Madras High Court
Dr.V.Balaji vs Union Of India on 25 November, 2008
Author: F.M.Ibrahim Kalifulla
Bench: F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25..11..2008
CORAM
HONBLE Mr.A.K.GANGULY, CHIEF JUSTICE
and
HONBLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.18829 of 2008
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1. Dr.V.Balaji, 30/M
S/o.K.S.Venkatachalam,
No.9, Dew Drop Siva Kamalam,
6/15, Dr.Vasudevan Street,
Kilpauk, Chennai 600 010.
2. Dr.K.Eswaran, 33/M
S/o.P.Kuppusamy,
Seerankadu,
Devanapalayam,
Kandan Palayam Post,
Paramathi Velur Taluk,
Namakkal District 637 203.
3. Dr.K.G.Elayaraja, 35/M
S/o.K.Govindasamy,
6/208, Jothivallalar Street,
Kallakurichi 606 202.
4. Dr.V.Palanikumaran, 33/M
S/o.P.Vasudevan,
44/16, Maha Ganapathy Nagar,
CMR Road,
Madurai 625 009. ..Petitioners.
Vs.
1. Union of India,
rep. by its Secretary to Government,
Ministry of Health & Family Welfare,
Nirman Bhavan, Maulana Azad Road,
New Delhi 110 011.
2. Medical Council of India,
rep. by its Secretary,
Aiwan-E-Galib Marg,
Kotia Road, Opp.Mata Sundary College for Women,
New Delhi 110 002.
3. State of Tamil Nadu,
rep. by its Secretary to Government,
Health and Family Welfare (MCA1) Department,
Fort St.George,
Chennai 600 009.
4. The Director of Medical Education,
Chennai 600 010. ..Respondents.
PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records of the third respondent herein in G.O.(D) No.572 Health and Family Welfare (MCA1) Department dated 14.05.2008 and the notification issued in The Hindu dated 27.07.2008 by the fourth respondent herein and quash the same and forbear the respondents 3 and 4 herein from in any manner conducting the Certificate of Diabetology Course in any of their medical colleges without the prior permission of the Central Government and the Medical Council of India in accordance with the Indian Medical Council Act, 1956 and pass such further or other orders.
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For Petitioners :: Mr.S.Parthasarathy, Senior Counsel
for Mr.S.Conscious Ilango
For Respondent 1 :: Mr.P.Chandrasekaran, S.C.C.G.
For Respondent 2 :: Mr.V.P.Raman
For Respondent 3 & 4 :: Mr.S.Ramasamy,
Addl. Advocate General
assisted by Mr.G.Sankaran, Spl.G.P.
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O R D E R
THE HONBLE THE CHIEF JUSTICE This public interest litigation has been filed by four persons who are all qualified medical practitioners impugning the G.O (D) No.572, dated 14.05.2008 issued by the Health and Family Welfare (MCA) Department whereby the Government of Tamil Nadu accepted the proposal of Directorate of Medical Education and accorded permission to start six months certificate course in Diabetelogy on Distance Mode in all the Government Medical Colleges. This Course will be conducted by a Professor of Medicine/Professor of Diabetelogy and one coordinator with a total intake of 750 students in 14 medical colleges at the rate of 75 in Madras Medical College, Chennai and Kilpauk Medical College, Chennai and 50 in other Government medical colleges. The details of the course were also spelt out in the said G.O as under: -
i. Criteria for Admission Candidates with MBBS Degree are eligible to undergo the course ii. Duration of the Course The duration of the course is 6 months. 5 contact classes of 2 days in a month shall be conducted (Morning-Theory and Evening-Practical) b. One induction class shall be conducted.
iii Fees A sum of Rs.5000/- has to be collected from each student towards fee.
iv Tests The following tests shall be conducted.
Pre-test Mid-term Review Final Test V Certificate Certificates may be issued to the successful candidates.
3. The Dean of the respective colleges should open a separate account. The fees collected from the candidates shall be spent for the Training Programme.
