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DR. versus SINDHUJA versus THE DIRECTOR

High Court of Madras

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Dr. V. Sindhuja v. The Director - W.P. Nos. 8879 & 10836 of 2001 and W.M.P. No. 12590 of 2001 [2002] RD-TN 195 (27 March 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27-03-2002

CORAM

THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P. Nos. 8879 & 10836 of 2001 and W.M.P. No. 12590 of 2001 Dr. V. Sindhuja ... Petitioner in WP No.8879 of 2001 1. Dr. Vidya Sundaram

2. Dr. J. Ganesh

3. Dr. Umamageshwari

4. Dr. Baskar

5. Dr. Balakrishnan ... Petitioners in 6. Dr. K. Mohan W.P.No.10836 of 2001 Versus

1. The Director Medical Council of India

New Delhi

2. The Secretary to Government

Health & Family Department

Fort St. George

Chennai 9

3. The Secretary ... Respondents in Selection Committee both the W.Ps No. 162, Periyar EVR Salai

Chennai

Petitions filed under Article 226 of the Constitution of India praying for a Writ of Mandamus as stated therein. For Petitioners : Mr. Vijayan, Sr. Counsel in both WPs For Respondents : Mr. Sasidharan for R1 Mr. S. Thirumavalavan, Special Govt.Pleader (Education) for RR2 & 3 Mr. Vellaisamy for University : COMMON ORDER



The petitioners have filed the above writ petitions seeking for a writ of Mandamus to direct the respondents to extend the benefit of clause 10 (1) of the Post Graduate Medical Education Regulations 2000 dated 22-08-2000 issued by the 1st respondent, as published in the Gazzette of India dated 07-10-2000 (Asvina 15, 1922) in favour of the petitioners.

2. Heard both sides. The petitioners have completed M.B.B.S. Medical Decree and registered themselves as Doctors. The petitioners have also completed Diploma Course under various disciplines. On completion of the diploma course, the petitioners have joined Post Graduate Medical Decree Course in the academic year 2000-2001 and duration for the same is three years as per the prospectus issued by the 3rd respondent. Subsequently, Post Graduate Medical Education Regulations 200 0 came to be passed by the 1st respondent herein on 22-08-2000 and the same was also published in the Gazette of India on 07-10-2000 whereunder Sub-clause (1)of Clause 10 of the Post Graduate Medical Education Regulations is stated as follows:- "10. PERIOD OF TRAINING

The Period of training for the award of various postgraduate degrees or diplomas shall be as follows:-

1. Doctor of Medicine (M.D.) / Master of Survey (M.S.) The period of training for obtaining these degrees shall be three completed years including the period of examination. Provided that in the case of students having a recognised two year post graduate diploma course in the same subject, the period of training, including the period of examination shall be two years." The case of the petitioners are that the benefit of clause 10 (1) shall be extended to them so as to enable them to complete the Post Graduate Degree in two years.

3. Mr. Vijayan, learned Senior counsel appearing for the petitioners argued that the benefit of clause 10 (1)of the Regulations dated 22-08-2000 published in the Gazette of India dated 07-10-2000 ought to have been extended to the petitioners herein as they are equally placed with the fresh candidates. When the variable are continues and discrete, the benefit of law should overlap on all candidates who are undergoing the course on the date of amendment without postponing it to future candidate. The learned senior counsel further argued that the prospectus issued by the 3rd respondent contains the clause to the effect that the period of training for Post Graduate Degree Course Candidates, who have completed Post Graduate Diploma Course in the same subject shall be two years. Therefore, the petitioners are also similarly placed ought to have been extended with similar benefit of undergoing Post Graduate Degree Course in a period of two years otherwise it would amount to violative of Article 14 of the Constitution of India. It is further argued that the Post Graduate Degree Course Candidates, who have been admitted under service quota are entitled to leave with full salary and directing them to continue three years course instead of two years will result in wasting of public revenue. It is also canvassed by the learned senior counsel that once an amendment is brought in in respect of the period of training, the same has to be made applicable for all the candidates including the petitioners herein.

