Delhi High Court - Orders
Dr. Shinde Mahesh Prakash & Ors vs Union Of India & Ors on 16 July, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~2 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5328/2021 & CM APPL. 16403/2021 (stay)
DR. SHINDE MAHESH PRAKASH & ORS. ..... Petitioners
Through: Mr. Apoorve Karol & Ms. Mithu Jain,
Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. T.P. Singh, Adv. for R-1.
Mr. T. Singhdev, Mr. Abhjit
Chakravarty, Ms. Michelle. B. Das,
Advocates for R-2/NMC
Mr. Kirtiman Singh, Adv. with Mr.
Waize Ali Noor and Mr. Taha Yasin,
Advs. for R-3/NBE
Mr. Satvik Varma, Sr. Adv. with Mr.
Manish Dhir, Mr. Chirag Dave &
Mr. Yogesh Chawak, Advocates for
R-4.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 16.07.2021 The proceedings in the matter have been conducted through video conferencing.
1. Learned counsel for the respondents seek further time to file their counter affidavits. Counter affidavits may be filed within four weeks.
Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.07.2021 19:55:58 W.P.(C) 5328/2021 Page 1 of 5Rejoinders thereto, if any, may be filed within two weeks thereafter.
2. Mr. Apoorve Karol, learned counsel for the petitioners, seeks certain ad interim directions in view of the respondents' delay in filing counter- affidavits. He refers to the rejoinder filed by him to the affidavit filed by the Union of India ["UOI"]. According to him, the petitioner nos. 6 to 18 have completed their Fellowship courses ["FCPS"] from the College of Physicians and Surgeons, Mumbai ["CPS, Mumbai"]. They would have been qualified to take the DNB Final Examination pursuant to a notice dated 02.07.2021 issued by the National Board of Examinations ["NBE"] but for the restrictions placed upon the status of FCPS as a qualifying examination for the DNB Final Examination. The validity of the restriction is pending adjudication in this petition. Mr. Karol requests that petitioner nos. 6 to 18 be permitted to take the ensuing DNB Final Examination, but their result may be withheld until the decision in the writ petition.
3. Although no separate application for such relief has been filed, I have considered the submission in view of the fact that the academic career of the concerned doctors is being impeded, and that the respondents have delayed the filing of their affidavits.
4. The question, so far as grant of an interim order is concerned, is whether the FCPS qualification granted by the CPS, Mumbai is to be treated as equivalent to the MD/MS degrees conferred by medical colleges recognised by the National Medical Commission ["NMC"]. It is undisputed that the FCPS degree is recognised by the NMC for the purposes of medical practice. However, the NBE by the impugned clause 4.3.2 of the Information Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.07.2021 19:55:58 W.P.(C) 5328/2021 Page 2 of 5 Bulletin dated 19.01.2021 [which is consistent with the Information Bulletin for the August 2021 examination also], has taken the position that the FCPS qualification is not equivalent to the MD/MS degree. The UOI has also decided the issue in the same way by its impugned letter dated 30.04.2021. The NMC takes the same view.
5. Mr. Karol however submits that for several years, until the examination of January 2021, persons having the FCPS qualification have been permitted to take the DNB Final Examination. He argues that the petitioners in the present case, who entered the FCPS training during this regime, ought not to be put at disadvantage due to a subsequent contrary view taken by the regulatory authorities.
6. I am unable to accept Mr. Karol's request for interim relief in the facts of this case. The assessment of the expert regulators in the field of medical education, with regard to the equivalence between the FCPS qualification and the MD/MS degree, is entitled to a great degree of deference. The writ court would not ordinarily interfere with the expert view of the regulators on such aspects, except in the face of manifest arbitrariness or unreasonableness. Prima facie, the petitioners have not been able to cross this high threshold.
7. Mr. Karol's submission regarding the protection of those who had already entered the FCPS course prior to the impugned decision will be considered at the final hearing of the petition. However, the grant of an interim order enabling the petitioners to take the examination in the teeth of the regulatory scheme as it presently subsists, is not justified.
Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.07.2021 19:55:58 W.P.(C) 5328/2021 Page 3 of 58. Mr. Kirtiman Singh, learned counsel for the NBE, submits that the DNB Final Examination is generally held twice a year and in the event the petitioners succeed in the writ petition, they will be entitled to take the examination at the next sitting. The balance of convenience therefore also does not favour grant of interim relief at this stage.
9. Mr. Karol has drawn my attention to a Division Bench judgment of the Bombay High Court dated 28.08.2012 in Writ Petition (L) No. 1711/2012 [Dr. Hindustanwala Mohammed Adnan Mohd Mustafa vs. Union of India & Ors.]. Although the said judgment proceeds on the basis that the FCPS qualification is an eligible qualification for the purposes of taking the DNB Final Examination, I do not prima facie find merit in Mr. Karol's contention that the issue of equivalence was decided by the Court therein. In any event, the assessment of the validity of the subsequent decision made by the regulators to the contrary is to be examined in the present petition.
10. Mr. Karol has also cited an order dated 09.04.2021 passed by a coordinate bench of this Court in W.P.(C) 4252/2021 [Dr. Umang Litoriya & Ors. vs. Union of India & Ors.]. The Court was concerned therein with the equivalence between the postgraduate diploma qualifications of the CPS, Mumbai with the postgraduate diploma qualification offered by medical colleges. The Court granted a limited interim order permitting the petitioners therein to apply for enrolment in the DNB-PDCET examination, subject to the result of the writ petition. It may be mentioned that the equivalence of the aforesaid diploma qualifications have since been recognised by the UOI vide order dated 30.04.2021, the UOI has held the diploma qualifications of Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.07.2021 19:55:58 W.P.(C) 5328/2021 Page 4 of 5 the CPS, Mumbai equivalent to corresponding diploma qualifications, but come to a contrary conclusion with regard to equivalence of the FCPS qualification.
11. I am of the view that the petitioners in the present case are not entitled to an order at par with the interim order dated 09.04.2021 for the reason that the present petition concerns a different qualification and a different equivalence which has an entirely different set of consequences attached to it. According to Mr. Kirtiman Singh and Mr. T. Singhdev, learned counsel for the NBE and NMC respectively, the MD/MS qualifications are recognised for the purposes of teaching in medical colleges. Their contention, albeit disputed by Mr. Karol, is that the FCPS qualified doctors who are otherwise ineligible to teach in medical colleges would, if permitted to take the DNB Final Examination, be qualified for teaching positions also. These contentions would also have to be examined at the time of final hearing of the writ petition.
12. For the reasons aforesaid, Mr. Karol's prayer for grant of interim relief is declined at this stage. It is made clear that the observations contained in this order are prima facie observations and will not prejudice the rights and contentions of the parties at the final hearing of the petition.
13. List on 28.09.2021.
PRATEEK JALAN, J JULY 16, 2021 'BP/hkaur' Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.07.2021 19:55:58 W.P.(C) 5328/2021 Page 5 of 5