ORDER
S.J. Vazifdar, J.
1. Rule, Respondents waive service. Rule returnable forthwith.
2. The petitioner is a citizen of India. Having acquired certain qualifications in the field of Medicine from the University of Southern California, she wishes to have herself registered under the Indian Medical Council Act, 1956. The second respondent is the Registrar of the Maharashtra Medical Council. The third respondent is the Union of India.
3. There are two aspects to this petition. The first relates to the alleged failure of respondent No. 1 in discharging its statutory obligations under the Indian Medical Council Act, 1956 (hereafter referred to as the I.M.C. Act), in not processing the proposal for recognition of the M.D. degree made by the University of Southern California from which the petitioner graduated. The second aspect pertains to the entitlement of the petitioner to be registered under the I.M.C. Act in view of her having acquired a qualification included in Part II of the Third Schedule to the IMC Act and also having undergone the training as required under Section 12(2) of the IMC Act.
4. It would be convenient at the outset to set out the relevant provisions of the IMC Act,
'Section 2. Definitions :
(d) 'Indian Medical Register' means the medical register maintained by the Council;
(e) 'medical institution' means any institution, within or without India, which grants degrees, diplomas or licenses in medicine;
(h) 'recognised medical qualification' means any of the medical qualifications included in the Schedules;
(k) 'State Medical Register' means a register maintained under any law for the time being in force in any state regulating the registration of practitioners of medicine.' '
'Section 12. Recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity. -- (1) The medical qualifications granted by medical institutions outside India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act.
(2) The Council may enter into negotiations with the Authority, in any. (***) country outside India which by the law of such (***) country is entrusted with the maintenance of a register of medical practitioners, for the settling of a scheme of reciprocity for the recognition of medical qualifications and in pursuance of any such scheme, the Central Government may, by notification in the Official Gazette amend the Second Schedule so as to include therein the medical qualification which the Council has decided should be recognised, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date.
(3) The Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Second Schedule by directing that an entry be made therein in respect of any medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date.
(4) Where the Council has refused to recommend any medical qualification which has been proposed for recognition by any Authority referred to in Sub-section (2) and that Authority applies to the Central Government in this behalf, the Central Government, after considering such application and after obtaining from the Council a report, if any, as to the reasons for any such refusal, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein and the provisions of Sub-section (2) shall apply to such notification.'
'Section 13(4). The Central Government, after consulting the Council, may by notification in the Official Gazette, amend Part II of the Third Schedule so as to include therein any qualification granted by a medical institution outside India which is not included in the Second Schedule'.
'Section 15. Right of persons possessing qualifications in the Schedules to be enrolled. -- (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedule shall be sufficient qualification for enrolment on any State Medical Register.
(2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register; (b) shall practise medicine in any State :--
Section 21. The Indian Medical Register. -- (1) The Council shall cause to be maintained in the prescribed manner a register of medical practitioner to be known as the Indian Medical Register, which shall contain the names of all persons who are for any time being enrolledon any State Medical Register and who possess any of the recognized medical qualifications'.
'Section 23 : Registration in the Indian Medical Register. -- The Registrar of the Council, may, on receipt of the report of registration of a person in a State Medical Register or on application made in the prescribed manner by any such person, enter his name in the Indian Medical Register:
Provided that the Registrar is satisfied that the person concerned possesses a recognised medical qualification.'
'Section 25(1) : Provisional Registration. -- (1) A citizen of India possessing a medical qualification granted by a medical institution outside India included in Part II of the Third Schedule, who is required to undergo practical training as prescribed under Sub-section (3) of Section 13, shall, on production of proper evidence that he has selected for such practical training in an approved institution, be entitled to be registered provisionally in a State Medical Register and shall be entitled to practise medicine in the approved institution for the purposes of such training and for no other purpose'.
