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Judgment Summary — Manmohan Sarin, J.

Factual and Procedural Background

The petitioner is a Consultant in Education who states he is the official representative of the Ministry of Health of the Russian Federation tasked with selecting Indian students for admission to specified medical universities in Russia (11 universities). The petitioner challenged certain news items, public notices and advertisements issued by the Medical Council of India (MCI) which warned students that those who obtained admission to medical courses in the former USSR/CIS through private agencies might not be granted registration by the MCI and thus would not be eligible to practise medicine in India. The petitioner contended that (a) he is duly authorised by the Russian Ministry of Health as the sole representative to select students; (b) the power to recognise or de-recognise foreign medical institutions rests with the Central Government and not with the MCI; and (c) the Central Government had not issued any notification de-recognising the 11 universities to which he selects students. The petitioner sought a writ of mandamus restraining the Ministry of Human Resource Development and the MCI from issuing the advertisements/notices or warnings described above and from stating that the petitioner was unauthorised or that agreements with private agencies were not recognised by the Central Government.

The Union of India and the Medical Council of India filed counter-affidavits opposing the petition. The Union raised defects with the petitioner’s agreement with the Russian authorities (alleged contravention of foreign exchange law and the Contract Act) and defended the notices as being in public interest. The MCI denied allegations of rivalry, challenged any fundamental-rights based claim by the petitioner, and relied upon past concerns about the standards of many former USSR medical institutions. The Court ultimately considered these rival submissions and dismissed the writ petition.

Legal Issues Presented

  1. Whether the respondents (in particular the Medical Council of India) may issue public notices/advertisements warning students that those obtaining admission to certain medical institutions in the former USSR/CIS through private agencies may not be granted registration by the MCI and therefore may not be eligible to practise in India.
  2. Whether the power to recognise or de-recognise foreign medical institutions or the degrees granted by them vests with the Central Government (as contended by the petitioner) rather than with the Medical Council of India.
  3. Whether the petitioner is the duly authorised, sole representative of the Russian Ministry of Health for selecting Indian students for admission to the identified Russian medical universities.
  4. Whether the petitioner’s agreement with the Russian authorities is void as contended by the Union of India — specifically, whether it contravenes Section 47 (and Section 8(1) was also mentioned) of the Foreign Exchange Regulation Act or Section 23 of the Indian Contract Act — and if so, whether the petitioner can enforce rights under that agreement.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner asserts he is the authorised, sole representative of the Ministry of Health of the Russian Federation for selecting Indian students to the recognised Russian universities, pursuant to a contract between him and the Russian Ministry of Health and Medical Industry.
  • Historically, admissions were managed by a consortium involving the Medical Council of India, EDCIL and a Russian recruitment wing; after problems (including non-transfer of fees and expulsion orders by Russian authorities), the petitioner was appointed to replace the prior arrangement and signed a contract to recommend and enroll Indian students.
  • The petitioner has been screening, recommending and forwarding eligible students to the Russian Ministry of Health, which accepts students recommended by him and grants admission.
  • The petitioner contends MCI issued misleading advertisements intended to deter students from using the petitioner’s services, thereby crippling his legitimate business.
  • Under the Indian Medical Council Act the power to de-recognise institutions or degrees vests with the Central Government; the MCI, at best, can only make recommendations.
  • The petitioner has publicly advertised his authorised status (examples of advertisements in 1994) and contends the MCI and Union’s notices mischaracterise recognition of private agency agreements with the Russian Ministry.

Union of India / Central Government's Arguments (as set out in counter-affidavit)

  • The petitioner’s agreement with the Russian authorities is said to be in contravention of Section 47 of the Foreign Exchange Regulation Act (FERA) and thus void.
  • The agreement is also alleged to violate Section 23 of the Indian Contract Act, making it unenforceable.
  • Because the agreement is alleged void, the petitioner cannot enforce rights under it.
  • On merits, public notices and advertisements issued by authorities (including MCI) were in public interest to forewarn prospective candidates about the actual recognition status of the Russian/CIS medical institutes.
  • There has been a decline in standards and loss of control in several of these institutions since the disintegration of the USSR; concerns included commercialisation, irregularities in admission criteria, and institutions inviting foreign students on full commercial fee basis without proper eligibility checks.
  • The MCI recommended de-recognition of 29 medical institutes and that any existing recognition should not continue beyond 31.12.1997 in relation to students sponsored by EDCIL/MCI.
  • It was contended that the petitioner lacks locus standi because recognition/de-recognition is essentially a matter between the Central Government, the Russian institutions, and the MCI.

