Iuliia Malafeeva v. Union of India

1. The issue involved in both these writ petitions is common, therefore, the same is being decided by a common judgment. For the sake of clarity, the facts are taken from W.P.(C) 11034/2020.

2. The petitioner has filed the instant petition under Article 226 of the Constitution of India impugning the communication/order/notice dated 06.11.2020 (P/17) and 18.12.2020 (P/22), whereby respondent No.3- Association of Indian Universities (in short, AIU) has declined to issue Equivalence Certificate to the petitioner; and respondent No.4-The National Board of Examinations (in short, NBE) held that the petitioner was ineligible to appear in the Foreign Medical Graduate Examination (in short, FMGE), December 2020 session and accordingly, her candidature was cancelled.

3. The facts of the case are that the petitioner between 1993-2002 completed her schooling from a Municipal School, Togliatti City, Russia from Grade I to Grade IX as a regular, full-time student and completed her 10th and 11th grades with a specialised Chemistry-Biological class at Gymnasium No 48, Togliatti city (A “Gymnasium” is a special school for the study of Biology, Chemistry, Mathematics, Physics, Economics, Informatics and Information and Communication Technologies, Russian language and Literature). The petitioner, thereafter, got enrolled in Samara State Medical University (Pediatric faculty) in the year 2002. She completed six years of M.B.B.S course in the Pediatrician stream. After graduation, she also had one year of Clinical Internship. She served as a Pediatrician from 2010 to 2017 in the prestigious Government Clinical Hospital of Russia.

4. It is claimed that the said institution is also recognised by the Medical Council of India (in short MCI) for M.B.B.S. In the year 2018, the petitioner got married and settled in India and with a desire to continue her profession, she approached MCI, which is now known as the National Medical Commission (in short, NMC), where she was informed about the AIU being one of the agencies which provides the Equivalence Certificate required for getting the Eligibility Certificate from NMC for appearing in FMGE.

5. After completing the requisite formalities from the Russian Embassy, she applied to AIU for Equivalence Certificate for class XII, however, there was an inordinate delay in processing her application. In the meantime, the online FMGE forms were also to be filled up. She, in anticipation, had applied for appearance in the aforesaid examination. On 06.11.2020, AIU rejected the application of the petitioner stating therein that it does not issue an Equivalence Certificate of Grade 12 which is not pursued as per the Indian School Education System i.e., 10+2. In the meantime, the petitioner also applied for Eligibility Certificate vide Application ID- R.15012/000505/2020 to NMC and also contacted the concerned Ministry for appropriate assistance. She was advised that she had to send a detailed application with the International Treaties etc., which she duly complied with. Notwithstanding the outcome of the consideration of her aforesaid application, since the examination date was announced, therefore, admit card was issued to her and she appeared in the examination on 04.12.2020. However, the petitioner was granted time to submit the Eligibility Certificate latest by 10.12.2020. The petitioner, therefore, approached this court in W.P.(C) 10376/2020. Since the principal relief in the earlier petition was to allow the petitioner to appear in the examination and the petitioner realised that she had to pursue some more reliefs, therefore, the earlier writ petition came to be withdrawn vide order dated 23.12.2020, the date on which the present petition was also listed before this court. The petitioner, therefore, decided to pursue the present petition.

6. Mr. Saurabh Prakash, the learned counsel appearing on behalf of the petitioner submits that the entire approach of the respondents-Authorities is erroneous. According to him, the petitioner is entitled to appear in an examination which is conducted under the Screening Test Regulations, 2002 (ST Regulations, 2002). He further states that Regulation 4 (2) of the ST Regulations, 2002 cannot be extended to the case of the petitioner. He states that firstly, the eligibility requirement which is stipulated under the Eligibility Requirement for Taking Admission in Undergraduate Medical College in Foreign Medical Institution Regulations, 2002 (in short, Eligibility Requirement Regulations, 2002) does not deal with the situation where a foreign national, after completing his/her entire course in foreign country intends to register in India for medical practice. Secondly, according to him, in view of the provisions of the National Medical Commission Act, 2019 (in short, NMC Act, 2019), the legislature itself has made provisions for the registration of the medical practitioner who has completed his/her medical course from foreign medical institutions.

