Madhya Pradesh High Court
Kamlesh Kumar Udenia (Dr.) vs State Of Madhya Pradesh And Anr. on 14 July, 1993
Equivalent citations: 1994(0)MPLJ342
ORDER S.K. Chawla, J.
1. The question involved in this writ petition is, whether a petitioner can justly invoke the equality clause enshrined in Article 14 of the Constitution of India to seek Court's direction to the State commanding it to do an illegal act in favour of the petitioner, if only because the State in its. action committed the same kind of illegal acts in favour of some others? Couched in this verbiage, the question admits of a simple anwser in the negative. But the learned counsel for the petitioner tried to make out a plausible case of hostile discrimination against the petitioner.
2. First the facts. Dr. Kamlesh Kumar Udenia is an M.B.B.S. and Assistant Surgeon in the employment of the State of Madhya Pradesh since 14-4-1988. After having worked in outlying Government hospitals, he is working in the Department of Medicine in G. R. Medical College and J. A. Group of Hospitals, Gwalior since November, 1989 vide Annexure P-IV On 1-6-1992, the Director of Health Services, Madhya Pradesh, Bhopal invited applications from Assistant Surgeons of the State for admission to Post-Graduate Courses vide Annexure P-VII. In response to that advertisement, the petitioner made an application in the prescribed form on 24-6-1992 for admission to Post-Graduate Courses stating also his choices. The said application of the petitioner was not forwarded by the Superintendent, J.A. Group of Hospitals on the ground that the petitioner had not completed five years of service as Assistant Surgeon, which is the eligibility criteria given in Rule 9.3 of Madhya Pradesh Selection for Post-Graduation Courses (Clinical, Para-Clinical and Non-Clinical Courses) in Medical Colleges of M. P. Rules 1984 (hereinafter called the P. G. Rules). The case of the petitioner is that he had been working for the last more than one year in J. A. Group of Hospitals, which is approved for the purposes of undertaking compulsory rotatory internship and his total service as Assistant Surgeon was more than three years, and therefore, in terms of criteria laid down" in the Recommendations of the Medical Council of India vide Annexure P-V, he was eligible for admission to Post- Graduate Courses. The said recommendations of the Medical Council of India are approved as 'Regulations' by the Government of India under Section 33 of the Indian Medical Council Act, 1956 and have therefore, statutory force. When the Superintendent, J. A. Group of Hospitals did not forward his application, the petitioner sent the said application by post vide Annexure P-VIII. The Director of Health Services (Respondent No. 2 herein) on 30-12-1992 published a list of Assistant Surgeons selected for admission to Assistant Surgeon quota 1992 for Post-Graduate Courses vide Annexure P-IX: Petitioner's name does not find place in the said list. He has been unjustly denied admission to Post-Graudate Courses although he fulfilled the criteria, in terms of the Regulations of the Medical Council of India. It is further the case of the petitioner that at least four Assistant Surgeons, who are expressly named by him in paragrph 9 of his petition, are juniors to him in service as Assistant Surgeons as also lesser in merit. They have hardly put in 2 to 4 years' service. They did not fulfil the eligibility of five years of service as Assistant Surgeons mentioned in Rule 9.3 of the PG Rules. Yet they were admitted by the State to Post-Graduate Courses. Even now, many seats in Post-Graduate Courses of Assistant Surgeon quota are lying vacant. In these circumstance the petitioner seeks a writ for directing his admission to Post-Graduate Courses, and as submitted by his counsel, specially to Post-Graduate Course in Radiology (M. D. Radiology).
3. The respondents, namely, the State of Madhya Pradesh and the Director of Health Services, M. P., Bhopal, failed to file any return despite several opportunities granted to them. The petition was heard ultimately in the absence of any return. The matter has therefore to be decided on whatever material has been produced by the petitioner. It must however be said that the learned Government Advocate Shri A. K. Dudawat did advance arguments in answer to arguments advanced by the petitioner's counsel.
4. The first contention advanced by Shri Modi, learned counsel for the petitioner, was that the petitioner had been treated unequally and hostile discrimination had been done against him inasmuch as at least four Assistant Surgeons, who are juniors to the petitioner in service as also lesser in merit to him, were given admission by the respondents to the Post-Graduate Courses in Assistant Surgeon quota of the year 1992. The averment in this regard is to be found in paragraph 9 of the petition. Our attention was drawn to the List of Selected Assistant Surgeons for the quota of 1992, Annexure P-IX and copy of final Gradation List of Assistant Surgeons published by Department of Public Health and Family Welfare Annexure P-X. It was pointed out after reference to them that the following Assistant Surgeons, showing their respective merit as also their standing in service, were admitted to P. G. Courses of 1992 :
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Name Effective percentage Date of joining in-
of marks worked out service as Assistant
to consider merit. Surgeon.