5. In May 1996, the petitioner obtained a degree of Doctor of Medicine (M.D. Degree) from the University of Southern California in Los Angeles, U.S.A. It is not this qualification however that entitled the petitioner to registration as a medical practitioner as it is not included in any of the Schedules to the I.M.C. Act. It is the qualification of which recognition is sought under Section 12(2) of the I.M.C. Act.
The petitioner received the designation of 'outstanding' which is the highest designation granted by the university of Southern California. The petitioner also completed one year of internship from August, 1996 to September, 1997 at the University of California, Davis Medical Center, Sacramento with the department of Paediatrics. The petitioner having successfully passed all the steps of United States Medical Licensure Examination (U.S.M.L.E.) was fully qualified to obtain the California State Medical License.
6. The M.D. degree course included two years of pre-clinical work in anatomy, physiology, biochemistry, pathology, microbiology, pharmacology and psychiatry. Thereafter the petitioner completed two years of Clinical Clerkships (hospital postings) including medicine, surgery, obstetrics, gynaecology, paediatrics, psychiatry, neurology and family medicine (Ambulatory Primary Care).
7. The Medical School of the University of Southern California is one of 124 medical schools accredited by the Liaison Committee on Medical Education (L.C.M.E.). The L.C.M.E. is a joint committee made up of the representatives from the American Medical Association (A.M.A.) and Association of American Medical Colleges (A.A.M.C.). As an L.C.M.E.accredited school, graduates from the University of Southern California are qualified to practice in all the States of the United States of America. The University of Southern California is considered equal in status as regards medical education, to the Western Reserve University, Temple University, Hahnemann University, Tulane University and Loyala University all of which are in the U.S.A.. These five universities are recognized by the Medical Council of India as per Part II of the Third schedule of the Indian Medical Council Act, 1956 for the purposes of registration for practice of medicine in India.
8. The petitioner by a letter dated 10th November, 1997 informed the first respondent of the above position. The petitioner stated that she was interested in returning to India to settle down with her family and practice Medicine in India. She therefore, petitioned respondent No. 1 to grant recognition to the M.D. degree under Section 13(4) of the Indian Medical Council Act, which in turn would have entitled her to be registered as a medical practitioner in India.
9. In response, respondent No. 1 by a letter dated 15th January, 1998 stated that the matter could not be considered till such time as the modalities for conducting a screening test for Indian nationals with foreign medical qualifications are finalised and a decision could only be taken after physical verification of the facilities. On 18th February, 1998, the University of Southern California made a formal petition to respondent No. 1, requesting it to recognize the M.D. degree granted by its institution and the curriculum and educational experiences leading to that degree. The University of Southern California offered to furnish respondent No. 1 any information, it may desire. Regrettably respondent No. 1 neither sought any information, nor taken any steps to process the matter. In any event, our attention has not been invited to any such steps having been taken by respondent No. 1. The petitioner by a letter dated 15th March. 1998, once again requested respondent No. 1 to consider her representation. The petitioner pointed out that the five Universities referred to above viz. Western Reserve University, Temple University, Hahnemann University, Tulane University and Loyala University were already recognized by respondent No. 1 and listed in Part II of the Third Schedule of the I.M.C. Act; that all functioning medical colleges in U.S.A. have to be duly accredited by the L.C.M.E. (joint committee made up of the representatives from A.M.A. and A.A.M.C. ) which ensures that the education received by the students who graduate from those colleges is standardized and that therefore it stands to reason that the qualification of education in all accredited universities are at par with each other.
10. Once again regrettably in its letter dated 21st April, 1998 the only response of respondent No. 1 was that it had decided to defer the consideration of the matter till such time as a physical verification of the concerned institution by way of inspection by the Council's Inspector wascarried out. No steps having been taken by respondent No. 1 in this regard, have been pointed out to us.
