Punjab-Haryana High Court
Dr.Arunpreet Kaur And Others vs Managing Director on 30 August, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.22043 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.22043 of 2011
DATE OF DECISION: AUGUST 30, 2012
Dr.Arunpreet Kaur and others .......Petitioners
Versus
Managing Director, Punjab Health Systems Corporation, Phase-VI,
Mohali and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.GS Chahal, Advocate for the petitioners.
Mr.Girish Agnihotri, Senior Advocate with
Mr.Arvind Seth, Advocate for State of Punjab.
Mr.Deepak Sibal, Advocate for respondent No.2.
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TEJINDER SINGH DHINDSA, J.
The Directorate of Health and Family Welfare Punjab issued a public notice dated 26.7.2011 inviting applications from the eligible candidates for recruitment to various posts in the Health Department including 518 posts of Medical Officers (MBBS). The qualifications and other details prescribed for the post were as under:
CIVIL WRIT PETITION NO.22043 of 2011 22) Medical 15600- 1. M.B.B.S.Degree 518
Officer 39100+5400 from an institution General - 259 (MBBS) G.P. recognized by the Medical Council of SC (M&B) - 53 India. SC (R&O) - 51
2. Registered with BC - 50 the Punjab Medical Council or with PH - 16 any duly Gen. (ESM)- 37 constituted SC (ESM) (M&B)-9 Medical Council in India. SC (ESM)(R&O)-11 BC(ESM)-12 Gen.(Sports)-10 SC(Sports)(M&B)-3 SC(Sports)(R&O)-2 Freedom Fighters-5
2. The eligible applicants were required to submit applications online upto 20.8.2011. The last date was thereafter extended till 19.9.2011. The criteria for recruitment for the post of Medical Officer (MBBS) was laid down in the following terms:
Written Test 95 marks Rural Background 5 marks
3. Still further, the advertisement clearly stipulated that the Department does not have any mechanism to check the certificates of the candidates who are applying online and if at any stage, the certificate of the candidate is found fictitious/bogus or is ineligible, the candidature of such candidate would be cancelled.
4. The petitioners assert that they were eligible in terms of the eligibility conditions as regards possessing the basic and professional qualifications prescribed in the advertisement and had duly applied for the post of Medical Officer (MBBS) online prior to the last date stipulated for the same. The grievance of the petitioners is that inspite of having appeared in the written CIVIL WRIT PETITION NO.22043 of 2011 3 examination and having secured sufficiently high merit, they are being denied their vested right for consideration for appointment to the post of Medical Officer (MBBS) by the respondent- authorities.
5. On the other hand, the stand of the respondent- Department in terms of counter reply filed by the Director, Health Services Punjab, respondent No.3 is to the effect that the petitioners only possessed the provisional MBBS Pass certificate and, accordingly, had been granted provisional registration by the State Medical Council and on account of the petitioners still undergoing compulsory rotational internship, they cannot be considered as eligible candidate for purposes of appointment to the post of Medical Officer (MBBS).
6. I have heard Mr.GS Chahal, Advocate for the petitioners, Mr.Girish Agnihotri, Senior Advocate with Mr.Arvind Seth, Advocate for the State and Mr.Deepak Sibal, Advocate for the Medical Council of India, respondent No.2 at length.
7. Learned counsel appearing for the petitioners would vehemently contend that all the petitioners are MBBS qualified Doctors inasmuch as they have qualified the four years' MBBS examination and had been provisionally registered with the Punjab Medical Council. In support of such assertion, learned counsel would refer to the Attempt Certificate issued in respect of all the petitioners which was reflective of the fact that the petitioners had qualified the MBBS Ist Professional, 2nd Professional, final Professional Part-I and final Professional Part-II. Also appended along with the petition was the provisional Medical CIVIL WRIT PETITION NO.22043 of 2011 4 Practitioner Certificate issued by the Punjab Medical Council. Even though, it has been conceded that the petitioners at the time of submitting their applications for the post in question were still undergoing the internship, yet learned counsel would argue that there was no stipulation of having completed the internship in the advertisement dated 26.7.2011. Accordingly, it has been contended on behalf of the petitioners that they all possessed the basic and professional qualifications in terms of the stipulation in the advertisement i.e. they possessed an MBBS degree from an Institution recognized by the Medical Council of India and they were registered either with the Punjab Medical Council or with a duly constituted Medical Council in India.
8. As such, the first question that arises for determination by this Court is as to whether the Attempt Certificate/provisional MBBS Pass Certificate possessed by the petitioners coupled with the provisional registration with the Punjab/Approved Medical Council could be construed as eligible qualifications in terms of the basic and professional qualifications prescribed in the advertisement dated 26.7.2011 for the post of Medical Officer (MBBS)?
