HC denies relief to FMG, says Eligibility Certificate To Attempt FMGE Screening Test Cannot Be obtained After Getting Medical Degree from Abroad

New Delhi: Denying relief to an FMG, the Delhi High Court has stated that Foreign Medical Graduates cannot get an eligibility certificate to appear in the Foreign Medical Graduate Examination (FMGE) i.e. the screening test to practice in India, after obtaining their medical degrees from the medical institutes abroad.

Clarifying that the eligibility certificate has to be obtained before securing medical admission abroad, the HC bench of Justice C Hari Shankar referred to the Supreme Court judgment and noted, "I am bound by the judgment of the Supreme Court in Indian Doctors from Russia Welfare Association and the decisions of the Division Bench of this Court in Ishan Kaul and Shambhavi Sharma, as well as the statutory dictate contained in Section 13(4B) of the IMC Act, all of which envisage obtaining of the Eligibility Certificate before joining the medical course abroad, and stipulate it as a precondition for the candidate to be eligible to appear in the FMGE for practicing in India as a medical professional. I have, therefore, reluctantly had to hold that the Eligibility Certificate cannot be obtained after the candidate has obtained the PMQ [ Primary Medical Qualification] from abroad."

The HC bench made such observations while considering a plea by a doctor who pursued her medical education in the Philippines and was denied the eligibility certificate by the National Medical Commission (NMC), erstwhile the Medical Council of India (MCI).

While considering the matter, the HC bench noted that NMC had been granting Eligibility Certificates to students who did not obtain such certificates before joining the medical course abroad and had applied for the Eligibility Certificate after obtaining the PMQ from the foreign institution, provided, according to the NMC, they were eligible for having been issue the Eligibility Certificate before they joined the medical course abroad.

"One may well imagine the plight of a student, such as the petitioner, who was educated entirely in Philippines, and who obtained her MD degree as per the law applicable in Philippines, being told, on returning to India and applying for an Eligibility Certificate to attempt the FMGE, that it is too late. If the NMC is, therefore, entertaining the request of such a student for grant of Eligibility Certificate on merits, it is a wholesome dispensation, but, unfortunately, is contrary to Section 13(4B) of the IMC Act and Regulation 4(2) of the Screening Test Regulations. As a court of law, I find it difficult to affix my judicial seal of approval to this course of action," the Court clarified.

The petitioner completed her BS Course and Doctor of Medicine ('MD') course from the Philippines. NMC denied issuing her Eligibility Certificate on the grounds that the petitioner had joined medical school -Davao Medical School Foundation Inc. ('DMSFI')- before completing her schooling which was not acceptable as per the NMC regulations. However, as per the rules, it is mandatory to clear the FMGE Screening Test to practice in India. Further, to be eligible to appear in the screening test, the eligibility certificate is required. 

Therefore, challenging the rejection of her application for the Eligibility Certificate, the petitioner approached the Delhi High Court. While considering the matter, the HC bench relied on Section 13 of the Indian Council Act, 1956 which requires the candidate, who is a citizen of India and obtains a PMQ from a foreign medical institute, to qualify the FMGE in order to be enrolled on the Medical Register maintained by the State Medical Council or the Indian Medical Register.

The court noted that the subsection 4B further stipulates that such a citizen of India shall not be eligible to bet admission to contain a PMQ granted by any institution in a foreign country without obtaining an Eligibility Certificate issued to him by the MCI.

Section 13(4B) stipulates, "in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not be eligible to appear in the screening test referred to in sub-section (4A)."

Referring to these regulations, the HC bench observed,

"In view of this concluding caveat in Section 13(4B), it is clear that, as the petitioner is a citizen of India, and had obtained the MD qualification from the DMSFI without obtaining the Eligibility Certificate from the MCI, she is not eligible to appear in the FMGE. Section 13(4B) does not, expressly or impliedly, envisage obtaining of the Eligibility Certificate after obtaining the PMQ from the foreign medical institution. Allowing the petitioner to obtain the Eligibility Certificate from the MCI/NMC at this stage, after she has already obtained the MD qualification from the DMSFI would, therefore, do violence to Section 13(4B)."

The Court also referred to Regulation 4(2) of the Screening Test Regulations and noted,

"To my mind without rewriting the statute, it is impossible to read Regulation 4(2) of the Screening Test Regulations as enabling a candidate to obtain an Eligibility Certificate after obtaining the PMQ from abroad."

"In fact, there is no provision in any Statute, Rule or Regulation which permits application for an Eligibility Certificate after the candidate has already obtained a PMQ from a Foreign Medical Institution. The Eligibility Certificate has to be obtained prior to joining the medical course abroad. If it is not obtained at that stage, it cannot be obtained later. Regulation 4(2) of the Screening Test Regulations do not permit a candidate to apply for an Eligibility Certificate after having obtained the PMQ from the foreign medical institution," the bench further mentioned in the judgment.

The Court also relied upon the Supreme Court's landmark judgment in the case of Indian Doctors from Russia Welfare Association, where the Apex Court was concerned with the plight of persons who had obtained medical qualifications from colleges in the erstwhile USSR and, after the disintegration of the USSR, faced difficulties in obtaining admission to recognised colleges. Further difficulties, in the matter of recognition of the qualifications obtained from such colleges by the MCI in India, so as to enable such students to practice medicine here, also arose

In that case, the Supreme Court called upon the Government of India to formulate an appropriate policy, keeping in mind the human problem that had arisen.

"Thus, in para 4(iii) of the decision, the Supreme Court held that, as per the Eligibility Regulations, any Indian citizen, desirous of taking admission in an undergraduate medical course abroad on or after 15 March 2002, has necessarily to obtain an Eligibility Certificate from MCI, and that the said certificate, obtained prior to taking admission in the medical course abroad, would have to be produced at the time of appearing in the screening test, undertaken after obtaining the PMQ from abroad, for obtaining registration in India. Para 4(iii), therefore, clearly holds that the Eligibility Certificate, which is to be produced by the candidate for appearing in the FMGE and subsequent registration in India, is the Eligibility Certificate obtained prior to joining the medical course abroad. This clearly militates against obtaining their Eligibility Certificate after having completed the medical course abroad, resulting in the award of the PMQ. To repeat, para 4 (iii) of the decision requires the Eligibility Certificate to be obtained by the candidate prior to undertaking the medical course abroad, and produced by the candidate before undergoing the FMGE and subsequent registration in India," observed the High Court.

Further, the High Court also relied on the Delhi High Court orders in the case of Ishan Kaul & Ors. vs Medical Council Of India & Anr. (2009 DHC) and Rohinish Pathak vs Medical Council Of India and Anr. (2019)

It concluded by noting

"Following the above discussion, as the petitioner never applied for the Eligibility Certificate before joining the MD course in the DMSFI, and in view of Section 13(4B) of the IMC Act and Regulation 4(2) of the Screening Test Regulations, read with the judgments in Indian Doctors from Russia Welfare Association, Ishan Kaul and Rohinish Pathak, I am constrained to hold that the petitioner was required, in law, to obtain the Eligibility Certificate before joining the MD course in DMSFI and, having not done so, is ipso facto ineligible to appear in the FMGE or register as a medical practitioner in India."

To view the HC order, click on the link below:

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