Rajasthan High Court - Jaipur
Dr Ramesh Goswami And Ors vs State (Medical Education )Ors on 16 February, 2018
Author: M.N.Bhandari
Bench: M.N.Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. CIVIL WRIT PETITION NO. 13901/2014
1. Dr. Ramesh Goswami S/o Shri Hanuman Giri aged about 29
years, R/o VPO Pilibanga, Tehsil Pilibanga, District Hanumangarh,
Raj. Presently resident SMS College, Jaipur, Rajasthan.
2. Dr. Naveet Agarwal S/o Shri Vinod Agarwal, aged about 26
years, R/o Behror, Alwar, Rajasthan, Presently Resident SMS
Medical College, Jaipur.
3. Dr. Lalit Jain S/o Shri Lajpat Rai Jain aged about 27 years,
S/o Maharani Farm, Durgapura, Jaipur.
4. Dr. Gaurav Mangal S/o Shri Surendra Pal aged about 25
years, R/o Shri Karanpura, District Shriganganagar, Rajasthan.
--PETITIONERS
Versus
1. State of Rajasthan through Principal Secretary, Medical
Education Department, Govt. of Rajasthan, Secretariat, Jaipur.
2. Rajasthan University of Health Sciences through its Registrar,
Kumbha Marg, Pratap Nagar, Sanganer, Jaipur.
3. Director Public Medical and Health Department Rajasthan,
Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.
4. Medical Council of India through its Secretary, Pocket 14,
Sector 8, Dwarka, Phase-1, New Delhi-77
5. Dr. Vidyaprakash Meena S/o Shri Maniram Meena, aged
about 46 years, Resident of Village Post Ranoli, Tehsil Todabhim,
Distt. Karauli
(2 of 16)
[CW-13901/2014]
6. Dr. Mahesh Verma S/o Bhanwar Lal, aged about 41 years,
Resident of Plot No. 65, Shri Kalyan Nagar, Near Mahesh Nagar,
Jaipur.
7. Dr. Anil Kumar Jundia S/o Late Shri Omprakash Jundia, aged
about 45 years, Resident of 1/60, G2, Chitrakoot, Roshan Marg,
Jaipur.
8. Dr. Bhupendra Kumar S/o sh. Banwari Lal aged about 38
years, Resident of behind P.N.B. Srimadhopur, Distt. Sikar (Raj.)
9. Dr. Deepak Shivran S/o Shri Deokaran Singh, aged about 33
years, Resident of D-5, Indira Nagar, Jhunjhunu (Raj.)
10. Dr. Shyam Sunder Dayma S/o Shri Chiranji Lal, aged about
51 years, resident of House No. 11/3, Housing Board New Colony,
Shivshinghpura Sikar (Raj)
11. Dr. Vijay Gahlot S/o Shri Ganesh Ram, aged about 44 years,
Resident of Plot No. 02, Yadav Dhani, Sector-6, Chitrakoot, Jaipur.
12. Dr. Devendra Kumar Dev S/o Shri Laxman Prasad Dev, aged
about 40 years, Resident of C/o Ratan Singh Chouhan, 19, Emli
Phatak, J.P. Colony, Jaipur.
--RESPONDENTS
_____________________________________________________ For Petitioner(s) : Mr Sandeep Singh Shekhawat with Mr Gaurav Sharma and Ms Priya Pareek For Respondent(s) : Mr NM Lodha, Advocate General with Mr Deepak Bishnoi - for the State Mr Angad Mirdha - for Medical Council of India Mr Ajay Choudhary and Mr Darsh S Pareek -
for respondents No.5 to 12_____________________________________________________ HON'BLE MR. JUSTICE M.N.BHANDARI Judgment (3 of 16) [CW-13901/2014] Date of Judgment: 16th February, 2018 By this writ petition, a challenge is made to the orders dated 7.10.2014 and 18.11.2014, whereby, applications were invited from the Medical Officers for one year certificate course in different disciplines like Gynaecology & Obstetric, Anaesthesia, Orthopaedics, Radio Diagnosis and Emergency Medicine. The required eligibility for it was also provided. The order dated 18.11.2014 was passed for the same purpose but with detailed description of the specialised courses and, therein, the two disciplines of Paediatrics and General Surgery were also added. It was issued in super-session of the earlier order.