4. This Order issues with the concurrence of Finance Department vide its U.O.No.1140/FS/P/08 dated 09.04.2008.
(BY ORDER OF THE GOVERNOR) V.K.SUBBURAJ Secretary to Government
2. Pursuant to the said G.O, an advertisement was published in The Hindu by the Government of Tamil Nadu, Directorate of Medical Education inviting applications from citizens of India, who are native of Tamil Nadu, for admission to six months certificate course in Diabetology to be conducted by Distance Education Method in four medical colleges namely, Madras Medical College, Chennai, Kilpauk Medical College, Chennai, Madurai Medical College, Madurai and Thanjavur Medical College, Thanjavur. It was made clear that 100 students will be admitted to the course in each college per session as per the guidelines of the Directorate of Medical Education. It was also made clear that the course is by Distance Education Method and is of six months duration and the certificate for the course will be issued after passing final evaluation examination at the end of six months and candidates with MBBS degree only are eligible to undergo the course.
3. The said G.O and the advertisement, which has been issued pursuant to the said G.O, has been challenged by the petitioners on several grounds. The main ground is that the said G.O violates the provisions of Section 10A of the Medical Council Act, 1956 (said Act) and Section 10A(1)(b) of the said Act. The relevant provisions are:
10.A
1.Notwithstanding anything contained in this Act or any other law for the time being in force:-
a...
b.no medical college shall:-
i.open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or ii.increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1 - For the purposes of this section, "person" includes any University or a trust but does not include the Central Government.
Explanation 2 - For the purposes of this section "admission capacity" in relation to any course of study or training (including postgraduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.
4. It is also submitted that under Section 10B of the said Act where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college shall be a recognized medical qualification for the purposes of the Act.
5. Under Section 11(2) of the said Act, it has been provided any University or medical institution in India which grants a medical qualification not included in the first schedule may apply to the Central Government to have such qualification recognized, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein.
6. It is not in dispute that by Council it is meant the Medical Council as defined under Section 2 (b) of the said Act.
7. Learned counsel also referred to the Post Graduate Medical Education Regulations, 2000 which is at page 17 of the typed set filed by the petitioner. Drawing the attention of this Court to Regulations 6 and 7, it has been stated that the Regulation 6 makes it clear that if any Institution intends to start a Post Graduate Medical Education course or to increase the admission capacity it shall obtain permission of the Central Government under Section 10A of the said Act. Under sub-section(2) of Regulation 6, it is also stated that the institution shall apply for recognition of the Postgraduate medical qualification to the Central Government through the affiliating university. Regulation 7 also provides that the nomenclature to the Postgraduate courses shall be as provided in the Schedule annexed to the said Regulation.
8. Relying on those Regulations, it has been urged by the learned counsel for the petitioners that the State Government cannot start a certificate course in respect of those persons who have obtained MBBS degree by the impugned G.O since the whole scheme is contrary to the provisions of the said Act and the Regulations framed thereunder.
9. Learned counsel for the Medical Council of India has filed a counter affidavit and also a typed set. In the said affidavit, it has been specifically stated that under the said Act the Medical Council of India (MCI) is solely authorized to frame Regulations and Guidelines of standards and conduct of medical education in India. The MCI is the apex body, which has been set up by an act of Parliament with the sole object of regulating medical education in the country. The Regulations framed by the MCI under Section 33 of the Act with the prior approval of the Central Government are statutory in nature. In paragraph-37 of the affidavit filed by the MCI, it has been stated that the Diabetology is one of the specialties in the field of medical education in India. In Tamil Nadu Post Graduate Diploma in Diabetology is being conducted in Madras Medical College and the said course is being conducted with the permission of the Central Government and the MCI. The said course is within the meaning of Section 2(f) of the said Act. A parallel certificate course in Diabetology, which is sought to be introduced by the Government of Tamil Nadu, is not permissible in view of the provisions of the said Act. It is made clear that there is no course called certificate course in Diabetology under the schedule to the said Act.
