- (1.) In stead of taking up the stay application, we have taken the appeal itself for final disposal with the consent of the learned Counsel for the parties by treating the same as on day's list.
(2.) At the instance of the Medical Council of India this appeal is directed against judgment dated 10th July, 2009 of the learned Single Judge for issuance of a writ in the nature of mandamus commanding the Medical Council of India to consider the writ petitioner's application for registration without imposing any condition under the 1997 or 2002 Regulations. The facts relating to filing of this appeal, briefly stated, are as under:- The writ petitioner cleared her Higher Secondary Examination in the second division. Her parents are doctors and the petitioner also was inclined to pursue a career in medicine. The writ petitioner obtained admission to the B. P. Koirala Institute of Health Sciences in Dharan, Nepal, The degree conferred by the said Institute is to be found as a recognised qualification in the Second Schedule to the Indian Medical Council Act, 1956 (hereinafter referred to as the Act). The writ petitioner completed her Bachelor of Medicine and Bachelor of Surgery (MBBS) from the said Institute in Nepal in 2006. After obtaining MBBS degree from the said Institute, the writ petitioner obtained a provisional registration from the Nepal Medical Council for a year and successfully completed her compulsory residential Rotary internship in 2007. In October, 2007 the writ petitioner applied to the Medical Council of India for permanent registration. By letter dated 17th July, 2008, the Medical Council informed the writ petitioner that she has obtained less than 50% marks in the combined group of physics, chemistry and biology at the higher secondary stage and that she was not entitled to direct registration as she belonged to the general category. The reply of the Council concluded with the following words :- "From perusal of the application form and documents submitted therewith, it has been noted that:- 1. You have joined the MBBS course in B.P. Koirala Institute of Health Sciences in September, 2000 which is recognized college under 12(2) of the IMC Act, 1956 on the basis having less than 50% marks in PCB. 2. You belong to General Category. In view of position explained above, since you are having less than 50% marks in PCB (in 10+2), the permanent registration is regretted in terms of Graduate Medical Education Regulations, 1997.
(3.) The writ petitioner challenged the said decision of the Council before the learned Single Judge. In the affidavit filed on behalf of the Medical Council, it was contended that the foreign institutions recognized under Section 12 of the Act cannot admit students from India to their courses without such students fulfilling the minimum eligibility criteria prescribed by the Council for being entitled to be admitted to medical schools in India. THE Council further submitted at the hearing that notwithstanding the petitioner not being eligible for registration under the 1997 Regulations, she can take the screening test conducted by the Council under the 2002 Regulations and, if successful, obtain a licence to practise in the Country. The writ petitioner thereupon contended before the learned Single Judge that a student or a person, who has obtained a degree from the educational institution named in the second Schedule to the Act cannot be required to be subjected to any further examination or screening before such person is permitted to practice in India. The learned Single Judge accepted the contention of the writ petitioner and held that the screening test being conducted by the Medical Council under the 2002 Regulations framed under Section 13(4A) of the Act would apply only to the persons who have obtained qualification from the institutions falling in Part - II in the Third Schedule to the Act and that such screening test would not be required for a person who has obtained the qualification mentioned in the Second Schedule to the Act.;