9. It would be apposite to notice at the very outset that learned counsel for the petitioners has conceded that the basic and professional qualifications prescribed in the advertisement dated 26.7.2011 for the post of Medical Officer (MBBS) are, in fact, the statutory qualifications inasmuch as it is the same very qualifications that are prescribed under the statutory rules governing the post of Medical Officer.
CIVIL WRIT PETITION NO.22043 of 2011 5
10. The issue as regards eligibility of the petitioners would require examination in the backdrop of the statutory provisions contained in the Indian Medical Council Act, 1956 (hereinafter referred to as '1956 Act'). Sections 15 and 25, sub clause (2) would be relevant and the same read in the following terms:
"15. RIGHT OF PERSONS POSSESSING QUALIFICATIONS IN THE SCHEDULES TO BE ENROLLED.
1. Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
2. Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register:-
a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
b) shall practice medicine in any state;
c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;
d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine.
3. Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees, or with both."
"25. PROVISIONAL REGISTRATION
1. [................] CIVIL WRIT PETITION NO.22043 of 2011 6
2. A person who has passed the qualifying examination of any university or Medical Institution in India for the grant of a recognized medical qualification shall be entitled to be registered provisionally in a State Medical Register for the purpose of enabling him to be engaged in employment in a resident medical capacity in any approved institution, or in the Medical Service of the Armed Forces of the Union, and for no other purpose, on production of proper evidence that he has been selected for such employment."
11. Still further, the nature and scope of the powers and functions of the Medical Council of India which is a body constituted under the provisions of the 1956 Act has been examined by the Hon'ble Apex Court on a number of occasions and it is by now well recognized that the MCI is an expert body to control the minimum standards of medical education and is further empowered to prescribe the minimum standards of medical education. Medical Council of India has framed regulations for the award of MBBS Degree as also regarding registration under the title "Regulations on Graduate Medical Education, 1997" (for short to be referred as '1997 Regulations'). The relevant extract of Regulation 7 and Regulation 14 of the 1997 regulations framed by the MCI would also be relevant and the same read as under:
"Regulation 7: Every student shall undergo a period of certified study extending over 4-1/2 academic years divided into 9 semesters (i.e. of 6 CIVIL WRIT PETITION NO.22043 of 2011 7 months each) from the date of commencement of his study for the subjects comprising the medical curriculum to the date of completion of the examination and followed by one year compulsory rotating internship. Each semester will consist of approximately 120 teaching days of 8 hours each college working time, including one hour of lunch."
14. INTERNSHIP (5) OTHER DETAILS xxx xx xx xx
(ii) Every candidate will be required after passing the final MBBS examination to undergo compulsory rotational internship to the satisfaction of the College authorities and University concerned for a period of 12 months so as to be eligible for the award of the degree of Bachelor of Medicine and Bachelor of Surgery (MBBS) and full registration.
(iii) The University shall issue a provisional MBBS pass certificate on passing the final examination.
(iv) The state Medical Council will grant provisional registration to the candidate on production of the provisional MBBS pass certificate. The provisional registration will be for a period of one year.............. (6) ASSESSMENT OF INTERNSHIP
i) ..........Based on the record of work and date of evaluation, the Dean/Principal shall issue certificate of satisfactory completion of training, following which the CIVIL WRIT PETITION NO.22043 of 2011 8 University shall award the MBBS Degree or declare him eligible for it."
12. A conjoint reading of the statutory provisions re- produced hereinabove would clearly bring out that MBBS Pass candidates without undergoing internship do not get the right to be enrolled on the State Medical Register. It is only upon enrolment on a State Medical Register that a Medical Practitioner is vested with a right to hold office as a Physician or Surgeon or any other office (whatever designation called in the Government). Still further, in terms of Section 25 of the 1956 Act, the provisional registration in a State Medical Register is only for the purpose of enabling such Medical Practitioner to be engaged in employment in a resident medical capacity in any approved Institution (for purposes of internship) or in the Medical Service of the Armed Forces of the Union and for no other purpose.
13. Regulation 7 of the 1997 Regulations framed by the MCI stipulate a period of study pertaining to the MBBS Course relating to 4-1/2 academic years divided into nine semesters followed by one year compulsory rotating internship. Regulation 14 further crystalises the matter wherein it is envisaged that every candidate would be required upon passing the final MBBS Examination to undergo the compulsory rotational internship so as to be eligible for the award of the Degree of Bachelor of Medicine and Bachelor of Surgery (MBBS) as also full registration. Regulation 14 also mandates that the concerned University shall issue a provisional MBBS pass certificate upon the candidate passing the final examination and the concerned State Medical CIVIL WRIT PETITION NO.22043 of 2011 9 Council will grant provisional registration to a candidate on production of the provisional MBBS Pass Certificate.
