Partly allowed

Gopika Jaya Prasad v. State of Kerala

Kerala HC4 Dec 2023WP(C)/13588/2023

Case brief

AI extract

What is this about?

This writ petition challenged an NMC order imposing an additional internship year on a foreign medical graduate who attended some classes online due to COVID-19. The Court set aside the order because the petitioner was denied a hearing despite a prior interim direction, though it referred factual disputes back to the NMC.

What did the court decide?

Set aside Ext.P28; directed NMC to hear the petitioner and pass a fresh order within two months.

Gopika Jaya Prasad Vs State of Kerala — Service and Employment | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945
WP(C) NO. 13588 OF 2023

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PETITIONER:

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GOPIKA JAYA PRASAD, AGED 25 YEARS,
D/O.LATE R.G.JAYA PASAD,
FLAT NO. 10 A1, ABM TOWERS,
KADAVANTHARA, KOCHI, PIN – 682020.

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BY ADVS.
P.SANJAY
A.PARVATHI MENON
BIJU MEENATTOOR
PAUL VARGHESE (PALLATH)
KIRAN NARAYANAN
RAHUL RAJ P.
P.A.MOHAMMED ASLAM
PRASOON SUNNY
AMRUTHA M. NAIR
MUHAMMED BILAL.V.A
INDIRA.K.P.

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF FAMILY AND HEALTH, GOVERNMENT SECRETARIAT ANNEXE-2, THIRUVANANTHAPURAM, KERALA, PIN – 695001.

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2 DIRECTORATE OF MEDICAL EDUCATION, CHALAKKUZHI, THIRUVANANTHAPURAM, KERALA, PIN – 695011.

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3 GOVERNMENT MEDICAL COLLEGE, ERNAKULAM, HMT ROAD, HMT COLONY,NORTH KALAMASSERY, KALAMASSERY, KOCHI, KERALA, PIN – 683503.

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4 THE KERALA STATE MEDICAL COUNCIL (EARLIER KNOWN AS TRAVANCORE COCHIN MEDICAL COUNCILS), COMBINED COUNCIL BUILDING,

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RED CROSS ROAD, THIRUVANANTHAPURAM, PIN – 695035,
REPRESENTED BY ITS REGISTRAR.

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WP(C) NO. 13588 OF 2023

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5 THE NATIONAL MEDICAL COMMISSION, (UNDER GRADUATE MEDICAL EDUCATION BOARD), POCKET 14, SECTOR 8 DWARKA, PHASE - I, NEW DELHI 77, REPRESENTED BY ITS CHAIRMAN.

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BY ADVS.
N. RAGHURAJ, SC
TITUS MANI VETTOM, SC
SRI.P.G.PRAMOD, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 13588 OF 2023

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JUDGMENT

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The petitioner says that she completed her

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MBBS course in China, as is manifest from the
Provisional Certificate issued by ‘Jinan
University’. She, however, admits that, on
account of the COVID-19 disruption, she was
flown back to India by Government of India in
January, 2020; and that she completed the next
three months of the course online.

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2.The petitioner explains that, even

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though remaining period of the course was five
months, there was a break in between and that
the curriculum was only for three months. She
asserts that these three months did not take in
any clinical subjects, but only non-clinical
ones; and therefore, that the rigour of the
public notice of the National Medical Commission
(NMC) dated 28.07.2022, whereby, foreign medical
graduates, who had completed the course from

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WP(C) NO. 13588 OF 2023

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Foreign Universities through online mode, are

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required to complete one additional year of
internship, cannot be applied or enforced
against her.

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3.Sri.P.Sanjay – learned counsel for the
petitioner, submittedthathisclient,
therefore, had no other option, but to have
approached this Court through this writ

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petition; and that an interim order was issued
by another learned Judge on 12.05.2023,

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directing the ‘NMC’ to consider and pass
appropriate orders on her then pending
representation, leading to a new order being
thus issued, namely Ext.P28. He pointed out
that, however, before issuing Ext.P28, no

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opportunity had been made available by the ‘NMC’
to his client of being heard, even though the
aforesaid interim order specifically directed
so; and therefore, that its contents are

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WP(C) NO. 13588 OF 2023

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untenable and illegal, particularly when it
presumes, without any corroborating evidence,
that his client had completed the course,
especially clinical subjects, only in the online
mode. He thus reiteratingly prayed that Ext.P28
be set aside and the ‘NMC’ be directed to
reconsider his client’s case in its proper

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perspective.

