Madras High Court
D.Parasuraman vs The Government Of India on 11 January, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2012 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.7718 to 7720 of 2007 D.Parasuraman ... Petitioner in W.P.No.7718/2007 T.V.Murugesan ... Petitioner in W.P.No.7719/2007 G.R.Shantha ... Petitioner in W.P.No.7720/2007 vs 1.The Government of India represented by the Secretary to Government Health Department, New Delhi. 2.Medical Council of India Aiwan-E-Galib Marg, Kotla Road, Opp. Mata Sundari College (for Women) New Delhi 110 002. represented by its Secretary ... Respondents in all W.Ps. Prayer in W.P.No.7718 of 2007: Writ Petition filed under Article 226 of Indian Constitution praying to issue a Writ of Mandamus declaring that M.Sc. (Microbiology) with M.B.B.S is sufficient qualification for being posted as Professor/Head of the Department of Microbiology in any Private Medical College in India. Prayer in W.P.No.7719 of 2007: Writ Petition filed under Article 226 of Indian Constitution praying to issue a Writ of Mandamus declaring that M.Sc. (Physiology) with M.B.B.S is sufficient qualification for being posted as Professor/Head of the Department of Physiology in any Private Medical College in India. Prayer in W.P.No.7720 of 2007: Writ Petition filed under Article 226 of Indian Constitution praying to issue a Writ of Mandamus declaring that M.Sc. (Physiology) with M.B.B.S is sufficient qualification for being posted as Professor/Head of the Department of Physiology in any Private Medical College in India. For Petitioner : Mr.V.Selvaraj (in all W.Ps.) For Respondents : Mr.M.L.Ramesh (R1) Mr.V.P.Raman (R2) C O M M O N O R D E R
The three petitioners have come forward to file these Writ Petitions seeking for a direction in the nature of Writ of declaration declaring that the qualification possessed by them was sufficient to hold the post of Professor/Head of Department in the respective departments in the respective Private Medical College, in which they are working.
W.P.No.7718 of 2007 is filed by the petitioner, who is working in the Meenakshi Dental College, Alapakkam, for a prayer that the qualification of M.Sc. (Microbiology) with M.B.B.S is a sufficient qualification for holding the post of Professor/Head of the Department of Microbiology.
W.P.No.7719 of 2007 is filed by the petitioner, who is working in the Institute of Road Transport, Perundurai Medical College, seeking for a declaration that M.Sc. (Physiology) with M.B.B.S degree is a sufficient qualification for holding the post of Professor/Head of Department of Physiology in the medical college.
The petitioner in W.P.No.7720 of 2007 is employed in Pondicherry Institute of Medical Science as a Professor of Physiology and she wants a declaration that the possession of M.Sc. (Physiology) with M.B.B.S is a sufficient qualification to hold the post of Professor/Head of the Department of Physiology in any Private Medical College in India.
2. These three Writ Petitions were admitted on 01.03.2007. Pending the Writ Petitions, no interim relief was sought for. On notice from this Court, the Medical Council of India has filed a counter affidavit labeled as short reply affidavit dated 14.09.2007.
3. The contention made by the petitioners was that earlier the association teaching staff with M.Sc. working in the faculty of medicine for Science graduates in Tamil Nadu Medical Service which is the registered society with registration No.34/77 filed a Writ Petition before this Court being W.P.No.3360 of 1988 seeking for the prayer to set aside the Government order dated 19.10.1987 and to refix their salary in the post of non-medical assistant professors working under the Tamil Nadu Medical Service. The said Writ Petition consequent upon the constitution of the Tribunal was transferred to the State Administrative Tribunal and taken up as T.A.No.475 of 1991. That transfer application was disposed of by an order dated 13.04.1994. In that order in the absence of candidates being available for non-clinical categories a direction was given to treat them as if they are having qualification for holding the post and also to revise the salary. Aggrieved by the same, the State filed a SLP before the Supreme Court in SLP Nos.344 and 345 of 1995.
4. The Supreme Court at the admission stage dismissed the SLPs on 07.12.1995. It was also contended by them that the possession of M.Sc degree with M.B.B.S is a sufficient qualification for holding the post of Professor/Head of the Department and the respondents cannot refuse to approve their qualifications as not sufficient for aiding the department.
5. On notice from this Court in the counter affidavit filed by the Medical Council of India it was stated that even if a person by virtue of a Tribunal order is entitled to the post of Assistant Professor that by itself will not enable the person for further promotion to the post of Professor/Head of the Department of the said subject. It is further stated that only to the extent of 30% in Microbiology department if suitable persons with medical degrees were not available, candidates with non-medical degrees will be appointed. Only for a limited purpose, M.Sc in microbiology or M.Sc. Phsiology as the case may be, (which is a non-medical subject) are eligible for appointment. For any higher post by way of promotion candidates must have M.Sc and Ph.D degree both from the medical faculty in the subject as per the regulations framed by the Medical Council of India known as the Medical Council of India Teachers Eligibility Qualification Regulation. It was contended that the Medical Council of India alone has jurisdiction to frame the regulations. With reference to qualifications for various teaching post in the medical colleges and any other direction or order passed which are inconsistent with the regulation framed by the Medical Council of India will be void and inoperative. In this context, the reference was also made to the judgment of the Supreme Court in the following cases:-
(i) State of Punjab Vs. Dayanand Medical College (2001) 8 SCC 664.