10. In its counter, the State Government has also accepted in paragraph-9 that in the State Post Graduate course in Diabetology is being conducted at Madras Medical College, Chennai, and the said course is recognized by the Medical Council of India. Even after acknowledging the same, the State is introducing a new certificate course in a manner which is totally contrary to the provisions of the said Act. In the States affidavit, the stand is that the Professor of the Head of Department, Diabetology, Kilpauk Medical College, Chennai in his letter dated 18.07.2007 submitted a proposal to start a six months certificate course in Diabetology in Kilpauk Medical College Hospital, Chennai to educate the medical officers on the latest techniques available to treat the diabetic patients and to improve the health care system in the country. It was stated that the prevalence of Type-2 diabetes in Tamil Nadu is about 12% in urban areas and 4.5 to 6% in rural area among the adult population. Thereafter, the Government conducted a meeting on 19.11.2007 with reference to starting a certificate course in Diabetology and the Government instructed to revise the proposals, and ultimately it was decided by the Government to start a short term course through distance education in Diabetology with five contact classes and for a fee of Rs.5000/- in 14 medical colleges at the rate of 75 students each in Madras Medical College, Chennai, Kilpauk Medical College, Chennai and 50 students in all other Government medical colleges. The said course provides for holding tests and ultimate grant of certificates. Thereafter, advertisement was published for starting the course. It was also submitted that by the year 2025, India will have little more than 50 million diabetic patients and the same is going to pose a serious challenge to the health care system in the country and Tamil Nadu having the highest prevalence of diabetes in India, training medical professionals are required to control and prevent complications of the disease and also to educate the people to prevent this disease. It was stated that presently 90% of the diabetic patients are treated by general medical practitioners with only M.B.B.S Degree. But since the number of diabetic specialist are very few in number and confined only to major cities, the Government decided to start the certificate course to enrich knowledge to the general practitioners all over the State, particularly rural areas so that they can treat effectively and prevent the complications of the disease. It is also stated that the course is only a certificate course by distance education and is only a re-orientation of subject matter included in the M.B.B.S curriculum itself. It has been clearly admitted in paragraph-13 that the course does not come under the purview of the Medical Council of India, since the same is neither a Post Graduate course nor a Diploma course.
11. In the course of argument, learned counsel for the State urged that since the qualification of certificate is not included within the schedule under the said Act, no permission is required to be obtained from the MCI, and therefore, the said course is not coming under the purview of the MCI Act.
12. Learned counsel for Union of India totally supported the stand of the MCI and urged that without the approval of the MCI such a course cannot be started.
13. This Court is unable to accept the contentions of the State Counsel. The first contention that the certificate course is not a degree and therefore, the State is free to start it, and secondly, since the course is not one which is included within the schedule as recognized qualification, permission from the MCI is not necessary. Both the contentions are untenable in law. Apart from the said Act, there is an Act called The Indian Medical Degrees Act, 1916, which is still continuing and under Section 3 of the aforesaid Act, the right to confer, grant or issue in the State, degrees, diplomas, licences, certificates or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practice western medical science, shall be exercisable only by the authorities specified in the Schedule to the said Act. Under the Schedule the Board of Examiners, Medical College, Madras is included. But in the instant case, the G.O even violates the said provision of Section 3 of the Indian Medical Degrees Act, 1916. Section 3 of the said Act is set out below: -
3.Right to confer degrees, etc. The right of conferring, granting or issuing in the States degrees, diplomas, licences, certificates or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practice western medical science, shall be exercisable only by the authorities specified in the Schedule, and buy such other authority as the State Government may, by notification in the Official Gazette, and subject to such conditions and restrictions as it thinks fit to impose, authorize in this behalf.
14. Therefore, it is clear that under the said Act of 1916, a certificate is also a degree as it has been included under Section 3 and on the conferment of certificate also there are some statutory restrictions.
15. Apart from anything else MCI, which is created under the said Act, is responsible for maintaining uniform standards of both under Graduate and Post Graduate studies of medicine in India and this was established in 1934 under the Indian Medical Council Act of 1933. After independence, in order to meet the new challenges of the medical profession in India, the earlier Act was repealed and the said Act of 1956 was enacted, which has been amended from time to time in 1964, 1993 and 2001. Therefore, the primary responsibility of the MCI is to maintain uniform standards in both Under Graduate and Post Graduate medical studies and also recognition of the medical qualification.