11. Under Section 12(2) of I.M.C. Act respondent No. 1 may enter into negotiations for settling a scheme of reciprocity for the recognition of medical qualifications, with the Authority in any country outside India which by the law of such country is entrusted with the maintenance of a register of medical practitioners. Further under Section 12(2) if respondent No. 1 decides that a medical qualification should be recognized, the Central Government may, by notification in the official gazette, amend the Second Schedule so as to include therein the same. Under Section 12(4) if respondent No. I has refused to recognize any medical qualification, which has been proposed for recognition by any 'Authority referred to in Sub-section (2) of Section 12 and that Authority applies to the Central Government in that behalf, the Central Government, may after following the procedure referred to therein include such qualification in the Second Schedule.'
12. The proposal for recognition of the said M.D. Degree was made by the University of Southern California itself and not by the 'Authority' referred to in Sub-section (2) of Section 12 i.e. the Authority in the United States of America which, for the law of that country is entrusted with the maintenance of a register of medical practitioners.
13. Though this aspect was not raised before us either in the affidavits or during the hearing, we cannot ignore the same, as it pertains to the procedure to be followed between two countries on an important aspect of recognition of medical qualifications. As the procedure prescribed under Section 12 has not been followed, it cannot be said that there is a breach of any statutory obligation on the part of the respondents. There arose no occasion therefore for an application to the Central Government under Section 12(4) of the I.M.C. Act.
14. Respondent No. 1 however did not refuse the proposal forrecognition on this ground. We are constrained to observe that the attitude ofrespondent No. 1 to the proposal was indifferent. Despite the fact thatcorrespondence in this regard ensued between the parties herein for threeyears, respondent No. 1 did not draw the attention of the petitioner to thisimportant aspect of the matter. In fact respondent No. 1 has not evenconsidered the proposal. This is unfortunate. Even as of date, it has not madeany progress in the matter. It is this indifferent attitude that we find ratherdisconcerting.
15. We hope and trust that as and when a proposal is made in accordance with Section 12 of the I.M.C. Act, respondent No. 1 will act with a greater sense of responsibility. After all it is desirable that our highly qualified citizens return to our country to practice their professions. If they are faced with an indifferent attitude from the authorities, they are bound to be dissuaded from doing so.
16. This brings us to the second aspect of the matter viz. whether the petitioner is entitled to be registered as a medical practitioner under the I.M.C. Act in view of the petitioner having also acquired subsequently a qualification which is included in Schedule III Part II of the I.M.C. Act.
17. After obtaining the M.D. degree, the petitioner appeared for the American Board of Paediatrics certification examination in October, 1999. The American Board of Paediatrics by their letter dated 4th January, 2000 declared the petitioner successful at the said examination. The petitioner was accordingly certified as a diplomat by the American Board of Paediatrics for the period of 1999-2006. It is important to note that this degree/qualification is expressly recognized in Part II of the Third Schedule to the I.M.C. Act. The relevant, entry in Part II of the Third Schedule of the I.M.C. Act, reads as follows:--
RECOGNISED MEDICAL QUALIFICATIONS GRANTED BY THE MEDICAL INSTITUTIONS OUTSIDE INDIA NOT INCLUDED IN THE SECOND SCHEDULE
.....
.....
'Certificates/Diplomas of the following approved examining Boards of U.S. A.:
(i) American Board of Paediatrics'
The petitioner underwent all such practical training after obtaining the qualification of a Diploma from the American Board of Paediatrics, as are required by the rules or regulations in force in the United States of America. This is an admitted position and not denied by the respondents. As stated above, under Section 13(3) of I.M.C. Act, the qualifications granted by the Medical Council outside India, which are included in Part II of the Third Schedule shall also be recognized medical qualifications for the purposes of the I.M.C. Act. Under Section 13(3) of the I.M.C. Act no person possessing any such qualification shall be entitled to the enrolment on any State Medical Register unless he is a citizen of India. The petitioner is a citizen of India.
18. Section 13(3) further provides that a person possessing a qualification included in Schedule III Part II shall not be entitled to registration in a State Medical Register unless he has undergone such practical training after obtaining that qualification as may be required by the rules or regulations inforce in the country granting the qualification, or if he has not undergone any practical training in that country, he has undergone such practical training as may be prescribed.