4. Mr.A.Sasidaran, learned counsel appearing for the first respondent submitted that the impugned notification came into force on the date of publication in the Government Gazette dated 7.10.2000, therefore they are applicable to persons admitted after the said date. He further argued that the petitioners were admitted as per the prospectus and were selected in June 2000 and admitted in the the academic year 2 000-2001. Hence they are not entitled to get the benefit under the impugned regulations. Learned counsel further advanced his arguments that if the impugned regulation is made applicable for the petitioners, the same would cause injustice to the students who have been admitted in the year 1999-2000 who are one year seniors to the petitioners will be completing the course only with the petitioners. Learned counsel also relied upon the circular dated 9.12.2000 issued by the 1st respondent wherein it is stated that the regulations came into effect from the academic year starting from 2001 (irrespective of the month in which the course is to commence). Therefore according to him the impugned regulation should be followed strictly, prospectively and not retrospectively. Learned counsel relied on the following two decisions :

i) Abhinav Agarwal and another Vs. Union of India and Others (2001 (3) SCC 425) wherein in Para 6 it was held thus:- "6. After considering the cases in Dr. Jagadish Saran V. Union of India, State of Rajasthan Vs. Dr. Ashok Kumar Gupta, Anant Madaan Vs. State of Harayana, Dr.Dinesh Kumar Vs. Motilal Nehru Merdical College and Sanjay Ahlawat Vs. Maharishi Dayanand University, we stated in Dr. Parag Gupta Case as follows:- "7. These decisions lead us to the following principles; though Universitywise preference is permissible, collegewise preference is not, 70 to 80% reservation has been sustained even where the students from different universities appear at a common entrance test. After the decisions in Dr.Pradeep Jain and followed by Dr. Dinesh Kumar the practice all over the country was to make 15 of the seats in MBBS course and 25% of the seats in Postgraduate medical courses in all the government medical colleges in the country available on the basis of merit alone. Students from anywhere in the country can compete for these seats which are allotted on the basis of an all- India test conducted by the designated authority. The rule of preference on the basis of domicile or requirement of residence is not bad provided it is within reasonable limits and does not result in reserving more than the aforesaid percentage. Where the students from different universities appear at a common entrance test the rule of universitywise preference loses its relevance. The explanations of difference in evaluation, standards of education and syllabus lose much of their significance when admission is based upon a common entrance test. At the same time, the right of the State Government to regulate the process of admission and their desire to provide for their own students should also be accorded due deference...." In the said decision students who have studied outside Delhi are also eligible to the 25 All India quota provided under the scheme for admission to P.G.Medical Courses. In view of the law declared by the Supreme Court and directions issued pursuant thereto, schemes have been framed by respondents institutions. The question of attaining uniformity in the matter of admission in P.G.Medical courses in Medical colleges is wrought with many complexities .The Hon'ble Supreme Court held that however it would be ideal for the States/authorities concerned to achieve uniformity by adopting appropriate criteria in the matter of admission of PG Courses in medical colleges.

ii) Thapar Institute of Engioneering and Technology Vs. Gangadeep Sharma & another (2001 (6)Supreme 733 @ 735) wherein in Para-15 it was held thus:-

"The learned Single Judge on correct interpretation of the Regulation rightly came to the conclusion that the amended Regulation was not applicable and said that:

"There under the amended regulation, the very concept of repeat year examination has been done away with. Under the amended regulation, if a Candidate fails to make the requisite CGPA and credit percentage, he will be required to leave the institute and discontinue his course. Furthermore, the term first year cannot be construed to mean or include the repeat year examination on the true interpretation of the relevant regulations and rules governing the subject. If new regulation is made applicable from May 1999, the candidate obviously could not have taken the repeat year examinations even because there would be no re-appear Examination as per the amended regulation. Thus, the interpretation provided by the learned counsel for the petitioner leads to an impossible situation which never existed in the facts and circumstance of the present case, more particularly, when the petitioners has taken the first year repeat examination voluntarily without prejudice under the old regulation." In this decision the students failed to secure minimum academic requirements for promotion to second year were required to repeat first year during the session 1998-99. When Writ Petitions filed by them were dismissed which was reversed by the Division Bench. The Apex Court set aside the Division Bench Order and restored the order of the single Judge on the basis of the unamended regulation which was in vogue. The amended regulation did not provide for repeat examination. The Supreme Court held the regulation was not applicable to the said candidates.

