Dr. Mukesh Yadav, B.
Sc., M.B.B.S., M.D., LL.B., PGDHR, MBA (HCA)
Director/Principal/Dean & Professor,
Forensic Medicine & Toxicology
Siddhant School of Medical Sciences, Mainpuri, U.P.
Mob.8527063514
Email:
drmukesh65@yahoo.co.in
Abstract
Medical education is the subject matter of
both Union and State Governments and Medical
Council of India is the sole supervising body of medical education and
maintaining its standard. Problem of recognition of medical degrees / diplomas
is prevalent in almost all the States of India and in most of the medical
specialties. Holders of unrecognized degree / diploma may face problem of
employment / promotion, etc. thus leading to many litigations either decided or
pending in the Indian Courts.
This paper deals with review of this problem,
brief discussion of relevant court decisions, Government Orders and MCI
notifications, etc. thus help in solving this problem to great extent by making
concerned persons aware about the issue and to take initiative to solve the
problem of very much public interest.
Key
Words:
Unrecognized Medical Degree / Diploma, Employment, Promotion, Medical Council
of India
Introduction:
The problem of recognition of degree /
diploma and employment is not new issue as apparent from various courts’
decisions and other relevant documents of Government and Medical Council of
India. Since medical education is still in infancy in India as private medical colleges are mushrooming
and as India Bihar , Tamil Nadu,
Delhi etc.
Author himself had
received an interview call from the PGIMER, Chandigarh New Delhi
In a very
interesting case in which a doctor holder of M.D. (Pathology) awarded by M.L.B. Medical
College G.M.C. Medical
College , Chandigarh
on adhoc basis and continues his job for more than five years till he received
a call of interview for the same post on permanent basis through UPSC, New Delhi
In an another more
interesting case from Allahabad, U.P., one doctor holder of Diploma Cardiology
from G.S.V.M. Medical College, which is not recognized by the MCI, faced
criminal charges and remain in prison for few months not under section 304-A,
but under charges of ‘culpable homicide not amounting to murder for the death
of one of his serious patient, for no fault of him, but to hold unrecognized
diploma awarded by a Government Medical College of U.P.
Problem of employment /
promotion and possession of unrecognized degree / diploma:
“For the fault of the University, the
students cannot be made to suffer. Since they have acquired qualification,
degree in M.D. (Pathology and Microbiology) should be amended as the Schedule
to Act of 1956, does not recognize the degree in M.D. (Pathology and
Microbiology)”; [R-9]
“Where the Post-graduate course was started
by the Ranchi University with the consent of Medical Council of India and the
State of Bihar had recognized such degree imparted by the Ranchi University,
held, it could not be contended that degree obtained after pursuing said course
was of no value as the same had not been recognized so far by the Medical
Council of India”, [R-8]
Judges, J.S. Khehar and Rajiv Bhalla of Punjab and Haryana High Court while delivering judgment
on the issue of recognition of degree and problem of promotion on 09-02-2005.
“The fourth
contention of the learned counsel (page No. 20-23) for the respondent is
that the petitioner has no locus standi to impugn the selection and promotion
of respondent No. 3 Dr. S.S. Sangwan to the post of Dean (Medical) as the
petitioner himself is ineligible for appointment by promotion to the aforesaid
post under the 1988 Rules. In this behalf, the petitioner acquired the
qualification of M.D. (Forensic Medicine) from the Medical
College , Rohtak, and that he was
awarded the aforesaid Postgraduate Degree, by the Maharishi Dayanand
University Maharishi
Dayanand University
So far as the fourth contention advanced on
behalf of the respondent is concerned, reference will have to be made to the
qualifications prescribed for appointment to the post of the Dean (Medical), in
Appendix ‘B’ of the 1988 Rules (details wherof have already been extracted
above). The essential minimum qualifications for appointment to the post of
Dean (Medical) comprise of three
essential ingredients. Firstly,
a basic University qualification included in the schedule to the Indian Medical
Counsel Act, 1956, Secondly,
M.D./M.S. or equivalent Postgraduate qualification, and thirdly, five years teaching experience as Professor (Medical). The
fact that the petitioner possesses the first
and third essential eligibility
conditions is not disputed. The
only issue which arises for determination is, whether the qualification of M.D.
(Forensic Medicine) acquired by the petitioner in 1980 satisfies the second
requirement in Appendix ‘B’ of the 1988 Rules, noticed above. In our view, the qualification of M.D.
