016-SLLR-SLLR-2005-V-3-JINADASA-vs.-SRI-LANKA-MEDICAL-COUNCIL-AND-OTHERS.pdf
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JINADASAVSSRI LANKA MEDICAL COUNCIL AND OTHERSCOURT OF APPEALIMAM, J AND.SRISKANDARAJAH, J.CA 290/2005.AUGUST 23,2004.JULYM 27,2005.AUGUST 23,2005.
Medical Ordinance, sections 19(c), 29(l)(iv)(cc) – Act 16 Examination-Recognition of foreign medical degrees, – Duty cast on the 1st respondent topermit the applicant to sit Act 16 Examination,
The petitioner having completed her Medical Course obtained the MBBS degreein 2004, from the Faculty of Medicine from the International Medical andTechnological University of Tanzania (IMTU), which is recognized by the 1strespondent Medical Council.
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Jinadasa v. Sri Lanka Medical Council and Another (Imam, j.)
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The petitioner seeks a writ of mandamus directing the respondents to acceptthe application of the petitioner and admit her to the Act 16 Examination.
The 1st respondent Council opposed the application on the basis that theentire course was not followed at I MTU Tanzania, as para-clinical training washeld in Gunton India, an off shore teaching centre.
HELD:
Under section 29(1 )(b)(ii)(cc) of the Medical Ordinance, a citizen ofSri Lanka who holds a MBBS degree from a University of any othercountry other than Sri Lanka, which is recognized by the Sri LankaMedical Council is required to sit and pass the special examinationAct 16.
If the 1st the respondent Medical Council was not satisfied with thestandards maintained at IMTU an application could have beenmade under section 19(c) to the Minister of Health for de-recognition.
As the 1 st respondent has not sought to de-recognize the University,the 1st respondent Council is legally bound to recognize theMedical degree of IMTU.
It is also apparent that a Degree in Medicine and Surgery (MBBS)awarded by IMTU Dar-es-Salaam, Tanzania has been recognizedby the 1st respondent Council from 1999 onwards.
There is no basis in fact or in law for the 1 st respondent MedicalCouncil to decline to carry out its statutory obligation to permit thepetitioner to sit the Act 16 examination.
Application for a writ of mandamus.
Faiz Musthapha, P. C. with Faisza Markarand Thushani Machado for petitioner.
D. P. Kumarasinghe, P. C. with Shamindra Rodrigo for 1 st respondent.
Shibly Aziz, P. C. with Senani Dayaratne and Sharmeen Ahamed for 2ndrespondent.
Cur. adv. vult.
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12th September, 2005,
IMAM, J.The Petitioner is seeking a mandate in the nature of a Writ ot Mandamusdirecting the 1st and 2nd Respondents to accept the application of thePetitioner and to admit the Petitioner as a candidate for the specialexamination prescribed by the 1 st respondent in terms of section 29(1 )(iv)ccof the Medical Ordinance which is referred to popularly as “Act 16’’Examination as a precondition for provisional registration as a MedicalPractitioner to serve a period of internship in order to secure registration topractice. The Petitioner has obtained a Bachelors Degree (P1) in Medicineand surgery (MBBS-First Class) issued by the Faculty of Medicine fromthe International Medical and Technological University of Tanzaniahereinafter referred to as (IMTU) on 17.04.2004 with regard to theExamination held in November 2003, which is recognized (P2) by the 1 stRespondent Medical Council as required by section 29(2)(b)(iii)(bb)(i), andthus the question is whether the 1 st respondent has a legal duty and isbound to register the Petitioner and permit her to sit the aforesaidexamination. IMTU is a University recognized by the 1 st Respondent fromSeptember 1999, with regard to the MBBS Degree, as illustrated by P2which sets out the list of Foreign Medical degrees recognized under Act16 of 1965.
In accordance with the Medical Ordinance section 29(1 )A person shall,upon application made in that behalf to the Medical Council be registeredas a Medical Practitioner. Under section 29(1)(b)(ii)cc of the MedicalOrdinance, a citizen of Sri Lanka who holds the degree of Bachelor ofMedicine of a University of any other country, other than Sri Lanka, whichis recognized by the Sri Lanka Medical Council is required inter alia, topass a special examination prescribed by the 1st Respondent to beregistered as a Medical Practitioner.
In terms of the guidelines (P3) issued by the 1 st Respondent to Medicalgraduates with foreign qualifications, an application should be submittedon a form titled “Recognition of degree or equivalent qualifications” togetherwith the original and two photocopies of the degree to enable the applicantto sit the aforesaid Examination.
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Jinadasa v. Sri Lanka Medical Council and Another (Imam J.)
