Central Administrative Tribunal - Delhi
Dr Maruti Sinha vs M/O Health And Family Welfare on 17 July, 2017
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Central Administrative Tribunal
Principal Bench
OA No.84/2013
New Delhi, this the 17th day of July 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Dr. Maruti Sinha
W/o Dr. Amarip Kumar Singh
aged about 54 years,
presently working as CMO (SAG)
Kasturba Hospital,
R/o C-2/176 (FF)
Janakpuri, New Delhi 110 058. .... Applicant.
(By Advocate : Shri Amit Anand)
Versus
1. Union of India
Through its Secretary
Ministry of Health & Family Welfare
CHS-V Section,
Directorate General of Health Services,
Nirman Bhawan, New Delhi 110 011.
2. Medical Council of India
Through its Chairman
Pocket-XIV, Sector-8,
Dwarka, New Delhi 110 077.
3. North Delhi Municipal Corporation
Through its Commissioner
208, Rouse Avenue,
1, J. L. N. Marg,
New Delhi 110 002.
4. Chairman
Project Management Committee,
North Delhi Municipal Corporation
Medical College, Hindu Rao Hospital,
Malka Ganj, Delhi 110 007.
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5. Delhi University
Through its Registrar
Office of Registrar
University of Delhi, North Campus,
Viswavidyalaya Marg,
Delhi 110 007.
6. Delhi University
Through its Joint Registrar
Faculty of Medical Sciences,
V.P. Chest Institute,
University of Delhi, North Campus,
Vijay Nagar Marg,
Delhi 110 007. ... Respondents.
(By Advocates : Shri R. K. Jain, Shri Girinder Kumar and Ms. Puja
Sarkar)
: O R D E R (ORAL) :
Justice Permod Kohli, Chairman :
By way of this OA, applicant is seeking a direction to declare her equivalent to Associate Professor/Professor on the basis of her qualifications and experience.
2. Brief facts necessary for purposes of present Application are that the applicant on acquiring MBBS Degree in the year 1987 also did her post graduate in Obstetrics and Gynecology while working as Resident at Ranchi and Patna Medical Colleges in the year 1994. She was appointed as a Medical Officer through UPSC with PG specialization in Obstetrics and Gynecology at Kasturba Hospital in June 1995. It is stated that right from the inception of service, the applicant was teaching post graduate students and DNB trainees. The applicant claims to have published six papers during this period. 3 She earned promotions as Senior Medical Officer, Chief Medical Officer (CMO) and CMO (NFSG). Profile of the applicant with experience has been certified by Kasturba Hospital in their certificate dated 07.08.2009.
3. The case of the applicant is that before MCD was having its own medical college it was participating unit of Central Health Service (CHS). An open selection was being carried out through UPSC for appointment of medical officers in the CHS. There have been four sub-cadres, namely, General Duty Medical Officer (GDMO), Non-Teaching Specialists, Teaching Specialists and Public Health. In the case of Medical Officer, it is equated to Specialist and teaching sub-cadre to the post of Associate Professor at the stage of Chief Medical Officer and Chief Medical Officer with a requisite post grade qualification who is conferred NFSG grade is equated with Professor in the teaching sub cadre of Specialists.
4. The Medical Council of India (MCI) which is a regulatory authority lays down the norms and qualifications for teaching faculty in a medical college and also approves the establishment of a medical college and grants recognition to the degrees when attached to a University established in accordance with law. The MCI has promulgated Medical Education Regulation 2000 which was amended on 16.03.2005 regarding the staff faculty in a medical 4 college. The Consultants, Specialists with not less than 18 and 10 years teaching experience respectively in hospitals or institutions which are not attached to any medical college but if there has been an evaluation from any University and post graduate teaching is imparted have been found eligible and equated as Professor in case of 16 years of experience and Associate Professor with 8 years experience in such hospitals where post graduate teaching is carried out. It is stated that the applicant with 17 years experience as a Specialist and PG qualification in Obstetrics and Gynecology, and has been teaching for the same number of years the PG students and DNB trainees attached to the universities in Kasturba Hospital where such attachment for purposes of teaching is recognized by the universities, is eligible to be equated with Associate Professor/Professor.
5. It is further stated that the applicant sought information regarding definition of Consultant and Specialist. The MCI on 23.01.2009 responded to say that Specialist would be a person who is trained and qualified in a particular branch of medicine with respect to the subjects notified in Postgraduate Medical Education Regulations, 2000 and a Consultant would be a senior Specialist having working experience of more than 10 years as a Specialist. Reply of MCI dated 23.01.2009 is reproduced hereunder:- 5
"In view of the above, the members of the Postgraduate Committee after due deliberation decided that a "Specialist", would be a person who is trained and qualified in a particular branch of Medicine, particularly, with reference to the subjects notified in the Postgraduate Medical Education Regulations, 2000 and a 'Consultant' would be a senior specialist having work experience of more than 10 years as a specialist".
