student’

2 For short, the ‘CRRI’

H3 For short, the ‘Act’

i.e. as per “The Eligibility Requirement for Taking Admission in anUndergraduate Medical Course in a Foreign Medical InstitutionRegulations, 2002[4] joined medical colleges in the People’s Republic ofChina, such as Qingdao University Faculty of Medicine[5]. It is the standof the students that they have undergone nine semesters of their academiccourse including clinical training on the campus. However, due to theoutbreak of COVID-19 pandemic, the clinical training for the subjectsof Ophthalmology, Otorhinolaryngology and Nuclear Medicine in the 10[th]Semester was done online and that they have been granted degree ofBachelor of Medicine & Bachelor of Surgery (MBBS) after qualifyingin all the subjects as per the teaching plan till May, 2020 by the ForeignInstitute. According to the student, some of her fellow students havebeen granted provisional registration by the Tamil Nadu Medical Councilbut she has been declined such provisional registration which led to filingof number of writ petitions before the High Court. The argument is thatsince she has been declared qualified by the Foreign Institute, the onlyrequirement before provisional registration is qualifying in the ScreeningTest in terms of the Screening Test Regulations, 2002[6]. As she hasqualified such Screening Test, therefore, the condition in the statute readwith the Screening Regulations stands satisfied. Hence, the decision ofthe Medical Council not to grant provisional registration is not justified inlaw.

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

“i) The impugned circulars dated 12.11.2020 and 24.12.2020 passedby the third respondent, rejecting the claim of the petitioners arequashed, as far as the petitioners are concerned.

ii) The petitioners shall make their individual application to thethird respondent for provisional registration for doing their CRRlalong with the documents, as required by the second respondent,within a period of one week from the date of receipt of a copy ofthis order.

iii) On such application being made by the petitioners, the thirdrespondent shall verify the original documents and consider theirapplication for issuing certificate of provisional registration.

4 For short, the ‘Eligibility Regulations’

5 For short, the ‘Foreign Institute’

6 For short, the ‘Screening Regulations’

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iv) The above said exercise shall be completed within two weeksfrom the date of receipt of the application from the petitioners.”

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4. Subsequently, writ petitions were listed under the caption “forclarification” and thereafter an order was passed by the High Courtwith the following directions:

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“(a) the petitioners who submit their applications to the Tamil NaduMedical Council shall be provisionally registered and they shall bepermitted to undergo the internship (CRRI); (b) Taking into consideration the fact that the petitioners had notundergone the practical and clinical training during the MBBSCCourse in physical form in the medical university where they hadundergone the course, there shall be a direction to the effect thatthe petitioners will undergo the internship for a period of 14 monthsand the additional 2 months shall be utilized for providing practicaland clinical training in the initial phase of their internship andDthereafter, the regular internship shall follow for a period of 12months (1 year). This Court is aware of the fact that thisrequirement goes beyond what is provided under clause 11 of thescreening test regulations 2002. However, instead of making thestudents go back to the respective universities and complete thepractical and clinical training which may be impossible in theEprevailing situation, it will be a better via-media to make themundergo the same in the initial phase of the internship for a periodof 2 months. This will sufficiently satisfy the requirements formaintaining better quality in medical education and at the sametime safeguarding the interest of the students; C

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(c) It is made clear that all these directions issued by this Courtare peculiar to the given situation and this can never be taken asa precedent in future. The Tamil Nadu Medical Council shallensure that the students who apply for provisional registration arepossessing screening test passing certificate issued by theconcerned authority and only thereafter register them provisionally,and:

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(d) This Court expects that this order will be made applicable toall the students who are similarly placed and they are not made toknock the doors of this Court.”

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5. Some of the statutory provisions of the Act relevant for thepurpose of the present appeals read thus:

“13. (4-A) A person who is a citizen of India and obtains medicalqualification granted by any medical institution in any country outsideIndia recognised for enrolment as medical practitioner in thatcountry after such date as may be specified by the CentralGovernment under sub-section (3), shall not be entitled to be enrolledon any Medical Register maintained by a State Medical Councilor to have his name entered in the Indian Medical Register unlesshe qualifies the screening test in India prescribed for such purposeand such foreign medical qualification after such person qualifiesthe said screening test shall be deemed to be the recognised medicalqualification for the purposes of this Act for that person.