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Dr. K.K. Dwivedi 54.22% 15-12-1990. Dr. (Smt.) Vashdha Tiwari 59.38% 15-11-1990. Dr. (Smt.) Asha Dixit 51.71% 18-1-1989. Dr. Anil Bharagava 55.24% 18-2-1988
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As against above, the petitioner joined service as Assistant Surgeon, as already indicated, on 14-4-1988. The petitioner's effective-percentage of marks has not been disclosed in his petition as his application for admission was not at all considered.
5. It will be seen from the above that only Dr. Anil Bhargava is two months senior to the petitioner in service as Assistant Surgeon. The rest of the three Assistant Surgeons disclosed in the above tabular statement, are all junior to the petitioner by a year or two. None of them had completed five years of service as Assistant Surgeon to be eligible for selection in the Post-Graduate Courses in terms of Rule 9.3 of the P. G. Rules. It will be proper here to reproduce the said Rule.
'Rule 9.3 -
Applicants under Rule 9(i) shall'be those who have been appointed as Assistant Surgeons in accordance with the procedure prescribed in the M. P. Medical Services, Gazetted Recruitments Rules, and have after such appointment, worked in State Medical Services, for a period of 5 years.'
6. It will be proper here to examine the status of the P. G. Rules made by the State Government. These Rules have been made by the Government of Madhya Pradesh in exercise of executive power of the State. The executive power of the State under Article 162 of the Constitution of India extends to matters In respect of which the Legislature of the State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to Post-Graduate Courses in Medical Colleges of the Madhya Pradesh, the State Government was competent to make the said rules in exercise of its executive power, which may be treated as executive instructions. They hold the field so long as there is no legislation in that regard. A reference may be made here to the decisions : State of M. P. v. Kumari Nivedita Jain in (1981) 4 SCC 296 and Arifa Almas (Dr. Ku.) v. State of M. P. and Ors. Of our High Court in 1991 MPLJ 189 = 1991 JLJ 325. Shri Modi, learned counsel for the petitioner, on the other hand relied on the decision of Dr. Fenil and Anr. v. State of M. P. and Ors. in 1990 MPLJ 253 = 1990 MPJR 30 to contend that the P. G. Rules are merely executive instructions, implying thereby that they have no particular sanctity. The true legal position is that they are no doubt executive instructions, but they hold the field in the absesnee of legislation in that regard. It will be proper here to refer to the Supreme Court decision in State of A.P. v. Lavu Narendra Nath in AIR 1971 SC 2560, in which their Lordships observed in para 15 of the report as follows :-
"The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field............"
So the said P. G. Rules have effect of law in the absence of any legislation covering that field.
7. If the four Assistant Surgeons, above mentioned by the petitioner, have been given admission to P. G. Courses even if they were not eligible for admission, inasmuch as they had not completed five years of service, the acts of the State in admitting them were clearly acts of inequality, favouritism and illegal. We are however of the view that such a finding cannot be given against the said Assistant Surgeons behind their backs. It was necessary that the petitioner should have made them respondents in this petition. Shri Modi, learned counsel for the petitioner, argued that the petitioner does not challenge their illegal admissions, and hence the petitioner was not required to implead them as respondents. We are of view that even then they should have been impleaded as respondents, to give an opportunity to them to be heard before holding against them that they had illegally secured their admissions in P. G. Courses. In T.V. Setty v. Bangalore Municipality, AIR 1968 Mysore 251, a writ-petitioner came to the High Court with a complaint that he had unjustly been refused licence to manufacture soaps within the limits of Banglore city on the ground that his place was located in crowded locality of the city whereas some other soap manufacturers had been granted licences by the Municipal Corporation even though their places were also located in crowded localities. The petitioner complained in the writ that he had been thus denied equality before law. The other soap- manufacturers who were alleged to have been granted licences were not impleaded as respondents in the writ petition. Their Lordships of the Mysore High Court made the following pertinent observations:
"The petitioner has not impleaded the licensess in whose favour he has alleged that there has been discrimination. In the absence of those licensees as parties to the present petition and without giving an opportunity to those persons to meet the allegation of discrimination in their favour, we cannot go into the allegation of discrimination........."
Concurring in the view taken in the said Mysore decision, we are of the view that we cannot go into the allegations of discrimination in favour of the above mentioned four Assistant Surgeons in the absence of their having been impleaded as respondents in this petition.
