Gujarat High Court
Piyush Harshadrai Desai vs Union Of India (Uoi) on 1 January, 1800
Equivalent citations: (2004)2GLR1687
JUDGMENT K.M. Mehta, J.
1. Piyush Harshadrai Desai & 52 other students, petitioners have filed this petition with a prayer that this Court may issue a writ of or in the nature of mandamus of any other appropriate writ, order or direction, to quash and set aside the decision and direction by respondent No. 3, Medical Council of India (hereinafter referred to as MCI), reflected in its communication dated 31.10.2003 and other communications dated 27.08.2003, 19.11.2003 and 03.02.2004, in so far as, it requires respondent No. 4 South Gujarat University to adhere to the time schedule for granting of Post Graduate admission in academic year 2004. The petitioners further prayed that this Court may issue writ of or in the nature of mandamus or any other appropriate direction, holding that the time schedule of P.G. (Post Graduate) admission provided by respondent No. 3, MCI provided in its communication dated 31.10.2003 and 27.08.2003 and other communications, applies only in the context of granting P.G. admission on the basis of entrance test as qualifying examination, in the Universities, where the P.G. admission are granted on the basis of such examination already prevalent. The petitioners further prayed that this Court may further pleased to direct that the said time schedule and the date of 1st May does not apply where qualifying examination is only MBBS. The petitioners further prayed by was of amendment that, this Court may restrain respondent No. 4 and 5, i.e South Gujarat University & Government Medical College, Surat herein from proceeding ahead to implement in any manner whatsoever the decision taken by the Board of University Teaching in its meeting dated 10.02.2004 in respect of agenda item No. 42, rejecting the recommendations of Medical Faculty and be further pleased to restrain respondent Nos. 4 & 5 from commencing the process of admission to P.G. Course including preparation of merit list in respect of minor/casual/repeat batch of academic year 2004.
2. The facts giving rise to this petition are as under:
2.1 On behalf of petitioners, learned senior counsel Mr. S.N. Soparkar with Mr. N.V. Anjaria, learned advocate with Mr. I.J. Desai appeared for petitioners and they made following submissions. Mr. N.V. Anajaria, learned advocate has made written submissions also. The learned advocate has made following submissions in the petition, which he has relied at the time of oral hearing in this behalf which are as follows:
3. Petitioners, herein, are the students aspiring to pursue post graduation in various medical disciplines after completion of their intership which they have been presently undergoing. The petitioners passed their qualifying MBBS examination held in May, 2003 and commenced their compulsory intership/housemanship under the prevalent and existing Rules from 01.08.2003. The period of their intership will become over on 31.07.2004 and upon completion, they will become eligible to be admitted to Post Graduate Courses. The petitioners are the students of regular batch No. 65, who have passed their MBBS examination in regular course.
4. It is the case of the petitioners that, in the normal course, petitioners would have joined MBBS Course from 01.08.1998. The duration of said course is 4 1/2 years. On account of litigation pending before the Hon'ble Supreme Court in respect of reservation of seats for SEBC, (Socially and Economically Backward Class) the admission to the MBBS Course were delayed and the petitioners could start their studies only on 01.12.1998. The regulations framed by the MCI, 1997 inter alia requires that MBBS course shall commence on 1st August every year. The said requirement could not be observed in view of litigation in Hon'ble Supreme Court till the commencement of MBBS course is considered. It is the case of the petitioners that authorities could have easily avoided delay in commencement of MBBS course, had they been alive to the value of time in career of students. It is the case of the petitioners that thus, for the reasons not at all attributable to the petitioners, they lagged behind in time in passing out qualifying MBBS examination. Petitioners, have thus, already suffered for no fault of their own in terms of waste of precious time in their career in medicine. It is the case of the petitioners that pursuant to the directions given by MCI dated 31st October 2003 (Annexure A, Page No. 34), 14th May 2003 (Annexure B, Page No. 43), communication dated 27th August 2003 (Annexure C, Page No. 49) 19th November 2003 (Annexure C, Page No. 62) 3rd February 2004 (Annexure C, Page No. 64). The Universities have decided to hold examination on 1st May 2004. It is the case of the petitioners that, but, for the said directions ordinarily, admission process for the petitioners is scheduled to commence in the month of August/September 2004, that is to say immediately on their getting degree of MBBS upon completion of intership. It is the case of the petitioners that respondent No. 4 University grants admission to the P.G. Courses twice in one academic year. The admissions are granted normally in August/September and on the second occasion in January/February in each academic year and the corresponding dated will mark the commencement of studies in P.G. Courses. As far as admissions in August/September are concerned, the competing students would belong to regular batch like the petitioners, who have passed their qualifying examination in normal course. While, the admissions in January/February are offered to the batch of students known as minor/repeaters batch. There are students who have either failed in clearing MBBS at the first attempt or those who have been rejected on merits or have refused to accept admissions earlier offered to them on merits for the reasons they did not get branch of their choice in the previous admissions. The seats thrown open for regular/major and repeater/minor batches are in the ratio of 3:1. The South Gujarat University there are about 60 admissions available subject to variance in each academic year.
5. It is the case of the petitioners that in view of the aforesaid directions issued by MCI, MCI has proceeded to fix the time schedule for admission to P.G. Medicine Courses to be enforced academic sessions 2004 onwards. The time schedule fixed by the MCI has required that it shall be followed by all medical colleges without exception. The time schedule is as follows:
1. The results of the qualifying postgraduate entrance tests conducted by all the examining authorities concerned shall be declared on or before 28th February of the concerned year.
2. The admission including counseling thereof be completed by all the admitting authorities and agencies on or before 1st May of the concerned year.