(4-B) A person who is a citizen of India shall not, after such dateas may be specified by the Central Government under sub-section(3), be eligible to get admission to obtain medical qualificationgranted by any medical institution in any foreign country withoutobtaining an eligibility certificate issued to him by the Council andin case any such person obtains such qualification without obtainingsuch eligibility certificate, he shall not be eligible to appear in thescreening test referred to in sub-section (4-A):

Provided that an Indian citizen who has acquired the medicalqualification from foreign medical institution or has obtainedadmission in foreign medical institution before the commencementof the Indian Medical Council (Amendment) Act, 2001 shall notbe required to obtain eligibility certificate under this sub-sectionbut, if he is qualified for admission to any medical course forrecognised medical qualification in any medical institution in India,he shall be required to qualify only the screening test prescribedfor enrolment on any State Medical Register or for entering hisname in the Indian Medical Register.”

6. The Eligibility Regulations and the Screening Regulations werepublished 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 eligibilitytest which made her eligible to undergo the medical course in the ForeignInstitute. The relevant provisions of the Eligibility Regulations read asunder:

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A“9. After verification, as required, if the candidate is found to fulfilthe eligibility criteria, the Council shall issue an Eligibility Certificatein the prescribed format to the candidate certifying that he/she iseligible to join a medical institution outside India to obtain a primarymedical qualification. The certificate shall indicate that on returnafter obtaining the foreign primary medical qualification, theBcandidate shall have to undergo a screening test, subject tofulfilment of the conditions prescribed in the Screening TestRegulations, 2002, and that passing this test shall only entitle himto provisional/permanent registration by the Medical Council ofIndia or the State Medical Councils.

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Provided that he/she has studied for the medical course atthe same institute located abroad for the entire duration of thecourse from where he/she has obtained the degree.

10. In case the candidate does not fulfil any of the qualifyingcriteria the Council may reject his application for issue of EligibilityDCertificate giving the reasons therefore.

11. The issue of a eligibility certificate to a candidate shall notentitle him to any right, whatsoever, other than to take admissionin an undergraduate medical course in a foreign medical institute.”

E7. Some of the relevant conditions of the Screening Regulationsread as thus:

“2. (c) “Permanent Registration” means registration for thepurpose of enrolment on any State Medical Register or IndianMedical Register after obtaining the Primary Medical qualificationFfollowed by completion of such practical training as prescribedeither in India or abroad as per the provisions of the Act; xx xx xx (f) “Primary Medical qualification” means a medical qualificationawarded by any medical institution outside India which is aGrecognized qualification for enrolment as medical practitioner inthe country in which the institution awarding the said qualificationis situated and which is equivalent to MBBS in India; xx xx xx H

(g) “Provisional Registration” means provisional registration in aState Medical Register or Indian Medical Register for the purposeof undergoing practical training in India as prescribed and for noother purpose by an Indian citizen possessing any primary medicalqualification but has not undergone such practical training afterobtaining that qualification as may be required by the rules orregulations in force in the country granting the qualification; xx xx xx

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

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(3) he/she has studied for the medical course at the same institutelocated abroad for the entire duration of the course from wherehe/she has obtained the degree:

Provided in cases where Central Government is informedof condition of war, civil unrest, rebellion, internal war or any suchsituation wherein life of Indian citizen is in distress and suchinformation has been received through the Indian Embassy in thatcountry then the Council shall relax the requirement of obtainingmedical education from the same institute located abroad inrespect of which communication has been received from the IndianEmbassy in that country.

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5. The purpose.—The purpose of conducting the screening testshall be only to determine the eligibility or otherwise of a candidatefor his or her registration with the Medical Council of India or anyState Medical Council and qualifying the same shall not conferany other right, whatsoever, on a candidate.

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11. The Prescribed Authority shall intimate the result of theScreening Test to the candidates as well as to the Secretary,Medical Council of India and the State Medical Councils. Theunsuccessful candidates shall also be appropriately informed. Thecandidates who qualify the Screening Test may apply to theSecretary, Medical Council of India, New Delhi or to any State AB

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AMedical Council for provisional registration/permanent registrationalong with the requisite registration fee in favour of Secretary,Medical Council of India or the State Medical Council. TheMedical Council of India or the State Medical Councils shall issueprovisional registration to such successful candidates, who areyet to undergo one year internship in an approved institution andBissue permanent registration to such eligible candidates who havealready undergone one year internship, as the case may be.”

