Shahnaz Dar vs Medical Council of India & Ors.

Petitioner passed Higher Secondary Part II examination from J&K State Board of School Education under Roll No. 810302 in December,

1993 securing 282 marks out of 600. One Fayas Ahmad R/o Rainawari, Srinagar, who as per pleading of the petitioner was a Consultant, made

arrangements for the petitioner to enable him to undergo MBBS Course in Russia. The petitioner was granted admission in one of the Medical

Colleges in the year 1996 and successfully completed the said course in the year 2002. The certificate evidencing this fact has been annexed as

Annexure B with the writ petition. The petitioner after completing MBBS Course, applied to respondent No. 1 for accord of registration in terms

of Section 25(2) of the Indian Medical Council Act through Fayaz Ahmad, the aforementioned Consultant, for obtaining provisional registration

certificate so as to enable him to undergo compulsory internship course. The provisional certificate was issued by respondent No. 1 bearing No.

MCI20286 dated 03.02.2006. The petitioner also successfully completed the internship from SMHS Hospital, Srinagar. The petitioner received a

communication from respondent No. 1 bearing No. 203(158) 2192/ST2005Regn/886 dated 26.07.2007, wherein the petitioner was informed

that his provisional registration has been cancelled. The petitioner challenged the said communication before this Court in writ petition as OWP No.

836/07.

The petitioner before filing of the aforesaid writ petition had applied for grant of permanent registration certificate under section 13(3) of Indian

Medical Council Act against proper receipt. As the petitioner's provisional registration certificate was cancelled so he could not be granted the

permanent registration certificate by respondent No. 1. In OWP No. 836/07, petitioner, accordingly, sought quashment of the communication,

which had the effect of cancellation of his provisional registration certificate and sought further relief that respondent No. 1 be directed to treat the

cancellation of provisional registration certificate as ineffective and inoperative.

Respondents filed their reply/ objections. Respondent No.4 in the said writ petition in his reply affidavit has stated that a communication was

received from Mr. Jagtar Singh, Assistant Secretary, Medical Council of India, New Delhi whereby the said respondent was requested to verify

the genuineness of marks certificate purported to have been issued by the J&K State Board of School Education in favour of the petitioner under

Roll No.810302 in December, 1993. The said certificate revealed that the petitioner had passed Higher Secondary Part II Examination securing

337 marks out of 700. The said respondent in his reply stated that on examination of the records it was found that the certificate referred to above

was fake one and the Medical Council of India was intimated accordingly. Matter was also reported to Crime Branch, Srinagar but the Crime

Branch advised the said respondent to ask Medical Council of India to file an FIR before the concerned police station. The said respondent further

clarified that the petitioner infact passed the Higher Secondary Examination PartII under Roll No.810302 securing 282 marks out of 600.

Respondent No. 1 in its reply affidavit stated that the provisional registration certificate was issued in favour of the petitioner on the basis of

10+2 examination certificate, which he had furnished to the said authority and after getting verification report from the Board same having been

found fake and forged document, accordingly, the provisional registration certificate was cancelled. Respondent No. 1 has further taken objections

about the maintainability of the writ petition on the ground that the petitioner was ineligible as he was not fulfilling the minimum norms of having

secured 50% marks in 10+2 examination.

During the pendency of this petition the petitioner filed another writ petition, OWP No. 172/08 praying therein that respondents be commanded

to accord permanent registration to the petitioner under section 13(3) of the Indian Medical Council Act. It is further prayed that by writ of

mandamus respondents 3 and 4 be directed to accord registration to the petitioner in the State registers as well. Respondent No. 1 has filed

reply/objections to this petition as well and the stand taken in the objections filed to the earlier petition has been reiterated. Respondents have

taken the definite stand in their affidavit which is reflected in paras 54 and 57 which are reproduced as under:

""It is respectfully submitted that the matter with regard to grant of permanent registration to the petitioner herein had been deliberated by the

Registration and Equivalence Committee of the MCI at its meeting held on 30.6.2008 when the REC decided to obtain legal opinion.

The learned Retainer Advocate of the Council in his opinion dated 27.10.2008 suggested to obtain the present status of the FIR registered by

MCI with the concerned police Station.

In terms of the opinion of Retainer Advocate, the office of the Council had addressed letters dated 08.11.2008 and 13.01.2009 to the

SHO,Police Station Dwarka, New Delhi to intimate the current status of the FIR lodged by the Council vide letter dated 30.07.2007 against

Shahnaz Dar, the petitioner in the referred petition. However, till date no reply has been received by the Council office from the police authorities.