8. Even assuming that the State by its actions improperly and illegally showed discrimination in favour of the said Assistant Surgeons, this Court cannot help the petitioner by giving a mandate that the same kind of favour, discrimination and illegality be committed in favour of the petitioner. This is not a case of hostile discrimintion against the petitioner, as was sought to be argued by the petitioner's learned counsel. The fallacy in the argument of the learned counsel gets exposed by a simple illustration. A Police Officer tries to shield an offender by not recording an F.I.R. made to him by the victim of a cognizable offence. Another offender approaches this Court and seeks* a direction that he is entitled to be treated equally and therefore, deserves a direction to the police that F.I.R. against him for the offence alleged to have been committed by him be not registered or recorded. Such a petition can never be brought, or if brought would be thrown out unceremoniously. No complaint will legitimately be made in such a case about violation of Article 14 of the Constitution of India. By that Article the State is mandated that it shall not deny to any person 'equality before law' and 'equal protection of laws'. The English doctrine of 'rule of law' is incorporated in the expression "equality before law" and equality Clause of 14th Amendment in the U. S. Constitution is incorporated in the expression "equal protection of laws". If a person is unequally treated or there is hostile discrimination practised against him by any act of the State, he may invoke the doctrine of "equal protection of laws" contained in Article 14. But if the State by its action has committed an illegality and shown favour to any person, another person cannot come to the Court and say that there should be "equal violation of laws" in his favour. There is guarantee of 'equal protection of laws' but no guarantee for 'equal violation of laws'. But if no illegality has been committed and yet similarly placed person or persons have been shown discrimination by action of the State, another person may come to the Court and invoking the doctrine of 'equal protection of laws' under Article 14, legitimately seek the help of the Court to direct that he be treated equally.
9. It may not be out of context to again refer to the case of T. V. Setty (supra). In that case, as already seen, the writ-petitioner had been refused licence to manufacture soaps within the limits of Bangalore city on the ground that his place was located in crowded locality of the city, whereas some other soap manufacturers had been granted licences by the Municipal Corporation even though their places were also located in crowded locality. Following observations in the said decision are pertinent:
"Assuming that the Corporation has issued licences to those persons improperly against the provisions of the Corporation Act and bye-laws thereunder, the petitioner cannot ask the Court to direct the Corporation to issue a licence in his favour contrary to the provisions of the Corporation Act and the bye-laws thereunder. Article 14 of the Constitution cannot be understood as requiring the Authorities to act illegally in one case, because they have acted illegally in other cases."
So Article 14 of the Constitution cannot be understood as requiring the Court to direct that illegality be done in one case, because the State in its action had acted illegally in other cases. Considering the facts of the present case, we are of the view that even if it is assumed that four Assistant Surgeons referred to in the writ-petition had been illegally given admission in P. G. Course even when they were not eligible under P. G. Rules, the petitioner has not made out a case of violation of Article 14 of the Constitution and cannot seek any direction from this Court that the same kind of illegality be committed by directing his admission, when it is an admitted position that he had not completed 5 years of service as Assistant Surgeon to be eligible for admission to P. G. Courses in terms of Rule 9.3 of the P. G. Rules.
10. We now turn to the second submission made by Shri Modi, learned counsel for the petitioner. It was contended by him that in terms of the Recommendations of Medical Council of India, which have the status of Regulations, upon sanction by the Government of India under Section 33 of the Indian Medical Council Act, 1956, the petitioner fulfilled the criteria for admission to P. G. Courses, inasmuch as he had worked in the State Medical Services for a period of three years, out of which one year had been spent by him in J. A. Group of Hospitals, which is approved for the purposes of undertaking compulsory rotatory internship. It was further submitted that the Regulations were statutory in character and mandatory in nature. Rule 9.3 of the P. G. Rules was in conflict with the said Regulation and could not override the Regulation. The following recommendation/regulation of the Medical Council of India, exhibited as Annexure P-V, was relied upon by the petitioner :-
Criteria for the selection of candidates
(a) Students for post-graduate training should be selected strictly on merit judged op the basis of academic record in the under-graduate course. All selections for post-graduate studies should be conducted by the Universities.
(b) The candidates should have obtained full registration i.e., they must have completed satisfactorily one year of compulsory rotating internship after passing the final M.B.B.S. examination and must have full registration with State Medical Council.
(c) They must subsequently have done one year's housemanship in recognised hospital prior to admission to the post-graduate degree or diploma course. Housemanship preferably be for one year in the same subject or at least six months in the same department and the remaining six months in an allied department. Provided that in departments like Radiology/Anaesthesiology/ Physical Medicine and Rehabilitation where suitable candidates who have done housemanship in the respective subject for the respective speciality are not available then the housemanship in Medicine and/or in Surgery may be considered as sufficient.