8. A notification notifying the National Medical Commission(Foreign Medical Graduate Licentiate) Regulations, 2021[7] dated18.11.2021 has been published. Relevant provisions of the saidCRegulations read thus:

“5. Applicability of these regulations. – (1) Notwithstandinganything contained in regulation 4, these regulations shall not beapplicable –

D(a) To foreign medical graduates who have acquired a foreignmedical degree or primary qualification, as the case may be, priorto the coming into force of these regulations; (b) to candidates who are pursuing their education in foreigninstitutions prior to the coming into force of these regulations; and E(c) to such foreign medical graduates who are specificallyexempted by the Commission or the Central Government, as thecase may be, by notification.

(2) The foreign medical graduates who have acquired a foreignmedical degree or primary qualification, as the case may be, andFthe candidates who are pursuing their education in foreigninstitutions, prior to the coming into force of these regulations,shall be governed by the erstwhile applicable regulations.

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G(See regulation 4)

CRITERIA TO RECOGNISE FOREIGN MEDICAL GRADUATESAPPLYING FOR LICENCE OR PERMANENT REGISTRATIONTO PRACTICE IN INDIA

H7 For short, the ‘2021 Regulations’

1. The guiding principle for licensing a foreign medical graduateto practice in India is to ensure that the Foreign Medical Graduatefulfils the requirements of education and training equivalent orcommensurate with that of an Indian medical graduate.

2. Eligibility for primary medical qualification in a country outsideIndia:

(i) Duration of course and training in subjects leading to primarymedical qualification:

(a) Any person who pursue the foreign medical degree shouldhave undergone a course of theory, practical and clinical trainingequivalent to Bachelor of Medicine and Bachelor of Surgery(MBBS) of India; and

(b) Should have been completed internship of twelve months inaddition to such course referred to in clause (a), in the same foreigninstitution where the primary medical qualification has beenobtained, along with hands-on training in clinical subjects includingbut not limited to Community Medicine, General Medicine,Psychiatry, Paediatrics, General Surgery, Anaesthesia, Obstetricsand 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 the2021 Regulations are not applicable to foreign medical graduates whohave acquired a foreign medical degree or primary qualification, as thecase may be, prior to 18.11.2021. However, it further prescribes as under:

“6. Taking into the consideration all the relevant provisions ofNMC’s Regulations and circumstances, the Commission decidedto issue the detailed guidelines/process which is required to befollowed by State Medical Councils for grant of registration ofFMGs till further instructions from the Commission orimplementation of NExT Exam, whichever occurs earlier. StateMedical Councils should ensure the following conditions/criteriawhile processing the case for grant of registration of FMGs:

(i) The medical qualification/degree must be registerable to practicemedicine in their respective jurisdiction of the country in whichthe medical degree is awarded and at par with the license to A

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Apractice medicine given to citizen of that country.

(ii) Documentary evidence certifying successful completion ofphysical training or internship during the medical qualificationequivalent to MBBS, if conducted in foreign institute.

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

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(iv) Foreign medical Graduate Examination (FMGE) conductedby National Board of Examination (NBE) should be cleared bythe candidates seeking registration in India.

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10. It is admitted by the student that she has not undergone thepractical and clinical training in the physical form, though she hasundergone the course through online mode for the entire duration,therefore, she satisfies the requirement under Regulation 4(3) of theScreening Regulations.

D11. The argument of Mr. Vikas Singh, learned senior counsel forthe appellant, is that in terms of the statutory Regulations, the studenthas to study the medical course in the same institute located abroad forthe “entire duration”. It has been argued that as per the dates of thesemester and the date of departure of student from China, it shows thatthe student has not completed the ninth semester in part and tenth semesterEcompletely, therefore, the student is not eligible for provisional registrationto undergo one year internship so as to be eligible for registration as aprofessional under the Act. The argument is that clinical training cannotbe imparted through online mode as it is the actual training involvingdiagnosis and interactions with the patients. There cannot be any onlineFclinical training which will satisfy the requisite condition of the ScreeningRegulations.