The applicant has also placed on record a communication dated 6.12.2010 from the Ministry of Health & Family Welfare to the Registrar CGS Indraprastha University in response to the inquiry of the Inderprastha University regarding the grant of teacher's designation to Doctors working in VMMC & Safdarjung Hospital and Dr. Ram Manohar Lohia Hospital as per MCI, Gazette Notification No.MCI-23(I)/2004-Med./32370 dated 15.03.2005. The Ministry clarified as under:-
"Therefore, it is requested that the teaching designation may be granted to all the post graduate doctors working in the above mentioned two hospitals as per MCI's guidelines, irrespective of their holding the post of Specialist or GDMO Cadre appointed by the Ministry who are involved in the clinical and academic activities of the department and have research publications to their credit."
The applicant has also sought information regarding confirmation of eligibility to grant equated teaching designation for the post of Professor in the department of Obstetrics & Gynecology in a Medical College from the MCI. The MCI vide its communication dated 10.03.2016 informed her as under:-
"No.MCI-12(I)/2015-TEQ/74127 Dated 10/03/2016 Dr. Maruti Sinha C-2/176 (FF), Janakpuri, 6 New Delhi 110 058.
Subject:- Confirmation of eligibility to grant equated teaching designation for the post of Professor in the department Obstetrics & Gynecology in a Medical College.
Madam, With reference to your letter dated 12.11.2015 on the above mentioned subject, I am directed to inform you that the matter with regard to grant of equated teaching designation is dealt by the affiliating university in term of Postgraduate Medical Education Regulations, 2000 as amended from time to time and in light of clarifications provided to you by the Council vide letter No.MCI-12 (1)/2015-TEQ/145518, dated 26.10.2015.
In view of above, you may kindly approach to the affiliated university for grant of equated teaching designation for the post of Professor in the department of Obstetrics & Gynecology in a medical college/Institutions.
This issues with the approval of the competent authority.
Yours faithfully, /sd/ (Babu Ram Manuwal) Assistant Secretary"
It is also alleged that Ministry of Health and Family Welfare in a decision taken on 11.06.2008 in VMMC and Safdarjung Hospital and Dr. RML Hospital while establishing medical college absorbed thereunder Specialists with requisite experience as per MCI guidelines in the teaching faculty instead of filling up the post of teaching faculty through contract basis. The applicant has challenged the advertisement dated 19.12.2012 (Annexure A-1) inviting applications to fill up various posts of teaching faculty in a newly established medical college in Hindu Rao Hospital. As per this advertisement, the candidates already working even on regular basis 7 in Corporation or Government were also eligible to apply. It is stated that since the posts are sought to be filled up on contract basis, the applicant has been deprived of an opportunity to brighten her future prospects. The applicant did not apply as she is already a regular employee.
6. The applicant has also placed on record copy of a communication dated 26.10.2015 whereby the MCI informed her about the norms for equation of posts on the basis of qualification and teaching experience. The said letter reads as under:-
"The Postgraduate Medical Education Committee considered the letter dated 01/10/2015 received from Dr. Maruti Sinha, Secretary, Delhi Medical Officers Association with regard to clarification of term "Specialist and Consultant" as referred to in PGMER, 2000 along with Notification dated 16th March, 2005 and decision of the Executive Committee of the Council dated 23/11/2014.
It is clarified that those doctors who possess postgraduate qualification and have worked continuously in the department of their PG qualification in Institutions or Hospitals where with the affiliation from any University, postgraduate teaching is being imparted should be considered eligible for grant of equated teaching designation irrespective whether they have worked on the cadre post of General Duty Medical Officer or Specialist. Those who have the experience of working for a period not less than 18 years and 10 years shall be eligible to be equated as Professor and Associate Professor respectively in the department concerned. Those with experience of less than 10 years will be eligible to be equated as Assistant Professor (Notification dated 16.03.2005). Only those GDMOs who do not have postgraduate qualification and are performing rotational duty at different places will not be considered."
She has also placed on record a communication dated 18.02.2016 whereby the University of Delhi, Faculty of Medical Sciences, have 8 equated Specialists of the Department of Burn & Plastic Surgery, MAMC (LNH) as Professor (s) and Assistant Professor (s) for starting of M.Ch. Plastic Surgery Course at MAMC. The letter reads as under:-
"I am to refer to letter dated 4.2.2016 regarding supply of list of equated/designated Professor (s), Assistant Professor (s) in the light of the report of the Inspection Committee of the University dated 20.8.2014 and MCI Regulations 2000, amended clause 11.1 (d).