(Forensic Medicine) possessed by the petitioner has to be accepted as relevant
qualification for satisfying the second requirement. Our aforesaid conclusion is based on firstly, on the fact that the
qualification of M.D. / M.S. or equivalent postgraduate depicted as an
essential qualification for appointment to the post of Dean (Medical), is a
requirement in the verbatim, even for appointment to the post of Professor
(Medical). The petitioner was appointed as Professor in the Institute of Medical
Sciences Medical College
Since the procedure adopted while short
listing respondent No. 3 for appointment by promotion to the post of Dean
(Medical), was in clear violation of the
mandate of Rules 9 (2) of the 1988 Rules, we are satisfied, that the selection and promotion of respondent No. 3
Dr. S.S. Sangwan to the post of Dean (Medical), deserves to be set aside. The
same is, accordingly, be immediately
relieved from the post of Dean (Medical). [Page No. 26]
The respondent shall reconvene the process of
appointment by promotion to the post of Dean (Medical) forthwith. The entire
deliberations shall be completed within one month from today, by following the
principle of seniority-cum-merit, envisaged under Rule 9(2) of the 1988 Rules. [Page No. 26] writ is disposed of in
the aforesaid terms. [Page No. 26] [R-1]
The problem of recognition of degree and
employment is not new issue as apparent from this letter: Letter written by the
Secretary, U.P., Sri G.K. Joshi, to all Heads of Departments and Principal, Heads of Offices, Niukti (Kha),
Vibhag. The contents of letter are as follows:
“Subject: Recognition of the degrees and
diplomas awarded by the Universities established by law in India
Sir,
I am directed to say that the
question of recognition of the degree / diploma awarded by the Universities as
established by law in India
for purposes of recruitment to services and posts under the State Government
has been under their consideration for some time past. In the light of the
decision taken by the Government of India and in consultation with the Lok Seva
Ayog, Uttar Pradesh [UPPSC] it has been decided that in the case of degree /
diploma awarded by Universities in India which are incorporated by an Act of
the Central or State Legislature, no formal orders recognizing such degrees /
diplomas need be issued by Government. Such degrees / diplomas should be
recognized automatically for purposes of employment under the State Government.
[R-2]
In a case from Rajasthan Court observed that “--Rajasthan
University Ordinance – Ordinance 65 (vii) – Post-graduate medical degree
granted by a University duly established by statute in this country which has
also recognized by the Indian Medical Council – Ipso facto to be regarded,
accepted and treated as valid throughout our country – In absence of any
express provision to the country, such a degree does not require to be
specifically recognized by other Universities in any State in country before it
can be accepted as a valid qualification for the purpose of appointment to any
post in such a State be accepted as a valid qualification for the purpose of
appointment to any post in such a State. [R-7]
Bench
of Justices A.D. Koshal, J., R.B. Mishra,J., V. Balakrishnana Eradi. The
judgment of the Court was delivered by Eradi, J.
On
March 3, 1972, the Rajasthan Public Service Commission (for short, ‘the
Commission’) issued advertisements inviting applications for the recruitment of
two Lecturers in Forensic Medicine for Medical College Para 5]
The
appellant had, by then, obtained the M.D. degree in Forensic Medicine from
the University of
Bihar Para 6]
In
response to the aforesaid advertisement published by the Commission, the
appellant applied for appointment to one of the posts. However, by the impugned
letter (Annexure IV) dated July 21, 1973, issued by the Secretary of the
Commission, the appellant was informed that his application for the post of
Lecturers in Forensic Medicine was rejected since he did not possess the
necessary academic qualification. A representation made by the appellant to the
Public Service Commission for reconsideration of the matter did not meet with
any favourable response and hence the appellant approached the High Court by filing
the writ petition under Article 226 of the Constitution out of which this
appeal has arisen. During the pendency of the writ petition, the Commission
conducted the interview of the remaining candidates and selected respondents 3
and 4 for appointment to the two posts and on the basis of the said selection
the State Government appointed respondents 3 and 4 as Lecturers. The appellant
thereupon amended the writ or direction canceling the interview and selection
conducted by the Commission as well as the consequential appointments given by
the State Government to respondents 3 and 4 as Lecturers in Forensic Medicine.