3. The academic session for the admitted students to commence in all the teaching institutions on 2nd May of the concerned year.
4. the resultant/consequential admissions for any or all the arising reasons shall be completed by 31st May of the concerned year.
5. No admissions shall be made by the admitting agency beyond 31st May of the concerned year.
6. It is the case of the petitioners that aforesaid guidelines have been issued by MCI on the basis of the judgment of the Apex Court in the case of Medical Council of India Vs. Madhu Singh & Ors. (2002) 7 SCC 258.
7. In view of the aforesaid directions issued by MCI, the net effect of implementing the time schedule by MCI requiring that the P.G. admissions shall commence only on 1st May has cascading effect adverse to merit selection. While, in the normal course, batch of the petitioners which is a regular batch, would have been offered P.G. admissions in August/September 2004. By virtue of mechanical implementation of the MCI schedule in the year 2004, they will suffer an idle period of ten months before they can pursue studies in the post graduation. Under the said time table, the P.G. admissions will be required to be conducted in May 2005 as far as the batch of the petitioners are concerned.
8. It is the case of the petitioners that total 3 (three) unequal classes of students will be competing for the admissions in P.G. Medical Courses. viz.:
1. The regular batch of students like the petitioners, who have completed their studies upto qualifying examination in regular course.
2. Repeaters batch, who are the candidates not having been passed their MBBS examination at first attempt and are failures. Under the normal time schedule, admissions to them in P.G. courses are given in January/February by offering 1/3rd of the total seats.
3. The third class of candidates belonging to minor batch, which comprises of those students who had not opted to the admissions in the preceding stage of such admissions for the reason that they at the relevant time were not getting the branch of studies/disciplines of their choice on their individual merit.
9. It is the case of the petitioners that clubbing together aforesaid three different batches of students for admissions to be held in May 2005 means treating persons belonging to heterogenous groups as one class. and this is violating Article 14 of the Constitution of India.
10. It is further submitted that if the admission in P.G. courses is to be taken in May 2004, then only batch available in the respondent No. 4, South Gujarat University will be the minor batch comprising of students who are failures and below merit candidates. The seats offered to them will be 100%. Less number of students will be competing for 10% seats, thereby enjoying a windfall. It will be a bounty to students who are irregular, failures and fencesitters. The petitioners submitted that this will invariably mean giving premium to low merit in P.G. selection and promoting mediocrity in the standard of Post Graduate studies.
11. It is the case of the petitioners that even if the 1st May is to be selected is intended to apply only for the Universities for those states where the P.G. admissions are given on the basis of the common entrance test. The common entrance test is one on the mode indicated by the MCI in the MCI regulations for P.G. Courses, 2000, under regulation 9 thereof. The P.G. admissions are granted on the basis of qualifying examination which may be an entrance test. The calendar for admission to P.G. courses can be fixed only in the context of the qualifying examination. It is submitted that in the State of Gujarat, the P.G. admissions are granted on the basis of cumulative merits of first, second and third MBBS examinations and no university has provided for entrance test as being qualifying examination to judge the merits for P.G. selection, pursuant to the directions in the nature of time schedule by MCI. In view of the same, it was stated that the date of 1st May does not apply to the present petitioners and the batches already available as eligible for P.G. courses and their admissions has to be governed in the context of the time schedule of qualifying MBBS examination and on the basis of cumulative merits assessed as per regulation 9 of MCI. Even otherwise, time table cannot be adopted for selecting one date in isolation and giving a go-bye to rest of the stages in the calendar.
12. It is the case of the petitioner that South Gujarat University has framed Rules for admissions to P.G. Courses. The said P.G. Rule No. 1 provides for eligibility criteria to provide that to be eligible for admissions to the courses of degree/diploma in clinical subjects, candidates must have been passed MBBS examination and have completed their compulsory intership. In respect of P.G. Rule 4, deals with the date of application for admission. The date of registration in fixing of schedule of admission is the function of University authorities under the said statutory Rules. The Rules further provide that the admission to P.G. Courses shall be given on academic merit. The admission to P.G. Courses will have to be given only on the basis of merits is also a mandate steaming from the regulation No. 9 framed by the MCI. It is the case of the petitioners that University is an autonomous body and in deciding the time schedule it takes various relevant factors into account. It is further submitted that South Gujarat University has already decided to implement the time schedule sought to be suggested by MCI without considering its effect and with total non-application of mind. The University has decided to offer total seats for admissions to start on 01.05.2004. The Medical Faculty of respondent No. 4 recommended that for the repeaters batch, 25% seats may be offered and for the petitioners who would be completing intership on 31.07.2004, 75% seats be made available. However, in the meeting dated 10.02.2004 of the Board of University Teaching, the said recommendation had been turned down. In view of the same, present petitioners have filed the present petition, challenging the action of the MCI, communications of MCI and the South Gujarat University Board of Teaching.
13. The matter was filed before this Court on 9th March 2004. When the aforesaid matter was placed for hearing before this Court, this Court issued notice on 12th March 2004. On 19th March 2004 amendment was prayed.
14. In pursuant to the aforesaid notice, MCI has filed affidavit through one Mr. Jagtar Singh, Asstt. Secreatry (Legal), Medical Council of India dated 22nd March 2004. Alongwith the said affidavit, certain documents have been filed. The petitioners have filed rejoinder on 22nd April 2004 to the said affidavit also in this behalf. As being urgent matter, with consent of parties, the matter is taken for final hearing.
15. On behalf of petitioners Mr. Soparkar, learned senior counsel with Mr. N.V. Anajaria and learned advocate Mr. I.J. Desai appeared. After completing oral submissions, petitioners have filed written submissions on support of the same on 07.05.2004.