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4.After arguing as afore, Sri.P.Sanjay
then added that his client is entitled to make

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the afore request also because, she has produced
on record at least three Certificates issued by

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the ‘Council of Modern Medicine, Kerala State’
and by the ‘Delhi Medical Council’, namely,

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Exts.P25, P26 and P27, whereby, persons

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identically situated as her have been granted
registration; and argued that this amounts to
grossdiscrimination.Heconcludedhis

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submissions contending that, in any event, the

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WP(C) NO. 13588 OF 2023

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public notice of the ‘NMC’ in question cannot

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apply to his client for another reason also,
namely, that she had already been registered as

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a Foreign Medical Graduate as early as on

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01.10.2020, thus rendering it indubitable that
she had completed her course without any legal

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infirmity. He pointed out to Ext.P2 in
substantiation; and thus reiteratingly prayed
that the reliefs sought for in this writ
petition be granted.

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learned Standing Counsel for the ‘NMC’, affirmed
that petitioner had not been heard while Ext.P28
was issued; but argued that this was unnecessary

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because, the only question to be decided was
whether she had completed her course by physical
appearance in the University, or through online
mode. He argued that, since the petitioner
admits unequivocally that she completed at least

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WP(C) NO. 13588 OF 2023

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five months of her course only through online

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mode, the public notice in question would apply
to her in full force; and that this is all that

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his client has informed her through the said

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order. He contended that petitioner cannot avoid
the requirement of completing one more year of
internship because, the Hon’ble Supreme Court,

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in its order dated 28.03.2023 in W.P.
(C)No.607/2022 and connected matters, has

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already held that, in circumstances where a
student does not complete the course through
physical classes, the requirement of one more

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year internship cannot be said to be arbitrary
or unlawful.

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6.Sri.Titus Mani Vettom then predicated
that, as far as Ext.P25, P26 and P27 - cited by

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the petitioner, are concerned, she cannot obtain

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any aid out of it because, even assuming that

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persons mentioned therein are identically placed

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WP(C) NO. 13588 OF 2023

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as her – without in any manner admitting it –

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those Certificates were issued by other
Regulatory Authorities, namely the ‘Council of
Modern Medicine, Kerala State’ and the ‘Delhi
Medical Council’, over which the ‘NMC’ has no
supervisory or controlling power. He thus prayed
that this writ petition be dismissed.

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7.Interestingly, Sri.N.Raghuraj – learned
Standing Counsel appearing for the ‘Council of
Modern Medicine, Kerala State’, in response to
the submissions of the petitioner, affirmed that
Ext.P25 Certificate was issued by his client;
explaining that this was correctly done because,
on verification of the credentials of the
student therein, it was found that he had not
completed any module or component of the course
through online platform. He submitted that this
is because, said student had returned to India

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only in June, 2020, after the course was

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WP(C) NO. 13588 OF 2023

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completed, unlike the petitioner, who had

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returned to India in January, 2020, five months
before her course had got over.

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8. Responding to the afore submissions of

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the learned Standing Counsel for the
respondents, Sri.P.Sanjay intervened to say that
his client will be able to establish that, in
the case of the students mentioned in Exts.P25,
P26 and P27, they had also completed the course
through online mode. He asserted that his client
has been, however, incapacitated from doing so
since, in spite of the specific order of this
Court, the ‘NMC’ had refused to hear her, while
Ext.P28 has been issued.

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9.When I evaluate and consider the afore

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rival submissions, it is indubitable that ‘NMC’

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has never approved and validated medical
qualifications - whether it is theoretical or
practical - through online mode. In fact, this

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WP(C) NO. 13588 OF 2023

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is perspicuous from Ext.R1(b) letter, dated
19.10.2022, issued by them, produced along with
the counter affidavit filed on behalf of the 1st
respondent. The said letter renders it
ineluctable that, even though the online study
for medical qualification has never been
recognized or approved by the ‘NMC’, a latitude
was given to students as a one time measure
only, taking note of the disruption caused by
the COVID-19 pandemic.

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question is whether a student who completes
course outside India, should be subjected to an
evaluation as to whether they did so online or

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physically. If it had been done physically, then
obviously, the rigour of the public notice in
question would not apply; while, if it has been
done online, then it may have to be applied.
This is unequivocally affirmed by Sri.Titus Mani

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WP(C) NO. 13588 OF 2023

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Vettom also.