[Para 7]
The
appellant is admittedly the holder of the basic degree of M.B.B.S. from the Rajasthan University Para 10]
The University of Bihar Para 11]
The
conclusion that emerges from the aforesaid dissuasion is that the appellant was
fully qualified for being considered for appointment to the two posts of
Lecturer in Forensic Medicine advertised by the Commission on November 16,
1972, and that the Commission acted illegally in treating the appellant as
not being possessed of the requisite academic qualification and excluding him
from consideration on the said ground. [Para
13]
Accordingly,
we allow this appeal, set aside the judgment of the Division Bench of the High
Court and restore the judgment of the Single Judge, subject to the modification
that in carrying out the directions contained in the judgment of the learned
Single Judge, the Commission should treat the appellant as a fully qualified
candidate in the light of the finding recorded by us that at the relevant time
the appellant possessed not merely the prescribed academic qualification but
also the requisite experience of two year’s medicolegal work. The appellant
will get his costs throughout from respondents 1 and 2 in equal shares. [Para 14]
[R-7]
A Bench of Justices
N.M. Kasliwal, J. and M.M. Punchi, J. delivered the judgment on April 26, 1991.
[R-8]
The
controversy has been raised before us that the M. Ch. Degree course in Neuro
Surgery awarded by Rajendra Medical College, Ranch University is not yet
recognized for the purpose of Indian Medical Council Act, 1956 and a letter of
Medical Council of India dated 27-02-1991 has been placed on record in this regard.
Learned counsel for the respondent No. 5 has tried to contend that M. Ch.
degree obtained by the appellant was of no value, as the same has not been
recognized so far by the Medical Council of India. We find no force in this
contention, as this course was started by the Ranch
University in 1980 with the consent of
the Medical Council of India and the State of Bihar
has recognized such degree imparted by the Ranchi
University and even before this Court
learned counsel appearing for the State of Bihar
“Though the High Court on one stage held that
a candidate for Assistant Professor in Neuro Surgery must have a postgraduate
degree in Neuro Surgery and having held that the degree of Neuro Surgery of the
appellant was recognized and valid, yet committed a serious error in giving
preference to respondent No. 5, which was having a degree of M.S. in General
Surgery over the appellant who was holding much higher degree of M. Ch. in
Superspecialty in Neuro Surgery itself. The High Court further committed an
error in holding that clauses 2 & 3 of the advertisement did not evolve any
distinction of specialty, parent specialty and superspecialty. A mere perusal
of the said clauses would show that clauses 2 © and 3© does talk of parent
specialty and superspecialty. The finding of the High Court in this regard was
clearly erroneous. Clause 3 (c) carved out an exception in favour of
superspecialty vis-à-vis experience and, therefore, clause 3 clearly speaks
about superspecialty. The High Court in our view committed a further error in
not appreciating clause 19 in its correct perspective. Clause 19 envisaged that
preference would be given to a person who had a degree in superspecialty along
with research or working experience. Thus the appellant having a degree in
superspecialty and also having preference in the matter of appointment to the
post of Assistant Professor in Neuro Surgery over respondent No. 5 who did not
have a degree in superspecialty”. [R-8]
“The State
Government has also taken a clear stand that there was an acute shortage of
qualified Neuro Surgeons in the State and therefore, the Government had
provided certain relaxations and priorities in the criteria for appointment to
junior teaching posts in various Medical Colleges of Bihar ,
so that such candidates could be appointed. The appellant had been given
preference by virtue of his having M. Ch. Degree in Neuro Surgery with research
work and working experience. The State Government has further stated that
appellant is qualified Neuro Surgeon and has been rightly appointed as
Assistant Professor of Neuro Surgery vide Notification No. 1144 (17) dated
28-12-1990 and the appellant joined the said post on 28-12-1990 itself”.
[R-8]
Thus taking in view
the entire scheme of the degree and the relevant clauses of the advertisement,
we are clearly of the view that appellant was rightly put in the Select Panel
at NO. 1 and the Government of Bihar rightly appointed him on the post of
Assistant Professor of Neuro Surgery.
In the result, we
allows the appeals, setting aside the order of the High Court of Patna dated
10-12-1990 and dismiss the writ petition filed by Dr. Chandra Mohan Jha,
Respondent No. 5. In the facts and circumstances of the case, there would be no
order as to cost. [R-8]
Most important case of Supreme Court on this
issue is that of 1999 [R-6], judgment delivered by a Bench of Chief Justice of
India M.M. Punchhi, and his companion Judges K.T. Thomas and D.P. Wadhwa, JJ.
Constitution of India Medical
College
- Medical
Council Act, 1956 (Act 102 of 1956), Ss. 10-A, 10-B, 33.