15.1 The learned counsel on behalf of petitioner has invited my attention to entry No. 66 of List I- Union List of 7th Schedule of Constitution of India, which provides as under:
"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions".
15.2 The learned counsel has also invited my attention to entry 25 of the said list III which provides as under:
"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".
15.3 The learned counsel for the petitioner has invited my attention to various averments made by the petitioner in the petition. He has also invited my attention to the communication dated 31st October 2003 issued by MCI to all medical colleges, Universities and Government in this behalf. In view of this communication, in which the MCI has relied upon the judgment of the Hon'ble the Supreme Court in Madhu Singh's case and also the communication from the dated 14th May 2003 addressed to all Universities, produced at Annexure B, page No. 43, the time schedule for completion of entrance for medical and dental annexed to the said letter, another letter of the MCI dated 27th August 2003, which is produced at Annexure C, page No. 59, in which also Madhu Singh's case has been relied upon and also judgment of the Apex Court in Islamic Academy of Education was also relied. Another communication dated 19th November 2003 issued by MCI to all Principals of all Medical Colleges, Registrars/Vice Chancellors of all the Universities, which is produced at Annexure C, page No. 62. Another communication dated 3rd February 2004 issued by MCI to all Universities, which is produced at page No. 64 and regulations of MCI.
15.4 The learned counsel for the petitioner has also invited my attention to South Gujarat University PG Rule to Medical Examination. He has also invited my attention to Rules governing appointment of residents at the Government Medical colleges and attached teaching hospitals in the state approved under Government Resolution, which is produced at Annexure E, page No. 98. He has also invited my attention to programme of South Gujarat University in connection with the examination to be held, which is produced at Annexure F, page No. 116. He has also invited my attention to the communication by Surat Citizen's Council Trust dated 28th February 2004 to the Registrar, South Gujarat University highlighting certain facts in this behalf, which was signed by Mr. I.J. Desai, who also happens to be advocate here and also resolution of the university in this behalf. He has also invited my attention to the affidavit in rejoinder filed by the petitioner against the affidavit in reply filed by MCI, which is on page No. 189. On the basis of the aforesaid documents, it was submitted that the MCI has fixed the time schedule only on the basis of certain observations made by the Apex Court in Madhu Singh's and other cases. However, according to learned counsel for the petitioner, there is nothing in the judgment which specifically state that MCI has to fix a strict time table without considering the practical eventualities of individual university in this behalf.
15.5 Learned counsel for the petitioner has relied upon the provisions of Universities Act, particularly Chapter 5, which authorities of University, which is a Board of University Teaching. Regulation 42 Post Graduate Teaching. Statutes 29, Chapter V, Statutes, Ordinances & Regulations, the said Statutes provides: "constitution, powers and duties of the authorities of the University, save as provide in this Act; all matters which by this Act are to be or may be prescribed by the Statutes". Ordinance 31 provides: "conditions under which students shall be admitted to courses of students for degrees, diplomas and other academic distinctions". It also provides; "conduct of examination". The said ordinance provides that: "matters which by this Act or the Statutes to be or may be provided for by the Ordinances, and generally all matters for which provision is, in the opinion of the Syndicate, necessary for the exercise of the powers conferred or the performance of the duties imposed upon the Syndicate by this Act or the Statutes". Regulation 33 provides: "Regulations and Rules". It also provides that: "any authority of the University specified in clauses (v) to (x) of Section 15 may, subject to the approval of the Syndicate, make rules, consistent with this Act, the Statutes, Ordinances and Regulations, providing for all matters solely concerning such authority. Statute 134 provides: "constitution of Board of University Teaching". statute 141 provides: "powers and duties of the same".
15.6 Learned counsel for the petitioner relied upon relevant Rules and Regulations of South Gujarat University stated in this behalf. Rule 7 provides: "Selection of eligible candidate for appointment to the first year residency shall be made on the basis of individual cumulative performance at the first, second and third MBBS examinations as under:
1. 25% marks in First MBBS
2. 25% marks in Second MBBS
3. 50% marks in Third MBBS 15.7 Regulation 7.2 and 8.4 provides certain conditions to appear in examination regarding residency. Regulation 11.1, 11.2, 11.3 and 11.4 also provides certain conditions in which students can appear in examination.
15.7A As stated by MCI, in Madhu Singh's case, the Supreme Court has nowhere said that MCI should fix the impugned time schedule for P.G. course with 2nd May as the date of commencement of P.G. course in all the Universities in the country and that too even for the Universities where the entrance exam is not taken and the Universities have chosen to admit P.G. students on the basis cumulative merit as permitted by the P.G. Regulations, 2000 of the MCI.
15.7B On the contrary knowing the limitations of power of MCI with reference to Entry 66 of List I of the 7th Schedule of the Constitution of India, the Supreme Court in that case has said that MCI should ensure (to secure, to make sure) that examining bodies mainly the Universities, fixed the time schedule including for P.G. course containing the date of commencement of course, date of completion of course and date of admission on leaving the specification of particular dates to respective Universities.
15.7C Particular date of commencement of P.G. Course has absolutely no relevance with the standard of P.G. Medical Examination which is under its purview. Therefore, since the establishment of MCI till date no such time schedule was considered to be worthy of its inclusion in the P.G. regulations of MCI. This fact itself proves that such time schedule with specific particular dates has no relevance as far as standard of P.G. Medical Examination is concerned, otherwise all these years since its establishment MCI can be said to have failed in duty envisaged in the Indian medical Council Act.
15.7D One more instance for non-application of mind on part of MCI is evident from the time schedule for P.G. admission as specified.