16. The claim of the State Government is that it has passed the said G.O in exercise of its executive power. This is clear from the impugned G.O, which appears to have been passed under the name of the Governor in accordance with Article 166(1) of the Constitution of India. But the extent of Executive Power of a State is coextensive with the legislative power. This is clear from Article 162 of the Constitution. Article 162 of the Constitution runs as follows: -
162. Extent of executive power of State. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
17. A perusal of the aforesaid provisions would make it clear that the Executive Power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. So, if the State has no legislative power to make laws in an area, it will not have executive power to pass executive orders in that area too. In so far as the medical education or higher education is concerned, it is always controlled by Entry 66 of List I of the 7th Schedule. The said Entry is set out below: -
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
18. The MCI Act of 1956 has been enacted by the Parliament in terms of the legislative authority under Entry 66 of List I. The aforesaid subject under Entry 66 always remained a preserve of the Parliament, even before the 42nd amendment of the Constitution. After the 42nd amendment, which came into effect on 3.1.1977, Entry 66 remained the same. But as a result of the 42nd amendment, Entry 11 in the State List (List II) was deleted. Entry 11 in the State List before deletion was as follows: -
11. Education including universities subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III.
19. Apart from deletion of the said Entry 11, Entry 25 of the Concurrent List (List III) was also amended by the 42nd amendment. Entry 25 of the Concurrent List prior to the 42nd amendment read as follows: -
25.Vocational and technical training of Labour. After the amendment it reads as follows: -
25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
20. A perusal of the changes made by the 42nd amendment in the State List and the Concurrent List would unmistakably show that the intention which is reflected by the said amendment is to confer the Parliament with an extensive power to legislate in the field of higher and technical education in order to maintain uniform standards throughout India and to take away from the State List legislative power by deletion of Entry 11 and also by amending Entry 25 of the Concurrent List. Therefore, the States exercise of executive power must be made consistent with the aforesaid constitutional Scheme of curbing of its legislative power in respect of higher and technical education. If the State cannot make law in an area in view of lack of its legislative competence, as it cannot do in the filed of higher and technical education, especially when it is occupied by the said Act, which is a central law, it cannot issue executive orders in that area. That is the mandate of Article 162.
21. The argument of the learned counsel for the State that since the certificate course in the field of medical education is not a recognized qualification under the schedule to the said Act, the State does not need the permission of the Central Government or the Medical Council of India to start the said certificate course is equally untenable. If the States argument is upheld, then it would amount to allowing the State to run a parallel course, whether it is an under-graduate or post-graduate course of 6 months or one year, even though it is contrary to any post-graduate course, which is run with the permission of the Medical Council of India. In the instant case, it has been admitted by the State that the Post Graduate Medical Course is now running in Medical Colleges in the State with the permission of the Medical Council of India. Therefore, by the impugned G.O the State is seeking to introduce in exercise of its so-called executive power, a course of a different nature on the same subject, may be for a smaller duration, and by giving it a different name. The same is nothing but a course in medical education
22. To our judgment, this is clearly not permissible having regard to the constitutional scheme discussed above which controls the legislative power of the State in higher and technical education. A Certificate Course in Diabetology, which is a speciality, certainly falls in that category.
23. If the matter is looked from another point of view, it will be clear that if the State is allowed to run this course it will offend the concept of Coordination in higher and technical education and Coordination is a facet of Entry 66, which is a legislative head and has to be interpreted very broadly.
