Punjab-Haryana High Court
Medical Council Of India vs Union Of India Etc on 13 February, 2009
Author: Nirmaljit Kaur
Bench: Ashutosh Mohunta, Nirmaljit Kaur
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CASE NO.: CWP No.4698 CAT of 2004
DATE OF DECISION : 13 February,2009
MEDICAL COUNCIL OF INDIA .......PETITIONER
VERSUS
UNION OF INDIA ETC.
......RESPONDENTS
CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
PRESENT: Mr. Gurminder Singh, Advocate
for the petitioner.
Mr. Namit Kumar, Advocate
for respondent No.3.
Mr. Vinod S. Bhardwaj, Advocate
for respondent No.5.
Mr. R.K. Sharma, Advocate
for respondent No.6.
Mr. D.S. Patwalia, Advocate
for respondent No.10.
NIRMALJIT KAUR, J.
These seven writ petitions are almost identical on facts and on points of law. Thus, they are being disposed of by a common judgment.
For the purpose of this judgment, the facts mentioned in Writ Petition No.4698-CAT of 2004 are being noticed. Dr. Nalini Agnihotri- respondent No.6 was appointed as Senior Lecturer (Microbiology) on contract basis vide appointment letter dated 18-03-1997. At that time, there were no recruitment rules. Hence, the Punjab Medical Education Rules, CWP No.4698 CAT of 2004 -2- 1978 were adopted for the appointment to the post of Senior Lecturer (Microbiology). The qualifications prescribed for the appointment as Senior Lecturer in accordance with the 1978 Rules were followed. The eligibility criteria as prescribed in the 1978 Punjab Rules and also mentioned in the advertisement of February, 1977 in pursuance to which, the petitioner applied, was as follows :-
"Qualifications; Essential : For non-medical Candidates :
(i) Postgraduate degree in the subject concerned i.e. M.Sc./Ph.D/D.Sc. or equivalent.
(ii)3 years experience in the concerned speciality as Lecturer / Registrar / Sr. Resident /Demonstrator/ equivalent in a Recognized Medical College/Teaching Institution after the requisite postgraduate degree qualification in the concerned speciality."
The respondent No.6, being fully eligible was appointed vide Memo dated 18-03-1997. After the appointment of respondent No.6, one post of Senior Lecturer (Microbiology) on regular basis was advertised vide Advertisement dated 26-04/02-05-1997 in an Employment News with the following qualifications :-
"(i) A recognised medical qualification included in the first or the Second schedule or Part II of the third Schedule (Other than Licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of educational qualifications included in Part-II of the Third Schedule should also fulfill the conditions stipulated in sub-section (3) of Section 13 of the IMC Act, 1956.
OR M.Sc. (medical Microbiology) from a recognised University or equivalent.
CWP No.4698 CAT of 2004 -3-
(ii)M.D. (Bacteriology)/M.D (Microbiology)/M.D. (Bacteriology with Pathology), M.D. (Pathology & Bacteriology or equivalent Or Ph.D (Medical-
Microbiology) from recognised University.
(iii)Three years' teaching experience in the concerned speciality as Lecturer/Registrar/or Research Asstt. in a teaching Institution after acquiring the post graduate qualification in the concerned speciality/subject." Respondent no.6 applied against the said post but was not called for interview which was held on 13-10-1997. However, there was no selection in pursuance to this advertisement and hence, the same elapsed. Meanwhile, respondent No.6 continued to be appointed on contractual appointment from time to time which continued to be extended as such upto 30-09-2003. Again two posts of Senior Lecturer were advertised through UPSC on 27-04-2002. The respondent applied. However, she was not called for the interview as apprehended. The reason for not calling her for interview was that she was considered ineligible on account of the word "medical" in the said advertisement. It finally came to light that the addition of the word "medical" meant that M.Sc. in Microbiology should be from a Medical Institute. Somewhat similar is the case of other respondents.
Aggrieved with the same, the respondent No.1 and other respondents filed different O.As with following prayers :-
(i) for declaration that their appointment was regular which was made on the basis of one time method of recruitment and on the basis of clarification.