7. The learned counsel specifically places reliance on Section 15(4) of the NMC Act, 2019 to state that any person with a foreign medical qualification can practice medicine as a medical practitioner and is entitled for enrolment in the State Register or the National Register, as the case may be, if he/she qualifies National Exit Test for the purposes of obtaining such a license. According to him, the mandate of Section 15 of the NMC Act, 2019 cannot be deferred due to non-framing of regulations. He specifically states that presently the provisions of the NMC Act, 2019 are very much applicable, and in the absence of any regulation, as required to be framed for giving effect to the provisions of Regulation 15(4), the ST Regulations, 2002 will have to govern the fate. To substantiate his submissions, he places reliance on Section 61(2) of the NMC Act, 2019 to state that notwithstanding the repeal of the Indian Medical Council Act, 1956, the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under the Act of 2019 or the rules and regulations made thereunder. He also referred to the provisions of Section 34 of the NMC Act 2019 and while taking this court through the second proviso of the said Section, he states that in view of the provisions made under the new Act, there is a provision for foreign citizens to be enrolled in India as a medical practitioner in accordance with the law to practice medicine as a temporary practitioner. It is contented that there is no bar for any student who has obtained a medical qualification in a foreign country to practice in India.

8. According to him, the respondents cannot insist on Eligibility Certificate as in no case a candidate, who had already obtained the certificate in a foreign country, could possibly have the certificate before undergoing the concerned course in the respective country. While specifically pointing out Clause 4(2) of ST Regulations, 2002, he states that the language used therein is “he/she had obtained Eligibility Certificate”. According to him, in no case, such a requirement could be complied with by the petitioner. He places reliance on the decision of the Hon‟ble Supreme Court in the case of Sanjeev Gupta & Ors. v. UOI & Ors.[1] and on a subsequent decision in the case of Medical Council of India v. J. Saai Prasanna & Ors. 2; and, lastly, he states that in view of the NMC notification dated 18.11.2021, whereby, the NMC had framed the regulations known as National Medical Commission (Foreign Medical Graduate Licentiate) Regulations, 2021 (in short, Regulation, 2021), there is a provision for grant of permanent registration to foreign medical graduate. While placing reliance on Regulation 4(d) of the Regulation, 2021, he states that the petitioner satisfies all the requirements for clearing National Exit Test as prescribed under the aforesaid regulations. The petitioner has already appeared in FMGE. According to the learned counsel, her appearance in FMGE fulfills the requirement as stipulated in Regulation 4(d) of the Regulation, 2021.

9. Ms. Monika Arora, learned CGSC appearing on behalf of respondent Nos.[1] and 3 i.e., Union of India and AIU opposes the submissions made by learned counsel appearing on behalf of the petitioner. While referring to the brief note filed on behalf of the Union of India, she states that the basic eligibility requirement for admission to Bachelor's degree programme in India is Grade 12 or an equivalent examination as per National Education Policy and Regulatory Bodies Guidelines. She, therefore, states that AIU has been considering equivalence in all such cases where the school leaving certificates are of 12 years of school education only. In her brief note, she states that in case of foreign students coming to India with 11 years of school education for University-level courses, on-demand, an examination may be conducted by the National Institute of Open Schooling (NIOS)/foreign boards like International Baccalaureate (IB) which is operational in various Commonwealth of Independent States (CIS) and other countries where there are only 11 years of school education to fulfil the eligibility requirement in Indian Universities. While referring to the short affidavit on behalf of the AIU, she states that since the basic eligibility requirement for admission to the bachelor's degree programme in India is Grade 12 or an equivalent examination, the AIU has been considering equivalence in case of all such applications where the school leaving certificates are of 12 years of school education. According to her, since in the instant case, the school leaving certificate is only for 11 years of school education, therefore, in no case, the petitioner can be granted the Equivalence Certificate.

10. Mr. T. Singhdev, learned counsel appearing on behalf of NMCrespondent No. 2 also opposes the submissions while placing reliance on his reply/affidavit. He states that the entire regime with respect to grant of recognition to the medical practitioner, who has completed their courses outside the country, are governed by Section 13(4A) and 13(4B) of the Indian Medical Council Act, 1956. He, therefore, states that Regulations framed in the exercise of power under Section 33 of the IMC Act i.e., Eligibility Regulations would require that either the candidate must be having „qualifying examination‟ or an „equivalent examination‟ from abroad. He states that the „qualifying examination‟ would mean the examination to be qualified to become eligible for admission in the M.B.B.S course. In the instant case, „qualifying examination‟ would be the qualification prescribed under „Graduate Medical Regulation, 1997‟. He further states that the petitioner cannot be allowed to appear in the Screening Test unless she fulfils the requirement of having the Eligibility Certificate in her hand. He, therefore, states that the provisions of Section 13(4A) and 13(4B) of the Act, Eligibility Requirement Regulations, 2002 and ST Regulations, 2002 are applicable to the case of the petitioner. The petitioner cannot claim any piecemeal application of selective clauses from the concerned Regulations. According to him, the understanding of the petitioner that Regulation 4(2) of ST Regulations, 2002 is not applicable to her, is erroneous, inasmuch as no person shall be allowed to appear in the Screening Test unless he/she fulfils the entire requirement of various clauses of ST Regulations, 2002.