24. Entry 66 came up for interpretation before a Constitution Bench of the Supreme Court in the case of Gujarat University and Another Vs. Shri Krishna Ranganath Mudhokar and Others reported in AIR 1963 SC 703. Justice Shah, J. speaking for the majority while interpreting Entry 66 of List I, held as follows:- (Para 25 at Page 716) Item No.66 is legislative head and in interpreting it, unless it is expressly or of necessity found conditioned by the words used therein, a narrow or restricted interpretation will not be put upon the generality of the words. Power to legislate on a subject should normally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that subject. Again, there is nothing either in item 66 or elsewhere in the Constitution which supports the submission that the expression co-ordination must mean in the context in which it is used merely evaluation, co-ordination in its normal connotation means harmonizing or bringing into proper relation in which all the things co-ordinated participate in a common pattern of action. The power to co-ordinate, therefore, is not merely power to evaluate, it is power to harmonise or secure relationship for concerted action. (underlined for emphasis) The concept of Co-ordination has been further clarified as follows:-
By express pronouncement of the Constitution makers, it is a power to co-ordinate, and of necessity, implied therein is the power to prevent what would make co-ordination impossible or difficult. The power is absolute and unconditional, and in the absence of any controlling reasons it must be given full effect according to its plain and expressed intention. (underlined for emphasis)
25. In the State of Tamil Nadu and Another Vs. Adhiyaman Educational & Research Institute and Others reported in (1995) 4 SCC 104 the interpretation given to Entry 66 in the Gujarat University Case (supra) was reiterated by expressly quoting the said paragraph in paragraph 35 at page 130 of the report.
26. Same principles have been reiterated by the Supreme Court in the case of Medical Council of India Vs. State of Karnataka and Others reported in (1998) 6 SCC 131 by expressly referring to the principles decided in Gujarat University Case (supra) in paragraph 15 at page 147 of the report.
27. The principles in Gujarat University Case (supra) have been again reiterated by the Supreme Court in the case of Prof.Yashpal and Another Vs. State of Chhattisgarh and Others reported in (2005) 5 SCC 420 in paragraph 29 at page 442.
28. It is, therefore, clear that State cannot by introducing the course in medical education bring about a situation in which it is impossible to ensure co-ordination in matters of medical education by MCI. If the Court allows the Certificate Course introduced by the impugned G.O. to go on, in that case in diabetology there will be two parallel courses one is for one year with the permission of MCI and the other is a Certificate Course in Diabetology without its permission. This is certainly incompatible with a common pattern of action and can be prevented in view of Entry 66 of List I. In other words, without the permission of the Central Government and MCI, no course in medical education, even if it is a certificate course in diabetology can be started. Apart from the provisions of Article 162, which provides that the executive power of the State cannot be extended to areas in respect of which it cannot exercise legislative power, the executive power of the State is also subject to other constitutional limitations.
29. Article 256 of the Constitution enjoins as under:-
256. Obligation of States and the Union. The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
30. A perusal of the aforesaid provision makes it very clear that the executive power of every State shall be so exercised to ensure compliance with the laws made by the Parliament and any existing law, which applies in that State. Therefore, in the instant case, the G.O. which has been passed in exercise of the executive power certainly does not ensure compliance with the laws made by the Parliament i.e., the said Act. On the other hand, it seeks to introduce a parallel course, which is not in compliance with the laws made by the Parliament. Therefore, the action of the State in passing the said G.O. is unconstitutional and cannot be upheld by this Court. The said G.O. is therefore quashed.
31. When the writ petition was moved and notice was given to the Government Pleader, and also to the Assistant Solicitor General of India, who appeared for the first respondent, it was made very clear by this Court by its order dated 05.08.2008 that the admission to the course will abide by the result of the writ petition. Since, the impugned G.O. by which the certificate course was introduced is quashed, this Court makes it clear that the State cannot grant any certificate on the basis of the said course. The writ petition is thus allowed. No costs.
pv/sm TO
1. Union of India, rep. by its Secretary to government, Ministry of Health & Family Welfare, Nirman Bhavan, Maulana Azad Road, New Delhi 110 011.
2. Medical Council of India, rep. by its Secretary, Aiwan-E-Galib Marg, Kotia Road, Opp.Mata Sundary College for Women, New Delhi 110 002.
3. State of Tamil Nadu, rep. by its Secretary to Government, Health and Family Welfare (MCA1) Department, Fort St.George, Chennai 600 009.
4. The Director of Medical Education, Chennai 600 010