15.7E Time schedule envisages process of entrance test to start in mid January in the States where system of entrance test is existing. In Gujarat State there is no such system. 15.7F MCI's regulations on medical education 1997, in regulation 7 states that the admission process of MBBS course is so arranged that the first Semester of MBBS course commences on 1st of August every year. Time schedule also specifies 1st August as such date.
15.7G The said regulation specifies the duration of MBBS course as 4 1/2 years.
15.7H Adding 1st August 2004 + 4 1/2 years 31st January 2008 + at least 7 days for joining intership 8th February 2008 + one year intership 7th February 2009 How can process of entrance test start from mid January as envisaged in the time schedule?
16. By no stretch of imagination, it can be said that a particular date of commencement of P.G. Course in an academic year can have any nexus with the standard of P.G. medical education. This is confirmed by the Supreme Court in D.K. Singh's case where it has been said that particular date of commencement of P.G. course falls within the purview of the University and therefore it should be lest left to the University and no court or for that matter MCI can interfere to it, MCI'S P.G. time schedule has not even become part or regulations so as to assume statutory character.
17. Keeping in view the occupied field of MCI with reference to Entry 66 List I of the 7th Schedule of the Constitution, the Supreme Court in its Constitution bench in Preeti Srivastav's case - 1999(7) SCC 120 as specified the areas in which MCI have a mandatory say in those areas a particular date of commencement is not specified as one of such areas, there is no judgment of the Supreme Court including the recent one in the case of Gujarat University students which can supersede the ratio laid down in the Preeti Srivastav's case. Even Hon'ble the Supreme Court in State of U.P. Vs. D.K. Singh's case, 1998(4) SCC 160 also cannot be said to be superseded by the recent judgment in the case of Gujarat University students wherein there is total absence of challenge similar to one impugned in the petition of the present petitioners.
18. As far as South Gujarat University is concerned, in its P.G. Rules which are in consonance with MCI's P.G. Regulations, wherein the State Governments Residency Rules have become part and parcel, there already exists date of commencement of P.G. Course, date of completion of P.G. course and last date of admission to P.G. Course being respectively 1st January, date after three years from 1st January (as date of completion of course) and 31st January (as last date of admission). In the history of South Gujarat University there is not a single instance of midstream admission in P.G. course. In the Supreme Court directions in the Madhu Singh's case there was nothing remaining to be ensured by the MCI as far as South Gujarat University is concerned, therefore, foisting of time schedule for P.G. course on respondent No. 4 University with specific date of 2nd May as date of commencement of P.G. Course from academic year 2004 onwards is beyond the powers of MCI and therefore patently illegal and ab initio void.
19. Similarly, the action of University in implementing such illegal time schedule as foisted by MCI ignoring its own rules in this regard validly made within its powers under the SGU (South Gujarat University) Act, 1965 and within in occupied filed with reference to entry 25 List-III of the 7th Schedule of the Constitution of India is also patently illegal and ab initio void. Consultation with Gujarat State Health Secretary or Vice Chancellor of respondent No. 4 University does not make any difference. Their consent does not become law.
20. As submitted under the South Gujarat University Act, 1965, under statute 141, the powers of Board of university Teaching (BUT) which is entrusted with the job of P.G. teaching and instruction can be issued only after consultation with Academic council and Syndicate. The decision of BUT in this regard has not been yet considered by the academic council and the syndicate. Therefore, also, the action of Medical College of implementing the time schedule specifying 2nd May as the date of commencement of P.G. course from academic year 2004 onwards is otherwise also patently illegal and ab initio void.
21. The impugned time schedule of MCI in relation to P.G. course could said to be at the most recommendatory in character. But it can never assume mandatory character in law. Therefore, if respondent No. 4 University wanted to follow the P.G. time schedule as specified by the MCI, then it is first required to amend its own rules in this regard after following the procedure laid down in SGU Act. As P.G. Rules of respondent No. 4 University has linkage with the State Government Rules. In residency, the State Government also is first required to amend in residency rules, only then P.G. time schedule as specified by the MCI could have been legally implemented without amendment in the rules of both (University & the state), implementation of MCI time schedule in this regard is patently illegal and ab initio void.
22. Presuming for the time being without admitting that implementation of the so called academic decision in this regard by respondent No. 4 University tantamount to amendments in the Rules of the university as also of the residency rules of the State Government, then, as settled by the Hon'ble SC no such amendment in the rules can divest any person from his vested right (of getting admission from 1st January 2005 for the petitioners) which petitioners have acquired under the existing rules.
23. The University has decided to implement the time schedule in respect of P.G. course specifying 2nd May as the date of commencement from academic year 2004 for the students who have completed their intership before that date offering 100% seats available seats for them after considering all India quota. By this illegality as against the practice, minor/repeaters batch is going to benefit in as much as one side students with inferior merit are also likely to get P.G. admission. But on the other side, if the University has followed its own rules against the practice they would have joined from 1st January, 2004. Instead they will be joining from 2nd May, i.e. four months later. But as far as the petitioners are concerned, since they are going to complete their mandatory intership on 31st July 2004, there is no reason for them to have any grievance.
23.1 However, since the University has decided to implement MCI's P.G. time schedule from 2004 onwards, the petitioners are bound to suffer if they are offered admission from 2nd May 2005 and not 1st January 2005 as per existing rules off the University. They will have not only to waste further four months before joining from 2nd May 2005, but they will be made to compete with double number of P.G. students becoming eligible for P.G. admission. This is because the students who not be passing final MBBS examination before April 2004 will be completing their mandatory intership before April 2005 so as to be eligible for admission from 2nd May 2005. Thus by creating situation wherein double number of students eligible for P.G. admission are required to complete for the same limited number of available P.G. seats, merits is going to be sacrificed against the settled law nothing Article 214 of the Constitution directly. It may be added that for the illegality already committed by respondent No. 4 University though the petitioners are not concerned as settled by the Hon'ble SC estoppel is not available for ultra vires Acts.