The writ petition has been filed by those who are doing post graduation in the speciality and mainly in Radiology in different Medical Colleges. One Year Certificate Course has been provided for the Medical officers. The bond of Rs.5 lakh was also sought for pursuing the course. The course was started without approval of the Medical Council of India (for short 'MCI') thus shown to be in violation of the Medical Council Act, 1956 (in short "the Act of 1956") and Regulation for post graduation.
It is submitted that petitioners are those who appeared in Post Graduate Examination - 2013. They remained successful thus could get admission in PG course. The respondents No.5 to 12 did not appear in the PG Examination or if appeared then remained unsuccessful and, now, permitted to undertake certificate course in subjects of PG.
(4 of 16) [CW-13901/2014] It is further submitted that the purpose of certificate course seems to allow the Medical Officers to administer specialised treatment without undergoing PG course and even to make them eligible for promotion to the higher post. The Sonography, CT Scan, X-ray and MRI training programmes are part of the PG course. The certificate course holders would be allowed to undertake even surgery through not authorised for it. The prayer is thus made to set aside the impugned orders and, if anybody has undertaken the course, not to allow any benefit out of it which includes either in service or in practice. If any one is allowed to give specialised medical treatment, it would put the patients in risk. For illustration, if one is permitted to undertake anaesthesia without having PG course, it may have serious repercussion and put the life of the patient in danger. The treatment of specialised nature can be given only by those having PG in the discipline like general surgery, Radio Diagnosis, Orthopaedics etc. Learned counsel for petitioners has further made a reference of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short 'the PCPNDT Act') and the Rules made thereunder followed by a notification dated 9.1.2014. The certificate course would be in violation of PCPNDT Act and Rules made thereunder.
Learned Advocate General has opposed the writ petition. It is stated that challenge to the impugned orders is mainly on the ground that after taking one year certificate course, the incumbent will conduct Sonography, X-ray, CT Scan etc though they cannot be considered to be trained for it. It is even on the ground that (5 of 16) [CW-13901/2014] the impugned orders have been issued by the Director (Public Health), Medical & Health Department, not empowered to lay down the criteria for medical education. For initiation of new course, recognition of MCI is required as per the Act of 1956.
Learned Advocate General submitted that the State Government is facing acute shortage of specialised doctors in District Hospital, Sub District Community Health Centres etc. and rural areas. It is for the reason that the government could not fill all the vacancies of the post of Junior Specialist despite their efforts. The details of which has been given in the additional affidavit filed on 8.11.2016. The efforts have been made to make timely recruitment but even after selection, many selected candidates did not join the services thus seats remained vacant. The certificate course is to provide quality services at the grass root level. It is otherwise for skilled development and, accordingly, certificate course was inducted. It is neither a diploma nor the degree course but to encourage Medical Officers to upgrade their skills. In the past also, such upgradation training was given to in- service doctors for different 9 specialised courses.
To execute the scheme in a proper manner, Rajasthan University of Health Sciences (RUHS) was directed to provide syllabus and impart training through 6 Medical Colleges. The act of the respondents is thus bona fide and in the interest of the public at large.
It is further stated that the writ petition has been filed with extraneous consideration and against the public interest. It is even in ignorance of the fact that specialised doctors are migrating to (6 of 16) [CW-13901/2014] private sector and due to their shortage, the public in the remote area is facing hardship.
It is also submitted that even the Medical Council of India has issued booklet in the name of "Good Doctor" which describes level of surgical competence and expectation from Graduate (MBBS degree holder). The competence level of in-service doctors is expected to be much more than described in the booklet. The effort of the State Government is nothing but to achieve the aforesaid goal.
Learned Advocate General Mr NM Lodha further submits that none would be entitled to seek any service benefits out of the certificate course or any other benefit out of it. The course is only to provide emergency medical services in remote areas where specialised doctors may not be available. There is no other purpose. The prayer is accordingly not to interfere in the impugned orders. It is more so when the State Government is authorised to undertake such courses pursuant to the Rajasthan Medical Act, 1952. Section 21 provides for additional qualification for registration and pursuant to which, the State Government is authorised to register the qualification in question and, for that, they need not to take approval of the MCI. The action of the respondents is in consonance to the Rajasthan Medical Act, 1952.