Medical Council of India’s Arguments

  • The MCI denied allegations of business rivalry or improper motivation.
  • The petitioner does not have a fundamental right to carry on the alleged commercial trade of recruiting students for foreign institutions; commercialisation of education is not permissible and thus cannot ground a fundamental-rights claim.
  • The writ petition is time-barred by laches, as the initial advertisements and notices were published as early as February, July and November 1992 and again in March 1995.
  • The MCI described historical developments: sponsorship by MCI had effectively stopped since 1991; after USSR disintegration, institutions became autonomous and the 1986 Memorandum of Understanding lost sanctity.
  • The MCI recorded problems faced by returning students and had been involved in efforts (including visits and expert reviews) to evolve methods of selection/recognition/rehabilitation; these considerations underpinned the issuance of warnings/notices to prospective students.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court reviewed the competing contentions and the documentary/material record. It framed the dispute largely around whether the impugned advertisements and public notices by the Medical Council of India should be restrained.

  1. The Court noted a preliminary point that it was unnecessary for the purposes of deciding this writ petition to rule on the Union's contention that the petitioner’s agreement was void under FERA (Section 8(1) and/or Section 47) or under the Indian Medical Council Act regarding de-recognition powers (i.e., the Court expressly declined to decide those contentions in this proceeding).
  2. The Court accepted as fact (on material placed before it) that the MCI had recommended de-recognition of degrees awarded by 29 medical institutions in Russia and CIS and recommended that recognition not be extended beyond 31.12.1997. The Court found there was "sufficient material" to support the MCI’s expressed concerns about a decline in standards at institutions in the former USSR.
  3. The Court recorded the specific concerns noted by the MCI delegation from its inspections: wide variations from MCI norms in curricula; altered course durations and internship lacunae; admissions of students with under 50% marks; admission of students without science backgrounds; and proliferation of private agencies exploiting students and charging exorbitant fees.
  4. The Court examined the content of the impugned news items and MCI notices (examples dated 28.8.1997, 8.9.1997 and other MCI/public notices). Those publications stated the recognition status of the institutions was under review, reported the MCI’s recommendation, and advised students that private agencies were not authorised by the MCI/Government and that students gaining admission independently might not be registrable or eligible to practise in India.
  5. Balancing the material and the public interest, the Court concluded that MCI’s advertisements/notices served a legitimate public interest in forewarning prospective students about the uncertain recognition status and the potential risk of being unable to obtain registration to practice in India.
  6. The Court reasoned that during this period of review/interregnum, students might be induced to enroll believing recognition continued; thus public advisories were warranted to prevent foreseeable harm to students and to discharge the MCI’s institutional duty.
  7. The Court rejected the petitioner’s contention that a public notice of these factual circumstances constituted an actionable grievance merely because it harmed the petitioner’s commercial interests. The Court found that informing the public of the factual situation does not amount to an infringement of the petitioner’s rights.
  8. The Court observed the petitioner remains free to publish its own advertisements asserting its claimed authorised status and that, as on the date of decision, the Government of India had not de-recognised the particular Russian universities.

Holding and Implications

WRIT PETITION DISMISSED.

Implications and direct effects as set out by the Court:

  • The petition challenging the MCI/Union of India public notices and advertisements is dismissed; the impugned notices are not restrained by the Court.
  • The Court validated, for present purposes, the publishing of advisories by the MCI in the public interest while recognition of the foreign institutions and degrees is under review.
  • The petitioner remains free to continue publishing advertisements asserting its position as an authorised representative of the Russian Ministry of Health and to inform prospective students of the Government's current (as-of-date) non-de-recognition status.
  • The Court did not settle the broader legal questions about the validity of the petitioner’s agreement under FERA or Contract Act, nor did it finally determine the legal power of the MCI versus the Central Government on de-recognition — such matters were not necessary to decide for disposing of this petition.
  • The opinion contains no indication that a new legal precedent was established; the decision addresses the immediate dispute over issuance of public notices and the petitioner's inability to obtain relief in these facts.
Writ Petition dismissed.
Show full summary ...

    Study Abroad Educational Consultants Pvt. Ltd. v. Union Of India .

    Manmohan Sarin, J.— Petitioner is a Consultant in Education and is stated to be the official representative of the Ministry of Health of the Russian Federation, to select students for admission to the Medical Universities in Russia, from India.