(ii) State of Madhya Pradesh & Ors Vs. Gopal D.Tirthani & Ors. (2003) 7 SCC 83.
(iii) Dr.Harish Verma Vs. Dr.Ajay Srivastava (2003) 8 SCC 69.
for the purpose of contending that the regulation framed by the Medical Council of India are binding on all authorities. It is also stated that the regulation framed by the Medical Council of India in the year 1998 with reference to the qualification required reads as follows:
"In the Department of Anatomy, physiology, Biochemistry, Pharmacology and Microbiology, non medical teachers may be appointed to the extent of 30% of the total number of posts in the Department. A non-medical approved medical M.SC. qualification for appointment as lecturers in the subject concerned but for promotion to higher teaching posts, a candidate must acquire the Ph.D. Degree in the subject ...... However, the department of Biochemistry, non medical teachers may be appointed to the extent of 50% of the total number of posts in the Department."
6. For the purpose of Professor in microbiology, the qualification is as follows:
MICROBIOLOGY (A) Professor M.D. (Bacteriology)/ M.D (Microbiology)/ MBBS with M.Sc. (Med-Bacteriology)/ M.Sc. (Med. Microbiology)/ Ph.D (Med-Bacteriology)/ M.Sc. (Med.-Bect.) with Ph.D.
(i) As reader/ Associate professor in Microbiology for four years in a recognized medical college.
(Med- Bacteriology)/ M.Sc. (Med-Bacteriology) with D.SC (Med.-Bacteriology)/ M.Sc. (Med-Microbiology) with Ph.D (Med. Microbiology)/ M.Sc. (Med. Microbiology) with D.Sc. (Med. Microbiology) Desirable
(ii) Minimum of four research publications indexed in index medicus/ national/ Journal and one research publications in international journal.
7. It was further contended that the Supreme Court in the jugment reported in (1999) 7 SCC 120 [Dr.Preeti Srivastava v. State of M.P. and others] had categorically held that any regulation made by any other authority which are repugnant to Medical Council of India regulation are not valid and the Medical Council of India in terms of Entry 66 List I Schedule VII of the Constitution alone can frame such regulation. Therefore, they prayed for dismissal of the Writ Petition.
8. In this context, reference was made to the judgment of the Tribunal for which reliance was placed upon in T.A.No.475 of 1991. There was no reference to any regulation framed by Medical Council of India which is occupying the field. In the absence of it the Tribunal without deciding the matter in a large canvass and found it was only an ordinary service matter. In the basis of it, no relief can be granted to the petitioners. Though it was contended that the Government of India, Ministry of Health and Family Welfare by a communication dated 25.03.2008 had addressed to the Universities and Health Secretaries of various Government stating that the persons who are appointed in the pre-clinical specialties such as Anatomy, Bio-chemistry, Physiology etc., on the basis of the experience and qualification prescribed under the Medical Council of India Regulations, 1971, will be allowed to function as medical teachers and will be granted further promotion even though they do not fulfill the Medical Council of India Regulations, 1998.
9. This Court is unable to agree to give a direction for implementation to the above extent. The said communication is relevant for the purpose of their continuance in service but so far as Medical Council of India Regulations, 1998 is concerned, the same has prescribed the specific qualification for holding the post of Professor/Head of the Department. The attempt made by the petitioners seeking for a declaration from this Court is clearly impermissible. On the contrary, in a latest judgment, a Division Bench of this Court presided by the Honourable Chief Justice Mr.M.Y.Eqbal vide judgment dated 16.11.2011 in the case of The Tamil Nadu Dr.M.G.R.Medical University, Rep. by its Registrar, Chennai-32 Vs The Controller of Examinations, The Tamil Nadu Dr.M.G.R.Medical University, Rep. by its Registrar, Chennai-32 dealt with the scope of Medical Council of India regulations vis-a-vis the university regulation framed by Dr.M.G.R University and after reviewing various previous case laws on the subject, in paragraph Nos.36 and 41, it was observed as follows:
"36. Thus, the Hon'ble Supreme Court held that by prescribing eligibility criteria for admission to institution of higher education, the State/University cannot lower the norms laid down by the Central body and prescribing higher standards for admission by laying down qualification in addition to or higher than prescribed by the Central body will not be considered to adversely affect the standards laid down by the Central body.
41. In view of the above, we have no hesitation to hold that the impugned guidelines issued by the appellant University is inconsistent with Regulation 12(4) of the MCI Regulation and the same cannot be stated to be prescribing higher standards. Accordingly question No.1 is decided against the appellant University."
10. In the light of the same, the prayer made by the petitioners cannot be countenanced by this Court. Hence, these Writ Petitions stand dismissed. No costs.
11.01.2012 Index:yes/no Internet:yes/no nvsri/gm To
1.The Secretary to Government Health Department, New Delhi.
2.The Secretary, Medical Council of India Aiwan-E-Galib Marg, Kotla Road, Opp. Mata Sundari College (for Women) New Delhi 110 002.
K.CHANDRU, J.
nvsri/gm W.P.Nos.7718 to 7720 of 2007 11.01.2012