24. The learned counsel for the petitioner, therefore, stated that it is not correct to say the the Supreme Court in 2002 7 SCC page No. 258 Madhu Singh's case directed to fix time schedule of P.G. course. The learned counsel further submitted that the MCI has acted beyond its powers with reference to its occupied field in fixing impugned time schedule. The learned counsel further submitted that Supreme Court in the judgment reported in (2003) 6 SCC 697 in the case of Islamic Academy of Education and others Vs. State of Karnataka has not approved time schedule in respect of P.G. Course in this decision as alleged. The learned counsel submitted that in view of the judgment of the Apex Court in (1986) 4 SCC 160 - State of U.P. Vs. D.K. Singh, the date of commencement of the P.G. Course falls within the purview of the University. The learned counsel for the petitioner submitted that reliance by the MCI in MCI Act, Rules and Regulations and other judgment viz. judgment of Preeti Srivastava and Madhu Singh's case, on which MIC has foisted the date of entrance as well as the date of admission to university is unjustified and unwarranted for. The same is applicable to whole of India, and if schedule as suggested by MCI be accepted by University, the entire batch students will be left out and there will be great injustice to the students in this behalf. Therefore, this Court may not interpret the Rules and Regulations of MCI and other judgments of the Supreme Court, by which the entire batch of petitioners lose its sight.
25. As prayer 10(C) of the petition is not pressed, the remaining prayers 10(A) & 10(B) and the prayers in the petition of Gujarat University students before the Supreme Court where the similar challenge is not found becomes absolutely different. Therefore, the dismissal of the said petition by the Supreme Court has no relevance as far as the impugned petition is concerned. Therefore, issues raised in the impugned petition which were not there in any of the petitions before this Hon'ble Court or for that matter before the Supreme Court are required to be adjudicated by this Hon'ble Court only. I therefore submit the prayers in the impugned petition be allowed and University be directed to following its own rules in this regard allowing the petitioners P.G. admission from 1st January 2005.
26. On behalf of MCI, learned Advocate General Mr. S.N. Shelat with learned advocate Mr. Mitul Shelat appeared. On behalf of University, respondent No. 4 Mr. Dhaval Dave appeared.
27. The learned counsel for MCI has invited my attention to provisions of Indian Medical Council Act, 1956. He has stated that the Medical Council of India to prescribed standards of post graduate medical education for the guidance of universities and to provide for the maintenance of an all India register by the Medical Council of India Act. One of the object of reasons of the said act is to provide for formation of a committee of Post Graduate Medical Education for the purpose of assisting the Medical Council of India to prescribe standards of post graduate medical education for the guidance of universities and to advise universities in the matter of securing uniform standards for post graduate medical education throughout India. The learned counsel has also relied upon the provisions of Indian Medical Council Act, 1956. Section 2(l) provides that: "University" means any University in India established by law and having a medical faculty". Section 11 provides for: "recognition of medical qualifications granted by universities or medical institutions in India". Section 16 provides: "power to require information as to courses of study and examinations". Section 17 provides: "Inspection of examinations". Section 18 provides: "Visitors at examinations". Section 19 provides: "withdrawal of recognition." Section 20 provides" "Post graduate Medical Education Committee for assisting Council in matters relating to post graduate Medical Education". Section 33 provides "Power to make regulations".
28. Under the power conferred under Section 33, the MCI framed the regulations. One of the regulations provides: "the courses and period of study and of practical training to be undertaken, the subject of examination and the standards of proficiency therein to be obtained in Universities or medical institutions for grant of recognized medical qualifications". It also provides: "the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations." He has also relied upon the regulations, particularly Regulation 2, which provides: "general conditions to be observed by post graduate Teaching Institutions. Regulation 9 provides: "Selection of Post graduate students". It also provides: "period of training. Regulations 11 and 12 provides: "Number of Post Graduate students to be admitted". Regulation 13 provides: "Training programme".
29. The learned counsel has also relied upon the Medical Council of India Relevant Regulations on Graduate Medical Education, 1997. Regulation 7 of the said Regulations provides: "Training period and time distribution". Regulation 42 provides: "Post graduate teaching". Statutes 29, which is under Statutes, Ordinances and Regulations provides: "constitution, powers and duties of the authorities of the University, save as provided in this Act". Ordinance 31 provides: "Conditions under which students shall be admitted to courses of studies for degrees, diplomas and other academic distinctions and other academic qualifications and conduct of examination".
30. Learned counsel has also relied upon the affidavit filed by MCI in this behalf. He has stated that MCI is an expert body constituted under the provisions of the Act and has been given the responsibility of discharging the duty of maintenance of highest standard of medical education, and as such, the Hon'ble the Supreme Court in the case of State of Kerala Vs. T.P. Roshna (1979) SCC 580 had observed as under:
"The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall in vigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses".
31. The learned counsel submitted that towards the maintenance of highest standards in medical education in the Country, by virtue of provisions of Section 33 of the Act, the MCI has been empowered with the prior approval of the Central Govt. to frame regulations for laying down minimum standards of infrastructure, teaching and other requirements for conduct of Medicine Courses. After referring to the Regulations, which I have referred earlier, the learned counsel has relied upon the judgment of the Apex Court in the case of MIC Vs. State of Karnataka (1998) 6 SCC 131, where the Apex Court has held that:
"these regulations are binding and mandatory, and all State enactments, rules and regulations framed by universities etc. in relation to conduct of medicine Courses, to the extent they are inconsistent with the Act and the regulations made thereunder by the MCI, are repugnant by virtue of Article 254 of the Constitution of India inasmuch as the Act is relatable to Entry 66 List 1 Schedule VIIth of the Constitution of India".