    2. Petitioner is aggrieved by certain news items and public notices, taken put by the Medical Council of India/respondent No. 4 herein. The advertisements and news items, petitioner claims, warn the students approaching private agencies for taking up medical courses in countries of the former USSR that they would not be granted registration by the Medical Council of India. It is further stated that said students would not be eligible to practise medicine in India. Petitioner claims to be duly authorised by the Ministry of Health of the Russian Federation, as the sole representative to select students for admission in USSR. Petitioner contends that the said advertisements are misleading and detrimental to petitioner's interests. The case of the petitioner is that the power to recognise or derecognise medical institutions in India is vested with the Central Government and not with the Medical Council of India. Further that the Central Government has not issued any notification derecognising any of the 11 medical universities to which the petitioner selects students for admission. Petitioner, in these circumstances, has prayed for a writ of mandamus directing the Ministry of Human Resource Development and more specifically the Medical Council of India not to issue any advertisement/notice or warning to the effect that the students enrolled or to be enrolled in the 11 recognised medical universities in USSR, would not be enrolled on the Medical Register in India, or authorised to practise in India on their return. Further, that the notice or warning should not state that the petitioner is not authorised to select students for admission to the under-graduate or post-graduate courses in medicine in Russia or other countries, which earlier comprised the USSR. The notice or warning should not also mislead the public by stating that the Central Government does not recognise any agreement signed by any private agency with the Russian Ministry of Health and Medical Industry.

    3. I have heard Mr. Rajiv Nayyar, learned Counsel for the petitioner, who has made the following submissions:

    (i) Petitioner is the sole representative of the Ministry of Health of the Russian Federation to select students to the recognised Universities in Russia from India. Earlier there was a contract between the Medical Council of India and Educational Consultants India Limited (EDCIL) and Interobrazoraniye, a recruitment wing of the Russian State Committee for Higher Education. During the years 1989 to 1992, admissions to the Medical Colleges in Russia were regulated through this consortium and fee of nearly $1000 per year was collected from students. As the concerned agency had failed to transfer the money to the medical institutions, the Russian State Committee for Higher Education, i.e the Health Ministry ordered expulsion of foreign students recruited earlier. Petitioner claims that these problems were finally resolved by the Ministry of Health doing away with the services of the Russian State Committee for Higher Education and appointing the petitioner for recommending students for admission to Medical Universities in Russia, pursuant to which petitioner signed a contract with the Ministry of Health and Medical Industry of Russian Federation for the purposes of selection, orientation, enrolment and education of Indian citizens in Russian Medical Institutions.

    (ii) Petitioner has been meticulously processing and screening the applications and interviewing and selecting the students with the requisite qualifications for admission to the said 11 Russian Universities. The selected students, when sent with the recommendation of the petitioner, to the Ministry of Health are accepted and granted admission.

    (iii) Petitioner claims that the Medical Council of India having failed in its attempt to render the consultancy services with the EDCIL and consortium, referred to earlier, has been issuing these misleading advertisements warning students against joining medical universities in Russia through the petitioners.

    4. Learned Counsel for the petitioner argued that the whole attempt of the respondents has been to mislead the prospective students by issuing these advertisements and warnings stating that the students approaching private agencies and taking up medical courses in the countries of former USSR would be doing so at their own risk and responsibility. The advertisements have gone to the extent of suggesting that the Government and Medical Council of India have not recognised any such private agency to select students. Indisputably, petitioner was and continues to be the sole authorised agent appointed by the Ministry of Health and Russian Federation. Further, that though there was a move to derecognise the 11 institutions in Russia, no decision has been taken as yet in this regard by the Central Government. Accordingly, the issuance of advertisements, as noticed earlier, were misleading and unwarranted and had the effect of totally crippling the petitioner's legitimate business.

    5. Learned Counsel for the petitioner also took me through the various provisions of the Indian Medical Council Act to show that the power to derecognise the institution or the degrees granted by it vested with the Central Government under the Act and the Medical Council of India could only make a recommendation at best.