12. Mr. S. Nagamuthu, learned senior counsel for the respondent-student relied upon a judgment of this Court reported as Medical Councilof India v. J. Saai Prasanna & Ors.[8] to contend that the student isGeligible for provisional registration. It was contended that the action ofthe Tamil Nadu Medical Council is completely arbitrary and discriminatoryas some students have been granted provisional registration not only bythe Tamil Nadu Medical Council but also by the Medical Council ofdifferent States. Therefore, declining of provisional registration to the student leads to heartburn amongst the student who has not been grantedprovisional registration. Mr. Nagamuthu referred to a note filed on behalfof the appellant before the High Court to contend that the stand of theappellant was that acquiring primary medical qualification from the ForeignMedical Institute was acceptable for grant of registration. It was alsocontended that as per Note V(2), the Screening Regulations grant anopportunity to the candidate to either complete his practical training/internship in the country from where he has acquired the Foreign MedicalQualification or in India. Relevant part of the Note reads thus:

(2) Further Regulation 2{c) read with 2(e) of the EligibilityRequirement For Taking Admission in an Undergraduate MedicalCourse in a Foreign Medical Institution Regulations, 2002 andsimilarly, Regulation 2(c) read with 2(g) of the Screening TestRegulation, 2002, further grants an opportunity to the candidate toeither complete his practical training I internship in the Country‘from where he has acquired the Foreign Medical Qualificationor in India. This is further clarified by Regulation 11 of theScreening Test Regulation, 2002.

The National Medical Commission vide its notice dated 30.09.2020.allowed Indian Medical Graduates to undergo only online classesof theory subjects which shall be supplemented by practical andClinical training in physical form as per the MBBS Curriculum asand when the Medical Colleges gets re-opened. In order to bringForeign medical Graduates at par with Indian Medical Graduates,the Candidates are required to reproduce Certificate of successfulcompletion of theory as well as practical and Clinical training duringthe course of MBBS having being done in physical form in theMedica~ University and its affiliated Hospital.”

13. We have heard learned counsel for the parties and find thatthe reliance on the judgment of this Court in Medical Council of Indiais not applicable to the facts of the present case as after the judgment ofthe Andhra Pradesh High Court delivered on 2.5.2008, Regulation 4(3)of the Screening Regulations was inserted to make it mandatory that a A

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Acandidate should have studied for the medical course at the same institutelocated abroad for the entire duration of the course. Though, this Courthas delivered judgment after the amendment but the student had obtainedthe degree prior to the amendment of the Regulations. Therefore, suchjudgment would not be relevant in the present matter.

B14. The fact is that the student has admittedly not completedclinical training which was part of the curriculum in the tenth semester,may be she has not completed part of clinical training in the ninth semesteras well as per the curriculum.

15. The Eligibility Regulations are to ensure that a student meetsCthe minimum eligibility condition as per the Graduate Medical EducationRegulations, 1997, but after completing the curriculum, a candidate hasto qualify the Screening Test, provided the entire duration of the coursehas been completed at the same institute located abroad. The questionto be examined is as to whether the degree granted by the ForeignInstitute even in respect of clinical training is binding on the appellantDand the student has to be provisionally registered. We find that theappellant is not bound to grant provisional registration to the student whohas not completed the entire duration of the course from the ForeignInstitute including the clinical training.

16. No doubt, the pandemic has thrown new challenges to theEentire world including the students but granting provisional registrationto complete internship to a student who has not undergone clinical trainingwould be compromising with the health of the citizens of any countryand the health infrastructure at large.

17. The students had taken admission in medical colleges outsideFIndia for the reason that they could not get admission in the medicalcolleges in India. China alone has a number of Institutes offering medicalcourses conducted in English language. The Act and the ScreeningRegulations are framed in such a way that the course completed by thestudents is treated to be valid in India provided that the medicalGqualification is recognised for enrolment of the medical practitioner inthat country. Obviously, none of the Indian students are going to practicemedicine in the foreign country, therefore, the grant of degree to theIndian students has no corresponding obligation that such studentsactually practice medicine in that country. In other words, the medicalcourse is permitted to be completed abroad to practice in India only onH

the basis of an endorsement that the completion of such medical courseentitles them to practice in the said foreign country. The courses aredesigned in such a way to attract students to undertake admission in theForeign Institutes so that such students, become eligible to practicemedicine in India. The very framework of the Regulations wascompromising the interests of the Indian nationals and the healthinfrastructure in India. However, the malice has been corrected by the2021 Regulations but such Regulations are not applicable to the studentswho have taken admission in the Foreign Institutes prior to 18.11.2021.