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11.In the case at hand, there are

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disputation of facts impelled by the petitioner,
that she did not complete the course through
online mode; and that the five months which she
had to complete it, while in India, did not take
in any clinical subjects. She also has a
specific case that Exts.P25, P26 and P27, as I

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have already recorded above, relate to persons
who are similarly situated as her.

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12.Indubitably, therefore, the petitioner

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ought to have been given an opportunity of being
heard by the ‘NMC’, before Ext.P28 could have
been issued because, the interim order of this
Court dated 12.05.2023 had specifically directed
such hearing to be afforded. Further more, the
afore assertions of the petitioner are in the
factual realm, which requires to be assessed
based on materials and documents, as are

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WP(C) NO. 13588 OF 2023

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germane; which cannot be done by this Court,
while acting under Article 226 of the
Constitution of India.

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In the afore circumstances, I order this

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writ petition and set aside Ext.P28; with a
consequential direction to the ‘NMC’ to hear the
petitioner and assess her contentions, including
the ones recorded above; thus culminating in an
appropriate fresh order and necessary action
thereon, as expeditiously as is possible, but
not later than two months from the date of
receipt of a copy of this judgment.

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I, however, reiteratingly clarify that this
Court has not made any affirmative declarations

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in favour of the petitioner in this judgment;
and that every aspect - including whether she
had completed the course through online mode;

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and whether the time spent by her in India
during the said course was for completion of

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WP(C) NO. 13588 OF 2023

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non-clinical subjects alone; as also the
question whether the students in Exts.P25, P26
and P27 are similarly situated - are all left to
be considered appropriately by the ‘NMC’, while
the afore exercise is completed.

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It is needless to say that, depending upon
the afore decision to be taken by the ‘NMC’, the
‘Council of Modern Medicine, Kerala State’, will
make consequential incorporations, if found
necessary, in Ext.P11.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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akv

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WP(C) NO. 13588 OF 2023

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APPENDIX OF WP(C) 13588/2023

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PETITIONER EXHIBITS

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`EXHIBIT P-1`	`TRUE COPY OF THE PROVISIONAL` `CERTIFICATE ISSUED BY JINAN` `UNIVERSITY, GUANGZHOU CITY, CHINA`
`EXHIBIT P-2`	`TRUE COPY OF THE SCREENING TEST PASS` `CERTIFICATE DATED 1/10/2020 ISSUED BY` `THE NATIONAL BOARD OF EXAMINATION`
`EXHIBIT P-3`	`TRUE COPY OF THE NON-OBJECTION` `CERTIFICATE DATED 18/09/2020 ISSUED BY` `JINAN UNIVERSITY, GUANGZHOU CITY,` `CHINA`
`EXHIBIT P-4`	`TRUE COPY OF THE ORDER BEARING NO. C2-` `11191/2021/M.C/F. DATED 3/5/2021` `ISSUED BY THE 4TH RESPONDENT ALONG` `WITH THE LIST OF CANDIDATES`
`EXHIBIT P-5`	`TRUE COPY OF THE ORDER BEARING NO. C2-` `11191/2021/M.C/F. DATED 3/5/2021` `ISSUED BY THE 4TH RESPONDENT ALONG` `WITH THE LIST OF CANDIDATES`
`EXHIBIT P-6`	`TRUE COPY OF THE GOVERNMENT ORDER G.` `O. (RT) NO. 1903/2020/ H&FWD DATED` `16/10/2020 ISSUED BY THE 1ST` `RESPONDENT`
`EXHIBIT P-7`	`TRUE COPY OF THE NOTIFICATION BEARING` `NO. NMC-34(41)/UG/GEN/2021-MED./007175` `DATED 31/03/2021`
`EXHIBIT P-8`	`CIRCULAR NO. U.15024/012022-UGMEB/` `DATED 19/05/2022 ISSUED BY THE 5TH` `RESPONDENT`
`EXHIBIT P-9`	`TRUE COPY OF RECEIPTS DATED` `11/05/2021, 6/07/2021, 31/08/2021,`