5. Mr. Thirumavalavan, learned Special Government Pleader ( Education) appearing on behalf of the respondents 2 and 3, based on the counter argued that reduced period of training is applicable only from the academic year 2001-2002 based on the notification issued by the Medical Council of India and the petitioners who have joined for three years course cannot expect the benefit which were not in existence at the time of their admission and prayed for dismissal of the writ petitions.

6. The Tamil Nadu Dr. M.G.R. Medical University, as per the suo moto orders passed by this court and Mr. M. Vellaisamy, learned counsel appearing for the medical university, relying on the counter argued that the Post Graduate Medical Education Regulations 2000 came into force on the date of publication in the official gazette of India published on 07-10-2000. Therefore, the said regulation is made applicable to the persons or candidates who have been admitted after the said date. The petitioners were admitted during the academic year 2000-200 1 i.e., much prior to the date of notification as such they are not entitled to get any benefit under the Act. It is also argued by the learned counsel that if the said regulation is made applicable to the petitioners herein, it would cause injustice to the students who have been admitted during the academic year 1999-2000. It is further argued by the learned counsel that in order to maintain uniformity of the regulations and to render justice to all concerned, the regulations have to be followed strictly, prospectively and not retrospectively. It is further argued that the Medical Council of India recommendations on Post Graduate Medical Council adopted by the Medical Council of India in January 1992 and revised upto April 1993 prescribes minimum training period for award of various Post Graduate Degrees / Diplomas. The period of training prescribed from the year 1993 onwards was three calander years and no exemption shall be given from this period of training of 3 years either for doing Housemanship or for any other experience or diploma. The said regulation was subsequently modified by the impugned notification dated 17-10-2000 into two years which could be applicable prospectively. It is further argued that based on the revised regulations prescribed by the Medical Council of India, the matter was placed before the Board of Studies in Post Graduate Clinical Courses of the University and in its meeting held on 05-02-2 001 has resolved to agree the recommendations of the Medical Council of India on Post Graduate Medical Education Regulations 2000 and to follow the same in the University from the academic year 2001-2002. Accordingly, the duration of the Post-graduate Degree Courses ( clinical) for those who have already having a recognised two years Post Graduate Diploma in the same subject including the period of examination shall be two years and for the students who have been directly admitted to the Post Graduate Course, the period of training including the period of examination shall be three years from the academic year 200 1-2002. It is also argued by the learned counsel that the Standing Academic Board of the University in its meeting dated 28-02-2001 also resolved to approve the above recommendations and the same was also communicated to all the Deans of Medical Colleges on 02-04-2001. He relied on the following decisions in support of his case:

i)Medical Council of India Vs. State of Karnataka (AIR 1998 SC 2423) wherein in Para-25 it was held thus:- "The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries r 26 of List III ( Concurrent List). Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Sec.33. If a regulation falls within the purposes referred Under Sec. 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa) (fb) and (fc) which have been introduced by the Amendment Act of 1993 w.e.f. August 27, 199 2 and clauses (i) (k) and (1) of Section 33."