In this contest, it is informed that the report of the Inspection Committee for starting of M.Ch. Plastic Surgery Course at MAMC with an intake of six years per year was approved by the University on 2.9.2014. It is stated that as per the inspection report/approval of the University, the following specialists of the Department of Burn & Plastic Surgery, MAMC (LNH) have been equated as Professor (s) and Assistant Professor (s) for starting of M.Ch. Plastic Surgery Course at MAMC:-
1) Dr. Rajeev Bhushan Ahuja, equated as Professor.
2) Dr. Padam Singh Bhandari, equated as Professor.
3) Dr. Arun Goel, equated as Professor.
4) Dr. Prabhat Shrivastava, equated as Professor.
5) Dr. Varsha Gupta, equated as Assistant Professor.
6) Dr. Shilpi Baranwal, equated as Assistant Professor."
Similar orders dated 15.04.2010, 27.06.2011, 30.09.2011 and 06.07.2016 have been placed on record whereby a number of Doctors working as Specialists in various disciplines have been equated as Professor/Associate Professor and Assistant Professors.
7. The MCD in its counter affidavit, however, resisted the claim of the applicant. While admitting that the applicant was appointed as GDMO-II has been designated as Chief Medical Officer (NFSG), the MCD denied her claim. It is stated that there are four parallel sub- 9 cadres in health department in municipal corporations, namely, (a) Teaching Specialist; (b) Specialists Cadre (Non Teaching Specialist);
(c) General Duty Medical Officer and (d) Public Health. It is stated that teaching Specialists' entry level post is Assistant Professor and all other posts, i.e., Associate Professor and Professor are promotional posts. Regarding non-teaching Specialists, it is stated that directly recruited as Specialist Grade-II then promoted as Specialist Grade-I and then Specialist, NFSG and then Specialist, NFSG to Specialist SAG scale. It is, however, admitted that the nature of work is to impart specialized treatment to patients with taking round of wards and also to impart post graduate teaching to PG students and work as unit heads and departmental heads. Denying the claim of the applicant, it is stated that the applicant had applied for the post of Professor on the basis of her teaching experience but she is not entitled for that and the Committee decided not to consider GDMO for the rank of faculty.
8. Learned counsel for the MCI has categorically stated that the applicant is entitled to be designated as Associate Professor/Professor in accordance with Regulations framed by the MCI. It is further stated that equation is to be done by the affiliating university and in the present case Delhi University. Reference is made to MCI Regulations, a copy whereof is also placed on record. The same reads as under:-
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"In the Post-Graduate Medical Education Regulations, 2000 (hereinafter referred to as the principal regulations):-
(i) in regulation 11.1 relating to 'Staff-Faculty', after Clause (c), the following clause shall be inserted, namely:-
(d) Consultants of specialists who have the experience of working for a period of not less than 18 years and 10 years in the teaching and other general departments in the institutions or hospitals, not attached to any medical college, where with the affiliation from any university, Post-Graduate teaching is being imparted as contemplated under sub-
regulation (1A) of regulation 8, shall respectively be eligible to be equated as Professor and Associate Professor in the department concerned. The requisite experience for equating a Consultant or Specialist working in the super-speciality departments of the said institutions or hospitals as Professor and Associate Professor shall respectively be 16 years and 8 years.
Consultants or Specialists having Post-
Graduate degree qualification, working in such an institution or hospital, who do not have the said period of experience, shall be eligible to be equated as Assistant Professor in the department concerned."
9. In view of the submissions of the MCI, Delhi University was directed to be impleaded as a party respondent vide Tribunal's order dated 30.11.2016. Delhi University has filed its reply. It is stated that Section 4, paras 6 & 7 of the Delhi University Act, 1922 provides regarding powers of the university which inter alia include to Institute, Professorships, Readerships, Lectureships and any other teaching posts required by the University, and to appoint or recognize persons as Professors, Readers or Lecturers or otherwise as 11 teachers of the university. The University has also framed statutes. Statute 17 classifies teachers into (a) appointed teachers of the University and (b) recognized teachers of the university.
10. In the present case, we are not concern with the first category. The recognized teachers of the University as per statute are as under:-
"(3) 'Recognised teachers of the University' shall be-
(a) members of the staff of a recognized college of
the University, or
(b) members of the staff of a recognized
Institution which provides graduate and post-
graduate courses of study approved by the University;
Provided that no such member of the staff of a recgonized college of Institution shal be deemed to be a recognized teacher unless-
(a) he is recognized by the Executive Council as a Professor. Reader or in any other capacity as a teacher of the University; and
(b) his teaching in his own College or Institution relating to graduate and post-graduate courses is approved by the University."