- Karnataka
Education Institutional (Prohibition of Capitation Fees) Act (1984), S. 4.
- Karnataka
State Universities Act, 1976 (Act 28 of 1976), S. 53 (10).
- Dentists
Act, 1948 (Act 16 of 1948), S. 10-A.
It is the Medical Council / Dental Council
which can prescribe the number of students to be admitted in medical courses /
dental courses in a medical college or institution. It is the Central
Government, alone which can direct increase in the number of admissions but
only on the recommendation of the Medical Council. Universities and the State
Government of Karnataka had no authority to allow increase in the number of
admissions in the medical colleges in the State. No medical college can admit
any student in excess of its admission capacity fixed by the Medical council
subject to any increase thereof as approved by the Central Government and that
Sections 10-A, 10-B and 10-C will prevail over Section 53(10) of the State
Universities Act and Section 41 (b) of the State Government Capitation Fee Act.
To say that the number of students as permitted by the State Government and
or University before June 1, 1992 could continue would be allowing an
illegality to perpetuate for all time to come. [Par 31, 32]
It is not that only future admissions will
have to be regulated on the basis of capacity fixed by or determined by the
Medical Council. Plea of the State Government that power to regulate admission
to medical college is prerogative of the State has to be rejected.
It is the Medical Council, which is primarily
responsible for fixing standards of medical education and over seeing that
these standards are maintained. It is the Medical Council, which is the
principal body to lay down conditions for recognition of medical colleges,
which would include the fixing of intake
for admission to a medical college. The Medical Council Act is reliable to
Entry 66 of List 1 of Schedule 7 to Constitution.
(B) Medical Council Act, 1956 (Act 102 of
1956), S. 33 – Regulations framed under – Falling within the purpose
mentioned in Section 33 – will have mandatory force.
Recent
Developments:
The Hon’ble Chief Justice Ajay Nath Ray and his companion Judge Jagdish
Bhalla, of Lucknow Bench of Allahabad High Court, while delivering interim order
in a case [R-5] on April 20, 2005 said
This is a Public Interest
Litigation (Writ Petition under Article 226 of the Constitution of India) filed
by the writ-petitioners, which described themselves as Doctors.
They are final year students of M.B.B.S.
Course at B.R.D. Medical College ,
Gorakhpur Medical College
Some other Colleges are also named in the
petition like Maharani Laxmi Bai Medical College ,
Jhansi Gorakhpur
The writ-petition is directed towards
making the recognition available again to these colleges by increasing
the teaching staff, making the Laboratories better equipped, and such like.
We are told that a writ petition has also
been filed in the Delhi High Court (since the Medical Council is in
Delhi) and that in the said writ, orders have been passed calling for reports
and for bettering of facilities and that the matter is due to be heard
again on the 28th of this month (28-04-2005).
So far as the admissions to unrecognized
medical seats are concerned, we have, although prima facie, a very strong view. The Medical Council is the over all
supervisor of Medical Education in India
In such an event, it is the job of every public authority in India to see to it that
these deficient institutions do not admit students or grant them degree which
would have inbuilt and hidden incapacity and inadequacy and which would forever
in future be of definite danger to the citizen of India at large.
Just as an unqualified man practicing
medicine is a threat to public health, so also is a half qualified or badly
qualified person is a similar danger
to the public. If anything the danger in the second case is more. Thus, a degree from an unrecognized
institution, course or seat is a misrepresentation. It is a misrepresentation of a permanent nature
which is likely to mislead many and unknowing patient.
In
these circumstances we admit the writ petition. The writ
petitioners are directed to score out doctors from their description in the
cause title. They are directed to implead the Medical College
Until
further orders of the Court the respondents, their servants, officers and
agents, the respective colleges including B.R.D. Medical College, Gorakhpur,
and their Principles, Professors, employees and servants are restrained from
taking any steps towards any fresh admission of any medical student to any
course or seat which is not at the time of admission recognized by the Medical
Council of India.
Petition is to be served on all the added
parties. Affidavit would be called for from them after service is completed and
the matter will appear in the person 1st respondent, 2 and 3 are
represented today before us by Mr.
Sanjay Bhasin. The other respondents already on record should also be
served, if not already served. The matter should appear in the last four weeks
hence. The appearing respondents might keep their affidavits ready after the
orders and under directions would be passed on the next date when the court
takes of the matter. The impleadment shall be made as above of the Medical Colleges through the
Principal or it added that it should also be served of the Medical
University through the Registrar of the University state might require.