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The Petitioner alleges that whenever she attempted to hand in herapplication tor the said Examination, the Registrar refused to accept herapplication, alleging that part of the course followed by the Petitioner inIndia was not recognized by the 1 st respondent. However in accordancewith (P5) dated 31.07.2004 which is a letter sent by an officer of IMTU tothe President of the 1st respondent, it is very explicitly pointed out thatalthough the initial para clinical training of the Petitioner and some otherstudents was held in Guntur, India which was an off-shore teaching centre,the syllabi at IMTU Dar-es-Salaam and Guntur were the same and that theExaminations held in Guntur were conducted by IMTU, Tanzania andcertificates issued at Da-res-Salaam, copies of the’relevant mark sheetsbeing marked as C. This letter also confirms that the petitioner havingsuccessfully completed her para clinical training at Guntur, passed herexaminations, and qualified as a Doctor, having been a student of IMTU,Dar-es-Salaam. Furthermore in accordance with (P2), a Degree in Medicineand surgery (MBBS) awarded by IMTU, Dar-es-Salaam, Tanzania hasbeen recognized by the 1st Respondent from the year 1999 onwards,which recognition has not been repealed upto date. The Petitioner sumbitsthat she informed the Registrar that the teaching centre at Guntur hadsubsequently been closed down by IMTU Tanzania since May 2002, andthat at the said premises a Medical college by the name of Kathuri MedicalCollege had been established. The Petitioner avers that the 1 st respondentinsisted on inspecting the Guntur centre, although it had ceased to exist.
The 1st Respondent apparently is opposing the application of the.Petitioner on the basis that the entire course was not followed by thePetitioner at IMTU, Tanzania. Besides (p2) which recognizes the MBBSdegree, Tanzania since September 1999, by virtue of the letter dated
sent by the 1st Respondent to the Dean of IMTU, recognitionwas granted to IMTU Medical school unconditionally, and no other materialwas produced in the objections filed by the Respondents, the 1stRespondent along with the written submissions sought to produce aphotocopy of a letter (Y1) dated 20.09.1999, which is said to have beenwritten to the Dean of IMTU College of Medicine by the 1 st respondent.This letter however has not been supported by an affidavit, and has notbeen certified. Although the written submissions tendered by the 1stRespondent aver that it is only the College of Medicine, IMTU Dar-es,Salaamthat is recognized by the 1 st Respondent, (P2), by referring ro “College ofMedicine, International Medical and technological University, Dar-es-salaam, Tanzania”, obviously the 1 st Respondent would be interested inthe College of medicine, as the 1st respondent is the Sri Lanka MedicalCouncil. However in P2 IMTU has been referred to completely, which hasnot been de-recognized by the 1 st Respondent subsequently.
The Petitioner having completed her Medical course obtained her MBBSDegree on 17.04.2004, having obtained a first class in the November 2003
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Examination, after years of study at Tanzania and subsequent to pre clinicaltraining at Guntur, which was supervised and examinations conducted byIMTU, Tanzania as Guntur is an of-shore teaching centre. Section 29(1) ofthe Medical Ordinance, states that “a person shall upon application madein that behalf to the Medical Council be registered as a Medical practitioner"if the conditions in section 29 are fulfilled. Section 29(1 )(b)(ii) refers toforeign medical graduates. The Petitioner has obtained her degree by virtueof section 29(2)(b)(iii)(bb) of the Medical Ordinance which is recognizedby the Medical Council for the purpose of this section, and hence the 1 stRespondent cannot escape from the legal duty cast on it. There is nobasis in fact or in law for the 1st Respondent to decline to carry out it’sstatutory obligation, to permit the Petitioner to sit the 29(1 )(iv)(cc) SpecialExamination of the Medical Ordinance, commonly referred to as the Act16 Examination.
In the event of the 1 st Respondent not being satisfied with the standardsmaintained at IMTU, an application could have been made under section19C of the Medical Ordinance to the Minister of Health that the prescribedstandards are not being maintained and recommended that suchqualification shall not be recognized for the purpose of Registration underthis Ordinance which has not been done. Hence the 1st Respondent islegally bound to recognize the Medical degree of IMTU as there has beenno de recognition.
Justice A. R. B. Amerasinghe in his book titled “Judicial Conduct, Ethicsand responsibilities” at page 284 states thus—
“The function of a Judge is to give effect to the expressed intention ofParliament. If legislation needs amendment, because it results in Justicethe democratic processes must be used to bring about the change”. Thishas been the unchallenged view expressed by the Supreme Court of SriLanka for almost a hundred years.
For the aforesaid reasons this court grants the Petitioner the relief prayedfor, and issues a Writ of Mandamus directing the 1 st respondent to acceptthe application of the Petitioner, and admit the Petitioner as a candidatefor the Special examination prescribed by the 1 st Respondent in terms ofsection 29( 1 )(iv)cc of the Medical Ordinance. On an application by LearnedPresident’s Counsel for the 2nd Respondent, the 2nd Respondent wasdischarged from this case and the connected cases. As CA,291/2005,
Francis vs. Premawathy and Another
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CA
CA.292/2005 and CA.293/2005 are connected matters and counsel inthese cases agreed that the Judgment given in this case would be bindingin the other cases, the Petitioners in the aforementioned cases are grantedthe same relief prayed for, Writs of mandamus are granted as prayed forby the respective Petitioners without cost, and the 1st respondent Councilis directed to admit the respective Petitioners as candidates respectivelyfor the Special Act 16 Examination prescribed by the 1st respondent.
SRISKANDARAJAH, J. — I agree.
Application allowed.