The University has also mentioned that the applicant had represented to the University of Delhi seeking conferment of equated designation of Professor on the plea that such teaching designation has been conferred in other institutions which are, however, not affiliated by the University of Delhi. Judgment relied upon by the applicant in W.P. (C) No.5709/2016 has also been referred to. However, it is stated that the said writ petition is still pending. 12
11. We have heard learned counsel for the parties.
12. Regulations of the university which are relevant, referred to herein above, clearly laid down that the Doctors who possessed post graduate qualification and have worked continuously in the department of their PG Qualifications in Institutions or Hospitals where with the affiliation from any university post graduate teaching is being imparted should be considered eligible for grant of equated teaching designation irrespective whether they have worked on the cadre post or GDMO or Specialist, and thus who have experience of working for a period not less than 18 years and 10 years shall be eligible to be equated as Professor and Associate Professor respectively in the department concerned, and those with less than ten years of experience will be eligible to be equated as Assistant Professor. This position is not disputed by any of the parties. The MCI in its letter dated 26.10.2015 addressed to the applicant had reiterated the above position. Even, in letter dated 10.03.2016 addressed to the applicant by the MCI, the applicant was asked to approach the affiliated university for grant of equated teaching designation as is evident from the said letter, reproduced hereinabove.
13. The applicant has relied upon an order dated 09.11.2016 passed by the Hon'ble High Court of Delhi in Writ Petition (Civil) 13 No.7049/2005. In this writ petition, the Faculty Association, Maulana Azad Medical College and Associated Hospitals, namely, Lok Nayak Jai Prakash Narayan Hospital, G. B. Pant Hospital, Guru Nanak Eye Centre, Sushruta Trauma Centre, Chacha Nehru Bal Chikitsalaya, Dental College and Hospital and College of Nursing have challenged the Notification dated 15.03.2005 whereby the Medical Council had amended the regulations providing for equation of posts of Non teaching specialists and consultants as Professors and Associate Professor as referred to hereinabove on the ground that they do not possess the requisite mandatory qualification prescribed under the recruitment rules. The court recorded the statement of the counsel for petitioner regarding the issues in the case in its order dated 02.08.2016. The same reads as under:-
"Learned counsel for the petitioner has made a statement in writing, on instructions received from the petitioner. The statement reads as under:-
"Petitioners will be satisfied if this Hon'ble Court examines and pronounces it's verdict on:-
1 Repugnancy of the impugned notification vis-
à-vis proviso to Article 309 of the Constitution of India and Minimum Qualifications for Teachers Regulations, 1998.
2 Interpretation and the conceptual working of the impugned notification dated 15.03.2005.
3 Validity of all the subsequent office orders issued pursuant to the impugned notification dated 15.03.2005.14
Learned counsel for the petitioner also clarifies that the proviso to Regulation 11 (I) (d) and its violation is not the subject matter of the present writ petition. The said statement is also taken on record."
The Hon'ble High Court accordingly recorded its conclusions in the following manner:-
"(i) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-graduate institutions covered by Sub-Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. The petitioners are unable to establish and show that clause (d) to Regulation 11.1 is illegal or bad in law. On the other hand, the respondents have been able to show and establish the reason and cause why the aforesaid clause was enacted by the MCI. The object and purpose were to allow and permit post-graduate courses already in existence should not close down and stop pursuant to the promulgation of PGME Regulations, 2000.
(ii) Clause (d) of Regulation 11.1 of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. The teaching and non-
teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub- cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CHS Rules operate in different fields and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub-cadres.
(iii) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub-cadres.
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(iv) Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post- graduate medical education to the sanctioned annual intake in the respective government institutions/hospitals and cannot exceed the said numbers. Violation of the proviso and the question whether there are excessive designations has not been raised and argued before us. The petitioners have stated that this is not a subject matter of the present writ petition and has been raised in other writ petition pending in the High Court. We have, therefore, not examined the factual matrix and the question whether there has been a violation of the proviso to Regulation 11.1 (d) of the PGME Regulations, 2000."
From the above conclusions, we find that the Hon'ble High Court has approved the validity of Regulation 11.1 of the MCI Regulations and approved the designation with the observation that it would not affect members of the teaching sub cadres as it does not amount to transfer or change in sub cadres.
14. In view of the above circumstances, we allow this OA and direct the University of Delhi to consider according equation of posts of Associate Professor/Professor to the applicant on the basis of her qualifications, teaching experience and related facts that the applicant is imparting teaching to the post graduate and DNB trainees in duly approved recognized institutes. Let the consequential order be passed within a period of two months from the date of receipt of certified copy of this order. Since Delhi University has referred to a pending writ petition No.5709/2016 wherein the clarification made 16 by the MCI is under challenge, we direct that the order in the present OA shall always be subject to any direction or order that may be passed by the Hon'ble High Court of Delhi in the said writ petition.
(K. N. Shrivastava) (Justice Permod Kohli) Member (A) Chairman /pj/