11. Learned counsel, therefore, states that the requirement of obtaining the Eligibility Certificate before appearing in the examination is a statutory requirement and if the argument of the petitioner is accepted that at the time of conducting her medical course, the petitioner was not required to obtain Eligibility Certificate, the NMC is still considering those cases depending upon the fact that the candidate fulfils the requirement of obtaining Eligibility Certificate after completing the course in a foreign institution. This submission is made, without prejudice to his submission that as per the Regulations, the requirement is to obtain the Eligibility Certificate before entering into any foreign country for conducting the medical course is essential. He, therefore, states that on the basis of past experiences, it was realized in some cases that there was genuine difficulty and to allow those candidates, the NMC, in few cases, has also considered the Eligibility Certificate after obtaining medical qualification from foreign universities if an application is made in this regard. He, however, states that in the present case, in the absence of an Eligibility Certificate or any equivalence examination from abroad, the petitioner is not entitled to any registration in India. He states that under the entire Act, there is no specific provision apart from Section 13(4A) and 13(4B) to allow any foreign national to register in India for medical practice.

12. Mr. Kirtiman Singh, learned CGSC appearing on behalf of NBErespondent No.4 explains that the petitioner was allowed to appear in the examination held on 04.12.2020 and the provisional result of the petitioner was declared with the specific stipulation that the required certificate was to be submitted. Since the requisite certificate was not submitted by the petitioner, therefore, the certificate declaring her as successful in FMGE has never been issued in favour of the petitioner. He, therefore, states that merely on the basis of the examination, the petitioner would not get any right and that too, when no certificate of clearing the examination has been issued in favour of the petitioner. He also explains, while referring to paragraph No.18, that certain relaxations allowing the petitioner to appear in the examination were conferred considering the extraordinary Covid-19 pandemic situation as was then prevalent.

13. In rejoinder submission, learned counsel appearing on behalf of the petitioner states that if the entire pleadings and the stand taken by the respective respondents are examined, the same would clearly indicate that there is no complete bar in the case of foreign nationals who obtained a medical qualification in a foreign country with a desire to practice in India after their due registration. According to him, even the short note of the Union of India which is presented before this court would also recognize that there is some mechanism for considering cases of similar nature. He explains that her medical qualification is after completing 6 + 1 year i.e., a 7 year course in a foreign country, whereas, what is required in India is a 5-year M.B.B.S course and a one-year internship course. Therefore, he states that what is claimed to be lacking is one year of school education i.e., 12th examination, however, the petitioner fulfills by being in excess of one year in medical course. Therefore, the qualification obtained after completing 7 years of medical course should have been given greater weightage than the one year of school education.

14. I have heard the learned counsel appearing on behalf of the parties and perused the record.

15. Annexures P/17 and P/22, which are under challenge in this petition, are being reproduced as under: Annexure P/17 ―From: EVALUATION <evaluation@aiu.ac.in>Date: Fri, Nov 6, 2020 at 3:38 PMSubject: RE: AID - Comment By AID StaffTo: Yuliya Malafeeva <yuliyamalafeeva@gmail.com> Respected Sir/Madam With reference your Email dated 04th November, 2020. As a matter of policy AID does not issue Equivalence Certificate of Grade 12 which are not pursued as per Indian School Education System i.e. 10+2. Kindly send your bank details for returning the fee. Evaluation Division On Tue, 3 Nov 2020, 16: 10 AID Team, <aiu.comments@gmail.com> wrote: Dear IULIIA, With reference to your Online Application for Equivalence. The Evaluation Staff ofAIU has commented following: In Russia the School education is 9+2 i.e 11 years of schooling. Document uploaded by you that you have completed 11 years of school on the basis ofthat AIU issue Equivalance certificate of Grade 11 kindly confirm.‖ Annexure P/22 “NATIONALBOARD OF EXAMINATIONS NEW DELHI Dated: 18.12.2020 NOTICE “3. In terms of the Clause 2.[8] of the Information Bulletin for FMGE December 2020 Session and the NBE notice dated 01.12.2020, candidates who have failed to submit the prescribed documents by 10th December 2020have been declared "INELIGIBLE" and their candidature for FMGE December 2020 session has been "CANCELLED".”