It is clarified that if the Medical Council
grants recognition the restriction against
impressed by our order would automatically be lifted as the restriction
order themselves clarify. Case is still
pending and final decision is awaited till date.
Letter written by
the Director Medical Education, U.P. [R-3] introduced to Principals of Medical
Colleges Kanpur, Agra, Allahabad, Meerut, Jhanshi, Gorakhpur and Registrar King
Gorge Medical University on the subject of ‘Recognition of Postgraduate Medical
Education’ asking principal’s to take appropriate action as per MCI norms to
get Postgraduate degree recognized, and to fulfill deficiencies pointed out by
the MCI during previous inspections and inform the MCI of action taken in this
regard.
The MCI Letter written
by the Secretary MCI [R-4] introduced to the Secretary (Health), Govt. of U.P.
on the same subject mentions that
“I am directed to
inform you that various postgraduate medical courses are being run in the
medical colleges in your State which are yet to be approved / recognized u/s 11
(2) of the IMC Act, 1956. (List enclosed)
You are requested
to direct the authorities of the medical colleges to approach the Registrar of
the University to which the Medical College is affiliated to forward its formal
request through the Central Government as required u/s 11 (2) of the IMC Act,
1956 for arranging for the inspection by the Medical Council of India at the
time of practical examination of respective PG Courses.
In addition you are
requested to direct the college authorities to send compliance regarding the
deficiencies pointed out by the Council in respect of the postgraduate courses
which have yet not been recommended for recognition for further necessary
action in the matter”. [R-4]
Summary and Conclusions:
Responsibilities should be fixed on concerned
authorities for not getting recognized medical degrees / diplomas in time and
raising the problem out of control. No initiative was taken by the faculty
members due to reasons best known to them. It might be for the reason of
insecurity for themselves or no awareness about the procedure of recognition by
the MCI. It might be due to bureaucratic or technocratic insensitivity about
the issue of public interest.
This problem of non-Recognition of
degrees/diplomas results in unnecessary litigations in various courts, denial
of job to many degree holders, not receipt of call for interview by UPSC, New
Delhi, and even not allowed to appear in interviews like by PGIMER, Chandigarh,
and mental harassment of candidates, etc.
Over and above when one go into the
background of this problem it is very easy to make out that this problem is the
result of insensitive authorities on this issue and not fulfillment of Minimum
Standard Requirement Criteria fixed by the MCI and directly related to quality
of medical education and denial of right to health care (under Article 21 of
Indian Constitution) of general public.
It is a very important issue of public
interest related to violation of Article
21, 14, 16 of the Indian Constitution and other statutory provisions. This problem of non-recognized degrees
/ diplomas awarded by many Indian Universities is in violation of the Indian Medical Degree Act, 1916, the Indian Medical Council Act, 1956,
and its Regulations, etc.
Now MCI may suo motu may recognize these
degrees / diplomas and apply the 1993 rules afresh while inspecting and
allowing permission for admission to these courses without affecting the rights
of those already possessed these degrees/ diplomas.
References:
R-1-Dr. D.R. Yadav vs. State of Haryana
R-2-Government Order No. 722/II-B-13 [1] –61
Dated 15-05-1964 regarding Degree,
Diploma Recognition published in the Gazette Part II, Page No. 27 at Serial No.
6.
R-3- Director
Medical Education, U.P. Letter No. ME/ Student Cell/ 2007/ 3225-26, dated
31-05-2007
R-4- Letter of MCI
No. MCI-23(1)/ 2006-Med./ 4163, dated 19-05-2007 introduced to Secretary,
Health, U.P Government.
R-5-Dr. Om Prakash & Others vs. State of U.P., Writ Petition No. 1563 (M/B) of 2005 in the Hon’ble High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow, date of interim order,
20-04-2005.
R-6- Medical Council of India vs. State of Karnatka
R-7-Dr. B.L. Asawa vs. State of
Rajasthan and Others, Civil Appeal No. 303 of 1976 (Appeal by special leave
from the Judgment and Order dated October 30, 1974 of the Rajasthan High Court
in D.B. Civil Appeal No. 247 of 1974), decided on March 5, 1982.
R-8-Dr.
Arun Kumar Agarwal v. State of Bihar
R-9-Dr.
Harish Bajaj v. R.D.V. Vidyalaya, Jabalpur
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