The question of maintainability of the writ petition has also been raised. The petitioners have no enforceable right in their favour. They are pursuing post graduation course thus it could not be clarified as to how their rights are affected. Reference of the judgments in following cases has been made:-
(7 of 16) [CW-13901/2014]
1."D Nagaraj & ors versus State of Karnataka & ors", reported in AIR 1977 SC 876,
2."Renu & Ors. versus District & Sessions Judge & Anr..", reported in (2014) 15 SCC 731,
3."Amit Lal Berry & anr versus Collector of Central Excise, New Delhi & ors", reported in AIR 1975 SC 538, and
4."Rameshwar Dass Mehta versus Om Prakash Saini & ors", reported in JT 2002 (2) SC 403.
The issue of locus standi of the petitioners has also been raised. The petitioners are not going to suffer any loss thus they are not entitled to maintain this writ petition. Reference of the following judgments has been given -
1.Utkal Univesity versus Dr Nrusingha Charan Sarangi & ors, AIR 1999 SC 943
2."Mukul Saikia & ors versus State of Assam & ors", reported in AIR 2009 SC 747,
3."Mohd Shafi Pandow versus State of Jammu & Kashmir & ors", (2001) 10 SCC 447 and
4."Ayaaubkhan Noorkhan Pathan versus The State of Maharashtra & ors", reported in (2013) 4 SCC 465.
It is also stated that even if there is a violation of some provision then also it is not worth interference in view of the judgment of this court in the case of "Ram Chand Tolani versus (8 of 16) [CW-13901/2014] State of Rajasthan & ors", reported in 2003(3) WLC 290, and "Bhagwat Singh Panawat versus State of Rajasthan & ors", reported in 2005(4) WLC 622.
Learned Advocate General has even raised objection about filing of joint writ petition in reference of the judgment of this court in the case of "Chandmal Naurat Mal & ors versus State of Rajasthan & anr, AIR 1968 Rajasthan 20 and "Kamji & ors versus State of Rajasthan & ors, 1980 WLN (UC) 90.
It is stated that the course in question has been recognised under the Act of 1952 thus there exist legal sanctity behind it. The petitioners have challenged the orders in ignorance of the aforesaid and otherwise it is a policy decision of the State. Reference of the judgment in the case of "Subhasis Bakshi & ors versus West Bengal Medical Council & ors", (2003) 9 SCC 269 and "Dr Mukhtiar Chand & ors versus State of Punjab & ors, (1998) 7 SCC 579 has been given. The prayer is accordingly made to dismiss the writ petition.
Learned counsel for the Medical Council of India Mr Angad Mirdha has supported the cause taken by the petitioners. It is stated that the MCI is a statutory body created under the Central Act. The MCI alone is competent to approve higher medical education. It is for maintenance of high standards of medical education throughout the country. No course can be introduced in violation of the Act of 1956 and Regulations made thereunder.
A reference of the judgment of the Apex Court has been given to impress upon relevance of the Act of 1956 for specialised medical education. The course introduced by the State (9 of 16) [CW-13901/2014] Government is in violation of the Act of 1956. It empowers the Central Government to frame Regulations laying down minimum standards of infrastructure, teaching and other requirements for medical course. The Hon'ble Supreme Court held Regulations made under it to be mandatory and binding. The State enactments, to the extent they are inconsistent with the Act and Regulations, cannot operate. It is even by virtue of Article 254 of the Constitution of India. The Entry 66 List 1 of Schedule VII of the Constitution does not permit the State to touch the subject. It was considered by the Apex Court in the case of "Dr Preeti Srivastava versus State of MP & ors", reported in (1999)7 SCC
120. The Regulations were framed under sections 20 and 33 of the Act of 1956. The Post Graduate Medical Education Regulations, 2000 (for short "the Regulations of 2000") were published in the official gazette. The Regulations are binding, as held by the Supreme Court, in the case of "Dr Narayan Sharma & anr versus Dr Pankaj Lehkar & ors", reported in (2000) 1 SCC 44. The mode of selection to the PG course has been given under clause 9 of the Regulations of 2000. Regulation 10 provides for period of training. The course introduced by the respondent-State is in violation of the Act of 1956 and the Regulations made thereunder thus needs to be scrapped.