Work done by the District Epidemiologists in the P. Falciparum Containment Programme (PFCP) for a period of one year may be considered at par with the requirements of house jobs required for admission to post-graduate course in Social and Preventive Medicine.
Alternatively
(i) Must have worked as a full-time post-graduate student in a manner equivalent to housemanship requirements, in the department concerned before taking up the post-graduate courses.
(ii) or worked in State Medical Services, Armed Forces Medical Services or other equivalent services of public undertakings, local bodies, etc. for a period of three years after full registration provided that one year of these three years is spent in a hospital which is approved for purposes of undertaking the compulsory rotating internship or in a command hospital, failing which the aforesaid period of three years would be increased to five years.
Provided that in case of service in Armed Forces, this period shall be in addition to one year of compulsory rotating internship required for purposes of obtaining the M.B.B.S. degree and full registration.
11. The petitioner relied upon Clause (ii) of the above recommendation/regulation to support his claim about eligibility. It will be seen that under that clause, the recommendation of the Medical Council of India is that in order to be eligible for admission to P. G. Courses, if the person is in State Medical Services, Armed Forces Medical Services or other equivalent services of public undertakings, local bodies etc., then he should have worked there for a period of three years after his full registration, provided that one year of those three years should have been spent in a hospital approved for undertaking compulsory rotating internship or in a command hospital, failing which the aforesaid period of three years should be increased to five years. The petitioner claims that since he had served as Assistant Surgeon for more than three years at the relevant time and had spent more than one year of his service in J. A. Group of Hospitals, which is approved for undertaking compulsory rotating internship, he fulfilled the criteria of eligibility for admission to P. G. Course, despite the fact that he did not complete five years of service as Assistant Surgeon.
12. The true legal position appears to be that not all recommendations/regulations framed by the Medical Council of India are mandatory. Only those of them which, considering the provisions of Indian Medical Council Act, 1956, properly fall within the power and competence. of the Medical Council of India, and which considering also the circumstance that peremptory language is employed in them, are mandatory. Other regulations which fall outside the power and competence of the Medical Council of India and which may also employ recommendatory kind of language, are directory. Reference may be made in this regard to the Supreme Court decision in Nivedita's case (supra).
13. An analysis of the various provisions of Indian Medical Council Act, 1956 (hereinafter called I.M.C. Act) would show that while it is within the power and competence of the Medical Council of India to prescribe standards of medical education required for granting .recognised medical qualifications, the matter regarding how the selection of candidates is to be made for admission in Medical Colleges does not fall within the purview of the Medical Council of India. The requirement as to how many years of service an Assistant Surgeon should have put in before being considered for selection for Post-Graduate Courses is a part of the selection process. That matter has nothing to do with the prescription of standards of Medical education. In fact, the question of prescription of standards of medical education is a post-selection matter. The recommendation/regulation in Clause (ii) of Annexure P-V reproduced in para 10 of this order, dealing with the matter about selection of in-service candidates for Post-Graduate medical courses, must be held to be directory as falling outside the proper powers of Medical Council of India. A reference to Section 20 of I.M.C. Act may also be apposite. It empowers Medical Council of India to prescribe standards of Post-Graduate medical education for the guidance of the Universities. The selection process is nowhere entrusted under the Act to Medical Council of India. It can also be said that in the said recommendation/regulation in Clause (ii), the Medical Council of India has given only a guideline in the matter of selection of candidates for Post-Graduate Courses. Rule 9.3 of the P. G. Rules framed by the State Government actually falls within the frame-work of that guideline and is not at all in conflict with it. It lays down a uniform condition about eligibility of candidates who are Assistant Surgeons for admission to Post-Graduate Courses. Our conclusion is that recommendation/regulation in Clause (ii) is only of recommendatory character giving only a guideline and that does not detract from the legal and binding character of Rule 9.3 of the P. G. Rules. That Rule laying down eligibility condition as a part of selection procedure, is of mandatory character and not in conflict with recommendation/regulation in Clause (ii). As the petitioner, being an Assistant Surgeon, did not fulfil the criteria about eligibility for selection to Post-Graduate Courses; namely, completion of five years of service as Assistant Surgeon in terms of Rule 9.3 of the P. G. Rules, his case was rightly not considered by the respondents for selection to Post-Graduate Courses.
14. For the foregoing reasons, there is no force in the present writ petition. It is dismissed.
No order as to costs.