iii) Krishna Priya Ganguly Vs. University of Lucknow and Others ( AIR 1984 SC 186) wherein in Paras 18 & 19, it was held thus:- "18. The counsel for the State further agreed to passing an order that those candidates who were refused admission but granted provisional admissions under the orders of the Court may be deemed to be admitted to complete the course according to the provisions of the Rules. We might mention that this concession was made because the candidates concerned had secured pretty high percentage and since they had completed the course in the peculiar facts and circumstance of the case. As far as C.A. No. 3045 of 1982 filed by the State against the decision of the High Court is concerned, the view taken by the High Court is unsustainable. The High Court could not have given a go-by to the rules framed by Admission Committee. It was a matter for decision of the academic body and since the academic body had applied the rules in a bona fide manner to all the students equally, there was no jurisdiction whatsoever on the part of the High Court to interfere with the internal working of an academic institution concerned with imparting higher education in the field of post-graduate course in medicine. The Rule prescribing that housemanship must be in the same subject is not inconsistent with the Ordinance. It is supplementary to the Ordinance and amplifies the same. Hence, there is no inconsistency and the High Court was therefore clearly wrong. However, as the counsel for the State has agreed to declare his result, we do not pass any order for reversing the directive issued by the High Court as far as Dr. Hari Om Gupta is concerned though the High Court was wrong.

19. As regards C.A. No. 3047/82 which has been filed by the State, the view taken by the High Court is altogether untenable. The condition regarding putting in two years work in the department concerned could not have been dispensed with. The High Court should not have interfered with the decision of the academic body. The High Court cannot relax the rules or rewrite them. After the declaration of his result, as agreed to by the counsel for the State, if he fails at this examination he will have to put in two years work in the department concerned before he is permitted to appear for the final examination next time.

7. On a careful reading of the said notification, one can easily understand that the same was issued by the Medical Council of India on 2 2-08-2000 with previous sanction of the Central Government, however, the same was published in the Government Gazette on 07-10-2000. Despite the directions issued by this Court, the respondents are unable to produce object and reasons of the impugned notification. Though arguments were advanced by the respondents that curriculum prescribed for three years are different from two years course, nothing was placed before this Court to substantiate the same.

8. As culled out from the counter of the first respondent that the petitioners were selected in June 2000 and were admitted later, the impugned notification was issued on 22.8.00 within a couple of weeks from the date of admission of the petitioners, though the same was published in the Gazette of India on 7.10.2000. Clause 10 of the impugned notification contains proviso that "provided that in the case of students having a recognised two year Post Graduate Diploma Course the same subject, the period of training including the period of examination shall be two years." Admittedly the petitioners possess 2 years Post Graduate Diploma Course of the same subject . It is evident that the impugned regulation is silent about the particular academic year from which it comes into force, of course the entire regulations came into force from the date of publication. The impugned notification is legislative in nature as the same was issued in exercise of the powers conferred under Sec.33 r/w sec.19A of the Indian Medical Council Act,1956 (Act 102/56)the Medical Council of India with the previous sanction of the Central Government. The learned counsel for the first respondent relying upon the circular dated 9.12.2000 whereby all the authorities concerned are requested to follow the regulations with effect from the academic session 2001. The said circular admittedly an executive instruction and not legislative in nature. As I have already pointed out the notification was issued in a couple of weeks after the date of joining of the petitioners. The candidates admitted under service quota availing full salary and leave, the additional period of one more year would definitely cause additional expenses to the public exchequer. The implied objects and reasons for the impugned regulations is to reduce the period of training to the candidates who possess 2 year P.G.Diploma Course in the same subject as such the benefits of the impugned notification can be extended to the petitioners also. Whileso, the contention of the respondents that it can be extended with effect from the academic sessions 2001 is unsustainable. The common features in the case of the petitioners as well as the candidates who joined in the academic session of 2001 are, both possess Post Graduate two year Diploma Course as such the petitioners are entitled to the benefits of the impugned notification particularly clause 10 of the same. In view of the same, I direct the respondents to consider the case of the petitioners herein positively bearing in mind the above said observations and pass order expeditiously. With the above observations the writ petitions are disposed of. No costs. WPMP is closed. Index:Yes

mp.

27-03-2002

To

1. The Director

Medical Council of India

New Delhi

2. The Secretary to Government

Health & Family Department

Fort St. George

Chennai 9

3. The Secretary

Selection Committee

No. 162, Periyar EVR Salai

Chennai

A. KULASEKARAN, J

Order in

W.P. Nos. 8879 and 10836 of 2001

27-03-2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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