However the petitioner further admittedly underwent such practical training after obtaining the qualification of diplomate from the American Board of Paediatrics as required by the rules and regulations in force in the United States of America. The petitioner was therefore not required to undergo any practical training in India.
The latter part of Section 13(3) would be applicable only if the petitioner had not undergone the training required by the rules or regulations in force in the U.S.A. i.e. the country that granted the petitioner the qualification included in Schedule III Part II of the I.M.C. Act.
19. Under Section 15(1), the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. The medical qualification of a diplomate of the American Board of Paediatrics having been included in Part II of the Second Schedule and the petitioner having undergone prescribed training as per the rules and regulations of U.S.A. is thus sufficient qualification for enrolment on any State Medical Register. The petitioner is therefore, clearly entitled to be enrolled in any State Medical Register. Further under Section 23, the petitioner is also entitled to have her name in the Indian Medical Register.
20. Even before obtaining the post graduate qualification, the petitioner by her letters dated 10th November, 1997 and 18th August, 1998 informed the first respondent that she was already in her second year of residency (post graduate training) in Paediatrics at the completion of which, she would appear for such examination. She also stated that the American Board of Paediatrics is recognized by the Medical Council of India for the purposes of registration in India. The petitioner stated that the post-graduate qualification would entitle her to practice as a Paediatrician in India. The petitioner by her letter dated 10th November, 1998, addressed to respondent No. 1 further stated that the I.M.C. Act, 1956, does not specify that any pre-requisite degrees are required to be recognized in order to have their certification to be recognized to enable her to be registered. Respondent No. 1 by its letter dated 16th December, 1998, in response stated that the American Board of Paediatrics is recognized by the Council and included in Part II of the Third Schedule of I.M.C. Act, 1956 when held by Indian nationals only. Respondent No. 1 did not state that anything further was required for an Indian citizen to be registered as a medical practitioner under the I.M.C. Act.
21. However, respondent No. 1 by a letter dated 6th July, 1999 stated that it did not have a provision for granting registration to practice medicine on the basis of possession of a post graduate medical qualification. It further alleged that for granting registration to practice medicine in India to any candidate possessing such qualification, no recognized test has been agreed upon in principle by the Central Government, Ministry of Health and Family Welfare. Respondent No. 1 stated that necessary arrangements for holding of screening test were pending with the Ministry of Health and Family Welfare. It is on these two grounds that Mrs. S. Puri, the learned counsel appearing on behalf of respondent No. 1 submitted that the petitioner was not entitled to be registered. We are unable to accept her submissions.
22. We do not find anything in the I.M.C. Act which provides that any candidate possessing a qualification included in the Schedules of the I.M.C. Act, is also required to undergo any test recognized by the Central Government. Neither in Section 13(3), nor in Section 25 nor in any other provisions of the I.M.C. Act do we find a requirement to this effect. So long as candidate has obtained the qualification included in the Schedules of I.M.C. Act and such candidate has undergone such practical training for obtaining that qualification as may be required by the rules and regulations in force in the country granting such qualification he is entitled to be registered in any State Medical Register.
23. Section 25(1) of the I.M.C. Act applies to a candidate, possessing a medical qualification granted by the Medical Institution outside India included in Part II of the Third Schedule, who is required to undergo practical training as prescribed by the latter of Sub-section (3) of Section 13. The petitioner is not such a candidate. The petitioner has already undergone the requisite training. The later part of Section 13(3) of the I.M.C. Act cannot apply to the petitioner inasmuch as it cannot be said that she has not undergone any practical training in the country where she obtained the qualification recognized in Part II of the Third Schedule viz. U.S.A.