The matter was again considered by the REC at its meeting held on 17.2.2009 when the REC decided as under

....In view of this, the matter has been again placed for consideration before this committee and noted that even earlier in the similar situation

candidate, namely, Sukanta Ghosh who had submitted a fabricated and forged 10+2 marks sheet to the MCI along with his application for grant of

registration, the MCI had lodged a police complaint. The said candidate had filed WP (C) No. 12805/2004 before the Hon'ble Delhi High Court

wherein Council had filed its reply affidavit brining the statutory position as per the regulations of the MCI and the law laid down in this regard.

The Hon'ble Delhi High Court by its Order dated 29.08.2005, having regard to submission of a fake marks sheet by the petitioner therein, had

been pleased to dismiss the writ petition declining the grant of relief prayed for by the said candidate.

The said candidate, Dr. Sukanta Ghosh thereafter filed LPA No. 376/2006 before the Id. Division Bench of the Hon'ble Delhi High Court. The

learned Division Bench of the Hon'ble Delhi High Court vide its order dated 12.05.2008 while declining to interfere with the order of the learned

Single Judge, had been pleased to dismiss the appeal filed by the said candidate. The operative part of the order dated 12.05.2008 is given below;

....4. Under the above circumstances, the relief sought by the petitioner for directing the MCI to issue registration certificate to the petitioner

cannot be granted. In case the petitioner is finally exonerated from the criminal charge, he may again approach the Medical Council of India for

Registration...

Upon consideration of the above facts and having regard to the facts of present case where also the candidate, Shahnaz Dar has submitted forged

and fabricated marks sheet to this office along with his application for grant of provisional registration from the MCI. The REC came to the

conclusion that in the absence of the information with regard to the current status of FIR lodged by the MCI with the police authorities, and in view

of the judgments of the Hon'ble Delhi High Court mentioned above, the REC decides that the case of the petitioner for grant of permanent

registration by the Council cannot be recommended. REC also decided that the Hon'ble High Court of J&K, Srinagar may be apprised of this

position by the Council Advocate for MCI.

Heard learned counsel for the parties and considered the matter.

Learned counsel for the petitioner submitted that the petitioner in his bona fides trusted Fayaz Ahmad R/o Rainawari, Srinagar, who had

introduced himself as a Consultant and had got the petitioner admitted in Medical College, Russia. Learned counsel further submitted that the

provisional registration certificate was also obtained through said Fayaz Ahmad. It is further submitted that the petitioner had secured 282 marks

out of 600 under Roll No. 810302 and it is this certificate which was made available to the said Consultant. He further submitted that the petitioner

has neither forged any certificate nor has sought admission in the Medical College on the basis of fake and forged certificate. It is further submitted

that even the provisional registration certificate was not obtained by producing any fake or forged certificate. Learned counsel submitted that in

view of the law laid down by the Hon'ble Supreme Court in case titled Medical Council of India (Appellant) v. Indian Doctor Forum Russia

Welfare Association and ors (Respondents) reported in (2002)3 SCC 696 the students who had taken admission abroad prior to 15th of March,

2002 were permitted to appear in the screening test even though the said students did not meet the minimum admission norms of MCI for joining

medical course. The petitioner's case is covered by the said judgment of the Hon*ble Supreme Court. Learned counsel further submitted that the

order/ communication canceling the provisional registration certificate of the petitioner is vitiated for the reason that no notice whatsoever has been

issued to the petitioner before taking any action or before canceling the said registration certificate. Learned counsel further submitted that in view

of the facts projected in the case and non grant of permanent registration certificate by. respondent No. 1, the statutory authority has failed to

perform the statutory functions, which has constrained the petitioner to file petitions.

Appearing on behalf of respondent no.1, Mr. Mushtaq Ahmad, learned counsel, was at pains to explain that the petitioner by projecting the fake

and forged certificate of 10+2 examination had fraudulently obtained provisional registration certificate from respondent no. 1. Learned counsel

further submitted that no premium can be placed on the alleged fraud practiced by the petitioner on respondent No.1 and no direction can be

issued to respondent no.1 to issue permanent registration certificate in favour of the petitioner. The learned counsel further submitted that as

criminal case has been registered against the petitioner so he is not entitled to seek any direction from this Court against respondent No.1

Learned counsel has relied upon the judgments of Hon'ble Delhi High Court which judgments have been delivered in Cases titled Sanjay Kumar

Porwal (Petitioner) vs. Union of India and another (respondent), Dr. Dhandhu Ragu (petitioner) v. Medical Council of India (respondent), Dr.

Sukanta Ghosh (Appellant) v. Medical Council of India and another (Respondents) and Madhavanaidu K (petitioner) v. Medical Council of India

(Respondent ) and has further referred to a case titled K.D. Sharma (Appellant) v. Steel Authority of India Limited and others (Respondents)

reported in (2008) 12 Supreme Court Cases 481 to suggest that the writ petition which is based on false statement or where material facts are

concealed or effort is made to mislead the court, such petition shall be dismissed at threshold without considering the merits of the claim. Learned

counsel for the respondents has also produced a blank set of application form of buttress his arguments that the information given by the petitioner

to respondent No. 1 is false and he has relied upon the fake and forged documents.