    6. The Medical Council of India as well as the Ministry of Health and Family Welfare have filed their counter affidavit in opposition. In the counter affidavit of Union of India, it is contended that the agreement of the petitioner with the Russian Authorities is in contravention of section 47 of fera and is void. It is also claimed to be violative of Section 23 of the Contract Act. It is, therefore, claimed that the petitioner cannot seek enforcement of any rights on the basis of a void agreement. On merits, it is contended that the public notices and advertisements were issued in public interest to serve as a forewarning to the prospective candidates, who should be made aware of the actual position with regard to the status of recognition of medical institutes in Russia and other CIS countries. The affidavit filed by the Union of India further states that after the break up of the Soviet Union there has been a perceptible decline in the standards of medical institutions. It is stated that with this disintegration and commercialisation of education system, there has been total lack of control. The State Committee of Higher Education of USSR was issuing letters of authority to Indian agencies for recruiting students for study in Russia. Besides, individual universities and institutions were also inviting foreign students on the basis of full commercial fee. The basic criteria for admission, eligibility, educational qualifications, etc. were being overlooked as long as the students were willing to pay the fee in dollars. It is stated that the Medical Council of India, in these circumstances, recommended de-recognition of the 29 medical institutions in Russia and other CIS countries and the degrees awarded by them. It was also recommended that, in any case, recognition of institutions should not go beyond 31.12.1997 when the last of the students who had been recommended/sponsored by the EDCIL/Medical Council of India would complete their courses. It was also averred that Indian students qualifying from medical institutions in Russia were not allowed to practice in their countries on the basis of degrees awarded while they claim eligibility for registration and being permitted to practise in India. It was contended that the petitioner had no locus standi in the matter since the matter of recognition and de-recognition was a matter between the Central government, the concerned Russian Institutions and the Medical Council of India.

    7. The Medical Council of India also filed its detailed affidavit denying the various allegations made and, in particular, of having any business rivalry with the petitioner. It was contended that the petitioner had no fundamental right, infringement of which could be claimed in the writ petition as the commercialisation of education was not permissible and the petitioner could not claim infringement of its right to carry on trade and business of recruitment of students. The writ petition also deserves to be dismissed on account of laches since the initial advertisements and public notices appeared as far back as in February, July and November, 1992 and again in March, 1995.

    8. The affidavit also sets out the events which had taken place leading to the Memorandum of Understanding signed with the USSR and the Council, stopping the sponsorship of students since 1991. With the disintegration of USSR, medical institutions are stated to have become independent and autonomous and the Memorandum of Understanding of 1986 had lost its sanctity. As against 6000 odd students which were sent by private agencies, only 174 students had been sponsored by the MCI for the under-graduate courses. The affidavit highlights the problems which would be faced by the students who wanted to come back to India and practice. The rehabilitation of students had been the subject matter of litigation even before the Apex Court. The Court dismissed the writ petition with the expression of hope that the Medical Council and the Government of India would evolve some method to rehabilitate such students. It was averred that in this background and taking note of the serious problems that had arisen due to commercial exploitation, various steps were taken by the Council to recommend to the Central Government, the de-recognition of 29 medical institutes in the USSR and limited recognition to these institutions upto 31.12.1997 It is stated that the President of the Council with the Indian team of experts visited Russia in June, 1995, to evolve methods regarding implementation of the earlier agreement dated 17.11.1994 It is stated that the Indian authorities are still considering ways and means to evolve a method for selection of students into the medical institutions of the erstwhile USSR.

    9. Considering the rival submissions of the parties, the position that emerges is that the Medical Council of India has made a recommendation for de-recognition of the medical degrees awarded by the 29 medical institutions in Russia and the CIS countries. Further, that the existing recognition should not be extended beyond 31.12.1997 There is sufficient material which has been placed on record and made available for the perusal of the Court to support the concern expressed by the Medical Council of India with regard to the decline in the erstwhile higher academic standards of educational institutions. The delegation of the Medical Council of India which had inspected some of the medical institutions had noted the following areas of concern:

    1. Wide variations in the teaching and training curricula amongst these institutes which were not in accordance with the MCI norms.

    2. The duration of the course had also been considerably varied by many institutes. There were lacunae in the period and system followed for internship.

    3. Students with less than 50% marks in the qualifying examination were admitted by some of the medical institutes.

    4. Students who had not even studied science in the qualifying examination had managed to secure admission.

    5. Many private agencies had mushroomed which were duping Indian students into obtaining admission in some of these institutions and were charging exorbitant fees.

    10. It is in this background that we have to consider the action taken by the respondents in taking out the impugned advertisements and notices. For the purpose of this writ petition, it is not necessary to either consider the plea of the Union of India that the agreement of the petitioner with the Ministry of Health of the Russian Federation being in contravention of Section 8(1) or Section 47 of the Foreign Exchange Regulation Act or the Medical Council not having any power under the Indian Medical Council Act for de-recognition or making changes in part II of the IIIrd Schedule.