Learned counsel appearing for respondents No.5 to 12 have opposed the writ petition. They have adopted the arguments raised by learned Advocate Genera Mr NM Lodha. The additional ground of misjoinder of cause of action has also been taken apart from the objection to judicial review of policy decision. This court (10 of 16) [CW-13901/2014] is having limited jurisdiction to interfere in the policy decision. Reference of various judgments of the Supreme Court has been given to support the arguments. The prayer is accordingly to dismiss the writ petition.
I have considered rival submissions of the parties and perused the record.
The writ petition challenges the orders dated 7 th October, 2014 and 18th November, 2014 inviting applications for one year certificate course in different disciplines like Gynaecology, Paediatrics, Anaesthesia, General Surgery, etc. The applications were called from and amongst medical officers. The writ petition has been filed by those who are doing post graduation in the discipline of Radiology.
The challenge is made alleging violation of the Act of 1956 and Regulations of 2000. No medical courses can be started without approval of the MCI. It is furthermore when specialsed courses can be taken only by way of post graduation provided by the MCI. The respondents could not have substituted post graduation course in various disciplines with that of certificate course of lesser duration. It is moreso for those who may have appeared in PG Entrance Examination for different disciplines and remained unsuccessful. The certificate training course is said to be without proper curriculum and training though would permit to administer medical treatment of the discipline concerned. It would put a patient at risk of his life. A reference of the MCI Act apart from PCPNDT Act has been given to show as to how courses can be started.
(11 of 16) [CW-13901/2014] Learned Advocate General Mr. NM Lodha has raised preliminary objections about maintainability of the writ petition. The first issue is about locus standi of the petitioners to maintain the present writ petition. They are not said to be aggrieved persons.
I have considered the issue aforesaid and even perused the judgments cited by learned Advocate General. The petitioners are those who appeared in the entrance test for post graduation in the specialised discipline and remained successful. The certificate course is in the discipline of PG course. The apprehension was to allow promotion of medical officers based on the certificate course, though learned Advocate General has clarified that no benefit arising out of certificate courses would be given. It is, however, a fact that the petitioners are undergoing P.G. course after qualifying the entrance test and now it is administered through certificate course, thus they are directly affected by it. The judgments of the Apex Court in the case of "The Calcutta Gas Company vs The State Of West Bengal And Others" reported in AIR 1962 1044 and also in the case of Ayaaubkhan Noorkhan Pathan (supra) are not applicable to the facts of this case. The petitioners urged their locus to pursue the writ petition and is otherwise considered in the light of other arguments of the parties. The preliminary objections aforesaid cannot be accepted for the reasons given above.
The another objection is about mis-joinder of cause of action. The objection of mis-joinder of cause of action has been raised but could not be substantiated by the respondent Nos.5 to (12 of 16) [CW-13901/2014]
12. In fact, the prayer made in the writ petition cannot be said to be with mis-joinder of cause of action, rather, only cause of the petitioners is against the courses provided by the respondents in violation of the Act of 1956 and the Regulations of 2000 thus even second objection cannot be accepted.
The third objection is about judicial review against the policy decision taken by the State Government. It was submitted that certificate course in question is an outcome of the policy decision of the State thus cannot be reviewed by this court. The certificate course has been provided looking to acute shortage of specialised Doctors in the rural areas. The argument raised by the respondents cannot be accepted. No one is permitted to act contrary to the statutory provisions and thereby, if a policy decision is taken in violation of it, can be questioned.
In the instant case, Regulation provide PG courses in the specialised disciplines and contrary to it, the respondents have provided certain courses in the same discipline without approval and sanction of the MCI, though required. The policy decision is such which may put the patients of rural areas at the risk of their life as it would be administered by those not having qualification as per the MCI Act and Regulations.
Learned Advocate General has supported the certificate course as it would build and enhance the skill of in-service Doctors. It is with the purpose to administer medical treatment of specialised subject in the rural areas where acute shortage of specialised Doctors exists. Learned Advocate General was asked as to why the Doctors of specialised subjects are not deputed in (13 of 16) [CW-13901/2014] the rural areas. It is shown to be in absence of their availability. The details of the recruitments made on the post of Junior Specialist have been given in an additional affidavit pursuant to the directions of this court. The affidavit has been filed by the respondents to mislead the court. It is for the reason that details of recruitments given therein are mainly for the post of Medical Officer and not of Junior Specialist. The practice of the deponent in filing such an affidavit needs to be deprecated. The failure of the State Government to make timely recruitment on the post of Junior Specialist exists and to cover the default, patients are put to risk of their life, thus argument in reference to it cannot be accepted, rather, it shows failure of the State Government to make recruitment on the post of Junior Specialist as per requirement.