Perusal of the said application form reveals that the applicant while filing in the application form has to give information about the 12th class

examination as from which board he has qualified the said examination, roll number, date of joining, date of passing and has also to give information

about the marks he has obtained in the subjects in which he has taken the examination. Further declaration is to be signed by the applicant and

affidavit is also to be sworn by the applicant. By producing the said application form learned counsel would thus suggest that the claim of the

petitioner that it was through the Consultant he approached the respondent No. 1 is not correct.

It is true that fake and forged document does not cloth a person with any right and any benefit secured by pressing into the service a fake and

forged document is to be taken back and person has to be denuded of all the benefits obtained through such document. On the basis of the

pleadings it appears that respondent no. 1 has issued the provisional certificate in favour of the petitioner on the basis of the certificate, which

admittedly is not genuine certificate but is forged one. Petitioner cannot get any benefit under the said certificate. The case of the petitioner,

however, is that he approached the respondent no.1 through Consultant, Fayaz Ahmad and the certificate was issued by respondent No. 1 on the

presentation of the documents to the said authority by the Consultant. The case of the petitioner is that he had secured only 282 marks out of 600

in 10+2 examination and same certificate was provided to respondent No. 1.

The J&K State Board of School education in their objections/reply filed in the earlier writ petition have admitted that the certificate projected

by the petitioner is genuine, while as the certificate referred to the said authority by respondent No. 1 is a fake certificate. The petitioner is

projecting his whole claim on the basis of the certificate, which is admitted to be genuine by the J&K State Board of School Education. His claim is

that in view of the law laid down by the Hon'ble Supreme Court he is eligible for being issued the provisional registration certificate as also the

permanent registration certificate by the Indian Medical Council. His further claim is that in view of the law laid down by the Hon'ble Supreme

Court it would never occur to him to secure provisional registration certificate by producing a fake certificate.

Mr. Mushtaq Ahmad, learned counsel for respondent No. 1 submits that in view of the judgment handed down by the Hon'ble Delhi High

Court no direction can be issued in this writ petition also.

Facts revealed by the judgments referred to make it definitely clear that the criminal cases were registered against the petitioners therein. In the

present case hazy scenario is projected by respondent No. 1 itself in the affidavit, reproduced in this judgment as to whether any criminal case

stand registered against the petitioner. Respondent No, 1 itself is not sure whether any criminal investigation/criminal case is pending against the

petitioner. The facts in those cases are further dissimilar as the petitioner is not claiming that he secured provisional registration certificate on the

basis of forged 10+2 certificate. The judgment of the Hon'ble High Court of Delhi in such circumstances will not be of any help to respondent

No.1 as there is material difference in the facts of those cases and the case in hand. By the impugned communication/order right vested in the

petitioner has been taken away. The petitioner is further not being considered for issuance of permanent registration certificate on the basis of 10+2

certificate which is alleged to be produced by the petitioner and which has been found to be fake. Respondent No. 1 has cancelled the provisional

registration certificate on the basis of the verification sent to them by the State Board of School Education. Neither the authorities of J&K Board

issued any notice to the petitioner before sending the verification report to respondent No. 1 nor respondent No. 1 issued any show cause notice

to the petitioner before relying upon the report of the J&K Board of School Education and before canceling his provisional registration certificate.

The action of respondent No. 1 is thus vitiated as there is complete non compliance with the principles of natural justice. Violation of principles of

natural justice would in turn result in breach of constitutional rights guaranteed under article 14 of the Constitution. Had the respondent No. 1

issued show cause notice to the petitioner, may be on the reply filed by the petitioner, respondent No. 1, the statutory authority, after applying its

mind may not have come to the conclusion to which it has arrived at and may have come to a different conclusion. The impugned action of the

respondent No. 1 in such circumstances is not countenanced in law and this action is, accordingly, declared to be illegal.

Communication / order impugned in OWP No. 836/07 is quashed. Respondent No. 1 is directed to consider the claim of the petitioner for

grant of permanent registration in terms of Section 13(3) of Govt. Medical Council. The respondent No. 1 before passing any order :n this behalf

should afford opportunity of hearing to the petitioner and there after pass appropriate orders in accordance with the law. It is made clear that

issuance of direction for consideration would not mean that respondent No. 1 has to issue permanent registration certificate. Respondent No.1 is

required to satisfy itself about the statutory requirements and the eligibility of the petitioner and thereafter should pass the appropriate order.

Disposed of alongwith connected CMPs.