(ii)For direction to withdraw the requisition sent to the Union Public Service Commission, advertising the post manned by the respondents or in the alternative to consider their CWP No.4698 CAT of 2004 -4- candidature for treating them as eligible and without applying the embargo of word `medical' for possessing M.Sc. qualification from the Medical Institute.
The said O.A. was allowed by the Central Administrative Tribunal vide its order dated 13-10-2003 with the following observations :-
" that the advertisement which laid down M.Sc.
(Medical Microbiology) / M.Sc. (Medical Biochemistry) as the minimum required qualification, in the absence of such degrees being awarded by several institutions in this country, was a nugatory and deserves to be quashed. Although the applicants did not have an automatic right to be regularised or to be appointed as regular Sr. Lecturers, they are definitely eligible for being considered for appointment for the posts of Sr. Lecturers (Microbiology) or Sr. Lecturers (Biochemistry), We, therefore, allow these Oas, quash advertisement No.8, A-1, insofar as it pertains to the posts of Senior Lecturers in Microbiology and Bio chemistry as also the letters of MCI/UPSC requiring that such degrees be obtained from a medical college, as being unfair and without any logical basis. The respondents are directed to hold the selection afresh as if the three applicants are eligible, as far as their educational qualifications are concerned, for such appointment, without any prejudice to the fact that they filed these Oas against the MCI/UPSC."
Mr. Gurminder Singh, learned counsel for the petitioner vehemently argued that the Medical Council
of India in exercising of its powers under Section 33 of the M.C.I. Act, 1956 has formulated `Medical Council of India Minimum Qualifications for teachers in Medical Institutes, Regulations CWP No.4698 CAT of 2004 -5- 1998'. Hence, after coming into force the said regulation on 05-12-1998, any appointment of teachers in a Medical Institute/College in the country is to be made only if the minimum qualifications prescribed by the said regulations are fulfilled. It was further submitted that since the advertisement for the post of Sr. Lecturer in various subjects is of dated 27-04-2002, regulation of the year 1998 would apply and the requirement for academic qualifications as provided under table 1 of the Medical Council of India i.e. the `Minimum Qualifications for Teachers in Medical Institutes, Regulations 1998' would have to be fulfilled for appointment to the said post i.e. the minimum qualification for the post of Sr. Lecturer in a Medical College for the subject of Microbiology/Bio-Chemistry as M.Sc. (Medical degree) obtained from a Medical College. It was further submitted that while deciding upon the points and controversy, the Central Administrative Tribunal has erroneously recorded a finding that since the minimum required qualification for appointment to the post of Sr. Lecturer is not being awarded by most of the Medical Institutes/Colleges in the Country, the said qualification/degree was a nugatory. Moreover, even if the prescribed qualification of M.Sc. Medical (Microbiology) and M.Sc. in Medical (Biochemistry) instead of M.Sc. Microbiology and M.Sc. Biochemistry is considered to have been rightly held a nugatory, the Central Administrative Tribunal has erred in holding a particular class of candidates as eligible. It was further argued that the Tribunal while holding that the respondents did not have a right to be automatically regularised or to be appointed as regular Sr. Lecturer, erred in directing the MCI/UPSC to consider the application of the respondents and hold the selection afresh after considering them eligible for the appointment to the post of Sr. Lecturer.
CWP No.4698 CAT of 2004 -6-
In the end, it was submitted that the Hon'ble Supreme Court had, on various occasions disapproved the practice of judicial interference in matters relating to academic standards. Thus, the Sr. Lecturer in a Medical College for the subject of Microbiology/Bio Chemistry should have M.Sc. (Medical degree) in the concerned subject obtained from a Medical College.
Learned counsel for the parties were heard at length. There is no dispute with the above proposition of law. It is the prerogative of the Medical Council of India to prescribe qualification and the Court should normally not interfere in the matter of prescribing qualification. There is also no dispute that this proposition stands settled in various judgments of the Hon'ble Supreme Court, rendered in the case of MCI Vs. State of Karnataka (1998) 6 SCC 131 and Dr. Preeti Srivastava Vs. State of M.P. & Others (1999) 7 SCC 120. MCI Vs. Sarang (2001) 8 SCC 427; Dental Council of India Vs. Subharti K.K.B. Charitable Trust (2001) 5 SCC 486, M.P. Srivastava v. Suresh Singh (1977) 1 SCC 627. However, we are not able to agree with the learned counsel for the petitioner on account of the facts of this case.