32. This position of law has been reaffirmed by the Constitution Bench of the Hon'ble the Supreme Court in the case of Dr. Preeti Srivastava Vs. State of M.P. & Ors. (1999) 7 SCC 120. The learned Senior Counsel further submitted that the aforesaid judgments have been followed by the Apex Court in following cases:
(1) State of Punjab Vs. Dayanand Medical College - (2001) 8 SCC 664.
(2) State of Madhya Pradesh & Ors. Vs. Gopal D. Tirthani & Ors. - (2003) 7 SCC 83.
(3) Dr. Harish Verma Vs. Dr. Ajay Srivastava (2003) 8 SCC 69.
33. The learned Senior Counsel, thereafter, submitted that when it was brought to the notice of the Hon'ble the Supreme Court that admissions in the medical courses in the medical colleges/institutions all over the country were not taking place in time and the teaching and training of the students were also not being undertaken in accordance with time schedule, the Hon'ble the Supreme Court in the case of MCI Vs. Madhu Singh (2002) 7 SCC 258 gave following directions:
34. The learned counsel has also relied upon Para 22 of the said case wherein Hon'ble the Supreme Court had given following directions. He has also relied upon para 23 of the said judgment also wherein Apex Court has given certain directions:
34.1 "para.22 It is to be noted that if any student is admitted after commencement of the course, it would be against the intended objects of fixing a time schedule. In fact, as the factual position goes to show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for respondent 1 that with the object of preventing loss to the national exchequer such admissions should be permitted, we are of the view that the same cannot be a ground to permit midstream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking into consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continuous taking of classes with the object of fulfilling the requisite number of days would be harmful to the students' physical and mental capacity to study. In fact such a suggestion was held to be grossly inappropriate in Dr. Dinesh Kumar case".
34.2 "para.23 There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the schedule date, which essentially should be the date for commencement of the course.
In conclusion
(i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education;
(ii) even if seats are unfilled that cannot be a ground for making mid-session admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI".
35. After relying upon the judgment of Madhu Singh's case (supra), the learned senior counsel submitted that in view of the Apex Court judgment, midstreams admissions are not permissible and after cutoff date fixed by MCI, no admission shall be permissible. In view of the aforesaid provisions, rules and regulations of the Act and the judgment of the Apex Court, it was submitted that MCI fixes the annual intake capacity for each medical course for making admissions by the colleges. Each college/institution is statutorily bound to strictly adhere to its annual intake capacity. No college/institution is permitted to exceed its annual admission capacity for each course sanctioned by the MCI. No carry forward of any unfilled seat in any given academic year to a subsequent academic year is permissible. Any violation thereof is contrary to provision of Section 10A inviting penalty of unrecognized medical degree under the provision of Section 10B of the Act.
36. It was further submitted that, in view of the aforesaid directions issued by the Apex Court in the case of Madhu Singh (Supra) in accordance and in compliance with the aforesaid directions, MCI issued time schedule for admissions for MBBS, postgraduate and super-speciality courses. It was laid down that 30th September shall be the last date for admissions in the MBBS course in all the colleges/institutions in the country. By communication dated 11.02.2003 by the MCI to all concerned states, medical institutions/colleges authorities and also to the Government of India, the directions of the Hon'ble the Supreme Court in Madhu Singh case were brought to their notice and also the dates which have been finalized by the Council for completion of admission of the courses from the academic session 2003-04. It was decided that for admissions in the MBBS Course must be completed by all admission authorities and agencies on or before 31st of July of the concerned year. The academic session in all the teaching institutions should commence on 1st of August of the concerned year. The resultant/consequention admissions shall be completed by 30th of September of the concerned year. The communication dated 11.02.2003 was also sent to the concerned authorities of the State. The learned senior counsel further submitted that, there are judgments of the Apex Court in the case of TMA Pai as well as in the case of Islamic Academy of Education & Anr. Vs. State of Karnataka & Ors. In view of the directions given in the case TMA Pai it was submitted that, a schedule for completion of the various stages of the admission process; commencement of the academic session and closure of admission in courses of medicine and dentistry has been finalized by the Central Government after consultation with the State Health/Medical Education Secretaries and Vice Chancellors of the Universities of Health Sciences in the meeting held on 07.03.2003. The said schedule shall be applicable to all the medical and dental colleges in the country from the academic session 2003-04 and onwards. 36.1 The learned senior counsel further relied upon the communication issued by MCI dated 14.05.2003, 20.05.2003 and also judgment of the Apex Court in the case of Islamic Academy of Education & Anr. Vs. State of Karnataka & Ors. and also communication dated 27th August 2003, which is issued to all the Deans/Principals of the medical colleges, universities and State authorities. The learned senior counsel further relied upon several other orders passed by the Apex Court from time to time. In view of the aforesaid communication, it was submitted that as per this mandatory time schedule, the commencement of the course is from 2nd May 2004. The last date of admissions is 31st May 2004 thereafter, no admission is permissible. No variation either by the MCI or by any other authority in this time schedule is permissible in view of the direction No. (vi) issued by the Hon'ble the Supreme Court in its judgment in Madhu Singh's case. The each selected candidate is obliged to join the P.G. course by 2nd May 2004 and not later than 31st May 2004. The course is to commence from 2nd May 2004 and reading the provisions of clause 8:3 of the P.G. Regulations 2000 and the abovementioned mandatory time schedule prescribed by the Council in accordance with the directions of the Hon'ble the Supreme Court, the period of one month after 2nd May 2004 when the course commences, expires on 1st June 2004.