18. The students claim to have completed clinical training throughonline mode. The online mode for practical training has come up forconsideration before this Court in a judgment reported as Orissa LiftIrrigation Corporation Limited v. Rabi Sankar Patro & Ors.[9] whereinthe degree in the discipline of engineering was being conferred by onlinemethod as part of distance education course. Earlier, it was EngineeringDegree by online mode and now Degree in Medicine and Surgery byonline mode. This Court held that the practicals form the backbone ofsuch education which is hands-on approach involving actual applicationof principles taught in theory. It was held as under:

“48. Technical education leading to the award of degrees inEngineering consists of imparting of lessons in theory as well aspracticals. The practicals form the backbone of such educationwhich is hands-on approach involving actual application of principlestaught in theory under the watchful eyes of Demonstrators orLecturers. Face to face imparting of knowledge in theory classesis to be reinforced in practical classes. The practicals, thus,constitute an integral part of the technical education system. Ifthis established concept of imparting technical education as aqualitative norm is to be modified or altered and in a given case tobe substituted by distance education learning, then as a conceptthe AICTE ought to have accepted it in clear terms. Whatparameters ought to be satisfied if the regular course of impartingtechnical education is in any way to be modified or altered, is forAICTE alone to decide. The decision must be specific andunequivocal and cannot be inferred merely because of absenceof any Guidelines in the matter. No such decision was everexpressed by AICTE. ......”

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A19. Therefore, without practical training, there cannot be anyDoctor who is expected to take care of the citizens of the country. Hence,the decision of the appellant not to grant provisional registration cannotbe said to be arbitrary.

20. The argument that certain students have been grantedBprovisional registration will not confer any right with the student to claimprovisional registration so as to undergo the internship. There cannot beany equality in illegality. Reference may be made to a judgment of thisCourt reported as Chandigarh Administration v. Jagjit Singh[10].

21. The argument that if a student has a right, then such right canCbe enforced independent of the order passed by the courts is not tenable.Qualifying in the Screening Regulations is no proof of the clinicalexperience, if any, gained by the students. The Screening examination isbased upon Optical Mark Reader (OMR) answers and has no correlationwith any practical training. We do not find that in terms of the ScreeningRegulations, the students are entitled to the provisional registration.D

22. However, the fact remains that the students were permittedto undergo medical course abroad and that they have completed theircurriculum according to the certificate granted by such Foreign Institute.Therefore, such national resource cannot be permitted to be wastedwhich will affect the life of young students, who had taken admission inEthe foreign Institutes as part of their career prospects. Therefore, theservices of the students should be used to augment health infrastructurein the country. Thus, it would be necessary that the students undergoactual clinical training of such duration and at such institutes which areidentified by the appellant and on such terms and conditions, includingFthe charges for imparting such training, as may be notified by the appellant.

23. We are unable to agree with the High Court that instead ofthree months of clinical training in China, two months training would besufficient for provisional registration apart from the 12 months ofinternship. The Courts are not expert in deciding an academic curriculumGor the requirement of the clinical training which may be required to besatisfied by the students.

24. Mr. Vikas Singh submitted that the pandemic and the crisis inthe Ukraine has thrown new challenges for the appellant and that the appellant shall take a holistic view as to how to safeguard the interestsof the Indian students who were studying abroad and at the same time,not compromising with the quality of medical education expected fromthem in India.

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25. Therefore, we direct the appellant

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i)to frame a scheme as a one time measure within two monthsto allow the student and such similarly situated studentswho have not actually completed clinical training to undergoclinical training in India in the medical colleges which maybe identified by the appellant for a limited duration as maybe specified by the appellant, on such charges which theCappellant determines.

ii)It shall be open to the appellant to test the candidates in thescheme so framed in the manner within next one month,which it considers appropriate as to satisfy that such studentsare sufficiently trained to be provisionally registered toDcomplete internship for 12 months.

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

Bibhuti Bhushan Bose and Amarendra Kumar(Assisted by : Ajay, LCRA)

Appeals disposed of.

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