On the facts narrated above and also taking into account the arguments raised by learned counsel for parties, the following admitted facts have emerged :-
(a) There were no rules and the Punjab Medical Education Clause (i) Rule 1971 were being followed.
(b) All the contesting respondents qualified their M.Sc degrees from Non Medical Institute, but Ph.D from Medical Institute i.e. PGI in the year 1992-93 and all of them were eligible and were appointed as teachers under the 1971 Regulations.
(c) The contesting respondents rendered more than 10 years of service in the Chandigarh Medical College and CWP No.4698 CAT of 2004 -7- prior thereto also they rendered sufficient service in PGI itself as Demonstrator or Research Scholar as per detail given in their respective cases.
(d) The relevant departments of the contesting respondents are non clinical and there is a specific provision in the 1971 Rules as well as under 1998 Regulations for recruiting non medical teachers in the medical colleges in the non clinical subjects to the extent of 30% in Department of Microbiology and 50% in the Department of Biochemistry.
In view of the admitted position, we do not deem it proper to interfere with the order passed by the Central Administrative Tribunal.
Firstly, there is no denying of the fact that the respondents were appointed in pursuance to the advertisement of February, 1997. The appointment was on contract basis. The qualifications for the post as prescribed and mentioned in the advertisement itself were keeping in view the qualification as available in Punjab Medical Education Clause (i) Rule 1971 as the Chandigarh Administration had yet not framed its recruitment rules and was following the eligibility criteria of the Punjab Rules. The respondent duly fulfilled this criteria. The appointment was in accordance with the rules by a duly constituted Selection Committee. Subsequently the post was re-advertised on regular basis vide Advertisement dated 26-04/02-05-1997. The appointment was as such proper and not a backdoor entry. The petitioners were all eligible under the 1971 rules. They have suddenly been made ineligible on the basis of 1998 rules. The very basic qualification of M.Sc. has been changed. A basic qualification cannot even be improved by the candidates even if they wish to do so at this later stage. It would amount to throwing them out from the CWP No.4698 CAT of 2004 -8- field of their specialization for ever and ever and at a time when they are all overage.
Secondly, the learned Tribunal rightly recorded a finding that no institute or college awarded the degree of M.Sc. (Microbiology) and only a few were awarding M.Sc. medical (Bio-chemistry). Although, the Medical Council of India recognized certain institutes for awarding the degree, these institutes were actually not awarding any such degree at that time. A direction was issued by this Court vide order dated 22-07-2008 passed in CWP No.4698 CAT of 2004 to file an affidavit to this effect. However, an affidavit dated 12-09-2008 of Assistant Secretary, MCI was filed but the said affidavit does not specify dates when these institutes were recognized and as to when they started awarding the degree. The said affidavit is vague. The Central Administrative Tribunal, therefore, rightly came to the conclusion that the said degree being awarded, is a nugatory.
Thirdly, the qualification so specified of M.Sc. (Microbiology) and M.Sc. Medical (Bio-chemistry) was surrounded with controversy from the very beginning. Even the Secretary, Medical Education & Research, Chandigarh addressed a letter to Secretary UPSC vide No.GMC-EA-I-11 (57)-2K2/23399 dated 23-07-2002 expressing his doubt on prescribing of such a qualification and wrote to the following effect :-
" Subject : Recruitment to the post of Senior Lecturer (Microbiology) and (Biochemistry) in Government Medical College & Hospital, Chandigarh.
Sir, I am directed to refer to your letter No.F.5/31(2)/ 2002-RR dated 12-06-2002, on the subject noted above and to state that following doctors were appointed as Senior Lecturers in the departments as mentioned against CWP No.4698 CAT of 2004 -9- each in this institute, on the basis of one time method of recruitment decided by the UPSC, as contained in their letter No.F.11/29/94-AU.II dated 23.3.95 & F.11/32(2)/
96.AU.II 6.10.96 & F.5/31(3)/96-RR dated NIL (copies enclosed).