37. It was further submitted that, under these circumstances, it should be the sincere endeavour of all concerned in ensuring that the mandatory time schedule is met thereby ensuring that the P.G. courses commence from 2nd May 2004 and there is no admission permitted after the last date of admissions for the academic sessions 2004 being 31.05.2004.
38. As far as case of the present petitioners is concerned, it was stated that as per the statutory regulations of the Council, viz. P.G. Regulations, 2000, it has been strictly provided that within one month of the admission in the P.G. Course if the candidate fails to acquire/obtain permanent registration under the provisions of the Act, the candidate is not entitled to continue with the admission and the admission is liable to be cancelled. In the present case, since the commencement of the course is 02.05.2004 and the last date of admission being 31.05.2004, any candidate who is not in a position to acquire/obtain the permanent registration within a period of one month of admission would not at all be entitled for admission in the P.G. Course. Since the petitioners themselves have contended that they will complete their intership only after 31.07.2004, they are not entitled for consideration for admission in the present academic session of 2004. It was, therefore, submitted that, accordingly, the petitioners would be eligible for consideration for selection in the P.G. Course only for the next academic session, viz. 2005. It was submitted that prayers made by the petitioners are contrary to the judgment of the Apex Court in the Case of Madhu Singh (Supra) and, therefore, this Court may not pass any order or directions in this behalf.
39. It was further submitted that the Government of India letter dated 14.05.2003 was placed before the Constitution bench of the Hon'ble the Supreme Court in the case of Islamic Education Academy and the Hon'ble the Supreme Court has considered the same letter in this behalf. It was submitted that time schedule has been fixed by the MIC in accordance with the directions of the Hon'ble the Supreme Court. This time schedule, starting from the circular dated 01.11.2003 sent by the MCI to all the State Governments, Universities, Colleges and institutions had informed them that the time schedule is enforceable from the academic year 2004, with reference to the P.G. courses in this behalf.
40. The learned counsel for the respondent, MCI has invited my attention to communication dated 31st October 2003, addressed by MCI to all Universities and Deans and Government, in view of the judgment of the Apex Court in Madhu Singh's case. The learned counsel stated that the MCI, therefore, submitted time schedule for completion of admission process will in time in this behalf. He has also referred to the letter, wherein the judgment of Islamic Academy also been referred and also the order of the Hon'ble the Supreme Court dated 25th September 2003 in Shweta Goyal & Ors. Vs. ABVP & Ors. which is produced at page No. 158 of the paper book.
40.1 The learned counsel has further invited my attention to the fact that the state of Andhra Pradesh, State of Uttranchal and number of Medical Colleges approached the Hon'ble Supreme Court praying for extension of time with regard to last date of admissions being 30.09.2003 for MBBS admissions for the academic year 2003-2004. However, Hon'ble the Supreme Court by its order dated 27.10.2003 and 29.10.2003, was pleased to dismiss all such petitions praying for extension of time so as to ensure strict enforcement of time schedule for admissions and timely start of teaching and training in medicine courses in all the Medical Colleges/Institutions in the Country and copy of the said order was also enclosed with the affidavit of MIC in this behalf.
40.2 It may be noted that in that case before the Hon'ble Apex Court the petitioner prayed for extension of time which was rejected. It may be noted that even similar request was made by M.N.R. Medical College & Hospital for extension which was also rejected by another order dated 29th October, 2003, by Hon'ble Apex Court in the case of Share Medical Care.
40.3 The schedule for admissions of PG Medical Course and schedule of admissions of Superspeciality was also communicated in this behalf. The learned counsel also referred to the letter dated 14th May 2003 issued by Ministry of Health and Family Welfare to all Government and Universities, which is produced at page No. 162. The said letter clearly provides the process for admission in unaided professional institutions and time schedule for completion of the admission process for medical and dental, courses which is a page No. 176 of the paper book.
40.4 Even the communication dated 19th November 2003 issued by MCI to all all Registrars/Vice Chancellors of all the Universities and communication dated 13th January 2004 issued by MCI to all Universities and Government, which is produced at page No. 183, another communication dated 3rd February 2004 issued by MCI, which is on page No. 185, communication dated 16th March 2004 issued by MCI to all Medical Colleges, Universities and Government which is on page No. 187 in this behalf. After referring to all the documents, he has indicated that the MCI was very vigilant to fix the time schedule and from time to time communicated to all the Universities and Government to adhere to schedule fixed by the MCI on the basis of the judgment of the Hon'ble the Apex Court. The learned counsel submitted that, therefore, this Court may not pass any order, contrary to directions issued by MCI, which is based on the judgment of the Hon'ble the Apex Court. The learned counsel further submitted that even in past, certain medical colleges have asked for the extension, but the said extension was also rejected by Hon'ble the Supreme Court and, therefore, in this petition also, the petitioners have asked nothing but extension of time schedule of examination, which is not permissible under the law and this Court may not grant the said prayer of the petitioner in this behalf.
40.5 Mr. D.C. Dave, learned advocate for University states that he has adopted the arguments of MCI in view of the judgment of the Supreme Court.