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WP(C) NO. 13588 OF 2023

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16/05/2022 AND 19/05/2022 COLLECTIVELY
PRODUCED
EXHIBIT P-10TRUE COPY OF CERTIFICATE DATED
23/06/2022 CONFIRMING COMPLETION OF
CRRI
EXHIBIT P-11TRUE COPY OF CERTIFICATE OF
PROVISIONAL REGISTRATION DATED
25/10/2022 CONFIRMING COMPLETION OF
CRRI
EXHIBIT P-12TRUE COPY OF CERTIFICATE OF
PROFESSIONAL REGISTRATION DATED
17/03/2022 ISSUED TO ONE NAKUL SUNIL
CONFIRMING COMPLETION OF CRRI
EXHIBIT P-13TRUE COPY OF CERTIFICATE OF
PROFESSIONAL REGISTRATION DATED
10/08/2021 ISSUED TO ONE FARZANA RAHIM
CONFIRMING COMPLETION OF CRRI
EXHIBIT P-14TRUE COPY OF THE MEMO ISSUED BY THE
DIRECTORATE OF MEDICAL EDUCATION
BEARING NO.B1/1366/2022/DME DATED
08/03/2023
EXHIBIT P-15TRUE COPY OF THE NMC NOTICE NO.
NMC/20659(LEGAL)/ 2020/UGMEB/ DATED
28/7/2022
EXHIBIT P-16TRUE COPY OF THE MARK-LIST DATED
24/07/2020 ISSUED BY THE JINAN
UNIVERSITY
EXHIBIT P-17TRUE COPY OF THE RELEVANT PORTION OF
THE CURRICULUM IN INDIA WHICH SHOWS
THE DISTRIBUTION OF THE CORE SUBJECTS
EXHIBIT P-18TRUE COPY OF RANKINGS OF BOTH
UNIVERSITIES IN THE LIST OF BEST
GLOBAL UNIVERSITIES COMPILED BY THE U.
S. NEWS AND WORLD REPORT

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WP(C) NO. 13588 OF 2023

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`EXHIBIT P-19`	`TRUE COPY OF THE REPRESENTATION DATED` `01/04/2023 MADE TO THE 1ST RESPONDENT`
`EXHIBIT P-20`	`TRUE COPY OF THE REPRESENTATION DATED` `01/04/2023 MADE TO THE 4TH RESPONDENT`
`EXHIBIT P-21`	`TRUE COPY OF THE REPRESENTATION DATED` `01/04/2023 MADE TO THE 5TH RESPONDENT`
`EXHIBIT P22`	`TRUE COPY OF THE ORDER DATED` `12/05/2023 IN W.P.(C) N0 13588/2023`
`EXHIBIT P23`	`TRUE COPY OF THE REPRESENTATION SENT` `BY REGISTERED POST TO THE 5TH` `RESPONDENT`
`EXHIBIT P23(A)`	`TRUE COPY OF THE POSTAL RECEIPT DATED` `03/06/2023`
`EXHIBIT P24`	`TRUE COPY OF THE APPLICATION UNDER RTI` `ACT DATED 15/05/2023`
`EXHIBIT P24(A)`	`REPLY ISSUED BY THE 3RD RESPONDENT` `DATED 02/06/2023`
`EXHIBIT P25`	`TRUE COPY OF REGISTRATION CERTIFICATE` `DATED 13/03/2023 IN THE NAME OF` `DR.NITHINSABU ISSUED BY THE 4TH` `RESPONDENT`
`EXHIBIT P26`	`TRUE COPY OF REGISTRATION CERTIFICATE` `DATED 26/07/2022 IN THE NAME OF` `DR.YASHIKA SHARMA ISSUED BY THE DELHI` `MEDICAL COUNCIL`
`EXHIBIT P27`	`TRUE COPY OF REGISTRATION CERTIFICATE` `DATED 11/02/2022 IN THE NAME OF` `DR.RAVINSHA GUPTA`
`EXHIBIT P28`	`TRUECOPY OF THE ORDER NO. C-` `11021/LEGAL-22633/208/2023-UGMEB/03345` `3 DATED 15/06/2023`

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WP(C) NO. 13588 OF 2023

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RESPONDENT EXHIBITS

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EXHIBIT R1(A)TRUE COPY OF G.O.(RT) NO.305/2023-H
AND FWD DATED 08.02.2023.
EXHIBIT R1(B)TRUE COPY OF THE NOTICE OF NATIONAL
MEDICAL COMMISSION DATED 19.10.2022

Gopika Jaya Prasad v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gopika Jaya Prasad v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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