1. Dr. Manjula Mehta, Microbiology
2. Dr. Nalini Agnihotri Microbiology
3. Dr. Mini Verma Biochemistry From the perusal of the one time method of recruitment, it would be seen that medical degree was not prescribed as an Essential qualification for the posts against which the above persons were appointed on contract basis. Now, as per advertisement released by the Commission, for the posts of Senior Lecturer (Microbiology) and Senior Lecturer (Biochemistry), the essential qualification and experience for these posts have been prescribed as per Draft Recruitment Rules, which have recently been approved by the UPSC. From the perusal of the qualification & experience it may be seen that the qualification and experience now prescribed by the Commission, for these posts are at variance with the one which already stand approved by the Commission at the time of their appointment. The above candidates, who had been appointed on these posts in response to earlier advertisement, were found eligible/suitable for these posts at that stage, but now they are not eligible to apply for these posts of Senior Lecturers, as they are holding M.Sc. (Microbiology)/M.Sc. (Biochemistry) followed by Ph.D degree from a Medical Institute.
The Chandigarh Administration has considered the representations of above candidates viz-a-viz the Commission's letter under reference and the Chandigarh Administration accordingly recommends that the candidature of the above candidates may be considered by modifying qualification to the extent that it may also include CWP No.4698 CAT of 2004 -10- M.Sc. (Microbiology) for the post of Senior Lecturer/Microbiology and M.Sc. (Biochemistry) for the post of Senior Lecturer (Biochemistry), so that they can also compete with the other candidates for the posts of Senior Lecturer (Microbiology) and Senior Lecturer (Biochemistry), as a special case."
Not only did the department recommend the names of the respondents for considering them as eligible to compete for regular appointment vide above letter dated 23-07-2002 but even the Government, Ministry of Health and Family Welfare, New Delhi competent to approve the Medical Council of India Regulation pointing out the mistake and arbitrariness and unfairness in framing the 1998 Regulations. It is in pursuance to this that a Circular dated 25-03-2008 was circulated to all Health Secretaries of States/Union Territories, wherein, a decision was taken upon the representation of Medical Teachers appointed on the basis of non-medical qualification in Medical Colleges to the effect that all such teachers who possess non clinical qualifications and have been appointed prior to implementation of the Medical Council of India Regulation 1998 shall be continued to be governed by the earlier Medical Council of India Regulations 1971. This decision appears to have been taken by respondent No.1-Union of India, keeping in view the serious hardship of the Medical Teachers possessing non-medical qualification. The relevant contents of the letter are necessary to be reproduced :-
"2. The issues raised in these representations were examined in the Ministry keeping in view the provisions contained in the MCI Teachers Eligibility Qualifications Regulations, 1971 and the MCI Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 and the stand taken by the MCI. The Ministry is of the view that CWP No.4698 CAT of 2004 -11- those medical teachers who were appointed as medical teachers on the basis of MCI Regulations of 1971 and have worked during the period when MCI Teachers Eligibility Qualifications Regulations, 1971 were in vogue, should not be disqualified as medical teachers and should not be denied promotion to the higher posts merely on the ground that they do not fulfill the criteria prescribed by the MCI in their recommendations of years 1974, 1977, 1982, 1983, 1989 and 1995. Further, on re-examination, it has been noticed that both the Ministry as well as MCI while framing the MCI Regulations of 1998 missed to incorporate a clause to safeguard the career prospects of these teachers who were appointed on the basis of qualifications and experience prescribed in the MCI Regulations of 1971.
3. In order to protect the interests of such medical teachers and also to overcome severe scarcity of medical teachers in the pre clinical specialties in the country presently, it has now been decided to rectify the arrangement by amending the MCI Regulations of 1998 suitably. Accordingly, MCI is being requested to take necessary action in this regard.
4. However, in view of the serious hardship of these medical teachers who are facing the threat of removal and denial of promotion; and also due to the severe shortage of faculty in the pre clinical subjects, it has been further decided that pending corresponding amendment to 1998 regulations, the teachers appointed in the pre clinical specialties viz Anatomy, Bio-Chemistry, Physiciology etc on the basis of qualifications and experience prescribed in the MCI Regulations of 1971 shall be allowed to continue to function as medical teachers and shall be granted further promotions even though these teachers do not fulfill the criteria prescribed in the MCI Regulations of 1998.CWP No.4698 CAT of 2004 -12-
5. The State Governments/Universities/ medical college are, therefore, requested to implement this decision, with immediate effect, in the interest of medical education.