    11. Let us now consider the impugned advertisements. In the news item which appeared on 28.8.1997 in the Indian Express at Chennai, it is stated that the Medical Council of India has warned students against seeking admission to the medical institutions located in the former USSR during 1997 as the matter of according recognition to the degrees conferred by them is currently under review. The news item further goes on to report that no private agency has been authorised by the Medical Council of India or the Government of India to select students for admission into under-graduate or post-graduate courses in medicine in CIS countries and Russia. The report further proceeds to state that the Council would not be granting recognition to students who would obtain admission to these institutions on their own and, as such, students would not be eligible to practice medicine in India.

    12. Similar report appears on 8.9.1997 titled “Medical Council of India against recognising Russian Degrees”. The report quotes the President of Medical Council of India saying that the 29 universities in the former Soviet States admitted students from Arts and Commerce streams into the medical courses and awarded them degrees. The recommendation of the Medical Council of India to the Government of India not to allow the admission of Indian students to Russian universities was also noted. The report clarified that it was left to the Government to issue orders de-recognising such institutions and that Medical Council of India was only a recommendatory body,

    13. At this stage, we may also notice some of the advertisements that had been taken out by the petitioner which appear at page 40 of the paper book. One such advertisement appeared in the Indian Express on 20.7.1994 The advertisement describes the petitioner as the accredited official representative of the Ministry of Health of the Russian Federation for selection of Indian students to all Russian Medical Institutes. To similar effect is the advertisement, which appeared on 27.7.1994 As far as the petitioner is concerned, it has fully publicised and brought out in the advertisements/public notices, the factum of its agreement with the Ministry of Health of the Russian Federation. The said notices have gone on to state that the Ministry of Health of the Russian Federation accepts only those students who are documented and forwarded by the petitioner. The Ministry of Health and Family Welfare, Union of India, had in March, 1995 itself stated that the Ministry does not recognise any agreement signed by the private agency with the Russian Ministry of Health and Medical Industry. The students approaching such private agencies for admission in medical courses in CIS countries would be doing so at their own risk.

    14. The last advertisement/public notice, appearing at page 66 of the paper book, was issued by the Medical Council of India, clearly bringing out that the matter of recognition of degrees granted by 29 medical institutions in the countries of the former USSR is under review. The students and their guardians are advised to await a final decision in the matter, which would be duly publicised. The students approaching private agencies and taking up medical courses in the countries of former USSR would be doing so entirely at their own risk. It further states that the Medical Council of India will not be granting registration to students who obtain admissions to these institutes on their own, without announcement of its decision in this regard. Consequently, such students will not be eligible to practice medicine in India.

    15. In these circumstances, the question that falls for consideration is whether the petitioner could seek a restraint on such a public notice or advertisement being issued by the respondents. There can be no dispute that the factum of continuance of recognition of these medical institutes is under review. The Medical Council of India has recommended de-recognition of degrees of these institutes and the decision is to be taken by the Central Government. During this interregnum the students, who may unwittingly and in the belief that recognition would continue, may get private sponsorship either by the petitioner or otherwise for pursuing their studies in the former USSR. These advertisements and notices are serving public interest in advising and forewarning the students with regard to the actual status regarding review and recognition of the medical institutions. The petitioner, in these circumstances, cannot make out a grievance out of a public notice or advertisement, informing the students or public at large of the factual situation on the ground that it is detrimental to its business and commercial interest.

    16. In my view, the Medical Council of India would be failing in its duty if the risks entailed in future in pursuing medical education in erstwhile USSR and CIS countries at the present juncture are not made publicly known.

    17. As far as the petitioner is concerned it is free and indeed has already taken out advertisement to the effect that the Ministry of Health of the Russian Federation recognised it as the authorised representative for selection of students for medical studies. Further that the Government of India has, as on date, not de-recognised the Russian Medical Universities.

    18. In view of the foregoing discussion, the writ petition has no merit and is dismissed. It is hoped that the Central Government would take a final decision in the matter of recommendation made by the Medical Council of India so that the uncertainty faced by the students undertaking medical studies in Russia and CIS countries ends.

    Writ Petition dismissed.
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    Study Abroad Educational Consultants Pvt. Ltd. v. Union Of India .
    (Dec 1, 1997)