The joint writ petition is permissible as per High Court Rules. It is even to avoid multiplicity of litigation.
Learned Advocate General has even made reference of the Act of 1952 to show their authority to administer certificate course in different disciplines. A reference of Sections 15, 17, 18 and 21 of the Act of 1952 has been given. Section 15 of the Act of 1952 is only for maintenance of register of the registered practitioners. Section 17 provides for entitlement of the registration, however, perusal of clauses (a) to (c) of Section 17 of the Act of 1952 reveals it to be for those who possess the qualifications given in the First Schedule to the Indian Medical Council Act, 1933 (for short "the Act of 1933"), then existing, or any foreign medical qualifications recognised and included in the Second Schedule to the Act of 1933 and lastly, those qualifications for which (14 of 16) [CW-13901/2014] recommendation has been made by the MCI under Section 3 of the MCI Act. The certificate course in question does not exist either in the First Schedule or Second Schedule of the Act of 1933 or has approval thus Section 17 of the Act of 1952 does not apply to the present case. It goes against the respondents as they cannot register those who are not in possession of the qualifications given therein.
The learned Advocate General has made much empasis on Section 18 and 21 regarding additional qualifications. The arguments were raised in ignorance of the fact that not only such additional qualifications need notification in Rajasthan Gazette but requires scrutiny, as given therein. The certificate course in question has not been notified in Rajasthan Gazette so as to apply Section 18 of the Act of 1952. Section 21 of the Act of 1952 talks about additional qualifications but it does not provide that it can be a qualification not admissible for registration as per Sections 17 and 18 of the Act of 1952 thus none of the provisions of the Act of 1952 saves argument of the learned Advocate General.
Learned counsel appearing for MCI, on the other hand, contested the argument of learned Advocate General and supported the case of the petitioners. It is submitted that neither any course can be started nor certificate can be granted without observance of the provisions of the MCI Act and Regulations made therein. A reference of Post Graduate Medical Education Regulation, 2000 has been given to show as to how Post Graduate Medical Courses can be taken. A reference of Entry 66 of List I of Schedule VII of the Constitution was also given to show as to who (15 of 16) [CW-13901/2014] possesses the authority to administer higher education in medical courses. The impugned order has been issued in violation of it.
The certificate course started by the respondent-State Government lacks sanctity of law and further would put the patients at risk due to default of the respondent-State Government to fill the post of Junior Specialist. It is stated that if they are in need of Junior Specialist, cadre post can be increased followed by recruitment so as to provide adequate medical facilities in the rural areas.
Learned counsel appearing for the private respondents could not support the arrangement made by the respondent-State Government for imparting certificate course without sanction and approval of the MCI. They could not demonstrate that certificate course finds place in the First or Second Schedule of the Act.
Learned counsel for the petitioners have made reference of the Regulations of 2000 to show not only the procedure for selection in the PG course in specialised disciplines but various other aspects of the matter.
Section 33 of the MCI Act empowers the MCI to frame regulations for laying down minimum standards of infrastructure, teaching and other requirements to conduct the medical courses and pursuant to it, Regulations of 2000 were followed. The Regulations of 2000 was framed by the MCI pursuant to Sections 20 and 30(3) of the Act of 1956. The regulations are mandatory and no one can provide course in violation of it. The procedure for selection to undertake specialised course is provided under Regulation 9, however, in violation of it, the respondents have (16 of 16) [CW-13901/2014] started certificate course. The Regulations of 2000 even provides for period of training and manner of examination under Regulations 10 and 14 respectively. It has not been followed, thus the act of the State Government is not only in violation of the Act of 1956 but Regulations of 2000 and otherwise beyond their competence in view of Entry 66 of List I of Seventh Schedule of the Constitution.
The writ petition is, accordingly, allowed. The training or certificate course pursuant to the impugned orders would not be used for any purpose, rather, respondents are restrained to provide certificate pursuant to the orders under challenge and, accordingly, they are set aside.
(M.N.BHANDARI) J.
bnsharma/frbohra