6. These issues with the approval of the competent authority."
Learned counsel for the petitioner- Medical Council of India vehemently argued that `this circular' has been referred back to the Central Government by the Ad hoc Committee appointed by the Hon'ble Supreme Court as they were of the view that running the medical colleges/institution with such compromise teaching will result into degradation of the standard of medical education. He further submitted that the letter of the Central Government has no bearing as Medical Council of India is the final authority in laying down the qualification.
With respect to the submissions, we feel that the letter of the Government of India cannot be simply brushed aside. Union of India is also the appropriate authority to approve the regulations. The said regulations have been framed under Section 33 of the Indian Medical Council Act, 1956. The section empowers the Medical Council to make regulations but the previous sanction of the Central Government is mandatory. The same reads as follows :-
"Powers to make regulations.- The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for -
" XXX XXX XXX XXX
(k) the standards of staff, equipment,
accommodation, training and other facilities for
medical education;
XXX XXX XXX XXX
CWP No.4698 CAT of 2004 -13-
Moreover, the letter, in itself is sufficient to pursuade us to conclude that the authorities themselves were doubtful about this particular qualification. Thus, it is obvious that the said qualification prescribed was under a cloud all along and a mistake by the authorities. The Court can always interfere and pass an appropriate orders if there is manifest injustice to parties, particularly, when the authority to approve Medical Council of India Regulations has admitted an omission on the part of Government of India while framing 1998 regulations. Thus, in an appropriate case, like the present one, where accepting the plea of Medical Council of India would amount to a great deal of injustice and hardship, ends of justice would be met by not interfering in the impugned order of the Tribunal. The claim of the answering respondents to consider them for an appointment need to be accepted also on another account. The respective departments of the contesting respondents are non clinical and there is a specific provision in the 1971 Regulations as well as under the 1998 Regulations for recruiting non-medical teachers in the Medical Colleges in the non-clinical subjects to the extent of 30% in the department of Microbiology and 50% in the department of Biochemistry.
Meanwhile, the fact that the answering respondents are eligible and meet the requisite qualification can be viewed from yet another angle. All these candidates qualified Ph.D from Post Graduate Institute of Medical Education and Research and they were granted admission in Ph.D on the basis of their plain M.Sc. If there was no distinction between the M.Sc. from the Medical Institute or a non-medical CWP No.4698 CAT of 2004 -14- institute at the time of admission to Ph.D in P.G.I., their M.Sc. certificates cannot be rejected on the ground that it is from a non-medical institute for purpose of the appointment as Sr.Lecturer in the same field.
Moreover, there is nothing on record to show as to when these vacancies became available. If these vacancies have occurred prior to the 1998 Rules, the 1971 Rules will apply. In the absence of any material to show as to when these vacancies occurred, the date of their appointment on contract basis for the first time on these posts can be safely concluded as the date when the vacancies occurred. They were appointed on contract basis in the year 1997 i.e. prior to 1998 Rules came into operation. Thus, the circular prior to 1998 should apply. The petitioner continued on the post till the same was advertised on regular basis. Thus, it appears that it is these very vacancies which were being now sought to be filled through regular appointment. Hence, the same should be filled according to the earlier eligibility criteria when the vacancies occurred on the basis of which, the answering respondents were selected and appointed and not according to the new qualification. We do not, therefore, deem it proper to interfere in the impugned judgment dated 13-10-2003 passed by the Central Administrative Tribunal.
The writ petition is, accordingly, dismissed.
With respect to CWP No.9512-CAT of 2003, the Tribunal had found that Mini Verma had been called for interview and was duly selected but later on, her candidature was cancelled on the same ground that she did not possess medical in Biochemistry. According to her, the advertisement against which the petitioner was selected, was not required to be quashed. However, we would not like to single her out as there may be many similar situated candidates like Mini Verma. Moreover, the basic CWP No.4698 CAT of 2004 -15- issue in this case remains the same.
The writ petition is, accordingly, dismissed.
(NIRMALJIT KAUR) JUDGE (ASHUTOSH MOHUNTA) JUDGE February 13, 2009 gurpreet