24. In this regard Shri C.U. Singh, the learned counsel appearing on behalf of the petitioner, invited our attention to a Division Bench judgment of this Court in the case of Arun H. Bakle v. Union of India reported in : AIR1986Bom230 . The Division Bench held in paragraphs 5 and 8 as follows:--
'5. It is not in dispute that the petitioner is a citizen of India and that he has undergone practical training after obtaining the qualification as prescribed by Rules and the Regulations in force in the country granting the qualifications i.e. in U.S.S.R. He, therefore, fulfils the requirements laid down by Sub-section (3) of Section 13 of the Act entitling him to enrolment on the State Medical Register. Section 15 of the Act declares that persons possessing qualifications mentioned in the Schedules are entitled to be enrolled on any State Medical Register, Section 15, which is relevant in this behalf, reads as follows:--
'Section 15(1). -- Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
(2)&(3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx This right, however, is only subject to the other provisions contained in the Act. Now, so far as the present petitioner is concerned, the other provision that is relevant is Section 13(3) of the Act. The petitioner possesses the qualifications mentioned in Part II of Schedule III to the Act. Therefore, all that needs to be done before granting enrolment is to verify if he has undergone 'such practical training after obtaining that qualification as may be required by Rules or Regulations in force in the country granting the qualification, i.e. in the case of the petitioner by Patrice Lumumba Friendship University, Moscow'. There is no dispute that he has undergone such a training. In our view, without anything more he is entitled to be enrolled. Only in respect of persons possessing the medical qualification included in Part II of the Third Schedule who have not undergone practical training are required to undergo such practical training as may be prescribed as laid down by the last part of Sub-section (3) of Section 13. Hence, irrespective of whether any Regulations have been framed under Section 33 prescribing further training or only administrative instructions have been issued by respondent 2 which according to it, must also be complied with, the petitioner is entitled to be enrolled on Maharashtra State Medical Council Register, as claimed by him'.
'8. Even assuming that it is a regulation in our view, it cannot override the provisions of the Act especially Sub-section (3) of Section 13 and Section 15 which entitle a person possessing a degree referred to in Part II of the Third Schedule, and who has undergone practical training in the country which awarded him the qualification as required under the rules governing grant of such medical qualification without being required to undergo further training in India. Subsection (1) of Section 15 which declares such medical graduate's right to be enrolled is subject only to the other provisions of the Act. There is no other provision of the Act, so far as such medical graduates, as the petitioner, who have undergone a training as part of their course of study are concerned to undergo further training in India. That being a right conferred by the Act, no subordinate legislation like a regulation envisaged by Section 33 can take away that right by imposing a further condition, for Section 15(1) is only subject to the provisions of the Act and not to any rule or Regulation made thereunder. Any rule or regulation for such a medical graduate to be enrolled can only prescribe the form or the fee payable for registration and not prescribe any additional qualification thereby taking away his right to be enrolled. The Medical Council of India, in communicating the aforesaid letter, purports to prescribe an additional qualification or a condition to be acquired or fulfilled by the petitioner to entitle him to be enrolled on the State Medical Register. Any such regulation cannot override or modify the provisions of the Act so as to take away the right vested in a citizen under the Act. However bona fide such power may be exercised, no subordinate legislation can override the provisions of the Act.'
This judgment squarely applies to the facts of this case.
25. Mrs. Puri, the learned Counsel appearing on behalf of respondentNo. 1 further submitted that the petitioner was not entitled to registrationunder the I.M.C. Act despite her having acquired a qualification included in Part II of the Third Schedule for the reason that she does not possess a recognised basic medical qualification'. We are unable to accept this submission. Mrs. Puri was unable to show us any provision in support of her submission. Neither Section 13(3) nor Section 25 nor any other provision requires that a person, despite holding a qualification included in Schedule III Part II, must also possess a recognised basic qualification. If the legislature so intended it would have provided for the same. The legislature was obviously of the view that if it recognised the higher qualification to be sufficient for registration it was not necessary to also provide that the qualifying degree for acquiring the higher degree must also be recognised separately, This view would indeed be justified and in consonance with common sense.
In the circumstances, we pass the following order :--