41. I have considered the submissions made by the petitioner as well as submissions made by MCI. I have considered Entry 66 of List I as well as Entry 25 of List III, of the Constitution of India. I have also considered provisions of MCI Act, and Regulations framed thereunder, the judgment of the Apex Court in the case of State of Kerala Vs. T.P. Roshna, the judgment of in the case of MCI Vs. State of Karnataka, judgment in the case of Dr. Preeti Srivastava Vs. State of M.P., judgment of the Hon'ble the Supreme Court in the case of State of Punjab Vs. Dayanand Medical College, judgment in the case of Madhya Pradesh & Ors. Vs. Gopal D. Tirthani & Ors., judgment in the case of Dr. Harish Verma Vs. Dr. Ajay Srivastava, then Madhu Singh's case, and Islamic case. I have also considered various communications referred by the learned Advocate General, issued by the MCI from time to time. It may be noted that all these things shows one thing that the Hon'ble the Supreme Court was of the view that there must be uniformity in the admission, education and final examination in the medical profession and there must be continuity in this behalf. The Hon'ble the Supreme Court was very anxious to see that all the colleges impart medical education in its proper perspective and the merit and excellence has to be achieved in medical profession. In view of the same, the Hon'ble the Supreme Court has given clear directions from time to time and MCI communicated to all the Universities and Government from time to time to adhere to the said schedule. If the colleges or Universities or the State Government had any difficulty earlier, they ought to have approached the Hon'ble the Supreme Court and tried to clarify the difficulties. After the order of the Supreme Court, which has been reflecting in the communication of MCI, it will not be possible for this Court to give any relief to the petitioners in connection with modification of the examination in this behalf. Here, the petitioners desired that they will able to complete their intership somewhere in August/September 2004 and they can join PG Course only after that, that is not permissible in view of the tight schedule given by MCI in this behalf. So the prayers which have been asked for by the petitioner, which ultimately this Court has to grant, the same will be contrary to and inconsistent with the judgment of the Hon'ble the Supreme Court in Madhu Singh's case and Islamic Academy's case and other cases. It may be noted that the learned counsel for MCI has pointed out that in past some of the colleges have certain difficulties and they have tried to approach the Hon'ble the Supreme Court for modification of the time schedule. The Hon'ble the Supreme Court has rejected the same and order of the Hon'ble the Supreme Court has been pointed out before me on page No. 177 dated 27.10.2003, on page 179, order dated 29.10.2003 in the Case of M.N.R. Medical College & Hospital Vs. Union of India and also in the case of Share Medical Care order dated 29.10.2003. In view of this, orders, it will not be possible for This Court to accept the contentions of the petitioners in this behalf.
42. It may be noted that as the Gujarat University has decided to have entrance examination in month of May 2004 and in that case also, some of the petitions were filed before this Court, some of the students were to complete their PG course only in August 2004 and question arose as to whether this students can be entitled to appear in examination to be held in the month of May 2004 or not. Some of the writ petitions were filed before this Court also. Ultimately, in the matter of one Mr. Patel Kavesh Jashubhai & Ors. Vs. Union of India & Ors., writ petition No. 128 of 2004 before Hon'ble the Supreme Court, in that matter also, the issue was almost identical. There also, some of the students could not be able to appear in examination to be scheduled in the month of May, they have also referred to the list of petitioners, who were to complete terms in August/September 2004. Copy of the relevant abstract of Residency Rules of Government of Gujarat and the Medical Council communication which I have referred earlier in this behalf. There the University has also addressed letter to MCI and petitioners also addressed letters to University. In that case, ultimately, the petitioner prayer for appropriate writ as this Hon'ble Court may deem fit to issue, direct the respondents to appropriately modify/amend the policy guidelines dated 14.05.2003 and letter of MCI dated 31.10.2003/01.11.2003 in so far as the last date for making admissions to Postgraduate course for the Gujarat University in this Academic year i.e. 2004-05 is concerned and it was further prayed that by an appropriate writ, order of direction in the nature of mandamus or such other writ as this Hon'ble Court should deem fit in the facts of the case to be issue direct the respondents to fix 30th September 2004 as the last date for making admissions to the Post Graduate Medical Course for Gujarat university for this year i.e. 2004-2005. This petition was filed on 27th February 2004. The said matter was listed before Hon'ble the Supreme Court and the Hon'ble the Supreme Court has dismissed the same and passed order "dismissed on merits".
43. I have referred to my conclusion in earlier paragraphs and referred to the judgment of the Apex Court in Madhu Singh's case, Islamic case and other cases also. I have also referred communications of MCI. I have also referred to the judgment of the Apex Court, where the extension was prayed, which was rejected on 29th October 2003. I have also referred to now the order of the Hon'ble the Supreme Court in Gujarat University Case, which has been referred earlier and there also, identical prayer, prayed before this Court, were prayed before Hon'ble the Supreme Court and the Supreme Court has dismissed the same on 29-3-2004.
44. In view of the aforesaid discussions and contentions, in my view, it will not be open for this Court to give any relief to the petitioner in this behalf. Because, the judgment of the Hon'ble the Supreme Court in Madhu Singh's case and Islamic case and other cases referred by the MCI are binding on me. Not only that, subsequent order of the Hon'ble the Supreme Court dated 29th October 2003 and the recent order of the Supreme Court in Gujarat University case also and also in the matter of Patel Kavesh Jashubhai, Writ Petition No. 128 of 2004, in which same reliefs have been prayed for, which have been rejected by the Hon'ble the Supreme Court. In view of this, it will not be possible for this Court to grant any relief to the petitioners. In view of this, the petition is dismissed. Rule is discharged with no order as to costs.
45. Before I part with this judgment, I would like to observe that what is meant by education is as under:
"Education has been called the technique of transmitting civilization. In order that it may transmit civilization, it has to perform two major functions: it must enlighten the understanding, and it must enrich the character."
The two marks of a truly educated man, whose understanding has been enlightened, are the capacity to think clearly and intellectual curiosity."
"Re: Nani Palkhivala, Selected Writings in the Article "The Treason of the Intellectual" page 191 relevant page 192}.