14. In the light of the statutory provisions noticed above, it is held that the petitioners at the time of submission of their applications for the post of Medical Officers (MBBS) in pursuance to the advertisement dated 26.7.2011 did not possess the MBBS Degree and were not registered with the Punjab Medical Council or with any other duly constituted Medical Council in India. At the time of submission of their applications, the petitioners merely possessed a provisional MBBS Pass Certificate/Attempt certificate and had been granted provisional registration which was only for the purpose to facilitate their undergoing compulsory rotational internship. The compulsory rotatory internship is an integral part of the MBBS Degree. Without rotatory internship, the qualification of MBBS is incomplete. This view is further fortified from the fact that the petitioners upon completion of their compulsory rotational internship in the month of December, 2011 were awarded the MBBS Degree in the first week of January, 2012 and thereafter stood permanently registered with the Punjab Medical Council in the months of January/February, 2012.
15. Learned counsel appearing for the petitioners has then raised a submission that the petitioners having qualified their written examination and the appointments to the post of Medical Officer (MBBS) having still to be effected, the petitioners could not be treated as ineligible inasmuch as after the submission of their applications, but prior to the appointments being made for the post in question, the petitioners have as a matter of fact CIVIL WRIT PETITION NO.22043 of 2011 10 completed their compulsory rotatory internship, have been awarded the MBBS Degree and also stand permanently registered with the Punjab Medical Council.
16. Such submission is being noticed only to be rejected. The stipulation in the advertisement dated 26.7.2011 in response to which the petitioners had applied was categoric in the following terms:
"The qualification of candidates should be prior to the last date of filing the applications."
The question of acquiring eligibility as on the last date of submission of application forms as stipulated in the advertisement is no longer res-integra. There is no dispute as regards the fact that for purposes of recruitment to the post of Medical Officer (MBBS), the last date stipulated in the advertisement for submission of application forms was 19.9.2011. The requirement in law would be for the petitioners to have possessed the basic and professional qualifications prescribed for the post in question upto the last date i.e. 19.9.2011.
17. The Hon'ble Supreme Court in the case of Bhupinderpal Singh and others v. State of Punjab, 2000(2) SCT 826 considered a similar question in respect of acquiring eligibility. It was held that where the cut-off date for acquiring the eligibility is prescribed under the statutory rules, the same shall prevail and where no cut-off date is mentioned in the rules, the cut-off date notified in the advertisement is to be treated as the date for acquiring eligibility and in the absence of any such stipulation in the statutory rules or advertisement, the last date CIVIL WRIT PETITION NO.22043 of 2011 11 for receipt of applications is to be considered as the date for acquiring eligibility. Relying upon a number of judgments, the Hon'ble Supreme Court had observed as under:
"Placing reliance on the decisions of this Court in Ashok Kumar Sharma Vs. Chander Shekhar & Anr. JT 1997 (4) SC 99; 1997(2) SCT 208 (SC); A.P. Public Service Commission Vs. B. Sarat Chandra & Ors. 1990 (4) SLR 235; The Distt. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram and Anr. Vs. M. Tripura Sundari Devi 1990 (4) SLR 237; Mrs. Rekha Chaturvedi Vs. University of Rajasthan & Ors. JT 1993 (1) SC 220; Dr. M.V. Nair Vs. Union of India & Ors. 1993 (2) SCC 429; and U.P. Public Service Commission, U.P., Allahabad & Anr. Vs. Alpana JT 1994 (1) SC 94, the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is CIVIL WRIT PETITION NO.22043 of 2011 12 therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice."
18. At this stage, Mr.GS Chahal, learned counsel for the petitioners has also raised a plea of discrimination in terms of adverting to the pleadings in the writ petition to contend that the Union Public Service Commission, Central Government and the Employees State Insurance Corporation (ESIC) while advertising the posts of Medical Officers have not insisted upon the condition as regards completion of internship is concerned. I find such submission to be wholly mis-placed. Learned counsel would concede that the stipulation as regards completion of internship to be required only at the time of appointment is a stipulation that was contained in the advertisement issued by such authorities. The same would have no relevance in the facts of the present case as the present petitioners had applied in response to the advertisement dated 26.7.2011 and would be clearly bound in terms of the conditions of eligibility/qualifications as mentioned therein. The question of parity does not arise at all.
19. For the reasons recorded above, I find no merit in the writ petition and the same is, accordingly, dismissed.
( TEJINDER SINGH DHINDSA )
August 30, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No